Food Safety and Inspection Service
Forest Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Energy Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Health Resources and Services Administration
National Institutes of Health
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Indian Gaming Commission
Antitrust Division
Federal Mine Safety and Health Review Commission
Centers for Disease Control and Prevention
Health Resources and Services Administration
National Institutes of Health
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Internal Revenue 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.
Nuclear Regulatory Commission.
Direct final rule.
The Nuclear Regulatory Commission (NRC) is amending its regulations revising the BNFL Fuel Solutions FuelSolutions
The final rule is effective May 14, 2001, unless significant adverse comments are received by March 29, 2001. If the rule is withdrawn, timely notice will be published in the
Submit comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff. Deliver comments to 11555 Rockville Pike, Rockville, MD, between 7:30 a.m. and 4:15 p.m. on Federal workdays.
Certain documents related to this rulemaking, as well as all public comments received on this rulemaking, may be viewed and downloaded electronically via the NRC's rulemaking website at
Certain documents related to this rule, including comments received by the NRC, may be examined at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. For more information, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by email to
Documents created or received at the NRC after November 1, 1999 are also available electronically at the NRC's Public Electronic Reading Room on the Internet at
Gordon Gundersen, telephone (301) 415-6195, e-mail GEG1@nrc.gov, of the Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under section 218(a) for use at the site of any civilian nuclear power reactor.”
To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72, entitled “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on January 16, 2001 (66 FR 3444) that approved the FuelSolutions
On September 29, 1999, and as supplemented on July 27, 2000, the certificate holder BNFL Fuel Solutions (BFS) submitted an application to the NRC to amend CoC No. 1026 to allow the Big Rock Point nuclear facility to store mixed-oxide (MOX) fuel assemblies, partial fuel assemblies, and damaged fuel assemblies (in a can). No other changes to the cask system design were requested in this application. The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that the proposed amendment does not reduce the safety margin. In addition, the NRC staff has determined that the change does not pose any increased risk to public health and safety.
This direct final rule revises the cask design listing in § 72.214 by adding Amendment No. 1 to CoC No. 1026. The amendment consists of changes to the Technical Specifications for the storage of MOX fuel assemblies, partial assemblies, and damaged assemblies (in a can). The particular Technical Specifications which are changed are identified in the NRC Staff's Safety Evaluation Report for Amendment No. 1.
The amended FuelSolutions
CoC No. 1026, the revised Technical Specifications, the underlying Safety Evaluation Report for Amendment No. 1, and the Environmental Assessment,
Certificate No. 1026 is revised by adding the effective date of Amendment Number 1.
This rule is limited to the changes contained in Amendment 1 to CoC No. 1026 and does not include other aspects of the FuelSolutions
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The Presidential Memorandum dated June 1, 1998, entitled, “Plain Language in Government Writing” directed that the Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading
Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The rule would amend the CoC for the FuelSolutions
This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.
The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC would revise the FuelSolutions
On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR Part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On January 16, 2001 (66 FR 3444), the NRC issued an amendment to Part 72 that approved the FuelSolutions
This rule will permit the Big Rock Point (BRP) nuclear facility to store MOX fuel assemblies, partial assemblies, and damaged assemblies (in a can) at the BRP ISFSI. The alternative to this action is to withhold approval of this amended cask system design and issue an exemption to the general licensee. This alternative would result in the same expenditure of time and money.
Approval of the direct final rule is consistent with previous NRC actions. Further, the direct final rule will have no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on the above discussion of the benefits and impacts of the alternatives, the NRC
In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This direct final rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and BFS. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121.
The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required.
In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.
Criminal penalties, Manpower training programs, Nuclear materials, Occupational safety and health, Reporting and recordkeeping requirements, Security measures, Spent fuel.
Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 10d—48b, sec. 7902, 10b Stat. 31b3 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 2244, (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198).
For the Nuclear Regulatory Commission.
Federal Communications Commission.
Final rule; announcement of effective date.
This document is to show rules amended by the Commission in order to changes to its statutory auction authority, shall become effective March 2, 2001. These sections, which contained new information collection requirements, were published in the
The amendments to 47 CFR Part 90, 47 CFR 90.621(e)(2) published at 66 FR 33 (January 2, 2001) are effective March 2, 2001.
Jim Shaffer, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, (202) 418-0680.
On November 9, 2000, the Commission adopted a
Communications equipment, Radio, Reporting and recordkeeping requirements.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; partial delay.
In accordance with the memorandum of January 20, 2001, from the Assistant to the President and Chief of Staff, entitled “Regulatory Review Plan,” published in the
In the final rule, published at 65 FR 77450, December 11, 2000, the effective date of 50 CFR 648.14(bb)(15) and (16) and 648.205(a) is delayed from March 12, 2001, until May 11, 2001.
E. Martin Jaffe, Fishery Policy Analyst, 978-281-9272.
The final rule published on December 11, 2000 (65 FR 77450), implemented approved measures contained in the FMP, which was partially approved by NMFS on behalf of the Secretary of Commerce on October 27, 1999. The requirement to install and use a VMS unit on vessels in the directed herring fishery that caught greater than 500 mt in the previous year, or vessels whose owner intends to harvest greater than 500 mt in the current year would have become effective March 12, 2001. Prohibitions related to this requirement were also scheduled to become effective on March 12. However, consistent with the guidance contained in the “Regulatory Review Plan,” NMFS is delaying the effectiveness of the VMS requirement until May 11. 2001. All other measures implemented in the final rule implementing the Atlantic Herring FMP published December 11, 2000, remain in effect.
This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, NMFS’ implementation of this rule without opportunity for public comment is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3), in that seeking public comment is impracticable, unnecessary, and contrary to the public interest. Given the imminence of the effective date, seeking prior public comment on this temporary stay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. Delays in publishing the final rule implementing the delay of the effectiveness while seeking public comment would have led to confusion in the fishing industry concerning whether to purchase and install VMS equipment during this interim period.
16 U.S.C. 1801
Nuclear Regulatory Commission.
Proposed rule.
The Nuclear Regulatory Commission (NRC) is proposing to amend its regulations revising the BNFL Fuel Solutions FuelSolutions
Comments on the proposed rule must be received on or before March 29, 2001.
Submit comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
Deliver comments to 11555 Rockville Pike, Rockville, MD, between 7:30 a.m. and 4:15 p.m. on Federal workdays.
Certain documents related to this rulemaking, as well as all public comments received on this rulemaking, may be viewed and downloaded electronically via the NRC's rulemaking website at
Certain documents related to this rule, including comments received by the NRC, may be examined at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. For more information, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by email to
Documents created or received at the NRC after November 1, 1999 are also available electronically at the NRC's Public Electronic Reading Room on the Internet at
Gordon Gundersen, telephone (301) 415-6195, e-mail, GEG1@nrc.gov of the Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
For additional information see the Direct Final Rule published in the final rules section of this
This rule is limited to the changes contained in Amendment No. 1 to CoC No. 1026 and does not include other aspects of the FuelSolutions
Because NRC considers this action noncontroversial and routine, we are publishing this proposed rule concurrently as a direct final rule. The direct final rule will become effective on May 14, 2001. However, if the NRC receives significant adverse comments on the direct final rule by March 29, 2001, then the NRC will publish a document to withdraw the direct final rule. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without change. If the direct final rule is withdrawn, the NRC will address the comments received in response to the proposed revisions in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period for this action.
Criminal penalties, Manpower training programs, Nuclear materials, Occupational safety and health, Reporting and recordkeeping requirements, Security measures, Spent fuel.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR Part 72.
1. The authority citation for Part 72 continues to read as follows:
Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 10d-48b, sec. 7902, 10b Stat. 31b3 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15),
2. In § 72.214, Certificate of Compliance (CoC) 1026 is revised to read as follows:
Board of Governors of the Federal Reserve System and Department of the Treasury.
Joint proposed rule; extension of comment period.
On January 3, 2001, the Board of Governors of the Federal Reserve System and the Department of the Treasury (collectively, the “Agencies”) published for public comment a joint proposal that would permit financial holding companies and financial subsidiaries of national banks to engage in real estate brokerage and real estate management. The Agencies are extending the comment period on the proposal.
Comments must be received by May 1, 2001.
Comments should refer to docket number R-1091 and should be mailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551 (or mailed electronically to
On January 3, 2001, the Agencies published a joint proposal to seek comment on whether to permit financial holding companies and financial subsidiaries of national banks to engage in real estate brokerage and real estate management (66 FR 307). The proposal stated that any comments on the proposal must be received by the Agencies by March 2, 2001.
In response to the solicitation of comments, the Agencies have received a substantial number of comments, including requests to extend the comment period. Given the wide public interest in the proposal and the desire of the Agencies to give the public sufficient time to consider the proposal, the Agencies have decided to extend the comment period on the proposal through May 1, 2001.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to Pratt & Whitney (PW) JT9D-7R4 series turbofan engines. This proposal would require initial and repetitive fluorescent penetrant inspection (FPI) of the high pressure turbine (HPT) 1st stage disk aft lugs, and if the aft lug(s) are cracked, replacement of the HPT 1st stage disk and HPT 1st stage airseals. Also, for certain configuration HPT disk assemblies, this proposal would require replacement of the HPT 1st stage airseals with newly designed airseals at the next accessibility. This proposal is prompted by reports of cracks in HPT 1st stage disk firtrees and failure of firtree lugs. The actions specified by the proposed AD are intended to prevent 1st stage HPT disk firtree fracture, which could result in an uncontained engine failure, and damage to the airplane.
Comments must be received by April 30, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-35-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Pratt & Whitney, 400 Main St., East Hartford, CT 06108; telephone (860) 565-6600, fax (860) 565-4503. This information may be examined at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.
Peter White, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7128, fax (781) 238-7199.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-35-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-35-AD, 12 New England Executive Park, Burlington, MA 01803-5299.
The FAA is aware of nine occurrences of HPT 1st stage disk firtree cracking, and one in-service event involving the failure of two adjacent firtree lugs installed on Pratt & Whitney JT9D-7R4 series turbofan engines, which resulted in the liberation of three HPT blades. Investigation and analysis have traced the cause of this disk lug cracking to the pre-bowing of the HPT aft 1st stage airseals. The pre-bow can place excessive stresses on the HPT 1st stage disk lugs that retain the airseals, and result in fatigue cracking of the lugs. The manufacturer has redesigned these HPT 1st stage airseals with revised pre-bow and reduced weight, to lower the stresses on the HPT 1st stage disk lugs. Onset of this fatigue cracking is dependent upon the HPT disk material; powder disks (P/N 787521) experience cracking much sooner than Waspalloy disks (P/N 797621). Therefore, the FAA has determined that the HPT 1st stage airseals on disk assemblies with powder disks (P/N 787521) must be replaced at the next hot section shop visit. PW and the FAA have developed a fleet management plan requiring initial and repetitive fluorescent penetrant inspection of the HPT 1st stage disk aft lug fillet radius for cracking, and replacement of the HPT 1st stage airseals at next HPT shop visit for engines configured with powder HPT 1st stage disk assembly (P/N 787521). The actions specified by the proposed AD are intended to prevent 1st stage HPT disk firtree fracture, which could result in an uncontained engine failure, and damage to the airplane.
The FAA has reviewed the technical contents of Pratt & Whitney Service Bulletin (SB's): JT9D-7R4-72-566, dated May 26, 2000; JT9D-7R4-72-567, dated May 26, 2000 and JT9D-7R4-72-568, dated May 26, 2000, that describe procedures for incorporation of new HPT 1st stage airseals, fluorescent penetrant inspection (FPI) of HPT disk rear lugs, and incorporation of new HPT disks and redesigned HPT 1st stage airseals. These documents were developed by PW and are generally consistent with the fleet management plan defined in this AD, and can be utilized for reference.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, this proposed AD would prevent HPT 1st stage disk firtree fracture by requiring initial and repetitive FPI of the 1st stage disk aft lug, and if cracked, replacement of the HPT 1st stage disk and HPT 1st stage airseals. In addition, the proposed AD would require replacement of HPT 1st stage airseals with redesigned HPT 1st stage airseals for certain HPT disk configurations.
There are approximately 324 engines of the affected design in the worldwide fleet. The FAA estimates that 47 engines installed on aircraft of U.S. registry would be affected by this proposed AD. Although forced engine removals are not anticipated the first year as a result of this proposed action, a maximum of two removals will be assumed. It would take approximately 86 work hours per engine to accomplish the proposed actions, and the average labor rate is $60 per work hour. Based on these figures, the total labor cost impact of the proposed AD on U.S. operators the first year is estimated to be $24,520. Hardware costs the first year for HPT 1st stage airseals replaced by SB JT9D-7R4-72-566 are estimated to be $128,000, based on replacement costs of $147,110 per disk and $45,143 for sideplates, discounted for average
The following year, it is estimated that inspections will result in a maximum of three engines requiring forced replacement of the HPT 1st stage disk and HPT 1st stage airseals due to cracking. Due to these forced removals, approximately
This proposal does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This airworthiness directive (AD) applies to each engine identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent HPT disk firtree fracture, which could result in an uncontained engine failure, and damage to the airplane, accomplish the following:
(a) For engines that incorporate HPT 1st stage disk assembly P/N 787521, replace HPT 1st stage airseals with P/N 820121 at the next hot section shop visit. Information on replacement of the HPT 1st stage airseal is contained in PW service bulletin (SB) JT9D-7R4-72-566, dated May 26, 2000.
(b) Inspect the HPT 1st stage disk aft lug fillet radius for cracks in accordance with Paragraph 4 of the Accomplishment Instructions of PW SB JT9D-7R4-72-567, dated May 26, 2000, and Table 1 of this AD as follows:
(c) Replace any disks that have crack indications. Information on replacement of the disk is contained in PW SB JT9D-7R4-72-568, dated May 26, 2000.
(d) Installation of HPT disk P/N 820321 with redesigned HPT 1st stage airseal P/N 820121 is considered terminating action to the initial and repetitive inspection requirements of paragraph (b) this AD. Information on installation of the HPT disk is contained in PW SB JT9D-7R4-72-568, dated May 26, 2000.
(e) For the purpose of this AD, a hot section shop visit is defined as any time the HPT rotor is disassembled.
(f) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Engine Certification Office (ECO). Operators shall submit their request through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, ECO.
Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the ECO.
(g) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the aircraft to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) that applies to GE CF34-1 and -3 series turbofan engines with No. 5 bearing rotating air seal part number (P/N) 4019T60G01 installed. This proposal would require initial and repetitive checks of the magnetic chip detector indicators, which are located in the lubrication system for the engine bearings, and installation of an improved No. 5 bearing rotating air seal as a terminating action. This proposal is prompted by a report of the failure of a No. 5 bearing rotating air seal that led to a fire in the cavity of the low pressure turbine (LPT), overtemperature of the LPT turbine disk, and excessive turbine disk growth. The FAA is proposing this AD to prevent No.5 bearing rotating air seal failures and possible uncontained engine failures.
The FAA must receive comments on this proposal by March 29, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-22-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may also be sent via the Internet using the following address: “9-ane-adcomment@faa.gov”. Comments sent via the Internet must contain the docket number in the subject line. Comments may be inspected at this location between 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The service information referenced in the proposed rule may be obtained from GEAE Technical Publications, Attention N. Hanna MZ340M2, 1000 Western Avenue, Lynn, MA 01910; telephone: 781 594-2906; fax: 781 594-0600. This information may be examined at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.
Eugene Triozzi, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington MA 01803-5299; telephone: 781 238-7148, fax: 781 238-7199.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before we take action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments sent will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must send a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-22-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-22-AD, 12 New England Executive Park, Burlington, MA 01803-5299.
The FAA was recently made aware of a CF34-3A1 turbofan engine that experienced an in-flight failure of the No. 5 bearing rotating air seal. The manufacturer's investigation revealed that the engine experienced spalling and wear of the No. 5 bearing roller bearing outer race. This caused the No. 5 bearing rotating air seal to rub and separate at the seal braze joint. The air seal failure resulted in a fire in the low pressure turbine cavity which caused the stage 3 low pressure turbine disk to overheat and grow excessively, resulting in an in-flight shutdown. The FAA has concluded that this failure sequence, under certain conditions, could progress further and result in a disk rupture and uncontained engine failure. This proposal would require initial and repetitive checks of magnetic chip detector indicators, which are located in the lubrication system for the engine bearings, in order to detect No. 5 bearing roller distress before air seal failure. Risk analyses of a potential disk rupture were conducted separately for CF34-3A1, -3B, and -3B1 engines, and for CF34-1A, -3A, and -3A2 engines, in consideration of differences in engine maintenance programs for different engine models. The FAA has determined that the repetitive check intervals in this proposed rule would result in acceptable levels of safety for each type of operation, provided that terminating actions are completed fleet-wide in accordance with the requirements of this AD. The installation of the modified design No. 5 bearing rotating air seal, P/N 4019T60G03, constitutes terminating action for the inspection requirements of this AD. This proposal is prompted by reports of one No. 5 bearing rotating air seal failure, and seven No. 5 bearing failures, that had the potential to lead to air seal failures. The actions specified by the proposed AD are intended to prevent No. 5 bearing rotating air seal failures and possible uncontained engine failures.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require initial and repetitive checks of magnetic chip detector indicators, and installation of an improved No. 5 bearing rotating air seal as terminating action, to prevent No. 5 bearing rotating air seal failures and possible uncontained engine failures.
There are about 1650 engines of the affected design in the worldwide fleet. The FAA estimates that 1075 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take about 0.5 work hours per engine to do the proposed checks, and that the average labor rate is $60 per work hour. Based on these figures, the total proposed AD cost impact on U.S. operators, for the initial check is estimated to be $32,250. In addition, the replacement air seal cost is approximately $2,400 per unit, so the total proposed material cost impact on
This proposal does not have federalism implications, as defined in Executive Order 13132, because it would not have a 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposal.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each engine identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (f) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent No. 5 bearing rotating air seal failures and possible uncontained engine failures, accomplish the following:
(a) Check magnetic chip detector indicators in accordance with Table 1 as follows:
(b) Notwithstanding section 43.3 of the Federal Aviation Regulations (14 CFR 43.3), the checks required by paragraph (a) of this AD may be performed by an aircrew member holding at least a private pilot certificate. Completion of the checks must be entered into the airplane records showing compliance with this AD, in accordance with sections 43.9 and 91.417(a)(2)(v) of the Federal Aviation Regulations (14 CFR 43.9 and 14 CFR 91.417(a)(2)(v)). The records must be maintained as required by the applicable Federal Aviation Regulation.
(c) If the magnetic chip detector indicator shows a white triangle or is illuminated, either condition indicates a chip detection. Remove the chip detector and disposition the chip, and the engine, using the engine maintenance manual procedures.
(d) Remove No. 5 bearing rotating air seal P/N 4019T60G01, and replace with air seal P/N 4019T60G03, in accordance with Table 2 as follows:
(e) Replacement of air seal P/N 4019T60G01 with air seal P/N 4019T60G03 constitutes terminating action for the repetitive inspection requirements specified in paragraph (a) of this AD.
(f) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Engine Certification Office (ECO). Operators shall submit their request through an appropriate Federal Aviation Administration (FAA) Principal Maintenance Inspector, who may add comments and then send it to the Manager, ECO.
Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the ECO.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations under section 894 of the Internal Revenue Code relating to the eligibility for treaty benefits of items of income paid by domestic entities that are not fiscally transparent under U.S. law but are fiscally transparent under the laws of the jurisdiction of the person claiming treaty benefits (a domestic reverse hybrid entity). The proposed regulations affect the determination of tax treaty benefits with respect to U.S. source income of foreign persons. This document also provides notice of a public hearing on these proposed regulations.
Written or electronic comments must be received by May 29, 2001. Requests to speak (with outlines of oral comments to be discussed) at the public hearing scheduled for June 26, 2001, at 10 a.m., must be submitted by June 5, 2001.
Send submissions to: CC:M&SP:RU (REG-107101-00), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered between the hours of 8 a.m. and 5 p.m. to: CC:M&SP:RU (REG-107101-00), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit comments electronically via the Internet by selecting the “Tax Regs” option on the IRS Home Page, or by submitting comments directly to the IRS Internet site at
Concerning the regulations, Elizabeth U. Karzon or Karen Rennie-Quarrie at (202) 622-3880; concerning submissions and the hearing, Guy R. Traynor at (202) 622-7180 (not toll-free numbers).
On June 30, 1997, the IRS and Treasury issued temporary regulations (TD 8722 [1997-2 C.B. 81]) in the
These proposed regulations provide guidance with respect to the previously reserved paragraph. They provide rules on the character of such payments for treaty purposes and the extent to which such payments are eligible for a reduced rate of U.S. tax under a U.S. income tax treaty. The use of domestic reverse hybrid entities may give rise to inappropriate and unintended results under income tax treaties, such as double non-taxation or double taxation, unless the income tax treaties are interpreted to resolve the conflict of laws. These regulations provide guidance regarding how to apply U.S. income tax treaties under these circumstances.
Section 1.894-1T(d)(3) provided guidance on the appropriate treatment of items of income paid to a domestic reverse hybrid entity. That section provided that § 1.894-1T(d)(1) may not be applied to reduce the amount of Federal income tax on U.S. source income received by a domestic reverse hybrid entity through application of an income tax treaty. Thus, neither the domestic reverse hybrid entity nor its interest holders could claim a reduction under an income tax treaty with respect to a payment to a domestic reverse hybrid entity, notwithstanding that the interest holder might otherwise derive the income as a resident of a treaty jurisdiction under § 1.894-1T(d)(1). The rationale for the rule was the U.S. tax treaty principle that the United States retains taxing jurisdiction over items of U.S. source income paid to its residents. The final regulations published in the
Commentators on the previously issued temporary and proposed regulations noted that it was unclear how items of income paid by a domestic reverse hybrid entity to its interest holders should be treated. In particular, the general rule contained in § 1.894-1T(d)(1) required the item of income to be “received by” a person resident in a treaty jurisdiction and for that item of income to be “subject to tax” in the hands of the person deriving the item of income. Commentators expressed concern that an item of income paid by a domestic reverse hybrid entity could be viewed as neither “received by” the interest holder nor “subject to tax” because the interest holder's jurisdiction treats the domestic reverse hybrid entity as fiscally transparent. The interest holder's jurisdiction views the interest holder as “receiving” the items of income paid to the domestic reverse hybrid entity and as being “subject to tax” on those items of income on an immediate basis. The interest holder's jurisdiction does not recognize the items of income paid by the domestic reverse hybrid entity to the interest holder. Based on this analysis, commentators questioned whether the items of income paid by the domestic reverse hybrid entity to an interest holder in that entity would be subject to a 30-percent tax under the Code. The IRS and Treasury believe similar questions may also arise under the recently issued final regulations.
Accordingly, these proposed regulations provide rules on the treatment of payments made by domestic reverse hybrid entities. Paragraph (d)(2)(ii) of this section provides a general rule that an item of income paid by a domestic reverse hybrid entity to an interest holder shall be characterized under U.S. tax law. This means that U.S. tax principles are first applied to characterize the item of income paid by the domestic reverse hybrid entity to the interest holder for purposes of applying an applicable income tax treaty provision. Once the item of income is so characterized, it is
The IRS and Treasury have learned, however, that domestic reverse hybrid entities are being established by related parties to manipulate differences in U.S. and foreign entity classification rules to reduce inappropriately the amount of tax imposed on items of income paid from the United States to related foreign interest holders. In a typical scenario, a foreign investor, resident in a treaty jurisdiction, establishes a domestic reverse hybrid holding company with a combination of debt and equity contributions. The domestic reverse hybrid entity holds the stock of a wholly-owned U.S. operating company. The operating company pays a dividend to the domestic reverse hybrid entity, but the domestic reverse hybrid entity primarily pays interest to its foreign owner within the earning stripping limits of section 163(j). The foreign jurisdiction views the foreign owner as receiving dividends, but the United States views the domestic reverse hybrid entity as receiving the dividends and making deductible interest payments. In circumstances when the income tax treaty between the United States and the applicable foreign jurisdiction applies a zero withholding rate on interest and a 5-percent rate on related party dividends, the domestic reverse hybrid entity treats its payment to the foreign owner as an interest payment and the foreign owner avoids the withholding tax on the dividends that its jurisdiction treats it as receiving. In addition, the domestic reverse hybrid entity receives the benefit of an interest deduction in the United States while the foreign interest holder receives either a tax credit or exclusion on the dividend amount in its jurisdiction.
The IRS and Treasury believe that it is inappropriate for related parties to use domestic reverse hybrid entities for the purpose of converting higher taxed U.S. source items of income to lower taxed, or untaxed, U.S. source items of income. To do so defeats the expectation of the United States and its treaty partners that treaties should be used to reduce or eliminate double taxation for legitimate transactions, not to reward the manipulation of inconsistencies in the laws of the treaty partners. The legislative history of section 894(c) supports this analysis. Congress specifically expressed its concern about the potential tax avoidance opportunities available for foreign persons that invest in the United States through hybrid entities that are designed to avoid both U.S. and foreign income taxes. See H.R. Conf. Rep. No 220, 105th Cong, 1st Sess. 573 (1997); Joint Committee on Taxation, 105th Cong., 1st Sess., General Explanation of Tax Legislation Enacted in 1997 (JCS-23-97), at 249 (December 17, 1997). The approach contained in § 1.894-1(d)(2), as revised, is also consistent with the general tax treaty principle that contracting states may adopt provisions in their domestic laws to counter structures and transactions intended to take advantage of the differences in the tax laws of the contracting states. See Commentaries to Article 1 of The 1998 OECD Model Tax Convention on Income and Capital; S. Rep. No. 445, 100th Cong. 2d Sess. 322-23 (1988).
The IRS and Treasury are further concerned by the ability of foreign acquiring entities to obtain tax advantaged financing through domestic reverse hybrid entities by exploiting differences between U.S. and foreign law. Such financing unfairly disadvantages similarly situated U.S. domestic acquiring entities. Congress has expressed concern about the use of analogous hybridized structures that were effected to provide foreign acquiring entities with tax advantaged acquisition financing not available to similarly situated domestic companies. See Joint Committee on Taxation, 100th Congress, 1st Sess., General Explanation of the Tax Reform Act of 1986 (JCS-10-87), at 1064, 1065 (May 4, 1987).
For these reasons, the proposed regulations provide a special rule in paragraph (d)(2)(ii)(B) of the regulations, such that if: (1) a domestic entity makes a payment to a related domestic reverse hybrid entity that is considered to be a dividend either under the laws of the United States or under the laws of the jurisdiction of a related foreign interest holder in the domestic reverse hybrid entity, and the related foreign interest holder is treated as deriving its proportionate share of the payment to the domestic reverse hybrid entity under the laws of the related foreign interest holder's jurisdiction; and (2) the domestic reverse hybrid entity makes a payment to the related foreign interest holder of a type that is deductible for U.S. tax purposes and for which a reduction in the U.S. withholding tax rate would be allowed under the general rule, but for this exception, then to the extent the amount of the payment by the domestic reverse hybrid entity to the related foreign interest holder does not exceed the total amount of the interest holder's proportionate share of any payments by the domestic entity to the domestic reverse hybrid entity treated as dividends under either jurisdiction's laws, the payment by the domestic reverse hybrid entity shall be treated as a dividend for all purposes of the Code and the applicable income tax treaty.
For purposes of determining the amount of the payment from the domestic reverse hybrid entity to the related foreign interest holder to be recharacterized as a dividend, the portion of the payments treated as derived by the related foreign interest holder shall be reduced by the amount of any prior actual dividend payments, under U.S. law, made by the domestic reverse hybrid entity to the related foreign interest holder and by the amount of any payments from the domestic reverse hybrid entity to the related foreign interest holder previously recharacterized under this special rule. The tax withheld from the payment from the domestic reverse hybrid entity to the related foreign interest holder shall be determined based on the appropriate rate of withholding that would be applicable to dividends paid by the domestic reverse hybrid entity to the related foreign interest holder under the U.S. treaty with the related foreign interest holder's jurisdiction had that jurisdiction viewed the domestic reverse hybrid entity as not fiscally transparent. Because any payment subject to the provisions of this special rule is treated as a dividend for all purposes of the Code and the applicable treaty, the domestic reverse hybrid entity will not be able to claim a deduction on the payment to the related foreign interest holder.
The regulations provide an 80% ownership test to determine if the parties are related to one another and a special rule that treats accommodation parties as related foreign interest
The proposed regulations further provide that a taxpayer may not affirmatively use the rules of paragraph (d)(2) of this section if a principal purpose for using such rules is the avoidance of any tax imposed by the Code. Thus, with respect to such a taxpayer, the Commissioner may depart from the rules of this section and recharacterize (for all purposes of the Code) the arrangement in accordance with its form or its economic substance. The regulations further provide that, if a taxpayer enters into an arrangement the effect of which is to circumvent the principles of this paragraph (d)(2), the Commissioner may recharacterize (for all purposes of the Code) the arrangement in accordance with the principles of this paragraph (d)(2).
Comments are requested on potential rules with respect to transaction when the domestic reverse hybrid entity is sold to unrelated parties who later receive distributions.
These proposed regulations apply to items of income paid by a domestic reverse hybrid entity on or after the date these regulations are published as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because these regulations do not impose on small entities a collection of information requirement, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (preferably a signed original and eight (8) copies) that are submitted timely to the IRS. The IRS and Treasury Department specifically request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying.
A public hearing has been scheduled for June 26, 2001, at 10 a.m. in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Because of access restriction, visitors will not be admitted beyond the Internal Revenue Building lobby more than 15 minutes before the hearing starts.
The rules of 26 CFR 601.601(a)(3) apply to the hearing.
Persons that wish to present oral comments at the hearing must submit written comments by May 29, 2001, and submit an outline of the topics to be discussed and the time to be devoted to each topic (preferably a signed original and eight (8) copies) by June 5, 2001.
A period of 10 minutes will be allotted to each person for making comments.
An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these regulations is Shawn R. Pringle of the Office of the Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirments.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(d) * * *
(2) * * *
(ii)
(B)
(
(
(
(
(
(
(C)
(iii)
(ii)
(ii)
(ii)
(iv)
Internal Revenue Service (IRS), Treasury.
Correction to notice of proposed rulemaking and notice of public hearing.
This document contains corrections to REG-106702-00 which
Barbara MacMillan, (202) 622-3050 (not a toll-free number).
The notice of proposed rulemaking that is the subject of these corrections is under section 705 of the Internal Revenue Code.
As published, REG-106702-00 contains errors which may prove to be misleading and are in need of clarification.
Accordingly, the publication of the notice of proposed rulemaking (REG-106702-00 ), which is the subject of FR Doc. 01-32189, is corrected as follows:
1. On page 315, column 2, in the preamble, under the caption
2. On page 316, column 3, in the preamble under the paragraph heading “Comments and Public Hearing”, first full paragraph in the column, last line, the language “April 3, 2001.” is corrected to read April 12, 2001.”.
3. On page 317, column 2, § 1.705-2(b)(2), paragraph (ii) of the
4. On page 318, column 3, § 1.705-2(c)(2), paragraph (vi) of
Federal Communications Commission.
Proposed rule. Order to Show Cause.
The Commission requests comment on a petition for rulemaking filed by Chester P. Coleman, licensee of Station KADX(FM), Houston, Alaska, proposing the substitution of Channel 234C1 for Channel 234C2 at Houston, Alaska, and the modification of Station KADX's license to reflect the change. To accommodate the change the petition also proposes the substitution of Channel 286C1 for Channel 287C1 at Anchorage, Alaska, and the modification of the license of Station KNIK-FM, Anchorage, to specify the new channel. Ubix Corporation, licensee of Station KNIK-FM, is ordered to show cause why Channel 286C1 should not be substituted for Channel 287C1 at Houston, and must respond by the comment deadline specified below. Channel 234C1 can be allotted at Houston in compliance with the Commission's minimum distance separation requirements, with respect to domestic allotments, at a site 17.2 kilometers (10.7 miles) south of the community at coordinates 61-29-03 NL and 149-45-52 WL. Channel 286C1 can be allotted at Anchorage, Alaska, at Station KNIK-FM's licensed site 2.8 kilometers (1.8 miles) south of the community at coordinates 61-11-33 NL and 149-54-01 WL.
Comments must be filed on or before April 2, 2001, and reply comments must be filed on or before April 17, 2001.
Victoria M. McCauley, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-37, adopted January 31, 2001, and released February 9, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.
Radio broadcasting.
Part 73 of Title 47 of the Code of Federal Regulations is amended as follows:
1. The authority citation for Part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Alaska is amended by removing Channel 234C2 and adding 234C1 at Houston, and by removing Channel 287C1 and adding Channel 286C1 at Anchorage.
Federal Communications Commission.
Proposed rule.
The Commission requests comments on a petition for rule making filed by M. Terry Carter and Douglas Sutton, Jr. d/b/a/ Tugart Communications seeking the allotment of Channel 236A to Young Harris, GA, as its first local aural service. Channel 236A can be allotted to Young Harris in compliance with the Commission's minimum distance separation requirements without the imposition of a site restriction, at coordinates 34-56-00 NL; 83-50-54 WL.
Comments must be filed on or before April 2, 2001, and reply comments on or before April 17, 2001.
Secretary, Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, as follows: John F. Garziglia, Pepper & Corazzini, LLP, 1776 K Street,
Leslie K. Shapiro, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-35; adopted January 31, 2001 and released February 9, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Georgia, is amended by adding Young Harris, Channel 236A.
Federal Communications Commission.
Proposed rule; dismissal.
This document dismisses a petition filed on behalf of Santa Cruz Broadcasting proposing the allotment of FM Channel 263A to Sonoita, Arizona, as that locality's first local aural transmission service. Petitioner withdrew its interest in pursuing the proposal.
Federal Communications Commission, Washington, DC 20554.
Nancy Joyner, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Fish and Wildlife Service, Interior.
Proposed rule; notice of reopening of public comment period and availability of draft economic analysis; correction.
We, the Fish and Wildlife Service, announced on February 12, 2001, the availability of the draft economic analysis for the proposed designation of critical habitat for the spruce-fir moss spider (
We will accept comments on the proposal and the draft economic analysis until March 14, 2001.
Copies of the draft economic analysis are available on the Internet at
If you wish to comment, you may submit your comments by any one of several methods:
1. You may submit written comments and information to the State Supervisor, Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa Street, Asheville, North Carolina 28801.
2. You may hand-deliver written comments to our Asheville Field Office, at the above address or fax your comments to 828/258-5330.
3. You may send comments by electronic mail (e-mail) to john_fridell@fws.gov. For directions on how to submit electronic filing of comments, see the “Public Comments Solicited” section.
Comments and materials received, as well as supporting documentation used in preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the above address.
John A. Fridell, Fish and Wildlife Biologist (see
On February 12, 2001, we published a proposed rule in the
Accordingly, make the following correction to FR Doc. 01-2270 published at 66 FR 9806, on February 12, 2001:
On page 9807, in column one, correct the
Interested parties must submit comments on or before March 14, 2001.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of a proposal for EFPs to conduct experimental fishing; request for comments.
NMFS announces that the Administrator, Northeast Region, NMFS (Regional Administrator), has made a preliminary determination to issue an EFP that would allow one vessel to conduct fishing operations otherwise restricted by the regulations governing the fisheries of the Northeastern United States. The Haskin Shellfish Research Laboratory submitted a complete application for the issuance of an EFP to one commercial fishing vessel. The EFP would allow one federally permitted vessel to conduct side-by-side tows with the R/V
Comments on this notice must be received at the appropriate address or fax number (see
Written comments should be sent to Patricia Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on EFP Proposal.” Comments may also be sent via facsimile (fax) to (978) 281-9135. Comments will not be accepted if submitted via e-mail or Internet.
Allison Ferreira, Fishery Management Specialist, 978-281-9103.
The Haskin Shellfish Research Laboratory submitted an industry cooperative proposal on February 2, 2001, for one EFP to conduct side-by-side tows between the R/V ALBATROSS and a fishing vessel during the NMFS Spring Trawl Survey. The study addresses the concern that the spring survey may not adequately assess the proportion of large fish in the population. -
The study will occur on Legs I and II of the NMFS Spring Trawl Survey. Leg I of the spring survey is scheduled to begin on February 26, 2001. The study will take place during the first 4 to 5 days of the cruise when the R/V
This study involves Haskin Shellfish Research Laboratory, with funding provided by the NFI Scientific Monitoring Committee. The objective of the study is to conduct side-by-side tows between an industry vessel and the R/V
In order to accomplish the objectives of this study, a trawl with a 6-cm codend mesh will be towed in unison and parallel to the survey trawls being conducted by the R/V
Since the primary objective of the study is to improve size frequency information, the project aims to take length measurements of all fish caught using standard observer protocols. However, species will be measured in order of importance (i.e., summer flounder, scup, squid, black sea bass, and whiting), or subsampled by size, if the limited number of crews are unable to measure all fish. Individual weight measurements and samples for aging will not be taken, but NMFS may establish certain target species for which weight measurements and aging samples should be taken. These fish will be segregated and transferred to the R/V
Any fish below the minimum size limits or in excess of a quota will not be retained, except for scientific purposes. However, the applicant intends to retain for sale those fish meeting the minimum size and quota requirements. In addition, the applicant wants to land and sell fish caught in excess of any applicable landing limit, although it is believed that landings limits will likely not be exceeded due to the short duration of the tows. -
An EFP would be issued to one participating federally permitted vessel to exempt it from minimum mesh-size requirements, GRA restrictions, landing limits, and possession limits. This EFP would also authorize the vessel to land and sell any fish that conform with minimum-size and quota restrictions.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of a proposal for EFPs to conduct experimental fishing; request for comments.
NMFS announces that the Administrator, Northeast Region, NMFS (Regional Administrator), has made a preliminary determination to approve an application for an EFP that would allow up to 12 vessels to conduct fishing operations otherwise restricted by regulations governing the fisheries of the Northeastern United States. The Gulf of Maine Aquarium Development Corporation and Maine Department of Marine Resources have submitted an application for an EFP that warrants further consideration. The experimental fishery to be conducted under the EFP would investigate the bycatch of multispecies and catch of northern shrimp in Gulf of Maine waters that are not currently open to this fishery. The goal of the research is to determine whether a shrimp fishery can be conducted southeast of the Loran 25600 line within acceptable multispecies bycatch limits in order to provide additional economic opportunity to the shrimp fleet and alleviate fishing pressure on shrimp in nearshore waters. This notice is intended to provide interested parties the opportunity to comment on the proposed experimental fishery.
Comments must be received by March 14, 2001.
Comments should be sent to Patricia Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930. Mark on the outside of the envelope “Comments on Proposed Experimental Fishery.” Comments also may be sent via facsimilar (fax) to 978-281-9135. Comments will not be accepted if submitted via e-mail or Internet.
Tom Warren, Fishery Management Specialist, 978-281-9347.
The regulations that govern exempted experimental fishing, at 50 CFR 600.745, allow the Regional Administrator to authorize for certain purposes the targeting or incidental harvest of managed species that would otherwise be prohibited. An EFP to authorize such activity may be issued, provided that there is adequate opportunity for the public to comment on the EFP application, and that the conservation goals and objectives of the Fishery Management Plan are not compromised.
The Gulf of Maine Aquarium Development Corporation of Portland, Maine (ME), and the Maine Department of Marine Resources of Boothbay Harbor, ME submitted to NMFS on November 2, 2000, an application for an EFP to conduct research in the northern shrimp fishery in the Gulf of Maine. The research would target shrimp southeast of the area in which fishing is currently allowed, with the objective of determining whether a shrimp fishery can be conducted within acceptable multispecies bycatch limits. The underlying goal of the research is to provide additional economic opportunity to the northern shrimp fleet and alleviate fishing pressure on shrimp in nearshore waters.
The Northeast Multispecies Fishery Management Plan (FMP) regulations specify minimum fishing gear mesh sizes in the Gulf of Maine/Georges Bank (GOM/GB) Regulated Mesh Area in order to protect multispecies. There are several exemptions, however, that allow fisheries that utilize mesh size smaller than the allowable to be conducted in this area. One of the exemptions to the GOM/GB Regulated Mesh Area is the Small Mesh Northern Shrimp Fishery Exemption Area, which allows the targeting of northern shrimp. One of the principle requirements associated with this exemption area is a requirement to use a finfish excluder device (FED) to ensure a minimal level of multispecies bycatch. Justification of the Small Mesh Northern Shrimp Fishery Exemption Area was based upon the testing of the Nordmore Grate, a FED that was tested from 1991 to 1992, in the Gulf of Maine northwest of the Loran 25600 line. Based upon those experimental trawls, the Small Mesh Northern Shrimp Fishery Exemption Area was implemented, with the border being formed in part by the Loran 25600 line.
Based on results from the experimental fishery, the Small Mesh Northern Shrimp Fishery Exemption Area could be expanded if there is information to determine that the percentage of regulated species caught as bycatch is sufficiently small, on a per trip basis, such that fishing mortality objectives of the FMP will not be jeopardized.
According to the applicant, up to 12 vessels would be issued EFPs to allow targeting of shrimp using small mesh on 12, 3-day trips from April 15 through May 31, 2001. A contractor for sea sampling will be selected through the “Request for Proposal” process, and observers will accompany all trips. For the first half of each trip, the nets will be consistent with the requirements of the Small Mesh Northern Shrimp Fishery Exemption Area (FED with 1-inch maximum spacing). For the second half of each trip, the nets will contain a 3/4-inch (0.01905-m)-spaced Nordmore grate. At some time during each of the first 2 days of each trip, vessels will make a one half-hour tow with no grate in the net to serve as a control tow. When six trips (18 days) of fishing have been completed, the rate of groundfish bycatch will be estimated and submitted to NMFS. Depending upon the level of bycatch, the experiment will either be terminated, continue unaltered, or continue under new procedures (using only the 3/4-inch (0.01905-m)-spaced grate).
EFPs would be required to exempt vessels from certain management measures of the FMP, including the time, area, and FED restrictions of the Small Mesh Northern Shrimp Fishery Exemption Area, and Gulf of Maine Rolling Closures.
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden 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) ways to 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503
Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-6746.
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Cottons gins and warehouses seeking to serve as licensed samplers submit form CN-246. The license period is five years. Licenses issued by the USDA-AMS Cotton Division authorize the warehouse/gin to draw and submit samples to insure the proper application of standards in the classification of cotton and to prevent deception in their use.
Form CN-383 is submitted by cotton producers, ginners, warehousemen, cooperatives, manufacturers, merchants, and crushers interested in acquiring a set of cotton grade and staple standards for Upland and Pima cotton.
Forest Service, USDA.
Notice of availability of an environmental assessment.
On May 10, 2000, Green Mountain and Finger Lakes National Forest Supervisor, Paul K. Brewster, (Responsible Official) set forth a proposal to amend the 1987 Green Mountain National Forest Land and Resource Management Plan (Forest Plan). On January 17, 2001, he made the resultant Environmental Assessment available for a 30 day public comment period. The comment period closed on February 16, 2001. Copies of the Environmental Assessment are available upon request. The current preferred alternative (Alternative 3), would incorporate into the Forest Plan the reasonable and prudent measures and terms and conditions contained in the
All comments received are being evaluated, and may result in supplementation of the Environmental Assessment or be incorporated into the final decision.
This notice is provided pursuant to section 10(c) of the Act and National Environmental Policy Act regulations (40 CFR 1506.6, 453 FR 55990) and National Forest System Land and Resource Management Planning regulations (36 CFR 219.35, 65 FR 6745145).
On May 10, 2000, Green Mountain and Finger Lakes National Forest Supervisor, Paul K. Brewster (Responsible Official) put forth a proposal to amend the 1987 Green Mountain National Forest Land and Resource Management Plan (Forest Plan). On January 17, 2001, a legal notice was published in the Rutland Daily Herald, announcing the availability of the Environmental Assessment for a 30 day public comment period. The comment period closed on February 16, 2001.
Send requests for documents to: Forest Supervisor, Green Mountain and Finger Lakes National Forest, 231 North Main Street, Rutland, Vermont 05701.
Patricia D'Andrea, Forest Planner, at 802-388-4362, ext. 112 TDD 802-747-6765; or direct electronic mail to: “pdandrea@fs.fed.us.”
This amendment would apply to the 370,530 acres of the Green Mountain National Forest in the form of amending the standards and guidelines of the Land and Resource Management Plan for the conservation of the Indiana bat and other woodland bat species, as well as incorporating recommendations for the conservation of Sensitive Species. This is a non-significant amendment.
Forest Service, USDA.
Notice, intent to prepare Environmental Impact Statement.
The Forest Service will prepare an Environmental Impact Statement on a proposal to harvest merchantable trees from the Cave Gulch wildfire area. The proposed action includes salvage timber harvest in roaded areas and stewardship project timber harvest activities in inventoried roadless areas. No new road construction or reconstruction would be conducted in inventoried roadless areas. In areas outside inventoried roadless areas, existing system roads and a few temporary roads would be used. Only dead or dying trees will be removed. The proposed action will also incorporate interim road management to provide for big game security,
Comments concerning the proposal and scope of the analysis should be received in writing by March 7, 2001.
All questions and/or comments should be addressed to: USDA Forest Service, Townsend Ranger District, 415 S. Front Street, Box 29, Townsend, MT 59644.
David McMorran, Team Leader, or Rachel Feigley, Assistant Team Leader at (406) 266-3425.
The analysis will include a no action alternative which will address the effects of not harvesting in the burned area. Other alternatives will consider a range of options, including varying the locations, timing and methods of timber removal. The analysis will consider the effects of the proposed action and alternatives within the entire affected watersheds, but actions will be limited to the burned areas—no green tree harvest is proposed.
Anticipated issues and concerns include, but are not limited to: longterm watershed stability and recovery; fuel loading/fuel reduction in the future; inventoried roadless character and values; longterm management goals; opportunities to integrate salvage operations with restoration activities; big game security and retention of remaining hiding cover; snag management for wildlife; scenery and recreation management, the potential for spreading noxious weeds, and opportunities to benefit local economies.
The Forest Service is seeking information and comments from Federal, state and local agencies as well as individuals and organizations that may be interested in the proposal. The Forest Service invites written comments and suggestions related to the proposal. The Forest Service invites written comments and suggestions related to the proposal. Information received will be used in preparation of the Draft Environmental Impact Statement. The Draft Environmental Impact Statement should be available for public review and comment during April 2001 and the Final Environmental Impact Statement and Record of Decision in June 2001. The official close of the comment period for the Draft Environmental Impact Statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions on the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
The responsible official is Thomas J. Clifford, Forest Supervisor, Helena National Forest, 2880 Skyway Drive, Helena, MT 59601.
Architectural and Transportation Barriers Compliance Board.
Notice of meeting.
The Architectural and Transportation Barriers Compliance Board (Access Board) has scheduled its regular business meetings to take place in Washington, DC on Monday, Tuesday, Wednesday, and Thursday, March 12-15, 2001, at the times and location noted below.
The schedule of events is as follows:
The meetings will be held at the Washington Renaissance Hotel, 999 9th Street, NW, Washington, DC.
For further information regarding the meetings, please contact Lawrence W. Roffee, Executive Director, (202) 272-5434, extension 113 (voice) and (202) 272-5449 (TTY).
At the Board meeting, the Access Board will consider the following agenda items.
• Executive Director's Report
• Election of Officers
• Approval of the Minutes of the January 10, 2001 Board Meeting
• Executive Committee Report—Nominating Committee Report
• Planning and Budget Committee Report—Budget Spending Plan for Fiscal Year 2001 and Fiscal Year 2002 Budget
• Technical Programs Committee Report—Report on Research and Technical Assistance Projects
• Committee of the Whole Report on the Americans with Disabilities Act/Architectural Barriers Act Final Rule
• Committee of the Whole Report on Recreation Facilities Final Rule
All meetings are accessible to persons with disabilities. Sign language interpreters and an assistive listening system are available at all meetings. Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants.
Notice is hereby given that the application by the Lincoln Foreign Trade Zone, Inc., grantee of Foreign-Trade Zone 59, requesting an expansion of the scope of manufacturing authority to include new manufacturing capacity under FTZ procedures and requesting authority to expand the boundary of FTZ 59A at the Kawasaki Motors Manufacturing Corp., U.S.A. (KMM), plant in Lincoln, Nebraska (64 FR 37496, 7-12-99), has been amended to include an additional 732,000 square feet of production area to the previously-announced expansion. The additional square footage would result in a new configuration for Subzone 59A of 2.9 million square feet on 332 acres, with a revised subzone boundary.
The application remains otherwise unchanged.
The comment period is reopened until March 26, 2001.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the County of Clinton, New York, grantee of FTZ 54, requesting authority to expand its general-purpose zone site to include an additional site in Champlain, New York. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR Part 400). It was formally filed on February 20, 2001.
FTZ 54 was approved on February 14, 1980 (Board Order 153, 45 FR 12469, 2/26/80) and expanded on September 23, 1982 (Board Order 196, 47 FR 43102, 9/30/82), and on May 29, 1996 (Board Order 829, 61 FR 28840, 6/6/96). The zone project currently includes three general-purpose zone sites:
The applicant is now requesting authority to expand its zone project to include an additional site (11.5 acres) at the World Warehouse and Distribution facility, 2002 Ridge Road, Champlain (Proposed Site 5). The facility will be operated by World Warehouse as a public warehouse facility with packaging services. The proposed expansion will include the temporary site. No specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by-case basis.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 30, 2001. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to May 14, 2001).
A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations:
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Foreign-Trade Zone Corporation of Southeastern Pennsylvania, grantee of FTZ 147, requesting special-purpose subzone status for the footwear warehousing/distribution facility of C&J Clark America, Inc. (Clark), in Hanover, Pennsylvania. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on February 15, 2001.
The Clark Hanover Logistics Center (305,668 sq. ft./3 bldgs. on 24.8 acres) is
Zone procedures would exempt Clark from Customs duty payments on foreign products that are reexported. On domestic sales, the company would be able to defer payments until merchandise is shipped from the plant. The application indicates that the savings from zone procedures will help improve the plant's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 30, 2001. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to May 14, 2001).
A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations:
A application has been submitted to the Foreign-Trade Zones Board (the Board) by the Dallas/Fort Worth International Airport Board, grantee of FTZ 39, requesting an expansion of the scope of manufacturing authority to include new manufacturing capacity under FTZ procedures and requesting authority to expand Subzone 39C at the Sanden International (USA), Inc. (Sanden), facility in Wylie, Texas. It was formally filed on February 14, 2001.
Subzone 39C was approved by the Board in 1993 with authority granted for the manufacture of air-conditioner compressors, evaporator coils, and related components (1.3 million units/year) for use in motor vehicles, trucks and heavy equipment at Sanden's manufacturing plant (95 acres/437,000 sq. ft.) in Wylie, Texas (Board Order 666, 59 FR 60, 1-3-94).
The applicant is now requesting authority to expand the subzone to include a new 13-acre site (“Miller Road” facility) with an additional 178,000 square feet of manufacturing/warehouse space located at 10710 Sanden Drive in Dallas, Texas. Under Sanden's current expansion plan, the production and warehousing area under FTZ procedures would be increased to a total of 615,000 square feet. Activity at the facilities (841 employees) involves machining and assembly of compressors, clutches, and evaporator coils. Components sourced from abroad include: clutch assemblies, crankshafts, pistons, castings, gears, heat insulators, rotor shafts/assemblies, centering balls, rings, electrical switches, coil covers, housings, fan/motor assemblies, gaskets, armature plates, rubber seals and dampers, bearings, plugs, pulleys, valves and retainers, fasteners, springs, sleeves, clamps, bushings, dust covers, caps, coil rings and windings, felt rings, and labels (duty rate range: free-9.9%), representing some 40 percent of total purchases.
FTZ procedures exempt Sanden from Customs duty payments on the foreign components used in export production (some 450,000 units/year, about 19% of total U.S. production). On its domestic sales, the company is able to choose the duty rate that applies to finished air-conditioner compressors and related components (duty free) for the foreign components noted above. Foreign status and domestic status merchandise destined for export would be exempt from certain local
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment on the application is invited from interested parties. Submissions (original and three copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 30, 2001. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to May 14, 2001.
A copy of the application will be available for public inspection at the following location:
Import Administration, International Trade Administration, Department of Commerce.
Notice of Initiation of Changed Circumstances Antidumping Duty Administrative Review.
In response to a letter from Hyundai Pipe Co., Ltd. notifying the Department of Commerce that its corporate name would be changing to Hyundai Steel Company, the Department of Commerce is initiating a changed circumstances administrative review of the antidumping duty order on certain circular welded non-alloy
February 27, 2001.
Suresh Maniam or Sibel Oyman, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-0176 and (202) 482-1174, 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 (“Department”) regulations are to 19 CFR Part 351 (2000).
On January 5, 2001, a respondent in this proceeding, Hyundai Pipe Co., Ltd. (“HDP”) notified the Department that as of February 1, 2001, its corporate name would change to Hyundai Steel Company (“Hyundai Hysco”). HDP stated that the corporate structure would not change and that all owners, management, production facilities, suppliers and customers will stay the same. HDP provided documentation to support this claim, consisting of an official announcement and a press article noting the name change. On February 9, 2001, HDP submitted the following supplementary information documenting the name change: a public announcement; minutes of the shareholders' meeting; a relevant portion from its draft 2000 financial statements; new business registration certificates for the Seoul office, head office/pipe production facility, and cold-rolling mill; a list of identical pre-and post-name change organizational charts and articles of association; a list of identical pre- and post-name board of directors; and a list of identical pre- and post-name change suppliers and customers. On February 15, 2001, HDP further confirmed that its change in name was not a result of a merger, acquisition, or change in corporate structure.
The information submitted by Hyundai shows changed circumstances sufficient to warrant a review. Therefore, we are initiating a changed circumstances administrative review pursuant to section 751(b)(1) of the Act to determine whether entries naming Hyundai Hysco as manufacturer or exporter should receive the cash deposit rate currently applied to HDP.
The merchandise subject to this review is circular welded non-alloy steel pipe and tube, of circular cross-section, not more than 406.4mm (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, beveled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipes and tubes and are intended for the low-pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air-conditioning units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing applications, such as for fence tubing, and as structural pipe tubing used for framing and as support members for reconstruction or load-bearing purposes in the construction, shipbuilding, trucking, farm equipment, and other related industries. Unfinished conduit pipe is also included in this order.
All carbon-steel pipes and tubes within the physical description outlined above are included within the scope of this review except line pipe, oil-country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit. In accordance with the Department's
Imports of these products are currently classifiable under the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90. Although the HTSUS subheadings are provided for convenience and Customs Service purposes, our written description of the scope of this proceeding is dispositive.
Pursuant to section 751(b)(1) of the Act, the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order.
HDP has notified the Department that its corporate name has changed and that no changes have occurred with respect to ownership, management, production facilities, suppliers or customers. We therefore find good cause to conduct a changed circumstances review. See 19 CFR 351.216(c). Therefore, in accordance with section 751(b)(1) of the Act and 19 CFR 351.216(b) and 351.221(b)(1), we are initiating a changed circumstances review based upon the information contained in HDP's submissions.
The Department will publish in the
This notice is in accordance with section 751(b)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review of potassium permanganate from the People's Republic of China.
In response to a timely request for an administrative review submitted by the respondent, Provincial Chemicals Import & Export Corporation (“Guizhou”), and its supplier of potassium permanganate, the Zunyi Chemical Factory (“Zunyi”), the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on potassium permanganate from the People's Republic of China (“PRC”). The period of review (“POR”) is January 1, 1999, through December 31, 1999. The Department has preliminarily determined that the sale of subject merchandise during the POR was made below normal value (“NV”). If the preliminary results are adopted in our final results of review, we will instruct the U.S. Customs Service (“Customs”) to assess antidumping duties on the entry.
The Department invites interested parties to comment on the preliminary results.
February 27, 2001.
Paul Stolz or Howard Smith, 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; telephone (202) 482-4474 and (202) 482-5193, 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's regulations are to the current regulations at 19 CFR part 351 (April 1999).
On January 31, 1984, the Department published in the
On March 13, 2000, the Department issued its antidumping questionnaire to Guizhou. Guizhou responded to the Department's questionnaire during May 2000, and submitted responses to the Department's June and August, 2000 supplemental questionnaires during July and August, 2000, respectively. On August 1, 2000, the petitioner, Carus Chemical Company (“Carus” or “the petitioner”), submitted publicly available information and comments for consideration in valuing the factors of production used in our NV calculations. On August 31, 2000, the petitioner requested that the Department rescind the review because the sale under review is not
Pursuant to section 751(a)(3)(A) of the Act, the Department has determined that it is not practicable to complete this review within 245 days after the last day of the anniversary month of the order, and thus, has extended the time limit for the preliminary results until January 30, 2001.
The Department is conducting this administrative review in accordance with section 751 of the Act.
Imports covered by this review are shipments of potassium permanganate, an inorganic chemical produced in free-flowing, technical, and pharmaceutical grades. During the review period, potassium permanganate was classifiable under item 2841.60.0010 of the Harmonized Tariff Schedule (“HTS”). The HTS item number is provided for convenience and Customs purposes. The written description remains dispositive.
The petitioner claims that the only sale under review is not
As provided in section 782(i) of the Act, we verified sales and factor information provided by Guizhou and its supplier of potassium permanganate, Zunyi, using standard verification procedures, including on-site inspection of the manufacturer's facilities, examination of relevant sales and financial records, and selection of relevant source documentation as exhibits. Our verification findings are detailed in the report regarding the verification of Guizhou and Zunyi dated January 30, 2001, the public version of which is on file in the CRU-Public File.
To establish whether a company operating in a non-market economy (“NME”) is sufficiently independent to be entitled to a separate rate, the Department analyzes each exporting entity under the test established in the
It is the Department's policy to evaluate separate rates questionnaire responses each time a respondent makes a separate rates claim, regardless of any separate rate the respondent received in the past.
To determine whether the respondent's sale of subject merchandise was made at less than fair value, we compared the export price to the normal value, as described in the
In accordance with section 772(a) of the Act, the Department calculated an export price (“EP”) for the sale to the United States because the subject merchandise was sold directly to an unaffiliated customer in the United States prior to importation and constructed export price methodology was not otherwise indicated. We made deductions from the sales price for foreign inland freight, foreign brokerage and handling, and domestic inland insurance. Each of these services was provided by a NME vendor, and thus, we based the deductions for these movement charges on surrogate values.
We valued foreign brokerage and handling using Indian values that were reported in the public version of the questionnaire response placed on the record in
For exports from NME countries, section 773(c)(1) of the Act provides that the Department shall determine NV using a factors of production (“FOP”) methodology if: (1) the subject merchandise is exported from an NME country, and (2) available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Section 351.408 of the Department's regulations sets forth the methodology used by the Department to calculate the NV of merchandise exported from NME countries. In every case conducted by the Department involving the PRC, the PRC has been treated as an NME. Since none of the parties to this proceeding contested such treatment, we calculated NV in accordance with section 773(c)(3) and (4) of the Act and section 351.408(c) of the Department's regulations.
In accordance with section 773(c)(3) of the Act, the FOP utilized in producing potassium permanganate include, but are not limited to: (1) hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs, including depreciation. In accordance with section 773(c)(4) of the Act, the Department valued the FOP, to the extent possible, using the costs of the FOP in a market economy that is (1) at a level of economic development comparable to the PRC, and (2) a significant producer of comparable merchandise. We determined that India is comparable to the PRC in terms of per capita gross national product, the growth rate in per capita income, and the national distribution of labor. Furthermore, India is a significant producer of comparable merchandise.
In accordance with section 773(c)(1) of the Act, for purposes of calculating NV, we attempted to value the FOP using surrogate values that were in effect during the POR. However, when we were unable to obtain surrogate values in effect during the POR, we adjusted the values, as appropriate, to account for inflation or deflation between the effective period and the POR. We calculated the inflation or deflation adjustments for all factor values, except labor, using the wholesale price indices (“WPI”) for India as published in the International Monetary Fund's (“IMF”) publication,
(1) We valued the direct materials, potassium hydroxide and manganese dioxide used to produce potassium permanganate using price quotes from 1999 issues of
(2) We valued the material, caustic soda, used to treat (soften) water, using price quotes from 1999 issues of
(3) We valued coal using the rupee per metric ton or rupee per kilogram value of imports that entered India during the months of January, April, and May 1999, as published in
(4) We valued electricity using the 1997 Indian electricity prices for industrial use as reported by the International Energy Agency (“IEA”), as adjusted for inflation. This rate is available in the IEA publication
(5) We valued labor using a regression-based wage rate, in accordance with 19 CFR 351.408(c)(3). This rate is identified on the Import Administration's web site.
(6) We derived ratios for factory overhead, selling, general and administrative (“SG&A”) expenses, and profit using information reported for 1992-1993 in the
(7) We valued packing materials, including polyethylene plastic bags, nylon wires, and iron drums using the rupee per metric ton or rupee per kilogram value of imports that entered India during the months of January, April, and May 1999 for polyethylene plastic bags and nylon wires, and during the months of April 1998 through March 1999 for iron drums, as published in
(8) We used the following sources to value truck and rail freight services incurred to transport the finished product to the port and direct materials, packing materials, and coal from the suppliers of the inputs to Zunyi:
As a result of our review, we preliminarily determine that the following dumping margins exist for the period January 1, 1999 through December 31, 1999:
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of the results. An interested party may request a hearing within 30 days of publication of the preliminary results.
The final results of this review shall be the basis for the assessment of antidumping duties on the entry of merchandise covered by this review and for future deposits of estimated duties.
The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we have an calculated importer-specific
The following deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of potassium permanganate from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice, as provided for by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed company named above will be the rate established for that company in the final results of this administrative review; (2) for any previously reviewed PRC or non-PRC exporter with a separate rate not covered in this review, the cash deposit rate will be the company-specific rate established for the most recent period; (3) for all other PRC exporters, the cash deposit rates will be the PRC-wide rates established in the final results of this review; and (4) the cash deposit rates for non-PRC exporters of subject merchandise from the PRC will be the rates applicable to the PRC supplier of that exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice serves as a preliminary reminder to importers of their responsibility under section 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.
We are issuing and publishing this determination 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
Import Administration, International Trade Administration, Department of Commerce.
Notice of Amended Final Results of Administrative Review in Accordance with Final Court Decision on Small Diameter Circular Seamless Carbon and Alloy Steel Standard Line and Pressure Pipes from Germany.
February 27, 2001.
Nancy Decker or Phyllis Hall, AD/CVD Enforcement Group III, Office VII, Room 7866, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0196 or (202) 482-1398, respectively.
On October 5, 2000, the U.S. Court of International Trade (the Court) affirmed the Department of Commerce's (the Department) remand determination of the final results of the antidumping duty administrative review of Small Diameter Circular Seamless Carbon and Alloy Steel Standard Line and Pressure Pipes from Germany. As no further appeals have been filed and there is now a final and conclusive court decision in this action, we are amending our final results.
On March 18, 1998, the Department published the final results of the administrative review in small diameter circular seamless carbon and alloy steel standard line and pressure pipes from Germany (63 FR 13217) (
Respondent Mannesmann challenged the Department's final results on three issues: (1) the Department's interpretation of sections 773(f)(2) and (3) of the Act; (2) the Department's use of adverse facts available to value Mannesmann's purchases of steel billets from an affiliated supplier; and (3) the use of adverse facts available to value the amount of U.S. customs duties paid by Mannesmann. In the
The court upheld the Department's interpretation of sections 773(f)(2) and (3) of the Act as allowing the Department to use the highest of the transfer price, cost of production or market price to value an input from an affiliated supplier and affirmed the Department's practice. However, the Court also found that the evidence cited by the Department was insufficient to justify the use of adverse facts available to value Mannesmann's billet purchases from its affiliated suppliers. Similarly, the Court also found that the record evidence identified by the Department did not support the use of adverse facts available to value the U.S. duties paid by Mannesmann. Therefore, the Court ordered the Department to reevaluate its use of adverse facts available and either identify substantial evidence in support of its conclusion that Mannesmann failed to cooperate by not acting to the best of its ability in providing information about input purchases from both affiliated and non-affiliated parties, or otherwise apply non-adverse facts available. The Court also ordered the Department to identify other record evidence to support the use of adverse facts available to value the U.S. duties paid by Mannesmann or otherwise use non-adverse facts available. The Department issued its remand determination on January 27, 2000.
On October 5, 2000 the Court affirmed the Department's remand results, upholding the use of adverse facts available in valuing Mannesmann's billet purchases, and the application of non-adverse facts available in determining the value of U.S. duties paid.
Because no further appeals have been filed and there is now a final and conclusive decision in the court proceeding, effective as of the publication date of this notice, we are amending the
The “All Others Rate” was not affected by the Remand Determination, and remains at 57.72 percent.
The Department will instruct the Customs Service to assess these revised antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the Customs Service.
This notice is published in accordance with section 751(a) of the Act. Effective January 20, 2001, Bernard T. Carreau is fulfilling the duties of the Assistance Secretary for Import Administration.
Notice of Amendment to Previously Published Notice.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice amends a previous notice published December 20, 2000 (65 FR 79803).
Vanessa M. 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 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b) (1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice by email to oetca@ita.doc.gov, or by mail to: Office of Export Trading Company Affairs, International Trade Administration, Department of Commerce, Room 1104, Washington, D.C. 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 88-4A012.”
The National Tooling and Machining Association (“NTMA”) original Certificate was issued on October 18, 1988 (53 FR 43140, October 25, 1988), and was last amended on May 5, 2000 (65 FR 30073, May 10, 2000).
Summary of the Application: Item 1 of the notice published December 20, 2000 (65 FR 79803) is amended to read: (1) the attached list will constitute the “Members” of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.2(1)). Item 2) of the notice published December 20, 2000 (65 FR 79803) is deleted due to the fact that the attached list takes into account such deletions.
Notice of revocation of Export Trade Certificate of Review No. 83-00024.
The Secretary of Commerce issued an export trade certificate of review to U.S. Export & Trading Company. Because this certificate holder has failed to file an annual report as required by law, the Secretary is revoking the certificate. This notice summarizes the notification letter sent to U.S. Export & Trading Company.
Vanessa Bachman, Acting Director, Office of Export Trading Company Affairs, International Trade Administration, 202/482-5131 (this is not a toll-free number) or at E-mail at oetca@ita.doc.gov.
Title III of the Export Trading Company Act of 1982 (“the Act”) (Pub. L. No. 97-290, 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 (2000). Pursuant to this authority, a certificate of review was issued on December 23, 1983 to U.S. Export & Trading Company.
A certificate holder is required by law to submit to the Department of Commerce annual reports that update financial and other information relating to business activities covered by its certificate (Section 308 of the Act, 15 U.S.C. 4018, section 235.14(a) of the Regulations, 15 CFR 325.14(a)). The annual report is due within 45 days after the anniversary date of the issuance of the certificate of review (Sections 325.14(b) of the Regulations, 15 CFR 325.14(b)). Failure to submit a complete annual report may be the basis for revocation (Sections 325.10(a) and 325.14(c) of the Regulations, 15 CFR 325.10(a)(3) and 325.14(c)).
On December 13, 1999, the Department of Commerce sent to U.S. Export & Trading Company a letter containing annual report questions with a reminder that its annual report was due on February 6, 2000. Additional reminders were sent on May 2, 2000 and on July 19, 2000. The Department has received no written response from U.S. Export & Trading Company to any of these letters.
On November 17, 2000, and in accordance with section 325.10(c)(2) of the Regulations (15 CFR 325.10(c)(2)), the Department of Commerce sent a letter by certified mail to notify U.S. Export & Trading Company that the Department was formally initiating the process to revoke its certificate for failure to file an annual report. In
The Department has determined to revoke the certificate issued to U.S. Export & Trading Company for its failure to file an annual report. The Department has sent a letter, dated February 21, 2001, to notify U.S. Export & Trading Company of its determination. The revocation is effective thirty (30) days from the date of publication of this notice. Any person aggrieved by this decision may appeal to an appropriate U.S. district court within 30 days from the date on which this notice is published in the
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Madeleine Clayton, Departmental Forms Clearance Officer, (202) 482-3129, Department of Commerce, Room 6086, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at MClayton@doc.gov).
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Gulf of Mexico Fishery Management Council will convene a public meeting of the Law Enforcement Advisory Panel (LEAP).
This meeting will be held on March 14, 2001, from 1 p.m. to 5 p.m.
This meeting will be held at the Holiday Inn Fort Brown, 1900 East Elizabeth, Brownsville, TX 78520; telephone: 956-546-2201.
Richard Leard, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: 813-228-2815.
The LEAP will convene to hear options papers for Amendment 10 to the Shrimp Fishery Management Plan (FMP) and Amendment 18 to the Reef Fish FMP. The Options Paper for Amendment 10 to the Shrimp FMP contains alternatives to address additional bycatch reduction from shrimp trawls used in the Exclusive Economic Zone (EEZ) off Florida, south and east of Cape San Blas (85°30' W. Longitude). Some of the alternatives being considered include additional or extended closed areas and/or seasons and requiring bycatch reduction devices. The Options Paper for Amendment 18 to the Reef Fish FMP contains options for a comprehensive management strategy for groupers and includes alternatives for effort management, gear allowances, size limits, bag limits, and adjustments to fishing seasons and areas, among others. The LEAP will also review a Draft Amendment for a Charter Vessel/Headboat Permit Moratorium that includes various alternatives to cap effort in the charter industry of the Gulf. The LEAP will also receive status reports of various FMPs, Amendments, and Regulatory Actions; state and federal enforcement reports; and consider adoption of a Cooperative Law Enforcement Operations Plan for 2001 that was developed by the LEAP and the Gulf States Marine Fisheries Commission’s Law Enforcement Committee.
The LEAP consists of principal law enforcement officers in each of the Gulf states as well as NMFS, the U.S. Coast Guard, and NOAA General Counsel. A copy of the agenda and related materials can be obtained by calling the Council office at 813-228-2815.
Although other non-emergency issues not on the agendas may come before the LEAP for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meetings. Actions of the LEAP will be restricted to those issues specifically identified in the agenda 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
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Anne Alford at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Habitat Committee and Habitat Advisory Panel will hold a public meeting.
The meeting will be held on Monday, March 12, 2001, from 10 a.m. until 5 p.m.
This meeting will be held at the Renaissance Philadelphia Hotel Airport, 500 Stevens Drive, Philadelphia, PA; telephone: 610-521-5900.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone: 302-674-2331, ext. 19.
The purpose of this meeting is to initiate development of Council policy and guidelines for species fishery management plan (FMP) committees to draw upon to investigate the use of marine protected areas (MPAs) as a management tool, and to develop a framework that requires mandatory coordination with the Council for any MPAs in the mid-Atlantic exclusive economic zone (EEZ) waters. It will also address essential fish habitat (EFH) requirements regarding the Council’s current FMPs and proposed amendments thereto.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council’s intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Research Steering Committee and Red Crab Committee in March, 2001 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from these groups will be brought to the full Council for formal consideration and action, if appropriate.
The meetings will be held between Friday, March 9, 2001, and Tuesday, March 13, 2001. See
The meetings will be held in Peabody, MA and New London, CT. See
Paul J. Howard, Executive Director, New England Fishery Management Council; (978) 465-0492.
Location: Holiday Inn, One Newbury Street, Route 1, Peabody, MA 01960; telephone: (978) 535-4600
The agenda will include discussion and development of a coordination mechanism between the Research Steering Committee and the industry-based survey (and related projects), cod tagging and bycatch/discard/conservation engineering programs currently under consideration. The committee also will discuss mechanisms for future funding of regional research efforts.
Location: Radisson Hotel, 35 Governor Winthrop Boulevard, New London, CT 06320; telephone: (860) 443-7000.
The committee will hear a report from the Red Crab Plan Development Team. The committee will discuss the goals and objectives for the Red Crab Fishery Management Plan (FMP) and will begin to identify the types of management measures and alternatives to be considered in the development of the FMP.
Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subject 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 Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Expiration of scientific research permits 948 and 956.
Notice is hereby given of the following actions regarding permits for takes of endangered and threatened species for the purposes of scientific research and/or enhancement: The purpose of this notice is to announce that scientific research permits issued to the Northern Wasco County People’s Utility District at The Dalles, OR (NWCPUD) and the U.S. Geological Survey at Cook, WA (USGS) have expired and that pending modifications to those permits will not be issued.
Comments may be sent via fax to the number indicated for the application or modification request. Comments will not be accepted if submitted via e-mail or the Internet. The applications and related documents are available for review in the indicated office, by appointment:
For permits 948 and 956: Protected Resources Division, F/NWR3, 525 NE Oregon Street, Suite 500, Portland, OR 97232-4169 (ph: 503-230-5400, fax: 503-230-5435).
Documents may also be reviewed by appointment in the Office of Protected Resources, F/PR3, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3226 (phone:301-713-1401).
Robert Koch, Portland, OR (ph: 503-230-5424, fax: 503-230-5435, e-mail: Robert.Koch@noaa.gov).
Issuance of permits and permit modifications, as required by the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) (ESA), is based on a finding that such permits/modifications: (1) are applied for in good faith; (2) would not operate to the disadvantage of the listed species which are the subject of the permits; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits and modifications are issued in accordance with and are subject to the ESA and NMFS regulations governing listed fish and wildlife permits (50 CFR parts 222-226).
Those individuals requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (see
The following species and evolutionary significant units (ESUs) are covered in this notice:
Sockeye salmon (
Chinook salmon (
Steelhead (
Notice was published on March 6, 1998 (63 FR 11220) that NWCPUD applied for modification 2 to scientific research permit 948 for, in part, an annual take of juvenile SnR steelhead. Notice was published on February 11, 1999 (64 FR 6880) that NWCPUD applied for modification 3 to scientific research permit 948 for an annual take of juvenile, naturally produced and artificially propagated, UCR spring chinook salmon. Permit 948 authorized NWCPUD annual takes of juvenile SnR sockeye salmon; juvenile, naturally produced and artificially propagated, SnR spring/summer chinook salmon; juvenile SnR fall chinook salmon; and juvenile, naturally produced and artificially propagated, UCR steelhead associated with research designed to assess juvenile anadromous fish condition after passage through the screened turbine intake channel at The Dalles Dam, located on the lower Columbia River in the Pacific Northwest. These requested permit actions will not be issued because NWCPUD’s permit expired (on September 30, 1999) before NMFS could issue them. NWCPUD has submitted an application for a permit (1229) to replace permit 948 (see 65 FR 2381, January 14, 2000).
Notice was published on March 6, 1998 (63 FR 11222) that USGS applied for modification 3 to scientific research permit 956 for an annual take of juvenile SnR steelhead. Permit 956 authorized USGS annual takes of juvenile, naturally-produced and artificially-propagated, SnR spring/summer chinook salmon and juvenile SnR fall chinook salmon associated with a study designed to obtain data on the distribution, abundance, movement, and habitat preferences of the anadromous fish that migrate through Lower Granite Reservoir; to evaluate the operation of a surface bypass collector in the forebay of Lower Granite Dam; and to verify species of hydroacoustic surveys. The requested permit modification will not be issued because USGS’s permit expired (on September 30, 1999) before NMFS could issue it. USGS has submitted an application for a permit (1240) to replace permit 956 (see 65 FR 11288, March 2, 2000).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that John Muir Institute of the Environment, University of California, Davis, One Shields Avenue, Davis, California 95616 (Principal Investigator: Ms. Lizabeth Bowen) has been issued a permit to import/export California sea lion (
The permit 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); and
Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd.,
Ruth Johnson or Tammy Adams 301/713-2289.
On October 11, 2000, notice was published in the
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), 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 the revision of a continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before April 30, 2001.
Direct all written comments to Susan K. Brown, Records Officer, Data Administration Division, Office of Data Management, United States Patent and Trademark Office, Crystal Park 3, Suite 310, Washington, DC 20231; by telephone at (703) 308-7400; or by electronic mail at Susan.Brown@uspto.gov.
Requests for additional information should be directed to Robert J. Spar, Director, Office of Patent Legal Administration, United States Patent and Trademark Office, Washington, DC 20231; by telephone at (703) 308-5107; or by electronic mail at Bob.Spar@uspto.gov.
Patent applicants or owners of patents under reexamination may appeal the decision of a patent examiner by filing a notice of appeal to the Board of Patent Appeals and Interferences (the Board). Additionally, the appellant may also make a written request for an oral hearing before the Board if the appellant believes such a hearing is necessary for the proper presentation of the appeal. Effective December 1, 1997, 37 CFR 1.194(b) was amended to require this written request for an oral hearing before the Board to be filed “in a separate paper” from the appeal itself.
In order to implement the Patent Business Goals, and in accordance with the eighteen-month publication provisions of the American Inventors Protection Act of 1999, the USPTO has amended 37 CFR 1.103 to permit applicants to request deferred examination for up to three years from the earliest filing date for which a benefit is claimed under title 35 of the United States Code.
The USPTO proposes to add these two forms, PTO/SB/32 and PTO/SB/37, to the information collection previously approved under OMB control number 0651-0031, Patent Processing (Updating).
By mail, facsimile, or hand delivery when the applicant wishes to request an oral hearing under 37 CFR 1.194(b) or a deferral of examination under 37 CFR 1.103(d).
When filing a request for deferral of examination, the applicant must pay the processing fee of $130 indicated by 37 CFR 1.17(i) and the publication fee of $300 indicated by 37 CFR 1.18(d). The combined filing cost of $430 for each request results in a total annual nonhour cost burden of $21,500 associated with this form.
Using the professional hourly rate of $175 per hour for associate attorneys in private firms, the USPTO estimates $42,840 per year for salary costs associated with respondents using Form PTO/SB/32, and $1,750 per year for salary costs associated with respondents using Form PTO/SB/37.
Comments are invited on: (a) Whether the proposed 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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, e.g., the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), has submitted the following public information collection requests (ICRs) to the Office of Management and Budget for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13. (44 U.S.C. chapter 35)). Copies of these individual ICRs, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Office of Evaluation, Chuck Helfer, (202) 606-5000, extension 248. Individuals who use a telecommunications device for the deaf (TTY/TDD) may call (202) 606-5256 between the hours of 9:00 a.m. and 4:30 p.m. Eastern time, Monday through Friday.
Comments should be sent to the Office of Information and Regulatory Affairs, Attn: Ms. Brenda Aguilar, OMB Desk Officer for the Corporation for National and Community Service, Office of Management and Budget, Room 10235, Washington, D.C. 20503, (202) 395-7326, within 30 days 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 Corporation, 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;
• Propose ways to enhance the quality, utility and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information to 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 submissions of responses.
The study will allow the Corporation to assess the growth and institutionalization of service-learning in Learn and Serve grantee institutions, to assess the degree to which service-learning activities have been sustained after the end of Learn and Serve funding, and to assess the role of Learn and Serve America grants in promoting the growth and institutionalization of service-learning in grantee institutions. Findings from the study will help the Corporation to develop more effective strategies for supporting institutionalization of service-learning through its planning, grantmaking and technical assistance activities.
There have been two changes since the publication of the 60 day notice (
Office of Fossil Energy, DOE.
Notice of application.
Idaho Power Company (IPC) has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before March 29, 2001.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Im/Ex (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-287-5736).
Steven Mintz (Program Office) 202-586-9506 or Michael Skinker (Program Attorney) 202-586-6667.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On February 12, 2001, the Office of Fossil Energy (FE) of the Department of Energy (DOE) received an application from IPC to transmit electric energy from the United States to MexiCo IPC is a wholly owned subsidiary of IDACORP, Inc IPC is incorporated under the laws of the State of Idaho and is authorized to operate in Idaho, Oregon, and Nevada. The electric energy IPC proposes to export to Mexico would be purchased from electric utilities, Federal power marketing agencies, cogeneration facilities, and exempt wholesale generators within the United States. In addition, IPC proposes to export electric energy from power plants that it owns only if that energy is surplus to the needs of its native-load customers.
IPC proposes to arrange for the delivery of electric energy to Mexico over the international transmission facilities owned by San Diego Gas & Electric Company, El Paso Electric Company, Central Power and Light Company, and Comision Federal de Electricidad, the national electric utility of Mexico. The construction of each of the international transmission facilities to be utilized by IPC, as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Any person desiring to become a party to this proceeding or to be heard by filing comments or protests to this application should file a petition to intervene, comment or protest at the address provided above in accordance with §§ 385.211 or 385.214 of the FERC's Rules of Practice and Procedures (18 CFR 385.211, 385.214). Fifteen copies of each petition and protest should be filed with the DOE on or before the date listed above.
Comments on the IPC application to export electric energy to Mexico should be clearly marked with Docket EA-233. Additional copies are to be filed directly with James Thompson, Idaho Power Company, 1221 West Idaho Street, Boise, ID 83702 and Steven J. Ross, Steptoe & Johnson LLP, 1330 Connecticut Avenue NW., Washington, DC 20036.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969 (NEPA), and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy Home Page at
Office of Fossil Energy, DOE.
Notice of Application.
San Diego Gas & Electric Company (SDG&E) has applied to amend Presidential Permit PP-68 authorizing the construction, operation, maintenance, and connection of a 230-kV electric transmission line at the U.S. international border with Mexico.
Comments, protests, or requests to intervene must be submitted on or before March 29, 2001.
Comments, protests, or requests to intervene should be addressed as follows: Office of Coal & Power Import and Export (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350.
Ellen Russell (Program Office) 202-586-9624 or Michael T. Skinker (Program Attorney) 202-586-6667.
The construction, operation, maintenance, and connection of facilities at the international border of the United States for the transmission of electric energy between the United States and a foreign country is prohibited in the absence of
On January 12, 1981, the Department of Energy (DOE), in Presidential Permit PP-68, authorized San Diego Gas & Electric Company (SDG&E) to construct, operate, maintain, and connect a 230,000-volt (230-kV) electric transmission line from its Miguel Substation, located approximately 10 miles north of the United States border with Mexico, to Tijuana, Mexico, where it interconnects with similar facilities at the Comision Federal de Electricidad's Tijuana Substation. SDG&E is a regulated public utility and a wholly-owned subsidiary of Sempra Energy. On November 8, 1982, in Docket PP-68-1, DOE amended Presidential permit PP-68 to permit SDG&E to add a second set of conductors to the towers authorized in the original Presidential permit.
On February 8, 2001, SDG&E filed an application with the Office of Fossil Energy (FE) of DOE to again amend the existing Presidential permit to authorize it to make certain changes to the existing transmission line to provide for the connection of the 510-megawatt (MW) Otay Mesa merchant powerplant being developed 1.5 miles north of the border. To interconnect the new powerplant to the existing PP-68 international transmission facilities, SDG&E proposes to construct a 5-acre switchyard within the fenced boundary of the powerplant and to construct approximately 0.1 miles of new 230kV transmission line to interconnect with the 230-kV Miguel-Tijuana transmission line.
SDG&E also proposes to reconductor that portion of the existing transmission line from the new 5-acre switchyard, north to the Miguel Substation, a distance of approximately 8.5 miles. SDG&E proposes to bundle each circuit by adding a second set of conductors to each phase (i.e., 12 total conductors versus 6 that currently exist). The 1.5 mile portion of SDG&E's Miguel-Tijuana international transmission line south of the Otay Mesa powerplant will remain unchanged.
Since the restructuring of the electric power industry began, resulting in the introduction of different types of competitive entities into the marketplace, DOE has consistently expressed its policy that cross-border trade in electric energy should be subject to the same principles of comparable open access and non-discrimination that apply to transmission in interstate commerce. DOE has stated that policy in export authorizations granted to entities requesting authority to export over international transmission facilities. Specifically, DOE expects transmitting utilities owning border facilities constructed pursuant to Presidential permits to provide access across the border in accordance with the principles of comparable open access and non-discrimination contained in the FPA and articulated in Federal Energy Regulatory Commission Order No. 888, as amended (Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities). In furtherance of this policy, DOE intends to condition any Presidential permit issued in this proceeding on compliance with these open access principles.
Any person desiring to become a party to this proceeding or to be heard by filing comments or protests to this application should file a petition to intervene, comment or protest at the address provided above in accordance with §§ 385.211 or 385.214 of the FERC's Rules of Practice and Procedures (18 CFR 385.211, 385.214). Fifteen copies of each petition and protest should be filed with the DOE on or before the date listed above.
Additional copies of such petitions to intervene or protests also should be filed directly with: James F. Walsh, Sempra Energy, 101 Ash Street, HQ11B, San Diego, CA 92124 and Pat Fleming, Sempra Energy, 101 Ash Street, HQ14A, San Diego, CA 92124.
Before a Presidential permit may be issued or amended, the DOE must determine that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system. In addition, DOE must consider the environmental impacts of the proposed actions pursuant to the National Environmental Policy Act of 1969. DOE also must obtain the concurrence of the Secretary of State and the Secretary of Defense before taking final action on a Presidential permit application.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above. In addition, the application may be reviewed or downloaded from the Fossil Energy Home Page at:
Department of Energy (DOE).
Notice of public interest.
The United States Department of Energy plans to undertake a study to determine the feasibility of and issues associated with the deployment of small modular nuclear reactors for preparation of a report to Congress by May 2001. This report is being prepared as directed by the Senate Committee on Appropriations (S.R. Report no. 106-395, at 107(2000)) on the Energy and Water Development Appropriations Act, 2001 (Public Law 106-377). The Committee report specifically states the following:
The committee is aware of recent improvements in reactor design that make feasible small modular reactors with attractive characteristics for remote communities that otherwise must rely on shipments of relatively expensive and sometimes environmentally undesirable fuels for their electric power. To be acceptable, such a reactor would have to be inherently safe, be relatively cost effective, have intrinsic design features which would deter sabotage or efforts to divert nuclear materials, have infrequent refuelings, and be largely factory constructed and deliverable to remote sites. The Committee recommendation provides $1,000,000 for the Department to undertake a study to determine the feasibility of and issues associated with the deployment of such small reactors and provide a report to Congress by May 2001.
This notice hereby announces the Department's interest in receiving information from the nuclear technology community on small modular power unit concepts that should be considered in the study. Such concepts must generally meet the criteria previously mentioned and may be entirely, or almost entirely, factory fabricated for transport to remote communities such as islands and should be no larger than 50 megawatts-electric (MWe).
Concept information must be submitted by 4:30 p.m., edt, March 15, 2001, to be accepted for review and to permit timely consideration for inclusion within the report.
All concept information should be forwarded to Argonne National Laboratory by U.S. Postal Service Express Mail or any commercial mail delivery service, or hand carried by the applicant to: Roald Wiegland, “Small Modular Reactor Study,” Argonne National Laboratory, 9700 South Cass Avenue, Building 208, Argonne, Illinois 60439-4842. Individuals who wish to submit concept information electronically should forward their information to
Kenneth Chuck Wade, Nuclear Industry Analysis, NE-80, Office of Nuclear Energy, Science and Technology, U.S. Department of Energy, Germantown, Maryland 20874-1290, (301) 903-1031.
The Department of Energy is interested in receiving information on small modular nuclear power unit concepts that should be considered in a study to determine the feasibility of this technology. Concepts that will be considered in this study must generally meet the following criteria: inherent safety, relative cost effectiveness, intrinsic design features which would deter sabotage or efforts to divert nuclear materials; and infrequent refueling. These design concepts may be entirely, or almost entirely, factory fabricated for transport to remote communities such as islands and should be no larger than 50 megawatts-electric (MWe). All information in response to this request should include detailed plans in the following areas:
Concept participants must identify any unique regulatory issues associated with siting and licensing small modular power units. The information on issues identified should include suggested modifications to existing Nuclear Regulatory Commission requirements, potential licensing barriers to be resolved, basis for safety analysis requirements, the need for reactor containment, and methods for implementing risk-based analysis techniques. These regulatory initiatives should be limited to reactor concepts that are useful in remote areas.
Technical information should include an overall description of the concept and detailed information about major elements of the concept, including dimensions and capacity. Information on reactor fuel, fuel characteristics, fuel fabrication experience and irradiation history for the particular fuel type is desirable. Any novel features of the reactor concept, either for the reactor core or other components of the system, should be clearly identified, especially those related to safety and non-proliferation. Any relationship or similarity to other existing or planned reactors should also be stated. Features of the concept that would facilitate both factory fabrication and the ability to transport units to more remote areas should also be identified.
The elements of cost and performance parameters that are desired for this study are: capital; operation and maintenance; fuel; decommissioning costs; thermal power; thermal efficiency; projected capacity factor; construction time; and financial parameters. Since design concept may still be in a preliminary stage, the Department would like for concept designers to submit any available information regarding the projected cost and performance values.
Each proposed design concept participant should address the issues mentioned above in as much detail as possible to enable fair and accurate statements regarding its prospects for future deployment. The Department recognizes that some of the information requested may not be readily available and will accept whatever information is available. Please note that proprietary information received in response to this notice will be kept confidential.
The report resulting from this study will not make any recommendation regarding a particular concept technology, but only assess the practicality of deploying small modular nuclear power units in remote locations within the U.S.
Energy Information Administration (EIA), Department of Energy (DOE).
Agency information collection activities: Submission for OMB review; comment request.
The EIA has submitted the energy information collections listed at the end of this notice to the Office of Management and Budget (OMB) for review and a three-year extension under section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Public Law 104-13) (44 U.S.C. 3501
Comments must be filed on or before March 29, 2001. If you anticipate that you will be submitting comments but find it difficult to do so within that period, you should contact the OMB Desk Officer for DOE listed below as soon as possible.
Send comments to the OMB Desk Officer for DOE, Office of Information and Regulatory Affairs, Office of Management and Budget, 726 Jackson Place NW., Washington, DC 20503. The OMB DOE Desk Officer may be telephoned at (202) 395-7318. (A copy of your comments should also be provided to EIA's Statistics and Methods Group at the address below.)
Requests for additional information should be directed to Grace Sutherland, Statistics and Methods Group (EI-70), Forrestal Building, U.S. Department of Energy, Washington, DC 20585-0670. Ms. Sutherland may be contacted by telephone at (202) 287-1712, FAX at (202) 287-1705, or e-mail at
This section contains the following information about the energy information collection submitted to OMB for review: (1) The collection numbers and title; (2) the sponsor (
1. Forms EIA-886, “Annual Survey of Alternative Fueled Vehicle Suppliers and Users.”
2. Energy Information Administration.
3. OMB Number 1905-0191.
4. Three-year extension with revisions of a currently approved collection.
5. Mandatory.
6. EIA's “Annual Survey of Alternative Fueled Vehicle Suppliers
7. Federal, State and Local governments; fuel providers; Original Equipment Manufacturers; and Conversion facilities.
8. 10,323 hours ( 2,491 respondents × 1 response(s) per year × 4.1 hours per response).
Section 3507(h)(1) of the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13)(44 U.S.C. 3501
Take notice that on February 13, 2001, Bear Creek Storage Company (Bear Creek), P.O. Box 2563, Birmingham, Alabama 35202, filed a request with the Commission in Docket No. CP01-88-000 pursuant to section 7(c) of the Natural Gas Act (NGA) for authorization to expand the boundary of its Bear Creek Storage Field in Bienville Parish, Louisiana, all as more fully set forth in the application which is open to the public for inspection. This application may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Bear Creek proposes to acquire an additional 1,146 acres of land adjacent to the Bear Creek Storage Field at an estimated price of $1,400,000. Bear Creek states that its acquisition of the additional acreage will not increase the storage capacity or the deliverability of the Bear Creek Storage Field, but would enable Bear Creek to acquire storage and mineral rights within the expanded boundary to protect the integrity of its certificated facility and the interstate natural gas stored therein. Bear Creek also states that it would purchase the additional acreage with funds on hand or with cash from operations.
Any person desiring to be heard or to make any protest with reference to said application should on or before March 14, 2001, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene or a protest in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). All protests filed with the Commission will be considered by it in determining the appropriate action to be taken but will not serve to make the protestants parties to the proceeding. Any person wishing to become a party to a proceeding or to participate as a party in any hearing therein must file a motion to intervene in accordance with the Commission's Rules. Any questions regarding the application should be directed to John C. Griffin, Assistant Secretary, Bear Creek Storage Company, P.O. Box 2563, Birmingham, Alabama 35202, telephone (205) 325-7133.
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
A person obtaining intervenor status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by everyone of the intervenors. An intervenor can file for rehearing of any Commission order and can petition for court review of any such order. However, an intervenor must submit copies of comments or any filing it makes with the Commission to every other intervenor in the proceeding, as well as 14 copies with the Commission.
A person does not have to intervene, however, in order to have comments considered. A person, instead, may submit two copies of comments to the Secretary of the Commission. Commenters will be placed on the Commission's environmental mailing list, will receive copies of environmental documents and will be able to participate in meetings associated with the Commission's environmental review process. Commenters will not be required to serve copies of filed documents on all other parties. However, commenters will not receive copies of all documents filed by other parties or issued by the Commission and will not have the right to seek rehearing or appeal the Commission's final order at a federal court.
The Commission will consider all comments and concerns equally, whether filed by commenters or those requesting intervenor status.
Take further notice that, pursuant to the authority contained in and subject to the jurisdiction conferred upon the Federal Energy Regulatory Commission by Sections 7 and 15 of the NGA and the Commission's Rules of Practice and Procedure, a hearing will be held without further notice before the Commission or its designee on this application if no motion to intervene is filed within the time required herein, if the Commission on its own review of the matter finds that the proposal is required by the public convenience and necessity. If a motion for leave to intervene is timely filed, or if the Commission on its own motion believes that a formal hearing is required, further notice of such hearing will be duly given.
Under the procedure herein provided for, unless otherwise advised, it will be unnecessary for Bear Creek to appear or be represented at the hearing.
Environmental Protection Agency (EPA).
Notice.
The Tribal Pesticide Program Council (TPPC) will hold a 2-day meeting, beginning on March 8, 2001, and ending on March 9, 2001. This notice announces the location and times for the meeting and sets forth the tentative agenda topics.
The meeting will be held on March 8, 2001, from 9 a.m. to 5 p.m. and March 9, 2001, from 9 a.m. to 4:45 p.m.
The meeting will be held at the Embassy Suites Hotel - Crystal City (near the airport), 1300 Jefferson Davis Highway, Arlington, VA.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Georgia A. McDuffie, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 605-0195; fax number: (703) 308-1850; e-mail address: mcduffie.georgia@epa.gov or
Lillian Wilmore, TPPC Facilitator, P.O. Box 470829; Brookline Village, MA. 02447-0829; telephone number: (617) 232-5742 fax: (617) 277-1656; e-mail address: naecology@aol.com.
This action is directed to the public in general. This action may, however, be of interest to Tribes with pesticide programs or pesticide interests. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-00705 in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
This unit outlines the tentative agenda for the March 8-9 meeting.
Welcome and greetings
Invocation
General Session--Open to all participants
Introduction
Report from the Chairman--State of the Council
Reports from Working Groups
Reports from TPPC representatives to other meetings and groups
Presentation on the Tribal Science Council
Panel and Discussion on Tribal Authority and jurisdictional issues under FIFRA section 18
Presentation on the West Nile Virus
Presentation by Tribal Operations Committee and American Indian Environment Office
Presentation on pesticides and health effects
Tribal Caucus (Closed—Council members only)
Welcome and Greetings
Invocation
General session--Open to all participants
Office of Enforcement and Compliance (OECA) presentation and discussion Federal Inspector credentials
Presentation on antimicrobials
Presentation on persistent bioaccumulative toxics
Fish consumption advisories and issues
Explanation of budget process and funding opportunities
Pesticide disposal presentation
Endangered species and ground water
Report and review on pesticide contamination of NAGPRA items
Presentation and discussion on Tribal Pesticide Program
Development and community education
Funding opportunities
Tribal coordinator
Enforcement
Circuit Rider Programs—Update
Report and review on pesticide contamination of NAGPRA items
Environmental protection.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reducation Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before March 29, 2001. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to jboley@fcc.gov.
For additional information or copies of the information collection(s), contact Judy Boley at 202-418-0214 or via the Internet at jboley@fcc.gov.
The information will be used to ensure that tribal communities within federally-recognized tribal areas have access to wireless telecommunications services equivalent to that of the nation.
Federal Communications Commission.
Notice of meeting correction.
The Federal Communications Commission published a document in the
Robert Kimball at 202-418-2339 or TTY 202-418-2989.
In the
Tuesday, February 27, 2001 at 2 p.m. to 4 p.m.
Federal Communications Commission.
Notice.
This document announces a public forum to be held by the International Bureau on March 14, 2001 regarding the entry of U.S. companies into telecommunications markets in foreign countries. The forum is open to the public and will be at the Federal Communications Commission Headquarters, 445 12th Street, SW., Washington, DC, in the Commission Meeting Room (Room TW-C305) from 10:30 am to 12 noon.
The information obtained during the forum will be used by the Bureau to supplement the 2000 version of the “International Markets Report.” The International Markets Report is prepared annually by the Bureau pursuant to a request from Senator Hollings and the staff of the U.S. Senate Committee on Commerce, Science and Transportation dating from 1997. The report details changes that have taken place over the past year for wireline telecommunications and satellite services. The Commission is making this announcement to provide an opportunity for the public to identify issues that should be addressed in an upcoming proceeding.
The public forum will be held on March 14, 2001, from 10:30 a.m. to 12 noon. Outlines of oral presentations and written presentations should be submitted no later than March 7, 2001.
Federal Communications Commission, 445 12th Street, SW., Room 6C-848, Washington, DC 20554.
David Krech, International Bureau, (202) 418-7443.
Released February 16, 2001.
1. On March 14, 2001, from 10:30 am to 12 noon, the International Bureau will hold a public forum to provide an opportunity for the public to discuss issues relating to entry by U.S. companies into telecommunications markets in foreign countries. The forum is open to the public and will be at the Federal Communications Commission Headquarters, 445 12th Street, SW., Washington, DC, in the Commission Meeting Room (Room TW-C305).
2. The Bureau intends that this public forum will provide an opportunity for the public to share experiences regarding entry by U.S. companies into foreign telecommunications markets. The information gathered at this public forum will be used by the Bureau to supplement the 2000 version of the “International Markets Report.” The International Markets Report is prepared annually by the Bureau pursuant to a request from Senator Hollings and the staff of the U.S. Senate Committee on Commerce, Science and Transportation dating from 1997. The report details changes that have taken place over the past year for wireline telecommunications and satellite services. (The 1997-1998 and 1999 versions of the report are available on the FCC web-site at
3. The purpose of the forum is not to discuss the merits of any pending Commission proceedings and is not otherwise part of a pending Commission proceeding. As such, the forum is not subject to the Commission's
4. Any party wishing to make a formal presentation (no longer than 10 minutes) at the public forum should send an outline of the presentation to David Krech. Parties also are welcome to make written submissions in lieu of speaking at the forum. Outlines of oral presentations and written submissions should be sent to David Krech no later than March 7, 2001, either via fascimile to the Bureau's Telecommunications Division at (202) 418-2824, or by e-mail to
Petitions for Reconsideration have been filed in the Commission's rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR Section 1.429(e). The full text of these documents are available for viewing and copying in Room CY-A257, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, ITS, Inc (202) 857-3800. Oppositions to these petitions must be filed by March 14, 2001. See Section 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1)). Replies to an opposition must be filed within 10 days after the time for filing oppositions has expired.
Wireless Communications Association International, Inc Petition for Rulemaking to Amend Section 1.4000 of the Commission's Rules to Preempt Restrictions on Subscriber Premises Reception or Transmission Antennas Designed To Provide Fixed Wireless Services.
Cellular Telecommunications Industry Association Petition for Rulemaking and Amendment of the Commission's Rules to Preempt State and Local Imposition of Discriminatory And/Or Excessive Taxes and Assessments.
Implementation of the Local Competition Provisions in the Telecommunications Act of 1996 (CC Docket No. 96-98).
Review of Sections 68.104, and 68.213 of the Commission's Rules Concerning Connection of Simple Inside Wiring to the Telephone Network (CC Docket No. 88-57).
Federal Communications Commission.
Notice.
This document identified those proposals filed during the limited low power television/television translator/Class A television auction filing window that are not mutually exclusive and announces a March 15, 2001, deadline for filing an FCC Form 346.
FCC Form 346 must be filed by each party identified in the Public Notice by March 15, 2001.
To submit by mail, applicants must send an original and two copies of the FCC Form 346 application to: Federal Communications Commission, Mass Media Services, P.O. Box 358185, Pittsburgh, Pennsylvania 15251-5190. To hand carry, in person or by courier, applicants must deliver an original and two copies of the FCC Form 346 application to: Mellon Bank, Three Mellon Bank Center, 525 William Penn Way, 27th Floor, Room 153-2713, Pittsburgh, Pennsylvania. Applicants should send a courtesy copy of each FCC Form 346 application to Hossein Hashemzadeh, Video Services Division, Mass Media Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Applicants may also file their FCC Form 346 application electronically. Instructions for use of the electronic filing system are available in the CDBS User's Guide, which can be accessed from the electronic filing web site at:
Shaun Maher, Video Services Division, Mass Media Bureau at (202) 418-1600.
This is a summary of a Public Notice released February 13, 2001. It does not include the attachment. The complete text of the Public Notice, including attachment, is available for public inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC. It may also be purchased from the Commission's copy contractor, International Transcription Services, Inc (ITS, Inc) 1231 20th Street, NW, Washington, DC 20035, (202) 857-3800. It is also available on the Commission's web site at
In this Public Notice, the Mass Media Bureau identifies those proposals filed during the limited low power television, television translator, and Class A television auction filing window that are not mutually exclusive. Parties must now file FCC Form 346 by March 15, 2001, in order to implement their proposals.
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 23, 2001.
Board of Governors of the Federal Reserve System, February 21, 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 13, 2001.
Board of Governors of the Federal Reserve System, February 21, 2001.
The Consumer Advisory Council will meet on Thursday, March 22, 2001. The meeting, which will be open to public observation, will take place at the Federal Reserve Board's offices in Washington, DC, in Dining Room E of the Martin Building (Terrace level). The meeting will begin at 8:45 a.m. and is expected to conclude at 1:00 p.m. The Martin Building is located on C Street, Northwest, between 20th and 21st Streets.
The Council's function is to advise the Board on the exercise of the Board's responsibilities under the Consumer Credit Protection Act and on other matters on which the Board seeks its advice. Time permitting, the Council will discuss the following topics:
Other matters previously considered by the Council or initiated by Council members also may be discussed.
Persons wishing to submit views to the Council regarding any of the above topics may do so by sending written statements to Ann Bistay, Secretary of the Consumer Advisory Council, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, Washington, DC 20551. Information about this meeting may be obtained from Ms. Bistay, 202-452-6470.
Board of Governors of the Federal Reserve System.
11 a.m., Monday, March 5, 2001.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, NW., Washington, DC 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
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.
Federal Trade Commission (FTC).
Notice.
The FTC has submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act (PRA) information collection requests contained in its study investigating how generic drug competition has developed in light of certain provisions in the Hatch-Waxman Act (the Act) that govern entry of generic drug products. The FTC proposes to seek information from members of the pharmaceutical industry. To do this, the FTC first seeks OMB clearance and additional public comment regarding this notice, which is the second of two notices required by the PRA for information collection requests.
Comments on the proposed information requests must be submitted on or before March 30, 2001.
Send comments regarding the information collection requests to the following addresses: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, Washington, DC 20503 ATTN: Desk Officer for the Federal Trade Commission; and to Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Avenue, NW., Washington, DC 20580 or by e-mail to genericdrugstudy@ftc.gov. The submissions should include the submitter's name, address, telephone number, and, if available, FAX number and e-mail address. All submissions should be captioned “Generic Drug Study—FTC File No. V000014.”
Requests for additional information should be addressed to Michael S. Wroblewski, Advocacy Coordinator, Policy Planning, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580. Telephone: (202) 326-2155, E-mail: mwroblewski@ftc.gov.
On October 17, 2000, the FTC sought public comments on information collection requests for a proposed study on the development of generic drug competition.
The FTC received 11 comments on the proposed information collection requests.
No generic drug company opposed the Commission's proposed study or questioned its practical use, but Geneva recommended that the Commission narrow the proposed study “in ways that should not compromise the Commission's objectives.” Geneva Comment at 1.
PhRMA and CRE asserted that the Commission had not yet complied with the requirements of the PRA; PhRMA also included suggestions for narrowing the study if undertaken.
The proposed study will enable the Commission to provide a more complete picture of how generic competition has developed under the Hatch-Waxman Act.
In light of the agreements already challenged by the FTC, and given enormous potential costs to consumers from anticompetitive activities, Representative Waxman, one of the co-authors of the Act, requested that the FTC “investigate and produce a study on the use of agreements between and among pharmaceutical companies and potential generic competitors and any other strategies that may delay generic drug competition throughout the U.S.” In addition, other members of Congress, such as Senators McCain and Schumer, proposed legislation in the last Congress to amend various portions of the Act, including the sections that the Commission's study would address.
Over the next five years, brand name drugs with combined U.S. sales approaching $20 billion will go off patent.
The study will be tailored for each individual innovator and generic company so that only agreements relating to certain specified drug products will be subject to the request. The Commission anticipates that approximately 70 percent of both innovator companies and generic companies will be requested to provide information on no more than three drug products.
As discussed below, the Commission incorporates several of the suggestions to narrow the study to reduce burden and to avoid collecting documents that the Commission did not intend to collect. However, other proposals to narrow the proposed study would unnecessarily limit the study's usefulness. Likewise, the Commission has not followed the suggestions to broaden the proposed study to investigate the pricing and distribution practices of pharmaceutical companies, because the magnitude of such an investigation is beyond the proposed study's scope and the resources available to complete it in a timely manner. The discussion of issues raised by the comments is organized into four sections: (1) The practical utility of the proposed study and why it is necessary for the proper performance of the FTC's functions; (2) suggestions to narrow the focus of the study; (3) suggestions to broaden the focus of the study; and (4) other aspects of how the information collection request complies with the PRA.
The Commission has proposed to obtain factual information that would provide a more complete picture of how generic competition is developing in light of certain provisions of the Act that govern entry of generic drug products.
HIAA suggested that “the information the FTC proposes to collect will have significant practical utility in determining whether drug manufacturers are engaging in practices that impede generic competition and the extent to which consumers are harmed by such behavior.” HIAA Comment at 1. RxHealth suggested that “there is ample evidence of use of Hatch-Waxman by branded manufacturers to prevent or delay timely entrance of generic competitors to the market.” RxHealth Comment at 1. Pharmacy Fund strongly supported the proposed study “for it portends an opportunity for the major drug innovators, the generic industry, and consumers to better understand and explain behaviors that are now seen as murky or unfair.” Pharmacy Fund Comment at 1. The NACDS stated that the “document collection is necessary because the practices are anticompetitive.” NACDS Comment at 1. And “GM believes that the FTC can and should examine the practices and agreements that extend monopoly positions and restrict trade to determine whether there has been any violation of the antitrust laws.” GM Comment at 1. As BCBSA noted in its comment, the study has additional utility in light of the top-selling brand name drugs (e.g., Claritin, Pravachol, Prilosec, Prozac, Vasotec, and Zocor) that will go off patent over the next five years. BCBSA Comment at 1.
GM and BCBSA both described the increasing costs of prescription drugs and the importance of generic drug competition to reduce total health care expenses without adversely affecting the level of care provided. For example, GM stated that its total drug expenditure for calendar year 2000 will exceed $1.2 billion and that brand-name drugs account for 90 percent of its total drug spending, although its current utilization rate for generic drugs is 37 percent. Moreover, for each one percent increase in the use of generic drugs, GM can save $3 million per year.
The need for the study has been highlighted by the FTC's investigations into several cases in which manufacturers of pharmaceutical drug products and generic competitors have allegedly entered into anticompetitive agreements to delay generic entry.
The proposed study falls squarely within the FTC's fact-finding authority under section 6 of the Federal Trade Commission Act.
The FDA's current rulemaking proceeding to revise the regulations implementing the Act does not undermine the FTC's proposed study. The proposed study seeks to examine whether the 180-day marketing exclusivity and 30-month stay provisions of the Act have encouraged generic competition or facilitated the use of anticompetitive strategies.
Contrary to PhRMA's suggestion, it is unlikely that the Commission would be able to uncover all potentially anticompetitive agreements without undertaking the proposed study.
The discussion of this section is separated into three subsections below. Subsection (a) discusses the suggestions to revise the language of Request 1 for both innovator and generic companies. Request 1 seeks agreements relating to ANDAs and documents supporting the reasons for entering into these agreements. Subsection (b) discusses suggestions to revise the three remaining questions, which are asked of only innovator companies (Requests 2-4 for innovator companies), and subsection (c) discusses suggestions for changes to the remaining four questions for generic companies (Requests 2-5 for generic companies).
On the other hand, the Commission's experience also has suggested that there may be circumstances where agreements between innovator and generic drug companies are procompetitive. The request, as currently drafted, may uncover such agreements as well. These agreements also are likely to assist the Commission's investigation of how generic competition has developed in light of the Act. Thus, the proposed study may identify procompetitive rationales in support of other agreements that have somewhat different terms, thereby illuminating benign reasons for conduct that some currently see as “murky or unfair.” Pharmacy Fund Comment at 1.
To limit the study as PhRMA suggested would severely limit the Commission's ability to examine the use of agreements in this industry. One question is whether anticompetitive agreements of the type challenged by the FTC are isolated instances or examples of typical practices. By asking for a range of agreements over a six-year period, the Commission believes it will be able to provide a more complete picture of agreements related to generic drug competition and Hatch-Waxman Act provisions. The much more limited request that PhRMA proposed would likely yield, at best, only anecdotal evidence of how certain types of agreements between innovator and generic companies affect generic drug competition.
The Commission agrees, nevertheless, with Geneva's and PhRMA's assertion that the language specifying the agreements to be produced can be narrowed in certain respects without compromising the Commission's objectives. The Commission does not intend the request to cover agreements not likely to further the study's objectives. Accordingly, the language of Request 1 for both innovator and generic companies has been modified to make each request symmetrical and more narrowly focused. The Commission has incorporated PhRMA's suggestion to exclude agreements entered into between innovator companies and generic manufacturers that relate to already marketed generic drug products. In addition, it has incorporated PhRMA's and Geneva's suggestions concerning duplication, to exclude from the request documents that have been submitted previously to the Commission pursuant to the Premerger Notification Rules (16 CFR parts 801-803 (2000)) and section 7A of the Clayton Act (15 U.S.C. 18a) or sections 6, 9, 13, and 20 of the Federal Trade Commission Act (15 U.S.C. 46, 49, 53, and 57b-1), although responding companies will be required to identify any such documents.
PhRMA's suggestion to exclude agreements entered into before the innovator became aware that the generic manufacturer had filed or intended to file an ANDA creates uncertainty as to how companies would respond to the request. Agency experience suggests it would be difficult to provide objective guidance to define when an innovator company “became aware” that a generic company intended to file an ANDA. Accordingly, and in light of the Commission's actions to narrow the request in other significant respects, the Commission declines to implement this suggestion.
In addition, the Commission has not followed Geneva's suggestion to exclude licensing arrangements or co-development agreements between generic manufacturers. The Commission's law enforcement investigations indicate that agreements between generic companies also may affect the degree of generic competition that emerges. To exclude such agreements could eliminate a substantial number of agreements and documents that may help provide a more complete picture of whether agreements among generic companies may have delayed the consumer benefits of full generic competition.
The revised text of Request 1 for both innovator and generic companies (as well as the remaining Requests) is listed following the discussion of all of the comments. The Commission also has made minor changes to the Requests to clarify the language of each Request as applicable.
The Commission has proposed three additional information collection requests of innovator companies. Request 2 requires a company to produce information about patents listed in the Orange Book for specified drug products. Request 3 requires a company to produce information about litigation to which it is a party and that relates to an ANDA containing a paragraph IV certification. Request 4 requires a company to produce sales data regarding each specified drug product.
The information requested in Requests 2 through 4 is necessary to show how and when generic competition has begun for various drug products. Request 2 seeks information about patents listed in the Orange Book for specified drug products. GM, NACDS, and Microbix highlighted the need to examine the practice of listing patents in the Orange Book in ways that could potentially delay generic drug entry. GM Comment at 2, Microbix Comment at 2, NACDS Comment at 1-2. For example, this information is crucial to determine how often and when innovator companies have filed new patents after the drug product has been approved and thereby triggered the 30-month stay provision. Such listings can affect when generic competition starts. Because patent listing dates are not provided in the Orange Book, the request seeks the listing date of patents in the Orange Book for specified drug products.
Request 3 seeks basic information regarding patent lawsuits initiated by the innovator company related to a generic drug product for which the innovator company holds the rights to the corresponding NDA. This information is useful to examine how the 180-day marketing exclusivity period is triggered and how often a court decision is used to resolve patent disputes. The Commission has modified the language of the request to ensure that the companies do not produce non-responsive court documents. Pharmacy Fund has urged the Commission to obtain this information and related court documents because courts usually grant the innovator companies protective orders that shield the public (and the FTC) from knowing the terms by which lawsuits are settled. Pharmacy Fund Comment at 2. Thus, this information often cannot be obtained from the court directly, and would thus have to be collected from the companies themselves.
Finally, Request 4 seeks information regarding a company's annual sales in units and dollars for each specified drug product. This information is necessary to evaluate whether companies' actions may be correlated to the market value of a particular drug product. This information should be readily available at corporate headquarters.
The Commission received several comments from Geneva on three of the four proposed information collection requests of generic companies.
Requests 3 and 5 seek information regarding the commercial marketing of drug products for which the generic company has submitted an ANDA containing a paragraph IV certification. The Commission believes it is unnecessary to limit the data collection further as suggested by Geneva (only to drug products subject to Paragraph IV certifications that actually resulted in
Participation in the regulatory process, however, is often protected from antitrust scrutiny by the Noerr-Pennington doctrine.
One of the recommendations in the staff comment was that the FDA consider requiring notification of whether the citizen petitioner has received, or will receive, consideration for filing the citizen petition and identification of the party furnishing the consideration.
An investigation of pricing practices of pharmaceutical companies is beyond the scope of the study. Likewise, GM's suggestion that the Commission use the proposed study to address the need for consumer education about generic drugs, although worthwhile, is also beyond the scope of the proposed study. The Commission recognizes the importance of pricing practices and their effect on generic drug competition. The scope of the study, however, is limited to the use of agreements and other non-price strategies that are intended to delay generic drug competition. The Commission does not have the resources at this time to adequately investigate pharmaceutical pricing issues.
The Commission study is not designed to target any specific companies. Pharmacy Fund's request that the Commission do so lies outside ths scope of the study.
Finally, the Commission declines to broaden the study to examine direct-to-consumer disparagement of generic drug products. It is beyond the scope of the resources allocated for this study to fully examine the issues surrounding possible direct-to-consumer disparagement.
PhRMA suggested that the burden estimates are neither specific nor objectively supported, and that the Commission has failed to discuss what records respondents might have or how they might keep them. Similarly, Geneva suggests that the burden estimates are unrealistic given its recent experience.
The Commission has entered into an agreement with FDA to receive information regarding the filing of ANDA applications containing paragraph IV certifications. This information will allow the Commission to tailor each information collection request to the specific innovator and generic companies involved with each drug product as to which a paragraph IV certification has been filed, thereby reducing the burden on each of the respondent companies.
CRE stated that the Commission has failed to address whether the CBO study
The FTC proposes to send special orders to approximately 30 innovator drug companies (
1. Submit all agreements between the company and any person
2. Identify all patents that the company has filed in the Orange Book and the date of listing (regardless of whether currently listed in the Orange Book) relating to each Drug Product for which the company has been notified of the filing of an ANDA by another person. Indicate if the patent(s) was (were) filed in the Orange Book after the company received approval of the New Drug Application, as defined under 21 U.S.C. 355(b)
3. Identify and list all lawsuits (including the court, date filed, docket number, parties, current or final status (including dates), current or final docket sheet, any reporter cites, and any appellate history relating to the lawsuit) to which the company is or was a party that involve an ANDA paragraph IV certification related to any Drug Product. Submit the complaint, the answer, any motion(s) for summary judgment, any pretrial memoranda, and any court orders and opinions on any dispositive issue for each such lawsuit.
4. For each Drug Product for which the company has been notified that an ANDA containing a paragraph IV certification had been filed with the FDA, state the company's sales,
5. For each Drug Product for which the company has been notified that an ANDA containing a paragraph IV certification has been filed with the FDA, state whether the company has filed, or contributed to the filing of, in whole or in part (
In addition to routine questions about the name, address, and incorporation date of the responding company and its subsidiaries, and the name, business address, and official capacity of the official supervising the company's response, the FTC will ask generic drug companies (the “company”) to provide answers to the following five questions:
1. Submit all agreements between the company and any person
2. Identify and list all lawsuits (including the court, date filed, docket number, parties, current or final status (including dates), current or final docket sheet, any reporter cites, and any appellate history relating to the lawsuit) to which the company is or was a party involving an ANDA containing a paragraph IV certification. In those cases in which the company is not the sole defendant, describe how litigation expenses are or have been distributed among the defendants.
3. Identify when the company first began commercial marketing of a generic version of any Drug Product approved by the FDA, by each finished dosage form (or, if applicable, indicate that no such commercial marketing has occurred). Identify when the company received tentative and final approvals from the FDA for such Drug Product.
4. Identify each instance in which the company has asserted before a court or before the FDA that a patent was improperly or untimely listed in the Orange Book as defined in 21 U.S.C. 355(b) or (c). For each such assertion, submit the pleading(s) in which such assertion was made and any responsive pleading(s).
5. For each Drug Product for which the company has filed an ANDA containing a paragraph IV certification, state the company's sales
The Commission plans to compile the information received to provide a factual description of how the 180-day marketing exclusivity and 30-month stay provisions of the Hatch-Waxman Act have influenced the development of generic drug competition. For example, the Commission anticipates that the study will analyze how often the 180-day marketing exclusivity provision has been used, how it has been triggered (by commercial marketing or court orders), the frequency with which innovator companies initiate patent litigation, and the frequency with which patent litigation has been settled or litigated to a final court decision. The Commission will use the agreements provided, along with the underlying documents related to the reasons for executing the agreement, to provide a discussion of whether it appears that agreements between innovator and generic companies (or between generic companies) may have operated to delay generic drug competition. In addition, the study will provide factual evidence about innovator companies' patent listings in the Orange Book, and how frequently challenges are made to these listings by generic companies. The study also will provide evidence of innovator company use of citizen petitions relating to generic versions of their brand-name drug products. Finally, the study will examine whether the size of a drug product's sales influence the likelihood of use of strategies to delay generic competition.
The FTC's office of Policy Planning has considered the resources necessary to complete the study in a timely manner and has determined that it can do so with available personnel. Policy Planning will conduct the study and will utilize resources within the Bureaus of Competition and Economics for additional expertise as the need arises.
FTC staff will ask members of the pharmaceutical industry to answer several written questions about specific drug products and to produce certain documents related to the answers provided. We believe that the burden estimates are reasonable given the refinements to the wording of Request 1 for innovator companies and generic drug companies (request seeking agreements and documents explaining the reasons for executing the agreements) to delete four years from the time period and to ensure that the question's language does not cover agreements that the Commission did not intend to be produced. Staff has increased the low-end estimate given the additional question now asked of innovator companies concerning citizen petitions.
The burden estimates were based in the first instance on experience in administering the Antitrust Improvements Act Notification and Report Form (Form) that implements the notification requirements of the Premerger Notification Rules and section 7A of the Clayton Act. Request 1 for both innovator and generic companies is comparable to the information required for question 4(c) of the Form. Based on historical experience, respondents require an average of 39 hours to complete the Form.
Now that the Commission has added a question for innovator companies concerning citizen petitions, which it also estimates will require approximately 15 hours to answer, the lower-end estimate is approximately 100 hours for innovator companies as well as generic companies. The revised, high-end of the estimated range (500 hours) recognizes that some companies (approximately 30 percent of innovator companies and generic companies) will have to produce information for more than three drug products, with fewer than five percent of the companies having to produce information on more than 10 drug products. At the same time, the upper-end estimate, though based on this higher volume, also recognizes inherent economies of scale for the process of organizing, identifying, and retrieving information responsive to these requests.
The estimated burden of answering the questions and producing documents per respondent on a functional basis breaks down as follows:
The cumulative hours burden to produce documents sought and prepare the response will be between 9,000 hours (100 hours × 90 companies) and 45,000 hours (500 hours × 90 companies).
Geneva estimates that the burden will be “in excess of $300,000” to respond to the information collection request as proposed. Geneva Comment at 2. The Commission believes Geneva's estimate is based on a misunderstanding of the scope of the information collection request. First, the Commission has clarified the language of Request 1 to exclude agreements not intended to be covered by the request. Second, the Commission has significantly shortened the time period (by four years) for which it seeks such documents. Third, for each request, a company will only have to produce documents and information about specific drug products that are listed in each company's information collection request, rather than for “all products as to which the generic company has made a Paragraph IV certification.” Geneva Comment at 3. Thus, Commission staff continues to believe that the estimates provided above are reasonable.
By direction of the Commission.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination of the waiting period provided by law and the premerger notification rules. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay or Parcellena P. Fielding, Contact Representatives, Federal Trade Commission, Premerger Notification Office, Bureau of Competition, Room 303, Washington, D.C. 20580, (202) 326-3100.
By direction of the Commission.
The Committee on Immunization Registry Standards and Electronic Transactions(CIRSET), in cooperation with the American Immunization Registry Association (AIRA), invites vendors of healthcare software systems to participate in a meeting on July 12, 2001, from 10:00 a.m. to 1:00 p.m., in conjunction with the Annual Immunization Registry Conference being held at the Arkansas' Excelsior Hotel in Little Rock, AK. The meeting will explore the potential for two-way data exchange between provider software and state and community immunization registries, as envisioned by CIRSET, AIRA, the Centers for Disease Control and Prevention's National Immunization Program (NIP), and state and local immunization registry programs.
Immunization registries face technical challenges similar to those faced by most of the healthcare industry today—how to enable communication among numerous disparate systems. Registries have been developed by a number of different entities—managed care organizations, independent software vendors, states, cities, counties, and local communities.
The developers of these registries chose the hardware and software support platforms that worked best within their own systems, but the resulting applications cannot communicate with each other except through expensive, custom interfaces.
Traditionally, these practices have caused vendors of practice management systems to have difficulty implementing immunization record exchange because each immunization registry had a different vision, format, and protocol for data exchange. This problem has been addressed using a national standard for electronic data exchange, Health Level Seven. The standard was used to develop an implementation guide for immunization data exchange entitled, “Implementation Guide for Immunization Data Transactions Using Version 2.3.1 of the Health Level Seven (HL7) Standard Protocol,” June 1999 (Guide). This Guide is the result of collaboration by a number of immunization registry developers who acknowledge the value of standardized data exchange and are ready to implement data exchange among registries. The Guide defines registry specific messages in detail, showing a range of fully valued messages that carry a complete complement of immunization data. The Guide also defines a “minimum standard message” that could be implemented by a non-clinical system to communicate with a registry. A minimum amount of data could be saved to a file in a standard HL7 format, creating a batch of updates for the provider to send to the registry on a periodic basis. The minimum message consists of core demographic and vaccine event data elements plus values for additional HL7-required fields. These are defined and examples provided in the Guide.
Differences in interpretations, acceptable codes, and definitions have been resolved by consensus. Registries agree that all will benefit if they adhere to one national standard implementation guide that can be available to both registries and software vendors of provider systems. One vendor explained that, with one national implementation, vendors would be more ready to incorporate it into the clinical or computer-based patient record systems they were building or upgrading. Another vendor advised that, even though his product was strictly a billing system, he believed it would be possible to extract the needed data and save it to a file as services were performed in the clinic. That file could be forwarded to the registry, eliminating the need for redundant data entry. A standard implementation allows vendors to assure their customers of compatibility among all participating systems. Just as importantly, implementing a national standard that is already in use in a large number of healthcare systems can save time and money for all involved parties.
Continuing collaboration to ensure that implementation plans meet messaging requirements will enable registry developers, vaccination providers, and vendors of physician systems to achieve interoperability not previously possible. The core data set, current vaccine and vaccine manufacturers' code sets, and the HL7 immunization messaging
Agenda items include:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services office has been delegated the authority to sign
This notice amends Part K of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (DHHS), Administration for Children and Families (ACF) as follows: Chapter KP, the Office of the Deputy Assistant Secretary for Administration (ODASA), previously amended on October 6, 1999, (64 FR 54330) and January 2, 1998, (63 FR 81). This notice reflects the restructuring of the Office of the Deputy Assistant Secretary for Administration.
This Chapter is amended as follows:
a. Delete KP.10 Organization in its entirety and replace with the following:
KP.10 Organization. The Office of the Deputy Assistant Secretary for Administration is headed by the Deputy Assistant Secretary who reports to the Assistant Secretary for Children and Families. The Office is organized as follows:
• Office of the Deputy Assistant Secretary for Administration (KPA)
• Office of Information Services (KPB)
• Office of Financial Services (KPC)
• Office of Organizational Development Services (KPD)
• Office of Customer Service and Administration (KPE)
• Executive Secretariat Office (KPG)
• Equal Employment Opportunity and Civil Rights Staff (KPH)
• Office of Administrative Services and Facilities Management (KPL)
b. Delete KP.20 Functions, Paragraph A, in its entirety and replace with the following:
KP.20 Functions. A. Office of the Deputy Assistant Secretary for Administration (ODASA) directs and coordinates all administrative activities for the Administration for Children and Families (ACF). The Deputy Assistant Secretary for Administration serves as ACF's: Chief Financial Officer; Chief Grants Management Officer; Federal Manager's Financial Integrity Act Management Control Officer; Principal Information Resource Management Official serving as Chief Information Officer; Deputy Ethics Counselor; Personnel Security Representative; and Reports Clearance Officer. The Deputy Assistant Secretary for Administration serves as the ACF liaison to the Office of the General Counsel and, as appropriate, initiates action in securing resolution of legal matters relating to management of the agency, and represents the Assistant Secretary on all administrative litigation matters.
The Deputy Assistant Secretary for Administration provides day-to-day executive leadership and direction to the Equal Employment Opportunity and Civil Rights Staff; Executive Secretariat Office; Office of Administrative Services and Facilities Management; Office of Customer Service and Administration; Office of Financial Services; Office of Information Services; Office of Organizational Development Services; and Office of State Systems Policy. The Deputy Assistant Secretary for Administration represents the Assistant Secretary in HHS and with other Federal agencies and task forces in defining objectives and priorities, and in coordinating activities associated with reinvention and continuous improvement initiatives.
c. Delete KP.20 Functions, Paragraph B, in its entirety and replace with the following:
B. The Office of Information Services (OIS) provides centralized information technology policy, procedures, standards and guidelines. The OIS Director serves as the Deputy Chief Information Officer, supporting the Chief Information Officer in the full range of activities required to carry out ACF's information technology (IT) and information resource management (IRM) programs. The Office provides liaison with OMB, GSA, and GAO on all IT and IRM matters and manages major interdepartmental IRM initiatives. It directs and coordinates ACF's Privacy Act responsibilities. The Office coordinates mandated OMB information collection approvals and plans. It directs and maintains ACF records and forms management programs. OIS develops long-range IRM plans; develops IRM policy, procurement plans and budgets for ACF information systems. The Office develops and implements procurement strategies for ADP support services. OIS reviews and analyzes all ADP acquisition documentation for compliance with applicable laws and regulations as well as for procurement strategy. It coordinates technical assistance provided to program offices on ADP support services procurements. The Office develops, recommends and implements ACF-wide policies, procedures, standards and guidelines concerning electronic government (e-government). It oversees the implementation of e-government policies through leadership and coordination with ACF program and staff offices. OIS serves as the ACF liaison with the Department and other federal and non-federal agencies to coordinate strategies and polices relative to staff development and training and e-government activities. The Office develops training policy and plans for ACF.
It provides leadership in directing and managing agency-wide staff development and training activities for ACF. OIS is responsible for the functional management of all information technology and software training, common needs training, and management training in the agency, including policy development,
OIS plans, manages, maintains and operates ACF's local area networks, national wide area network and personal computers; provides for equipment and software acquisition, maintenance and user support for end-user computing; and manages and maintains a Help Desk for ACF users. OIS develops and implements policies and plans for and acquires and manages data communications services; provides liaison with HHS, GSA and private firms on data communications matters; and provides assistance to ACF components to identify needs for and the use of data communications equipment and systems.
OIS designs, develops, implements and maintains application systems to support ACF budget, program and administrative systems. The Office provides technical assistance to ACF program offices procuring system support services; provides technical assistance on automated systems to state and local agencies who are users of ACF's computer systems; develops software policy, procedures, standards and guidelines and conducts major information system reviews of ADP systems as required by the Department.
OIS designs, develops, and maintains system support for e-government activities; provides technical assistance to ACF program offices for e-government support services; and provides technical assistance on e-government systems to state and local agencies.
OIS establishes, implements, maintains and oversees an IT security program that assures adequate security is provided for all agency information collected, processed, transmitted, stored or disseminated in general support systems and applications. The Office develops and implements agency-wide policies, standards and procedures consistent with government-wide IT security policies; conducts the ACF system security activities required by OMB IT security directives; develops, implements and maintains a security training plan for IT professionals; and provides security awareness training for all ACF staff.
d. Delete KP.20 Functions, Paragraph C, in its entirety and replace with the following:
C. The Office of Financial Services (OFS) supports the Deputy Assistant Secretary for Administration in fulfilling ACF's Chief Financial Officer (CFO), Management Control Officer, and Chief Grants Management Officer responsibilities including preparation of the CFO 5-Year Plan; performs audit oversight and liaison activities, including preparing reports to Congress, Office of the General Counsel and the Office of the Inspector General. OFS writes/interprets financial policy and researches appropriation law issues; oversees and coordinates ACF's Federal Manager's Financial Integrity Act activities; performs debt management functions; develops and administers quality assurance, training and certification programs for grants management; and is responsible for the annual preparation and audit of ACF's financial statement requirements. It develops/interprets internal policies and procedures for ACF components and coordinates the management of ACF's interagency agreement activities.
The Office provides agency-wide guidance to program and regional office staff on grant related issues; including developing and interpreting financial and grants policy, coordinating strategic grants planning, facilitating policy advisory groups, and assuring consistent grant program announcements. The Office prepares, coordinates and disseminates action transmittals, information memoranda, and other policy guidance on financial and grants management issues; provides financial and grants administration technical assistance to ACF staff and grantees; directs and/or coordinates management initiatives to improve financial administration of ACF mandatory and discretionary grant programs. OFS develops and administers grants management training for ACF program and grants staff and administers grants management certification for ACF grants staff.
OFS is responsible for developing departmental policies and procedures under which States obtain Federal financial participation in the cost of automated systems development to support programs funded under the Social Security Act. It serves as the departmental focal point and coordinator for the development and implementation of strategies and policies related to payment integrity, welfare systems integration, electronic benefit transfer and related initiatives and programs; and provides leadership and guidance to interagency work groups in these areas for the Department.
The Office provides policy guidance, management leadership and coordination regarding the optimum inter-operation of the multitude of complex Federal, State, local, tribal and private information technology systems used to carry out ACF programs. OFS provides leadership and coordination in the areas of systems assessments, systems design and planning, systems integration, data exchanges, information management, information security and electronic information exchanges. The Office leads ACF activities associated with business continuity contingency planning and with information technology partnership planning which occurs between ACF and its program partners.
e. Delete KP.20 Functions, Paragraph D, in its entirety and replace with the following:
D. The Office of Organizational Development Services (ODS) advises the Assistant organizational analysis and development including: delegations of authority; planning for new organizational elements; and planning, organizing and performing studies, analyses and evaluations related to structural, functional and organizational issues, problems and policies to ensure organizational effectiveness. The Office administers ACF's system for review, approval and documentation of delegations of authority. The Office provides technical assistance and guidance to ACF offices on intra-component organizational proposals and is responsible for development and/or review of inter-component organizational proposals. The Office develops policies and procedures for implementing organizational development activities and provides leadership of assigned ACF special initiatives arising from Departmental, federal and non-federal directives to improve service delivery to customers and to enhance employee work environment. The Office manages and administers ACF's Alternate Dispute Resolution (ADR) Program and other programs impacting the employee work environment, including developing and providing guidance, policies and procedures for ACF offices and serving as liaison with the Department and other federal agencies for coordination of strategies and processes for the ADR and other assigned programs.
The Office coordinates assigned agency-wide management initiatives that include: coordination and implementation of the HHS and ACF employee work life program; administrative guidance and support to
f. Delete KP.20 Functions, Paragraph E, in its entirety and replace with the following:
E. The Office of Customer Service and Administration (OCSA) advises the Assistant Secretary, through the Deputy Assistant Secretary for Administration, on human resource management for ACF; and provides direction, leadership and management of the internal administrative activities of the Office of the Deputy Assistant Secretary for Administration.
OCSA provides leadership, direction and oversight for human resource management services provided to ACF through a contract and supplemental memoranda of understanding (MOUs) with the Program Support Center (PSC).
OCSA, in collaboration and coordination with the PSC, provides advice and assistance to ACF managers in their personnel management activities, including recruitment, selection, position management, performance management, designated performance and incentive awards and employee assistance programs and other services to ACF employees. OCSA provides management, direction and oversight of the following personnel administrative services: the exercise of appointing authority, position classification, awards authorization, performance management evaluation, personnel action processing and record keeping, merit promotion, special hiring and placement programs. OCSA serves as liaison between ACF, the Department and the Office of Personnel Management. It provides technical advice and assistance on personnel policy, regulations and laws. OCSA formulates and interprets policies pertaining to existing personnel administration and management matters and formulates and interprets new human resource programs and strategies.
OCSA, in collaboration and coordination with the PSC, provides oversight and management advisory services on all ACF labor management and employee relations issues. The Office plans and coordinates ACF employee relations and labor relations activities, including the application and interpretation of the Federal Labor Management Relations Program, collective bargaining agreements, disciplinary and adverse action regulations and appeals. OCSA participates in the formulation and implementation of policies, practices and matters affecting bargaining unit employees' working conditions by assuring management's compliance with the Federal Labor Relations Program (5 U.S.C. Chapter 71). The Office maintains oversight, leadership and direction of the labor-management and employee relations services provided under contract with the PSC.
OCSA is responsible for formulation, planning, analysis and development of ACF human resource policies and programs, workforce planning, retirement and benefits counseling and liaison functions to the Department on ACF payroll matters.
OCSA formulates and oversees the implementation of ACF-wide policies, regulations and procedures concerning all aspects of the Senior Executive Service (SES), and SES-equivalent recruitment, staffing, position establishment, compensation, award, performance management and related personnel areas. The Office manages the ACF SES performance recognition systems and provides services for functions of the Executive Secretary to the Executive Resources Board and the Performance Review Board.
OCSA coordinates Schedule C and executive personnel activity with the Office of the Secretary and is the focal point for data, reports and analyses relating to Schedule C, SES and Executive-level personnel.
OCSA administers the ACF Ethics Program, the Personnel Security Program and the Drug Testing Program in coordination with the Department's Office of Government Ethics, the Office of General Counsel and the Office of Security and Drug Testing.
OCSA provides direction in meeting the human resource management needs within ODASA. The Office is responsible for providing leadership, guidance, oversight and liaison functions for ODASA personnel related issues and activities as well as other administrative functions within ODASA. OCSA coordinates with the Department to provide ODASA staff with personnel services including position management, performance management, employee recognition, staffing, recruitment, employee and labor relations, employee assistance, payroll liaison, staff development and training, and special hiring and placement programs. OCSA develops and maintains systems to track personnel actions to keep the Deputy Assistant Secretary for Administration and OA Office Directors informed about the status of personnel actions, employee programs, services and benefits.
g. Delete KP.20 Functions, Paragraph F, in its entirety.
h. Delete KP.20 Functions, Paragraph G, in its entirety and replace with the following:
G. The Executive Secretariat Office (ExecSec) ensures that issues requiring the attention of the Assistant Secretary, Deputy Assistant Secretaries and/or executive staff are addressed on a timely and coordinated basis and facilitates decisions on matters requiring immediate action including White House, Congressional and Secretarial assignments. The Office serves as the ACF liaison with the HHS Executive Secretariat. It receives, assesses and controls incoming correspondence and assignments to the appropriate ACF component(s) for response and action and provides assistance and advice to ACF staff on the development of responses to correspondence. The Office provides assistance to ACF staff on the use of the controlled correspondence system. The Office coordinates and/or prepares congressional correspondence; and tracks development of periodic reports and facilitates departmental clearances. The Director of the Executive Secretariat Office serves as the Freedom of Information Act Officer for ACF and coordinates hot line calls received by the Office of Inspector General and the General Accounting Office relating to ACF operations and personnel.
i. Delete KP.20 Functions, Paragraph H, in its entirety and replace with the following:
H. The Equal Employment Opportunity and Civil Rights Staff (EEOCRS) serves as the principal advisor, through the Deputy Assistant Secretary for Administration, to the Assistant Secretary on all aspects of the Agency Equal Employment Opportunity and Civil Rights program.
The Staff serves as the liaison between ACF and the HHS Office for Civil Rights. The Staff directs and manages the ACF Equal Employment Opportunity and Civil Rights program in accordance with Equal Employment Opportunity Commission (EEOC) regulations and HHS guidelines. The immediate oversight is provided by a staff under the direction of the ACF EEO Officer. The Staff plans, develops and evaluates programs and procedures designed to identify and eliminate
j. Delete KP.20 Functions, Paragraph L, in its entirety and replace with the following:
L. The Office of Administrative Services and Facilities Management (OASFM) directs and manages ACF's administrative support services, and facilities management programs and activities.
The Office provides, prepares, coordinates and disseminates information, policy and procedural guidance on administrative and facilities management issues on an agency-wide basis. It directs and/or coordinates management initiatives to improve ACF administrative and facilities management services with the goal of continually improving services while containing costs.
OASFM maintains budgetary controls on administrative services accounts, reconciling accounting reports and invoices, and monitoring all spending. The Office controls credit card for small purchases on behalf of the Agency. OASFM establishes and manages contracts and/or blanket purchase agreements for administrative support and facilities management services, including space design, building alteration and repair, telecommunications, reprographics, physical security, moving, labor, property management and inventory, systems furniture acquisitions and assembly, and fleet management.
The Office provides management and oversight of ACF mail delivery services and activities, including Federal and contractor postal services nationwide, covering all classes of U.S. Postal Service mail, priority and express mail services, and courier services, etc.
OASFM directs all activities associated with the ACF Master Housing Plan, including coordination and development of the agency long-range space budget; planning, budgeting, identification, solicitation, acceptance and utilization of office and special purpose space, repairs, and alterations; serving as principal liaison with GSA and other Federal agencies, building managers and facilities engineers, architects and commercial representatives, for space acquisition, negotiation of lease terms, dealing with sensitive issues such as handicapped barriers, space shortages, and security. It develops and maintains space floor plans and inventories, directory boards, and locator signs. OASFM serves as the lead for ACF in coordination and liaison with Departmental, GSA, Federal Protective Service, and other Federal agencies on implementation of federal physical security directives. The Office is responsible for planning and executing the Agency's environmental health, safety and physical security programs, ensuring that appropriate occupational health and safety and occupant emergency evacuation plans are in place. It serves as principal liaison with private and/or Federal building managers for all administrative services and facilities management activities. The Office is responsible for issuing, managing and controlling badge and cardkey systems to control access to agency space for security purposes.
OASFM develops and/or implements agency telecommunications management policy in accordance with Federal regulations and procedures. The Office reviews and directs payment of agency telephone invoices. It recommends and advises on the design and function of telecommunications systems, based on user needs, costs and technological availability. OASFM communicates directly with private industry service providers to coordinate the acquisition, installation and maintenance of voice/data telecommunications equipment and systems. It is responsible for other sources of communications capability such as pagers, cellular phone service, cable TV service, and audio conferencing equipment and service. It updates and maintains the ACF LAN-based telephone directory, handles the distribution of all commercial directories and updates and maintains the databases for telephone lines and equipment inventories.
OASFM plans, manages/operates employee transportation programs, including shuttle service and fleet management; employee and visitor parking; and commuter services and programs including transit subsidies and ridesharing. The Office develops and implements ACF travel policies and procedures consistent with Federal requirements. The Office provides technical assistance and oversight; coordinates ACF use of the Travel Management System; manages employee participation in the Travel Charge Card program, and coordinates Travel Management Center services for ACF. OASFM purchases and tracks common use supplies, stationery and publications. It plans and manages reprographic services.
The Office develops and implements policies and procedures for the ACF Personal Property Management Program, including managing the ACF Personal Property Inventory, and other personal property activities.
Notice is hereby given that pursuant to section 13 of Public Law 92-463, fiscal years 1999 and 2000 annual reports for the following Health Resources and Services Administration's Federal advisory committee has been filed with the Library of Congress: Health Professions and Nurse Education Special Emphasis Panel.
Copies are available to the public for inspection at the Library of Congress Newspaper and Current Periodical Reading Room, James Madison Memorial Building, Room LM-133, First Street and Independence Avenue, SE., Washington, DC. Copies may be obtained from: Jennifer Burks, M.S.N., Executive Secretary, Health Professions and Nurse Education Special Emphasis Panel, Parklawn Building, Room 8C-23, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 443-6339.
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 Office of Loan Repayment and Scholarship (OLRS), 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.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Marc S. Horowitz, J.D., Director, Office of Loan Repayment and Scholarship, NIH, 2 Center Drive, Room 2E28, MSC 0230, Bethesda, MD 20892-0230, or call toll-free 1-800-528-7689, or E-mail your request, including your address to: MHorowitz@nih.gov.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Comments Due Date: April 30, 2001.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Shelia Jones, Reports Liaison Officer, Department of Housing and Urban Development, 451 7th Street, SW., Room 7232, Washington, DC 20410.
Lindy Heaster at (202) 708-1322, Extension 4416 (this is not a toll free number) for copies of the proposed forms and other available documents.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) 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; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology;
This Notice also lists the following information:
This report does not include hours spent on Consolidated Plan preparation and reporting. Those hours are reported with 2506-0117.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the President of the Government National Mortgage Association (Ginnie Mae), HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Comments Due Date: April 30, 2001.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Sonya Suarez, Government National Mortgage Association, Office of Policy, Planning and Risk Management, Department of Housing & Urban Development, 451-7th Street, SW., Room 6226, Washington, DC 20410.
Sonya Suarez, Ginnie Mae, (202) 708-2772 (this is not a toll-free number), for copies of the proposed forms and other available documents.
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
Through this Notice, the Department is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) 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; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is
Comments Due Date: April 30, 2001.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control number and should be sent to: Mildred M. Hamman, Reports Liaison Officer, Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4238, Washington, DC 20410-5000.
Mildred M. Hamman, (202) 708-3642, extension 4128, for copies of the proposed forms and other available documents. (This is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, 12 amended).
This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) 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; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology;
This Notice also lists the following information:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB control number and should be sent to: Mildred M. Hamman, Reports Liaison Officer, Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4238; Washington, DC 20410-5000.
Mildred M. Hamman, (202) 708-3642 extension 4128, for copies of the proposed forms and other available documents. [This is not a toll-free number.]
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) 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; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology;
This Notice also list the following information:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of OMB Approval Number.
The purpose of this notice is to announce the OMB approval number for the collection of information pertaining to Rural Housing and Economic Development Program.
Ms. Jackie Mitchell, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-2290. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to Rural Housing and Economic Development Program. The OMB approval number for this information collection is 2506-0169, which expires on November 30, 2003.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of OMB Approval Number.
The purpose of this notice is to announce the OMB approval number for the collection of information
Mr. John Garrity, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-4300. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to Annual Progress Report (APR) for Competitive Homeless Assistance Programs. The OMB approval number for this information collection is 2506-0145, which expires on April 30, 2003.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD
Announcement of OMB Approval Number.
The purpose of this notice is to announce the OMB approval number for the collection of information pertaining to Rural Housing and Economic Development Program.
Ms. Phyllis Williams, Department of Housing and Urban Development, 451 7th Street, SW. Washington, DC 20410, telephone (202) 708-3484. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to Youthbuild Program. The OMB approval number for this information collection is 2506-0142, which expires on September 30, 2003.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of OMB Approval Number.
The purpose of this notice is to announce the OMB approval number for the collection of information pertaining to Housing Opportunities for Persons with AIDS (HOPWA) program: Application for competitive grants awards; annual progress report for competitive.
Mr. David Vos, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-1934. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to Housing Opportunities for Persons with AIDS (HOPWA) program: Application for competitive grants award; annual progress report for competitive. The OMB approval number for this information collection is 2506-0133, which expires on November 30, 2003.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of OMB Approval Number.
The purpose of this notice is to announce the OMB approval number for the collection of information pertaining to Hope for Homeownership of Single Family Homes Program (HOPE 3).
Ms. Patricia Mason, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-3226. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to Hope for Homeownership of Single Family Homes Program (HOPE 3). The OMB approval number for this information collection is 2506-0128, which expires on August 31, 2003.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of OMB Approval Number.
The purpose of this notice is to announce the OMB approval number for the collection of information
Mr. Frank Price, Department of Housing and Urban Development, 451 7th Street, SW, Washington, DC 20410, telephone (202) 708-2094. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to Urban Homesteading Program Semi-Annual Progress Report. The OMB approval number for this information collection is 2506-0042, which expires on April 30, 2003.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of OMB approval number.
The purpose of this notice is to announce the OMB approval number for the collection of information pertaining to Rental Rehabilitation Program.
Mr. Frank Price, Department of Housing and Urban Development, 451 7th Street, NS., Washington, DC 20410, telephone (202) 708-2094. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to Rental Rehabilitation Program. The OMB approval number for this information collection is 2506-0080, which expires on January 31, 2004.
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.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Announcement of OMB approval number.
The purpose of this notice is to announce the OMB approval number for the collection of information pertaining to 24 CFR part 570—Community Development Block Grant Entitlement Program.
Ms. Sue Miller, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-1577. This is not a toll-free number.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), this notice advises that OMB has responded to the Department's request for approval of the information collection pertaining to 24 CFR Part 570—Community Development Block Grant Entitlement Program. The OMB approval number for this information collection is 2506-0077, which expires on January 31, 2004.
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.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Announcement funding awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this document notifies the public of funding awards for Fiscal Year (FY) 2000 to housing agencies (HAs) under the Section 8 housing choice voucher program. The purpose of this notice is to publish the names, addresses, and the amount of the awards to housing agencies for housing conversion actions and mobility counseling.
Brian Fitzmaurice, Acting Director, Section 8 Financial Division, Office of Administration, Office of Public and Indian Housing, Room 4232, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-8000, telephone (202) 708-2934 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
The regulations governing the housing choice voucher program are published at 24 CFR Part 982. The regulations for allocating housing assistance budget authority under Section 213(d) of the Housing and Community Development Act of 1974 are published at 24 CFR part 791, subpart D.
The purpose of this rental assistance program is to assist eligible families to pay the rent for decent, safe, and sanitary housing. The FY 2000 awardees announced in this notice were provided Section 8 funds on an as needed basis. Announcements of awards provided pursuant with NOFAs for family unification, mainstream housing, and designated housing programs, and family self-sufficiency coordinators will be published in a separate
Awards published under this notice were provided to assist families living in HUD-owned properties that are being sold; to assist families affected by the expiration or termination of assistance; to provide relocation and replacement
A total of $157,293,280 in budget authority for rental vouchers (29,333 units) was awarded to recipients under all of the above mentioned categories.
The Catalog of federal Domestic Assistance number for this program is 14.871.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of those awards as shown in Appendix A.
Office of the Secretary, Department of Interior.
Notice of meeting.
This notice announces an upcoming meeting of the Delaware & Lehigh National Heritage Corridor Commission. Notice of this meeting is required under the Federal Advisory Committee Act (Pub. L. 92-463).
The agenda for the meeting will focus on implementation of the Management Action Plan for the Delaware and Lehigh National Heritage Corridor and State Heritage Park. The Commission was established to assist the Commonwealth of Pennsylvania and its political subdivisions in planning and implementing an integrated strategy for protecting and promoting cultural, historic and natural resources. The Commission reports to the Secretary of the Interior and to Congress.
C. Allen Sachse, Executive Director, Delaware & Lehigh National Heritage Corridor Commission, 10 E. Church Street, Room A-208, Bethlehem, PA 18018, (610) 861-9345.
The Delaware & Lehigh National Heritage Corridor Commission was established by Public Law 100-692, November 18, 1988 and extended through Public Law 105-355, November 13, 1998.
U.S. Fish and Wildlife Service, Interior.
Notice.
This notice advises the public that the U.S. Fish and Wildlife Service (USFWS) intends to gather information necessary for the preparation of an environmental impact statement (EIS) in response to a right-of-way application for construction of facilities associated with exploration and production of natural gas. The proposed project would be located in the Kenai National Wildlife Refuge, Alaska, in the northwest section of the Kenai Peninsula, in two areas collectively known as Swanson River Satellites. The East Swanson area is approximately 5 miles east of the Swanson River Unit (T8N, R8W, SM). The North Swanson
The public meeting dates are:
1. March 13, 2001, 7 p.m., Anchorage, Alaska.
2. March 15, 2001, 7 p.m., Soldotna, Alaska.
Written comments should be received by March 30, 2001.
The public meeting locations are:
1. Anchorage—Spenard Community Recreation Center, 2020 W. 48th Avenue, Anchorage, Alaska 99517.
2. Soldotna—Soldotna Senior Center, 197 W. Park Avenue, Soldotna, Alaska 99669.
Comments should be addressed to: Regional Director, Region 7, U.S. Fish and Wildlife Service, 1011 E. Tudor Rd., Anchorage, Alaska 99503.
Brian L. Anderson, (907) 786-3379.
Union Oil Company of California d.b.a. Unocal has applied for a right-of-way grant to construct facilities, including roads, pipelines, drill pads, and other facilities necessary for exploration and production of natural gas resources within the Kenai National Wildlife Refuge, a Conservation System Unit established by the Alaska National Interest Lands Conservation Act (ANILCA) (Sec. 303, Pub. L. 96-487, 16 U.S.C.668dd). The right-of-way application will be evaluated under regulations (43 CFR 36) implementing Title XI of ANILCA, Transportation and Utility Systems in and Across, and Access into, Conservation System Units in Alaska.
Most of the surface estate within the project area is owned by the United States and is managed by the USFWS, although a portion of the surface estate involved has been conveyed to the Tyonek Native Corporation. The subsurface oil, gas and coal mineral estate is owned by Cook Inlet Region Incorporated (CIRI), with the exception of the Birch Hill Unit, where these minerals are leased from the United States. Under Title XI, CIRI is entitled to adequate and feasible access to their valid inholding for economic and other purposes, subject to reasonable regulations necessary to protect the natural and other values of the refuge. Unocal has leased the natural gas development rights from CIRI and the United States.
Unocal proposes to develop natural gas exploration and production from up to three locations in the North Swanson area, and from up to three locations in the East Swanson area. The proposed road and pipeline rights-of-way for both East and North Swanson satellites total 13 miles in length and will include primary and secondary product pipelines, a water disposal pipeline, and communications and electric power lines. Proposed roads will be maintained to provide access to well sites. In addition to natural gas wells, a water well and drainage sump will be installed at each site.
The USFWS has determined that an EIS will be prepared to evaluate the potential direct, secondary, and cumulative impacts of constructing the proposed project, and to identify alternatives that would protect the resources of the Kenai National Wildlife Refuge. The environmental review will be conducted in accordance with the requirements of NEPA (42 U.S.C. 4371
Bureau of Indian Affairs, Interior.
Notice of approved amendment to a Tribal-State Compact.
Pursuant to section 11 of the Indian Gaming Regulatory Act of 1988, Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish, in the
This action is effective February 27, 2001.
George T. Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, Washington, DC 20240, (202) 219-4066.
Bureau of Indian Affairs, Interior.
notice of approved amendment to a Tribal-State Compact.
Pursuant to section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Pub. L. 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish in the
This action is effective February 27, 2001.
George T. Skibine, Director, Office of Indian Gaming Management, Bureau of Indian Affairs, Washington, DC 20240, (202) 219-4066.
Bureau of Land Management, Interior.
Notice of meeting.
The next meeting of the Northwest Colorado Resource Advisory Council will be held on Thursday, March 15, and Friday, March 16, 2001, at the Bureau of Land Management Grand Junction Office, Grand Junction, Colorado.
Thursday, March 15, and Friday, March 16 , 2001.
For further information, contact Lynn Barclay, Bureau of Land Management (BLM), 455 Emerson Street, Craig, Colorado 81625; Telephone (970) 826-5096.
The Northwest Resource Advisory Council (RAC) will meet on Thursday, March 15, 2001, and Friday, March 16, 2001, at the Bureau of Land Management Grand Junction Office, 2815 H Road, Grand Junction, Colorado 81506. The meeting will start at 1 p.m. on Thursday, March 15, ending at 4:30 p.m. that same day. The meeting will reconvene Friday, March 16 at 9 a.m. ending at 4 p.m. Discussion will include fire management and funding, Colorado Canyons National Conservation Area/Black Ridge Wilderness, weed management, RAC operations and general program updates.
The meeting is open to the public. Interested persons may make oral statements at the meetings or submit written statements at the meeting. Time for public comment will be at 4 p.m., Thursday, March 15, 2001. Per-person time limits for oral statements may be set to allow all interested persons an opportunity to speak.
Summary minutes of council meetings are maintained at the Bureau of Land Management Offices in Craig and Grand Junction, Colorado. They are available for public inspection and reproduction during regular business hours within thirty (30) days following the meeting.
The plats of survey of the following described land will be officially filed in the Colorado State Office, Bureau of Land Management, Lakewood, Colorado, effective 10:00 am., June 29, 2000. All inquiries should be sent to the Colorado State Office, Bureau of Land Management, 2850 Youngfield Street, Lakewood, Colorado 80215-7093.
The plat representing the dependent resurvey of certain subdivisional lines, and the subdivision survey of section 1., T. 32 N., R. 8 W., New Mexico Principal Meridian, Group 1265, Colorado, was accepted December 18, 2000.
This survey was requested by the Bureau of Indian Affairs for administrative purposes.
The plat representing the dependent resurvey of a portion of the south and west boundaries and a portion of the subdivisional lines, and the subdivision of section 33, T. 11 N., R. 78 W., Sixth Principal Meridian, Group 1221, Colorado was accepted October 24, 2000.
The plat representing the dependent resurvey of a portion of the east boundary, (Ninth Guide meridian West), and a portion of the subdivisional lines, and the subdivision of certain sections, T. 3 N., R. 73 W., Sixth Principal Meridian, Group 1237, Colorado, was accepted November 23, 2000.
These surveys were requested by the Forest Service for administrative purposes.
The supplemental plat that cancels lots 51, 53, 54, 61, 64, 65, and 68 in the W1/2 of section 18, T. 51 N., R. 6 E., New Mexico Principal Meridian, Group 1022, Colorado, was accepted October 23, 2000.
The plat representing the dependent resurvey of a portion of the east and north boundaries and a portion of the subdivisional lines, and the subdivision of sections 1 and 2, T. 10 N., R. 79 W., Sixth Principal Meridian, Group 1213, Colorado, was accepted October 24, 2000.
The plat representing the dependent resurvey of a portion of the north boundary and subdivisional lines, and the subdivision of section 6, T. 10 N., R. 78 W., Sixth Principal Meridian, Group 1213, Colorado, was accepted October 24, 2000.
The plat (in 2 sheets) representing the dependent resurvey of certain mineral surveys in T. 42 N., R. 7 W., New Mexico Principal Meridian, Group 1239, Colorado, was accepted November 1, 2000.
The plat representing the dependent resurvey of portions of the south boundary, west boundary, north boundary, and subdivisional lines, and the subdivision of certain sections, and the description of certain corners located but not incorporated within this survey, T. 4 S., R. 93 W., Sixth Principal Meridian, Group 1207, Colorado, was accepted November 16, 2000.
The plat representing the dependent resurvey of portions of the north boundary, and the subdivisional lines, and the survey of the subdivision of sections 4 and 5, T. 5 N., R. 98 W., Sixth Principal Meridian, Group 1233, Colorado, was accepted November 29, 2000.
The plat representing the entire record of the corrective dependent resurvey of a portion of the subdivision of section 19, T. 5 S., R. 76 W., Sixth Principal Meridian, Group 1306, Colorado, was accepted December 4, 2000.
The plat representing the dependent resurvey of a portion of the west boundary, and subdivisional lines, and the subdivision of section 19, T. 2 S., R. 98 W., Sixth Principal Meridian, Group 1277, Colorado, was accepted December 19, 2000.
The amended protraction diagram (in 5 sheets) was prepared for the express purpose of describing unsurveyed public land. It does not constitute an official survey but establishes the plan for extending the rectangular survey system over these unsurveyed lands and may be used for leasing and administrative purposes only. It covers the protracted area for Townships 46 to 48 North, Ranges 19 to 20 West, New Mexico Principal Meridian, Colorado, and was accepted December 20, 2000.
The surveys were requested by the Bureau of Land Management for administrative purposes.
In accordance with Departmental policy, 28 CFR 50.7, notice is hereby given that a proposed Settlement Agreement in
Under the Settlement Agreement, Joy has agreed to give EPA, a general unsecured creditor, an allowed claim in the amount of $7,000,000.00, plus interest, in reimbursement of response costs incurred in connection with the Site. Joy will pay the allowed claim on the same basis as its pays the allowed claims of all other unsecured creditors. In addition, Joy has agreed to pay the United States $1,500,000.00 to resolve the United States' claims pursuant to section 106(b) and 107(c)(3) of CERCLA, 42 U.S.C. 9606(b), 9607(c)(3). The latter amount will be paid within 78 months from the date the Bankruptcy Court approves the plan of reorganization for Harnischfeger Industries Incorporated and the other debtors, including Joy, involved in Bankruptcy Case Number 99-2177 (Jointly Administered), pending in the District of Delaware.
The Department of Justice will receive, for a period of 30 days from the date of this publication, comments relating to the proposed Settlement Agreement. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice, Washington, DC 20530, and should refer to
The proposed Settlement Agreement may be examined at the Office of the United States Attorney, Chemical Bank Plaza, 1201 Market Street, Suite 1100, Wilmington, Delaware 19899; and the Region III Office of the Environmental Protection Agency, 1650 Arch Street, Philadelphia, Pennsylvania 19103. A copy of the proposed Settlement Agreement may be obtained by mail from the Department of Justice Consent Decree Library, P.O. Box 7611, Washington, DC 20044. In requesting a copy, please refer to the referenced case and enclose a check in the amount of $3.25 (.25 cents per page production costs), payable to the Consent Decree Library.
Consistent with Departmental policy, 28 CFR 50.7, and under section 122(d) of CERCLA, 42 U.S.C. 9622(d), notice is hereby given that a proposed consent decree in
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, Environment and Natural Resource Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The proposed consent decree may be examined at the office of the United States Attorney for the District of New Jersey, 970 Broad Street, Newark, New Jersey 07102 (contact Assistant Untied States Attorney Susan C. Cassell); and the Region II Office of the Environmental Protection Agency, 290 Broadway, New York, New York, 10007-1866 (contact Assistant Regional Counsel Muthu S. Sundram). A copy of the proposed consent decree may be obtained by mail from the Consent Decree Library, P.O. Box 7611, Washington, DC 20044-7611. In requesting a copy please refer to the referenced case and enclose a check in the amount of $5.25 (25 cents per page reproduction costs), payable to the Consent Decree Library.
Proposed Final Judgment and Competitive Impact Statement in
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. §§ 16(b)-(h), that a proposed Final Judgment, Stipulation and Order, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia, in
On August 29, 2000, the United States filed a Complaint alleging that the effect of the merger of Clear Channel Communications, Inc. and AMFM Inc. may be to lessen competition substantially in the sale of radio advertising time and out-of-home advertising in several local markets in the United States in violation of Section
The proposed Final Judgment, also filed on August 29, 2000, requires Defendants to divest 14 radio stations in five markets: Allentown-Bethlehem, PA; Denver, CO; Harrisburg-Lebanon-Carlisle, PA; Houston-Galveston, TX; and Pensacola, FL, to preserve competition in the sale of radio advertising time in these markets. In addition, the proposed Final Judgment requires the Defendants to divest the approximate 28.6 percent equity interest in Lamar Advertising Company that Clear Channel acquired as a result of the merger in order to maintain effective and viable competition in the sale of out-of-home advertising in various markets in the United States. A Competitive Impact Statement filed by the United States on November 15, 2000, describes the Complaint, the proposed Final Judgment, and the remedies available to private litigants who may have been injured by the alleged violations.
Copies of the Complaint, proposed Final Judgment, Stipulation and Order, and Competitive Impact Statement are available for inspection at the U.S. Department of Justice, Antitrust Division, 325 Seventh Street, NW., Room 325, Washington, DC 20530, and at the Clerk's Office of the United States District Court for the District of Columbia.
Public comment is invited with the statutory 60-day comment period. Such comments and responses thereto will be published in the
It is stipulated by and between the undersigned parties, by their respective attorneys, as follows:
1. 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 United States District Court for the District of Columbia.
2. The parties stipulate that a Final Judgment in the form attached hereto may be filed with and 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.
3. The defendants shall abide by and comply with the provisions of the proposed Final Judgment entry of the Final Judgment 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 and Order 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.
4. The parties recognize that there could be a delay in obtaining approval by or ruling of a government agency related to the divestitures required by Section IV of the Final Judgment, notwithstanding the good faith efforts of the defendants and any prospective Acquirer, as defined in the Final Judgment. In this circumstance, plaintiff will, in the exercise of its sole discretion, acting in good faith, give special consideration to forbearing from applying for the appointment of a trustee pursuant to Section VII(A) of the Final Judgment, or from pursuing legal remedies available to it as a result of such delay, provided that: (1) Defendants have entered into one or more definitive agreements to divest the relevant Radio Assets, as defined in the Final Judgment, and such agreements and the Acquirer have been approved by the United States; (ii) all papers necessary to secure any governmental approvals and/or rulings to effectuate such divestitures (including but not limited to FCC, SEC and IRS approvals or rulings) have been filed with the appropriate agency; (iii) receipt of such approvals are only closing conditions that have not been satisfied or waived; and (iv) defendants have demonstrated that neither they nor the prospective Acquirer or Acquirers are responsible for such delay.
5. In the event that (I) the United States withdraws its consent, as provided in paragraph 2 above, or (ii) the proposed Final Judgment is not entered pursuant to Stipulation and Order, the time has expired for all appeals of any Court ruling declining entry of the proposed Final Judgment, and this 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 the Stipulation and Order, and the making of this Stipulation and Order shall be without evidentiary prejudice to any party in this or any other proceeding.
6. This Stipulation and Order 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.
7. Defendants represent that the divestitures ordered in the proposed Final Judgment can and will be made, and that defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained therein.
Dated: August 29, 2000.
For Plaintiff United States:
This Court has jurisdiction over the subject matter of and each of the parties to 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. “Clear Channel” means defendant Clear Channel Communications, Inc., a Texas corporation with its headquarters in San Antonio, Texas, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
B. “AMFM” means defendants AMFM Inc., a Delaware corporation with its headquarters in Austin, Texas, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
C. “Lamar” means Lamar Advertising Company, a Delaware corporation with its principal place of business in Baton Rouge, Louisiana, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
D. “Divestiture Assets” means Radio Assets and Lamar Holdings.
E. “Radio Assets” means all of the assets, tangible or intangible, used in the operation of each of the radio stations listed in Schedule A attached hereto, including all real property (owned or leased) used in the operation of the station, all broadcast equipment, office equipment, office furniture, fixtures, materials, supplies, and other tangible property used in the operation of the station; all licenses, permits, authorities, and applications therefor issued by the Federal Communications Commission (“FCC”) and other government agencies related to the station; all contracts (including programming contracts and rights), agreements, leases and commitments of Clear Channel or AMFM relating to its operation; all trademarks, service marks, trade names, copyrights, patents, slogans, programming materials, and promotional materials relating to the station; and all logs and other records maintained by Clear Channel or AMFM or that station in connection with its business.
F. “Lamar Holdings” means the 26,227,273 shares of Lamar Advertising Company's Class A stock owned by AMFM when the Complaint in this matter was filed to be acquired by Clear Channel in its merger with AMFM.
G. “Divestiture Cities” means the Metropolitan Survey Areas defined as “Arbitron Markets” in the
H. “Acquirer” means the entity or entities to whom defendants divest any Divestiture Assets.
A. This Final Judgment applies to Clear Channel and AMFM, as defined above, and all other persons in active concert or participation with either of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. Defendants 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 any of the Divestiture Assets, that the acquiring party or parties agree to be bound by the provisions of this Final Judgment.
A. Defendants are ordered and directed, within one hundred and fifty (150) days after the filing of the Complaint in this matter, or five (5) days after notice of the entry of this Final Judgment by the Court, whichever is later, to divest the Radio Assets in a manner consistent with this Final Judgment to an Acquirer or Acquirers acceptable to the United States in its sole discretion. The United States, in its sole discretion, may agree to an extension of this time period of up to two thirty (30) day time periods, not to exceed sixty (60) calendar days in total, and shall notify the Court in such circumstances. Defendants agree to use their best efforts to divest the Radio Assets, and to obtain all regulatory approvals necessary for such divestitures, as expeditiously as possible.
B. In accomplishing the divestitures of the Radio Assets ordered by the Final Judgment, defendants promptly shall make known, by usual and customary means, the availability of the Radio Assets. Defendants shall inform any person making an inquiry regarding a possible purchase of the Radio Assets that the sale is being made pursuant to this Final Judgment and provide each person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents regarding the Radio Assets customarily provided in a due diligence process, except such information or documents subject to the attorney-client or work product privileges. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.
C. Defendants shall provide the Acquirer(s) and the United States information relating to the personnel involved in the operation of the Radio Assets to enable the Acquirer(s) to make offers of employment. Defendants will not interfere with any negotiations by the Aquirer(s) to employ any defendant employee whose primary responsibility relates to the operation of the Radio Assets.
D. Defendants shall permit prospective Acquirers of the Radio Assets to have reasonable access to personnel and to make inspections of the physical facilities of the radio stations to be divested; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
E. Defendants shall warrant to any and all Acquirers of the Radio Assets that each asset will be operational on the date of sale.
F. Defendants shall not take any action that will impede in any way the
G. Defendants shall warrant to the Acquirer(s) of the Radio Assets that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each asset, and that following the sale of the Radio Assets, defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning or other permits relating to the operation of the Radio Assets.
H. Unless the United States otherwise consents in writing, the divestitures pursuant to Section IV, or by trustee appointed pursuant to Section VIII(A) and IX, of this Final Judgment, shall include the entire Radio Assets, and shall be accomplished in such a way to satisfy the United States, in its sole discretion, that the Radio Assets can and will be used by the Acquirer(s) as part of a viable, ongoing commercial radio broadcasting business. Divestiture of the Radio Assets may be made to one or more Acquirers, provided that in each instance it is demonstrated to the sole satisfaction of the United States that the divestiture assets will remain viable and the divestiture of such assets will remedy the competitive harm alleged in the Complaint. The divestitures, whether pursuant to Section IV or IX of this Final Judgment.
(i) Shall be made to an Acquirer (or Acquirers) that, in the United State's sole judgment, has the intent and capability (including the necessary managerial, operational, and financial capability) of competing effectively in the commercial radio broadcasting business in the Divestiture Cities; and
(ii) shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between an Acquirer or Acquirers and Clear Channel or AMFM give Clear Channel or AMFM the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
Until the divestiture of all the Radio Assets required by this Final Judgment have been accomplished:
A. Defendants shall preserve, hold and continue to operate the Radio Assets as separate, independent, ongoing, economically viable and active competitors to the other stations in the Divestiture Cities, with their assets, management and operations separate, distinct and apart from defendants' other radio stations. Except as necessary to comply with Sections V(B) and (D) of this Final Judgment, the management of said stations, including the performance of decision-making functions regarding marketing and pricing, will be kept separate and apart from, and not influenced by, defendant Clear Channel in the case of AMFM stations, and defendant AMFM in the case of Clear Channel stations. The books, records, and competitively sensitive sales, marketing and pricing information associated with the divestiture assets shall be kept separate and apart from defendants' other business.
B. Defendants shall use all reasonable efforts to maintain and increase sales of advertising time by the Radio Assets and shall maintain at 1999 or previously approved levels for 2000, whichever are higher, promotional, advertising, sales, marketing and merchandising support for such Radio Assets.
C. Defendants shall provide sufficient working capital to maintain the Radio Assets as economically viable and competitive ongoing businesses.
D. Defendants shall take all steps necessary to ensure that the Radio Assets are fully maintained in operable condition and shall maintain and adhere to normal repair and maintenance schedules for the Radio Assets.
E. Defendants shall not, except as part of a divestiture approved by the United States in accordance with the terms of this Final Judgment, remove, sell, lease, assign, transfer, license, pledge for collateral or otherwise dispose of any of the Radio Assets.
F. 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 Radio Assets.
G. Defendants' employees with primary responsibility for sales, marketing and programming of the Radio Assets to be divested pursuant to this Final Judgment shall not be transferred or reassigned to any other station, except for transfer bids initiated by employees pursuant to each defendant's regular, established job posting policies. Defendants shall provide the United States with ten (10) days' notice of such transfer.
H. Defendants shall appoint a person or persons to oversee the Radio Assets who will be responsible for defendants' compliance with this section. Such person shall have complete managerial responsibility for the Radio Assets, subject to the provisions of this Final Judgment. In the event that individual is unable to perform his or her duties, defendants shall appoint, subject to the approval of the United States, a replacement within ten (10) working days. Should defendants fail to appoint a replacement acceptable to the United States within this time period, the United States shall appoint a replacement.
A. Defendants are ordered and directed to divest completely the Lamar Holdings on or before December 31, 2002, in a manner consistent with this Final Judgment. A divestiture is not considered complete until the Acquirer(s) takes ownership and possession of all rights and interests held by Clean Channel in the relevant portion of the Lamar Holdings and Clear Channel has irrevocably relinquished to the Acquirer ownership and possession of, and all rights and interests in, the relevant portion of the Lamar Holdings.
B. The divestitures required by this Section may be made by public offering, private sale, or a combination thereof. Such divestitures, whether pursuant to Sections VI or IX shall not be made: (i) To any person who provides outdoor advertising services unless the United States shall otherwise agree in writing; or (ii) in a manner that, in the sole judgment of the United States, could significantly impair Lamar as an effective competitor in the sale of outdoor advertising.
C. In accomplishing the divestitures ordered by this Final Judgment, defendants shall make known the availability of the Lamar Holdings by usual and customary means, consistent with state and federal securities laws and in sufficient time so as to allow the divestitures to be completed within the time periods specified in Section VI(A) above. Defendants shall inform any person making an inquiry regarding the purchase of the Lamar Holdings that they are being divested pursuant to this Final Judgment. Defendants shall permit prospective Acquirer(s) in a private sale access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process, except such information or documents subject to the attorney-client or work product privileges. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.
A. Defendants shall abide by the First Amendment to Stockholders Agreement between Lamar, AMFM, and the controlling shareholders of Lamar
B. Until the divestiture of the Lamar Holdings required by the Final Judgment has been completed, defendants shall treat the Lamar Holdings as a passive investment, and shall hold the Lamar Holdings separate and apart from the activities and interests of Clear Channel. Neither the defendants nor their designees may exercise any rights relating to the governance of Lamar, including but not limited to: (i) Exercising any voting rights associated with the Lamar holdings in a manner inconsistent with the First Amendment to Stockholders Agreement; (ii) electing, nominating, appointing or otherwise designating or participating as officers or directors; (iii) participating, as a member of the Board of Directors or otherwise, in any meetings of the Board of Directors; (iv) participating in any committees; (v) exercising any veto rights with respect to the business of Lamar, including veto power over changes in control of Lamar, over significant asset purchases or sales, over change in majority of board membership, or over changes in majority ownership of Lamar; or (vi) obtaining any financial or business information with respect to Lamar that is not otherwise publicly available. In no event shall defendants influence or attempt to influence the decision-making, management, or policies of Lamar.
C. Within two (2) business days after Clear Channel acquires AMFM, Thomas O. Hicks and R. Steven Hicks shall resign from the Board of Directors of Lamar and from any committees of the Board of Directors.
D. Except as necessary to carry out the provisions of this Final Judgment, the trustee shall not exercise any voting rights associated with the Lamar Holdings for so long as they are held in trust in a manner inconsistent with the First Amendment to Stockholders Agreement.
E. Defendants shall not acquire, directly or indirectly, additional shares of Lamar Advertising Company stock, except pursuant to a stock split, stock dividend, rights offering, recapitalization, reclassification, or merger, consolidation, corporate reorganization, or other similar transaction hat does not increase defendants' proportion of the outstanding equity of Lamar. Any additional equity of Lamar that defendants acquire by such means shall be treated as part of the Lamar Holdings and be subject to the divestiture obligations of Section VI(A) of this Final Judgment. Notwithstanding anything to the contrary contained in this Final Judgment, nothing in this Final Judgment shall prohibit a transaction in which Clear Channel would acquire a majority of the voting securities of Lamar, provided that such transaction is subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a.
F. Defendants shall appoint a person or persons to oversee the Lamar Holdings who will be responsible for defendants' compliance with this section. In the event that individual is unable to perform his or her duties, defendants shall appoint, subject to the approval of the United States, a replacement within ten (10) working days. Should defendants fail to appoint a replacement acceptable to the United States within this time period, the United States shall appoint a replacement.
G. Defendants shall not take any action that will impede in any way the divestiture of the Lamar Holdings.
A.
B.
The following provisions apply to the Radio Trustee and the Lamar Stock Trustee:
A. After the appointment of a trustee becomes effective, only that trustee shall have the right to sell the Divestiture Assets. The trustee(s) shall have the power and authority to accomplish the divestitures to an Acquirer(s) acceptable to the United States at such price and on such terms as are then obtainable upon the best reasonable effort by the trustee(s), subject to the provisions of Sections IV, VI, IX, and X of this Final Judgment, and shall have such other powers as the Court shall deem appropriate. Subject to Section IX(C) of this Final Judgment, the trustee(s) may hire at the cost and expense of defendants any investment bankers, attorneys, or other agents, who shall be solely accountable to the trustee, reasonably necessary in the trustee's judgment to assist in the divestitures.
B. Defendants shall not object to a sale by the trustee(s) on any grounds 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 X.
C. The trustee(s) shall serve at the cost and expense of defendants, on such terms and conditions as the United States approves, and shall account for all monies derived from the sale of the assets sold by the trustee(s) 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(s), all remaining money shall be paid to defendants and the trust shall then be terminated. The compensation of the trustee(s) and any professionals and agents retained by the trustee(s) shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the trustee(s) with incentives based on the price and terms of the divestitures and the speed with which they are accomplished, but timeliness is paramount.
D. Defendants shall use their best efforts to assist the trustee(s) in
E. After his or her appointment becomes effective, the trustee(s) shall file monthly reports with the United States and the Court, setting forth the trustee's efforts to accomplish the divestitures ordered under this Final Judgment. To the extent that 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 about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The trustee(s) shall maintain full records of all efforts made to divest the Divestiture Assets.
F. If the trustee(s) has not accomplished such divestitures within six (6) months after his or her appointment, the trustee(s) shall promptly file with the Court a report setting forth: (i) The trustee's efforts to accomplish the required divestitures, (ii) the reasons, in the trustee's judgment, why the required divestitures have not been accomplished, and (iii) 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 at the same time shall furnish such reports to the United States, who shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it deems appropriate 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 two (2) business days following execution of a definitive agreement, defendants or the Radio Trustee, whichever is then responsible for effecting the divestiture of the Radio Assets required herein, shall notify the United States of any proposed divestiture required by Section IV or IX of this Final Judgment. If the Radio Trustee is responsible, it shall similarly notify defendants. The notice shall set forth the details of the proposed transaction and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Radio Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States may request from defendants, the proposed Acquirer or Acquirers, any other third party, or the Radio Trustee if applicable, additional information concerning the proposed divestiture, the proposed Acquirer or Acquirers, and any other potential Acquirer. Defendants and the Radio Trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.
C. 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 defendants, the proposed Acquirer or Acquirers, any third party, and the Radio Trustee, whichever is later, the United States shall provide written notice to defendants and the Radio Trustee, if there is one, stating whether or not it objects to any proposed divestiture. If the United States provides written notice that it does not object, then the divestiture may be consummated, subject only to defendants' limited right to object to the sale under Section IX(B) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer or upon objection by the United States, a divestiture proposed under Section IV or IX shall not be consummated. Upon objection by defendants under Section IX(B), a divestiture proposed under Section IX shall not be consummated unless approved by the Court.
Defendants shall not finance all or any part of any purchase made pursuant to this Final Judgment.
A. Clear Channel shall provide advance notification to the United States if it intends, directly or indirectly, to acquire any assets of or any interest (including any financial, security, loan, equity or management interest) in any broadcast radio station that sells advertising time in any of the Divestiture Cities, or intends to enter into any joint sales agreement or any cooperative selling arrangement between a Clear Channel radio station and any other operator of radio stations serving listeners in that same City. This obligation to provide notice is met under this section when a transaction is subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a.
B. Notification under this section shall be provided to the United States in the same format as, and per the instructions relating to, the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended, except that the information requested in Items 5 through 9 of the instructions must be provided only about the sales of radio advertising time in the relevant Divestiture Cities. Notification shall be provided at least thirty (30) days prior to the acquisition of any such interest, and shall include, beyond what may be required by the applicable instructions, the names of the principal representatives of the parties to the agreement who negotiated the agreement, and any management or strategic plans discussing the proposed transaction. If within the 30-day period after notification, representatives of the Department of Justice Antitrust Division make a written request for additional information, defendants shall not consummate the proposed transaction or agreement until twenty (20) days after submitting all such additional information. Early termination of the waiting periods in this paragraph may be requested and, where appropriate, granted in the same manner as is applicable under the requirements and provisions of the HSR Act and rules promulgated thereunder. This Section shall be broadly construed, and any ambiguity or uncertainty regarding the filing of notice under this Section shall be resolved in favor of filing notice.
A. Within twenty (20) calendar days of the filing of the Complaint and every thirty (30) calendar days thereafter until all the divestitures have been completed, whether pursuant to Section IV, VI, or IX 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, VI, or IX of this Final Judgment. Each such affidavit shall include the name, address and telephone number of each person who, during the preceding thirty (30) days, 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 Divestiture Assets, 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 buyers for the Divestiture Assets and to provide required information to prospective purchasers, including the limitations, if any, on such information.
B. Within twenty (20) calendar days of the filing of the Complaint in this matter, defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions defendants have taken and all steps defendants have implemented on an on-going basis to comply with Section V of this Final Judgment.
C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.
For the purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time duly authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon the written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to defendants, be permitted:
(i) Access during defendants' office hours to inspect and copy or, at plaintiff's option, to demand that defendants provide copies of, all books, ledgers, accounts, records and documents in the possession or control of the defendants, who may have counsel present, relating to any matters contained in this Final Judgment; and
(ii) to interview, either informally or on the record, defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the interviewee's reasonable convenience and without restraint or interference by defendants.
B. Upon the written request of the Assistant Attorney General in charge of the Antitrust Division, defendants shall submit such written reports, under oath if requested, relating to any of the matters contained in this Final Judgment 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 a duly 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 the United States shall give defendants ten (10) calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
Defendants may not reacquire any part of the Divestiture Assets or the assets used in the operation of the radio stations listed in Schedule E during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten years from the date of its entry.
Entry of this Final Judgment is in the public interest.
Court Approval Subject to Procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. 16.
This Amendment (this “
1.
(A) (i) The following new defined terms shall be added to Section 1.1 of the Stockholders Agreement:
“Business Day” means any day except Saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions in the State of Texas and/or the State of Louisiana generally are authorized or required by law or other government actions to close.
“Registration Rights Agreement” means the Amended and Restated Registration Rights Agreement dated as of July __, 2000 by and among the Company, AMFM Operating, AMFM Holdings and Clear Channel.
“Selling AMFM Holders” means AMFM Holders who sell or propose to sell Common Stock or Common Stock Equivalents pursuant to a third-Party Sale.
“Third-Party Sale” has the meaning ascribed thereto in Section 3.1(a).
“Underwritten Offering” means an offering (other than a block sale) in which all or part of the Registrable Securities (as defined in the Registration Rights Agreement) or securities convertible into, exchangeable for, or exercisable for Registrable Securities are sold to an underwriter for reoffering pursuant to the Shelf Registration Statement (as defined in the Registration Rights Agreement).
“Voting Stock” means any Common Stock or Common Stock Equivalents entitled ordinarily, and in the absence of contingencies, to vote for the election of directors of the Company.
(ii) The following defined term shall be substituted in lieu of the existing defined term “Chancellor Holders” in Section 1.1 of the Stockholders Agreement (and wherever such term is elsewhere used in the Stockholders Agreement):
“AMFM Holders” means, collectively, AMFM Operating and any Affiliates of AMFM Operating who then are parties to this Stockholders Agreement and who own any Common Stock or Common Stock Equivalents or any interest therein.
(iii) The following defined term shall be substituted in lieu of the existing defined term “Common Stock Equivalent” in Section 1.1 of the Stockholders Agreement (and wherever such term is elsewhere used in the Stockholders Agreement):
“Common Stock Equivalent” means, without duplication with any other Common Stock or Common Stock Equivalents, any security which is convertible into, exercisable for or exchangeable for, directly or indirectly, Class A Common Stock of the Company, whether at the time of issuance or upon the passage of time or the occurrence of some future event.
(B) The text of the following Sections of the Stockholders Agreement shall be deleted in their entirely and replaced by the words “Intentionally Omitted”:
Section 2.1.1 Board Representation.
Section 2.1.2 Vacancies.
Section 2.1.3 Committee Representation.
Section 2.1.4 Costs and Expenses.
Section 4.2 Other Significant Transactions.
Section 7.1 Financial Statements.
(C) Article 3 of the Stockholders Agreement shall be deleted in its entirely and the following provisions shall be substituted therefor:
Section 3.1
(a) Subject to the provisions of this Section 3.1, in the event that any one or more of the AMFM Holders proposes to offer or sell any Common Stock or Common Stock Equivalents for an aggregate offering price of $200 million or more to any Person who is not an Affiliate of the AMFM Holders in a single offering or a series of related offerings (if at the time of the first of such series of related offerings the Selling AMFM Holders know that there will be a series of related offerings to a single purchaser or a affiliated group of purchasers having an aggregate offering price of $200 million or more) (a “
(b) The number of shares of Common Stock that the Company shall be entitled to sell in a Third-Party Sale shall be determined solely by the Company and shall be set forth in the Election Notice;
(c) The Company shall not have any Co-Sale Right involving a block trade, other than as set forth in this Section 3.1(c). In the event that the Selling AMFM Holders engage in a transaction involving a block trade of Common Stock or Common Stock Equivalents, the Selling AMFM Holders will use their reasonable best efforts to give the
(d) The Company shall not have any Co-Sale Right pursuant to this Section 3.1 in connection with any sale or disposition of Common Stock or Common Stock Equivalents by the Selling AMFM Holders (or their successors or assigns) in a transaction pursuant to Rule 144 under the Securities Act to which the provisions of paragraphs (e) and (f) of Rule 144 are applied.
(e) Upon the Company's election to participate in a Third-Party Sale pursuant to this Section 3.1, and subject to Section 3.1(b), the closing of such sale shall be held at the time and place designated by the Selling AMFM Holders and the proposed purchaser. At the closing of such sale, the Company shall deliver to the purchaser, against payment of the purchase price, the shares of Common Stock or Common Stock Equivalents to be issued and sold by the Company to the purchaser, free and clear of all liens, charges, pledges and other encumbrances.
Section 3.2
(a) In connection with an Underwritten Offering (including any block trade) by the AMFM Holders of any Common Stock or Common Stock Equivalents having an aggregate offering price of $200 million or more, if the managing underwriters of such offering reasonably request, the Company shall enter into a lock-up or comparable agreement pursuant to which the Company will not sell or otherwise transfer any shares of Common Stock or Common Stock Equivalents for a fixed period of time (the “
(b) In connection with an Underwritten Offering by the Company of any Common Stock or Common Stock Equivalents having an aggregate offering price of $200 million or more, if the managing underwriters of such offering reasonably request, the AMFM Holders shall enter into a lock-up or comparable agreement pursuant to which the AMFM Holders will not sell or otherwise transfer any shares of Common Stock or Common Stock Equivalents during the Lock-Up Period. The Company and the AMFM Holders shall use reasonable best efforts to cause the underwriters to agree to a Lock-Up Period not to exceed sixty (60) days, but the AMFM Holders agree to accept a longer Lock-Up Period to the extent reasonably required by the underwriters, not to exceed ninety (90) days;
Section 3.3
(D) Section 4.1 of the Stockholders Agreement shall be deleted in its entirety and the following provisions shall be substituted therefor:
“Section 4.1
(E) Section 7.3 of the Stockholders Agreement shall be deleted in its entirety and the following provisions shall be substituted therefor:
“Section 7.3.1
“Section 7.3.2
(a) make, or in any way participate in, any “solicitation” of “proxies”, or become a “participant” in any “election contest” (as such terms are defined in Rule 14a-1 of Regulation 14A promulgated by the Commission pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and including any exempt solicitation pursuant to Rule 14a-2(b)(1) relating to Voting Stock; call, or in any way participate in a call for, any special meeting of the Company's stockholders; request, or take any action to obtain or retain any list of holders of any of the Company's securities; execute any written consent in lieu of a meeting of stockholders for the purpose of acquiring control of the Company; initiate or propose any stockholder proposal or participate in the making of, or solicit stockholders for the approval of, or seek to
(b) deposit any Voting Stock in a voting trust or subject any Voting Stock to any voting agreement or arrangements (other than as provided herein);
(c) form, join or in any way participate in a group with respect to any Voting Stock (or any securities the ownership of which would cause the owner thereof to Beneficially Own any Voting Stock); or
(d) otherwise act to control the Company or the Company's management, board of directors, policies or affairs including, without limitation: (i) making any offer or proposal to acquire any securities or assets of the Company or any of its affiliates or soliciting or proposing to effect or negotiate any form of business combination, any tender offer or exchange offer for any debt or equity securities of the Company, or any restructuring, recapitalization or other extraordinary transaction involving, or any change in control of, the Company, its affiliates or any of their respective securities or assets or (ii) seeking board representation or the removal of any directors or management or a change in the composition or size of the Company's Board of Directors.
(e) disclose any intention to do any of the foregoing or seek to modify any provision of this Section 7.3.2.
(F) Notices to the parties shall be sent to the addresses listed on the signature pages hereof.
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Address: 5551 Corporate Boulevard, Baton Rouge, LA 70808, Attention: Kevin P. Reilly, Jr., Fax: (225) 923-0658.
With copies to: Palmer Dodge LLP, One Beacon Street, Boston, MA 02108, Attention: George Ticknor, Esq., Fax: (617) 227-4420.
Address: 200 East Basse, San Antonio, TX 78209, Attention: General Counsel, Fax: (210) 822-2299.
With copies to: Akin, Gump, Strauss, Hauer & Feld, LLP., 300 Convent Street, Suite 1500, San Antonio, TX 78205, Attention: Stephen C. Mount, Fax: (210) 224-2035.
Address: 200 East Basse, San Antonio, TX 78209-3428, Attention: General Counsel, Fax: (210) 832-3428.
With copies to: Akin, Gump, Strauss, Hauer & Feld, LLP., 300 Convent Street, Suite 1500, San Antonio, TX 78205, Attention: Stephen C. Mount, Fax: (210) 224-2035.
Address: 200 East Basse, San Antonio, TX 78209-3428, Attention: General Counsel, Fax: (210) 832-3428.
With copies to: Akin, Gump, Strauss, Hauer & Feld, LLP., 300 Convent Street, Suite 1500, San Antonio, TX 78205, Attention: Stephen C. Mount, Fax: (210) 224-2035.
Address: c/o Lamar Advertising Company, 5551 Corporate Boulevard, Baton Rouge, LA 70808, Attention: Kevin P. Reilly, Jr., Fax: (225) 923-0658.
With copies to: Palmer Dodge LLP, One Beacon Street, Boston, MA 02108 Attention: George Ticknor, Esq., Fax: (617) 227-4420.
This Amended and Restated Registration Rights Agreement (this “Agreement”), dated as of July 19, 2000, by and among Lamar Advertising Company, a Delaware corporation (the “Issuer”), AMFM Operating Inc. (f/k/a Chancellor Media Corporation of Los Angeles), a Delaware corporation (“AMFM Operating”), AMFM Holdings Inc. (f/k/a/ Chancellor Mezzanine Holdings Corporation), a Delaware corporation (“AMFM Holdings”) and Clear Channel Communications, Inc., a Texas corporation (“Clear Channel”).
Section 1.1
“Affiliate” means, with respect to any Person, any Person who, directly or indirectly, controls, is controlled by or is under common control with that Person. For
“Business Day” means any day except Saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions in the State of Texas and/or the State of Louisiana generally are authorized or required by law or other government actions to close.
“Commission” means the Securities and Exchange Commission or any successor governmental body or agency.
“Common Stock” means the Issuer's Class A Common Stock, par value $0.001 per share, and any capital stock into which such Common Stock thereafter may be changed.
“Disadvantageous Condition” has the meaning ascribed thereto in Section 2.4.
“Effectiveness Date” means the date on which the Commission declares the Shelf Registration Statement to be effective under the Securities Act, which date shall not occur prior to the consummation of the Merger.
“Effectiveness Period” has the meaning ascribed thereto in Section 2.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Filing Date” has the meaning ascribed thereto in Section 2.1.
“Holder” means (1) AMFM Operating, (ii) any Affiliate of AMFM Operating to whom Registrable Securities shall be transferred and who shall agree to be bound by the terms of this Agreement, and (iii) any successor to any such Person described in clauses (i) and (ii).
“Majority Holders” means Holders owning Registrable Securities representing a majority of the Registrable Securities then owned by all of the Holders.
“Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.
“Prospectus” means the prospectus included in the Shelf Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the Shelf Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference in such Prospectus.
“Purchase Agreement” means the Second Amended and Restated Stock Purchase Agreement dated as of August 11, 1999 among Lamar Media Corp. (a wholly-owned subsidiary of the Issuer), AMFM Operating and AMFM Holdings.
“Register”, “registered” and “registration” shall refer to a registration effected by preparing and filing a registration statement or statements or similar documents in compliance with the Securities Act and pursuant to rule 415 under the Securities Act or any successor rule providing for offering securities on a continuous basis and the declaration or ordering of effectiveness of such registration statement or document by the Commission.
“Registrable Securities” means, at any time, any shares of Common Stock issued by the Issuer to AMFM Operating and AMFM Holdings pursuant to the Purchase Agreement, and owned by the Holders (or any shares of stock or other securities of the Issuer into which or for which such Common Stock may hereafter be changed, converted or exchanged; any other shares or securities issued by the Issuer to the Holders of such Common Stock; or any such shares of stock or other securities of the Issuer into which or for which such shares are so changed, converted or exchanged) upon any reclassification, share combination, share subdivision, share dividend, share exchange, merger, consolidation or similar transaction or event);
“Registration Expenses” means any and all expenses incident to performance of or compliance with any registration of securities pursuant to Article 2, including, without limitation, (i) all registration and filing fees, (ii) all fees and expenses associated with filings required to be made with the NASD (including, if applicable, the fees and expenses of any “qualified independent underwriter” as such term is defined in rule 2720(b)(15) of the NASD Conduct Rules, and of its counsel), as may be required by the rules and regulations of the NASD, (iii) reasonable fees and expenses of compliance with securities or “blue sky” laws (including reasonable fees and disbursements of counsel in connection with “blue sky” qualifications of the Registrable Securities), (iv) rating agency fees, (v) printing expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with the Depository Trust Company and of printing prospectuses or prospectus supplements if the printing prospectuses or prospectus supplements is requested by a holder of Registrable Securities), (vi) messenger and delivery expenses, (vii) the fees and expenses incurred in connection with any listing of the Registrable Securities, (viii) reasonable fees and expenses of counsel for the Issuer and its independent certified public accountants (including the expenses for any required consents and opinions and of any special audit or “cold comfort” letters required by or incident to such performance) and (ix) out-of-pocket expenses of the Issuer incurred in connection with the participation of officers of the Issuer in any marketing activities contemplated by Section 2.6(j);
“Registration Termination Date” means December 31, 2002.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Securities Act” means the Securities Act of 1933, as amended.
“Seller Affiliates” has the meaning ascribed thereto in Section 2.8.
“Selling Holder” means any Holder who sells Registrable Securities pursuant to the Shelf Registration Statement.
“Shelf Registration Statement” has the meaning ascribed thereto in Section 2.1, and includes the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference in such registration statement.
“Stockholders Agreement” means the Stockholders Agreement dated as of September 15, 1999, by and among the Issuer, AMFM Operating, AMFM Holdings and The Reilly Family Limited Partnership, as amended by the First Amendment to Stockholders Agreement dated July _, 2000, by and among the Issuer, AMFM Operating, AMFM Holdings, Clear Channel and The Reilly Family Limited Partnership.
“Underwritten Offering” means any firmly underwritten offering in which all or part of the Registrable Securities or securities convertible into, exchangeable for, or exercisable for Registrable Securities are sold to an underwriter for reoffering pursuant to the Shelf Registration Statement.
Section 1.2
Section 2.1
(a) If the Issuer shall not have previously filed the Shelf Registration Statement pursuant to the Original Agreement, then within ten (10) Business Days after the effective date of this Agreement (the “Filing Date”), the Issuer shall prepare and file with the Commission a Registration Statement (the “Shelf Registration Statement”) on Form S-3 (or if the Issuer is not then eligible to use Form S-3, then Form S-1) (or any successor forms thereto) which shall cover all of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act. The Issuer (i) except as permitted by Section 3.1 of the
(b) The Issuer shall (i) not later than three (3) business Days prior to the filing of the Shelf Registration Statement or any related Prospectus or any amendment or supplement thereto, furnish to the Holders, their counsel and any managing underwriters, copies of all such documents proposed to be filed (but excluding for such purpose any documents incorporated by reference into the Shelf Registration Statement or the Prospectus), which documents will be subject to the review of such Holders, their counsel and such managing underwriters, and copies of all “comment letters” with respect to any such filed documents received by the Issuer from the Commission and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act. The Issuer shall not file the Shelf Registration Statement or any such Prospectus or any amendments or supplements thereto (but excluding for such purpose documents incorporated by reference therein) to which the Majority Holders, their counsel or any managing underwriters shall reasonably object, and will not request acceleration of the Shelf Registration Statement without prior notice to such counsel. The Issuer shall furnish the Holders and their counsel and any managing underwriters with copies of any documents incorporated by reference into the Shelf Registration Statement or the Prospectus promptly after filing any such document with the Commission. The sections of the Shelf Registration Statement covering information with respect to the Holders, the Holders' beneficial ownership of securities of the Issuer or the Holders' intended method of disposition of Registrable Securities shall conform to the written information provided to the Issuer by each of the Holders specifically for use therein. The provisions of this Section 2.1(b) shall be effective upon the execution hereof (notwithstanding anything contained in Section 3.13 to the contrary) and also shall be applicable to the Required Shelf Registration to be prepared and filed pursuant to Section 2.1 of the Original Agreement, if any.
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
(a) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to the Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Shelf Registration Statement effective, including any amendment or supplement with respect to an Underwritten Offering of Registrable Securities and including any amendment or supplement to reflect any transfer of Registrable Securities to any subsequent Holder (which will have the right to be named as a selling shareholder in the Shelf Registration Statement), at all times during the Effectiveness Period, and, during such period, comply with the provisions of the Securities Act applicable to the Issuer in order to permit the disposition by the Holders of all Registrable Securities;
(b) furnish to the Holders of Registrable Securities and to any underwriter of such Registrable Securities (i) such number of conformed copies of the Shelf Registration Statement and of each such amendment and
(c) in the case of any Underwritten Offering, furnish to each Selling Holder and any underwriter of Registrable Securities an opinion of counsel for the Issuer and “cold comfort” letters and updates thereof signed by the independent public accountants who have audited the Issuer's financial statements included in the Shelf Registration Statement, in each such case covering substantially such matters with respect to such registration statement (and the prospectus included therein) and the related offering as are customarily covered in opinions of issuer's counsel with respect thereto and in accountants' letters delivered to underwriters in underwritten public offerings of securities, together with any consents required in connection therewith;
(d) promptly notify each Holder and each underwriter of Registrable Securities in writing (i) at any time when a prospectus relating to a registration pursuant to this Agreement is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) of any request by the Commission or any other regulatory body having jurisdiction for any additional information or amendment or supplement to the Shelf Registration Statement or Prospectus, and in either such case, at the request of any Holder or underwriter, promptly prepare and furnish to each Holder and underwriter a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading;
(e) cause all such Registrable Securities covered by such registration to be listed on the Nasdaq National Market, or if other than the Nasdaq National Market, on the principal securities exchange or automated interdealer quotation system on which the Common Stock is then listed or included for quotation;
(f) cooperate with each Selling Holder and each underwriter participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(g) subject to Section 2.4 of this Agreement, timely file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act during the period when a prospectus is required to be delivered under the Securities Act;
(h) subject to Section 2.4 of this Agreement, promptly prepare and file with the Commission any amendments or supplements to the Shelf Registration Statement or Prospectus which, in the opinion of the Issuer's counselor managing underwriter, are required in connection with the distribution of the Registrable Securities;
(i) advise each Selling Holder, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of the Shelf Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(j) use reasonable best efforts to assist the Holders in the marketing of the Registrable Securities in connection with any Underwritten Offering hereunder (including but not limited to using reasonable best efforts to have officers of the Issuer attend “road shows” and analyst or investor presentations scheduled in connection with such registration);
(k) make generally available to its security holders as soon as practicable, but not later than ninety (90) days after the close of the period covered thereby, an earning statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve (12) month period beginning not later than the first day of the Issuer's fiscal quarter next following the effective date of the Shelf Registration Statement;
(l) to the extent applicable, use its reasonable best efforts to (i) register and qualify the Registrable Securities under the securities or “blue sky” laws of such jurisdiction as any Holder may reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Effectiveness Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications and as may be necessary to maintain the effectiveness thereof at all times during the Effectiveness Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale by the Holders in such jurisdictions (provided that the Issuer shall not be required in connection therewith or as a condition thereto to qualify generally to do business or file a general consent to service of process in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.6(l));
(m) cooperate with each Holder and the managing underwriters to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities sold pursuant to the Shelf Registration Statement or in a transaction pursuant to Rule 144 and enable such certificates to be in such denominations or amounts as any Holder and the managing underwriter may reasonably request and registered in such names as such Holder and the managing underwriters may reasonably request. The Issuer shall give appropriate instructions to the Issuer's transfer agent to cause the transfer agent to deliver certificates representing the Registable Securities without any restrictive legends upon receipt of the Holder's certification that such Registrable Securities have been sold pursuant to the Shelf Registration Statement or in a transaction pursuant to Rule 144 and shall cause the Issuer's legal counsel to deliver to the transfer agent an opinion in customary form as required to remove such restrictive legends provided that such counsel may reasonably require such certifications from Holders; and
(n) within two (2) Business Days after the Shelf Registration Statement is declared effective by the Commission, deliver, and shall cause the Issuer's legal counsel to deliver, to the transfer agent for such Registrable Securities, confirmation that the Shelf Registration Statement has been delivered effective by the Commission.
The Issuer may require each Selling Holder to furnish to the Issuer such information regarding the Selling Holder and the distribution of such Registrable Securities as the Issuer may from time to time reasonably request in writing and such other information as may be legally required in connection with such registration. Each Selling Holder also agrees to notify the Issuer of any event relating to the Selling Holder that occurs that would require the preparation of a supplement or amendment to the Prospectus so that the information furnished or required to be furnished by such Selling Holder that is contained in the Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
In no event shall the Issuer be required to amend the Shelf Registration Statement filed after it has become effective or to amend or supplement the Prospectus to permit the continued disposition of shares of Common Stock owned by a Selling Holder registered under the Shelf Registration Statement at any time after the Effectiveness Period.
Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the happening of any event of the kind described in paragraph (d)(i) above, the Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf
Section 2.7
(a) If requested by the underwriters for any Underwritten Offering of Registrable Securities pursuant to this Article 2, the Issuer shall enter into an underwriting agreement with such underwriters for such offering, which agreement will contain such representations and warranties by the Issuer and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, and confirm the same if and when requested in accordance with customary practice. If an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the Selling Holders and the underwriters than those set forth in Section 2.8 of this Agreement (or such other provisions and procedures acceptable to the managing underwriters and Holders of a majority of Registrable Securities participating in such Underwritten Offering).
(b) In connection with the preparation and filing of the Shelf Registration Statement pursuant to this Article 2, the Issuer shall give the Holders of such Registrable Securities and the underwriters, if any, and their respective counsel and accountants, such reasonable and customary access to its books, records and properties and such opportunities to discuss the business and affairs of the Issuer with its officers and the independent public accounts who have certified the financial statements of the Issuer as shall be necessary, in the reasonable opinion of such Holders and such underwriters or their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act; provided that (i) each Holder and the underwriters and their respective counsel and accountants shall have entered into a confidentiality agreement reasonably acceptable to the Issuer and (ii) the Holders of such Registrable Securities and the underwriters and their respective counsel and accountants shall use their reasonable best efforts to minimize the disruption to the Issuer's business and coordinate any such investigation of the books, records and properties of the Issuer and any such discussions with the Issuer's officers and accountants so that all such investigations occur at the same time and all such discussions occur at the same time.
(c) The Issuer shall be subject to the lock-up provisions contained in Section 3.2 of the Stockholders Agreement.
Section 2.8
(a) The Issuer agrees to indemnify and reimburse, to the fullest extent permitted by law, each Selling Holder, and each Selling Holder's employees, advisors, agents, representatives, partners, officers, and directors and each Person who controls the Selling Holder (within the meaning of the Securities Act or the Exchange Act) (collectively, the “Seller Affiliates”), and each underwriter, if any, and each person who controls each such underwriter (within the meaning of the Securities Act or the Exchange Act) against any and all losses, claims, damages, liabilities, and expenses, joint or several (including, without limitation, reasonable attorneys' fees and disbursements except as limited by Section 2.8(c) below) based upon, arising out of, related to or resulting from any untrue or allegedly untrue statement of a material fact contained in the Shelf Registration Statement, Prospectus, or preliminary prospectus or any amendment thereof or supplement thereto, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as the same are made in reliance upon and in conformity with information furnished in writing to the Issuer by such Selling Holder or any Seller Affiliate specifically for use therein or arise from such Selling Holder's or any Seller Affiliate's failure to deliver a copy of the Shelf Registration Statement or Prospectus or any amendments or supplements thereto after the Issuer has furnished such Selling Holder or Seller Affiliate with a sufficient number of copies of the same. The reimbursements required by this Section 2.8(a) will be made by periodic payments during the course of the investigation or defense, as and when bills are received or expenses incurred.
(b) Each Selling Holder will jointly and severally indemnify the Issuer and its directors and officers and each of its employees, advisors, agents, representatives, partners, officers, and directors and each Person who controls the Issuer (within the meaning of the Securities Act or the Exchange Act) against any and all losses, claims, damages, liabilities, and expenses (including, without limitation, reasonable attorneys' fees and disbursements except as limited by Section 2.8(c) below) resulting from: (i) any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement, Prospectus, or any preliminary prospectus or any amendment thereof or supplement thereto, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission is contained in any information or affidavit so furnished in writing by a Selling Holder or any of its Seller Affiliates specifically for inclusion in the Shelf Registration Statement, Prospectus, preliminary prospectus, amendments or supplements; or (ii) a Selling Holder's or any Seller Affiliate's failure to deliver a copy of the Shelf Registration Statement or Prospectus or any amendments or supplements thereto after the Issuer has furnished the Selling Holder or Seller Affiliate with a sufficient number of copies of the same;
(c) Any Person entitled to indemnification hereunder will give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give such notice shall not limit the rights of such Person except to the extent such failure prejudiced the indemnifying party) and permit such indemnifying party to assume the defense of such claim;
(d) Each party hereto agrees that, if for any reason the indemnification provisions contemplated by Section 2.8(a) or Section 2.8(b) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities, or expenses (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, liabilities, or expenses (or actions in respect thereof) in such proportion as is appropriate
If indemnification is available under this Section 2.8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 2.8(a) and Section 2.8(b) without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in this Section 2.8(d) subject, in the case of the Holders, to the limited dollar amounts set forth in Section 2.8(b).
The indemnification and contribution provided for under this Agreement shall be in addition to any liability which any party may otherwise have to any other party and shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, or controlling Person of such indemnified party and will survive the transfer of the Common Stock and the termination of this Agreement.
Section 2.9
Section 2.10
(a) make any keep public information regarding the Issuer available as those terms are understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports and other documents required of the Issuer under the Securities Act and the Exchange Act; and
(c) furnish to any Holder forthwith upon written request a written statement by the Issuer as to its compliance with the reporting provisions contained in rule 144(c) under the Securities Act, a copy of the most recent annual or quarterly report of the Issuer, and such other reports and documents so filed as any Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder to sell any of the Registrable Securities without registration.
The Issuer shall give appropriate instructions to the Issuer's transfer agent to cause the transfer agent to deliver certificates representing the Registrable Securities without any restrictive legends upon receipt of the Holder's certification that such Registrable Securities have been sold pursuant to Rule 144 under the Securities Act. Each Holder shall cause its legal counsel to deliver to the transfer agent for the Registrable Securities an opinion in customary form as may be required to remove such restrictive legends following a sale pursuant to Rule 144.
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Address: 5551 Corporate Boulevard, Baton Rouge, Louisiana 70808, Attention: Keith Istre, Fax: (225) 923-0658.
With copies to: Palmer Dodge LLP, One Beacon Street, Boston, MA 02108, Attention: George Ticknor, Esq., Facsimile: (617) 227-4420.
Address: 200 East Basse, San Antonio, TX 78209, Attention: General Counsel, Fax: (210) 822-2299.
With copies to: Akin, Gump, Strauss, Hauer & Feld, L.L.P., 300 Convent Street, Suite 1500, San Antonio, TX 78205, Attention: Stephen C. Mount, Fax: (210) 224-2035.
Address: 200 East Basse Road, San Antonio, TX 78209, Attention: General Counsel, Fax: (210) 832-3428.
With copies to: Akin, Gump, Strauss, Hauer & Feld, L.L.P., 300 Convent Street, Suite 1500, San Antonio, TX 78205, Attention: Stephen C. Mount, Fax: (210) 224-2035.
Address: 200 East Basse Road, San Antonio, TX 78209, Attention: General Counsel, Fax: (210) 832-3428.
Ladies and Gentlemen: Reference is made to that certain Registration Rights Agreement dated of September 15, 1999 (the “Registration Rights Agreement”) among Lamar Advertising Company (the “Issuer”), a Delaware corporation, Chancellor Media Corporation of Los Angeles (predecessor-in-interest to AMFM Operating Inc., “AMFM Operating”), a Delaware corporation and Chancellor Mezzanine Holdings Corporation (now known as AMFM Holdings Inc., “AMFM Holdings”), a Delaware corporation. Subject to the terms and conditions of the Registration Rights Agreement, the Issuer agreed to effect the registration under the Securities Act of the 26,227,273 shares (the “Lamar Shares”) of Lamar Class A common stock, $0.001 par value per share issued by the Issuer in connection with the acquisition of the capital stock of Chancellor Outdoor Media Corporation and Chancellor Whiteco Outdoor Corporation. AMFM Holdings subsequently transferred the Lamar Shares held by it to AMFM Operating.
Capitalized terms used but not defined herein shall have the respective meanings set forth in the Registration Rights Agreement.
On October 2, 1999, AMFM Inc., (“AMFM”), a Delaware corporation and the parent corporation of AMFM Operating and AMFM Holdings, entered into an agreement and plan of merger (the “Merger Agreement”) with Clear Channel Communications, Inc., (“Clear Channel”), a Texas corporation contemplating the merger (the “Merger”) of a wholly-owned subsidiary of Clear Channel with and into AMFM. Following the Merger, AMFM Operating and AMFM Holdings will be indirect wholly-owned subsidiaries of Clear Channel.
This Letter shall terminate and shall be of no further force or effect upon the earlier of (i) the completion of the Merger, (ii) the termination of the Merger Agreement, or (iii) March 31, 2001 (unless the parties mutually agree to extend same).
This Letter shall be executed concurrently with the Amended Registration Rights Agreement and the First Amendment to the Stockholders Agreement.
I, John C. Filippini, of the Antitrust Division of the United States Department of Justice, do hereby certify that true copies of the Complaint For Injunctive Relief, Stipulation and Order, Final Judgment, and United States' Explanation of Consent Decree Procedures in this matter were served this 29th day of August 2000, by United States first-class mail, to the following:
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 on August 29, 2000, alleging that the proposed merger between Clear Channel Communications, Inc. (“Clear Channel”) and AMFM Inc. (“AMFM”) would violate section 7 of the Clayton Act, as amended, 15 U.S.C. 18. The Complaint alleges that Clear Channel's and AMFM's $23.8 billion merger would have the effect of lessening competition substantially in the provision of radio advertising time and of out-of-home advertising services in several areas of the United States.
Clear Channel and AMFM are two of the three largest operators of broadcast radio stations in the United States. Clear Channel's and AMFM's radio stations compete head-to-head against one another for the business of local and national companies seeking to advertise on radio stations in many cities throughout the United States, including Allentown, Pennsylvania; Denver, Colorado; Harrisburg, Pennsylvania; Houston, Texas; and Pensacola, Florida.
In addition, Clear Channel, through its subsidiary, Eller Media Company (“Clear Channel/Eller”), is a major provider of out-of-home advertising of various types, including billboards, bulletins and posters. AMFM has an approximately 28.6 percent equity interest in Lamar Advertising Company (“Lamar”), another major provider of out-of-home advertising that competes directly with Clear Channel/Eller. Clear Channel/Eller and Lamar compete vigorously in out-of-home advertising in numerous markets across the country.
The Complaint alleges that Clear Channel and AMFM's merger, unless blocked, would substantially lessen competition and would result in many advertisers paying higher prices for radio advertising time and out-of-home advertising. The prayer for relief seeks: (a) Adjudication that Clear Channel's proposed merger with AMFM would violate section 7 of the Clayton Act; (b) preliminary and permanent injunctive relief preventing the consummation of the proposed merger; (c) an award to the United States of the costs of this action; and (d) such other relief as is just and proper.
Before this suit was filed, the Department of Justice (“Department”) reached an agreement with Clear Channel and AMFM, under which the parties agreed to divest 99 stations in 27 markets to other radio operators approved by the Department in order to preserve competition in those markets. The majority of those stations were to be sold under what is commonly referred to as the “fix-it-first” approach utilized by the Department's Antitrust Division, which requires divestiture of certain assets before parties consummate their merger. The remaining stations are to be divested in accordance with the terms of a proposed Final Judgment agreed to by the parties. In addition, the defendants are required to divest completely AMFM's previously held equity interest in Lamar, now held by Clear Channel, under the terms of the proposed Final Judgment.
A Stipulation and proposed Final Judgment were filed simultaneously with the Complaint on August 29, 2000. The United States and defendants have stipulated that the proposed Final Judgment may be entered after compliance with 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.
Clear Channel, headquartered in San Antonio, Texas, is one of the largest radio broadcast companies in the United States. For 1999, the company reported net television and radio revenues of approximately $1.4 billion. Clear Channel, through its wholly owned subsidiary, Eller Media Company, is also one of the largest providers of out-of-home advertising services (such as billboard advertising) in the United States. In 1999, Clear Channel/Eller reported revenues in excess of $1.25 billion.
AMFM, headquartered in Dallas, Texas, is also one of the largest radio broadcast companies in the United States. For 1999, the company reported radio group net revenues of approximately $1.7 billion. In addition, prior to the merger, AMFM owned approximately 28.6 percent of the total outstanding securities of Lamar, giving it rights to participate in the operation of Lamar, including representation on Lamar's Board of Directors. Lamar provides out-of-home advertising in many markets across the country. In 1999, Lamar had revenues of approximately $444 million.
On October 2, 1999, Clear Channel and AMFM entered into an Agreement and Plan of Merger, worth approximately $23.8 billion, that would create the largest radio broadcast company in the United States and eliminate head-to-head competition between Clear Channel and AMFM in several markets. Attempting to resolve the Department's competitive concerns prior to the filing of the Complaint, Clear Channel and AMFM sold 85 radio stations in 24 markets to buyers approved by the Department. These stations were purchased by buyers who will compete against Clear Channel after the merger, thereby restoring much of the competition that would have been lost as a result of the merger. Clear Channel and AMFM, however, did not sell enough radio stations in the Allentown, Denver, Harrisburg, Houston, and Pensacola Metropolitan Survey Areas (“MSA”),
The Allentown MSA is comprised of Carbon, Lehigh, and Northampton counties in Pennsylvania and Warren County in New Jersey. The Denver MSA is comprised of Adams, Arapahoe, Boulder, Denver, Douglas, and Jefferson counties in Colorado. The Harrisburg MSA is comprised of Cumberland, Dauphin, Lebanon, and Perry counties of Pennsylvania. The Houston MSA is comprised of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties of Texas. The Pensacola MSA is comprised of Escambia and Santa Rosa counties of Florida.
The Complaint alleges that the provision of advertising time on radio stations is a relevant product market and that the Allentown, Denver, Harrisburg, Houston and Pensacola MSAs (“Divestiture Cities”) are each a relevant geographic market.
a.
Although some local and national advertisers may switch some of their advertising to other media rather than absorb a price increase in radio advertising time in the Divestiture Cities, the existence of such advertisers would not prevent radio stations from profitably raising their prices a small but significant amount. At a minimum, stations could raise prices profitably to those advertisers who view radio either as a necessary advertising medium, or as a necessary advertising complement to other media. Radio stations, which negotiate prices individually with advertisers, can generally identify those advertisers with strong radio preferences. Consequently, radio stations can charge different advertisers different rates. Because of this ability to price discriminate between different customers, radio stations may charge higher rates to advertisers that view radio as particularly effective for their needs, while maintaining lower rates for other advertisers. For these reasons, the sale of radio advertising time is a relevant product market for purposes of section 7 of the Clayton Act.
b.
c.
Furthermore, the Complaint alleges that the merger would eliminate head-to-head competition between Clear Channel and AMFM for advertisers seeking to reach specific audiences. Advertisers select radio stations to reach a large percentage of their target audience based upon a number of actors, including, inter alia, the size of the station's audience, the characteristics of its audience, and the geographic reach of a station's signal. Many advertisers seek to reach a large percentage of their target listeners by selecting those stations whose audience best correlates to their target listeners. Today, several Clear Channel and AMFM stations in the Divestiture Cities compete head-to-head to reach the same audiences and, for many local and national advertisers buying time in those markets, the stations are close substitutes for each other based on their specific audience characteristics. The proposed transaction would eliminate such competition.
Format changes are unlikely to deter the anticompetitive consequences of this transaction. Successful radio stations are unlikely to undertake a format change solely in response to small but significant increases in price being charged to advertisers by a multi-station firm such as Clear Channel because they would likely lose a substantial portion of their existing audiences. Even if less successful stations did change format, they still would be unlikely to attract enough listeners to provide suitable alternatives to the Clear Channel stations in their markets. Finally, new entry into radio advertising markets in the Divestiture Cities is highly unlikely in response to a small but significant price increase by Clear Channel because of the general lack of capacity to add additional signals in metropolitan markets. Also, it is unlikely that stations located in adjacent communities would be permitted to boost their power sufficiently so as to enter the MSAs in the Divestiture Cities without interfering with other stations on the same or similar frequencies in violation of Federal Communications Commission (“FCC”) regulations.
For all of these reasons, the Complaint alleges that the proposed merger would lessen competition substantially in the sale of advertising time on radio stations serving the Divestiture Cities, eliminate competition between Clear Channel and AMFM, and result in increased prices and reduced quality of service for radio advertisers in the Divestiture Cities, all in violation of section 7 of the Clayton Act.
a.
Out-of-home advertising has unique characteristics that distinguish it from other advertising media. Among other things, out-of-home advertising is particularly suitable for highly visual, limited-information advertising and is typically less expensive and more cost-efficient than other media in reaching an advertiser's target audience. For many advertisers, there is no close substitute for out-of-home advertising. Such advertisers would not switch to another advertising medium if out-of-home advertising prices increased by a small but significant amount. Thus, the complaint alleges that out-of-home advertising is a relevant product market for purposes of section 7 of the Clayton Act.
In addition, out-of-home advertising is typically offered on a localized, market-by-market basis rather than nationally or regionally and is sold at prices based on local market conditions. It is typically sold by local sales forces and targeted to reach consumers in a specific city, county or metropolitan area. For advertisers seeking to reach consumers in a specific local area, advertising outside the local area is not an adequate substitute because most of the target audience may not even see the advertising. Thus, the relevant geographic markets within the meaning of Section 7 of the Clayton Act for out-
b.
Clear Channel's acquisition of AMFM's significant equity interest in Lamar may substantially lessen competition in the areas in which Clear Channel/Eller and Lamar compete to provide out-of-home advertising. By acquiring a partial ownership interest in Lamar, Clear Channel will have reduced incentives to compete against Lamar for out-of-home advertisers and will have incentives to charge higher prices than it otherwise would. This is because Clear Channel will indirectly benefit even when a customer chooses Lamar rather than Eller. In addition, Clear Channel's post-merger ownership in Lamar, which would include voting rights, board representation, and certain other rights, would give it the ability directly or indirectly to influence Lamar's business decisions, and would further lessen competition in out-of-home advertising. With these rights, Clear Channel could gain access to competitively sensitive information, which could be used by Clear Channel in an anticompetitive way. Entry into the out-of-home advertising would not be timely, likely or sufficient to mitigate the competitive harm resulting from this aspect of the merger. Hence, the Complaint alleges that the merger would lessen substantially competition between Clear Channel/Eller and Lamar in the provision of out-of-home advertising in local markets, and would result in increased prices and reduced quality of service for advertisers, in violation of section 7 of the Clayton Act.
The proposed Final Judgment will preserve competition in both the sale of radio advertising time in the Divestiture Cities and the sale of out-of-home advertising in local markets by requiring substantial radio station divestitures and a complete divestiture of AMFM's ownership interest in Lamar (“the Lamar Holdings”).
The proposed Final Judgment requires Clear Channel to divest 14 radio stations in five markets in the Divestiture Cities (the “Radio Assets”) to buyers approved by the United States within one hundred and fifty (150) days after the filing of the Complaint, or five (5) days after notice of the entry of the Final Judgment by the Court, whichever is later. The United States, in the exercise of its sole discretion, may extend this time for two additional thirty (30) days periods.
The divestitures required by the proposed Final Judgment will maintain or reduce Clear Channel's resulting post-merger market shares in radio advertising at levels that either Clear Channel or AMFM possessed (whichever was greater) in each of the Divestiture Cities before the merger,
Under the terms of the proposed Final Judgment, the Radio Assets must be sold to purchasers acceptable to the United States, in its sole discretion. Unless the United States otherwise consents in writing, the divestitures will include all the assets of the stations being divested, and will be accomplished in way that will satisfy the United States, in its sole discretion, that such assets can and will be used as viable, ongoing commercial radio businesses. The proposed Final Judgment also requires the defendants to maintain the independence of the Radio Assets, and requires those stations to be kept separate and apart from the defendants' other radio stations. The proposed Final Judgment also contains provisions intended to ensure that these stations will remain viable and aggressive competitors after divestiture.
In addition, the proposed Final Judgment prohibits Clear Channel from entering into certain agreements with other radio stations in the Divestiture Cities without providing at least thirty (30) days' notice to the United States. First, Clear Channel must notify the United States before acquiring any assets of or interest in any other radio station in the Divestiture Cities. Such acquisitions could raise competitive concerns but might be too small to be reported under the Hart-Scott-Rodino (“HSR”) premerger notification statute, 15 U.S.C. 18a. Second, Clear Channel may not enter into any joint sales or cooperative selling arrangement with any other radio station in the Divestiture Cities without providing the United States with advance notice. Such arrangements include any Joint Sales Agreement (“JSA”), where one station takes over another station's advertising time, and any Local Marketing Agreement (“LMA”), where one station takes over another station's broadcasting and advertising time, as well as other comparable arrangements. Arrangements whereby Clear Channel would manage, or sell advertising on behalf of, other radio stations in the Divestiture Cities would effectively increase its market share in those cities. Despite their competitive significance, such arrangements also might not be reportable under the HSR Premerger Notification Act. Thus, this provision of the proposed Final Judgment ensures that the United States will receive advance notice of and be able to act, if appropriate to prevent any agreements that might have anticompetitive effects in the Divestiture Cities.
The proposed Final Judgment also requires the defendants to divest completely, by December 31, 2002, the approximately 28.6 percent equity interest held by AMFM in the Lamar Holdings that Clear Channel acquired as a result of the merger. This divestiture may be made by public offering, private sale, or a combination thereof. However, such stock may not be sold: (1) to any entity that is currently in the out-of-home advertising business without the United States's written approval; or (2)
In merger cases in which the Antitrust Division seeks a divestiture remedy, it requires completion of the divestiture within the shortest time period reasonable under the circumstances. While the time period for divestiture of the Lamar Holdings in this case is significantly longer than the United States ordinarily would accept, the Division has agreed to a longer time in this case because of concerns that a more rapid divestiture of such a large amount of relatively thinly traded stock might harm competition. A complete divestiture in the time period required by the Antitrust Division in the typical case (
The terms of the proposed Final Judgment reflect a balancing of the potential harm to competition that might arise from a divestiture that proceeds either too slowly or too rapidly. By permitting the divestiture of the Lamar Holdings to be accomplished by December 31, 2002, the proposed Final Judgment will accomplish the required divestiture so as to minimize the risk of significant anticompetitive effects from Clear Channel's acquisition of a partial ownership stake in Lamar while at the same time minimizing the risk of any potential adverse effect on Lamar's ability to raise capital and compete effectively. Moreover, other supplementary provisions in the Final Judgment, described below, are designed to reduce the risk that Clear Channel's partial ownership of Lamar could create incentives for anticompetitive activity during the interim period before the completion of the required divestiture.
During the period that Clear Channel possesses the Lamar Holdings, its ability to participate in the governance of Lamar will be restricted by the proposed Final Judgment. In particular, it must abide by two agreements reached between Clear Channel and Lamar (the “First Amendment to Stockholders Agreement” and the “Amended and Restated Registration Rights Agreement,” both of which are attached to the proposed Final Judgment as Schedules C and D, respectively), which set out the rights and obligations of the parties with respect to issues relating to the governance of Lamar and the sale of its stock. In addition, until the divestiture of the Lamar Holdings, Clear Channel must treat that equity interest in Lamar as a passive investment, and must hold it separate and apart from Clear Channel's other activities and interest. Neither Clear Channel nor its representatives may: exercise any voting rights except as provided in the First Amendment to Stockholders Agreement; participate as officers or directors of Lamar, participate in the selection of Lamar's officers or directors, or participate in any board of directors meetings or committees; exercise any veto rights over Lamar's activities; or obtain nonpublic information about Lamar. In addition, the proposed Final Judgment provides that the two AMFM representatives on the Lamar board—Thomas O. Hicks and R. Steven Hicks—must resign those seats within two days after the merger is consummated.
Other provisions in the proposed Final Judgment require that the defendants may not take any action that will in any way impede the divestiture of the Lamar Holdings. In addition, the defendants may not acquire any additional shares of Lamar stock except as a results of certain events, such as a stock split or dividend, where the percentage of their equity interest in Lamar does not increase. Any additional shares so acquired must be divested as part of the Lamar Holdings. Finally, the defendants must appoint someone to oversee the Lamar Holdings, who will be responsible for the defendant's compliance with this portion of the decree.
As a general matter, the Antitrust Division does not believe that decree restrictions dealing with corporate governance arrangements are an appropriate remedy for the anticompetitive effects that might arise from mergers and acquisitions. Such restrictions will have only limited efficacy as long-term protections against anticompetitive effects, and may require ongoing oversight of the conduct of a corporation's internal affairs that neither the Antitrust Division nor a Court is well-suited to perform. The proposed Final Judgment in this matter adopts such provisions only because of the unique factors that are present here, and only as an interim measure designed to mitigate any anticompetitive incentives that could otherwise arise during the unusually lengthy period permitted for complete divestiture of the Lamar Holdings.
In the event that the defendants fail to make any required divestitures of either the Radio Assets or the Lamar Holdings (collectively the “Divestiture Assets”) within the time periods set forth in the proposed Final Judgment, a trustee(s) will be appointed by the Court to effect such divestitures. Clear Channel will pay all costs and expenses of any trustee and of any professionals and agents retained by the trustee(s), and may not object to any sale by the trustee(s) on any ground other than malfeasance. After appointment, the trustee(s) will report monthly to the United States and the Court on its efforts to accomplish the required divestitures. If the trustee(s) has not accomplished the divestitures within six (6) months of his or her appointment, the trustee(s) shall inform the Court of his or her efforts to accomplish the required divestitures, the reasons the required divestitures have not been accomplished and the trustee's recommendations.
The defendants may not reacquire any of the Divestiture Assets or the assets used in the operation of the radio stations listed in Schedule E of the proposed Final Judgment
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 court to recover three times the damages the person has suffered, as well as costs and reasonable
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 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 Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Any such written comments should be submitted to: J. Robert Kramer, II, Chief, Litigation II Section, Antitrust Division, United States Department of Justice, 1401 H Street, NW, Suite 3000, Washington, DC 20530.
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, as well as to punish violations of its provisions.
The United States considered as an alternative to the proposed Final Judgment, a full trial on the merits against the defendants. The United States could have brought suit and sought a preliminary and permanent injunction against the merger of Clear Channel and AMFM. The United States is satisfied, however, that the radio station divestitures, the complete divestiture of the Lamar Holdings, and the other relief contained in the proposed Final Judgment will preserve competition in the sale of radio advertising and out-of-home advertising. Thus, the United States is convinced that the proposed Final Judgment, once implemented by the Court, will prevent the Clear Channel/AMFM merger from having adverse competitive effects.
The APPA requires that proposed consent judgments in antitrust cases brought by the United States be subject to 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 considerations 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 trial 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.”
[a]bsent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should * * * carefully consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.
Accordingly, with respect to the adequacy of the relief secured by the decree, a court may not “engage in an unrestricted evaluation of what relief would best serve the public.”
The balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “
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: November 15, 2000.
I, John C. Filippini, of the Antitrust Division of the United States Department of Justice, do hereby certify that true copies of the foregoing Competitive Impact Statement were served this 15th day of November, 2000, by first-class mail, to the following:
Notice is hereby given that, on December 29, 2000, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and The ATM Forum intends to file additional written notification disclosing all changes in membership.
On April 19, 1993, The ATM Forum filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on September 29, 2000. A notice was published in the
Notice is hereby given that, on January 12, 2001, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Spray Drift Task Force intends to file additional written notification disclosing all changes in membership.
On May 15, 1990, Spray Drift Task Force filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on November 1, 2000. A notice has not yet been published in the
Notice is hereby given that, on January 8, 2001, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and United Technologies Research Center intends to file additional written notification disclosing all changes in membership.
On March 11, 1999, United Technologies Research Center filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on July 18, 2000 pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on April 11, 2000, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and United Technologies Corporation intends to file additional written notification disclosing all changes in membership.
On March 11, 1999, United Technologies Corporation filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
10:00 a.m., Friday, March 2, 2001.
Room 6005, 6th Floor, 1730 K Street, NW., Washington, DC.
Open.
The Commission will consider and act upon the following:
1. Eagle Energy, Inc., Docket No. WEVA 98-39 (Issues include whether the judge correctly determined that the violation of 30 CFR 75.380(d)(1) was not due to the operator's unwarrantable failure).
Any person attending an open meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Jean Ellen, (202) 653-5629/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Pub. L. 92-463, as amended, the National Aeronautics and Space Administration announces a forthcoming meeting of the NASA Advisory Council, Space Science Advisory Committee, Astronomical Search for Origins Planetary Systems Subcommittee.
Tuesday, March 6, 2001, 8:30 a.m. to 5 p.m.; Wednesday, March 7, 2001, 8:30 a.m. to 5 p.m.
March 6, the subcommittee will meet at Jet Propulsion Laboratory, 4800 Oak Grove Drive, Pasadena, CA 91109, room 180-703C. March 7, the subcommittee will meet at Carnegie Observatories, 813 Santa Barbara Street, Pasadena, California 91101.
Dr. Anne L. Kinney, Code S, National Aeronautics and Space Administration, Washington, DC 20546, 202/358-2150.
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
The National Endowment for the Humanities.
Notice of meetings.
Pursuant to the provisions of the Federal Advisory Committee Act (Public Law 92-463, as amended), notice is hereby given that the following meetings of the Humanities Panel will be held at the Old Post Office, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Laura S. Nelson, Advisory Committee Management Officer, National Endowment for the Humanities, Washington, DC 20506; telephone (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on (202) 606-8282.
The proposed meetings are for the purpose of panel review, discussion, evaluation and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including discussion of information given in confidence to the agency by the grant applicants. Because the proposed meetings will consider information that is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential and/or information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, pursuant to authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee meetings, dated July 19, 1993, I have determined that these meetings will be closed to the public pursuant to subsections (c)(4), and (6) of section 552b of Title 5, United States Code.
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National Indian Gaming Commission
Notice.
Notice is hereby given, pursuant to 25 CFR 514.1(a)(3), that the National Indian Gaming Commission has adopted preliminarily annual fee rates of 0.00% for tier 1 and 0.08% (.0008) for tier 2 for calendar year 2001. These rates shall apply to all assessable gross revenues from each gaming operation under the jurisdiction of the Commission. If a tribe has a certificate of self-regulation under 25 CFR part 518, the preliminary fee rate on class II revenues for calendar year 2001 shall be one-half of the annual fee rate, which is 0.4% (.0004).
Bobby Gordon, National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005; telephone 202/632-7003; fax 202/632-7066 (these are not toll-free numbers).
The Indian Gaming Regulatory Act established the National Indian Gaming Commission which is charged with, among other things, regulating gaming on Indian lands.
The regulations of the Commission (25 CFR part 514 and 25 CFR part 518), as amended, provide for a system of fee assessment and payment that is self-administered by gaming operations. Pursuant to those regulations, the Commission is required to adopt and communicate assessment rates; the gaming operations are required to apply those rates to their revenues, compute the fees to be paid, report the revenues, and remit the fees to the Commission on a quarterly basis.
The regulations of the Commission and the preliminary annual rate being adopted today are effective for calendar year 2001. Therefore, all gaming operations within the jurisdiction of the Commission are required to self-administer the provisions of these regulations and report and pay any fees
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of an amendment to Facility Operating License No. NPF-35 issued to Duke Energy Corporation, et al., (the licensee) for operation of the Catawba Nuclear Station, Unit 1, located in York County, South Carolina.
The proposed amendment would modify the Required Actions for the Engineered Safety Feature Actuation System (ESFAS) Table 3.3.2-1, function 6.f (auxiliary feedwater (AFW), auxiliary feedwater pump train A and train B suction transfer on suction pressure—low) on a one time basis. The proposed one time change will require that if more than 1 channel of low suction pressure instrumentation becomes inoperable, the licensee will immediately enter the applicable Condition(s) or Required Action(s) for the associated AFW train made inoperable by the inoperable channels. This modification will support the timely replacement of a broken pressure switch in the Train B of AFW Suction Transfer on low suction pressure function.
Before issuance of the proposed license amendment, 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 request involves no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment 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:
The following discussion is a summary of the evaluation of the changes contained in this proposed amendment against the 10 CFR 50.92(c) requirements to demonstrate that all three standards are satisfied. A no significant hazards consideration is indicated if operation of the facility in accordance with the proposed amendment 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.
Implementation of this amendment would not involve a significant increase in the probability or consequences of an accident previously evaluated. Approval of this one time amendment will have no effect on accident probabilities or consequences. For the proposed change, the equipment referenced in the affected TS (ESFAS instrumentation) is not accident initiating equipment; therefore, there will be no impact on any accident probabilities by the approval of this amendment. The design function of the equipment is not being modified by these proposed changes. The proposed one time change is not increasing the time already evaluated for an AFW train to be out of service. Therefore, there will be no impact on any accident consequences.
Implementation of this one time amendment would not create the possibility of a new or different kind of accident from any accident previously evaluated. No new accident causal mechanisms are created as a result of NRC approval of this amendment request. No changes are being made to the plant that will introduce any new accident causal mechanisms. This one time amendment request does not impact any plant systems that are accident initiators; therefore, no new accident types can be created.
Implementation of this one time amendment would not involve a significant reduction in a margin of safety. Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident situation. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The performance of these fission product barriers will not be impacted by implementation of this proposed one time amendment. The equipment referenced in the affected TS for proposed one time change is already capable of performing as designed. Therefore, a significant reduction in the margin of safety is not created by this one time TS change.
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 request involves 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 amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that
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 29, 2001, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license 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
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 amendment 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 request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
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 Ms. Lisa F. Vaughn, Legal Department (PB05E), Duke Energy Corporation, 422 South Church Street, Charlotte, North Carolina 28201-1006, 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 amendment dated February 20, 2001, which is 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
For The Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of February 26, March 5, 12, 19, 26, April 2, 2001.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of March 5, 2001.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of March 26, 2001.
There are no meetings scheduled for the Week of April 2, 2001.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: David Louis Gamberoni (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Postal Rate Commission.
Notice of Commission briefing.
United Parcel Service (UPS) representatives will brief the Commission on a petition UPS has filed with the Department of Transportation (DOT). The petition seeks review of a DOT staff action granting a foreign forwarding license to DHL Worldwide Express.
March 1, 2001 at 10 a.m.
The briefing will be held in the Postal Rate Commission's main conference room, 1333 H St. NW., Suite 300, Washington, DC 20268.
Stephen L. Sharfman, General Counsel, 202-789-6820.
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by March 16, 2001, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After March 16, 2001, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Consolidated Natural Gas Company (“CNG”), 120 Tredegar Street, Richmond, VA 23219, a registered public utility holding company, has filed a declaration with the Commission under sections 6(a)(2), 7(e) and 12(e) and rules 54,62(d) and 65 of the Act.
CNG became a wholly owned subsidiary of Dominion Resources, Inc. (“DRI”), also a registered holding company under the Act, as a result of a merger approved by the Commission on December 15, 1999 (HCAR No.
CNG seeks authorization to solicit consents and amend the indenture dated as of May 1, 1971, between CNG and the Chase Manhattan Bank, as successor Trustee (“1971 Indenture”) as supplemented by 19 supplemental indentures. In connection with a 20th supplemental indenture, CNG proposes to effect changes in the 1971 Indenture (“Amendments”). Currently there are three series of debentures outstanding under the 1971 Indenture as follows:
CNG requests authority to solicit consents from holders of the 5
CNG also currently has outstanding $1,350,000,000 principal amount in debt securities under an indenture dated as of April 1, 1995 between CNG and United States Trust Company of New York, as trustee (“1995 Indenture”). CNG plans to amend the 1971 Indenture to remove certain covenant restrictions. CNG states the effect of these amendments will, in general, be to eliminate covenants and restrictions found in the 1971 Indenture but not in the 1995 Indenture.
Specifically, CNG proposes to amend the 1971 Indenture as follows: (1) Delete section 6.05, which imposes restrictions on the sale of common or voting shares; (2) delete section 6.06, which imposes restrictions on additional funded debt of CNG and its subsidiaries and preferred stock of subsidiaries; (3) delete section 6.07, which imposes other restrictions on additional funded debt and preferred stock of new subsidiary companies; (4) delete section 6.08, which imposes restrictions on the payment of dividends; (5) delete section 6.09, which imposes restrictions on consolidation, merger or transfer of property unless specified ratios are complied with; (6) delete section 6.10, which requires CNG to file officers' certificates evidencing compliance with certain of the provisions of sections 6.06 through 6.09,
CNG states that neither the 1995 Indenture nor any of CNG's other credit arrangements contain restrictions of the kind imposed by sections 6.05 through 6.10 of the 1971 Indenture. CNG asserts the removal of these restrictions provides CNG with greater freedom to incur debt, pay dividends and engage in restructuring transactions that would otherwise be prohibited by the terms of the 1971 Indenture. CNG further asserts the amendments would update the terms of the 1971 Indenture to those generally accepted in capital markets for borrowers of the financial stature of CNG and DRI.
CNG requests that an order authorizing the solicitation of consents be issued as soon as practicable under rule 62(d).
For the Commission by the Division of Investment Management, pursuant to delegated authority.
On February 20, 2001, pursuant to Rule 11Aa3-2 under the Securities Exchange Act of 1934 (“Exchange Act”),
On November 17, 2000, the Commission adopted Rule 11Ac1-5, which requires public disclosure of order execution information.
The full text of the Plan is set forth in the Appendix and should be referred to for all details of Plan procedures. In general, each market center required by the Rule to make monthly reports available to the public must prepare such reports in the form of electronic data files that meet the requirements set forth in Sections V and VI of the Plan. Section V, for example, provides that market center files must be in standard, pipe-delimited ASCII format, and Section VI(a) sets forth the 26 fields of information that market center files must include (in order), as well as formatting instructions for the fields. A market center must make its files available for downloading on an Internet site (“Download Site”) in accordance with the provisions set forth in Section VII of the Plan (
Under Section VIII of the Plan, each market center must make arrangements with a single SRO that is a Participant in the Plan to act as the market center's “Designated Participant.” A market center must notify its Designated Participant of a hyperlink to the market center's Download Site. Finally, each Participant SRO will maintain an Internet site that includes a comprehensive list of links (“Link Site”) where the files can be obtained for all of the market centers for which the Participant functions as a Designated Participant. As a result, anyone who wishes to download all files for a month can be assured that, if they visit the Internet sites of all Participants, they will find hyperlinks to all files for the month.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed Plan is consistent with the Exchange 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 to the proposed Plan, all written statements with respect to the proposed Plan that are filed with the Commission, and all written communications relating to the proposed Plan 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 at the Commission's Public Reference Room. All submissions should refer to File No. 4-208 and should be submitted by March 20, 2001.
By the Commission.
The Participants submit to the SEC this Plan establishing procedures for market centers to follow in making available to the public the monthly reports required by Rule 11Ac1-5 in a uniform, readily accessible, and usable electronic form. The Participants developed this Plan pursuant to paragraph (b)(2) of the Rule, which directs the Participants to act jointly in establishing such procedures.
(a) “Designated Participant” means the Participant with which each market center has made the arrangements set forth in Section VIII of the Plan.
(b) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(c) “Participant” means a party to the Plan.
(d) “Plan” means the plan set forth in this instrument, as amended from time to time in accordance with its provisions.
(e) “Rule” means Rule 11Ac1-5 under the Exchange Act.
(f) “SEC” means the United States Securities and Exchange Commission.
(g) All terms defined in paragraph (a) of the Rule shall have the same meaning when used in the Plan, unless otherwise specified.
The parties to the Plan are as follows:
American Stock Exchange LLC (“Amex”), registered as a national securities exchange under the Exchange Act and having its principal place of business at 86 Trinity Place, New York, New York 10006.
Boston Stock Exchange, Inc. (“BSE”), registered as a national securities exchange under the Exchange Act and having its principal place of business at 100 Franklin Street, Boston, Massachusetts 02110.
Chicago Stock Exchange, Inc. (“CHX”), registered as a national securities exchange under the Exchange Act and having its principal place of business at 440 South LaSalle Street, Chicago, Illinois 60605.
Cincinnati Stock Exchange, Inc. (“CSE”), registered as a national securities exchange under the Exchange Act and having its principal place of business at 440 South LaSalle Street, Suite 2600, Chicago, Illinois 60605.
National Association of Securities Dealers, Inc. (“NASD”), registered as a national securities association under the Exchange Act and having its principal place of business at 1735 K Street, N.W., Washington, D.C. 20006.
New York Stock Exchange, Inc. (“NYSE”), registered as a national securities exchange under the Exchange Act and having its principal place of business at 11 Wall Street, New York, New York 10005.
Pacific Exchange, Inc. (“PCX”), registered as a national securities exchange under the Exchange Act and having its principal place of business at 301 Pine Street, San Francisco, California 94104.
Philadelphia Stock Exchange, Inc. (“Phlx”), registered as a national securities exchange under the Exchange Act and having its principal place of business at 1900 Market Street, Philadelphia, Pennsylvania 19103.
By subscribing to and submitting the Plan for approval by the SEC, each Participant agrees to comply with and to enforce compliance by its members with the provisions of the Plan.
The Participants agree that any entity registered as a national securities exchange or national securities association under the Exchange Act may become a Participant by: (i) executing a copy of the Plan, as then in effect; (ii) providing each then-current Participant with a copy of such executed Plan; and (iii) effecting an amendment to the Plan as specified in Section III(b) of the Plan.
Except with respect to the addition of new Participants to the Plan, any proposed change in, addition to, or deletion from the Plan shall be effected by means of a written amendment to the Plan that: (A) Sets forth the change, addition, or deletion; (B) is executed on behalf of each Participant; and (C) is approved by the SEC or otherwise becomes effective pursuant to Section 11A of the Exchange Act and Rule 11Aa3-2 thereunder.
With respect to new Participants, an amendment to the Plan may be effected by the new national securities exchange or national securities association executing a copy of the Plan, as then in effect (with the only changes being the addition of the new Participant's name in Section II(a) of the Plan and the new Participant's single-digit code in Section VI(a)(1) of the Plan) and submitting such executed Plan to the SEC for approval. The amendment will be effective when it is approved by the SEC or otherwise becomes effective pursuant to Section 11A of the Exchange Act and Rule 11Aa3-2 thereunder.
(1) Each Participant shall select from its staff one individual to represent such Participant as a member of an Advisory Committee on Plan Amendments (“Advisory Committee”), together with a substitute for such individual. Such substitute may participate in deliberations of the Advisory Committee and shall be considered a voting member thereof only in the absence of the primary representative. Each Participant shall have one vote on all matters considered by the Advisory Committee.
(2) The Advisory Committee shall monitor the procedures established pursuant to this
Any market center required by the Rule to make monthly reports available to the public shall prepare such reports in the form of electronic data files that meet the requirements set forth in Sections V and VI of the Plan. A market center shall make its files available for downloading on an Internet site in accordance with the provisions set forth in Section VII of the Plan. In accordance with Section VIII of the Plan, each market center
Files shall be prepared in standard, pipe-delimited (“|”) ASCII format and compressed using standard Zip compression. Uncompressed files shall be named according to the following convention: “[file identification code][six-digit date code (yyyymm)].dat”. A market center will use the file identification code assigned to it pursuant to section VIII of the Plan. The date code shall refer to the calendar month of trading for the market center report contained in the file. Compressed files will be named according to the same convention, except that the extension will be “.zip”.
(1) The first field in a file shall be the code identifying the Participant that is acting as Designated Participant for the market center under Section VIII of the Plan. The Participant identification codes are as follows: Amex—“A”; BSE—“B”; CHX—“M”; CSE—“CSE”; NASD—“T”; NYSE—“N”; PCX—“P”; Phlx—“X”.
(2) The next field in a file shall be the code identifying the market center, as assigned by a Designated Participant pursuant to Section VIII of the Plan.
(3) The next field in a file shall be the six-digit code identifying the date of the calendar month of trading for the market center report contained in the file (“yyyymm”).
(4) The next field in a file shall be the symbol assigned to an individual security under the national market system plan pursuant to which the consolidated best bid and offer for such security are disseminated on a current and continuous basis.
(5) The next field in a file shall be the code for the one of the five types of order by which the Rule requires a market center to categorize its report. The order type codes are as follows: market orders—“11”; marketable limit orders—“12”; inside-the-quote limit orders—“13”; at-the-quote limit orders—“14”; near-the-quote limit orders—“15”.
(6) The next field in a file shall be the code for one of the four order size buckets by which the Rule requires a market center to categorize its report. The order size codes are as follows: 100-499 shares— “21”; 500-1999 shares—“22”; 2000-4999 shares—“23”; 5000 or more shares— “24”.
(7) The next field in a file shall be the number of covered orders, as specified in paragraph (b)(1)(i)(A) of the Rule.
(8) The next field in a file shall be the cumulative number of shares of covered orders, as specified in paragraph (b)(1)(i)(B) of the Rule.
(9) The next field in a file shall be the cumulative number of shares of covered orders cancelled prior to execution, as specified in paragraph (b)(1)(i)(C) of the Rule.
(10) The next field in a file shall be the cumulative number of shares of covered orders executed at the receiving market center, as specified in paragraph (b)(1)(i)(D) of the Rule.
(11) The next field in a file shall be the cumulative number of shares of covered orders executed at any other venue, as specified in paragraph (b)(1)(i)(E) of the Rule.
(12) The next field in a file shall be the cumulative number of shares of covered orders executed from 0 to 9 seconds after the time of order receipt, as specified in paragraph (b)(1)(i)(F) of the Rule.
(13) The next field in a file shall be the cumulative number of shares of covered orders executed from 10 to 29 seconds after the time of order receipt, as specified in paragraph (b)(1)(i)(G) of the Rule.
(14) The next field in a file shall be the cumulative number of shares of covered orders executed from 30 to 59 seconds after the time of order receipt, as specified in paragraph (b)(1)(i)(H) of the Rule.
(15) The next field in a file shall be the cumulative number of shares of covered orders executed from 60 to 299 seconds after the time of order receipt, as specified in paragraph (b)(1)(i)(I) of the Rule.
(16) The next field in a file shall be the cumulative number of shares of covered orders executed from 5 minutes to 30 minutes after the time of order receipt, as specified in paragraph (b)(1)(i)(J) of the Rule.
(17) The next field in a file shall be the average realized spread for executions of covered orders, as specified in paragraph (b)(1)(i)(K) of the Rule. The amount shall be expressed in dollars and carried out to four decimal places.
(18) The next field in a file shall be the average effective spread for executions of covered orders, as specified in paragraph (b)(1)(ii)(A) of the Rule. The amount shall be expressed in dollars and carried out to four decimal places.
(19) The next field in a file shall be the cumulative number of shares of covered orders executed with price improvement, as specified in paragraph (b)(1)(ii)(B) of the Rule.
(20) The next field in a file shall be, for shares executed with price improvement, the share-weighted average amount per share that prices were improved, as specified in paragraph (b)(1)(ii)(C) of the Rule. The amount shall be expressed in dollars and carried out to four decimal places.
(21) The next field in a file shall be, for shares executed with price improvement, the share-weighted average period from the time of order receipt to the time of order execution, as specified in paragraph (b)(1)(ii)(D) of the Rule. The period shall be expressed in number of seconds and carried out to one decimal place.
(22) The next field in a file shall be the cumulative number of shares of covered orders executed at the quote, as specified in paragraph (b)(1)(ii)(E) of the Rule.
(23) The next field in a file shall be, for shares executed at the quote, the share-weighted average period of time from the time of order receipt to the time of order execution, as specified in paragraph (b)(1)(ii)(F) of the Rule. The period shall be expressed in number of seconds and carried out to one decimal place.
(24) The next field in a file shall be the cumulative number of shares of covered orders executed outside the quote, as specified in paragraph (b)(1)(ii)(G) of the Rule.
(25) The next field in a file shall be, for shares executed outside the quote, the share-weighted average amount per share that prices were outside the quote, as specified in paragraph (b)(1)(ii)(H) of the Rule. The amount shall be expressed in dollars and carried out to four decimal places.
(26) The next field in a file shall be, for shares executed outside the quote, the share-weighted average period of time from the time of order receipt to the time of order execution, as specified in paragraph (b)(1)(ii)(I) of the Rule. The period shall be expressed in number of seconds and carried out to one decimal place.
Files shall have separate records for each combination of security, order type, and order size by which a market center must categorize its report under the Rule (a maximum of 20 records for each individual security).
A market center shall make its compressed files available for downloading (via FTP) at a single page on an Internet site that is free of charge and readily accessible to the public.
Each market center shall be responsible for arranging with a single Participant to act as the market center's Designated Participant.
A Designated Participant shall assign a unique market center identification code to each market center for which it acts as Designated Participant. If an individual market center's report will be included in a file that contains only that market center's report, the file identification code for the file shall be the same as the market center identification code. If an individual market center's report will be included in a file that contains any additional market center's report (
A Designated Participant shall create and maintain a market center identification file (in standard, pipe-delimited (“|”) ASCII format) for each calendar month. Such file shall contain fields setting forth, in order, (A) the identification code for the Designated Participant (as set forth in Section VI(a)(1) of the Plan); (B) all market center identification codes that the Designated Participant has assigned for the month, (C) the full name of the market center (in upper case), and (D) the file identification code applicable to each market center (if different from the market center identification code). A Designated Participant shall make at least the three most recent market center identification files available for downloading (via FTP) on an Internet site that is free of charge and easily accessible to the public.
A market center shall notify its Designated Participant of the hyperlink to the location where the market center's files can be downloaded in accordance with Section VII of the Plan. A Designated Participant shall maintain a comprehensive list of the hyperlinks provided by its market centers at the same location at which market center identification files can be downloaded in accordance with Section VIII(b) of the Plan. As a result, anyone who wishes to download all files for a month can be assured that, if they visit the Internet sites of all Participants, they will find hyperlinks to all files for the month.
A market center may change the identity of its Designated Participant only by arranging with another Participant to act as a replacement. The Participant that has agreed to act as a replacement Designated Participant shall provide written notice of the change to all other Participants, as well as make such notice available on the Internet site maintained by the replacement Designated Participant under Section VIII(b) of the Plan. The notice shall specify both the past and new market center identification code and file identification code for the market center, or state that the codes have not changed. The change shall not be effective until 30 days after the date of the written notice.
When referring to information on Internet sites that the Rule requires to be made available to the public, market centers and Designated Participants shall use the phrase “Disclosure of SEC-Required Order Execution Information.”
With respect to the meaning of the term “regular trading hours” under paragraph (a)(19) of the Rule, the Participant who maintains the primary listing for a national market system security shall specify the regular trading hours for such security if they are to be other than the time between 9:30 a.m. and 4:00 p.m. Eastern Time. To effect a specification of regular trading hours under this Section X, a Participant shall submit a proposed rule change to the SEC under Section 19 of the Exchange Act. A Participant may specify as regular trading hours for a security only those times when the Participant itself is trading the security.
If a Participant ceases to be subject to the Rule or obtains SEC approval for another means of complying with the Rule, such Participant may withdraw from the Plan at any time on not less than 30 days' prior written notice to each of the other Participants. At such time, the withdrawing Participant shall have no further rights or obligations under the Plan.
The Plan may be executed in any number of counterparts, no one of which need contain all signatures of all Participants, and as many of such counterparts as shall together contain all such signatures shall constitute one and the same instrument.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to amend Interpretation .06 to Exchange Rule 8.9 and Exchange Regulatory Circulars RG 98-94 and RG 98-95, which set forth Exchange procedures and requirements for trading in joint accounts in equity and index options, to allow certain transactions between joint accounts that have common participants. The text of the proposed rule change is set forth below. Deletions are in brackets.
No change.
.01-.05—No change.
.06—No participant in a joint account shall effect a transaction, in person or via order, either for his own account or for the joint account, with another member acting on behalf of the joint account. [In addition, no joint account participant shall cause a transaction to be executed for the joint account with another member acting on behalf of another joint account if the member knows or, in the exercise of reasonable care under the circumstances, the member has reason to know that the two joint accounts have one or more common participants.]
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 Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Section 9(a)(1)(A) of the Exchange Act prohibits any person from effecting any transaction in any securities registered on a national securities exchange, which involves no change in beneficial ownership, for the purpose of creating a false or misleading appearance of active trading in any such security.
The Exchange adopted Interpretation .06 to Exchange Rule 8.9 to extend this trading prohibition to market maker joint accounts that have common participants. Interpretation .06 to Exchange Rule 8.9 and Exchange Regulatory Circulars
The Exchange adopted Interpretation .06 event though it believed that, in many instances, the trading in joint accounts with common participants is not effected by the same common joint account participant. The Exchange also recognized that market makers are not always in the position to know whether there are common joint account participants because of the frequency in which joint account composition may change. Although joint accounts may have common participants, common ownership between joint accounts is typically widely diverse.
The CBOE believes that its current interpretation of a wash sale is more restrictive than the rules in place at other national securities exchanges and the SEC.
The proposed rule change would enable common participants to trade between related joint accounts that are used as financing vehicles without violating Exchange Rule 8.9. The Exchange proposes that the following activity be permitted: (1) Trading between different market makers or other broker/dealer accounts that are financed by the same member where there is no common control over the trading activity in those accounts; and (2) trading between independently operated subsidiaries (
The Exchange represents that it will continue to prohibit the following activity: (1) Market makers trading with their joint account, even though their percentage of ownership is less than 100% (for instance, market maker ABC finances market maker XYZ via a joint account and ABC is a participant in the joint account. Ownership is 50% and XYZ makes his own trading decisions. ABC is still prohibited from trading directly with the joint account of which he is a member); (2) nominees of the same entity trading with each other on behalf of the entity; (3) firm traders employed by the same broker/dealer on different trading desks trading together, regardless of whether they are separate profit centers; and (4) spouses trading together.
The Exchange represents that under the proposed rule change, transactions between related joint accounts that are effected for an improper purpose, such as trades executed to create a false and misleading appearance of activity, would continue to violate Exchange Rule 4.1 (Just and Equitable Principles of Trade). The Exchange states that its Department of Market Regulation will continue to monitor trading between accounts with common beneficial ownership for trading abuses.
The Exchange represents that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange received a letter from Fulcrum urging the Exchange to re-evaluate its policy on trading between joint accounts.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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 at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to the File No. SR-CBOE-00-13 and should be submitted by March 20, 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”),
The Exchange is proposing to adopt Supplementary Material .02 to Rule 400 (Just and Equitable Principals of Trade). Supplementary Material .02 states that it may be considered conduct inconsistent with just and equitable principles of trade for any member or person associated with a member, who has knowledge of all material terms and conditions of (1) an order and a solicited
This prohibition of the proposed rule change would continue until either (1) all of the terms of the order of which the member or associated person has knowledge are disclosed to the trading crowd, or (2) the trade can no longer reasonably be considered imminent in view of the passage of time since the order was received. The rule specifies that the terms of an order are “disclosed” to the trading crowd on the Exchange when the order is entered into the System or into the Facilitation Mechanism.
In its filing with the Commission, the ISE 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 Exchange 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 adopt Supplementary Material .02 to Rule 400 (Just and Equitable Principles of Trade) to prohibit the use of non-public information received during the facilitation and solicitation processes. ISE Rule 717(d)-(e), in conjunction with ISE Rule 716(d), required that orders be displayed to the trading crowd before being crossed with facilitation orders or orders that have been solicited. The purpose of this requirement is to provide the trading crowd with an opportunity to participate in the transaction with the facilitating member or the solicited party.
The Exchange seeks to codify its policy prohibiting either a member or a person associated with a member from using non-public information for the member's benefit by trading in the underlying stock or in related instruments prior to exposing the order to the trading crowd. This policy prevents members and associated persons from using undisclosed information about imminent options transactions to trade the relevant option or any closely related instrument in advance of the trading crowd. Such action would undermine the ability of crowd participants to participate in the execution of the order at equally favorable terms as the member representing the order.
The basis for this proposed rule change is the requirement under section 6(b)(5) of the Act
The Exchange believes that the proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
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 the filing will also be available for inspection and copying at the principal offices of the Exchange. All submissions should refer to File No. SR-ISE-01-02 and should be submitted by March 20, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 19, 2000, the National Association of Securities Dealers, Inc. (“NASD”), through its subsidiary the Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“Commission”) a proposed rule change, pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
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”)
The PCX is proposing to adopt a rule providing for the implementation of “interim linkages” with other option exchanges.
In its filing with the Commission, the PCX 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 PCX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to implement certain aspects of an intermarket options linkage on an “interim” basis.
The Commission has approved a linkage plan that now includes all five option exchanges.
The key component of the interim linkage would be for the participating exchanges to open their automated customer execution systems, on a limited basis, to market maker orders. Specifically, market makers would be able to designate certain orders as “customer” orders, and thus would receive automatic execution of those orders on participating exchanges.
This proposed rule would authorize the PCX to implement bilateral or multilateral interim arrangements with the other exchanges to provide for equal access between market makers on our respective exchanges. The Exchange currently anticipates that the initial arrangements would allow PCX Designated Lead Market Makers (“LMMs”) and their equivalents on the other exchanges, when they are holding customer orders, to effectively send those orders to the other market for execution when the other market has a better quote. Such orders would be limited in size to the lesser of the size of the two markets' automatic execution size for customer orders.
All interim linkage orders must be “immediate or cancel” (that is, they cannot be placed on an exchange's limit order book), and a market maker may send a linkage order only when the other (receiving) market is displaying the national best bid or offer and the sending market is displaying an inferior price. This will allow a market maker to access the better price for its customer. In addition, if the interim linkage includes principal orders, it would allow market makers to attempt to “clear” another market displaying a superior quote. Any exchange participating in the interim linkage will implement heightened surveillance procedures to help ensure that their market makers send only properly-qualified orders through the linkage.
LMM participation in the interim linkage will be voluntary. Only when an LMM and its equivalent on another exchange believe that this form of mutual access would be advantageous will the exchanges employ the interim linkage procedures. The PCX believes that the interim linkage will benefit investors and will provide useful experience that will help the exchanges in implementing the full linkage.
The PCX believes that the proposed rule change meets the requirement of section 6(b)(5) under the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
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 times as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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 PCX. All submissions should refer to File No. SR-PCX-01-10 and should be submitted by March 20, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 16, 2000, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Phlx proposes to amend Exchange Rule 606 to establish rules and procedures for telephone use on the Phlx's options floor.
The proposed rule change would require members and member organizations to register by category of user any new telephone to be used on the options floor prior to use. Registration and maintenance of registration records would be handled through the Exchange's Membership Services Department. If there is a change in the category of user, the telephone must be re-registered with the Exchange. At the time of registration, the user must sign a statement that the user is aware of and understands the rules governing the use of telephones on the options floor. The Exchange believes that this should facilitate record keeping and also should enhance the ability of the Exchange's Market Surveillance Department to investigate potential violations of the rule.
The proposed rule also would provide that no person on the options floor may use any device, including, but not limited to, intercoms, walkie-talkies, and similar devices, for the purpose of maintaining an open line of communication whereby a person not located in a trading crown may continuously monitor the activities of that crowd.
The proposed rule specifies the capacity and functionality permitted for use of telephones on the options floor. Specifically, proposed Phlx 606(e)(2) provides that no wireless telephone on the options floor may have an output of more than one watt.
The purpose of this provision is to minimize the possibility of radio frequency or other interference with the systems of the Exchange of those of other members.
The proposed rule sets forth specific guidelines for each category of user on the options floor. Proposed Phlx Rule 606(e)(3) would provide that specialists and ROTs on the trading floor may use their own cellular and cordless phones to place calls to any person at any location (whether on or off the options floor).
Proposed Phlx Rule 606(e)(4) would allow floor brokers to use cellular and cordless phones, but only to communicate with persons located on the options floor. The proposed rule would prohibit floor brokers from receiving telephonic orders while in the trading crowd. Orders phoned to floor brokers must be received at the floor broker's booth.
Proposed Phlx Rule 606(e)(5) would provide that floor broker clerks and stock execution clerks are subject to the same terms and conditions on telephone use as floor brokers.
Proposed Phlx Rule 606(e)(6) states that the general access in-house telephones located outside of the trading post areas may be used by any member, clerk or floor broker to communicate with persons located on the options floor or within the Exchange complex.
Proposed Phlx Rule 606(e)(7) would require members to maintain all cellular or cordless telephone records for at least one year, and provides the Exchange the right to inspect and/or examine these records.
Finally, proposed Phlx Rule 606(e)(8) states that the Exchange assumes no liability to members or member organizations due to conflicts between telephones in use on the options floor or due to electronic interference problems resulting from the use of telephones on the trading floor.
Proposed OFPA F-31 contains the same provisions as proposed Rule Phlx 606(e) in order to facilitate on-floor reference to the Exchange's regulations regarding on-floor communications devices.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
Proposed Phlx Rule 606(e)(3) contains restrictions on telephone use by specialists and ROTs. The rule permits specialists and ROTs to use their own cellular or cordless phones to place calls to any person at any location. However, ROTs located off of the trading floor may not place an order by calling a floor broker, or a specialist, located in the trading crowd. Any telephonic order entered from off of the trading floor must be placed with the member firm booth. Because specialists and ROTs generally do not deal directly with public customers, the Commission does not believe that allowing specialists and ROTs to communicate with persons located off of the trading floor raises the same regulatory concerns discussed below regarding floor brokers. As a result, the Commission finds that it is consistent with the Act to allow specialists and ROTs to use cellular and cordless phones to call locations off of the trading floor. In addition, the Commission believes that it is reasonable and consistent with the Act to require orders entered off of the trading floor to be placed with a member firm booth.
Proposed Phlx Rule 606(e)(4) permits floor brokers to use cellular and cordless phones, but only to communicate with persons located on the options floor. The rule also requires all orders phoned to floor brokers to be received initially at the floor broker's booth and states that floor brokers may not receive telephonic orders while in the trading crowd, except from their booth. The Commission believes that the Exchange's prohibition on the use of telephones by floor brokers to call locations off of the floor or to receive orders from off of the floor is justified by legitimate regulatory concerns. Specifically, the Phlx must ensure compliance with rules requiring that members who accept orders directly from public customers are qualified to do so. Accordingly, this prohibition helps to provide adequate surveillance over this activity be requiring all orders to be taken at the member firm booth and by restricting outside phone calls. In addition, preventing floor brokers from directly accessing market information that might only be available on the floor of the exchange trading the securities underlying the options trading on the Phlx, helps to alleviate concerns about frontrunning and other forms of market manipulation. The proposal also helps to prevent persons located off of the trading floor from having virtually direct access to the trading crowd and receiving certain time and place advantages over other customers. Moreover, the Commission believes that requiring orders to be initially received at the floor broker's booth, where it is recorded before being forwarded to a floor broker in the crowd, should help to ensure that there is a record of each telephonic order if a trading problem or dispute arises.
Proposed Phlx rule 606(e)(5) provides that floor broker clerks and stock execution clerks are subject to the same terms and conditions on telephone use as floor brokers. In addition, the Exchange's Options Committee reserves the right to prohibit clerks from using cellular or cordless phones on the floor if necessary due to electronic interference or capacity problems. For the reasons discussed above regarding telephone use by floor brokers, the Commission finds that the proposed restrictions on clerks are reasonable and consistent with the Act.
Moreover, the Commission finds that the registration requirements set forth in proposed Phlx Rule 606(e)(1) and the record retention requirements set forth in proposed Phlx Rule 606(e)(7) are reasonable, consistent with the Act, and should assist the Exchange in monitoring for compliance with the proposed rule change. The Commission also finds that the limits on capacity and functionality set forth in proposed Phlx Rule 606(e)(2) should help to ensure that phones used on the options floor do not cause interference with each other or with Exchange systems.
Finally, the Commission believes that the proposed amendments to the Exchange's minor rule violation plan are
The Commission supports the Exchange's efforts to codify policies on telephone use to give its membership adequate notice of what conduct is prohibited. while supporting the Exchange's efforts to monitor and regulate communications on its options floor, the Commission expects the Phlx to ensure that Phlx Rule 606(e) is not used to limit access to services offered by the Exchange and is not applied in a manner that is inconsistent with the Act. Specifically, the Commission expects that Phlx Rule 606(e) will not be interpreted in a manner that permits unfair discrimination between customers, issuers, brokers, or dealers or imposes any unnecessary or inappropriate burden on competition, or is otherwise used to limit member access to Exchange services.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On November 13, 2000, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities and Exchange Act of 1934 (“Act”)
The proposed rule change was published for comment in the
The Phlx proposes to add new Commentary .01 (“Prohibition Against Harassment”), to prohibit members, member organizations, or persons associated with or employed by members or member organizations from engaging in harassment and other improper behavior because of listing or competitive practices.
Specifically, proposed new Commentary .01 to Phlx Rule 707 would state that it is conduct inconsistent with just and equitable principles of trade for any member, member organization, or person associated with or employed by a member or member organization to directly or indirectly threaten, harass, intimidate, refuse to deal with, or retaliate against any member, member organization, person associated with or employed by a member or member organization, or other market participant because such member, member organization, person associated with or employed by a member or member organization, or other market participant has: (i) Made a proposal to any exchange or other market to list or trade any option class; (ii) advocated or proposed to list or trade an option class on any exchange or other market; (iii) commenced making a market in or trading new option class on any exchange or other market; (iv) sought to increase the capacity of any options exchange or the options industry to disseminate quote or trade data; (v) sought to introduce new option products; or (vi) acted, or sought to act, competitively.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange,
Phlx's new Commentary .01 to Phlx Rule 707 provides generally that it is conduct inconsistent with just and equitable principles of trade for market members, member organizations, their employees, and associated persons engage in harassing and certain improper retaliatory actions as a result of another market participant's listing or competitive behavior. The Commission believes that this codification of existing practice in Phlx's Rules is a reasonable means to comply with the Commission's directive,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On November 23, 1999, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”) pursuant to section 19(b)(1) of the Securities and Exchange Act of 1934 (“Act”),
The Phlx proposed to amend its Certificate of Incorporation to add Article Nineteenth, relating to the leasing of memberships.
Proposed Article Nineteenth provides that, in addition to all other powers granted to the Board by law, the Certificate of Incorporation or otherwise, the Board shall have the power to determine whether, and under what terms and conditions, memberships may be leased, and to adopt by resolution or to set forth in the Rules of the Board such rules with respect to lease agreements, lessors and lessees as the Board may from time to time determine to be advisable. Such rules may include rules regulating and setting forth the rights and obligations of lessors and lessees, the required terms of lease agreements, and the fees, dues, and other charges required to be paid by lessors and lessees (or either of them) to the Exchange in connection with, and for the privilege of, leasing memberships. In addition, proposed Article Nineteenth provides that the Board shall have the power to adopt rules relating to the suspension or termination of any or all lease agreements with respect to memberships, to issue provisional trading privileges on such terms as the Board shall determine to members whose lease agreements are suspended or terminated, and to amend, alter, or repeal any or all of the Rules of the Board with respect to any of the foregoing matters.
As a non-stock corporation organized under the Delaware General Corporation Law (“DGCL”), the Exchange represented in Amendment No. 1 that it has ample authority to adopt proposed Article Nineteenth. Because the Exchange's Certificate of Incorporation does not require member approval to adopt a charter amendment, proposed Article Nineteenth may be adopted by the Board of Governors without approval by the members of the Exchange (including lessees of memberships) or the owners of memberships (including lessors of memberships). 8
Furthermore, section 141(j) of the DGCL empowers the Board to direct the business and affairs of the Exchange, and the Exchange's by-laws give the Board broad power to adopt rules of the Exchange. 8
Pursuant to Article Nineteenth, the Board would have the authority to make rules that impact lease arrangements, including adopting rules relating to the termination of lease agreements. As discussed, the Exchange's Certificate of Incorporation, by-laws and rules already include several provisions addressing such authority.
The Exchange further represents that proposed Article Nineteenth is also permissible as a matter of Pennsylvania contract law. The provisions of Article Nineteenth authorizing the adoption of rules affecting lease agreements between
Both lessors and lessees (as members) agree respectively as a condition of approval of the right to lease seats and as a condition of approval for membership that the Exchange may effectuate changes to their lease agreements, including termination. As a condition of the right to lease their seats, lessors agree “to abide by the [Exchange's] By-Laws as they have or shall be from time to time amended, and by all rules and regulations adopted pursuant to the By-Laws.”
Thus, the Exchange believes that proposed Article Nineteenth was properly adopted by the Exchange Board under Delaware law and is permissible as a matter of Pennsylvania contract law.
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of section 6 of the Act
The Phlx represented that it needs Article Nineteenth in order to give the Board the express authorization to adopt specific rules relating to the leasing of memberships, including suspending or terminating lease agreements. The Commission finds that the proposed rule change promotes just and equitable principles of trade and protects investors and the public interest because it enables the Board to determine whether, and under what terms and conditions, memberships can be leased. Furthermore, the Phlx acknowledges that any such rules or resolutions, which are adopted by the Board under Article Nineteenth, shall be filed with the Commission to the extent required pursuant to section 19(b) of the Act.
The Commission is not required under section 19(b)(2) of the Act to find that a proposed rule change by a self-regulatory organization is lawful under state law. In approving this proposal, the Commission is relying on the Phlx's representation that it has the general power under applicable provisions of Delaware corporate law to adopt Article Nineteeth without the approval of members, or by owners, lessors, or lessees of memberships. Furthermore, the Commission is also relying on the Phlx's representation that, under the applicable powers of Pennsylvania contract law, the Phlx has the right to adopt by-laws, rules, or regulation that affect those lessors and lessees contractual relationships. The Commission has not independently evaluated the accuracy of Phlx's representations about Delaware or Pennsylvania law.
Thus, the Commission finds that the proposed rule change is consistent with the Act.
By the Commission, for the Division of Market Regulation, pursuant to delegated authority.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for a proposed new Columbia River crossing project in Klickitat County or Skamania County, Washington and Hood River County, Oregon. Northern and southern termini for the new crossing would be located in or near the cities of White Salmon and Bingen, Washington, and Hood River, Oregon.
Michael Kulbacki, Transportation and Environmental Engineer, Federal Highway Administration, 711 S. Capitol Way, Suite 501, Olympia, WA 98501, Telephone: 360-753-9556; or Dale Robins, Project Manager, Southwest Washington Regional Transportation Council, 1351 Officers Row, Vancouver, WA 98661, Telephone: 360-397-6067. Additional information can also be obtained at the project web site:
The FHWA, in cooperation with the Washington State Department of Transportation, the Southwest Washington Regional Transportation Council, and the Oregon Department of Transportation, will prepare an EIS on
A new or improved Columbia River crossing is necessary to effectively accommodate current and future traffic demands, address multi-modal accessibility, enhance movement of freight and other goods, improve public safety, and improve current and future traffic operations.
Alternatives under consideration include (1) no action; (2) multi-modal options; (3) improvements to traffic and toll operations, (4) improvements to the existing bridge; and (5) constructing a new bridge or tunnel at or near the existing location. Potential crossing corridors being evaluated along the Columbia River include: West Hood River I-84 interchange, Second Street in Hood River (using the City Center exit on I-84), the existing bridge crossing, and east of Hood River near Stanley Rock. Design variations being evaluated include adjustments to grade, alignment, and crossing type.
A series of preliminary meetings have already been conducted between various public groups, the project Steering Committee, a Local Advisory Committee, and a Resource and Regulatory agency Committee since this project has been introduced. The ideas presented at these meetings will be incorporated into the environmental process as will all the necessary impacts and alternatives required by the National Environmental Protection Act (NEPA) and Council on Environmental Quality (CEQ) regulations.
Letters soliciting comments will be sent to appropriate Federal, State, and Local agencies, including private organizations and citizens who have previously expressed or are known to have interest in this proposal.
A public scoping meeting will be held on March 8, 2001, from 5 to 8 p.m. at Fidel's at the Gorge (restaurant), located on SR 14 at 120 East Steuben in Bingen, Washington. On March 8, 2001, a resource and regulatory agency scoping meeting will be held in Troutdale, Oregon, at the Oregon Department of Transportation Maintenance Facility from 1:30 to 3:00 p.m. Notification of the public scoping meeting will be published in the local newspaper and through mailed announcements.
In addition, a public meeting will be held prior to completion of the draft EIS. Public notice will be given of the time and place of all proposed meetings during Draft and Final EIS development. The draft EIS will be made available to the public and all agencies for review and comment prior to all public meetings.
Interested parties are encouraged to provide suggestions and comments in order to ensure that the full range of issues related to this proposed action are addressed and all potential impacts identified. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA, Washington Division or Southwest Washington Regional Transportation Council at the addresses or telephone numbers provided in the Contact Information Section.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared for a proposed highway project in Mendocino County, near the town of Hopland, California.
C. Glenn Clinton, Team Leader, Program Delivery Team—North, Federal Highway Administration, 980 Ninth Street, Suite 400, Sacramento, California 95814-2724, Telephone: 916-498-5020.
The FHWA, in cooperation with the California Department of Transportation (Caltrans), will prepare an environmental impact statement (EIS) on a proposed project to construct a four lane freeway or expressway bypass of the community of Hopland, on Route 101 in Southern Mendocino County. The project limits extend from kp 14.2 to 22.5 (pm 8.8 to 14.0). The project is needed to reduce operational conflicts, accommodate existing and future traffic demand, reduce travel time, increase safety, improve air quality, reduce noise in Hopland and provide the facility concept identified in the “Inter-regional Transportation Strategic Plan”.
Three aligments are being proposed at this time as well as a “No Build” alternative. All of the alignments potentially affect oak woodlands, riparian forest and pre-historic cultural resources. A Public Open House has been held to solicit opinions from the community and a Project Development Team has been formed to determine the scope of the project. There will be a public scoping meeting to discuss the proposed project and another opportunity for public comment on the draft environmental document during the circulation phase of the draft environmental impact statement (DEIS).
To ensure that the full range of issues related to this proposed action is addressed and all significant issues identified, comments and suggestions are invited from all interested parties. The views of agencies that may have interest in the effect of the proposal on historic properties are specifically solicited. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel CHARISMA.
As authorized by Public Law 105-383, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is
Submit comments on or before March 29, 2001.
Comments should refer to docket number MARAD-2001-8952. 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
Kathleen Dunn, U.S. Department of Transportation, Maritime Administration, MAR-832 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-2307.
Title V of Public Law 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:
(2) Size, capacity and tonnage of vessel. According to the applicant: “The vessel is 65 net tons as per the documentation certificate enclosed. Additional measurements are 65 feet in length, 17 feet in breadth and 11 feet in depth noticed by the same certificate.”
(3) Intended use for vessel, including geographic region of intended operation and trade. According to the applicant: “The intended use of the vessel is for executing meetings and executive cruises of 12 persons or less. This usage shall have no effect on the coastwise trade of any person as no charters of this type are currently operating in the proposed areas * * *. The geographic area intended is Lake Pontchartrain and connecting inland waters, Mississippi River as well as the Gulf of Mexico (Texas, Louisiana, Mississippi Alabama and Florida Coasts.”
(4) Date and Place of construction and (if applicable) rebuilding. Date of construction: 1967. Place of construction: Hampshire England, United Kingdom.
(5) A statement on the impact this waiver will have on other commercial passenger vessel operators. According to the applicant: “This proposed operation shall have no effect on other commercial passenger operations. There are no commercially operated executive yacht rentals in the proposed areas of operation. The CHARISMA is an executive yacht. It is the only yacht of this size proposed for charter in the areas indicated. As requested by your item 9 of the MARAD Transmittal we include the following description of existing operators of charter or commercial vessels for hire, none of which are similar in nature to the CHARISMA.
a. Small open fishing boats for two or three passengers with outboard motors.
b. Small oar or pole powered skiffs for bayou cruises in controlled wildlife refuges.
c. Casino boats of 1200 or more passengers.
d. Specially equipped deep sea fishing boats.
e. Harbor Tour Operators of certified vessels with passengers of 100 or more.
f. Government operated Ferryboats for public transportation of passengers and of vehicles.
g. Sailing vessels.”
(6) A statement on the impact this waiver will have on U.S. shipyards. According to the applicant: “This waiver shall have no impact on U.S. Shipyards.” “No shipyards are currently building Motor Vessels of this size or type for this purpose.”
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel SPIRIT.
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. 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 Public Law 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 29, 2001.
Comments should refer to docket number MARAD-2001-8951. 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
Kathleen Dunn, U.S. Department of Transportation, Maritime Administration, MAR-832 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-2307.
Title V of Public Law 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:
(2) Size, capacity and tonnage of vessel. According to the applicant: “
(3) Intended use for vessel, including geographic region of intended operation and trade. According to the applicant: “I intend to use
Although initially I will be operating out of the New York area, along the Hudson River, I would like to request a waiver for the Eastern Seaboard (from Maine to Florida). In the Summer months I will be cruising up to Maine, and during the Winter months cruising down to Florida (with stops along the way). If I could take on occasional charter clients while cruising at these different locations it would give me the option of choosing various seasonal cruising destinations.”
(4) Date and Place of construction and (if applicable) rebuilding. Date of construction: Built in 1977. Place of construction: Built in Havant, Great Britain.
(5) A statement on the impact this waiver will have on other commercial passenger vessel operators. According to the applicant: “I don't believe the issuance of this waiver for
(6) A statement on the impact this waiver will have on U.S. shipyards. According to the applicant: “I believe that this waiver would have a positive impact on US shipyards. By granting a charter waiver for
By Order of the Maritime Administrator.
Gettysburg & Northern Railroad Co. (GNR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Gettysburg Railway Company, Inc., Delaware Transportation Group, Inc., and Delaware Valley Railway Company, Inc. and operate approximately 23.36 miles of rail line between approximately milepost 31.20, at Gettysburg, and milepost 7.84, at Mount Holly Springs, in Adams and Cumberland Counties, PA.
The parties reported that they intended to consummate the transaction on or about February 20, 2001. The earliest the transaction could have been consummated was February 19, 2001, the effective date of the exemption (7 days after the exemption was filed).
This transaction is related to STB Finance Docket No. 34010,
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34011, must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Daniel A. LaKemper, Esq., Gettysburg & Northern Railroad Co., 1318 S. Johanson Road, Peoria, IL 61607.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Pioneer Railcorp (Pioneer), a noncarrier holding company, has filed a verified notice of exemption to continue in control of Gettysburg & Northern Railroad Co. (GNR), upon GNR's becoming a carrier.
The transaction is scheduled to be consummated on or after February 20, 2001.
This transaction is related to STB Finance Docket No. 34011,
At the time it filed the notice, Pioneer owned and controlled sixteen existing Class III shortline rail carriers: West Michigan Railroad Co., which operates in Michigan; Fort Smith Railroad Co., which operates in Arkansas; Alabama Railroad Co., which operates in Alabama; Mississippi Central Railroad Co., which operates in Mississippi and Tennessee; Alabama & Florida Railway Co., Inc., which operates in Alabama; Decatur Junction Railway Co., which operates in Illinois; Vandalia Railroad Company, which operates in Illinois; Keokuk Junction Railway Co. (KJRY),
Pioneer states that: (i) The railroads will not connect with each other or any railroad in their corporate family; (ii) the continuance-in-control is not part of a series of anticipated transactions that would connect the railroads with each other or any railroad in their corporate family; and (iii) the transaction does not involve a Class I carrier. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
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.
If the notice contains false or misleading information, the exemption is void
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.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34010, must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on William A. Mullins, Esq., Troutman Sanders LLP, 401 Ninth Street, NW., Suite 1000, Washington, DC 20004.
Board decisions and notices are available on our website at
Decided: February 20, 2001.
By the Board, David M. Konschnik, Director, Office of Proceedings.
In notice document 01-2379 beginning on page 7945 in the issue of Friday, January 26, 2001, make the following correction:
On page 7945, in the third column, in the second paragraph, beginning in the second line, remove “approved person is so ating as an options market maker pursuant to this paragraph, neither that”.
In notice document 01-3803 beginning on page 10545 in the issue of Thursday, February 15, 2001, make the following correction:
On page 10545, in the third column, in the heading, the date should read as set forth above.
Food Safety and Inspection Service, Agriculture.
Proposed rule.
The Food Safety and Inspection Service (FSIS) is proposing to amend the Federal meat and poultry inspection regulations by establishing food safety performance standards for all ready-to-eat (RTE) and all partially heat-treated meat and poultry products. The proposed performance standards set forth levels of pathogen reduction and limits on pathogen growth that official meat and poultry establishments must achieve in order to produce unadulterated products, but allow the use of customized, plant-specific processing procedures. The proposed RTE performance standards apply to all RTE meat and poultry products, which can be categorized as follows: Dried products (e.g., beef or poultry jerky); salt-cured products (e.g. country ham); fermented products (e.g., salami and Lebanon bologna); cooked and otherwise processed products (e.g., beef and chicken burritos, corned beef, pastrami, poultry rolls, and turkey franks); and thermally-processed, commercially sterile products (e.g., canned spaghetti with meat balls and canned corned beef hash).
Although FSIS routinely samples and tests some RTE products for the presence of pathogens prior to distribution, there are no specific regulatory pathogen reduction requirements for most of these products. The proposed performance standards will help ensure the safety of these products; give establishments the incentive and flexibility to adopt innovative, science-based food safety processing procedures and controls; and provide objective, measurable standards that can be verified by Agency oversight.
FSIS also is proposing environmental testing requirements intended to reduce the incidence of
Finally, FSIS is proposing to eliminate its regulations that require that both RTE and not-ready-to eat pork and products containing pork be treated to destroy
Comments must be received on or before May 29, 2001.
Submit one original and two copies of written comments to FSIS Docket #97-013P, U.S. Department of Agriculture, Food Safety and Inspection Service, Room 102, Cotton Annex, 300 12 St., SW., Washington, DC 20250-3700. All comments submitted in response to this notice will be available for public inspection in the Docket Clerk's Office between 8:30 a.m. and 4:30 p.m., Monday through Friday.
Daniel L. Engeljohn, Ph.D., Director, Regulation Development and Analysis Division, Office of Policy, Program Development, and Evaluation, Food Safety and Inspection Service, U.S. Department of Agriculture (202) 720-5627.
Under the Federal Meat Inspection Act (FMIA; 21 U.S.C. 601
RTE meat and poultry products are products that have been processed so that they may be safely consumed without further preparation by the consumer, i.e., without cooking or application of some other lethality treatment to destroy pathogens. Although many of these products, such as frozen pizzas or country hams, customarily are cooked or otherwise reprocessed by the consumer, they would be safe to eat, if unpalatable, without this further preparation.
RTE meat and poultry products can be either non-shelf-stable or shelf-stable. Non-shelf-stable, RTE products must be refrigerated until consumption to prevent the growth of both pathogenic and spoilage organisms. Shelf-stable products remain ready-to-eat under ordinary temperature and humidity conditions and, if the package integrity is maintained during holding, shipping,
For the purposes of this proposal, FSIS has divided ready-to-eat meat and poultry products into five categories, based on the type of processing they receive: dried products; salt-cured products; fermented products; cooked or otherwise processed whole and comminuted products; and thermally-processed, commercially sterile products. Many of these products can be either shelf-stable or non-shelf-stable.
FSIS is proposing to require that the processing of each of these types of products achieve specific levels of pathogen reduction, as well as control over the growth of target pathogens so that they do not exceed specific levels. These levels are the performance standards. Establishments also would be required to maintain these levels of pathogen reduction and pathogen growth in their products, under normal handling conditions, until their products reach the consumer.
FSIS already has established pathogen reduction performance standards specific to certain types of not-shelf-stable, RTE meat and poultry products. On January 6, 1999, FSIS published a final rule in the
Under the regulations in 9 CFR 417, FSIS requires each official meat and poultry establishment to develop and implement a Hazard Analysis and Critical Control Point (HACCP) system, a science-based process control system for food safety that promotes systematic prevention of biological, chemical, and physical hazards. Establishments are responsible for developing and implementing HACCP plans that incorporate the controls necessary and appropriate to produce safe meat and poultry products. HACCP is a flexible system that enables establishments to tailor their control systems to the needs of their particular plants and processes. Performance standards can be usefully and seamlessly incorporated into HACCP systems.
When developing a HACCP plan, an establishment must conduct a hazard analysis to identify and list the physical, biological, or chemical food safety hazards reasonably likely to occur in the production process for a particular product and the preventive measures necessary to control those hazards. The establishment then must identify the critical control points (CCPs) in each of its processes. A CCP is a point, step, or procedure in a food process at which control can be applied to ensure that the occurrence of a food safety hazard is prevented, eliminated, or reduced to an acceptable level. Next, the establishment must establish critical limits for the preventive measures associated with each identified CCP. A critical limit is the maximum or minimum value to which a hazard must be controlled at a CCP to prevent, eliminate, or reduce to an acceptable level the occurrence of the identified food safety hazard. Critical limits are most often based on process parameters such as temperature, time, water activity, pH, or humidity. Significantly, critical limits must be designed to satisfy relevant FSIS regulations, including performance standards.
Therefore, performance standards are an integral part of the HACCP systems in official meat and poultry establishments. HACCP provides the framework for industry to set up science-based process controls. Performance standards tell establishments what those controls need to achieve for their HACCP plans to be effective and provide a necessary measure of accountability for achieving acceptable food safety. Performance standards and HACCP provide meat and poultry establishments with the incentive and flexibility to adopt innovative, science-based processing procedures and controls; ensure safety for consumers; and provide objective, measurable standards, compliance with which can be determined through Agency inspection.
For each category of RTE product, FSIS is proposing at least one lethality performance standard. The term “lethality” refers to a required reduction in the number of specific pathogenic organisms. Further, FSIS is proposing lethality performance standards that reflect the destruction of “reference” organisms, i.e., microorganisms whose elimination or reduction most often indicates the elimination or necessary reduction of other pathogens of concern.
In this proposed rule, for all RTE products except thermally-processed, commercially sterile products, the lethality performance standards are
For all RTE meat and poultry products, other than thermally processed, commercially sterile products, FSIS is proposing to require that processing achieve one of the following probabilities that that no more than small numbers of
Although an establishment's processing would be required to achieve these probabilities that there will be few, if any, remaining pathogens in finished product, any detectable levels of viable
Alternatively, official establishments may employ processes validated to achieve specific levels of reduction of
The Agency has selected
Because destruction of reference organisms may not always result in the elimination or necessary reduction of other pathogens of concern, FSIS also is proposing to clarify in the regulations that establishments must also reduce other pathogens and their toxins or toxic metabolites to the levels necessary to prevent product adulteration. It is the responsibility of the establishment to ensure that the final product is safe. If FSIS were to find certain viable pathogens in a RTE product at levels considered dangerous, even in product otherwise free of the reference pathogen, it would consider that product to be adulterated.
FSIS is not proposing any specific lethality performance standards in addition to those that target the reference pathogen,
FSIS is proposing an additional lethality performance standard for all fermented RTE products that include any amount of beef, except thermally-processed, commercially sterile products. The Agency is proposing to require that establishments that produce these products implement processes that result in the following probabilities that, at worst, only minute amounts of
Although an establishment's processing would be required to achieve these probabilities of remaining pathogens in finished product, any detectable levels of viable
FSIS also is proposing that, alternatively, establishments may employ processes validated to achieve a 5.0-log
The Agency is proposing this lethality performance standard in addition to the
Also, the FSIS Office of Public Health and Science (OPHS) recently sponsored a study entitled “Risk Assessment of the Public Health Impact of
Cattle and sheep may carry
FSIS is not proposing this performance standard for fermented poultry products that do not contain beef.
FSIS is proposing performance standards for thermally-processed, commercially sterile meat and poultry products that are similar to these lethality standards but derived somewhat differently. See the section “Thermally-Processed Commercially Sterile Products” for a complete discussion.
To meet the proposed lethality performance standards, establishments would need to employ processes validated either to achieve the proposed decimal reductions of pathogens throughout a finished product or that result in one of the stated probabilities that only small numbers of reference organisms would remain viable in a worst case finished product. To develop criteria for evaluating the effectiveness of processes that achieve one of the proposed probabilities, it will be necessary for the processor to define, using associated statistical criteria, the expected characteristics of the treated product after processing, assuming certain product conditions before processing. For example, an establishment would need to specify that the probability of there being more than
By codifying acceptable probabilities of remaining reference organisms in finished product, FSIS would be allowing establishments to employ processes that achieve varying levels of lethality, therefore providing processing flexibility while ensuring product safety. By also proposing specific lethality performance standards in the regulations, FSIS provides clear performance standards to establishments that may not have the resources to derive an alternative lethality or the ability to demonstrate that their process achieves a specific probability that no more than a certain number of reference organisms might exist in the finished product.
As explained above, FSIS has tentatively determined that processes that achieve the proposed lethality performance standards will process hypothetical, worst case raw product into finished, RTE product that poses no health risk to the consumer and is thus safe. In reaching this tentative conclusion, the Agency made conservative assumptions concerning the actual lethality achieved throughout the product. The Agency acknowledges that it might be possible for producers to demonstrate scientifically that these lethality assumptions or the Agency's defined worst case would not be applicable for their particular processing situation. An establishment could then design a process with lethality values that are different from those provided in this rule, but that would still yield a product that meets the final conditions equivalent to those achieved by the specific levels of pathogen reduction contained in the lethality performance standards.
An establishment developing an alternative lethality treatment or treatments and assuming an initial product condition other than the worst case would need to include in its HACCP plan scientific data and statistical validation that would justify the assumed initial conditions and verify that these would remain constant over time. For example, an establishment may be able to demonstrate that the number of
Generally, an establishment will need to demonstrate in its HACCP plan how its lethality treatment results in a finished product equivalent to that provided by compliance with the probabilities set out in this proposal. The establishment will need to demonstrate the relationships between the lethality treatments and the specific characteristics of a product, such as physical and chemical properties. This demonstration could involve the use of heat transfer equations and should account for all variables that would affect lethality (e.g., size of product, humidity, density, thermal conductivity, specific heat, shape, product composition, and strain of organism).
Finally, establishments employing alternative lethalities will need to demonstrate, within their HACCP plans, that they have validated their processes as being effective in ensuring product safety. Section 417.4(a)(1) of the HACCP regulations sets forth the “initial validation” requirements for establishments under HACCP:
Upon completion of the hazard analysis and development of the HACCP plan, the establishment shall conduct activities designed to determine that the HACCP plan is functioning as intended. During this HACCP plan validation period, the establishment shall repeatedly test the adequacy of the CCPs, critical limits, monitoring and record keeping procedures, and corrective actions set forth in the HACCP plan. Validation also encompasses reviews of the records themselves, routinely generated by the HACCP system, in the context of other validation activities.
FSIS explains the derivation of the proposed lethality performance standards in the following section. A technical paper (Ref. 3, available for viewing by the public in the FSIS Docket Room and on the Internet.
Notably, with any final action, FSIS will provide compliance guides that give explicit processing instructions and time/temperature combinations proven to achieve the proposed decimal reductions of pathogens. Small and other establishments that do not have the technical resources to demonstrate that they are meeting the proposed
To derive the proposed lethality performance standards for
The
Using the national baseline survey information to establish the levels of selected bacteria of public health concern (e.g.,
The Agency used the most probable number (MPN) method for measuring levels of
For
To account for measurement variability, the Agency calculated the 97.5 percent upper confidence limit associated with the measured MPN value (Ref. 3, available for viewing by the public in the FSIS Docket Room). FSIS did not use the average level of
The Agency used the high MPN value for ground chicken (the highest MPN value measured for poultry products) from the FSIS national baseline surveys
Alternatively, an establishment may use a processing procedure validated to achieve the probabilities in Table 1 above that no more than specific amounts of
To determine the proposed lethality for RTE meat products that do not contain poultry, other than thermally processed, commercially sterile products, the Agency used the high MPN value for whole beef (the highest MPN value measured for all meat products): 240 MPN/cm
The 97.5 percent upper confidence limit, assuming a 30 percent recovery, is 4100 cells/g. Because samples for the whole product surveys consisted of pooled tissue from 3 different carcass sections, and the prevalence was low (less than 3 percent), the Agency assumed that the high value used for determining the worst case product is 3 times that of the measured MPN value. Thus, the 97.5 percent upper confidence limit is multiplied by 3 and then multiplied by 143 grams. The resulting number of organisms for the worst case product is approximately 6.2-log
After a 1994 outbreak of illnesses caused by
Presented in chapter 5 of the OPHS risk assessment are results of a derivation of the possible number of
To derive worst case levels for
The samples used for determining
As described above for deriving the worst case levels for
The above derivation indicates that the “worst case” level of 4.4 log
To provide the same margin of safety as provided for with
FSIS also examined measured levels of
The derivation for the proposed lethality of
Consequently, FSIS may need to require that processors of fermented products containing beef achieve a higher probability of no surviving cells of
Since the number of sample results from which the worst case was derived is small, there is not a high degree of confidence in the magnitude of the higher levels of
FSIS has not specified the probability of worst case product actually occurring since the worst case was a hypothetical construct based, in part, on a high confidence level of the maximum observed level of microorganisms in a statistically designed national baseline. In addition, FSIS made additional assumptions that FSIS believes to be conservative. All the assumptions regarding the derivation of the worst case are contained in the technical paper (Ref. 3, available in the FSIS Docket Room and at the FSIS web page,
An explanation of how the Agency established the proposed reference organisms for each category of RTE product, other than thermally processed, commercially sterile products, follows.
The pathogens associated with dried (but not fermented) RTE meat and poultry products are
J. A. Harrison and M. A. Harrison surface-inoculated one-third of a beef jerky strip (15 × 1.5 × 1.5 cm.) with 0.1 ml of a 10
These studies show that the time and temperature of drying and other variables, such as the use of beef strips or formed ground beef jerky, the addition of curing agents, and preheating before drying, will affect the reduction of pathogens. Lethality of pathogens in dried products is achieved by dehydration to a water activity (a
In 1995, a salmonellosis outbreak was associated with commercially produced beef jerky linked to three
The MMWR set out the recommendations of CDC for the prevention of bacterial growth in jerky production. CDC recommended rapid drying at high temperatures (i.e., initial drying temperature >155 °F (68.3 °C) for 4 hours, then >140 °F (60 °C) for an additional 4 hours), and decreased water activity (
If a process used to produce dried products achieves the proposed reduction in the number of
The microbiological stability (the lethality during processing) of salt-cured meats, such as salt-cured hams, is dependent on their low water activity, the presence of nitrite, and smoke applied between the salting and drying processes (Ref. 13, available for viewing by the public in the FSIS Docket Room). Lethality of pathogens in the salt-cured products is attained by low temperature salting and drying. Both of these processes reduce the water activity to levels that inhibit the growth of pathogens. The addition of nitrates or nitrites and smoke enhance the inhibitive effect of the process.
There were two salmonellosis outbreaks linked to salt-cured hams: Serrano variety cured ham in Spain and prosciutto ham in Italy (Refs. 14 and 15, available for viewing by the public in the FSIS Docket Room). Low levels of salt and relatively high water levels in some parts of the Serrano variety cured ham were judged to be the most probable cause of
In late 1994, 23 cases of illness caused by the pathogen
After the 1994 outbreak of illnesses caused by
As explained previously, the 5-log
On August 21, 1995, FSIS wrote to establishments producing fermented sausages and strongly encouraged that they implement one of the validated processing options contained in the document to ensure the processing used achieves at least a 5-log
As discussed previously, in support of rulemaking, OPHS has sponsored a risk assessment of
In addition, because of the incidence of foodborne illness linked to
Under this proposal, processing of fermented products that contain beef would be required to meet lethality performance standards for both
The Agency tests fermented sausage products for
A suboptimally active fermentation culture or an initial large number of
In a Lebanon bologna process, a 3- to 4-log
Various studies have shown that fermentation and drying resulted in about a 2-log
In one of the few studies that compared the combined effect of fermentation and drying on both
As stated above, FSIS already has made final lethality performance standards for certain RTE meat products, including RTE cooked beef, corned beef, and roast beef. In this document, FSIS is proposing to extend these performance standards to all other cooked and otherwise processed (e.g., cured) meat products. Under this proposal, establishments would be required to employ processing validated to achieve specific probabilities (Table 1) that only small numbers of
As with cooked beef, corned beef, and roast beef, the primary pathogenic microorganism of concern in these other RTE meat products has been
In the proposal preceding the January 1999 final rule that established performance standards for certain RTE meat and poultry products, FSIS identified
However, FSIS did not make final the lethality performance standards proposed for RTE comminuted meat patty products. In the course of developing the final regulation, FSIS determined that a higher lethality was likely necessary to produce RTE, uncured meat patties that would pose no health risk to consumers. The Agency could find no conclusive information demonstrating that the distributions of bacteria on ground and whole product produced under normal manufacturing conditions would present comparatively higher or lower risks to consumers. Furthermore, most, if not all, RTE meat and poultry products will be manufactured from the same supply of raw product examined in the FSIS national baseline surveys. So, using performance standards that would render any hypothetical, worst case raw product safe should be applicable to all categories of RTE meat and poultry products.
Consequently, FSIS is proposing to require that establishments achieve a 6.5-log
Again, FSIS recently made final lethality performance standards for all fully cooked, RTE poultry products, such as poultry rolls. In this document, FSIS is proposing to extend these performance standards to all other cooked and otherwise processed (e.g., cured) RTE poultry products. Under this proposal, establishments would be required to employ processing validated to achieve specific probabilities that only small numbers of
The primary pathogenic microorganism of concern in these other
In addition to lethality standards, FSIS is proposing that processing used to produce all RTE products, other than thermally processed, commercially sterile products, and processing used to produce partially heat-treated products, meet stabilization performance standards. The proposed stabilization standards require that establishments control their production processes to prevent the multiplication of spore-forming microorganisms. Stabilization is typically achieved through cooling a product after cooking. Specifically, the Agency is proposing to require that establishments producing these products ensure that there is no multiplication of toxigenic microorganisms, such as
FSIS is proposing this performance standard because the means applied to products to bring about the lethality of certain microorganisms in RTE products, particularly heat treatment, can create a model environment for the multiplication of spore-forming bacteria. The processing for many RTE products includes a heat treatment. Spores of
Similarly, during processing, partially-heat treated meat and poultry products are partially cooked and then cooled, which creates a model environment for the growth of
The stabilization performance standards are identical to the standards made final in the January 1999 performance standard rulemaking, cited above, for RTE products and partially-cooked poultry and meat patties. The purpose for imposing the no (zero) multiplication of
The Agency requests comments on whether the
It is possible that there can be a small amount of
It is possible that compliance with the proposed zero growth standard for
The proposed stabilization performance standard provides that any more than 1-log
An academic researcher recently suggested to the Agency that the stabilization performance standard for
Each year, according to the FDA-FSIS draft risk assessment on
Since 1987, FSIS has conducted a microbiological testing program in which the Agency randomly samples, in-plant, RTE meat and poultry products produced in federally inspected establishments for
During the late 1980's,
In the fall of 1998, state health departments and the CDC began investigating an increased number of reported cases of illness due to
With this outbreak in mind, on May 7, 1999, the FDA, in consultation with FSIS, announced plans to conduct a risk assessment to determine the prevalence and extent of exposure of consumers to foodborne
In this document, FSIS is proposing regulatory requirements and considering other options to address the relatively high risk ranking of these RTE meat and poultry products. Significantly, the draft risk assessment was designed to estimate the predicted relative risk of serious illness and death that may be associated with consumption of different types of ready-to-eat foods. The draft risk assessment document, unlike more complete risk assessments, did not attempt to account for the level or sources of contamination of ready-to-eat meat and poultry products in a farm-to-table approach such as during processing in Federally inspected facilities. Rather, the draft risk assessment accounted for the retail foodborne exposure to human listeriosis (i.e., after the ready-to-eat product is out of the control of the Federal establishment). The data included in the draft risk assessment were gleaned from both international and domestic sources, with FSIS providing a substantial amount of data from its various microbiological programs associated with Federally inspected meat and poultry. The draft risk assessment was designed to address data only associated with listeriosis, providing a distinction between foodborne illness associated with mild, flu-like symptoms (referred to as listerial gastroenteritis) and severe and life-threatening outcomes (i.e., listeriosis). For this reason, some Federally inspected meat and poultry products were not addressed in the draft risk assessment (e.g., canned meat and poultry and partially- and fully-cooked meat patties). Except for the canned products and the meat patties, FSIS believes that the risk assessment addresses the remaining meat and poultry products contained in this proposed rule (i.e., frankfurters, dry/semi-dry fermented sausages, deli meats, and pate
In the risk assessment, FDA and FSIS note that although pasteurization or cooking by an establishment will kill
FSIS is proposing to require that all establishments that produce RTE meat and poultry products conduct environmental testing of food-contact surfaces for
After an establishment finds one of its food contact surfaces to be positive for
Establishments that have identified
FSIS believes that
FSIS acknowledges, however, that there may be certain processing environments in which
Notably, Tompkin, et al., have recommended plant-wide environmental testing that
* * * should focus on a non-pathogenic indicator such as
(Ref. 29, available for viewing by the public in the FSIS Docket Room)
FSIS agrees, although the Agency is proposing to require only the testing of food contact surfaces. Were an establishment to find
FSIS is proposing to require that establishments without HACCP controls for
• If the plant is large, at least four tests, per line, per month;
• If the plant is small, at least two tests, per line, per month;
• If the plant is very small, at least one test, per line, per month;
FSIS is proposing to employ the same Small Business Administration (SBA) size standards that it used to determine the implementation dates for its HACCP/Pathogen reduction final rule. Large establishments would be defined as all establishments with 500 or more employees. Small establishments would be defined as all establishments with 10 or more employees but fewer than 500. Very small establishments would be defined as all establishments with fewer than 10 employees or annual sales of less than $2.5 million.
These frequencies ensure a very minimal amount of testing and, because they are progressive, mitigate some of the economic impact on small businesses. FSIS has not been able to correlate risk of product contamination with production volume or establishment size. However, assuming that large establishments produce a greater volume of product than do small establishments, and that a large insanitary establishment would be more likely to contaminate more product and thus pose more risk to the public health, FSIS is proposing to require large plants to test more often. Because these frequencies are not based on research but represent what the Agency believes to be minimal levels, FSIS requests comment on these proposed testing frequencies, their efficacy in preventing product adulteration, and the costs to industry. FSIS also specifically solicits information the current state of knowledge about the relationship between
FSIS is proposing to require that establishments take certain actions after food contact surfaces test positive for
The presence of
FSIS requests comments on the proposed testing provisions and any data that would support the approach proposed. FSIS requests comments concerning whether
If a sampled lot is found to be positive for
The two provisions for
With any final action FSIS will publish guidance to establishments regarding testing frequencies and methodologies and appropriate corrective actions following food-contact surface positives. FSIS also will publish guidance regarding available listericidal interventions establishments can implement as CCPs. FSIS expects to make draft guidance documents available after publication of this proposed rule and as information becomes available in order to provide establishments with appropriate guidance regarding sampling and testing to verify sanitation procedures. FSIS will consider comments on this draft guidance in developing any final regulations. These draft guidance materials will be clearly identified as guidance materials and not as regulatory requirements. FSIS expects to post these guidance materials to the FSIS web page
Eventually, FDA and FSIS may allow establishments to treat RTE products with ionizing radiation. If applied within a HACCP system, irradiation could eliminate
Finally, FSIS notes that on January 13, 2000, it received a petition from the Center for Science in the Public Interest (CSPI) requesting that FSIS require all establishments that produce RTE meat and poultry products to conduct environmental testing for
In the petition discussed above, CSPI also requested that FSIS require establishments that have not incorporated microbial testing for
FSIS considered, but did not propose in this document, the option of requiring that the labeling of certain RTE meat and poultry products state the product's shelf-life, and that shelf-life be based on product safety (“use-by” date labeling). If after processing, a RTE product that could support growth of
FSIS is not proposing to require “use-by” dates on the labels of any RTE products at this time because further information regarding the potential effects of use-by date labeling is needed. For instance, there is sparse information on current consumer understanding of use-by date labeling, the likelihood that consumer practices will change, and on the effect of changes in consumer behavior on listeriosis cases. Similarly, FSIS currently does not possess all the data necessary to assess the reduction in risk that will occur from this change. Also, FSIS does not have information concerning how use-by date labeling would affect the production and shipment patterns of labeled ready-to-eat meat and poultry products and the structure of the industry. FSIS requests comments on all of these issues and on the feasibility of requiring “use-by” date labeling on RTE meat and poultry products. Significantly, FDA and FSIS will present “use-by” date labeling issues to NACMCF for their review. FSIS has conducted a more thorough analysis of use-by date labeling in Appendix 1, Compliance with Executive Order 12866, under the “Alternatives” section.
Related to “use-by” date labeling is the issue of consumer preparation of hotdogs and similar RTE foods. In the draft risk assessment, FSIS and FDA state that “the factor that has the greatest effect on the predicted health impact of frankfurters is the extent of post-retail reheating by the consumer” (Ref. 28 (p. 161); Ref. 33; Ref 34; all available in the FSIS Docket Room). Obviously, testing for
Finally, as discussed below, FSIS is proposing that the labeling of RTE products state that the product requires refrigeration after opening, as applicable. Current regulations require that labels of perishable products include such instructions, but the Agency is proposing to expand the required label instructions to include RTE shelf-stable products that require refrigeration after opening. FSIS also considered proposing to change the “keep refrigerated” and the “refrigerate after opening” statements (see proposed in §§ 317.2(k) and 381.125(a)) to reflect the guidance developed by FDA on February 24, 1997 (62 FR 8248). In the guidance, these statements were modified to read “Important Must Be Kept Refrigerated to Maintain Safety” or “Important Must Be Refrigerated After Opening To Maintain Safety.” FDA provided this guidance in response to the recommendations from the NACMCF, the National Food Processors Association, the Association of Food and Drug Officials, and the CDC regarding the labeling of foods that need refrigeration. FDA stated in this policy document that “[t]his guidance, which represents FDA's policy on adequate safe handling instructions for food, should reduce the likelihood of temperature abuse of certain foods by consumers, and it is intended to reduce the potential for foodborne illness and death.” FSIS is not proposing to require these provisions because further information regarding the potential effects of this labeling is needed. FSIS requests comment on the statements and their appropriateness for RTE meat and poultry products which are not shelf stable.
Thermally-processed, commercially sterile meat and poultry products generally have a water activity above 0.85 and have received a thermal process either before or after being packed in a hermetically sealed container. They are typically canned, although other types of packaging can be used. The thermal process renders the product shelf-stable and commercially sterile, that is, free of microorganisms capable of growing in the product in nonrefrigerated conditions (temperatures over 50 °F or 10 °C), under which the product will be held during distribution and storage, until consumed.
Sections 318.300 to 318.311 and 381.300 to 381.311 of the regulations prescribe the exact means by which official establishments must produce thermally processed, commercially sterile meat and poultry products. These regulations include detailed requirements regarding containers and container closures, equipment specifications and operations, measurements and instrument calibration, recordkeeping and record review, corrective actions in the case of processing deviations, finished product inspection, personnel training, and product recalls. They also require that official establishments implement process schedules validated to render treated meat and poultry commercially sterile and shelf-stable. These process schedules must be developed or validated by processing authorities, persons or organizations with expert knowledge of thermal processing requirements for foods packaged in hermetically sealed containers.
Processors that produce thermally processed, commercially sterile meat and poultry products also must meet all other regulations applicable to meat and poultry establishments, such as sanitation and HACCP requirements. Significantly, however, under § 417.2(b)(3), FSIS exempts producers of thermally processed, commercially sterile products from addressing in their HACCP plans “food safety hazards associated with microbiological contamination.” FSIS granted this exemption in response to comment on the proposal to require HACCP systems:
FSIS agrees that the microbial hazards associated with canned meat and poultry products are eliminated by complying with the regulations in 9 CFR Secs. 318.300-311 and 381.300-311. These regulations are based on HACCP concepts and provide for the analysis of thermal processing systems and controls to exclude microbial hazards. Accordingly, the final rule provides that HACCP plans for thermally processed/commercially sterile products do not have to address the food safety hazards associated with microbiological contamination if the product is produced in accordance with the canning regulations. However, because the current regulations exclusively address microbial hazards, processors of canned meat, meat food and poultry products must develop and implement HACCP plans to address chemical and physical hazards that are reasonably likely to occur.
The regulations governing the processing of thermally processed, commercially sterile meat and poultry products are, in a sense, a prescribed HACCP system that official establishments must implement along with controls to address other hazards not addressed in those regulations. Maintaining this prescriptive regulatory approach to a single category of meat and poultry products, however, is inconsistent with FSIS's other regulatory initiatives intended to grant industry maximum flexibility to innovate in processing, while clarifying industry's responsibility and accountability for the safety of meat and poultry products. Therefore, FSIS is proposing to replace the prescriptive regulations governing thermally processed, commercially sterile products with performance standards. FSIS is also proposing to remove §§ 320.2(b)(6) and 381.175(b)(3) because they refer to recordkeeping requirements in the canning regulations that FSIS is proposing to eliminate. FSIS has discussed this proposed action in previous documents, including the final rule that established the HACCP requirements:
The current canning regulations contain numerous prescriptive features, including extensive FSIS involvement in the decision making process, that are inconsistent with the philosophy underlying HACCP. In the advance notice of proposed rulemaking “FSIS Agenda for Change: Regulatory Review” (60 FR 67469; December 29, 1995), FSIS stated its intention to convert the canning regulations to performance standards, which are more consistent with HACCP.
FSIS is proposing lethality performance standards to ensure the elimination or control of the pathogen
FSIS is proposing different lethality performance standards, depending on whether the product is a low-acid product or a product in which pathogen growth is controlled by acidification or factors other than the thermal process. A low-acid, thermally processed, commercially sterile product is a canned or other hermetically sealed product in which any component has a pH value above 4.6 and a water activity above 0.85. Such products include canned poultry and canned uncured meat products, such as beef stew and chili con carne, and certain canned cured meats, such as vienna sausages and corned beef. An acidified thermally processed, commercially sterile product is a canned product that has been formulated or treated so that every component of the finished product has a pH of 4.6 or lower, usually within 24 hours after the completion of the thermal process, but sometimes longer. Such products include spaghetti sauce with meat and meat with tomato sauce. In addition, there are some canned, hermetically sealed products in which pathogen growth is controlled by factors other than the thermal process, such as a heat treatment in combination with salt or nitrite (e.g., canned luncheon meat).
FSIS is proposing to require that an establishment's process for producing a low-acid canned product result in a probability of 10
The 12-D concept arose from studies on the thermal resistance of
These products undergo a botulinal cook to achieve an acceptable safety level. It should be noted that the intensity of the process is not related to the actual number of
The level of safety achieved by a 12-D process in low-acid canned products is understood by thermal processing experts to be a 10
FSIS is proposing to require that the processing of acidified low-acid products and of some cured products and other canned products in which pathogen growth is controlled by factors other than the thermal process, prevent multiplication of
Acidified low-acid meat and poultry products are generally acidified by ingredients, such as tomato sauce, or by additives, such as glucono-delta-lactone, which increase the acidity (i.e., lower the pH) of the products. The acidity of these products (pH at or below 4.6) is sufficient to prevent the germination of
Other thermally processed, commercially sterile products can be rendered commercially sterile by a heat treatment in combination with other factors. For example, the shelf-stability of canned luncheon meat is a combined effect of heat treatment, the presence of nitrite and salt, and a low pre-processing level of
FSIS also is proposing a specific requirement that all thermally processed, commercially sterile products, in fact, be commercially sterile and hermetically sealed. This requirement is consistent with the existing shelf-stability/commercial sterility definitions in § 318.300(u) and 381.300(u) and the FDA regulations for commercial sterility of canned products contained in 21 CFR 113.3(e). A commercial sterility requirement is necessary to protect against both food-safety-related and non-food-safety-related forms of contamination.
Product that has undergone more processing than necessary to protect health, but less than necessary for commercial sterility, is safe, but it may not be stable. The stability of the product is usually determined by incubating the product for a certain time at a given temperature (e.g., 10 days at 95±5°F), then sorting 100 percent of the product to locate any swelling or abnormal-appearing containers. Products that are shown to have undergone less processing than necessary to protect health are potentially hazardous and are removed from commerce.
The proposed commercial sterility requirement would mean that the process for a canned product, in addition to reducing or inactivating
FSIS considers a commercial sterility standard to be appropriate, among other reasons, because the Agency is obligated under the statutes it enforces to administer programs aimed at preventing all forms of adulteration of meat and poultry products. The Agency's current thermal processing regulations are intended to ensure that canned and other thermally processed products are not adulterated.
Hermetic sealing of a container protects the product and prevents microorganisms or other potential contaminants from entering the container. If the container seal is inadequate, the product may no longer be microbiologically stable.
Several industry groups and other interested parties have expressed reservations concerning any replacement of the existing regulations for thermally processed, commercially sterile products with performance standards. The complexity of the canning process, as well as the virulence of
FSIS also is proposing to remove the provisions for the prescribed treatment of pork and of products containing pork to destroy
With regard to heat-treated, RTE products containing pork, the required treatment to destroy
Several products that are not RTE also must be treated to destroy
The Agency prescribes
FSIS is examining the need for future rulemaking to address these pork products and other similar non-pork products that may be eaten without adequate cooking because of their appearance. The Agency is considering requiring conspicuous labeling that would identify these products as not-RTE and provide more specific instruction to consumers regarding safe handling and preparation.
The requirements in § 318.10 for treating pork products that may contain
For example, other organisms may be biological hazards in pork, such as
All establishments producing products containing pork should assess whether
Establishments that produce pork products should consider whether their suppliers have taken measures to prevent
When pigs are submitted for slaughter as
The pilot program began in August 2000 with the training of qualified accredited veterinarians and enrollment of pork producers. After the pilot is completed (in approximately one and a half years), the Certification program will be made available nationally to all pork producers and processors.
Finally, FSIS is also proposing to remove other referential and related provisions concerning required treatment to eliminate
FSIS is proposing that the labeling of RTE products state that the product requires refrigeration after opening, as applicable. Current regulations require that labels of perishable products include such instructions, but the Agency is proposing to expand the required label instructions to include RTE shelf-stable products that require refrigeration after opening.
Also, FSIS is proposing to remove the regulations under § 318.17, 318.23, and 381.150 that require establishments not operating under HACCP to develop process schedules for the production of roast beef, cooked beef, corned beef; fully-cooked, partially-cooked, and char-marked uncured meat patties; and fully-cooked and partially-cooked poultry products, respectively. Similarly, FSIS is proposing to remove the definitions for “process schedule” and “process authority” in Parts 301 and 381.1. These regulations were established by the January 1999 rulemaking that also established the pathogen reduction performance standards for these products. At that time, certain official meat and poultry establishments were not yet required to develop and implement HACCP systems. Therefore, with these process schedule requirements, FSIS intended to ensure that all establishments that developed customized processing systems to meet the performance standards also would develop a validated system of process control, similar to HACCP. As of January 25, 2000, all official establishments are required to develop and implement HACCP systems, so these process schedule requirements are no longer necessary.
FSIS has identified additional needs for scientific information and analytical data that if addressed could strengthen the scientific foundation of the rule. It is extremely important that the regulations be based on sound science and common sense measures that involve significant public comment. FSIS requests the specific information identified in this document. In the section, the major data needs are summarized.
In order to facilitate public input and gather additional information during the comment period for this proposed rulemaking, FSIS plans to hold public meetings and scientific conferences to discuss the proposed provisions, especially those that would require certain establishments to conduct environmental testing for
In their recent draft risk assessment regarding
FSIS is confident that testing of food contact surfaces to verify that an establishment's Sanitation SOPs are eliminating
FSIS has proposed required frequencies of testing that ensure very minimal levels of regular testing based on establishment size. FSIS is aware of no research linking volume of production with the likelihood of product adulteration by
FSIS also requests data regarding the costs and benefits of the proposed testing provisions, as well as other testing protocols. Considering the number of listeriosis cases and deaths probably attributable to the consumption of adulterated RTE meat and poultry products (see Appendix 1 for further discussion), FSIS believes the public health benefits that would result from mandatory environmental testing could easily exceed the costs of the testing. But, FSIS seeks any data correlating testing, reductions in establishment contamination, and consequent reductions in listeriosis that could be used to improve the Agency's cost/benefit analysis.
FSIS is proposing lethality performance standards for the pathogens
It is possible that better data is available for deriving hypothetical worst case products and corresponding performance standards. FSIS is unaware of any human health risk assessments that could be used to correlate changes in the performance standards with changes in public health benefits. Higher or lower lethality performance standards may be necessary in all or specific processing contexts. FSIS specifically requests any data that would support requiring different lethality performance standards to achieve certain public health benefits.
The lethality performance standards for
Also under the proposal, all RTE meat and poultry products, other than thermally processed, commercially sterile products, and all partially heat-treated products, must be processed so as to prevent multiplication of toxigenic microorganisms such as
Researchers have suggested to FSIS that there may be some inevitable growth of
In summary, FSIS is proposing the following requirements governing the production of all RTE and partially heat-treated meat and poultry products:
• All RTE meat and poultry products, except for thermally-processed, commercially sterile products, must be processed to achieve a lethality performance standard that indicates a specific reduction in
• All fermented RTE meat and poultry products that contain any amount of beef, except for thermally-processed, commercially sterile products, must be processed to achieve an additional lethality performance standard that indicates a specific reduction in
• All RTE meat and poultry products, other than thermally processed, commercially sterile products, and all partially heat-treated products, must be processed so as to prevent multiplication of toxigenic microorganisms such as
• The processing of RTE meat and poultry products must be validated to achieve the reduction of other pathogens and their toxins or toxic metabolites necessary to prevent product adulteration. Further, processing must be validated to maintain the lethality and stabilization performance standards throughout product shelf-life under the conditions in which the food is stored, distributed, and held.
• All thermally-processed, commercially sterile meat and poultry products must be processed to either eliminate or control the growth of
• Each establishment that produces RTE meat and poultry products must test food contact surfaces for
• The regulations in § 318.10 that require the elimination of
This proposed action has been reviewed for compliance with Executive Order 12866. Because this proposed action has been determined to be economically significant for purposes of Executive Order 12866, the Office of Management and Budget has reviewed it.
FSIS is proposing to amend the Federal meat and poultry inspection regulations by establishing pathogen reduction performance standards for all RTE and all partially heat-treated meat and poultry products. FSIS also is proposing to require establishments that produce RTE meat and poultry products to conduct environmental testing for
This proposed action is compelled by recent outbreaks of foodborne illness related to the consumption of adulterated RTE meat and poultry products, as well as the need to provide objective, measurable pathogen reduction standards that can be met by official establishments and compliance with which can be established through Agency inspection. Although FSIS routinely samples and tests some RTE products for the presence of pathogens prior to distribution, there are no specific regulatory pathogen reduction requirements for most of these products. And in regard to thermally processed, commercially sterile (most often canned) meat and poultry products, the proposed standards represent regulatory reform; they replace lengthy, prescriptive regulations with performance standards that provide the
Appendix 1, published in this issue of the
In short, if the proposed regulations could achieve a complete elimination of listeriosis that results from the consumption of contaminated RTE meat and poultry products, the expected annual reduction in listeriosis cases and deaths would range from 1660 cases and 331 deaths (based the draft FDA-FSIS risk assessment and on 100 percent program effectiveness) to 167 cases and 35 deaths (based on two independent CDC studies and 100 percent program effectiveness). FSIS is uncertain about the effectiveness of its proposed testing requirements in reducing listeriosis and therefore unable to adequately quantify a range of benefits. FSIS intends to use comments and data received during the comment period and at the planned technical conference to refine the proposed regulations and to better estimate benefits. It is of course unlikely that the proposed regulations could achieve complete elimination of the listeriosis that results from contaminated meat and poultry, but FSIS believes that the benefits of the regulations would exceed the total costs of all of the proposed provisions.
The two main provisions of the proposed rule are: (1) Mandatory in-plant testing for
The Administrator has determined that for the purposes of the Regulatory Flexibility Act (5 U.S.C. 601-612), this proposed rule will have a significant economic impact on a substantial number of small entities. As discussed in the regulatory impact analysis, FSIS estimates that the proposed performance standards may cost small and very small producers of jerky, hotdogs, luncheon meat and meat patties approximately $5 million annually, about 71 percent of the total costs of compliance associated with these provisions.
FSIS considered not proposing to extend the performance standards to these products because of the possible disproportionate economic impact on small business. However, taking this alternative would result in a significant inconsistency in the Agency's public health policy. Most, if not all, RTE meat and poultry products are manufactured from the same supply of raw product examined in the FSIS national baseline surveys. So performance standards derived from this baseline should be applicable to all categories of RTE meat and poultry products, regardless of how they are processed. That is, all RTE products should be required to meet the same standard of safety.
The “Small Business Regulatory Enforcement Fairness Act of 1996” (P. L. 104-121) requires, among other things, that
For each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis under section 604 of title 5, United States Code, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides”. The guides shall explain the actions a small entity is required to take to comply with a rule or group of rules. The agency shall, in its sole discretion, taking into account the subject matter of the rule and the language of relevant statutes, ensure that the guide is written using sufficiently plain language likely to be understood by affected small entities. Agencies may prepare separate guides covering groups or classes of similarly affected small entities, and may cooperate with associations of small entities to develop and distribute such guides.
With any final action that stems from this proposed rulemaking, FSIS will publish compliance guides for small businesses. The guides will include detailed instructions on how to comply with the proposed performance standards for all categories of RTE meat and poultry products. Establishments that wish to use the guides may incorporate them into their HACCP plans. Because FSIS will base its guidance on existing research and industry practices known to be effective, the Agency also will consider the processing instructions to be already validated. That is, establishment may follow the guidance without contracting for or conducting additional validation. FSIS believes compliance guides would significantly reduce the economic burden the proposed regulations could place on small businesses.
FSIS is examining other options to minimize the potential negative economic effects of these proposed regulations on small businesses, including staggering the effective dates for any final regulations, in consideration of establishment size. FSIS requests comment on other measures it could take to mitigate the economic impact of any final regulations.
FSIS also estimates that the direct cost of the mandatory environmental testing provision of the proposed rule will entirely fall on small and very small producers. Based on the preliminary analysis in Appendix 1, FSIS expects that they will incur approximately $1.75 million annually (See Appendix 1 for details on the cost estimates).
The 1997 Census of Manufacturers identifies 1630 establishments which could potentially be affected by the proposed rule. In Appendix 1 and for this analysis, these establishments are broken down into four broad groups that FSIS differentiated by the estimated costs of compliance with all of the proposed provisions. These groups are further broken down into sub-groups where appropriate. The main product groups (and sub-groups, if appropriate) are:
•
•
•
•
Almost 60 percent of all the establishments that could be potentially affected by the proposed rule are classified as small (employing between 10 and 500 employees) (Table 3). Another 32 percent fall into the very small establishment category of employing fewer than 10 employees while the remaining 9 percent are classified as large (employing more than 500 employees).
The number of establishments, the types of products shipped, and value of shipments of these groups are summarized below in Table 3.
Most product groups and sub-groups exhibit a population distribution in which about 33% of firms are very small, 60% are small, and less than 10% are large. However, three product groups differ markedly: Group II, Sub-groups 2 and 3 and Group IV (rows 11, 12, and 15 in Table 3). Large establishments play an important role in Group II, Sub-group 2 (poultry processors of miscellaneous RTE products containing meat and poultry) making up 37 percent of all their numbers. As a consequence, the percentage contributions to their total numbers for both small and very small establishments are much lower than the all-group averages. Canners (Group IV) also exhibit a much different population distribution than the average: they are dominated by small establishments, which lowers the presence of very small canning establishments. Finally, the percentage of very small combination slaughter/meat processing establishments in Group II, Sub-group 3 have almost as high a percentage of establishments as do the small establishments for all groups (55 percent of this sub-group consists of very small establishments while the percentage of small establishments drop to 48 percent).
The total first year economic impacts (as estimated in Appendix 1) were broken down by product group and size. The percentages reported in Table 4 represent the impact on each product group as a percentage of the total industry-wide impact. The distribution of the economic impacts is based on assumptions, explained in detail in Appendix 1, concerning which groups of industry will be affected by the proposed performance standards, which will be affected by the proposed
The establishment data from Table 3 was broken down in a similar way as Table 4 above. That is, they were broken down by very small, small, and large size categories as a percent of the total number of establishments. This establishment population distribution (as reported in columns 3, 5, 7, and 9 in Table 5) was then combined with the distribution of the first-year industry-wide direct cost impacts from Table 4 (as reported in columns 4, 6, 8, and 10 in Table 5). In effect, Table 5 pairs each product group's percent of total establishments with its share of total first-year industry-wide economic impact. For example, the bottom line in Table 5 reveals that very small establishments comprise 32 percent of all RTE establishments and absorbs 15.4 percent of total first-year industry-wide economic impact (as was reported in Table 4).
Table 5 reveals that large establishments, on an establishment basis, bear a disproportionate share of the total regulatory cost. That is, they constitute less than 10 percent of the establishments and yet absorb over 31.2 percent of the first year total direct cost impacts. Most of these impacts are incurred by large Group I establishments, mainly to satisfy the performance standard requirements of the proposed rule.
FSIS realizes that the proposed rule has a unique impact on each establishment. Some establishments are already meeting the performance standards and some probably not; some establishments are conducting environmental tests for
For the 28 very small, 44 small, and 3 large establishments in Group I potentially affected by the proposed rule, performance standards may necessitate that these establishments incur an additional $40,210, $89,380 and $630,140 per firm in the first year for each size establishment, respectively (Table 6).
Most of these expected expenditures reflect increased treatment costs. These per firm costs, multiplied by the number of affected firms, produce an industry-wide, first-year cost impact of approximately $7.1 million (Table 6). The estimation of these costs is further explained in Appendix 1 in the sections entitled “A. Projected Costs Associated with Production Adjustments” and “B. Projected Costs Associated with Performance Standard Validation.” FSIS acknowledges that due to a lack of available data, the total costs of the proposed performance standards may be underestimated. See the section in Appendix 1 entitled “Uncertainty: Cost Side” for further discussion of the uncertainty around these estimated costs.
Mandatory food contact surface testing is the most difficult provision in the proposed rule to analyze because of the uncertainty of current practices and how establishments will react to the proposed rule. Major uncertainties include: the degree to which firms will switch to a
In the aggregate, large establishments incur a disproportionate share of the total industry-wide impact. This result is due to the volume-based costs associated with performance standards. On an individual establishment basis, the proposed rule still presents a substantial potential cost increase for very small and small establishments. Efforts to reduce validation costs on CCPs addressing
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. States and local jurisdictions are preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) from imposing any marking, labeling, packaging, or ingredient requirements on federally inspected meat and poultry products that are in addition to, or different than, those imposed under the FMIA and PPIA. States and local jurisdictions may, however, exercise concurrent jurisdiction over meat and poultry products that are outside official establishments for the purpose of preventing the distribution of meat and poultry products that are misbranded or adulterated under the FMIA and PPIA, or, in the case of imported articles, that are not at such an establishment, after their entry into the United States. This proposed rule is not intended to have retroactive effect.
If this proposed rule is adopted, administrative proceedings will not be required before parties may file suit in court challenging this rule. However, the administrative procedures specified in 9 CFR 306.5 and 381.35 must be exhausted prior to any judicial challenge of the application of the provisions of this proposed rule, if the challenge involves any decision of an FSIS employee relating to inspection services provided under the FMIA or PPIA.
Section 304 of the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (P.L. 103-354) requires any regulation published by USDA concerning human health, safety, or the environment, and having an annual economic impact of at least $100 million in 1994 dollars, contain a risk assessment and cost-benefit analysis. The risk assessment and cost-benefit analysis must be “performed consistently and use reasonably obtainable and sound scientific, technical, economic, and other data.” The USDA Office of Risk Assessment and Cost-Benefit Analysis (ORACBA), also established by the 1994 Act, must ensure that major rules include such analyses.
Although the initial costs of compliance with the proposed regulations may be less than $100 million, they also may exceed $100 million. FSIS estimates that over an undetermined, but relatively short period of time, the benefits of the regulations also should exceed this amount. In the economic analysis required under E. O. 12866, FSIS estimates that after 10 years, 868 to 8,632 cases of listeriosis may be eliminated as a result of this rule (see Appendix 1). Consequently, FSIS believes that the proposed regulations are subject to the Reorganization Act requirements for a risk assessment and cost-benefit analysis.
FSIS and ORACBA have agreed that the cost-benefit and economic impact analyses that FSIS has performed for this proposed rule, as required by E.O. 12866 and the Regulatory Flexibility Act, satisfy the cost-benefit analysis requirements of the Reorganization Act. Regarding the required risk assessment, FSIS is presenting several different documents to support different provisions of the proposed regulations.
To support the proposed lethality performance standard for the elimination of
To support the other proposed lethality performance standards, except for the lethality standards applicable to commercially sterile meat and poultry products, and to support the proposed stabilization performance standards, FSIS used its Nationwide Microbiological Baseline Data Collection Programs and Nationwide Federal Plant Microbiological Surveys (Ref. 3, available for viewing by the public in the FSIS Docket Room), as well as its technical analysis of those surveys (Ref. 2, available for viewing by the public in the FSIS Docket Room). Within the technical analysis, FSIS developed models using the baseline and survey data to define a worst case raw product (the highest initial levels of
To support the proposed environmental testing requirements for
Public awareness of all segments of rulemaking and policy development is important. FSIS provides a weekly FSIS Constituent Update via fax to over 300 organizations and individuals. In addition, the update is available on line through the FSIS web page located at
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995, the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB).
Copies of this information collection assessment can be obtained from Lee Puricelli, Paperwork Specialist, Food Safety and Inspection Service, USDA, Room 109 Cotton Annex, Washington, DC 20250-3700.
Comments are invited on: (a) 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; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the method and the assumptions used; (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 those who are to respond; including through use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Lee Puricelli, see the address above, and to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) Washington, DC 20253. A comment to OMB is best assured of having its full effect if OMB receives is within 30 days of publication of this proposed rule.
The following sources are referred to in this document. All have been placed on display in the FSIS Docket Room (address above) and may be seen by interested persons between 8:30 a.m. and 4:30 p.m., Monday through Friday.
Meat inspection.
Meat inspection, Reporting and recordkeeping requirements.
Food labeling.
Meat inspection, Reporting and recordkeeping requirements.
Food grades and standards, Food labeling, Frozen foods, Meat inspection, Oils and fats.
Meat inspection, Reporting and recordkeeping requirements.
Meat inspection, Reporting and recordkeeping requirements, Transportation.
Intergovernmental regulations, Meat inspection.
Poultry and poultry products inspection, Reporting and recordkeeping requirements.
Meat inspection, Poultry and poultry products inspection, Reporting and recordkeeping requirements.
Food labeling, Meat inspection, Poultry and poultry products inspection.
Accordingly, title 9, chapter III, of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 301 would continue to read as follows:
7 U.S.C. 450, 1901-1906; 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
2. Section 301.2 would be amended by removing the definitions for “Process authority” and “Process schedule.”
3. The authority citation for part 303 would continue to read as follows:
21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
4. In § 303.1(f), the second sentence would be removed.
5. The authority citation for part 317 would continue to read as follows:
21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
6. In § 317.2, paragraph (k) and the introductory text of paragraph (l) would be revised to read as follows:
(k) Packaged products which require special handling to maintain their wholesome condition must have prominently displayed on the principal display panel the statement: “Keep Refrigerated,” “Keep Frozen,” “Perishable Keep Under Refrigeration,” or “Refrigerate after Opening,” as applicable, or such similar statement as the Administrator may approve in specific cases. Products that are distributed frozen during distribution shall bear the statement on the shipping container: “Keep Frozen.” The consumer-size containers for such products that are thawed prior to or during display for sale at retail shall bear the statement “Previously Handled Frozen for Your Protection, Refreeze or Keep Refrigerated.” For all perishable canned products the statement shall be shown in upper case letters one-fourth inch in height for containers having a net weight of 3 pounds or less, and for containers having a net weight over 3 pounds, the statement shall be in upper case letters at least one-half inch in height.
(l) Safe handling instructions shall be provided for: All meat and meat products of cattle, swine, sheep, goat, horse, or other equine that do not meet the requirements contained in 9 CFR 430.2 and 430.3(a), except as exempted under paragraph (l)(4) of this section.
7. The authority citation for part 318 would continue to read as follows:
7 U.S.C. 138f, 7 U.S.C. 450, 1901-1906; 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
8. Section 318.10 would be removed and reserved.
9. Section 318.17 would be removed and reserved.
10. Section 318.23 would be removed and reserved.
11. Subpart G (§§ 318.300 through 318.311) would be removed.
12. The authority citation for part 319 would continue to read as follows:
7 U.S.C. 450, 1901-1906; 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
13. In § 319.106, paragraph (b) would be removed; paragraph (c) would be redesignated as paragraph (b); and paragraph (d) would be redesignated as paragraph (c).
14. In § 319.145, paragraph (a)(2) would be amended by removing the third sentence.
15. The authority citation for part 320 would continue to read as follows:
21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
16. In § 320.1, paragraph (b)(6) and (b)(7) would be removed; paragraph (b)(8) would be redesignated as (b)(6); paragraph (b)(9) would be redesignated as (b)(7); paragraph (b)(10) would be redesignated as (b)(8); and paragraph (b)(11) would be redesignated as (b)(9).
17. The authority citation for part 325 would continue to read as follows:
7 U.S.C. 450, 1901-1906; 21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
18. In § 325.7, paragraph (a) would be amended by removing the phrase, “pork that has been refrigerated to destroy
19. The authority citation for part 331 would continue to read as follows:
21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
20. In § 331.5, paragraph (a)(1)(ii) would be amended to remove the phrase, “or it is a ready-to-eat pork product which has not been treated to destroy
21. The authority citation for part 381 would continue to read as follows:
7 U.S.C. 138f, 450; 21 U.S.C. 451-470; 7 CFR 2.18, 2.53.
22. Section 381.1 would be amended by removing the definitions for “Process authority” and “Process schedule.”
23. In § 381.125, paragraph (a) would be revised to read as follows:
(a) Packaged products which require special handling to maintain their wholesome condition must have prominently displayed on the principal display panel the statement: “Keep Refrigerated,” “Keep Frozen,” “Perishable Keep Under Refrigeration,” or “Refrigerate after Opening,” as applicable, or such similar statement as the Administrator may approve in specific cases. Products that are distributed frozen during distribution shall bear the statement on the shipping container: “Keep Frozen.” The consumer-size containers for such products that are thawed prior to or during display for sale at retail shall bear the statement “Previously Handled Frozen for Your Protection, Refreeze or Keep Refrigerated.” For all perishable canned products the statement shall be shown in upper case letters one-fourth inch in height for containers having a net weight of 3 pounds or less, and for containers having a net weight over 3 pounds, the statement shall be in upper case letters at least one-half inch in height.
24.-25. In § 381.125, the introductory text of paragraph (b) would be amended by removing the phrase “§ 381.150(a) or that have not undergone other processing that would render them ready-to-eat” and by adding the phrase “9 CFR 430.2 and 430.3(a)” in its place.
26. Section 381.150 would be removed.
27. In § 381.175, paragraph (b)(3) would be removed; paragraph (b)(4) would be redesignated as (b)(3); paragraph (b)(5) would be redesignated as (b)(4); and paragraph (b)(6) would be redesignated as (b)(5).
28. Subpart X (§§ 381.300 through 381.311) would be removed and reserved.
29. The authority citation for Part 417 would continue to read as follows:
7 U.S.C. 450; 21 U.S.C. 451-470, 601-695; 7 U.S.C. 1901-1906; 7 CFR 2.18, 2.53.
30. Paragraph 417.2(b)(3) would be removed.
31. A new Part 430 would be established to read as follows:
7 U.S.C. 450; 21 U.S.C. 451-470, 601-695; 7 U.S.C. 1901-1906; 7 CFR 2.18, 2.53.
(a) (1) Processing of any meat or poultry product, except a thermally-processed, commercially sterile product, for the purpose of rendering that product ready-to-eat, must be validated to achieve probabilities no greater than the following that
(2) Official establishments that do not wish to demonstrate that their processing results in probabilities no greater than the probabilities in paragraph (a)(1) of this section may instead employ processing validated to
(b)(1) In addition to meeting the standard in paragraph (a), of this section processing of any fermented meat or poultry product that contains any amount of beef, except a thermally-processed, commercially sterile product, for the purpose of rendering that product ready-to-eat, must be validated to achieve probabilities no greater than the following that
(2) Official establishments that do not wish to demonstrate that their processing results in probabilities no greater than the probabilities in paragraph (b)(1) of this section may instead employ processing validated to achieve a 5-log
(c) Processing of all ready-to-eat meat and poultry products, other than thermally processed, commercially sterile products, also must be validated to achieve the reduction of other pathogens and their toxins or toxic metabolites necessary to prevent product adulteration.
(d) Processing of all ready-to-eat products, other than thermally processed, commercially sterile products, must be validated to maintain the lethality performance standards throughout product shelf-life under the conditions in which the food is stored, distributed, and held.
(a) For all ready-to-eat meat and poultry products, other than thermally processed, commercially sterile products, processing must prevent multiplication of toxigenic microorganisms such as
(b) For all meat and poultry products that receive a heat treatment but that are not ready-to-eat, processing must prevent multiplication of toxigenic microorganisms such as
(c) Processing of all ready-to-eat products, other than thermally processed, commercially sterile products, and products that are heat-treated but not ready-to-eat, must be validated to maintain the stabilization performance standards throughout product shelf-life under the conditions in which the food is stored, distributed, and held.
(a) Each official establishment that produces one or more ready-to-eat meat or poultry products, but that has not identified
(1) If the plant is large (500 or more employees), at least four tests, per line of ready-to-eat product, per month;
(2) If the plant is small (10 to 499 employees), at least two tests, per line of ready-to-eat product, per month;
(3) If the plant is very small (fewer than 10 employees or annual sales of ready-to-eat products less than $2.5 million), at least one test, per line of ready-to-eat product, per month.
(b) Results of the testing required in this section are to be used by official establishments to verify that their Sanitation Standard Operating Procedures (Sanitation SOPs), as required under 9 CFR part 416, are preventing direct contamination or adulteration of product. Results must be made available to FSIS personnel for review. In the event of a positive test result, establishments must take corrective actions under 9 CFR 416.15(a) and (b) that include the following procedures to determine and demonstrate that the affected lot or lots of product are not adulterated with
(1) Procedures to determine which lot or lots of product might have been affected;
(2) Procedures to hold, sample, and test that product for
(3) Procedures to dispose of affected product.
(a) For a low-acid product that receives thermal or other sporicidal lethality processing, that processing must be validated to achieve a probability of 10
(b) For acidified products or products in which pathogen growth is controlled by factors other than thermal or other sporicidal processing, the processing must be validated to prevent multiplication of
(c) The product must be processed to achieve commercial sterility and the container in which the product is enclosed must be hermetically sealed so as to be airtight and to protect the contents of the container against the entry of microorganisms during and after processing.
(d) All operators of processing systems for commercially sterile meat and poultry products and container closure technicians shall be under the direct supervision of a person who has successfully completed a school of instruction that is generally recognized as adequate for training supervisors of canning operations.
The following is an appendix to the preamble of the Proposed Rule.
The following appendix will not appear in the Code of Federal Regulations.
This proposed action has been reviewed for compliance with Executive Order 12866. Because this proposed action has been determined to be economically significant for purposes of Executive Order 12866, the Office of Management and Budget has reviewed it.
FSIS is proposing to amend the Federal meat and poultry inspection regulations by establishing pathogen reduction performance standards for all ready-to-eat (RTE) and all partially heat-treated meat and poultry
This proposed action is compelled by recent outbreaks of foodborne illness related to the consumption of adulterated RTE meat and poultry products, as well as by the need to provide objective, measurable pathogen reduction standards that can be met by official establishments and compliance with which can be established through Agency inspection. Although FSIS routinely samples and tests some RTE products for the presence of pathogens prior to distribution, there are no specific regulatory pathogen reduction requirements for most of these products (e.g., there are no existing lethality requirements for products such as hotdogs similar to the lethality performance standards for roast beef). Except for cooked meat patties (which currently have prescriptive time and temperature requirements for lethality), roast beef products (which have the new lethality performance standards), cooked poultry (which have the new lethality performance standards), and canned meat and poultry (which have the current prescriptive process requirements), the remaining RTE meat and poultry products do not have regulation-specified criteria for establishing safe processes other than the products must not be adulterated. Therefore, to ensure the safety of these products, FSIS is proposing performance standards for RTE and partially heat-treated meat and poultry products.
The Sanitation Standard Operating Procedures (SOPs) and HACCP regulations were intentionally written to allow the regulated industry flexibility in the design of their procedures. FSIS is adding, through this proposed rule, minimum criteria to be addressed to prevent post-lethality contamination. In the Sanitation SOPs, the proposed requirements will ensure that establishments maintain minimal specific records and take specific action. If the establishment determines that a hazard is reasonable likely to occur, then the HACCP regulations will be addressed via CCPs and related performance standards, controls, and records.
Performance standards are an integral part of the HACCP systems in official meat and poultry establishments. HACCP provides the framework for industry to set up science-based process controls. Performance standards tell establishments what those controls need to achieve for their HACCP plans to be effective and provide a necessary measure of accountability for achieving acceptable food safety. The proposed performance standards will provide meat and poultry establishments with the incentive and flexibility to adopt innovative, science-based processing procedures and controls; ensure safety for consumers; and provide objective, measurable standards, compliance with which can be determined through Agency inspection. Therefore, FSIS believes that developing HACCP systems around verifiable, objective performance standards is the most effective way for establishments to consistently produce safe, unadulterated meat and poultry products. Furthermore, by proposing performance standards for pathogens whose destruction results in the destruction of most or all other pathogens of concern, FSIS provides a reference for establishments to use in gauging the efficacy of their HACCP systems.
The proposed food-contact surface testing requirements are compelled by the recent
In regard to thermally processed, commercially sterile (most often canned) meat and poultry products, the proposed standards represent regulatory reform; they replace lengthy, prescriptive regulations with performance standards that provide the same level of food safety, as well as increased flexibility for establishments to customize their processes under HACCP.
The most recent year in which both listeriosis cases and economic background information on the affected industries are available is 1997. The baseline analysis assumes that if no regulatory-induced producer actions took place, these baseline values would persist annually over a 10-year period. The analysis then proceeds by introducing only those changes that are projected to occur as a result of provisions of the proposed rule. Once these provisions come into effect, benefits accrue in the form of gradually reduced annual numbers of listeriosis cases and deaths, while costs are registered in the form of higher compliance and operating costs. This
The 1997 Census of Manufacturers identifies 1630 establishments that could be affected by the proposed rule. For this analysis, these establishments are broken down into four broad groups differentiated by the estimated costs of compliance with all of the proposed provisions. The groups that would incur the greatest costs include establishments that may have to revise their HACCP plans and Sanitation SOPs in order to comply with both the proposed performance standards and testing requirements. The number of establishments,
These groups are further broken down into sub-groups where appropriate.
The main product groups (and sub-groups, if appropriate) are:
Group I, those entities that likely will incur the greatest costs and which are further broken down into:
Sub-group 1, RTE fermented, dried, and salt cured meat and poultry products;
Sub-group 2, RTE hotdogs and wieners;
Sub-group 3, RTE frozen meat and poultry patties; and,
Sub-group 4, RTE smoked hams and poultry luncheon meats;
Group II, those entities that likely will incur moderate costs and which are further broken down into:
Sub-group 1, meat processing establishments that make RTE boiled hams, other sausages, and other frozen or cooked meats, such as barbecue pork;
Sub-group 2, poultry processors that make RTE jellied goods and other processed poultry products, including pa
Sub-group 3, combo plants who produce both RTE meat and poultry;
Group III, those entities that likely will incur minor costs; representative products include RTE frozen dinners, pizzas, and other frozen meat and poultry products; and
Group IV, those entities likely will incur no costs; representative products include RTE canned meat and poultry products.
Within Group I, 150 establishments produce fermented, dried, and salt cured meat and poultry products (Sub-group 1). These establishments make up nine percent of the total number of establishments potentially affected by this proposed rule and ship out about six percent of the total value of shipments. Over eighty percent of these establishments are processors, over 95 percent of who employ fewer than 500 employees.
The second sub-group within Group I consists of 167 establishments that make wieners and frankfurters. Eleven percent of these establishments are combo plants, 67 percent are meat processors, and 22 percent are poultry processors.
The third sub-group of 76 establishments within Group I produce meat patties, some partially or fully cooked; all are classified as meat processors by the Census. Almost all (98 percent) employ fewer than 500 employees.
The final sub-group in Group I consists of 191 establishments that make pastrami, bologna, roast beef, bratwurst, bockwurst, smoked hams and picnics, and smoked poultry. Fifty-eight percent of the establishments are meat processors; 16 percent, meat and poultry combo plants; and 26 percent, poultry processors. Overall, eighty-nine percent are small to mid-sized processors.
Group I also can be broken down into groups by type of processing and whether they produce meat or poultry products. As a whole, 87 percent (507) are processors (421 meat and 86 poultry processors). Ninety-eight percent of the meat processors are made up of either very small (employing fewer than 10 employees) or small (employing more than 10, but fewer than 500 employees) operations, with 36 percent being very small and 62 percent being small operations. Only 2 percent of the establishments are considered large (employing more than 500 employees). Poultry processors are structured somewhat differently with 15 percent, being very small; 49 percent, small; and, 36 percent, large. Combining both meat and poultry processors gives a slightly different picture of the structure of processing with 32 percent classified as very small; 60 percent, small; and, 8 percent, large. The remaining 77 establishments (13 percent) in Group I are combo plants (which slaughter animals and process meat products). On average, these establishments have a smaller scale of operation than the group as a whole, with 53 percent being very small; 38 percent being small; but 9 percent, being large.
These 791 establishments consist of just over 50 percent of the
Sub-group 1 of Group II is composed of the 551 meat processing establishments making boiled hams, other sausages, and other frozen or cooked meats, such as barbecue pork. Sixty-two percent (339) of these establishments are classified as small operations. Two percent (12 establishments) are large, while the reminder (36 percent or 200 establishments) are very small.
Sub-group 2 of Group II consists of the twenty-percent (164) of the establishments that are poultry processors. Forty-eight percent (79) of these establishments are classified as small operations. Fifteen percent (25) are very small, while 37 percent (60) are large operations. The main products produced by these establishments include jellied goods and other processed poultry products.
The remaining 10 percent (76) of the establishments in Group II are combo meat plants (Sub-group 3). Seven percent (5) of these establishments are classified as large operations, while the majority (55%) are very small and another 38 percent are small.
These 104 establishments make frozen dinners, pizzas, meat and poultry pies, and nationality foods containing meat and/or poultry. They make up roughly 7 percent of the total number of establishments and ship out over 10 percent of the total value of product shipments.
These 151 establishments produce canned products that contain meat and poultry products. These establishments make up over 9 percent of the total number of establishments and about 8 percent of the total value of shipments.
Currently, all environmental testing for
A recent industry survey gives some indication on the extent of current environmental testing for
Approximately 308 establishments were contacted for the survey. Of 271 respondents, 67 percent had an end-product testing program for
The industry survey also found almost all (97%) of the large establishments conducted at least some type of environmental microbiological testing before the reassessment, but still, 39 of the 74 large establishments, 58 of 193 small establishments, and only one of 22 very small establishments added a CCP to their HACCP plan in response to the reassessment (Table 2).
The CCP addressing
Over 80 percent of the small establishments in the survey that conduct some type of environmental microbiological testing, did so prior to the reassessment. After reassessment, 58 out of the 193 small establishments added a CCP addressing
FSIS presents two baselines below for potential benefits from the proposed rule. The first baseline is derived entirely from the FDA-FSIS draft risk assessment. The second baseline is constructed from two independent CDC-based studies. FSIS” intent is to present a range of possible benefits.
The baseline numbers of listeriosis cases and deaths are taken directly from the recent FDA-FSIS interagency draft risk assessment, mainly Appendix 9, Table 1. The FDA-FSIS draft risk assessment ranks 20 categories of foods and provides a rigorous, systematic assessment of the scientific knowledge to predict the relative public health impact of exposure to
The FDA-FSIS draft risk assessment not only provides the most recent and complete analysis on sporadic U.S. listeriosis cases by general product group, but it also provides insights into several commodities' relative risk rankings and their contribution to the total U.S. number of listeriosis cases. Deli-meats present the most prominent risk to all sub-populations (Intermediate Age, Elderly, and Perinatal), and are likely responsible for 1446 median U.S. listeriosis cases (58.9 percent of the U.S. total), or 88.9 percent of the listeriosis cases attributable to RTE meat and poultry products.
Other specific products within the meat and poultry product category identified by the FDA-FSIS draft interagency risk assessment as posing a risk related to listeriosis are: deli salads containing meat and poultry products (at the median, 3.8% of all listeriosis cases or 5.8% of listeriosis cases attributable to RTE meat and poultry products); frankfurters (at the median, 3.5 and 5.4 percent, of the total and all RTE meat and poultry products listeriosis cases, respectively); paté (at the median, 0.9 and 1.4 percent, respectively, for total and all RTE
The number of listeriosis cases attributable to ready-to-eat meat and poultry products is 62% (1562 cases) at the 5th percentile and 68.0% (1727 cases) at the 95th percentile based on a median number of annual cases (2540 cases). This sensitivity about the median number of listeriosis cases attributable to meat and poultry products was calculated by summing the number of listeriosis cases attributable to each meat and poultry product category (frankfurters, dry and semi-dry sausage, deli meats, and pate and meat spreads) and 25% (based on one-fourth of all deli salad servings containing meat and poultry products, CSFII 1994-1996 survey data) of the deli salad category
FDA-FSIS interagency draft risk assessment reports results for three specific age groups: perinatal (which includes fetuses and newborns from 16 weeks after fertilization to 30 days after birth), elderly (which includes people 60 or more years of age), and intermediate age (everyone else). The FDA-FSIS interagency draft risk assessment model predicts the number of deaths associated with each RTE food category. The estimated number of listeriosis cases presented in the FDA-FSIS draft risk assessment (Table 1, Appendix 9) is based on the assumption of an overall case-fatality rate of 0.20.
There is some uncertainty surrounding the assumed 20 case-fatality rate. The FDA-FSIS interagency draft risk assessment observes that if the susceptibility among the three age-based groups varies, then the ratio of serious illness to mortality may differ among these groups. This is consistent with epidemiologic data for listeria mortality age distribution unadjusted for underreporting and mis-classification of pre-natal cases. Other considerations include the fact that epidemiolgic surveillance data do not count unborn fetuses as deaths, but as miscarriages and stillbirths, which may contribute to underreporting within this age category (PHS, 1994).
The epidemiologic data also contains cases with an “unknown” age. In the 1999 data, there were 14 cases reported as “unknowns.” Epidemiologists at the FoodNet sites indicated that the “unknown” ages resulted from database errors and are not a result of a systematic classification error.
Table 6 presents the
While it is unlikely that all of the “unknown” age cases would be in the perinatal category due to National Health Statistics standards for classification of fetal deaths, a bound for the largest possible case-fatality rate can be derived with the 14 “unknown” age cases in this age category as seen in Table 7.
While the estimated overall case-fatality rate of 19% is consistent with the Mead et al. (1999) estimate of 20%, uncertainty regarding the age-specific case-fatality rate due to misclassification and underreporting remain.
The listeriosis cases and deaths attributable to RTE meat and poultry products estimates derived from the FDA-FSIS draft risk assessment establish the number of lives lost and those temporarily hospitalized or unable to work as a result of illness. This cost may be measured in lost productivity and in medical costs incurred. The Economic Research Service has conducted research on the method. However, given many uncertainties, FSIS is not monetizing the values associated with reducing listeriosis cases and deaths. FSIS requests comment on appropriate methods to value listeriosis cases and deaths.
This second baseline derives the number of listeriosis cases and deaths from two independent studies: one by Olsen
If the percentage of listeriosis cases and deaths attributable to meat and poultry products is the same as the percentage attributable to foodborne diseases, the 8-percent estimate from the Olsen study can be used to estimate the number of listeriosis cases and deaths due to consumption of RTE meat and poultry products.
With these reservations in mind, FSIS applied the 8-percent estimate from the Olsen study to the Mead data (2500 cases and 499 deaths) for listeriosis (after developing a 5-year time series set of estimated listeriosis cases and deaths), which gave an average annual listeriosis case and death load of 186 and 38, respectively (Table 9). For example, the 1993 estimate of listeriosis cases and deaths was calculated by multiplying 0.08 times 2359 (189) and 0.08 times 745 (60), respectively for cases and deaths.
Finally, the estimated number of cases and deaths due to listeriosis attributable to meat and poultry product consumption must reflect only that portion that is RTE. One method to do this is simply to assume that 90 percent of the meat and poultry product listeriosis cases and deaths are linked to RTE food products. Obviously this estimate is completely arbitrary. FSIS does not contend that this is an accurate depiction: therefore, FSIS solicits comments. Using this estimate, the number of listeriosis cases and deaths attributable to RTE meat and poultry product consumption is estimated at 167 and 35, respectively. Also, FSIS considered making an adjustment factor for the effectiveness of the provisions in the proposed rule. Again, FSIS is unsure how such an adjustment factor would be constructed, but recognizes that not all listeriosis cases and deaths could be totally eliminated by provisions in the proposed rule. FSIS requests comment on the efficacy of the proposed testing provisions.
FSIS solicits comments and suggestions concerning the issues of the baseline number of listeriosis cases and deaths attributable to RTE meat and poultry products and the effectiveness of measures prescribed by the proposed rule. Notably, the recent FDA-FSIS draft risk assessment estimated that 65.3 percent of all U.S. listeriosis cases and deaths (or 1660 cases and 322 deaths per year) are attributable to the consumption of RTE meat and poultry products. The number of cases and deaths estimated by the FDA-FSIS draft risk assessment are 9.9 times greater than the estimated numbers obtained from the second baseline. FSIS welcomes comments and suggestions on the kinds of data and information needed to construct alternative baselines and sensitivity approaches to test baseline listeriosis cases and deaths and program effectiveness.
FSIS is proposing to require that all establishments that produce RTE meat and poultry products conduct environmental testing of food-contact surfaces for
After an establishment finds one of its food contact surfaces to be positive for
Establishments can be expected to face at least three potential cost impacts due to mandatory food contact surface testing for
The first and second impacts are closely related because the firms that elect to revise their HACCP plan to incorporate a CCP addressing
The third impact stems from the decision by some establishments to drop certain RTE meat and poultry products (or drop out of production altogether). This decision would be due to persistently high rates of positive
This creates the prospect of an additional fourth potential impact: the potential increased cost associated with greater volumes of product held by establishments in a “test and hold” pattern. These costs are expected to be particularly relevant to those firms experiencing very poor testing results, presumably as a result of inadequate sanitation controls. These costs are discussed separately in the section entitled “C. Projected Costs Associated with Expected Production Adjustments.” There, FSIS explains that establishments that encounter “Stage 2” and “Stage 3” type problems with chronic
Each of the three cost impacts is discussed below.
FSIS estimates that currently 397 establishments have a CCP addressing
• FSIS estimates that the percentage of the large establishments, excluding canners, that have a CCP addressing
• FSIS estimates that the percentage of the small establishments, excluding canners, that have a CCP addressing
• FSIS estimates that the percentage of the very small establishments, excluding canners, that have a CCP addressing
The net results on the number of establishments with a CCP addressing
The
One element that may increase the over-all cost of the HACCP modification component of mandatory testing at the prescribed frequency is if establishments need to modify more than one HACCP plan. Also, the relative of cost of testing versus developing a CCP would not be the only factor in an establishment's decision on how to comply with the proposed requirement. Unique aspects of ad establishment's processing system, as well as the relative risks posed by its products, may influence an establishment's decision. FSIS request comment on this issue.
FSIS has found that the costs associated with modification of HACCP plans can range from $2,000 to $20,000 per HACCP process. This cost depends on the efforts needed to draw up new CCPs (sanitation practices to limit levels of
For those establishments not currently testing or that do not maintain a CCP addressing
The frequency of food contact surface testing is based on the following:
(a) Four tests per active line
(b) Two tests per active line per month period for small establishments; and,
(c) One test per active line per month for very small establishments.
For purposes of this cost analysis below, FSIS used the following assumptions on the average number of operating lines per establishment: 2 lines for very small establishments; 4 lines for small establishments; and, 6 lines for large establishments.
These frequencies are intended to be the minimum level of food contact surface testing undertaken by firms. Greater frequency of testing by establishments (regardless of size) is encouraged by FSIS: FSIS policy states that the more the plant is testing, the less likely FSIS will include the plant's product in its end-product microbiological testing program(s) (FSIS Directive 10,240.2, Revision 1). This testing frequency incorporates the volume of production in two ways: (1) It assumes that the more an establishment produces, the more lines it has, and (2) the greater its size, the more product is produced and thus, a need for higher weekly frequency as size increases.
Positive test results on food-contact areas will indicate a need to thoroughly clean the immediate working areas and equipment and re-test. Once a positive food contact surface is found, product samples will be tested for
The potential cost of mandatory testing is a function of the per-unit testing cost
The number of establishments that will face mandatory testing has been determined in the previous analysis. Recall that it found that all large establishments are expected to modify their HACCP plans and be exempt from mandatory food contact surface testing. The finding implies that only small and very small establishments will need to test to satisfy compliance of the proposed rule. FSIS estimates that 50,035 tests will be needed by these establishments (Table 11). The associated overall costs of these tests is estimated at $1.75 million ($35 times 50,035). This cost would be expected to recur annually.
In addition to the above two expected industry costs (administrative costs related to incorporating a CCP addressing
For purposes of analysis, affected establishments are broken into four groups: those that are not expected to encounter any problems as a result of mandatory testing; those firms that are expected to encounter minor problems (Stage 1 problems); those firms that are expected to encounter more serious problems and higher costs to remedy their
Steps to prevent
Some establishments follow the recommended guidelines in production but, for any number of reasons, are expected to face difficulties in improving their
• Enhance pre-operational and operational sanitation controls in production (262 out of 308 establishments that responded to the industry survey cited previously indicated that this action was taken when allowable environmental testing results were exceeded);
• Implement an environmental monitoring program for
• Intensify training efforts on personnel (232 out of 302 surveyed indicated that this action was taken when allowable environmental testing results were exceeded);
• Purchase inputs from suppliers with a
• Apply a validated listericidal process where appropriate.
FSIS expects that plants encountering Stage 1-type problems will face a $2000 per line average “fix” for equipment and machinery. These efforts are expected to be effective and not involve any recurring cost. Across all affected establishments, such costs are expected to total $0.7 million.
An additional 7-percent of all establishments (104) are expected to face significantly greater difficulty in improving their food contact surface
FSIS expects that plants encountering Stage-2 type problems will face higher costs than establishments facing Stage-1 problems. Based on expenses incurred by the industry in taking similar steps in the early 1990's, FSIS estimates that such efforts could cost the affected establishments 0.1 percent of their gross sales.
A final group of plants is expected to face Stage 3-type problems: problems that establishments may perceive to be prohibitively costly to “fix” and/or not feasible to undertake without complete modernization or renovation. Without making the needed capital investments, their only option is to drop out of production. This may involve dropping just the RTE meat and poultry product component of their business or eliminating RTE meat and poultry products altogether.
FSIS realizes that many of the technological “fixes” that many establishments may have to undertake are not scale-neutral (they favor increasing scale establishments). Thus, one may discover that small and very small establishments are disproportionately affected by this provision of the proposed rule. However, to ensure maximum food safety benefits from testing, FSIS is proposing to require industry-wide adoption. FSIS requests comments on expected impacts on small and very small establishments.
The total cost of mandatory food contact surface testing on this industry is estimated at $5.53 million ($1.28 million on HACCP plan modification, $1.75 million on testing, and $2.5 million in production adjustment costs).
This provision, as described in the provisions section, mirrors the recently published performance standards for the production of cooked beef, roast beef, cooked corned beef products, fully and partially cooked poultry products (64 FR 732). However, that rule did not apply to dried, fermented, and salt-cured RTE meat and poultry products. Fermented sausage makers were advised in the mid-1990's on methods to ensure food safety and most of these processors made changes to their production at that time; however, this is not known for sure. Also, the current proposed rule would increase the required level of pathogen reduction in meat patties. As such, processors of meat patties and the dried, fermented, and salt-cured RTE meat and poultry products are expected to feel the major impact from this provision of the proposed rule. FSIS expects that this provision may have two potential impacts on certain RTE meat and poultry product producers: (1) the need to make production changes to attain the higher performance standards and (2) the need to incorporate increased monitoring equipment and other means to validate that they are meeting the new performance standards.
The majority of the establishments that produce RTE meat and poultry products are not expected to be affected by the lethality and stabilization provisions of the proposed rule. Most establishments already may meet these requirements because they are identical to those in the final rule that established performance standards for the production of certain RTE meat and poultry products (64 FR 732). However, it is expected that one-third of the plants in Group I, Subgroup 1 (Dried, Salt-cured and Fermented Sausage makers) and one-third of Group I, Subgroup 3 (meat patty makers) will be affected by this provision of the proposed rule. FSIS estimates that these 75 establishments or less than 5 percent of the establishments in this industry produce about 441 million pounds of product.
FSIS expects that producers will adjust to higher performance standards by applying some additional heating or holding times to their products or by relying upon integrated lethality involving multiple hurdles or accounting for come-up and come-down time. FSIS tentatively concludes that many establishments would meet the proposed performance standards using current procedures; however, the integrated cumulative lethality of these procedures may not have been fully assessed at this time. Individual establishments' costs could vary greatly depending on their need to purchase capital equipment, such as flash freezers for quicker cooling times, new heating equipment, etc., that may lead to increased costs in the short run, but lower operating costs and improved product in the long run. FSIS expects that most establishments will continue to produce their products in much the same way, but may increase their heating temperatures and holding times. In so doing, they are expected to experience somewhat reduced production line speeds, initially higher product rejection rates, and slightly lower annual production.
FSIS has only limited data to base its estimate for the impact of higher performance standard. Some anecdotal information suggests that some establishments, to attain the new lethality performance standards, may have to incur an additional cent per pound of product produced. This estimate implicitly incorporates the cost of reduced annual sales by the firm due to slower line speeds (and its implicit effect on lost value of production), equipment costs, and higher energy costs. At this time, this one-cent per pound cost is used in this analysis. FSIS uses this per-pound estimate and its estimate on affected poundage of product to project an aggregate annual recurring cost of $4.4 million ($0.01 times 441.1 million pounds).
The 75 establishments identified above are expected to need a one-time validation to determine if they are meeting the higher performance standards. FSIS estimates that these firms produce, at least, 545 specific product-types that would need lethality and stabilization validation. FSIS expects that the costs to validate the attainment of performance standards to be the same as the validation of a HACCP plan modification ($5000). Thus, FSIS estimates that the over-all cost to establishments to validate that they are attaining the higher performance standards for these products at $2.7 million (545 times $5000).
All the benefits from this proposed rule are generated by producers' actions complying with the mandatory food contact surface
Benefits are expected to accrue gradually over time. Although studies found in the literature suggests that
Benefits are predicated on a chain of events: the proposed rule testing requirements motivating establishments to maintain higher sanitation standards; the introduction of less contaminated product in commercial channels; and eventually, fewer listeriosis cases and deaths from the consumption of RTE meat and poultry products.
Mandatory environmental food contact surface testing forces producers to incur costs to recognize (and, if need be, to remedy) their contamination problems. These costs, and those related to performance standards, are made up of mostly one-time, first-year costs and low recurring annual costs. More than half (56 percent) is related to performance standards, not mandatory testing (44 percent). Still, FSIS expects that the benefits derived from mandatory testing results would exceed the costs of both provisions.
Executive Order 12866 requires that FSIS identify and assess alternative forms of regulation. FSIS considered one alternative to all of the proposed regulations and five alternatives to the proposed testing requirements. These are discussed below.
The Agency considered not requiring the proposed performance standards for RTE meat and poultry products. Small and very small establishments may incur most of the costs of the proposed extension of the existing performance standards to all RTE meat and poultry products. There are currently performance standards for certain not-shelf-stable RTE meat and poultry products (RTE roast beef, corned beef, all “fully-cooked” RTE poultry products, and partially-cooked meat patty and poultry products). However, there currently are no performance standards specific to jerky, meat hotdogs, and luncheon meat and the current requirements for meat patties effect a lethality less stringent than that which is proposed.
FSIS considered not proposing to extend the performance standards to these products because of the possible disproportionate economic impact on small business. However, taking this alternative would result in a significant inconsistency in the Agency's public health policy. Most, if not all, RTE meat and poultry products are manufactured from the same supply of raw product examined in the FSIS national baseline surveys. So, performance standards derived from this baseline should be applicable to all categories of RTE meat and poultry products, regardless of how they are processed. All RTE products should be required to meet the same standard of safety. FSIS will publish compliance guides and possibly take other actions to mitigate the economic effects of any final rule on small businesses.
In general, some members of the meat and poultry industry believe that regulatory performance standards are unnecessary or redundant, considering that FSIS already requires all meat and poultry establishments to develop and implement HACCP systems. FSIS believes, however, that developing HACCP systems around verifiable, objective performance standards is the most effective way for establishments to consistently produce safe, unadulterated meat and poultry products. Furthermore, by proposing performance standards for pathogens whose destruction results in the destruction of most or all other pathogens of concern, FSIS provides a reference for establishments to use in gauging the efficacy of their HACCP systems. FSIS, therefore, is proposing pathogen reduction performance standards that can be incorporated into HACCP systems, rather than requiring that establishments rely upon HACCP alone.
FSIS considered not revising the prescriptive canning and
FSIS considered proposing to require testing of finished product for
Further, end-product testing to verify process control is antithetical to the notion of process control under the Agency's HACCP and Sanitation SOP regulations. Granted, FSIS is proposing to require product be held and tested in the event an establishment has a positive food-contact surface test result. But this proposed product testing is a measure every prudent establishment should take when it determines that its Sanitation SOP is ineffective and that product may have been produced under insanitary conditions and therefore may be adulterated. FSIS believes, based on the numerous recalls involving small quantities of RTE meat and poultry products and the fact that the majority of the recalls are initiated in small and very small establishments, that members of the meat and poultry product industry are not effectively ensuring that products are not adulterated. Thus, the Agency, in the interest of public health, opted to propose making mandatory food-contact surface testing for
FSIS is aware of several establishments that currently apply a post-lethality steam pasteurization treatment to their RTE products, specifically to eliminate
FSIS considered requiring establishments to implement post-lethality antimicrobial controls instead of testing food contact surfaces for
By proposing to exempt establishment with CCPs for
Because
FSIS considered creating a new category of products for partially-cooked sausages and other products that no longer would be considered RTE. An establishment that redesignated its meat and poultry product as not RTE would not be required to conduct the proposed testing for
The safe handling instruction is required for all products that have not undergone processing that would render them RTE and includes four labeling statements, including “cook thoroughly” along with a graphic illustration of a skillet. The cooking instruction is currently required for partially-cooked meat patties and poultry rolls, which need thorough cooking prior to consumption for safety. This cooking instruction states: “Partially-cooked: For Safety Cook until Well Done (Internal Meat Temperature of 160 degrees Fahrenheit)'.
FSIS considers cooked meats, including those defined in 9 CFR 319.180 (Subpart G—Cooked Sausage) which include frankfurters, hotdogs, wieners, bologna, and similar products, to be RTE products. Ready-to-eat products should be safe to consume without any additional cooking or application of a lethality treatment by the consumer. More importantly, it is likely that most consumers also consider hotdogs and similar products to be RTE, and only apply a heat treatment to improve product palatability. Consumer behavior would have to be significantly modified to ensure that they are aware that an adequate cook for safety must be applied to these products.
Another consideration is that restaurants, including street vendors and quick-service operations, would have to treat these redesignated products as not-RTE. The current Model Food Code provides that RTE food taken from a commercially-processed intact package from a food processing plant shall be heated to a temperature of at least 140 degrees Fahrenheit for hot holding (FDA Food Code, section 3-403.11). The hot holding temperature is not intended to serve as the lethality treatment for the product, but only as a temperature sufficient to prevent multiplication of pathogens while the product is being held prior to sale. Thus, this industry would have to apply a higher minimum temperature and time combination to achieve the necessary lethality for safety.
FSIS does not have the data needed to estimate the costs that would result from the redesignation of certain hotdogs and similar products as not-RTE. Direct costs to industry would include: new labeling; the cost to retailers who be required to apply higher time/temperature combinations to the redesignated products; and possible loss of market share by firms that redesignate their products as not-RTE to firms that continue to produce RTE products. Other costs include consumer education and, most importantly, possible public heath costs resulting from consumers inadequately cooking not-RTE products traditionally considered RTE and consequently contracting foodborne illnesses. It is likely that these costs would exceed the savings that industry would accrue from being exempted from the proposed testing requirements and other requirements
FSIS considered, but is not proposing, requiring that the labeling of certain RTE meat and poultry products state the product's shelf-life, and that shelf-life be based on product safety (“use-by” date labeling) in addition to the proposed
Food contact surface testing does not address (1) the physical inability of current testing devices to detect minuscule amounts of
For most consumers who are healthy and safely handle their food, this low level of possible
In the process, producers and marketers will likely alter their behavior with respect to product rotation in storage and marketing. There is sparse information regarding the potential affects of this labeling, the likelihood that consumer practices will change, and on the effect of changes in consumer behavior on listeriosis cases. Similarly, FSIS currently does not possess all the information necessary to assess the reduction in risk that will occur from this change. Also, the “use-by” date labeling may give consumers a false sense of security.
Much uncertainty surrounds the potential costs and benefits of “use-by” dating. Little research has been done to address many issues regarding this alternative. For instance, what is the likely consumer reaction to “use-by” date labeling? What are the public health consequences? How would “use-by” date labeling potentially impact the production and shipment patterns of labeled RTE meat and poultry products and the structure of the industry? For example, will smaller operations benefit from a “use-by” date more than larger operations who must rely on larger sales areas which require longer product shelf life to penetrate the entire marketing area?
Further, much uncertainty surrounds expectations for increased consumer awareness by the high-risk sub-population of “use-by” date labeling. Assuming the awareness rates for the high-risk sub-population were the same as the general population, only 12.4 fewer annual listeriosis deaths would result from “use-by” dating (as opposed to 54).
FSIS requests comment on the feasibility of requiring “use-by” date labeling on certain RTE meat and poultry products, generally in regard to the public health benefits and the costs of such labeling, and specifically in regard to the following questions:
(1) What would be the most effective way to implement an “use-by” labeling scheme? Should FSIS propose to require that use-by dates be determined and validated within the producing establishment's HACCP plan? Or, should another alternative be used.
(2) What assumptions should be used about retailer and consumer behavior in determining a use-by date? Should the use-by date be determined under the assumption that retailers and consumers will follow any handling instructions contained in the labeling? Or, should the use-by date determination be based on a “worst case” assumption that products will be mishandled or temperature abused?
(3) What scientific and economic data are available regarding the shelf-life and safety of RTE meat and poultry products contaminated with
(4) Should FSIS propose to require post-lethality
(5) What language would be most effective in informing consumers about “use-by” date labels? Would labeling such as “For safety, use-by * * *” be more effective? Should the labeling indicate anything regarding vulnerable populations? Should FSIS propose to allow for a variety of phrases? FSIS is aware that many RTE meat and poultry products already carry shelf-life labeling indicative of product quality. Would allowing different phrases result in consumer confusion? Would allowing quality and safety dates to appear on the same package result in confusion? Should FSIS propose to allow different dates based on handling instructions, for instance: one date if the consumer freezes the product, another if the consumer refrigerates the product?
The current level of benefits does not consider what technical obstacles exist that may reduce the effectiveness of the provisions in the proposed rule to actually reduce listeriosis cases and deaths. FSIS is uncertain about the effectiveness of its proposed testing requirements in reducing listeriosis, and therefore unable to adequately quantify a range of benefits. No research that directly looked into this subject was found in the literature. FSIS intends to use comments and data received during the comment period and at the planned technical conference to refine the proposed regulations and to better estimate benefits. It is of course unlikely that the proposed regulations could achieve complete elimination of the listeriosis that results from contaminated meat and poultry, but FSIS believes that the benefits of the regulations would exceed the total costs of all of the proposed provisions. The current baseline analysis does not consider any private sector benefits that may result from the proposed rule. The impact of fewer recalls, possibly smaller amounts of returned product with better labeling, fewer consumer complaints, and other reduced costs may benefit the establishments that thrive in the new regulatory environment.
The benefits in this analysis are calculated as if they accrue gradually over time. More research into this subject is needed. Although some research has shown that it would take six to eighteen months for industry LM-control efforts to show positive results, little research was found that looked into the time path for benefits.
There are currently no performance standards specific to jerky, meat hotdogs, and
According to one study,
FSIS is replacing prescriptive provisions concerning thermally processed, commercially sterile meat and poultry products with performance standards. The proposed performance standards will ensure that this product continues to be safe. FSIS believes these proposed provisions would not impose any costs because producers could continue to follow the same procedures required under the current regulations. Producers may realize some benefit from the flexibility that will be allowed under the performance standard regulations if they adopt new innovative means of producing the product. However, FSIS could not estimate any benefits that may be derived from replacing these prescriptive provisions with performance standards and requests comment on possible benefits that may be realized.
FSIS is proposing to eliminate its regulations that require both RTE and not-ready-to-eat pork and products containing pork be treated to destroy trichinae (
Over eighteen percent of the first 10 years' total cost of the proposed rule occurs in the first year of program implementation. These costs take the form of one-time outlays related to validation of (1) modifications to HACCP plans and (2) attainment of performance standards. FSIS anticipates that expected industry costs resulting from this proposed rule could be lowered substantially with assistance to deal with these one-time costs.
There may be some consumer welfare losses that result from lower production that may result from this proposed rule. Because some firms may lose market share for their RTE meat and poultry products, consumers may be provided with fewer RTE meat and poultry products in total and a more limited choice among RTE meat and poultry products. Comments are welcome concerning the extent to which this proposed rule may affect the range of RTE meat and poultry products and other issues dealing with consumer choice.
The analysis of the costs associated with performance standards noted that the cost estimate used is highly uncertain, being based on information gathered in a pilot survey. An industry survey is underway and hopefully will address much of the uncertainty of production processes currently employed by producers of these products and their options when faced with higher performance standards. FSIS based the analysis on performance standards on very limited data, much of it received as part of a pilot survey. FSIS requests information concerning the production process for many of these dried and fermented products affected and the options that producers have in dealing with this provision.
Much uncertainty involves the break down of these results by size of establishment. As noted in this analysis and the Regulatory Flexibility Act section, an argument can be made that the proposed rule will disproportionately affect small entities. However, to the extent that validation costs (which can be considered more like fixed costs rather than variable costs) can be reduced, this effect will be minimized. Without these reductions, however, validation costs would tend to disproportionately affect small producers rather than large ones. Any research and assistance to make these needed validations and production adjustments as scale-neutral as possible could dampen the possible disproportionate impact on small entities.
Mandatory food contact surface testing could impose a need to build additional storage for suspected contaminated products to wait in a “test and hold” period. This may affect smaller operations more than larger ones. FSIS requests comments that address this issue.
National Highway Traffic Safety Administration (NHTSA), DOT.
Final rule.
NHTSA is taking action to facilitate the modification of motor vehicles so that persons with disabilities can drive or ride in them. The agency is accomplishing this by issuing a limited exemption from a statutory provision that prohibits specified types of commercial entities from either removing safety equipment or features installed on motor vehicles pursuant to the Federal motor vehicle safety standards or altering the equipment or features so as to adversely affect their performance. The exemption is limited in that it allows repair businesses to modify only certain types of Federally-required safety equipment and features, under specified circumstances.
Petitions for reconsideration should refer to the docket and notice number of this document and be submitted to: Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
For non-legal issues, you may contact Gayle Dalrymple, Office of Crash Avoidance Standards, NPS-20. Telephone: (202) 366-5559. Fax: (202) 366-4329.
For legal issues, you may contact Rebecca MacPherson, Office of Chief Counsel, NCC-20. Telephone: (202) 366-2992. Fax: (202) 366-3820.
You may send mail to these officials at the National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 20590.
We initiated this rulemaking because although the intended effect of the Federal motor vehicle safety standards is to protect the safety of all Americans, the standards can inadvertently limit the mobility of those Americans with disabilities. The vast majority of Americans can drive and/or ride in motor vehicles as they are produced by the motor vehicle manufacturers in full compliance with the Federal motor vehicle safety standards. When they use these vehicles, they benefit from the safety features required by those standards.
However, individuals with disabilities are often unable to drive or ride in a passenger vehicle, such as a passenger car or van, unless it has been specially modified to accommodate their particular conditions. Some modifications, such as the installation of mechanical hand controls or a left foot accelerator, are relatively simple and inexpensive. Others, such as the installation of a joystick that controls steering, acceleration and braking or a lowering of the vehicle floor, can be complex and expensive. In some cases, it is necessary to alter or even remove federally-required safety equipment to make those special modifications. In those cases, it may not be possible to enable individuals with disabilities both to enjoy the opportunity to drive or ride in a motor vehicle as well as to receive the benefits from the full array of federally-required safety features.
The need to alter or remove federally-required safety equipment poses a problem because there is a statutory provision prohibiting making such features inoperative (49 U.S.C. section 30122).
However, the National Highway Traffic Safety Administration (NHTSA) may issue regulations that exempt persons from the “make inoperative” prohibition.
Our policy of handling requests for permission to make modifications on an individual, case-by-case basis does not serve the best interest of the driving public, the vehicle modifiers, or this agency. The case-by-case approach is ill-suited to dealing effectively with the volume of motor vehicles needing modification. We estimate that, as of 1997, approximately 383,000 vehicles had some type of adaptive equipment installed in them to accommodate a driver or passenger with a disability.
Further, the unwieldiness of the case-by-case approach causes many vehicle modifiers to bypass it. The permission granted in the agency letters is directed to specific owners of specific vehicles and cannot be transferred to other owners or other vehicles. Thus, a business performing modifications must obtain written permission for each customer who needs a vehicle modified in a way that adversely affects compliance with the standards. Because agency resources for evaluating individual modification requests are limited, an individual with a disability may wait a significant period of time before the agency can issue a letter stating its intent to not enforce the statute for the vehicle modifications affected. During that time period, the individual may be without any means of independent transportation. Partially as a result of the unwieldiness of this process, only a handful of the vehicles modified annually are covered by a letter from NHTSA granting permission to make a piece of federally-required safety equipment inoperative.
We believe that it is appropriate, therefore, to replace the case-by-case approach with an exemption that accommodates the needs of persons with disabilities and promotes a constructive dialogue between the modifiers and the agency. Congress anticipated the need for such an exemption. The legislative history of the make inoperative provision includes the statement that “exemptions may be warranted for owners with special medical problems, who require special controls * * *.”
In developing the proposed exemption, we sought to balance mobility and safety. To that end, we conducted a comprehensive analysis of both our standards and the types of adaptive equipment currently available. We sought to distinguish between those instances in which there are methods of modification that make it possible, at reasonable cost, to accommodate persons with disabilities while avoiding making the original safety equipment or features inoperative from those instances in which it is not possible to do so. We determined that vehicle modifications fell into the following categories:
1. Modifications that did not affect the original federally-required safety equipment or feature.
2. Modifications that involved the installation of adaptive equipment capable of being operated in lieu of the original equipment, which remained in place and fully operable separately, or in conjunction with the original equipment.
3. Modifications that resulted in making safety equipment inoperative even though other methods of making the modification were readily available that could have accommodated the needs of the disabled occupant at reasonable cost without making the original equipment inoperative.
4. Modifications that made the original equipment inoperative, but either did not appear to lead to a degradation of safety or all methods available to accommodate the needs of the disabled occupant rendered the original equipment or feature inoperative.
5. Modifications that made the original equipment inoperative and resulted in possible degradation of safety so severe that we did not believe an exemption was warranted, and other methods of modification that did not make the original equipment inoperative were either available or a compliant system is easily produced.
In proposing to waive the make inoperative provision for some portions of some safety standards, we determined that modifications in the first two categories listed above did not make the required safety features or equipment inoperative, while modifications in the third category did make the equipment inoperative but could be performed in a way that is consistent with modification performed under the first two categories. Modifications within the fourth and fifth categories could not reasonably be performed in a manner that would not render the original equipment inoperative.
Based on our assessment, we issued a notice of proposed rulemaking (NPRM) on September 28, 1998 (63 FR 51547; Docket No. NHTSA-98-4332-1). We proposed to exempt only those modifications in the fourth category. Modifications within this category did
Thirty-nine comments were submitted addressing details of the NPRM. Only one organization representing persons with disabilities, Access to Independence and Mobility (AIM), commented on the proposed rule. One consumer safety group also commented, as did two vehicle manufacturers, and several modifiers, alterers, and driver rehabilitation specialists.
In general, the comments to the notice were very supportive of our efforts. However, some commenters, primarily Advocates for Highway and Auto Safety (Advocates), vehicle alterers and AIM, raised concerns that the rule, as proposed, would unduly decrease the level of safety provided to persons with disabilities. The primary concern voiced by these entities was that the agency was not proposing to implement a rule that ensured significant, on-going monitoring of vehicle modifications. Other commenters, including modifiers and driver rehabilitation specialists, urged that exemptions be provided for some standards which we had not included in the proposed list of exemptions.
Expressing concerns regarding the safety of vehicle modifications, the University of Virginia Automobile Safety Laboratory urged that on-going studies be performed to identify vehicle modifications that constitute an unreasonable risk to safety. However, the commenter went on to say that it recognized that real world injury data would likely never be available to accurately determine the level of risk involved in vehicle modifications and to fully support NHTSA's proposal to issue limited exemptions.
While the majority of modifiers saw no need to impose any paperwork or labeling requirements on modifiers, Advocates, some alterers, and the State of Connecticut argued that paperwork and/or labels were needed to assure that only necessary modifications were performed or that vehicle owners or subsequent purchasers were aware of the modifications that were performed and that there could be some degradation of overall safety. A lively debate arose among commenters concerning the need for persons with disabilities to have a written prescription detailing the types of modifications needed. These comments were submitted primarily by members of the Association for Driver Rehabilitation Specialists (ADED) on one side of the issue and occupational therapists who are not members of ADED, some modifiers and the State of Connecticut on the other side of the issue.
Based on our review of the comments, we are today issuing a final rule that exempts certain vehicle modifications from the make inoperative provisions. The exemptions are listed in the regulatory text and will become Subpart C of Part 595 of Title 49 of the Code of Federal Regulations (CFR). This preamble explains our response to the comments and our decision to issue the final rule. While it provides important explanations of the agency's rationale in making its decision, the preamble is not part of the regulation. It should, however, be read carefully since it provides important information on why we decided to grant exemptions for some, but not all, standards; what types of modifications require an exemption; who may rely on the exemptions; and what standards may be affected by vehicle modifications, regardless of whether there is an exemption for that modification.
The exemptions adopted in this final rule generally only apply to a portion of each included standard and may have other conditions, such as the installation of wheelchair tie-down devices, placed upon it. The following chart details the standards with respect to which modifications are exempted, as well as those standards for which modifiers need to be aware that certain modifications may expose them to civil penalties.
The final rule largely adopts the proposed rule except for four changes. We will require a permanently affixed label that states the vehicle may no longer comply with all Federal Motor Vehicle Safety Standards. Also, we are allowing limited exemptions for modifications affecting FMVSS Nos. 123, 201 and 114.
In the NPRM, we proposed to issue exemptions for modifications affecting some, but not all, Federal motor vehicle safety standards. The number of exemptions was restricted for several reasons. First, the needed vehicle modifications have no impact on the safety features installed in compliance with many standards; thus, there is no need in those cases for an exemption from the make inoperative provision. Second, we decided that if, after modifications are made, the original equipment remains fully functional and readily usable by drivers or passengers other than the individual with a disability, we would not consider the modifications as making the safety equipment inoperative even though the adaptive equipment itself may not be able to meet the requirements of the affected safety standard.
Advocates was particularly vocal in expressing the belief that the NPRM did not do enough to promote the safety of persons with disabilities. As an initial matter, it challenged whether there was a need for an exemption and whether issuing an exemption would serve the interests of motor vehicle safety, stating
Advocates maintained that granting a blanket exemption from a number of the safety standards to all persons engaged in the business of altering or modifying vehicles for use by the disabled drivers does nothing to assure disabled occupants that their vehicles will be altered properly and safely, that modifiers will make only those changes permitted by the exemption and will certify their work, or that future purchasers will be informed that the safety equipment has been rendered inoperable. That organization noted that the agency acknowledged in the NPRM that a substantial number of vehicle modifiers “do not possess sufficient knowledge of the standards to judge whether a particular modification may affect a vehicle's compliance with the standards. Advocates stated that it could not understand how the proposed exemption would resolve problems posed by this lack of knowledge, stop modifiers' from performing modifications that negatively impact safety and provide adequate safety for the disabled. While acknowledging that a listing of the standards or the portions of the standard that are subject to exemption provide some clarity, it argued that
While Advocates expressed support for vehicle modifications, including safety equipment, that are necessary to meet the mobility needs of disabled persons, it also said that the agency should adopt a stronger regulatory presence in this burgeoning area of motor vehicle safety. That organization maintained that providing a blanket exemption with no oversight fails to ensure an appropriate balance between mobility and safety, and invites abusive practices and inadequate and unsafe modifications.
Finally, Advocates claimed that the agency is proposing a broad exemption, with corollary proposals to eliminate any form of reporting or even of vehicle labeling advising of modifications, and that the proposed change in basic agency policy relinquishes fundamental oversight responsibilities at a time when effective oversight of vehicle modifications is becoming more pervasive and more important. Advocates then averred that NHTSA must maintain agency supervision and oversight of the issue, collect essential data on vehicle modifications for the disabled, and provide consumer safety information for the disabled and future purchasers of vehicles altered to accommodate the disabled.
Vantage Mini-vans, a manufacturer of minivans designed for persons with disabilities, stated that consumers deserve to drive a vehicle that meets certain safety standards. It argued that if modifications are required to make a vehicle wheelchair accessible, the consumer should know that there are no other options available other than those necessary to take the vehicle out of compliance. It said also that if there were a viable option available that would enable to modifier to leave the original safety features intact, that option should be preferred or required. After acknowledging that the companies that modify vehicles for the disabled are often very small and do not have the financial resources to crash test for every conceivable configuration of adaptive equipment, Vantage went on to state that, for modifications involving hand controls, steering modifications and seat belt modifications, an exemption for modifications affecting compliance with the relevant FMVSSs may be in order, provided another viable alternative is not available that would not take the vehicle out of compliance.
We agree that these commenters have expressed legitimate concerns. We have decided to issue a final rule establishing limited exemptions because we believe this is the best way at this time to promote the mobility of persons with disabilities while ensuring some level of safety for those persons. We also strongly recommend that equipment manufacturers, vehicle modifiers, and driver evaluators work together to ensure that the installed equipment is appropriate for both the particular vehicle and the driver, considering factors such as vehicle geometry and driver size before selecting the equipment to be installed.
We disagree with Advocates' characterization of the exemptions as broad-based. The exemptions should be viewed in the context of all standards issued by NHTSA. The exemptions have been tailored to allow for the least amount of degradation possible. The majority of modifications subject to an exemption will not result in any degradation of safety. This is because many of the exemptions are designed to address design criteria within the applicable standards that have no impact on vehicle performance. For example, FMVSS No. 135 requires the brake be operated by a foot control, even though this requirement was included in the standard to achieve harmonization rather than because of a need based on engineering principles. Modifications affecting some standards, like FMVSS No. 201, could result in a degradation of safety, but cannot be accommodated any other way. FMVSS 201 requires that test results of impacts with certain targets on specific areas of the vehicle fall below a certain level. When a lift is installed in a vehicle, the stowed platform blocks some target points. Requiring compliance with FMVSS 201 would prevent an individual who must use a wheelchair from driving or riding in a vehicle,
As pointed out by the University of Virginia, we do not have firm statistics on the effect of current vehicle modifications on vehicle safety. Current methods of obtaining motor vehicle safety statistics are based on total vehicle populations within classes of vehicles (e.g., passenger cars, light trucks). We will likely never have sufficient data to verify that modified vehicles are providing a level of safety comparable to that of non-modified vehicles. Merely identifying dangerously modified vehicles is like finding the proverbial needle in a haystack. Drawing a statistically significant correlation between such vehicles and the overall fleet that comprises our databases would be even more difficult. However, we do not believe the lack of data justifies inaction on our part.
If we do not issue a regulation providing some measure of relief to persons with disabilities, there are two likely outcomes: modifications will continue to be performed with no agency oversight, and a significant number of persons with disabilities will be unable to drive or ride in personal vehicles.
We have analyzed both available methods of making necessary modifications and our standards to determine where exemptions may be needed in order to provide reasonable accommodation of the needs of persons with disabilities. In instances in which we believe the cost of a modification that does not affect compliance with the FVMSSs is reasonable enough to be viable, we have decided against issuing an exemption. Likewise, we are not issuing exemptions for standards that address a severe risk of injury or death when alternative modification methods are available or should be easily developed. This may mean that the manufacturers of some adaptive equipment will need to either retool their products or stop selling them. Thus, far from being a “blanket exemption,” today's rule affects only those areas where we believe there is a minimal reduction in safety, if any.
We have decided against requiring the type of agency oversight that Advocates appears to support; i.e., approval of each modification, because such oversight has proved unworkable in the past. We receive relatively few requests to grant an exemption for the modification of specific vehicles. As discussed in the NPRM, the number of vehicles modified significantly exceeds the number of exemption requests received by this agency. Additionally, NHTSA simply does not have the staff available to review every vehicle modification request for persons with disabilities in a reasonable amount of time. Thus, today's rule more effectively analyzes the level of risk involved than the case-by-case determinations that are currently provided. Likewise, we have decided against requiring modifiers to submit detailed records of all modifications to NHTSA. Such submissions would serve no value unless they were scrutinized by agency staff who would make independent determinations as to the appropriateness of the modifications. As is the case with pre-modification submissions, we simply do not have the staff to conduct such a review. We do note that nothing in today's rule restricts our ability to bring enforcement actions against entities that make modifications that go beyond or are inconsistent with these exemptions pursuant to our statutory authority under 49 U.S.C. 30122.
We also acknowledge that today's rule does not, in and of itself, guarantee that vehicle modifications will only be performed subject to the exemptions. Today's rule will provide responsible modifiers the ability to make needed modifications without fear of running afoul of the law. It also alerts these modifiers that they need to exercise special care in performing certain modifications. In some instances, these modifiers will be required to stop performing certain modifications that they may have believed were safe. We believe this rule, in conjunction with the existing industry standards and our consumer information brochure, will significantly reduce the likelihood that vehicle modifications will be made in a manner that places the vehicle occupants at undue risk.
We have decided against adopting the position advocated by Vantage that would require all modifications be performed in conformance with all applicable safety standards unless no other method exists for performing the modification. Certainly we agree that all modifications should be performed in a manner that minimizes the impact on vehicle conformance with all safety standards. However, such a requirement would be unenforceable, since it is inherently unobjective. Instead, we believe that the criteria we have employed in determining whether an exemption is appropriate adequately ensures that modifications that are likely to have an impact on motor vehicle safety are only exempted when they cannot be done in a manner that does not void the vehicle's compliance with the standards.
In the NPRM, we proposed that the exemptions to the make inoperative provision would be available to dealers and repair businesses. Under our statutory authority, we can also issue exemptions to manufacturers and distributors.
Volvo commented that the exemptions should also apply to vehicle manufacturers since the logic presented in the NPRM appears to apply to manufacturers as well as modifiers. Independent Mobility Systems voiced a concern that vehicle alterers, who have the duty to certify, may believe the exemptions apply to them. The National Automobile Dealers Association (NADA) urged NHTSA to clarify that a “first purchase of a vehicle in good faith for purposes other than retail” occurs when a contract for sale is entered into between a new vehicle dealer and a purchaser. NADA argued that such a definition would ensure that only a small percentage of disability-related modifications will constitute “alterations” under NHTSA's regulations, thereby minimizing the number of modifications that will be eligible for the “make inoperative” exemption.
We do not believe that vehicle manufacturers, including alterers, should be allowed to take advantage of the exemptions in today's rule. The need for an exemption arises from two sources:
• The need to custom fit the vehicle to the disabled individual's needs and/or
• Compliance with the applicable standards could only be demonstrated by testing the vehicle after all pertinent modifications have been made, potentially destroying a unique vehicle.
We do not believe manufacturers need an exemption for either reason because they do not custom fit their vehicles. Instead, they produce a vehicle that possesses many, but not all, of the attributes needed by the end user of the vehicle.
Individuals purchasing vehicles that need to be modified to accommodate a disability may enter into extensive negotiations with a dealership whereby the dealership procures the vehicle and arranges to have a business that specializes in such modifications perform the actual work. Vehicle title may or may not be passed to the end user before the modifications are made, depending on who is paying for the modifications. Often a state or the Federal government picks up the cost of some or all of the modified vehicle. They may wish to be assured that the required modifications are completed in a satisfactory manner before they submit payment for the vehicle. In such an instance, the business performing the modifications could be placed in the position of an alterer for reasons beyond its control. Thus, we believe that it is appropriate to define a “first purchase of a vehicle in good faith for purposes other than retail” as something other than the transfer of title. On the other hand, we believe that more is required than general inquiries about the availability of a suitable vehicle, since there is no firm commitment to purchase a vehicle at that time.
We have decided to define “first purchase of a vehicle in good faith for purposes other than retail” for purposes of this rule as the point at which the seller and the end user enter into a sales contract that identifies a specific vehicle to be delivered. This definition will reduce the risk of a business being deemed an alterer because it is unable to transfer title at the time the modifications are made, while ensuring that businesses do not use the exemptions to produce “showroom” vehicles that have been significantly altered but have not been fitted for a particular customer.
We are also aware of instances in which vehicle manufacturers modify vehicles for a specific customer after the vehicle has been certified as a compliant vehicle. Several vehicle manufacturers have expressed concern in the context of the exemptions for retrofit air bag on-off switches that they cannot install a retrofit on-off switch because they are not a dealer or repair business. Similar concerns exist in this rulemaking as well. 49 CFR part 595 controls both retrofit switches and modifications to vehicles for persons with disabilities. “Motor vehicle repair business” is defined in 49 U.S.C. section 30122(a) as “a person holding itself out to the public to repair for compensation a motor vehicle or motor vehicle equipment.” Part 595 clarifies that this term includes businesses that receive compensation for servicing vehicles without malfunctioning or broken parts or systems by adding or removing features or components to or from those vehicles or otherwise customizing those vehicles. 49 CFR 595.4. Thus, a modifier would be a motor vehicle repair business within the context of Part 595.
However, a manufacturer or dealer could also be a motor vehicle repair business depending on the type of service provided in a particular circumstance. For instance, if an individual takes his or her vehicle into the dealership for repairs, the dealership is acting as a motor vehicle repair business, rather than as a “dealer.” In some instances, vehicle manufacturers will send technicians to work on a problem that is particularly difficult to resolve. A manufacturer could also have a vehicle transported to a centralized facility to perform a particularly difficult repair. In both instances, the vehicle manufacturer is operating as a motor vehicle repair business rather than as a manufacturer of the vehicle. We believe that the same situation should exist for exemptions under Part 595, if the business is not operating in its primary capacity as a dealer or manufacturer. If a dealer or manufacturer adds or removes features to or from a vehicle, or otherwise customizes a vehicle after the first purchase of a vehicle in good faith for purposes other than retail, then the dealer or manufacturer may utilize the exemptions detailed in Part 595. Because a dealer can also be a motor vehicle repair business, referencing dealers in the regulatory text is redundant. Accordingly, the term has been removed.
The purpose of FMVSS No. 101 is to ensure the accessibility and visibility of motor vehicle controls and displays to reduce the diversion of the driver's attention from driving and mistakes in selecting controls. In the NPRM, we proposed exempting all of the standard
Only the Texas Transportation Institute (TTI) commented on the proposed exemption. TTI argued against an exemption to S5.2(a), positing that the lack of an exemption will require modifiers to use the symbols required by FMVSS No. 101, giving uniformity to secondary control keypads, an area that currently is not uniform. We have decided against providing an exemption to S5.2(a) because we agree that uniformity is desirable and compliance with the standard is easily accomplished.
FMVSS No. 108 is designed to ensure that roadways are adequately illuminated, drivers can signal their intentions to others, and vehicles are conspicuous. We had proposed to include S5.1.1.5, which requires a turn signal be self-canceling when the steering wheel rotates within the exemption. The exemption would be
We received several responses to our questions. According to one commenter, some horizontal systems remove the OEM turn signal lever. TTI noted that in other instances, a user is unable to operate the OEM turn signals and a redundant circuit is used. These systems may leave the OEM equipment intact but use a timed circuit to cancel the signal. TTI went on to maintain that these provisions can and should be required for all modifications. However, MossRehab, a driving school for people with disabilities, commented that floor-mounted hand controls generally have turn signal operation incorporated into the controls unit. These signals are not self-canceling. MossRehab went on to state that it finds manual signals to be preferable to the timed self-canceling signals.
Based on the comments, we have decided to issue the exemption as proposed. If some systems work better without a self-canceling feature, we are disinclined to prohibit that technology.
We originally did not propose to allow an exemption for FMVSS No. 114 because we did not believe that any vehicle modifications would have the effect of rendering equipment installed in compliance with this standard inoperative. The standard is intended to reduce the incidence of crashes from the unauthorized operation of a vehicle and from the rollaway of vehicles with automatic transmissions that result from children playing with the gear shifts of parked vehicles.
TTI and the California Department of Rehabilitation urged us to include this standard within the exemption. According to TTI, an exemption should be added for FMVSS No. 114 since the ignition key switch is routinely replaced by a pushbutton or keypad. Many severely disabled drivers cannot use a conventional ignition key. Additionally, the steering column housing the ignition is often removed. Theft is unlikely given the formidable appearance of adaptive equipment. The California Department of Rehabilitation expressed a different concern. It argued that FMVSS No. 114 should be included because anyone who knew how to bypass a steering wheel lock function that was not key operable would know enough about the system to bypass it in any case.
Previous interpretations by our Office of the Chief Counsel regarding the use of a device other than a traditional key to meet the requirements of this standard have stated that a push button code can be a key.
Standard No. 118 specifies requirements for the operation of power-operated windows, partitions, and roof panels to help prevent injury or death from a window, partition, or panel closing on vehicle occupants, particularly children. The agency proposed to include S4(a) of the standard when a remote ignition device is necessary to accommodate an individual's disability. The exempted paragraph requires that ignition key be in the “start,” “on,” or “accessory” position in order to close the vehicle's power windows, partitions, or roof panels.
We received no comments on this proposal and it is being adopted in this rule as originally proposed.
FMVSS No. 123 specifies requirements for the location, operation, identification, and illumination of motorcycle controls and displays, as well as requirements for motorcycle stands and footrests. Because we believed there are no common vehicle modifications that should affect this standard, it was not discussed in the NPRM. ADED commented that modifications to motorcycle controls should be addressed so that such modifications are done in the safest manner possible.
We are now aware that some individuals with disabilities have their motorcycles modified so that they can ride on them. Such modifications could affect the placement of controls. S5.1 and S5.2.1 contain requirements that certain controls (engine stop, brake, clutch, etc) be activated by a hand or foot on a particular side of the body. The purpose of the requirements contained in these sections is to ensure safety of motorcycle operation through uniformity of controls location and operation. These requirements may be inconsistent with a particular person's disability. In those instances, the needed modification could not be performed in a manner consistent with the requirements of the standard. Uniformity of control location and operation is not a safety issue for persons with disabilities since their vehicles have been custom modified, therefore there would be no degradation of safety if controls are switched from one side to the other, or from the foot to the hand, as long as vehicle functions are not degraded. Accordingly, we have decided to allow exemption from S5.1 and S5.2.1 of FMVSS 123, when changes to motorcycle controls are necessary to allow a person with disabilities to operate his or her motorcycle.
Standard No. 135 specifies requirements for the service brake and associated parking brake systems to ensure safe braking performance under normal and emergency braking conditions. S5.3.1 of the standard requires a foot control to operate the brakes. Believing that this foot control may need to be removed to accommodate some physical conditions, we proposed to provide an exemption from that paragraph. We sought comment on whether there are brake modifications that incapacitate the original brake controls and would affect the vehicle's compliance in any of the required performance tests. We were particularly interested in learning whether the use of a joy stick prevented an able-bodied driver from using the original brake pedal and whether either a joy stick or a power assist affects the vehicle's braking potential during the specified performance tests.
We received numerous comments about this proposed exemption. As an initial matter, it does not appear that either joy sticks or power assists have an effect on a vehicle's braking potential during the performance tests specified
Significant disagreement arose over whether it was ever necessary to remove the brake foot pedal to accommodate a disability. Several commenters stated that they had never seen the brake pedal removed and that a removable guard be placed over or in front of the pedal if needed. The California Department of Rehabilitation argued that pedals should not be removed or blocked by adaptive equipment because non-disabled individuals need to be able to drive vehicle if necessary. TTI stated that while there may be instances in which the foot pedal needs to be removed, such an extreme modification should not be the subject of a generic exemption but should be addressed by the agency on a case-by-case basis.
Other commenters, notably NMEDA and AIM, argued that an exemption from S5.3.1 is appropriate as some conditions, such as cerebral palsy, can lead to spasms that may require the removal of the OEM foot pedals. NMEDA also stated that some technology cannot separate braking functions from steering functions, such that the OEM equipment becomes redundant. NMEDA also noted that concerns with spasms can generally be accommodated by placing a guard over the pedal.
A commenter representing the Connecticut Department of Motor Vehicles noted that any exemption to this standard should not include the requirement for an emergency braking system if a single hydraulic component fails. He noted that this function is often inadvertently eliminated in current modifications.
As proposed and adopted, the exemption to FMVSS No. 135 is limited to S5.3.1, which requires a foot control. No other portions of the standard are subject to an exemption and modifiers need to assure that all other portions of the standard, including that requiring emergency braking, are adhered to. We have decided to issue an exemption for the foot control even though the commenters stated that a pedal guard would generally resolve any potential problems. We have decided to provide an exemption for two reasons. First of all, neither FMVSS No. 105 or FMVSS No. 121 requires braking via a foot pedal. The requirement for such a pedal in FMVSS No. 135 is overly restrictive. Second, we are aware of instances where the installation of a pedal guard will not accommodate a disability. This occurs when the individual needing the accommodation is positioned in the vehicle in such a way that there is inadequate leg room. In this instance, the pedal can interfere with the individual's ability to fit in the vehicle. Since foot pedals are only rarely removed now, we do not believe that this exemption will lead to widespread removal of pedals.
Standard No. 201 specifies requirements to afford protection to vehicle occupants when they strike the interior of the vehicle. While we are aware that some modifications could affect the vehicle's compliance with the standard, we did not propose extending an exemption to the standard. However, we did seek comment on whether the changes in upper interior component padding would impinge on a large, wheelchair-seated driver's line of sight.
In general, several commenters, including TTI, DaimlerChrysler, Ahnafield and Todd Vans, stated that there would be no need to provide an exemption as a result of increased padding installed by the original manufacturer because dropped floors will place the driver's line of sight at the same level as an individual seated in the original vehicle seat.
NMEDA urged us to apply the exemption to wheelchair lifts and ramps that are stowed inside the vehicle while the vehicle is in use. According to this commenter, vehicles equipped with interior-mounted wheelchair lifts or ramps cannot reasonably comply with the standard because of the rigid surface of the lifts or ramps that are not susceptible to padding. Placing a padded barrier between the lift or ramp and the occupant would be unwieldy and likely would not be used. While lifts or ramps that stow under the vehicle would not implicate FMVSS No. 201, they are generally three times as expensive as systems that are stowed inside the vehicle. Thus, NMEDA requested an exemption from the standard when the lift or ramp is stowed aft of the vehicle's B-pillar.
We believe NMEDA's concerns are valid and are accommodating those concerns in this rule. The exemption applies to vehicles that have lifts or ramps that stow inside the vehicle and block the test targets called for in the standard. The exemption applies to the following:
• A right- or left-side mounted lift or ramp with a platform that stows vertically and inside the vehicle for targets located on the right or left side rail, the B-pillar, and the first “other” pillar (not the A-pillar) adjacent to the stowed platform or ramp.
• A rear-mounted lift or ramp with a platform that stows vertically and inside the vehicle for targets located on the rear header and rearmost pillars adjacent to the stowed platform or ramp.
To reduce the frequency and severity of neck injuries in rear-end and other collisions, Standard No. 202 requires all vehicles to be equipped with a head restraint at each front outboard seating position that meets specific size and performance requirements. In the NPRM, we proposed to include the standard in the exemption when the vehicle is modified for a wheelchair-seated driver or front seat passenger, and no other seat for the affected seating position is provided, or when the head restraint must be altered to accommodate a driver's impairment. The agency solicited comment on whether any wheelchair head rests were likely to meet the requirements of the standard.
All commenters addressing this standard agreed that neither swing away head rests or attachable head rests could meet the standard. Accordingly, we included the standard as part of the exemption as proposed in the NPRM.
FMVSS No. 203 serves to reduce the likelihood and severity of head, chest,
The Connecticut Department of Motor Vehicles stated that FMVSS No. 204 should not be exempted since there is no need to remove the lower steering shaft in newer systems and when the entire steering column is removed, the method of attachment is not robust enough to allow the column to transmit sufficient forces to fail FMVSS No. 204. However, both TTI and Ahnafield supported including the standard as part of the proposed exemption. According to TTI, servo steering adaptations may require the removal of the OEM steering column and associated equipment. Servo steering units are replacing horizontal steering columns in some areas of the country. Ahnafield remarked that horizontal steering systems may affect compliance with the standard. Ahnafield also requested an exemption for S5.2 of Standard No. 203, which restricts the likelihood that jewelry or loose clothing will be caught by the steering control, pointing out that jewelry can become caught on steering wheel-mounted steering control devices.
Notwithstanding the comment from the Connecticut Department of Motor Vehicles, we have decided to include S5.1 of FMVSS No. 203 and FMVSS No. 204, in its entirety, as part of the exemption. This is because other commenters indicated that at least some current market designs for adaptive steering systems do affect compliance with the standards. We do not believe that the steering column should be replaced with a non-compliant column except in the most extraordinary circumstances since the replacement of the column alone can generally be done in a manner that does not run afoul of the standards. Thus, the exemption is restricted to cases where the modification involves the removal of the steering shaft, rather than the steering column alone. In instances where the steering shaft must be removed, we will allow the modifier to also replace the steering column. This is because a modification that requires the removal of the steering shaft is so drastic that there is no way to effect the modification without taking the steering column out of compliance with the standards.
We have decided to include S5.2 of FMVSS No. 203 in the exemption as well. Some steering control devices are inherently incompatible with loose jewelry and clothing. We do not believe that a device that could catch loose clothing and jewelry is necessarily a poor design choice for individuals with certain disabilities. Since these steering control devices cannot be installed without running afoul of S5.2, we believe an exemption is appropriate in cases in which an item of adaptive equipment must be mounted on the steering wheel.
To minimize the likelihood that a seat will collapse during a collision, FMVSS No. 207 requires vehicle seats to meet certain performance, installation, and attachment requirements. In the NPRM, we proposed to include S4.1 of the standard in the exemption when the vehicle is modified for a wheelchair seated driver and no other seat for that seating position is provided and a wheelchair securement device is supplied for that seating position. S4.1 requires that a compliant driver's seat be provided with the vehicle. Removing seats other than the driver's seat to replace the seat with a wheelchair location does not make inoperative FMVSS No. 207, because no other seats are specifically required by the standard and wheelchairs are not regulated as vehicle seats.
DaimlerChrysler stated that the exemption should also be given for passenger seats. We have not proposed to do so because the standard does not require that the vehicle come equipped with any seats other than one for the driver.
MossRehab agreed with our assessment in the NPRM that 6-way power base seats do not need an exemption because the base of the seat should be attached to the floor. It did question, however, whether the seat portion would remain on its base. We do not believe an exemption for 6-way power seat base is appropriate because the seat manufacturer should be able to assure that the seat does not separate from the vehicle. Likewise, the seating portion of the seat should remain attached to the base portion of the seat. Accordingly, we are limiting inclusion of FMVSS No. 207 in the exemption to S4.1, given a wheelchair securement device is supplied for the driver seating position, as proposed in the NPRM.
The purpose of FMVSS No. 208 is to reduce the number of vehicle occupant injuries incurred in a collision. We recommended including the standard in the exemption as long as Type 2 or Type 2A seat belts meeting the requirements of FMVSS No. 209 are installed. An exemption would not be available if a retrofit air bag on-off switch was sufficient to accommodate the individual's disability. NHTSA sought comment from lowered floor minivan alterers on whether they have been able to certify compliance with the standard and from hand control operators on whether the original components installed to meet the standard (e.g., knee bolsters) are made inoperative by the installation of the hand controls. Finally, we sought comment from modifiers on how often they are required to disable seat belt pretensioners and why.
Comments focused on two separate requirements of the standard: air bags and knee bolsters. MossRehab stated that there are many situations in which drivers cannot position themselves far enough away from the air bag to avoid injury. Individuals who use hand controls to operate acceleration and braking may sit much closer to the wheel than is typical. According to Ahnafield, people with limited mobility do not need to sit close to the steering wheel; they can use remote devices. Independent Mobility Systems stated that there should not be a blanket inclusion of FMVSS No. 208 in the exemption, since able-bodied individuals would lose the benefit of the occupant protection system. It argued that an exemption for FMVSS No. 208 should be limited to a seating position occupied by a wheelchair. We believe this comment was directed primarily to the deactivation of the air bags.
Commenters noted that generally the installation of hand controls requires the removal of some part of the knee bolster. TTI maintained that careful
As discussed in the NPRM, only some portions of FMVSS No. 208 would be included in the exemption, and the exemption would only apply in instances where a retrofit air bag on-off switch cannot accommodate the individual's disability and the modified seating position is provided with Type 2 or Type 2A safety belts that meet the requirements of FMVSS Nos. 209 and 210.
Because of this rule, individuals who need modifications that include, but are not limited to, the installation of an air bag on-off switch or the permanent disconnection of the air bag do not need to first request permission from the agency under its existing processes for authorizing on-off switches or permanent deactivation. That permission is given here. However, with the limited exceptions discussed below, individuals who do not require
We note that air bag on-off switches will no longer be allowed after September 1, 2012 for individuals other than those who are entitled to take advantage of this rule's exemption.
Standard No. 214's requirements serve to minimize the risk of serious or fatal injuries to vehicle occupants in side impact collisions. In the NPRM, we proposed to include S5 of the standard in the exemption. This paragraph details the dynamic performance requirements that vehicles must meet in order to comply with the standard. We requested comments on whether there were modifications, other than those that change the seat position, that would affect a vehicle's compliance with the dynamic performance requirements of the standard.
Only one commenter, NMEDA, responded to this request. It stated that modifications would not necessarily reduce door strength to an extent that the strength requirement of the standard could not be met. However, the controls or displays could be positioned between the driver and the side of the vehicles such that the thoracic injury criteria of S5.1 could not be met. Likewise, for rear seat occupants, a stowed lift could fail the standard's injury criteria.
We are limiting the exemption to instances where the restraint system or the seat must be changed to accommodate a person with a disability. We believe the exemption is appropriate in this instance because the change in the location of the seat or in the restraint system could affect the measurement of the injury criteria specified in the standard. We do not believe it is necessary to include the standard in the exemption to accommodate equipment mounted between the driver and the door (such as touch pads), because this equipment is generally light and would not be likely to cause the chest injuries that the standard seeks to prevent. We also note that FMVSS No. 214 already excludes vehicles with wheelchair lifts from the requirements of S3(f) and S5. Thus, an exemption for vehicles equipped with wheelchair lifts is unnecessary.
A detailed discussion of the types of vehicle modifications that could affect a vehicle's conformance with a specific safety standard can be found in the NPRM. Unless expressly addressed in the responses to that document, we will not describe those systems again here.
a.
NMEDA replied that it is aware of one touchpad system where the transmission shifter is located in the keypad which could change the sequence, disable the starter interlock, or disable the lower forward drive gear. We have decided against including Standard No. 102 as part of the exemption because we believe that the existence of a single, noncomplying system is insufficient to justify an exemption to the standard. Other, complying systems are available. We also note that merely placing the shifter on a touchpad does not make the original equipment inoperative. As stated in our withdrawal of rulemaking on this standard in November 1999, “Standard No. 102 only specifies a sequence for shift ‘levers.’ Therefore, possible automatic transmission designs like pushbuttons, keypads, and touch screens are not subject to the shift lever sequence requirements, since they have no levers.”
b.
c.
Our discussion of braking systems, as well as our summary of the comments submitted to the NPRM, are provided earlier in the discussion on FMVSS No. 135. Unlike that standard, neither of these standards require a foot control. Accordingly, no exemption is needed.
d.
e.
f.
DaimlerChrysler noted that it is aware of complete servocontrol systems that use a joystick that may preclude the use of the accelerator pedal and require its removal. We believe that this situation is directly analogous to brake pedals and the requirements of FMVSS Nos. 105 and 121. For the same reasons provided in the discussion of those standards, we do not believe an exemption is needed. Additionally, we note that systems where the hand-operated control bypasses the original accelerator and the modified accelerator cannot meet the requirements of the standard, an exemption would be inappropriate because the driver may be unable to stop the vehicle.
g.
All commenters who responded to the portion of the NPRM addressing this standard except DaimlerChrysler argued that an exemption should be allowed for the standard. DaimlerChrysler stated that the use of existing occupant restraints is more important in reducing the likelihood of ejection than a compliant door latch. Some electrically and remotely operated door systems do not retain the original latch/locking mechanism. However, there are some power-operated door lock/latch systems that are coupled with the OEM latch/lock systems; accordingly, no exemption is needed. The standard currently has an exclusion for side doors equipped with platform lifts as long as the lifts are linked with an alarm system. We sought comment in the NPRM on whether the original latching mechanisms must be disabled or changed in the course of vehicle modifications in a manner that takes them out of compliance with the standard.
TTI stated that all the sliding door or swinging door automatic openers that it has encountered on full-size van conversions involve the removal of or making inoperative the OEM latches. The doors are held shut by the cable, chain or actuator arms of the automatic door opener (the minivan conversions retain the OEM latch in some form). TTI does not know if these systems are as effective as the OEM latches. However, for independent driving, an automatic door opener is crucial.
NMEDA commented that all after-market automatic door openers require the removal of the OEM systems. The OEM automatic door openers are not yet available to modifiers. In the same vein, Crow River suggested a temporary exemption to allow for the retooling of existing automatic door openers.
The California Department of Transportation stated that NHTSA should include FMVSS No. 206 in the list of exempted standards, because no aftermarket door openers retain the OEM latch. This commenter believes that the fact that no one has presented any evidence that discarding the door latch is
We are evaluating the current exclusion in FMVSS No. 206 regarding side doors with lifts. Part of this evaluation includes the pending petition to extend the exclusion to vehicles with ramps. We are not addressing that exclusion in this rule. We have decided against allowing a broader exclusion from Standard No. 206 as part of this rulemaking even though several commenters support such an exclusion. The primary purpose of the standard is to prevent ejections from vehicles. Currently, ejection through windows or doors accounts for nearly 25% of all motor vehicle fatalities.
We agree with DaimlerChrysler that extending the exemption to FMVSS No. 206 would be inappropriate. While most of the existing modifications to vehicle doors may take the vehicle out of
h.
i.
Only TTI commented on this section of the notice, commenting that it was not always possible for wheelchair users to use the original safety belt. As noted in the NPRM, compliance with this standard is easily demonstrated. Accordingly, no exemption is warranted.
j.
NMEDA commented that the available replacement roofs that it is aware of do not assure compliance with FMVSS No. 216. However, reinforcements can be added that would not take the raised roof out of compliance. According to TTI, many vocational rehabilitation agencies require raised roofs to be supplemented by a reinforced structure under the roof. However, the California Department of Rehabilitation cautioned that the added weight to raised roofs to prevent roof crush creates handling problems that should not be discounted.
Our Office of Vehicle Safety Compliance has done one demonstration test using the FMVSS No. 216 compliance test on a conversion van that was fitted with a fiberglass roof and that did not have a reinforcing cage. The vehicle was able to pass the test. Accordingly, we do not believe it is necessary to include this standard in the exemption.
k.
Congressman John Moakley wrote that exemptions should not be allowed for modifications to fuel systems that would take a vehicle out of compliance because conversions can be performed that do not affect the alteration of the fuel system. Likewise, NMEDA commented that no exemption should be offered for FMVSS Nos. 301 and 303 because the process of moving the fuel tank, supply lines, and filler neck while lowering a floor can compromise compliance with the standards. Ahnafield claimed that there have never been any reported or documented problems with the fuel system modifications that have been made by the industry so far. We continue to believe that including Standard Nos. 301 and 303 in the exemption is inappropriate.
l.
We received no comments suggesting that an exemption was either needed or appropriate. Accordingly, we are not including the standard in this rule.
We believe the following safety standards are unaffected by any vehicle modifications needed to accommodate an individual with a disability. None of the commenters to the NPRM indicated that these standards could be so affected. These standards are not subject to an exemption from the make inoperative provision: FMVSS No. 106, Brake hoses; FMVSS No. 109, New pneumatic tires; FMVSS No. 110, Tire selection and rims; FMVSS No. 116, Motor vehicle brake fluids; FMVSS No. 117, Retreaded pneumatic tires; FMVSS No. 119, New pneumatic tires for vehicles other than passenger cars; FMVSS No. 120, Tire selection and rims for vehicles other than passenger cars; FMVSS No. 122, Motorcycle brake systems; FMVSS No. 125, Warning devices; FMVSS No. 129, New non-pneumatic tires for passenger cars; FMVSS No. 131, School bus pedestrian safety devices; FMVSS No. 205, Glazing materials; FMVSS No. 212, Windshield mounting; FMVSS No. 213, Child restraint systems; FMVSS No. 217, Bus emergency exits and window retention and release; FMVSS No. 218, Motorcycle helmets; FMVSS No. 219, Windshield zone intrusion; FMVSS No.
In the NPRM, we stated that we intended to preserve our existing procedure for making case-by-case determinations on whether to waive enforcement against modifications that would not be subject to the exemption under final rule and that could not be made in a manner that did not compromise the vehicle's compliance with the standards. NMEDA and Advocates for Ohioans with Disabilities agreed that we need to provide some mechanism that will allow for adaptations not contemplated by the NPRM. We have decided to continue to review these individual requests upon written submission. All requests should be submitted as early as possible, since the agency will need time to review the request and draft an appropriate response.
Gross vehicle weight ratings (GVWR) are not controlled by any specific standard. However, the requirements of a given standard may vary depending on a vehicle's GVWR. Only the vehicle manufacturer can specify GVWR. Often vehicle modifications can significantly add to a vehicle's “unloaded vehicle weight” and therefore can reduce the load carrying capacity of a vehicle. Consumers would likely not realize, and often are not told, that the load carrying capacity of their vehicle, in terms of passengers, luggage, and routine cargo, has been reduced by the vehicle modifications. Overloading can lead to premature wear of vehicle components and can create significant safety problems. Accordingly, the modifier must provide the consumer with specific information about the load carrying capacity of the vehicle after the modifications are completed if that load carrying capacity has been reduced by more than 220 pounds (100 kg). In providing this information, the modifier must state whether the weight of a user's wheelchair is included in the available load capacity.
Two commenters raised concerns that were unique to commercial vehicles. Congressman John Moakley wrote that commercial vehicles should only be allowed to transport passengers using SAE-compliant wheelchairs that are tested in the specific conversion in which they will be used. Suspension Compression Systems strongly disagreed with including any standard in the exemption that affects the front seat passenger seat position in commercial applications, in particular FMVSS Nos. 201, 202 and 208, averring that the front seat occupant has not made a conscious choice to trade off safety benefits for increased mobility. We do not believe there is a need to exclude commercial vehicles from the exemption created by this rule.
Most commercial vehicles used for transporting persons with disabilities can be altered prior to their first retail sale since there is no need to fit the vehicle for a specific individual. In such a case, there is no exemption from any standards. In instances in which the vehicle is modified after the first retail sale, we believe that prohibiting modifiers from utilizing the exemption because of the commercial/personal use status of the vehicle is unworkable. Such a prohibition would place the onus on the modifier rather than the owner to determine how the vehicle would be used. Additionally, we note that Congressman Moakley's suggestion would require that each commercial vehicle come with SAE-compliant wheelchairs since the vehicle operator would have no other way of guaranteeing that passengers have such wheelchairs. Such a requirement would seriously limit the amount of space available in the vehicle since the passengers' personal wheelchair would have to be stowed somewhere on the vehicle. Likewise, prohibiting wheelchair passengers in the front seat reduces the carrying capacity of the vehicle. As a general matter, occupants are safer in the back seat than the front seat. However, there is no indication that a passenger seated in a wheelchair to the rear of the B-pillar is at any greater risk from whiplash, the condition contemplated by FMVSS No. 202, than a front seat occupant. Proper use of tie-down devices and safety belts would help ameliorate any additional risk for a wheelchair-seated occupant in the right front seating position as compared to a wheelchair-seated occupant in a rear seating position, particularly when the passenger air bag has been disabled pursuant to the exemption for FMVSS No. 208.
In the NPRM, we noted that an occupational therapist or other trained professional often evaluates the driving capabilities of a person with a disability and then writes a prescription detailing needed vehicle modifications. We did not contemplate specifying who was qualified to make a determination of driving ability. We did, however, ask several questions regarding current industry practice in conducting of driver evaluations and the use of prescriptions, and regarding whether such prescriptions assist in ensuring that only necessary modifications are made. The purpose underlying the questions was to determine whether we should require vehicle modifiers to keep a record of vehicle and equipment prescriptions to induce the modifiers to take care that modifications for persons with disabilities are completed in a manner that truly meets the particular individual's needs without any unnecessary modifications and to discourage modifiers from circumventing the requirements of the various safety standards.
Two issues, whether a prescription should be required as a condition of the exemption and who should be considered to be qualified to write that prescription, produced the greatest divergence in opinion among the commenters. Comments on those issues were received from occupational therapists, vehicle modifiers, certified driver rehabilitation specialists, NADA, and one state.
Those supporting mandatory prescriptions argued that an exemption from Federal motor vehicle safety standard requirements should be provided only when vehicle modifications are absolutely necessary. They stated that the determination of what modifications are necessary is typically done by means of a driver evaluation and prescription for driving equipment provided by a qualified specialist. The commenters averred that the most appropriate person to evaluate an individual desiring vehicle modifications is a trained driver evaluator. Noting that the technology currently available for use by persons with disabilities to drive independently or to ride safely as a passenger in a vehicle is advancing and constantly changing and improving, the commenters argued that trained
According to ADED, a certified driver rehabilitation specialist is such a trained individual. The American Occupational Therapy Association advocated that prescriptions be issued by either occupational therapists or certified driver rehabilitation specialists. It maintained that occupational therapists are adequately qualified to make driver evaluations based on their specialized training regardless of whether they are certified driver rehabilitation specialists. However, individuals in other professional disciplines may also be qualified to make an evaluation if they have completed the training required to become certified.
Those opposed to mandatory prescriptions, primarily modifiers, but also some representatives of state organizations and persons with disability advocacy groups, argued that excluding individuals who are not certified driving rehabilitation specialists from evaluating and prescribing vehicle modifications would unnecessarily increase the burden on the disabled community, increasing costs and limiting access to needed vehicle modifications (particularly in rural areas). They said that prescriptions, while helpful to many disabled individuals unaware of current technology, should not be required as a condition for a make inoperative exemption. These commenters claimed that driving capability evaluations and prescriptions are unnecessary to limit modifications to individuals who need them because it is unlikely that an able-bodied individual would have a vehicle modified as contemplated by the NPRM so as to avoid mandated safety measures. Access Wheels, a modifier, commented that prescriptions are rarely used and then only to justify the payment of the modification costs by a third party. It then stated that sophisticated modifications generally are the result of a professional determination of driver capability in large part because of the exceptionally high cost of such modifications. It stated also that the vast majority of modifications involve relatively simple, and less expensive vehicle alterations, and thus are modifications for which professional evaluations of capabilities are unnecessary.
NADA did not take any position on whether prescriptions were needed, stating that prescriptions, evaluations, or other reports should be provided to the modifier, consistent with current practice. It went on to say that a NHTSA-approved customer request process is not needed. The Connecticut Department of Motor Vehicles noted that some states require prescriptions. For those that do not, it believes requiring an individual without a prescription to receive permission from NHTSA is not onerous.
After evaluating the comments and based on our own knowledge of the industry, we conclude that it is unlikely that persons without disabilities will try to take advantage of the exemptions in today's final rule because they are so narrowly written and because of the expense of such modifications. Additionally, given the current practice in the industry not to require or rely on prescriptions for relatively simple and inexpensive modifications, we see no need to add an additional burden to an already time-consuming and expensive process.
We did not propose any specific requirements for labels, customer information, or recordkeeping in the NPRM. However, we solicited comment on whether such requirements were needed to aid disabled persons or regulations enforcement personnel and what burden such requirements might place on modifiers, who are largely small businesses.
Several commenters, including NMEDA, the Connecticut Department of Motor Vehicles, and NADA, stated that labels identifying the work performed on the vehicle should be required so that questions of future modifiers/repair businesses about how the work was done can be answered. Access Wheels maintained that labeling is an unnecessary burden. It said that it had never seen a modification that was not immediately apparent. Also, anyone selling a modified vehicle would likely advertise the modifications rather than attempt to hide them, since this would allow them to recover some of the cost of the modifications.
We have decided to require a label stating that the vehicle has been modified pursuant to the exemption in part 595 and may no longer comply with all safety standards and providing the name and street address of the modifier. This label, which is to be affixed to the vehicle directly adjacent to the manufacturer or alterer's certification label in the same manner as that label, will allow repair businesses and subsequent owners to determine who modified the vehicle. The persons can contact the modifier if they have questions about the specific nature of the work performed and the potential safety consequences of that work. We are requiring a street address, instead of a post office box, to assist in locating the modifier through the Internet or directory assistance. We are not requiring modifiers to indicate on the label which exemptions they have taken advantage of because we want to keep the label sufficiently small so that it can be placed next to the certification label.
The same commenters who supported labels (e.g., NMEDA, the Connecticut Department of Motor Vehicles, NADA, and Advocates) argued that requiring modifiers to identify potential safety consequences of modifications and tell customers before the work does not seem overly burdensome and is already required by at least one state (Connecticut). They stated customers should be specifically informed about potentially noncompliant, but exempt, modifications, and modifiers should also be required to identify any steps they would take to minimize noncompliance. Advocates averred that the agency has a responsibility to require modifiers to include permanent notification to any subsequent owners in the vehicle identifying the specific modifications that have been made to that vehicle, the specific safety standards that were affected, and the effects that those modifications will have on operating safety and vehicle crashworthiness. The Connecticut Department of Motor Vehicles stated that such disclosure would clear up questions by end users who say they had no idea of the trade-offs and accordingly did not make an informed decision.
Access Wheels argued against such a requirement, stating that mandatory disclosure of steps taken to minimize noncompliance would add to modifiers' costs and administrative burdens. It stated that other factors, such as liability insurance premiums, state motor vehicle regulations, funding specifications, and OEM warranty constraints, as well as the cost of modifications, dictate that a modifier make as few changes to the vehicle as possible.
We considered three types of owner's manual inserts that could be used to provide information to the vehicle user:
(1) A generic insert describing the most commonly made modifications and the possible safety consequences of those modifications;
(2) An insert listing the standards affected by the modifications to the particular vehicle; and
(3) An insert describing the particular modifications made to that particular vehicle.
We have decided against requiring any type of owner's manual insert for several reasons. The information in a generic insert may not apply to a particular vehicle and could be confusing. We have also determined that the development of a very detailed insert tailored to each modified vehicle would be overly burdensome. Additionally, the vehicle invoice, which is received once the modifications were performed, often provides some details about what modifications were made. As discussed earlier, modified vehicles are normally customized for a particular individual. Accordingly, we believe persons with disabilities will know many of the modifications that will be needed to accommodate their particular disabilities. Likewise, in many instances, the effect of the modification on an existing system and the safety consequences that the modifications will have on crash avoidance and crashworthiness will be readily discernible.
We are, however, requiring modifiers to provide the vehicle owner with a list of standards, or portions thereof, with which the vehicle may no longer be in compliance due to modifications performed under this exemption. This document, which could simply be the invoice, would also have to indicate any reduction in load carrying capacity of more than 220 pounds (100 kg). The modifier would be required to retain a copy of this document for a period of five years.
Nothing in today's rule precludes a modifier from detailing in writing the specific modifications to be performed on the vehicle and the potential impact of those modifications on the vehicle's crash avoidance and crashworthiness capabilities. We note, however, that
Advocates strongly objected to our decision not to propose recordkeeping requirements. It stated that NHTSA must install a system of oversight that ensures appropriate and timely review of modifications performed pursuant to the proposed rule. Advocates maintains that if the agency does not require modifiers to maintain records of the vehicles they modify or to notify the agency of such modifications, it would not only eliminate any possibility of prospective oversight, the exemptions would compromise the legal position of members of the disabled community in their ability to rely on appropriate documentation of the modifications performed by these commercial operations. Advocates went on to charge that NHTSA is issuing a blanket exemption which will receive no prospective oversight by the agency of the extent to which vehicle modifications have undermined the safe travel of disabled persons. They maintained that the proposed exemption, in essence, substitutes the vagaries of the marketplace in lieu of a comprehensive regulatory approach. While this will promote mobility, Advocates is concerned it will not ensure that the disabled are accorded the safety protection required by the safety standard after a vehicle modification is performed.
NMEDA offered a counterview, stating that modifiers or owners should not have to perform any of the following tasks: fill out written requests, certify the need for modifications, certify having read the information concerning the safety consequences of modifications, or obtain prior agency approval of their requests. According to NMEDA, modifiers also should not have to inform the agency that they have made modifications or specify what those modifications are. NMEDA did not offer any reasons for its position, other than stating such requirements would be burdensome.
We disagree with Advocates' assertion that the rights of the disabled community will be compromised by the agency declining to establish detailed reporting requirements. As discussed above, nothing in today's rule prevents an individual with disabilities from requesting and securing documentation detailing both the modifications to be performed as well as the potential safety impact of those modifications. Additionally, we are requiring modifiers who intend to avail themselves of the exemption to provide us with information that is similar to the type of information manufacturers are required to submit under 49 CFR 566. Under today's rule, these modifiers will be required to provide us with a document that provide their name, address, and a statement that they modify vehicles for individuals with disabilities and intend to avail themselves of the exemption created by this rule. Any changes in that information would have to be conveyed to the agency within 30 days of the change. This requirement, coupled with the requirement that the modifiers retain a document that specifies the standards with which the vehicle may no longer be in compliance that was discussed above, should guarantee a high degree of accountability without straining the resources of the agency or the modifiers.
NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under E.O. 12866, “Regulatory Planning and Review” and is not considered “significant” within the meaning of the Department of Transportation's regulatory policies and procedures. NHTSA has determined that the impacts are so minimal that a full regulatory evaluation is not warranted.
The agency believes the safety disbenefits, if any, will be minimal. The modifications should not reduce the safety of individuals with disabilities since the types of permissible modifications are limited. Further, without the modifications, those individuals would not be able to operate or ride in motor vehicles, and thus could not benefit at all from the Federally-required safety equipment and features. Modifying a vehicle to allow disabled individuals to operate or ride in motor vehicles may result in some loss of safety for any individuals without disabilities who operate or ride in those motor vehicles. However, we believe any loss of safety will be minimal. We do not expect many individuals without disabilities to use seating positions specially modified for persons with disabilities. Further, as noted above, the number of affected standards is very small. Finally, the number of vehicles so modified will be relatively small.
The expected impact of this rule on vehicle modifiers is low. Their method and cost of doing business will only be changed to the extent that those who are now modifying vehicles in a manner that makes mandatory safety equipment inoperable now have clear guidance on which modifications are permissible. Some modifiers may have to depart from the way in which they have performed various modifications in the past to stay within the parameters of the agency's exemption. However, such a departure need not always cost more and will minimize any disbenefits associated with the fundamentally unsafe nature of the previous method of performing the modification. Only nominal costs related to the labeling requirements are imposed on vehicle modifiers.
We have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Most modifiers are considered small entities. I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. As explained above, this action replaces the current requirement that vehicle modifiers write to NHTSA and request permission each time they need to modify a vehicle in a way that compromises a vehicle's compliance with any standard in order to accommodate an individual with a disability. While most modifiers are considered small entities, the rule does not impose any mandatory significant impact on them since: (1) For the vast majority of cases, we believe the rule codifies existing standard industry practices and procedures used to make vehicle modifications, (2) the rule assists vehicle modifiers in making appropriate design choices, and (3) the rule eliminates the costs associated with submitting a written request to NHTSA to modify each vehicle as well as the costs associated with waiting for the agency's response. Therefore, a Regulatory Flexibility Analysis is not required.
NHTSA has analyzed this proposed amendment for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.
The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule has no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.
The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This rule will not have a significant expenditure of funds by State, local and tribal governments. Additionally, the cost of the Rule will not exceed the expenditure of over $100 million by the private sector.
This final rule does not have any retroactive effect. The rule does not repeal any existing federal law or regulation. Additionally, the rule does not preempt any causes of action in state or Federal court. The rule modifies existing law only to the extent that it replaces an agency procedure under which vehicle modifiers had to obtain our permission to modify a vehicle to accommodate a person with a disability in a way that compromised the vehicle's compliance with the Standard. This rule does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
This final rule includes the following “collections of information,” as that term is defined in 5 CFR Part 1320
For the following reasons, NHTSA estimates that the new labels will have a negligible increase in the information collection burden on the public. There are approximately 2,295 vehicles modified for persons with disabilities per year. The label will be placed on each affected vehicle once. Since, in this final rule, NHTSA specifies the exact content of the labels, the manufacturers will not have to spend any hours in developing the labels. NHTSA estimates the technical burden time (time required for affixing labels) to be .0042 hours (15 sec) per label. NHTSA estimates that the total annual burden imposed on the public as a result of the vehicle modification labels will be 9.6 hours (2,295 vehicles multiplied by .0042 hours per label), even if every vehicle modified requires a label. The maximum annual cost of labels for all affected vehicles will be about $1,150.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Because this rule codifies exceptions to certain
Executive Order 13045 (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 NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we 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 us.
As noted earlier, this rule is not economically significant. Additionally, this rule will not have a disproportionate effect on children. This rulemaking directly involves decisions based on health risks that affect children only to the extent that a child is the intended benefactor of the vehicle modification. The majority of exemptions provided pursuant to this rule affect drivers who have a disability. Some of the exemptions accommodate the special needs of vehicle passengers. To the extent the passenger is a child, there may be some safety disbenefit for that child. However, this disbenefit is weighed against the benefit of allowing the child to leave the house in a family's personal conveyance. Absent modifications, the child might not be able to ride at all.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards
This rule is procedural in nature and does not adopt any standards, consensus-based or otherwise. In the preamble to this rule, we have noted that SAE standards and industry guidelines do exist that may assist a modifier in determining how to perform a modification that minimizes any negative impact on safety.
Disability, Imports, Motor vehicle safety, Motor vehicles.
49 U.S.C. 322, 30111, 30115, 30117, 30122, and 30166; delegation of authority at 49 CFR 1.50.
This part establishes conditions under which the compliance of motor vehicles and motor vehicle equipment with the Federal motor vehicle safety standards may be made inoperative.
The purpose of this part is to provide an exemption from the “make inoperative” provision of 49 U.S.C. 30122 that permits motor vehicle dealers and motor vehicle repair businesses to install retrofit air bag on-off switches and to otherwise modify motor vehicles to enable people with disabilities to operate or ride as a passenger in a motor vehicle.
(a) Any motor vehicle repair business that modifies a motor vehicle to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle and intends to avail itself of the exemption provided in 49 CFR 595.7 shall furnish the information specified in paragraphs (a)(1) through (3) of this section to: Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
(1) Full individual, partnership, or corporate name of the motor vehicle repair business.
(2) Residence address of the motor vehicle repair business and State of incorporation if applicable.
(3) A statement that the motor vehicle repair business modifies a motor vehicle to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle and intends to avail itself of the exemption provided in 49 CFR 595.7.
(b) Each motor business repair business required to submit information under paragraph (a) of this section shall submit the information not later than August 27, 2001. After that date, each motor business repair business that modifies a motor vehicle to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle and intends to avail itself of the exemption provided in 49 CFR 595.7 shall submit the information required under paragraph (a) not later than 30 days after it first modifies a motor vehicle to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle. Each motor vehicle repair business who has submitted required information shall keep its entry current, accurate and complete by submitting revised information not later than 30 days after the relevant changes in the business occur.
(a) Any motor vehicle repair business that modifies a motor vehicle to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle is exempted from the “make inoperative” prohibition of 49 U.S.C. 30122 to the extent that those modifications affect the motor vehicle's compliance with the Federal motor vehicle safety standards or portions thereof specified in paragraph (c) of this section. Modifications that would take a
(b) Any motor vehicle repair business that modifies a motor vehicle to enable a person with a disability to operate, or ride as a passenger in, the motor vehicle in such a manner as to make inoperative any part of a device or element of design installed on or in the motor vehicle in compliance with a Federal motor vehicle safety standard or portion thereof specified in paragraph (c) of this section must affix to the motor vehicle a permanent label of the type and in the manner described in paragraph (d) of this section and must provide and retain a document of the type and in the manner described in paragraph (e) of this section.
(c)(1) 49 CFR 571.101, except for S5.2 (a), S5.3.1, S5.3.2, and S5.3.5 of that section.
(2) S5.1.1.5 of 49 CFR 571.108, in the case of a motor vehicle that is modified to be driven without a steering wheel or for which it is not feasible to retain the turn signal canceling device installed by the vehicle manufacturer.
(3) S4.4 and S4.5 of 49 CFR 571.114, in any case in which the original key-locking system must be modified.
(4) S4(a) of 49 CFR 571.118, in any case in which the medical condition of the person for whom the vehicle is modified necessitates the installation of a remote ignition switch to start the vehicle.
(5) S5.1 and S5.2.1 of 49 CFR 571.123, in any case in which the modification necessitates the relocation of original equipment manufacturer's controls.
(6) S5.3.1 of 49 CFR 571.135, in any case in which the modification necessitates the removal of the original equipment manufacturer foot pedal.
(7) 49 CFR 571.201 with respect to:
(i) Targets located on the right side rail, the right B-pillar and the first right side “other” pillar adjacent to the stowed platform of a lift or ramp that stows vertically, inside the vehicle.
(ii) Targets located on the left side rail, the left B-pillar and the first left side “other” pillar adjacent to the stowed platform of a lift or ramp that stows vertically, inside the vehicle.
(iii) Targets located on the rear header and the rearmost pillars adjacent to the stowed platform of a lift or ramp that stows vertically, inside the vehicle.
(8) 49 CFR 571.202, in any case in which:
(i) A motor vehicle is modified to be operated by a driver seated in a wheelchair and no other seat is supplied with the vehicle for the driver;
(ii) A motor vehicle is modified to transport a right front passenger seated in a wheelchair and no other right front passenger seat is supplied with the vehicle; or
(9) S3(b)(1) and (b)(2) of 49 CFR 571.202, in any case in which the driver's head restraint must be modified to accommodate a driver with a disability.
(10) S5.1 of 49 CFR 571.203, in any case in which the modification necessitates a structural change to, or removal of, the original equipment manufacturer steering shaft.
(11) S5.2 of 49 CFR 571.203, in any case in which an item of adaptive equipment must be mounted on the steering wheel.
(12) 49 CFR 571.204, in any case in which the modification necessitates a structural change to, or removal of, the original equipment manufacturer steering shaft.
(13) S4.1 of 49 CFR 571.207, in any case in which a vehicle is modified to be driven by a person seated in a wheelchair and no other driver's seat is supplied with the vehicle, provided that a wheelchair securement device is installed at the driver's position.
(14) S4.1.5.1(a)(1), S4.1.5.1(a)(3), S4.2.6.2, S5, S7.1, S7.2 and S7.4 of 49 CFR 571.208 for the designated seating position modified, provided Type 2 or 2A seat belts meeting the requirements of 571.209 and 571.210 of this chapter are installed at that position.
(15) S5 of 49 CFR 571.214 for the designated seating position modified, in any cases in which the restraint system and/or seat at that position must be changed to accommodate a person with a disability.
(d) The label required by paragraph (b) of this section shall:
(1) Be permanently affixed to the vehicle,
(2) Be located adjacent to the original certification label or the alterer's certification label, if applicable,
(3) Give the modifier's name and physical address,
(4) Contain the statement “This vehicle has been modified in accordance with 49 CFR 595.6 and may no longer comply with all Federal Motor Vehicle Safety Standards in effect at the time of its original manufacture.”
(e) The document required by paragraph (b) of this section shall:
(1) Be provided, in original or photocopied form, to the owner of the vehicle at the time the vehicle is delivered to the owner,
(2) Be kept, in original or photocopied form, at the same address provided on the label described in paragraph (c) of this section for a period not less than five years after the vehicle, as modified, is delivered to the individual for whom the modifications were performed,
(3) Be clearly identifiable as to the vehicle that has been modified,
(4) Contain a list of the Federal motor vehicle safety standards or portions thereof specified in paragraph (c) of this section with which the vehicle may no longer be in compliance.
(5) Indicate any reduction in the load carrying capacity of the vehicle of more than 100 kg (220 lb) after the modifications are completed. In providing this information, the modifier must state whether the weight of a user's wheelchair is included in the available load capacity.
The Department of State submits the following comprehensive listing of the statements which, as required by law, Federal employees filed with their employing agencies during calendar year 2000 concerning gifts received from foreign government sources. The compilation includes reports of both tangible gifts and gifts of travel or travel expenses of more than minimal value, as defined by statute.
Publication of this listing in the
Office of Community Services (OCS), Administration for Children and Families, Department of Health and Human Services
Announcement of availability of funds and request for competitive applications under the Office of Community Services' Assets for Independence Demonstration Program.
The Administration for Children and Families (ACF), Office of Community Services (OCS), invites eligible entities to submit competitive grant applications for new demonstration projects that will establish, implement, and participate in the evaluation of Individual Development Accounts for lower income individuals and families. Applications will be screened and competitively reviewed as indicated in this Program Announcement. Awards will be contingent on the outcome of the competition and the availability of funds.
To be considered for funding applications must be
Sheldon Shalit (202) 401-4807, sshalit@acf.dhhs.gov, or Richard Saul (202) 401-9341, rsaul@acf.dhhs.gov, Department of Health and Human Services, Administration for Children and Families, Office of Community Services, 370 L'Enfant Promenade, SW, Washington, DC, 20447.
In addition, this Announcement is accessible on the OCS WEBSITE for reading or downloading at:
The Catalog of Federal Domestic Assistance (CFDA) number for this program is 93.602. The title is Assets for Independence Demonstration Program (IDA Program).
This program announcement consists of seven parts plus Attachments:
Public reporting burden for this collection of information is estimated to average 10 hours per response, including the time for reviewing instructions, gathering and maintaining the data needed and reviewing the collection information.
The project description is approved under OMB control number 0970-0139 which expires 12/31/2003.
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 Assets for Independence Demonstration Program (IDA Program) was established by the Assets for Independence Act (AFI Act), under Title IV of the Community Opportunities, Accountability, and Training and Educational Services Act of 1998 (Pub. L. 105-285, 42 U.S.C. 604 Note), as amended.
The purpose of the program is, in the language of the AFI Act: to provide for the establishment of demonstration projects designed to determine:
(1) The social, civic, psychological, and economic effects of providing to individuals and families with limited means an incentive to accumulate assets by saving a portion of their earned income;
(2) The extent to which an asset-based policy that promotes saving for postsecondary education, homeownership, and microenterprise development may be used to enable individuals and families with limited means to increase their economic self-sufficiency; and
(3) The extent to which an asset-based policy stabilizes and improves families and the community in which the families live.
There are some 300 IDA programs of various designs operating today in different communities across the country. Most are quite new and all are in the process of learning what design features work best with a variety of circumstances and target populations. Applicants are encouraged to contact these programs to see what might be learned from their experiences: what pitfalls to avoid, what successes might be emulated or adapted. An excellent source of information and discussion about existing IDA programs is the website operated by the Corporation for Enterprise Development (CFED), and its “IDA Learning Network” and related ListServe. These can be reached at
The ultimate goals of the projects to be funded under the Assets for Independence Demonstration Program are:
(1) To create, through project activities and interventions, meaningful asset accumulation opportunities for households eligible for Temporary Assistance for Needy Families (TANF) and other eligible individuals and working families.
(2) To evaluate the projects to demonstrate the effectiveness of these activities and interventions and of the
(3) Thus to make it possible to determine the social, civic, psychological, and economic effects of providing to individuals and families with limited means an incentive to accumulate assets by saving a portion of their earned income, and the extent to which an asset-based policy stabilizes and improves families and the community in which the families live.
For the purposes of this Announcement:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(I) is—
(a) a credit union designated as a low-income credit union by the National Credit Union Administration (NCUA); or
(b) an organization designated as a community development financial institution (CDFI) by the Secretary of the Treasury (or the Community Development Financial Institutions Fund); and
(II) can demonstrate a collaborative relationship with a local community-based organization whose activities are designed to address poverty in the community and the needs of community members for economic independence and stability.
(12)
(A)
(i)
(ii)
(iii)
(I)
(II)
(B)
(i)
(ii)
(iii)
(C)
(i)
(ii)
(iii)
(iv)
(I) is approved by a financial institution, a microenterprise development organization, or a nonprofit loan fund having demonstrated fiduciary integrity;
(II) includes a description of services or goods to be sold, a marketing plan, and projected financial statements; and
(III) may require the eligible individual to obtain the assistance of an experienced entrepreneurial advisor.
(D)
(i) the individual's spouse; or
(ii) any dependent of the individual with respect to whom the individual is allowed a deduction under section 151 of the Internal Revenue Code of 1986.
(13)
(14)
(15)
(16)
(17)
(18)
Section 414 of the Assets for Independence Act requires that the Secretary enter into a contract with an independent research organization to evaluate the demonstration projects conducted under the Act, individually and as a group, including evaluating all qualified entities participating in and sources providing funds for the demonstration projects conducted under the AFIA Act. To support this evaluation, the AFIA also provides that not less than 2% of funds in the Reserve Fund be used by grantees to provide the independent research organization with such information regarding the demonstration project as may be required for the evaluation. The Secretary has contracted with Abt Associates, in Cambridge, Massachusetts, to carry out the required evaluation. OCS and ACF's Office of Planning, Research and Evaluation (OPRE) have worked together with the contractor in the development of an evaluation design whose implementation will get underway in the Spring of 2001.
Section 414 also lists the factors to be addressed by the research organization in its evaluation, which include:
(1) The effect of incentives and institutional support on savings behavior;
(2) The savings rates of individuals based on demographic characteristics and income;
(3) The economic, civic, psychological and social effects of asset accumulation and how such effects vary among different populations or communities;
(4) The effects of IDA's on savings rates, home ownership, level of post secondary education attained, and self-employment, and how such effects vary among different populations or communities;
(5) The potential financial returns to the Federal Government and to other public and private sector investors in IDA's over a 5 and 10 year period;
(6) The lessons to be learned from the demonstration projects and if a permanent program of IDA's should be established; and
(7) Such other factors as the Secretary may prescribe.
The section then stipulates that in evaluating any demonstration project under the AFIA, the research organization shall, before, during and after the project, obtain such quantitative data as are necessary to evaluate the program thoroughly. To this end OCS and its technical assistance contractor, PeopleWorks, Inc., have worked with OPRE and the research organization to develop a reporting format for AFIA grantees, and expect to make available to all grantees an Asset Development Information System to facilitate the maintenance, collection, verification and reporting of the data. In addition, section 414 directs that the research organization shall develop a qualitative assessment, derived from sources such as in-depth interviews, of how asset accumulation affects individuals and families.
Section 414 of the AFIA, as amended, further provides that of the funds appropriated for each Fiscal Year, beginning with FY 2001, $500,000 will be available to carry out the evaluation.
The Office of Community Services (OCS) invites qualified entities to submit competing grant applications for new demonstration projects that will establish, support, manage, and participate in the evaluation of Individual Development Accounts for eligible participants among lower income individuals and working families.
There is one Program Priority Area under this program for Fiscal Year 2001: Priority Area 1.0, under which OCS will accept applications from Qualified Entities as described below and in Section G. Applications for continuation of grants funded under Priority Area 2.0 of the Fiscal Year 1999 Assets For Independence Program Announcement are not covered by this Program Announcement; but will be the subject of direct correspondence between OCS and the grantees.
(1)
(I) is—
(a) a credit union designated as a low-income credit union by the National Credit Union Administration (NCUA); or
(b) an organization designated as a community development financial institution by the Secretary of the Treasury (or the Community Development Financial Institutions Fund); and
(II) can demonstrate a collaborative relationship with a local community-
Not-for-profit Applicants, including those filing jointly with government agencies or Tribal Governments, must provide documentation of their tax exempt status. The applicant can accomplish this by providing a copy of the applicant's listing in the Internal Revenue Service's (IRS) most recent list of tax-exempt organizations described in Section 501(c)(3) of the IRS code
(2)
(a) proof of tax exempt status of the non-profit Joint Applicant, as described in Paragraph (1), above; and
(b) a Joint Applicant Agreement, signed by the responsible officials of both Joint Applicants, setting forth the responsibilities of each Joint Applicant for implementation of the proposed project, including management and oversight of the Reserve Fund and carrying out of the project activities and interventions described in Element II of the proposal narrative. (See Part III, below.) The Joint Applicant Agreement should be the first Appendix to the Application, and the responsibilities it sets out should be described in the Project Narrative under Elements I and II, Part III, Section I Evaluation Criteria (below).
(3) Applications submitted by a lead agency on behalf of a consortium of partnering organizations. Where the Applicant is applying as the lead agency for a consortium or group of partnering organizations, each of these organizations must be briefly described in the Application, and background materials citing their relevant experience and staff capabilities should be included in the Appendix. In such cases the Applicant should document its capability and experience in managing such consortia, and the roles and responsibilities of all Participating agencies should be clearly set forth in signed Partnering Agreements between the Applicant and each of the Partnering members. Copies of the Partnering Agreements should be included in the Appendix, and the roles and responsibilities of each participating agency clearly explained in Part III, Element I and Element II(b), Project Design, and reflected in the Work Plan under Element II(d). These explanations must include the plans for establishing one or more Reserve Fund(s), and how and where IDA Accounts and Parallel Match Accounts will be maintained, as reflected in the Financial Institution Agreement(s)/Statement of Policy under Part III, Element II(c). (See also Section G. Paragraph (1), and Section M, below.)
This announcement is inviting applications under Priority Area 1.0 for project and budget periods of five (5) years. Grant actions, on a competitive basis, will award funds for the full five year project and budget period. As noted below in Section E., subject to the availability of funds, grantees may be offered the opportunity to submit applications for supplementary funding in later years during the five-year project.
Applicants should be aware that OCS funds awarded pursuant to this Announcement will be from FY 2001 funds and may not be expended after the end of the five-year Project/Budget Period to support administration of the project or matching contributions to Individual Development Accounts which may be open at that time. Consequently, Applicants should consider carefully the length of time participants will need to achieve their savings goals and at what point in the project they may wish to discontinue the opening of new accounts. Consequently, and as noted below, deposit of non-Federal share funds needs to be carried out on a schedule consistent with the planned schedule of new account opening. Applicants should provide assurance that in every case provision will be made for payment of all promised matching deposits to IDA accounts opened by project participants in the course of the demonstration project.
In Fiscal Year 2001 OCS expects approximately $13 million to be available under Priority Area 1.0 for funding commitments to approximately 45 new projects, generally not to exceed $500,000 each for the five-year project and budget periods. However, in special circumstances where applicants have secured over $500,000 in non-Federal share contributions which they will lose if not able to secure a Federal grant of equal amount, applications for up to $1 million will be considered; but the agency would prefer to limit initial grants to not more than $500,000, with the possibility open to additional supplemental funding in years two and three of the project. Applicants are reminded that grant awards are limited to the amount of committed non-Federal cash matching contributions; and that OCS recognizes that this is a limiting factor in the amount of grant funds requested. Applicants are assured that OCS will welcome requests for less than the maximum grant amounts, and are urged to make realistic projections of project activity over the five year project and propose project budgets accordingly. As in the past, subject to the availability of funds and the progress of individual demonstration projects, grantees that have raised additional cash non-Federal share contributions may be given the opportunity to request supplementary funding in later years during the five-year project. Draw-down of grant funds over the five-year budget period may be made in amounts that will match non-Federal deposits into the Project Reserve Fund. (See Section G. Paragraph (2) and Section I, below).
As explained in the FY 1999 and 2000 Assets for Independence Program Announcements and noted above, subject to availability of funds and the progress of individual demonstration projects, grantees may be offered the opportunity to submit requests for supplementary funding during the five-year project, if there were a determination that this would be in the best interest of the government. Pursuant to those Announcements, approximately $7 million of FY 2001 funds will in like manner be made
In Fiscal Year 2001 up to approximately $2 million is expected to be available under Priority Area 2.0 for up to two continuation grants not to exceed $1 million each for the third budget year of a five-year State project funded under Priority Area 2.0 of the FY 1999 Assets for Independence Program Announcement. Any funds not expended in FY 2001 for these Continuation Grants will be available for project grants under Priority Area 1.0 or for supplementary grants as described above in Paragraph E.
To be eligible for funding under Priority Area 1.0, projects must be sponsored and managed by Qualified Entities and must meet the following requirements:
Every project funded under this Announcement must establish and maintain a Reserve Fund in accordance with this paragraph. Such Reserve Fund must be maintained in accordance with the accounting regulations prescribed by the Secretary (See 65 FR 10027, Feb. 25, 2000), in a Qualified Financial Institution or other insured financial institution satisfactory to the Secretary.
Where an applicant is lead agency for a consortium or group of partnering organizations, each of which will be implementing an IDA program under the Applicant's grant pursuant to this Announcement, the Applicant/lead agency must maintain a Reserve Fund into which all required non-Federal share matching contribution funds and OCS grant funds shall be deposited in accordance with sub-Paragraph (a). The consortium has two alternatives for maintenance of Reserve Fund(s) in its IDA programs: First, participating organizations may all operate out of the one central Reserve Fund maintained by the Applicant/lead agency. In this case separate accounting structures would be maintained for each of the organizations and the funds assigned for their use in accordance with agreements between the Applicant and each organization. Or second, in addition to the Central Reserve Fund, participating organizations may each establish a local Reserve Fund in their community into which the Applicant/lead agency will deposit from the Central Reserve Fund the funds (grant and non-Federal share) allocated for use by the particular organization. Central and local Reserve Funds will be subject to all of the requirements of this Section. Whatever the arrangement, it must be spelled out and agreed to in the Partnering Agreements required under Section B. Paragraph (3) between the Applicant and each consortium member.
(a)
(b)
(A) at least 85% of the federal grant funds, and an equal amount of the required non-Federal share funds, shall be used as matching contributions, equally divided between federal and non-federal monies, to individual development accounts for project participants, in an agreed upon ratio to deposits made in those accounts by project participants from earned income.
(B) at least 2% but no more than 15% of the Federal grant funds shall be used toward the expense of collecting and providing to the research organization evaluating the demonstration project the data and information required for the evaluation.
(C) up to 7.5% of the Federal grant funds may be used for administration of the demonstration project and, and an additional 5.5% shall go toward non-administrative support expenses of assisting project participants to obtain the skills (including economic literacy classes, budgeting, and business management skills), training, and information necessary to achieve economic self-sufficiency through activities requiring qualified expenses. If the cost of such non-administrative support expenses is less than 5.5% of the Federal grant funds, then any unused portion may be used for administrative expenses.
(D) up to 15% of the required matching non-Federal funds may be used for expenses outlined in Paragraphs (B) and (C), above, or other project-related expenses as agreed by the Applicant and the providing entity.
If a grantee mobilizes matching non-Federal contributions in excess of the required 100 percent match, such non-Federal funds may be used however the grantee and provider of the funds may agree. Where the use of such funds is proposed within a Program Element/Proposal Review Criterion which formed the basis for the grant award, Grantees will be held accountable for commitments of such excess matching funds and additional resources, even though over the amount of the required non-Federal match.
(c)
(d)
No part of such income is to be considered as a Federal funds contribution subject to the $2000/$4000 limitations under Paragraph (5)(b), below.
(e)
As set forth in Section B. Paragraph (2) above, grantees who are State or local government agencies or Tribal governments are required to submit applications jointly with tax exempt non-profit organizations. In such cases, whether the lead applicant signing the SF 424 is the government agency or the non-profit organization, a Reserve Fund must be established for the Project by the non-profit Joint Applicant and maintained and managed as agreed by the Joint Applicants. The Reserve Fund
(a)
The most recent EITC Earned Income Guidelines which set the limits on annual income for eligibility in the IDA Program are as follows:
The most recent Poverty Income Guidelines (published in February 2000) are set forth in Attachment M to this Announcement. Annual revisions of these Guidelines are normally published in the
Applicants are reminded that there is also a net worth assets test for eligibility in the program, as noted above.
Project Grantees must create, through written governing instruments, either (a) Trusts, under this paragraph, or (b) Custodial Accounts described in Paragraph (5) below, which will be Individual Development Accounts on behalf of Project Participants. Trustees of Trusts must be Qualified Financial Institutions. Custodians of Custodial Accounts may be Qualified Financial Institutions, other insured financial institutions satisfactory to the Secretary, or Demonstration Project Grantees. In every case the Participant's personal savings from earned income shall be deposited in the Participant's Individual Development Account in a participating insured financial Institution, which in the case of Qualified Entities which are eligible Credit Unions or CDFI's, may be the Qualified Entity itself. In every case where the participating insured financial institution and the Demonstration Project Grantee are not one and the same, both shall be parties to the written governing instruments creating the Trust or Custodial Account. Such instruments must contain the following provisions:
(a) All contributions to the accounts must be either in cash, by check, money order, or by electronic transfer of funds.
(b) The assets of the account will be invested in accordance with the direction of the Project Participant after consultation with the grantee and pursuant to the guidelines of the Secretary (which will be issued prior to the making of grant awards and made available to grantees at the time of grant award).
(c) The assets of the account will not be commingled with other property except in a common trust fund or parallel account or common investment fund.
(d) In the event of the death of the Project Participant, any balance remaining in the account shall be distributed within 30 days of the date of death to another Individual Development Account established for the benefit of an eligible individual as directed by the deceased Participant in the Savings Plan Agreement under sub-paragraph (g), below; provided, that the Participant may at their option direct the disposition of any funds in the account which were deposited in the account by the Participant as he or she may see fit, except that where such disposition is not to another Individual Development Account, all matching contributions made by the grantee to the account, and any income earned thereby, shall be returned to the Reserve Fund. [Note that this will mean that each Project Participant must provide such direction at the time the Individual Development Account is established. Provision should be made by grantees for modification of such directions during the course of the project, in the event of changing circumstances.]
(e) Except in the case of the death of the Project Participant, amounts in the account attributable to deposits by the grantee from grant funds and matching non-federal contributions, and any interest thereon, may be paid, withdrawn or distributed out of the account only for the purpose of paying qualified expenses of the Project Participant including transfers under Paragraph (7)(d), below).
(f) The procedures governing the withdrawal of funds from the Individual Development Account, for both Qualified Expenses and Emergency Withdrawals, must comply with the provisions of Paragraph (7) Withdrawals from Individual Development Accounts, below.
(g) A “Savings Plan Agreement” between the grantee and the Project Participant, which may be incorporated by reference, and which should include: (1) Savings goals (including a proposed schedule of savings deposits by the Participant from earned income, which may be for a period of less than five years); (2) the rate at which participant savings will be matched (from one dollar to eight dollars for each dollar in savings deposited by Participant, the Federal grant funds portion of which may not exceed $2000 during the five-year project period); (3) the proposed qualified expense for which the Account is maintained, (4) agreement by the grantee to provide and the Participant to attend classes in Economic Literacy; (5) any additional training or education related to the qualified expense which the Grantee agrees to provide and of which the Participant agrees to partake, (6) contingency plans in the event that the Participant exceeds or fails to meet projected savings goals or schedules, (7) any agreement as to investments of assets described in subparagraph (b), above, (8) an explanation of withdrawal procedures and limitations, including the consequences of unauthorized withdrawal, (9) provision for disposition of the funds in the account
As provided in Paragraph (4), above, Grantees may, in the alternative, create, through written governing instruments, Custodial Accounts which shall be Individual Development Accounts on behalf of Project Participants, except that they will not be trusts. As in the case of trusts established under paragraph (4), the written governing instruments of the accounts must contain the requirements outlined in subparagraphs (a) through (g) of that paragraph, with the following exceptions. Whereas trustees of the trusts created under Paragraph (4) must be Qualified Financial Institutions, the assets of the custodial account may be held by a bank or another “person” (or institution) who demonstrates to the satisfaction of the Secretary that the manner in which the account will be administered will be consistent with the provisions of the AFI Act, and that the IDA's will be created and maintained as described in paragraph (4) and Section 404(5)(A) of the AFI Act. In addition, in the case of a custodial account treated as a trust by reason of this paragraph, the custodian of such account may be the Project Grantee, provided that it can assure compliance with the requirements of Paragraph (4) above, and Section 404(5)(A) of the AFI Act. These arrangements would place the “custodial” responsibilities with the grantee, and relieve financial institutions of trustee obligations. The Secretary has determined that the assets of any such accounts must be held in an insured financial institution and be subject to the provisions of Paragraph M, below, pertaining to agreements between applicants/grantees and participating financial institutions.
Within the meaning of this OCS Program Announcement, IDA “Custodial Accounts” in which project participants deposit their savings may be solely owned by the participant and in the sole name of the participant. Funds in the account may only be expended for “Qualified Expenses” or an “Emergency Withdrawal” as defined in the AFIA and this Program Announcement; and in keeping with this restriction, any withdrawals must be approved in writing by a responsible official of the project grantee. At the same time, if the participant requests approval for an “unauthorized withdrawal”, that is, for other than a “Qualified Expense” or “Emergency Withdrawal” as defined in the AFIA, and Part I, Section D (4) and (12), above, the project grantee must agree to approve such an “Unauthorized Withdrawal”, with the explicit understanding on the part of both the grantee and the participant, that the participant thereby loses any matching funds credited to the account, and must exit the program.
Deposits made by Project Participants shall be deemed to have been made from earned income so long as the Participant's earned income (as defined in Section 911(d)(2) of the Internal Revenue Code of 1986) during the period since the Participant's previous deposit in the account is greater than the amount of the current deposit.
Section 911(d)(2) provides, in relevant part, “the term ‘earned income' means wages, salaries, or professional fees, and other amounts received as compensation for personal services actually rendered”.
Matching contributions (as deposits to IDA accounts or to parallel accounts) must be made to IDA's in equal amounts from Federal grant funds and the non-Federal public and private funds committed to the project as matching contributions, as described in Section I below, and Sections 405(c)(4) and 406(b)(1) of the AFI Act. Such matching contribution deposits by grantees may be from $0.50 to $4 in non-Federal funds and an equal amount in Federal grant funds, for each dollar of earned income deposited in the account by the Project Participant in whose name the account is established. At the time matching contribution deposits are made, the grantee will also deposit into the Individual Development Account (or the parallel account) any interest or income that has accrued since the last deposit on amounts previously deposited in or credited to that IDA in the parallel account.
(b)
(c)
(a)
(b)
(i) expenses for medical care or necessary to obtain medical care for the Project Participant or a spouse or dependent of the Participant;
(ii) payments necessary to prevent eviction of the Project Participant from, or foreclosure on the mortgage for, the principal residence of the Participant;
(iii) payments necessary to enable the Project Participant to meet necessary living expenses (food, clothing, shelter—including utilities and heating fuel) following loss of employment.
(c)
Applicants are urged to consider the establishment of a separate alternative crisis or emergency loan fund that can respond to participant emergencies without having them risk putting their IDA in jeopardy because of an inability to make reimbursement within the required timeframe.
(d)
(i) the Participant's spouse, or
(ii) any dependent of the Participant with respect to whom the Participant is allowed a deduction under section 151 of the Internal Revenue Code of 1986.
Note that such transfers may be made to dependents who in turn would become IDA project participants who would be able to use these funds for any of the Qualified Expenditures defined in Part I. Applicants are reminded of the limit of $4000 in Federal IDA matching contributions per household.
As previously noted in Part II Section A, there is no Priority Area 2.0 under this Announcement. Applications for continuation of grants funded under Priority Area 2.0 of the Fiscal Year 1999 Assets For Independence Program Announcement will be the subject of direct correspondence between OCS and the grantees.
Applicants must obtain firm commitments for at least one hundred percent of the requested OCS grant amount in cash non-Federal share for deposit to the Reserve Fund as matching contribution. Public sector resources that can be counted toward the minimum required match include funds from State and local governments, and funds from various block grants allocated to the States by the Federal Government provided that the authorizing legislation for these grants permits such use. Note, for example, that Community Development Block Grant (CDBG) funds
To be considered for funding an Application must include a copy of a “Non-Federal Share Agreement” or Agreements in writing executed by the Applicant and the organization or organizations providing the required non-Federal matching contributions, signed for the organization by a person authorized to make a commitment on behalf of the organization, and signed for the Applicant by the person signing the SF424. Such Agreement(s) must include: (1) a commitment by the organization to provide the non-Federal funds contingent only on the grant award; and (2) an agreement as to the schedule of the opening of Individual Development Accounts by the Applicant, and the schedule of deposits by the organization to the project's Reserve Fund, such that the two schedules will together assure that there will be at all times in the Reserve Fund non-Federal matching contribution funds sufficient to meet the maximum pledges of matching contributions under the “Savings Plan Agreements” for all Individual Development Accounts then open and being maintained by the grantee as part of the demonstration project.
Thus, for example, if the provider of non-Federal share only agrees to a fixed schedule of deposits, this non-Federal share requirement can be met by the Applicant agreeing to a schedule for opening new accounts that will assure that new IDA accounts will only be opened when there are sufficient funds in the Reserve Fund to meet the maximum amount of matching contributions pledged under the “Savings Plan Agreements”.
Where the Applicant is itself providing any of the required cash non-Federal share, it must include a statement of commitment, on applicant letterhead, signed by the official signing the SF 424
With regard to Applicants which are State or local government agencies or Tribal governments, submitting jointly with tax exempt non-profit organizations, note that under Section G Paragraphs (1) and (2), above, Reserve Funds are required to be established as in other applications/projects.
OCS has determined that the strict legislative limitations on the use of Federal grant funds and of the minimum required non-Federal match (under the recent amendments to the AFIA, at least 85% of each must go toward matching deposits in Individual Development Accounts) mean that important training, counseling and support activities, critical to the success of a project, may best be supported by additional resources, both of the applicant itself and mobilized by the applicant in the community. Consequently, Applicants are encouraged to mobilize additional resources, which may be cash or in-kind contributions, Federal or non-Federal, for support of project administration and assistance to Project Participants in obtaining skills, knowledge, and needed support services. (See Part III, Element V) Applicants are reminded that they will be held accountable for commitments of such additional resources even if over the amount of the required non-Federal match.
In accordance with the provisions of the AFI Act, in considering an application to conduct a demonstration project under this Announcement, OCS will give preference to an application that:
(1) demonstrates the willingness and ability of the applicant to select eligible individuals for participation in the project who are predominantly from households in which a child (or children) is living with the child's biological or adoptive mother or father, or with the child's legal guardian.
Applications that target TANF eligible households will be deemed to have met this preference.
(2) provides a commitment of non-Federal funds with a proportionately greater amount of such funds committed from private sector sources; and
(3) targets individuals residing within one or more relatively well-defined neighborhoods or communities (including rural communities) that experience high rates of poverty or unemployment.
Applications which target residents of Empowerment Zones, Enterprise Communities, Public Housing, or CDFI Fund-designated Distressed Communities will be deemed to have met this preference. (For information on CDFI Fund designation of Distressed Communities applicants may visit the CDFI Help Desk Website at: http://www.cdfifundhelp.gov.)
Each of these preferences will be valued at 2 points in the Application Review process, so that applicants not meeting these preferences will have 2 points subtracted from its score for a given Proposal Element for each preference not met. [Preferences (1) and (3) fall under Proposal Element II(a); Preference (2) falls under Proposal Element V(a)]. In the case of a consortium of organizations operating programs funded through a lead agency, if a majority of the participating organizations meet these legislative preferences, the Application as a whole will be awarded these points.
Qualified Entities may submit more than one application for different demonstration projects, but no more than one such application will be funded to the same Qualified Entity pursuant to this Announcement.
As noted in Section G Paragraph (1)(d), above, income generated from investment of unallocated funds in the Reserve Fund may be added to the funds already committed from the Reserve Fund to program administration, participant support, or evaluation data collection. However, once funds have been committed as matching contributions to Individual Development Accounts, then any income subsequently generated by such funds must be deposited proportionately to the credit of such accounts.
No part of such income is to be considered as a Federal funds contribution subject to the $2000/$4000 limitations under Section G Paragraph (6)(c), above.
One of the most critical parts of a successful IDA project is the relationship between the project operator and a partnering financial institution, be it a bank or credit union. Not only does the financial institution provide the situs of the Individual Development Accounts, but it also represents for IDA holders their doorway to mainstream economic life: savings and checking accounts, ATM machines, payroll deduction savings, home mortgages, and the opportunity for credit repair, student and business loans, all within a framework of sound financial planning. Moreover, many banks see non-Federal share contributions to the project's Reserve Fund as sound investments which not only offer them tax deductions and CRA credit, but also introduce them to a whole new body of potential long-term clients.
For all these reasons it is vitally important for applicants to develop strong and mutually supportive relationships with the financial institutions which will be their partners in carrying out the IDA project. Thus, all applicants under this Announcement must enter into agreements with one or more insured Financial Institutions, in collaboration with which Reserve Funds and Individual Development Accounts will be established and maintained. [For applicants which are eligible Credit Unions or CDFI's, see Note at end of this Section, below.]
To be considered for funding, an Application submitted by other than an eligible Credit Union or Community Development Financial Institution must include a copy of an Agreement or Agreements with one or more partnering insured Financial Institutions which include(s) the provisions set out in Part III Element II(c), which state(s) that the accounting procedures to be followed in account management will conform to Guidelines (CFR Part 74) established by the Secretary (Note: Such regulations may be found at 45 CFR part 1000), and under which the partnering insured Financial Institution agrees to provide data and reports as requested by the applicant. In the case of IDA's established as Trusts under Section G Paragraph (4), above, the partnering financial institution must be a Qualified Financial Institution as defined in PART I Section D(12). In the case of IDA's established as Custodial Accounts, the partnering financial institution must be insured and must meet the requirements of Section G Paragraph (5), above, to the satisfaction of the Secretary. [For applications submitted by eligible Credit Unions or Community Development Financial Institutions (CDFI's) see Note below.]
The Agreement may also include other services to be provided by the partnering Financial Institution that could strengthen the program, such as Financial Education Seminars, favorable pricing or matching contributions provided by the Financial Institution, and assistance in recruitment of Project Participants. Strong and complete Agreements with financial institutions will be recognized in the application review process under Sub-Element II(c) of the application Evaluation Criteria under Part III, below.
In the case of applications submitted by eligible Credit Unions or Community Development Financial Institutions, where the Reserve Fund and IDA accounts are to be held by the applicant Institution itself, the applicant must submit, in lieu of a Financial Institution Agreement, a Statement of Policy, approved by its Board of Directors and attested to by its Chairperson and Chief Financial Officer, which meets the requirements set forth in this section (M.) and in Part III Sub-Element II(c). This Statement of Policy will be considered in the application review process under Sub-Element II(c). Where such applicants are proposing the establishment of Reserve Fund(s) or IDA's in other partnering Financial Institutions, they must submit as part of their applications copies of Agreements with such Partnering Financial Institution(s) in accordance with this section (M.).
The project description provides the major means by which an application is evaluated and ranked to compete with other applications for available assistance. The project description should be concise and complete and should address the activity for which Federal funds are being requested. Supporting documents should be included where they can present information clearly and succinctly. Applicants are encouraged to provide information on their organizational structure, staff, related experience, and other information considered to be relevant. Awarding offices use this and other information to determine whether the applicant has the capability and resources necessary to carry out the proposed project. It is important, therefore, that this information be included in the application. However, in the narrative the applicant must distinguish between resources directly
Provide a summary of the project description (a page or less) with reference to the funding request.
Clearly identify the physical, economic, social, financial, instructional, and/or other problem(s) requiring a solution. The need for assistance must be demonstrated and the principal and subordinate objectives of the project must be clearly stated; supporting documentation, such as letters of support and testimonials from concerned interests other than the applicant, may be included. Any relevant data based on planning studies should be included or referred to in the endnotes/footnotes. Incorporate demographic data and participant/beneficiary information, as needed. In developing the project description, the applicant may volunteer or be requested to provide information on the total range of projects currently being conducted and supported (or to be initiated), some of which may be outside the scope of the program announcement.
Identify the results and benefits to be derived. For example, describe the population to be recruited to the IDA program, how many accounts are projected to be opened, what qualified expenses are expected to be achieved, and how they will assist participants to move towards self-sufficiency.
Outline a plan of action which describes the scope and detail of how the proposed work will be accomplished. Account for all functions or activities identified in the application. Cite factors which might accelerate or decelerate the work and state your reason for taking the proposed approach rather than others. Describe any unusual features of the project such as design or technological innovations, reductions in cost or time, or extraordinary social and community involvement.
Provide quantitative monthly or quarterly projections of the accomplishments to be achieved for each function or activity in such terms as the number of people to be served and the number of accounts opened. When accomplishments cannot be quantified by activity or function, list them in chronological order to show the schedule of accomplishments and their target dates.
If any data is to be collected, maintained, and/or disseminated, clearance may be required from the U.S. Office of Management and Budget (OMB). This clearance pertains to any “collection of information that is conducted or sponsored by ACF”.
List organizations, cooperating entities, consultants, or other key individuals who will work on the project along with a short description of the nature of their effort or contribution.
Provide information on the applicant organization(s) and cooperating partners such as organizational charts, financial statements, audit reports or statements from CPAs/Licensed Public Accountants, Employer Identification Numbers, names of bond carriers, contact persons and telephone numbers, child care licenses and other documentation of professional accreditation, information on compliance with Federal/State/local government standards, documentation of experience in the program area, and other pertinent information. Any non-profit organization submitting an application must submit proof of its non-profit status in its application at the time of submission. The non-profit agency can accomplish this by providing a copy of the applicant's listing in the Internal Revenue Service's (IRS) most recent list of tax-exempt organizations described in Section 501(c)(3) of the IRS code,
Provide a line item detail and detailed calculations for each budget object class identified on the Budget Information form. Detailed calculations must include estimation methods, quantities, unit costs, and other similar quantitative detail sufficient for the calculation to be duplicated. The detailed budget must also include a breakout by the funding sources identified in Block 15 of the SF-424.
Provide a narrative budget justification that describes how categorical costs are derived. Discuss the necessity, reasonableness, and allocability of the proposed costs.
The following guidelines are for preparing the budget and budget justification. Both Federal and non-Federal resources shall be detailed and justified in the budget and narrative justification. For purposes of preparing the budget and budget justification, “Federal resources” refers only to the ACF grant for which you are applying. Non-Federal resources are all other Federal and non-Federal resources. It is suggested that budget amounts and computations be presented in a columnar format: first column, object class categories; second column, Federal budget; next column(s), non-Federal budget(s), and last column, total budget. The budget justification should be a narrative.
Whenever the applicant intends to delegate part of the project to another agency, the applicant must provide a detailed budget and budget narrative for each delegate agency, by agency title, along with the required supporting information referred to in these instructions.
Enter the total of all other costs. Such costs, where applicable and appropriate, may include but are not limited to insurance, food, medical and dental costs (noncontractual), professional services costs, space and equipment rentals, printing and publication, computer use, training costs, such as tuition and stipends, staff development costs, and administrative costs.
Amounts of non-Federal resources that will be used to support the project as identified in Block 15 of the SF-424. The firm commitment of these resources must be documented and submitted with the application in order to be given credit in the review process. A detailed budget must be prepared for each funding source.
Each application which passes the initial screening will be assessed and scored by three independent reviewers. Each reviewer will give a numerical score for each application reviewed. These numerical scores will be supported by explanatory statements on a formal rating form describing major strengths and weaknesses under each applicable criterion published in the Announcement. Scoring will be based on a total of 100 points, and for each application will be the average of the scores of the three reviewers.
The competitive review of proposals will be based on the degree to which applicants:
(1) Adhere to the requirements in Part II and incorporate each of the Elements and Sub-Elements below into their proposals, so as to:
(2) Describe convincingly a project that will develop new asset accumulation opportunities for households eligible for TANF and other eligible individuals and working families that can lead to a transition from dependency to economic self-sufficiency through the accumulation of assets and the pursuit of activities requiring one or more qualified expenses; and
(3) Provide for the collection and validation of relevant data to support the national evaluation to be carried out by the independent research organization, under contract with ACF, of the project design, implementation, and outcomes of this Demonstration Program.
In order to simplify the application preparation and review process, OCS seeks to keep grant proposals cogent and brief. Applications with project narratives (excluding Project Summaries, Budget Justifications and Appendices) of more than 30 letter-sized pages of 12 c.p.i. type or equivalent on a single side will not be reviewed for funding. Applicants should prepare and assemble their project description using the following outline of required project elements. They should, furthermore, build their project concept, plans, and application description upon the guidelines set forth for each of the project elements.
Project descriptions are evaluated on the basis of substance, not length. Pages should be numbered and a table of contents should be included for easy reference. For each of the Project Elements or Sub-Elements below there is at the end of the discussion a suggested number of pages to be devoted to the particular element or sub-element. These are suggestions only; but the applicant must remember that the overall Project Narrative must not be longer than 30 pages.
Criterion: The capability and relevant experience of the applicant and its partners and collaborators in developing and operating programs which deal with poverty problems similar to those to be addressed by the proposed project. Applicants should include their experience and capability in providing supportive services to TANF recipients and other low income individuals and working families seeking to achieve economic stability and self-sufficiency; and in recruiting, educating, and assisting project participants to increase their economic independence and general well-being through economic literacy education and the accumulation of assets.
Applications should briefly cite a few specific, concrete examples of successful programs and activities, with accomplishments, with which applicant has been involved which have contributed to its experience and capability to carry out the proposed project. This should include experience in working with the target or similar populations, as well as collaborative programming and operations which involve financial institutions and
Applications should identify applicant agency executive leadership in this section and briefly describe their involvement in the proposed project and provide assurance of their commitment to its successful implementation. (This can be achieved by a statement or letter from agency executive leadership which may be included in the Appendix.) The application should note and justify the priority that this project will have within the agency including the facilities and resources that it has available to carry it out.
The application must also identify the individual staff person(s) who will have the most responsibility for managing the project, coordinating services and activities for participants and partners, and for achieving performance targets. The focus should be on the qualifications, experience, capacity and commitment to the program of the key staff person(s) who will administer and implement the project, and the application should indicate the amount of time (in FTE) each will be expected to devote to the project. The person identified as Project Director should have supervisory experience, experience in working with financial institutions and budget related problems of the poor, and experience with the target population. Because this is a demonstration project within an already-established agency, OCS expects that the key staff person(s) would be identified, if not hired, in which case a resume or resumes should be included in the Appendix. If the person or persons have not been identified, then Position Description(s) should be included in the Appendix.
Finally, the application should cite the roles, responsibilities, and experience of any other organizations that will be collaborating with the Applicant to assist and support Project Participants in the pursuit of their goals under the project. Supporting documentation concerning these partnering agencies and their commitment to participation in the project should be included in the Appendix to the proposal.
Where the Applicant is applying as the lead agency for a consortium of partnering organizations, each of these organizations should be briefly described in this section of the Project Narrative; and background materials citing their relevant experience and staff capabilities should be included in the Appendix. In such cases the Applicant should document its capability and experience in managing such consortia, and the roles and responsibilities of all participating agencies should be clearly set forth in Partnering Agreements between the Applicant and each of the member organizations. Copies of the Agreements should be included in the Appendix, and the roles and responsibilities clearly explained in Element II(b), Project Design, and reflected in the Work Plan under Element II(d).
It is suggested that applicants use no more than 5 pages for this sub-Element, not counting actual resumes or position descriptions, which should be included in an Appendix to the proposal. Background materials on consortium members (if any) and other collaborating agencies, supportive materials, and Partnering Agreements with members should also be included in the Appendix.
Criterion: The degree to which the project described in the application appears likely to result in the establishment of a workable, fiscally sound program that will provide a structure of incentives and supports for TANF eligible households and other working families of limited means that will enable them to increase their economic self sufficiency through economic literacy training and asset accumulation for one or more “qualified expenses”.
OCS seeks to learn from the application why and how the project as proposed is expected to establish the creation of new opportunities for asset accumulation by eligible individuals and families that can lead to significant improvements in individual and family self-sufficiency through activities requiring one or more qualified expenses: for post-secondary education, home ownership, and/or qualified business capitalization.
Applicants are urged to design and present their project in terms of a conceptual cause-effect framework that makes clear the relationship between what the project plans to do and the results it expects to achieve.
In this sub-element of the proposal the applicant must precisely identify the target population(s) to be served. The geographic area to be impacted should then be briefly described, citing the percentage of residents who are low-income individuals and TANF recipients, as well as the unemployment rate, and other data that are relevant to the project design. Note: Both the poverty rate and unemployment rate of the target community(s) are needed to be set forth in the Application so that its eligibility for the legislative preference may be determined (see below).
The project design or plan should begin with identifying the underlying assumptions about the program. These are the beliefs on which the proposed program is built. They should begin with assumptions about the strengths and needs of the population(s) to be served; about how the accumulation of assets will enable project participants to build on those strengths in their quest to achieve self-sufficiency; and about what anticipated needs of the participants could be barriers to that achievement.
In other words, the underlying assumptions of the program are the applicant's analysis of the participant strengths and potential to be supported and their needs and problems to be addressed by the project, and the applicant's theory of how its proposed interventions will address those strengths and needs to achieve the desired result. Thus a strong application is based upon a clear description of the strengths, opportunities, needs and problems to be supported and addressed, and a persuasive understanding of the nature of the opportunities and causes of the problems.
The application should include a discussion of the identified personal barriers to employment, job retention and greater self-sufficiency faced by the population to be targeted by the project. (These might include such problems as illiteracy, substance abuse, family violence, lack of skills training, health or medical problems, need for childcare, lack of suitable clothing or equipment, or poor self-image.) The application should also include an analysis of the identified community systemic barriers which the applicant will seek to overcome. These might include lack of public transportation; lack of markets; unavailability of financing, insurance or bonding; inadequate social services (employment service, child care, job training); high incidence of crime; lack of housing; inadequate health care; or environmental hazards. Applicants should be sure not to overlook the personal and family services and support needed by project participants which will enhance job retention and advancement, so as to assure continued ability to save from earned income, and
Where applicant is the lead agency for a group or consortium of organizations, this narrative should briefly summarize the location, character, and unemployment and poverty status of the different target populations. More detailed information for each of the participating organizations should be included in the Appendix to the Application.
In accordance with the legislative preferences set forth in Part II Section J, above, the maximum score for this sub-Element in the review of applications under Priority Area 1.0 will only be given to applications which:
(1) demonstrate the willingness and ability of the applicant to select individuals for participation in the project who are predominantly from households in which a child (or children) is living with the child's biological or adoptive mother or father, or with the child's legal guardians. (Applications which target TANF eligible households will be deemed to have met this preference); and
(2) target individuals residing within one or more relatively well-defined neighborhoods or communities (including rural communities, public housing developments, Empowerment Zones and Enterprise Communities) that experience high rates of poverty or unemployment. (Applications which target residents of Empowerment Zones, Enterprise Communities, Public Housing, or CDFI Fund-designated Distressed Communities will be deemed to have met this preference.) (See Part II, Section J)
Each of these preferences will be valued at 2 points in the proposal review, so that the absence of one will reduce the review score for the sub-Element by 2 points; the absence of both will reduce the review score by 4 points.
In the case of a consortium of organizations operating programs funded through a lead agency, if a majority of the participating organizations meet these legislative preferences, the Application as a whole will be awarded these points.
It is suggested that applicants use no more than 5 pages for this Sub-Element, not including any more detailed information about separate target populations, which should be included in the Appendix.
The Application should outline a plan of action which describes the scope and detail of how the proposed activities will be undertaken. This Sub-Element should begin with a concise statement of the number of IDAs that are proposed to be established for each of the “Qualified Expenses” under the AFI Act, the projected monthly savings by IDA holders and the planned rate of matching contributions, and the projected savings goals of the participants. [It is recognized that these projections may be revised during the course of the project, based on actual experience of the participants.] The applicant should demonstrate that projected savings goals have a true relation to the ability of the Participant to save and to the value or cost of the “Qualified Expense” for which the IDA is to be used, be it housing, postsecondary education, or business capitalization.
Next, the Applicant should present a clear and straightforward description, from the point of view of the Project Participant, of just how the proposed IDA Project will operate. This description should take an eligible member of the target population through project activities from recruitment through the payment for the “Qualified Expense” (and beyond, if appropriate). It is suggested that the description generally follow the outline below, plus any additional activities that the Applicant proposes to undertake as part of its project:
(1) How/where does the potential participant learn information about the Project that will excite his/her interest?
(2) Once interested, how, when, by whom, and on what basis is the recruit selected to participate in the project?
(3) How and when and with what assistance (Case Management? Family Development?) does the new participant make decisions concerning the amount of weekly or monthly savings and the selection of “Qualified Expense”? Or is this part of the Selection Process?
(4) When and where and with whom does the Participant reach agreement on and sign a “Savings Plan Agreement”? [Include here a brief discussion of the provisions of the Agreement, or refer to a sample provided in the Appendix.]
(5) Where, when and how does the Participant actually open his/her IDA account with the Insured Financial Institution? Where is the Institution in relation to the Participant's home/place of work? How does the Participant get to the Institution? [Include here a brief discussion of the role of the Financial Institution in account management, data collection and reporting, and any other services it will provide, referring to copies of the agreement(s) with the Financial Institution(s) in the Appendix.]
(6a) How and where will participant make savings deposits? In person? By mail? Through payroll deduction?
(6b) What happens if a scheduled deposit is missed? Will the participant be sent a post card? Receive a supportive phone call?
(7a) Where and when and from whom does the participant receive “Economic Literacy” or “Budgeting” training, and do childcare and transportation need to be provided?
(7b) Where and when and from whom does participant receive Credit Repair Services if they are needed; and are there ways to escape from, or avoid Predatory Lenders?
(8a) Where and when and from whom does the participant receive needed support to remain on the job with opportunity for advancement (So as to assure continued savings from earned income)?
(8b) Where and when and from whom does the participant receive emergency services so as to avoid having to make Emergency Withdrawals?
(9) Where and when and from whom does the participant receive “Qualified Expenditure” training related to home ownership, pursuit of educational goals, or business plan development and business management?
(10) When the IDA savings/match goals have been achieved, where, when and how does the participant make or arrange withdrawals to support the “Qualified Expenses”?
In this description the applicant should discuss all of the planned activities and interventions, including those supported by other available resources, and should explain the reasons for taking the approaches proposed. The description should give a clear picture of how the project as a whole will operate from day to day, including the recruiting, financial, program support, and data collection responsibilities of the applicant and any
Where the Applicant is a lead agency for a group or consortium of organizations, the role of each must be clearly defined in this section of the application. In such cases Applicants should attach copies of signed Partnering Agreements with each of the member organizations setting forth the roles and responsibilities of each. (See Element I and PART II Section B.(3) above.)
Finally, and following the above description, the Applicant should explain how the proposed project activities will result in outcomes which will build on the strengths of the Program Participants and assist them to overcome the identified personal and systemic barriers to achieving self-sufficiency. In other words, what will the project staff do with the resources available to the project and how will what they do (interventions) assist project participants to accumulate assets in Individual Development Accounts and use those assets for “Qualified Expenses” in a manner that will help lead them to self-sufficiency?
It is suggested that applicants use no more than 9 pages for this Sub-Element, not including copies of agreements with financial institutions, partnering agencies or organizations, or sample “Savings Plan Agreement”, which should be in an Appendix.
In the case of applications submitted by eligible Credit Unions or Community Development Financial Institutions, where the Reserve Fund and IDA accounts are to be held by the applicant Institution itself, the applicant must submit, in lieu of a Financial Institution Agreement, a Statement of Policy, approved by its Board of Directors and attested to by its Chairperson and Chief Financial Officer, which sets forth the provisions listed under this Sub-Element, and which will be considered in like manner in the competitive review process. Where such applicants are proposing the establishment of Reserve Fund(s) or IDA's in other partnering Financial Institutions, they should submit as part of their applications copies Agreements with such Partnering Financial Institution(s) in accordance with this Sub-Element. It is suggested that applicants need not include discussion of these Agreements/Statements of Policy in their Proposal Narrative, but should only identify the Financial Institution(s) and reference the Agreement/Statement of Policy as included in an Appendix to the Application.
Applicants other than eligible Credit Unions or CDFI's must identify the Qualified Financial Institution(s) with which they are partnering in the development and implementation of its IDA Project, and all applicants must include in an Appendix a copy of a signed Agreement between the Applicant and the Financial Institution(s), or, in the case of eligible Credit Unions or CDFI's, a Statement of Policy, which sets forth:
(1) that the project's Reserve Fund will be established in the Financial Institution;
(2) that its management will conform to the requirements of the AFIA (see Part II-G(1) above);
(3) the rate of interest to be paid on amounts in the Reserve Fund;
(4) that IDA accounts will be established in the Financial Institution through written governing instruments in accordance with the requirements of Part II, Section G (4), paragraphs (a) through (g), above, including the requirements for deposits (by cash, check, money order or electronic transfer) and withdrawals (signature of the account holder and of a responsible official of the project grantee required);
(5) how, when, and where participant deposits will be made;
(6) how and when matching contributions will be made (e.g. in a parallel account);
(7) the rate and frequency of interest payments on accounts, including matching contributions;
(8) that the accounting procedures to be followed in account management will conform to the Guidelines established by the Secretary as set forth at CFR part 1000 published 65 FR 10027, Feb. 25, 2000:
(9) the data and reports that will be furnished to the grantee concerning the Reserve Fund and IDA accounts;
(10) the Non-Federal Share contribution, if any, being made by the Financial Institution for deposit in the Reserve Fund, and the schedule of deposits of such contribution; and
(11) other services to be provided by the Financial Institution(s) that could strengthen the project, such as Financial Education Seminars, favorable pricing on fees, out-stationing of services in community facilities, or assistance in recruitment of Project Participants.
Agreements/policies which meet the basic requirements of paragraphs (1) through (9), above will be awarded up to eight (8) points in the competitive review process. To be awarded a higher score Agreements/Statements of Policy must include some provisions from those included in paragraphs (10) and (11).
As noted above, the applicant need only identify the partnering Financial Institution(s) under this Sub-Element, and reference the Agreement(s) or Statement of Policy in the Appendix to the Application.
Applicant should provide quantitative quarterly projections of the activities to be carried out and such information as the projected number of participants to be enrolled in each quarter, the number of Individual Development Accounts projected to be opened in each quarter for each of the “Qualified Expenses”, the number and amount of projected deposits in each quarter, a projected schedule of IDA completions and qualified expense payments, and the number and types of services provided to participants. The plan should briefly describe the key project tasks, and show the timelines and major milestones for their implementation. Where the Applicant is a lead agency for a group or consortium of organizations, this information should be broken out for each of the member organizations. Applicant may be able to use a time line chart to convey this aspect of the work plan in minimal space.
Applicants should make sure that these projections relate accurately to the amount of grant funds requested and rates of matching contributions that are planned for IDA's. In other words, applicants should not project a greater number of IDA accounts than that number that can be matched by the grant funds that will be available to the project. Applicants should also be aware that OCS funds awarded pursuant to this Announcement will be from FY 2001 funds and may not be expended after the end of the five-year Project/Budget Period to support administration of the project or matching contributions to Individual Development Accounts which may be open at that time. Consequently, Applicants should consider carefully the length of time participants will need to achieve their savings goals and at what point in the project they may wish to discontinue the opening of new accounts. Applicants should provide assurance that in every case provision will be made for payment of all promised matching deposits to IDA accounts opened by project participants in the course of the demonstration project.
This Element of the Proposal should also include a management plan or chart showing the responsibilities of the applicant agency, key personnel, and all partnering agencies and consortium members (where applicable), with an indication of who will be performing various tasks such as recruiting, training, economic education instruction, and support activities. (This
It is suggested that applicants use no more than 3 pages for this Sub-Element, not counting the management plan/chart, which should be included in the Appendix.
Criteria: Completeness of the Budget Justification, and the degree to which a description of the allocation of both cash and in-kind resources available to the project (including any income generated for the project by the Reserve Fund) demonstrates a thoughtful plan that reflects the needs of Project Participants and the responsive activities and interventions to be undertaken by the Applicant and its partners.
Every application must include a Budget Justification, placed after the Budget Forms SF 424 and 424A, explaining the sources and uses of project funds, and completed in accordance with instructions found in Section G, above. The Budget Justification will not be counted as part of the Project Description subject to the thirty page limitation. Applicant should briefly but thoroughly describe how all of the resources available to the Project will be employed to carry out the Work Plan described in Element II, including those training elements and support services designed to help assure participant success in meeting their savings commitments and their chosen “qualified expense” use of their Individual Development Account assets. In the budget forms and supporting Budget Justification, Applicants must clearly distinguish between AFI Act/OCS grant funds and other funds, and between cash and in-kind resources described.
As noted above, the Budget Justification will not be counted as part of the Project Description subject to the thirty page limitation.
Criteria: Adequacy of the plan for collecting, validating and providing relevant, accurate and complete data for internal management information, statutory reporting and project evaluation purposes; and clear expression of a commitment to cooperate with the statutorily mandated evaluation of the national Assets for Independence Demonstration Program.
Under the AFI Act project grantees are required to use at least 2%—but not more than 15%—of grant funds to provide the research organization evaluating the demonstration project with such information with respect to the demonstration project as may be required for the evaluation.
The AFI Act allocates a portion of the appropriated funds to support an evaluation of the overall demonstration program in addition to the funds grantees are required to expend on data collection. This Element requires the Applicant to provide a well thought-out plan for collecting, validating and reporting or providing the necessary data in a timely fashion. The Applicant is also encouraged to identify the kinds of data it believes would facilitate the management information, reporting, and evaluation purposes. The Applicant should also declare its agreement to cooperate with the evaluation of the national program, and include a brief explanation of its perception of what that cooperation would entail. Applicants are urged to carry out an ongoing assessment of the data and information collected as an effective “process” management/feedback tool in implementing the project. If the Applicant anticipates such an undertaking, the plans should be briefly outlined here.
To attain a maximum score for this Element, the Applicant must state its agreement to use the “MIS IDA” information system software developed by the Center for Social Development, or a comparable and compatible Asset Development Information System, now in development, which OCS expects to provide to grantees for the maintenance, collection, and transmission of data from the proposed project.
It is suggested that applicants use no more than 2 pages for this Element.
Criterion: Whether a proportionately greater amount of committed required non-Federal matching contribution funds are from private sector as opposed to public sources.
In accordance with the legislative preferences set forth in Part III Section J Preferences, above, applications which provide a commitment of
Applicants are reminded that as noted in Part II Section I Non-Federal Matching Funds Requirements, where the Applicant is itself providing any of the required cash non-Federal share, it must include in the Appendix a statement of commitment, on applicant letterhead, signed by the official signing the SF 424 and countersigned by the Applicant's Board Chairperson or Treasurer, that the non-Federal matching funds will be provided, contingent only on the OCS grant award, and that non-Federal share deposits and the opening of Individual Development Accounts will be coordinated so that new accounts will only be opened when there are sufficient funds in the Reserve Fund to cover the maximum matching requirements of the Savings Plan Agreements.
Criterion: The extent to which additional resources (beyond the required amount of direct funds from non-federal public sector and from private sources that are formally committed to the project as matching contributions) will be available to support those activities and interventions identified in sub-Element II(b), such as economic literacy classes, “qualified expense”-related training, counseling, case management, post-employment support services, and crisis intervention.
As noted below in Part IV, Paragraph D Initial OCS Screening, the only applications which will be considered for competitive review are those which include written documentation of a commitment, contingent only on award of the OCS grant, from the provider(s) of non-Federal share, in cash as distinguished from in-kind, of at least the amount of the total Federal grant requested.
OCS has determined that the strict legislative limitations on the use of Federal grant funds and of the minimum required non-Federal match (at least 85% of each must go toward matching deposits in Individual Development Accounts) mean that important training, counseling and support activities, critical to the success of a project, can best be supported by additional resources, both of the applicant itself and from the community.
In order to receive points in the review process under this sub-Element, the applicant must identify those
It is suggested that no more than 3 pages be used for this Element, not including non-Federal Share Agreements, assurances, letters of commitment, partnership agreements, or Memoranda of Understanding, which should be put in an Appendix to the proposal.
Criteria: The extent to which proposed project is expected to produce permanent and measurable results that will reduce the incidence of poverty in the community and lead TANF eligible households and other eligible individuals and working families toward economic self-sufficiency through economic literacy education and accumulation of assets; and the extent to which applicant convincingly explains how the project will meet any critical issues or potential problems in achieving these results.
Applicants should set forth their realistic goals and projections for attainment of these and other beneficial impacts of the proposed project and should demonstrate that projected savings goals have a true relationship to the ability of the participant to save the projected amounts and to the value or cost of the “Qualified Expense” for which the IDA is to be used.
Results are expected to be quantifiable in terms of the number of Individual Development Accounts opened, their rate of growth, the number and size of withdrawals for each of the three “Qualified Expenses”, and the impact of the payment of those expenses on the participants' movement toward self-sufficiency.
Applicants should also in this Element explicitly address critical issues or potential problems that might affect the achievement of project objectives, with an explanation of how they would be overcome, and how the objectives will be achieved notwithstanding any such problems.
It is suggested that no more than 3 pages be used for this Element.
In order to be considered for a grant under this program announcement, an application must conform to the Program Requirements set out in Part II and be prepared in accordance with the guidelines set out in Part III, above. It must be submitted on the forms supplied in the attachments to this Announcement and in the manner prescribed below. Attachments A through I contain all of the standard forms necessary for the application for awards under this OCS program. These attachments and Parts IV and V of this Announcement contain all the instructions required for submittal of applications.
Additional copies may be obtained by writing or telephoning the office listed under the section entitled
The applicant must be aware that in signing and submitting the application for this award, it is certifying that it will comply with the Federal requirements concerning the drug-free workplace, the Certification Regarding Environmental Tobacco Smoke, and debarment regulations set forth in Attachments G, H, and I.
Part III contains instructions for the substance and development of the project narrative. Part V contains instructions for completing application forms. Part VI, Section A describes the contents and format of the application as a whole.
(1)
(2)
Applications submitted via overnight/express delivery services should be addressed to the Administration for Children and Families, Office of Grants Management, Office of Child Support Enforcement, “Attention IDA Program”, 901 D Street SW, Fourth Floor, Washington, DC 20024.
Applicants must ensure that a legibly dated U.S. Postal Service postmark, or a legibly dated machine produced postmark of a commercial mail service, or an official dated receipt of an overnight/express delivery service, is affixed to the envelope/package containing the application(s). To be acceptable as proof of timely mailing, a postmark from a commercial mail service or receipt from an overnight/express delivery service company must include the logo/emblem of the company and must reflect the date the package was received by the company from the applicant.
Applications handcarried by applicants, applicant couriers, or by other representatives of the applicant shall be considered as meeting an announced deadline if they are received on or before the deadline date, between the hours of 8:00 a.m. and 4:30 p.m., EST, at the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Grants Management, Office of Child Support Enforcement, Mailroom, 2nd Floor (near loading dock), Aerospace Center, 901 D Street, SW, Washington, DC 20024, between Monday and Friday (excluding Federal holidays). The address must
ACF cannot accommodate transmission of applications by fax or through other electronic media. Therefore, applications transmitted to ACF electronically will not be accepted regardless of date or time of submission and time of receipt.
(3)
(4)
This program is covered under Executive Order 12372, “Intergovernmental Review of Federal Programs,” and 45 CFR Part 100, “Intergovernmental Review of Department of Health and Human Services Program and Activities.” Under the Order, States may design their own processes for reviewing and commenting on proposed Federal assistance under covered programs.
*All States and Territories except Alabama, Alaska, Arizona, Colorado, Connecticut, Hawaii, Idaho, Indiana, Kansas, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia, Washington, Wyoming, American Samoa and Palau have elected to participate in the Executive Order process and have established Single Points of Contact (SPOCs). Applicants from these twenty-eight jurisdictions need take no action regarding E.O. 12372. Applicants for projects to be administered by Federally-recognized Indian Tribes are also exempt from the requirements of E.O. 12372. Otherwise, applicants should contact their SPOCs as soon as possible to alert them of the prospective applications and receive any necessary instructions. Applicants must submit any required material to the SPOCs as soon as possible so that the program office can obtain and review SPOC comments as part of the award process. It is imperative that the applicant submit all required materials, if any, to the SPOC and indicate the date of this submittal (or indicate “not applicable” if no submittal is required) on the Standard Form 424, item 16a.
Under 45 CFR 100.8(a)(2), a SPOC has 60 days from the application deadline to comment on proposed new or competing continuation awards.
SPOCs are encouraged to eliminate the submission of routine endorsements as official recommendations.
Additionally, SPOCs are requested to clearly differentiate between mere advisory comments and those official State process recommendations which may trigger the “accommodate or explain” rule.
When comments are submitted directly to ACF, they should be addressed to: Department of Health and Human Services, Administration for Children and Families, OCSE Office of Grants Management, 370 L'Enfant Promenade, S.W., 4th floor East, Washington, D.C. 20447.
A list of the Single Points of Contact for each State and Territory is included as Attachment J to this Announcement.
Each application submitted under this program announcement will undergo a pre-review to determine that the application was postmarked by the closing date and submitted in accordance with the instructions in this announcement.
All applications that meet the published deadline requirements as provided in this Program Announcement will be screened for completeness and conformity with the following requirements. Only complete applications that meet the requirements listed below will be reviewed and evaluated competitively. Other applications will be returned to the applicants with a notation that they were unacceptable and will not be reviewed.
The following requirements must be met by all Applicants except as noted:
(1) The application must contain a signed Standard Form 424 “Application for Federal Assistance” (SF-424), a budget (SF-424A), and signed “Assurances” (SF 424B) completed according to instructions published in Part V and Attachments A, B, and C of this Program Announcement. The SF-424 and the SF-424B must be signed by an official of the organization applying for the grant who has authority to obligate the organization legally. Applicants must also be aware that the applicant's legal name as required on the SF-424 (Item 5) must match that listed as corresponding to the Employer Identification Number (Item 6).
(2) A project narrative must also accompany the standard forms. OCS requires that the narrative portion of the application be limited to 30 letter-size pages, numbered, and typewritten on one side of the paper only with one-inch margins and type face no smaller than 12 characters per inch (c.p.i.) or equivalent. Applications with project narratives (excluding Project Summaries and appendices) of more than 30 letter-sized pages of 12 c.p.i. type or equivalent on a single side will not be reviewed for funding. The Joint Applicant Agreement (where applicable), non-Federal share agreement, Budget Narrative, Charts, exhibits, resumes, position descriptions, letters of support or commitment, Agreements with Financial Institutions and other partnering organizations, and Business Plans (where required) are not counted against this page limit, and should be in the Appendix. It is Strongly Recommended That Applicants Follow the Format and Content for the Narrative Described in the Program Elements Set Out in Part III.
(3) Application must contain documentation of the applicant's (or joint applicant's) tax exempt status as required under Part II, Section A.
(4) Application must include a copy of a “Non-Federal Share Agreement” or Agreements in writing executed with the entity or entities providing the required non-Federal matching contributions, signed by a person authorized to make a commitment on behalf of the entity and signed for the Applicant by the person signing the SF424. Such Agreement(s) must include: (1) A commitment by the organization to provide the non-Federal funds contingent only on the grant award; and (2) an agreement as to the schedule of the opening of Individual Development Accounts by the Applicant, and the schedule of deposits by the organization to the project's Reserve Fund, such that the two schedules will together assure that there will be at all times in the Reserve Fund non-Federal matching contribution funds sufficient to meet the maximum pledges of matching contributions under the “Savings Plan Agreements” for all Individual Development Accounts then open and being maintained by the grantee as part of the demonstration project.
Where Applicants (or Joint Applicants) themselves are providing non-Federal share funding, then with regard to those funds the application should include an assurance, written on the Applicant's letterhead, signed by the person signing the SF424, and countersigned by the board Chairperson or Treasurer, that the required non-Federal share funds will be provided
Applicants are strongly encouraged to mobilize additional resources, which may be cash or in-kind contributions, Federal or non-Federal, for support of project administration and assistance to Project Participants in obtaining skills, knowledge, and needed support services. [See PART III-I Element V(b)]
(5) All Applications other than those submitted by eligible Credit Unions or CDFI's must include a copy of an Agreement between the Applicant and one or more Qualified Financial Institutions, which includes the provisions set out in PART III, Element II(c), which states that the accounting procedures to be followed in account management will conform to Guidelines (45 CFR Part 74) established by the Secretary, and under which the partnering financial institution will agree to provide data and reports as requested by the applicant. [Note: the Accounting Guidelines may be found at 65 FR 10027, Feb. 25, 2000.]
Applications which pass the initial OCS screening will be reviewed and rated by an independent review panel on the basis of the specific review criteria described and discussed in Part III, above. Applications will be reviewed and rated under the Program Elements and Review Criteria set forth in PART III Section I. The review criteria were designed to assess the quality of a proposed project, and to determine the likelihood of its success. The review criteria are closely related and are considered as a whole in judging the overall quality of an application. Points are awarded only to applications which are responsive to the review criteria and program elements within the context of this Program Announcement. The results of these reviews will assist the Director and OCS program staff in considering competing applications. Reviewers' scores will weigh heavily in funding decisions, but will not be the only factors considered.
Applications generally will be considered in order of the average scores assigned by reviewers. However, highly ranked applications are not guaranteed funding since other factors are taken into consideration, including, but not limited to, the timely and proper completion by applicant of projects funded with OCS funds granted in the last five (5) years; comments of reviewers and government officials; staff evaluation and input; the amount and duration of the grant requested and the proposed project's consistency and harmony with OCS goals and policy; geographic distribution of applications; previous program performance of applicants; compliance with grant terms under previous HHS grants, including the actual dedication to program of mobilized resources as set forth in project applications; audit reports; investigative reports; and applicant's progress in resolving any final audit disallowances on previous OCS or other Federal agency grants.
Since non-Federal reviewers will be used for review of applications, Applicants may omit from the application copies which will be made available to the non-Federal reviewers, the specific salary rates or amounts for individuals identified in the application budget. Rather, only summary information is required. OCS reserves the right to discuss applications with other Federal or non-Federal funding sources to verify the applicant's performance record and the documents submitted.
After Federal fund are exhausted for this grant competition, OCS may decide to reconsider applications which have been independently reviewed and ranked but have no final disposition (neither approved nor disapproved). Reconsideration may occur at any time funds become available within twelve (12) months following ranking. If a competition involving applications with no final disposition should occur, applications will be reviewed by independent reviewers in a new competition and ranked according to the new score. Applicants that will be reconsidered for possible funding will be afforded an opportunity to request reviewer comments from the prior competition, and can revise and reapply under the new competition. In this instance, the previous application will be discarded and the new application will be considered.
The standard forms attached to this announcement shall be used to apply for funds under this program announcement.
It is suggested that you reproduce single-sided copies of the SF-424 and SF-424A, and type your application on the copies. Please prepare your application in accordance with instructions provided on the forms (Attachments A and B) as modified by the instructions set forth in PART III G., above, and the OCS specific instructions set forth below:
Provide line item detail and detailed calculations for each budget object class identified on the Budget Information form. Detailed calculations must include estimation methods, quantities, unit costs, and other similar quantitative detail sufficient for the calculation to be duplicated. The detailed budget must also include a breakout by the funding sources identified in Block 15 of the SF-424.
Provide a narrative budget justification which describes how the categorical costs are derived. Discuss the necessity, reasonableness, and allocability of the proposed costs. (Note: The Budget detail and Narrative Budget Justification should follow the SF 424 and 424A, and are not counted as part of the Project Narrative.)
Where the applicant is a previous Department of Health and Human Services grantee, enter the Central Registry System Employee Identification Number (CRS/EIN) and the Payment Identifying Number, if one has been assigned, in the Block entitled Federal Identifier located at the top right hand corner of the form (third line from the top).
Item 1. For the purposes of this announcement, all projects are considered Applications; there are no Pre-Applications.
Item 7. If applicant is a State, enter “A” in the box. If applicant is an Indian Tribe enter “K” in the box. If applicant is a non-profit organization enter “N” in the box.
Item 9. Name of Federal Agency—Enter DHHS-ACF/OCS.
Item 10. The Catalog of Federal Domestic Assistance number for OCS programs covered under this announcement is 93.602. The title is “Assets for Independence Demonstration Program (IDA Program)”.
Item 11. In addition to a brief descriptive title of the project, indicate the priority area for which funds are being requested. Use the following letter designations: I—Individual projects under Priority Area 1.0
Item 13. Proposed Project—The project start date must begin on or before September 30, 2001; the ending date should be calculated on the basis of 60-month Project Period.
Item 15a. This amount should be no greater than $1,000,000 for applications under Priority Area 1.0.
Item 15b-e. These items should reflect both cash and third-party, in-kind contributions for the Project Period (60 months).
In completing these sections, the Federal Funds budget entries will relate to the requested OCS funds only, and Non-Federal will include mobilized funds from all other sources—applicant, state, local, and other. Federal funds other than requested OCS funding should be included in
You need only fill in lines 1 and 5 (with the same amounts)
Col. (a): Enter “IDA Program” as Item number 1. (Items 2, 3, 4, and 5 should be left blank.)
Col. (b): Catalog of Federal Domestic Assistance number is 93.602. Col. (c) and (d): not relevant to this program.
Column (e)-(g): enter the appropriate amounts in items 1. and 5. (Totals) Column e should not be more than $1,000,000 for applications under Priority Area 1.0, and in no case can it be more than the committed non-Federal matching cash contribution.
(Note that the following information supersedes the instructions provided with the Form in Attachment C)
Columns (1)-(5): For each of the relevant Object Class Categories:
Column 1: Enter the OCS grant funds for the full 5-year budget period. With regard to Class Categories, no less than eighty-five percent (85%) of OCS grant funds should be entered in “h. Other”, representing the funds to be deposited in the Reserve Fund and which will be used to match participant contributions in IDA's. The balance of up to fifteen percent (15%) of OCS grant funds should be allocated to Object Class Categories in accordance with the instructions found in PART III Section G of this Announcement.
Columns 2, 3 and 4 are not relevant to this program.
Column 5: Enter not less than 85% of OCS grant funds for the five year budget by Class Categories under “other”, showing a total of not more than $1,000,000.
This section is to record the amounts of “non-Federal” resources that will be used to support the project, including both the required cash non-Federal “matching contributions” share, and the “additional resources” which will bring additional support to the project, which may be cash or in-kind, non-Federal or Federal. In this context, “Non-Federal” resources mean any and all resources other than the OCS funds for which the applicant is applying. Therefore, mobilized funds from other Federal programs, such as the Job Training Partnership Act program or the Welfare-to-Work program, should be entered on these lines. Provide a brief listing of these “non-Federal” resources on a separate sheet and describe whether it is a grantee cost or a third-party cash or in-kind contribution. The firm commitment of these resources must be documented and submitted with the application in order to be given credit in the review process under the Non-Federal Resources program element.
Even though non-Federal resources mobilized may go beyond the amount required as match under the IDA Program, grantees will be held accountable for any such cash or in-kind contribution proposed or pledged as part of an approved application where the use of such funds falls within a Program Element/Proposal Review Criterion which formed the basis for the grant award. [See Part II, Section I. and Part III, Element V(b).]
Applicants requesting financial assistance for a non-construction project must file the Standard Form 424B, “Assurances: Non-Construction Programs.” (Attachment C) Applicants must sign and return the Standard Form 424B with their applications. Applicants must provide a certification concerning Lobbying. Prior to receiving an award in excess of $100,000, applicants shall furnish an executed copy of the lobbying certification. (See Attachments D and E) Applicants must sign and return the certification with their applications. Applicants should note that the Lobbying Disclosure Act of 1995 has simplified the lobbying information required to be disclosed under 31 U.S.C. 1352.
Applicants must make the appropriate certification on their compliance with the Drug-Free Workplace Act of 1988 and the Pro-Children Act of 1994 (Certification Regarding Smoke Free Environment). (See Attachments G and H) By signing and submitting the applications, applicants are attesting to their intent to comply with these requirements and need not mail back the certification with the applications.
Applicants must make the appropriate certification that they are not presently debarred, suspended or otherwise ineligible for award. (See Attachment I) By signing and submitting the applications, applicants are providing the certification and need not mail back the certification with the applications. Copies of the certifications and assurances are located at the end of this announcement.
Application pages should be numbered sequentially throughout the application package, beginning with a Summary/Abstract of the proposed project as page number one; and each application must include all of the following, in the order listed below:
1. A Project Summary/Abstract—brief, not to exceed one page, on the Applicant's letterhead (that will not be counted as a part of the Project Narrative/Description) and that includes the following information:
2. Table of Contents;
3. A completed Standard Form 424 (Attachment A) which has been signed by an official of the organization applying for the grant who has authority to obligate the organization legally; [Note: The original SF-424 must bear the original signature of the authorizing representative of the applicant organization];
4. A completed Budget Information-Non-Construction Programs (SF-424A) (Attachment B);
5. A Budget Justification, including narrative budget justification for each object class category included under Section B, as described in PART III, Program Element III;
6. Proof of current tax-exempt status of Applicant or Joint Applicant (See Part II B.);
7.
8.
(a) (Where Application is submitted by a State or Local government agency or Tribal government jointly with a tax exempt non-profit organization) a properly executed
(b) Filled out, signed and dated
(c)
(d)
(e)
(f) Signed
(g) Signed
(h) Resumes and/or position descriptions (see Part III Program Element I);
(i) (Where Applicant is “lead agency” of a collaborative or consortium of organizations) Copies of
(j) Any letters and/or supporting documents from collaborating or partnering agencies in target communities, providing additional information on staffing and experience in support of narrative under Part III Element I. [Such documents are not part of the Narrative and should be included in the Appendices. These documents are therefore not counted against the page limitations of the Narrative.]; and
(k) Single points of contact comments, if applicable.
Applications must be uniform in composition since OCS may find it necessary to duplicate them for review purposes. Therefore, applications must be submitted on white 8-1/2 × 11 inch paper only (See Part IV D. (2), above, concerning margins, type size, etc). They must not include colored, oversized or folded materials. Do not include organizational brochures or other promotional materials, slides, films, clips, etc. in the proposal. They will be discarded if included. The applications should be two-hole punched at the top center and fastened separately with a compressor slide paper fastener, or a binder clip. The submission of bound plans, or plans enclosed in binders is specifically discouraged.
Acknowledgment of Receipt—All applicants will receive an acknowledgment with an assigned identification number. Applicants are requested to supply a self-addressed mailing label with their Application, or a FAX number or e-mail address which can be used for acknowledgment. The assigned identification number, along with any other identifying codes, must be referenced in all subsequent communications concerning the Application. If an acknowledgment is not received within three weeks after the deadline date, please notify ACF by telephone at (202) 401-5307.
Following approval of the applications selected for funding, notice of project approval and authority to draw down project funds will be made in writing. The official award document is the Financial Assistance Award which provides the amount of Federal funds approved for use in the project, the project and budget period for which support is provided, the terms and conditions of the award, and the total project period for which support is contemplated.
OCS hopes to sponsor one or more national evaluation workshops in Washington, DC or in other locations during the course of the five-year project. Project Directors will be expected to attend such workshops provided additional funds can be made available by OCS for expenses of attending.
Grantees will be required to submit a semi-annual program progress and financial report (SF 269) covering the six months after grant award, and similar reports after conclusion of the first Project Year. Such reports will be due 60 days after the reporting period. Thereafter grantees will be required to submit annual program progress and financial reports (SF 269), as well as a final program progress and financial report within 90 days of the expiration of the grant.
Grantees are subject to the audit requirements in 45 CFR Part 74 (non-profit organizations) or Part 92 (governmental entities) which require audits under OMB Circular A-133.
Section 319 of Public Law 101-121, signed into law on October 23, 1989, imposes prohibitions and requirements for disclosure and certification related to lobbying on recipients of Federal contracts, grants, cooperative agreements, and loans. It provides limited exemptions for Indian tribes and tribal organizations. Current and prospective recipients (and their subtier contractors and/or grantees) are prohibited from using appropriated funds for lobbying Congress or any Federal agency in connection with the award of a contract, grant, cooperative agreement or loan. In addition, for each award action in excess of $100,000 (or $150,000 for loans) the law requires recipients and their subtier contractors and/or subgrantees (1) to certify that they have neither used nor will use any appropriated funds for payment to lobbyists, (2) to submit a declaration setting forth whether payments to lobbyists have been or will be made out of non-appropriated funds and, if so, the name, address, payment details, and purpose of any agreements with such lobbyists whom recipients or their subtier contractors or subgrantees will pay with the non-appropriated funds and (3) to file quarterly up-dates about the use of lobbyists if an event occurs that materially affects the accuracy of the information submitted by way of declaration and certification.
The law establishes civil penalties for noncompliance and is effective with
Attachment K indicates the regulations which apply to all applicants/grantees under the Assets for Independence Demonstration Program.
Public reporting burden for this collection of information is estimated to average 45 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0043), Washington, DC 20503.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
This is a standard form used by applicants as a required facesheet for preapplications and applications submitted for Federal assistance. It will be used by Federal agencies to obtain applicant certification that States which have established a review and comment procedure in response to Executive Order 12372 and have selected the program to be included in their process, have been given an opportunity to review the applicant's submission.
1. Self-explanatory.
2. Date application submitted to Federal agency (or State if applicable) and applicant's control number (if applicable).
3. State use only (if applicable).
4. If this application is to continue or revise an existing award, enter present Federal identifier number. If for a new project, leave blank.
5. Legal name of applicant, name of primary organizational unit which will undertake the assistance activity, complete address of the applicant, and name and telephone number of the person to contact on matters related to this application.
6. Enter Employer Identification Number (EIN) as assigned by the Internal Revenue Service.
7. Enter the appropriate letter in the space provided.
8. Check appropriate box and enter appropriate letter(s) in the space(s) provided:
9. Name of Federal agency from which assistance is being requested with this application.
10. Use the Catalog of Federal Domestic Assistance number and title of the program under which assistance is requested.
11. Enter a brief descriptive title of the project. If more than one program is involved, you should append an explanation on a separate sheet. If appropriate (e.g., construction or real property projects), attach a map showing project location. For preapplications, use a separate sheet to provide a summary description of this project.
12. List only the largest political entities affected (e.g., State, counties, cities).
13. Self-explanatory.
14. List the applicant's Congressional District and any District(s) affected by the program or project.
15. Amount requested or to be contributed during the first funding/budget period by each contributor. Value of in-kind contributions should be included on appropriate lines as applicable. If the action will result in a dollar change to an existing award, indicate
16. Applicants should contact the State Single Point of Contact (SPOC) for Federal Executive Order 12372 to determine whether the application is subject to the State intergovernmental review process.
17. This question applies to the applicant organization, not the person who signs as the authorized representative. Categories of debt include delinquent audit disallowances, loans and taxes.
18. To be signed by the authorized representative of the applicant. A copy of the governing body's authorization for you to sign its application as official representative must be on file in the applicant's office. (Certain Federal agencies may require that this authorization be submitted as part of the application.)
Public reporting burden for this collection of information is estimated to average 180 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0044), Washington, DC 20503.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
This form is designed so that application can be made for funds from one or more grant programs. In preparing the budget, adhere to any existing Federal grantor agency guidelines which prescribe how and whether budgeted amounts should be separately shown for different functions or activities within the program. For some programs, grantor agencies may require budgets to be separately shown by function or activity. For other programs, grantor agencies may require a breakdown by function or activity. Sections A, B, C, and D should include budget estimates for the whole project except when applying for assistance which requires Federal authorization in annual or other funding period increments. In the latter case, Sections A, B, C, and D should provide the budget for the first budget period (usually a year) and Section E should present the need for Federal assistance in the subsequent budget periods. All applications should contain a breakdown by the object class categories show in Lines a-k of Section B.
For applications pertaining to a single Federal grant program (Federal Domestic Assistance Catalog number ) and ? a functional or activity breakdown, enter on Line 1 under Column (a) the Catalog program title and the Catalog number in Column (b).
For applications pertaining to a single program requiring budget amounts by multiple functions or activities, enter the name of each activity or function on each line in Column (a), and enter the Catalog number in Column (b). For applications pertaining to multiple programs where none of the programs require a breakdown by function or activity, enter the Catalog program title on each line in Column (a) and the respective Catalog number on each line in Column (b).
For applications pertaining to multiple programs where one or more programs require a breakdown by function or activity, prepare a separate sheet for each program requiring the breakdown. Additional sheets should be used when one form does not provide adequate space for all breakdown of data required. However, when more than one sheet is used, the first page should provide the summary totals by programs.
Lines 1-4, Columns (c) through (g).
For new applications, leave Column (c) and (d) blank. For each line entry in Columns (a) and (b), enter in Columns (e), (f), and (g) the appropriate amounts of funds needed to support the project for the first funding period (usually a year).
For continuing grant programs applications, submit these forms before the end of each funding period as required by the grantor agency. Enter in Columns (c) and (d) the estimated amounts of funds which will remain unobligated at the end of the grant funding period only if the Federal grantor agency instructions provide for this. Otherwise, leave these columns blank. Enter in columns (e) and (f) the amounts of funds needed for the upcoming period. The amount(s) in Column (g) should be the sum of amounts in Columns (e) and (f).
For supplemental grants and changes to existing grants, do not use Columns (c) and (d). Enter in Column (e) the amount of the increase or decrease of non-Federal funds. In Column (g) enter the new total budgeted amount (Federal and non-Federal) which includes the total previous authorized budgeted amounts plus or minus, as appropriate, the amounts show in Columns (e) and (f). The amount(s) in column (g) should not equal the sum of amounts in Columns (e) and (f).
Line 5—Show the totals for all columns used.
In the column headings (1) through (4), enter the titles of the same programs, functions, and activities shown on Lines 1-4, Column (a), Section A. When additional sheets are prepared for Section A, provide similar column headings on each sheet. For each program, function or activity, fill in the total requirements for funds (both Federal and non-Federal) by object class categories.
Line 6a-i—Show the totals of Lines 6a to 6h in each column.
Line 6j—Show the amount of indirect cost.
Line 6k—Enter the total of amounts on Lines 6i and 6j. For all applications for new grants and continuation grants the total amount in column (5), Line 6k, should be the same as the total amount shown in Section A, Column (g), Line 5. For supplemental grants and changes to grants, the total amount of the increase or decrease as shown in Columns (1)-(4), Line 6k should be the same as the sum of the amounts in Section A, Columns (e) and (f) on Line 5.
Line 7—Enter the estimated amount of income, if any, expected to be generated from this project. Do not add or subtract this amount from the total project amount. Show under the program narrative statement the nature and source of income. The estimated amount of program income may be considered by the Federal grantor agency in determining the total amount of the grant.
Lines 8-11—Enter amounts of non-Federal resources that will be used on the grant. If in-kind contributions are included, provide a brief explanation on a separate sheet.
Column (a)—Enter the program titles identical to Column (a), Section A. A breakdown by function or activity is not necessary.
Column (b)—Enter the contribution to the made by the applicant.
Column (c)—Enter the amount of the State's crash and in-kind contribution if the applicant is not a State of State agency. Applicants which are a State of State agencies should leave this column blank.
Column (d)—Enter the amount of cash and in-kind contributions to be made from all other sources.
Column (e)—Enter totals of Columns (b)9, (c), and (d).
Line 12—enter the total for each of columns (b)-(e). The amount in Column (e) should be equal to the amount on Line 5, Column (f), Section A.
Line 13—Enter the amount of cash needed by quarter from the grantor agency during the first year.
Line 14—Enter the amount of cash from all other sources needed by quarter during the first year.
Line 15—Enter the totals of amounts on Lines 13 and 14.
Lines 16-19—Enter in column (a) the same grant program titles shown in Column (a), Section A. A breakdown by function or activity is not necessary. For new applications and continuation grant applications, enter in the proper columns amounts of Federal funds which will be needed to complete the program or project over the succeeding funding periods (usually in years). This section need not be completed for revisions (amendments, changes, or supplements) to funds for the current year of existing grants.
If more than four lines are needed to list the program titles, submit additional schedules as necessary.
Lines 20—Enter the total for each of the Columns (b)-(e). When additional schedules are prepared for this Section, annotate accordingly and show the overall totals on this line.
Line 21—Use this space to explain amounts for individual direct object class cost categories that may appear to be out of the ordinary or to explain the details as required by the Federal grantor agency.
Line 22—Enter the type of indirect rate (provisional predetermined, final or fixed) that will be in effect during the funding period, the estimated amount of the base to which the are is applied, and the total indirect expense.
Line 23—provide any other explanations or comments deemed necessary.
Public reporting burden for this collection of information is estimated to average 15 minutes per response, including time for
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
Certain of these assurances may not be applicable to your project or program. If you have questions, please contact the awarding agency. Further, certain Federal awarding agencies may require applicants to certify to additional assurances. If such is the case, you will be notified.
As the duly authorized representative of the applicant, I certify that the applicant:
1. Has the legal authority to apply for Federal assistance and the institutional, managerial and financial capability (including funds sufficient to pay the non-Federal share of project cost) to ensure proper planning, management and completion of the project described in this application.
2. Will give the awarding agency, the Comptroller General of the United States and, if appropriate, the State, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards or agency directives.
3. Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain.
4. Will initiate and complete the work within the applicable time frame after receipt of approval of the awarding agency.
5. Will comply with the Intergovernmental Personnel Act of 1970 (42 U.S.C. §§ 4728-4763) relating to prescribed standards for merit systems for programs funded under one of the 19 statutes or regulations specified in Appendix A of OPM's Standards for a Merit System of Personnel Administration (5 C.F.R. 900, Subpart F).
6. Will comply with all Federal statutes relating to nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of handicaps; (d) the Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101-6107), which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcholism; (g) §§ 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. §§ 290 dd-3 and 290 ee 3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; (i) any other nondiscrimination provisions in the specific statute(s) under which application for Federal assistance is being made; and (j) the requirements of any other nondiscrimination statute(s) which may apply to the application.
7. Will comply, or has already complied, with the requirements of Title II and III of the Uniformm Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or federally-assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchases.
8. Will comply, as applicable, with provisions, of the Hatch Act (5 U.S.C. §§ 1501-1508 and 7324-7328) which limit the political activities of employees whose principal employment activities are funded in whole or in part with Federal funds.
9. Will comply, as applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. §§ 276a to 276a-7), the Copeland Act (40 U.S.C. § 276c and 18 U.S.C. § 874), and the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-333), regarding labor standards for federally-assisted construction subagreements.
10. Will comply, if applicable, with flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-234) which requires recipients in a special flood hazard area to participate in the program and to purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more.
11. Will comply with environmental standards which may be prescribed pursuant to the following: (a) institution of environmental quality control measures under the National Environmental Policy Act of 1969 (P.L. 91-190) and Executive Order (EO) 11514; (b) notification of violating facilities pursuant to EO 11783; (c) protection of wetlands pursuant to EO 11990; (d) evaluation of flood hazards in floodplains in accordance with EO 11988; (e) assurance of project consistency with the approved State management program developed under the Coastal Zone Management Act of 1972 (16 U.S.C. §§ 1451 et seq.); (f) conformity of Federal actions to State (Clean Air) Implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. §§ 7401 et seq.); (g) protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended (P.L. 93-523); and, (h) protection of endangered species under the Endangered Species Act of 1973, as amended (P.L. 93-205).
12. Will comply with the Wild and Scenic Rivers Act of 1968 (16 U.S.C. §§ 1271 et seq.) related to protecting components or potential components of the national wild and scenic rivers system.
13. Will assist the awarding agency in assuring compliance with Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. § 470), EO 11593 (identification and protection of historic properties), and the Archaeological and Historic Preservation Act of 1974 (16 U.S.C. §§ 469a-1 et seq.).
14. Will comply with P.L. 93-348 regarding the protection of human subjects involved in research, development, and related activities supported by this award of assistance.
15. Will comply with the Laboratory Animal Welfare Act of 1966 (P.L. 89-544, as amended, 7 U.S.C. §§ 2131 et seq.) pertaining to the care, handling, and treatment of warm blooded animals held for research, teaching, or other activities supported by this award of assistance.
16. Will comply with the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. §§ 4801 et seq.) which prohibits the use of lead-based paint in construction or rehabilitation of residence structures.
17. Will cause to be performed the required financial and compliance audits in accordance with the Single Audit Act Amendments of 1966 and OMB Circular No. A-133, “Auditis of States, Local Governments, and Non-Profit Organizations.”
18. Will comply with all applicable requirements of all other Federal laws, executive orders, regulations, and policies governing this program.
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to infuence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed with this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The undersigned states, to the best of his or her knowledge and belief, that:
If any funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. Submission of this statement is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required statement shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
1. Identify the type of covered Federal action for which lobbying activity is and/or has been secured to influence the outcome of a covered Federal action.
2. Identify the status of the covered Federal action.
3. Identify the appropriate classification of this report. If this is a followup report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action.
4. Enter the full name, address, city, State and zip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants.
5. If the organization filing the report in item 4 checks “Subawardee,” then enter the full name, address, city, State and zip code of the prime Federal recipient. Include Congressional District, if known.
6. Enter the name of the Federal agency making the award or loan commitment. Include at least one organizational level below agency name, if known. For example,
7. Enter the Federal program name of description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments.
8. Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g., Request for Proposal (RFP) number, Invitation for Bid (IFB) number; grant announcement number; the contract, grant, or loan award number; the application/proposal control number assigned by the Federal agency). Include prefixes, e.g., “RFP-DE-09-001.”
9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the award/loan commitment for the prime entity identified in item 4 or 5.
10. (a) Enter the full name, address, city, State and zip code of the lobbying registrant under the Lobbying Disclosure Act of 1995 engaged by the reporting entity identified in item 4 to influence the covered Federal action.
(b) Enter the full names of the individual(s) performing services, and include full address if different from 10(a). Enter Last Name, First Name, and Middle Initial (MI).
11. The certifying official shall sign and date the form, print his/her name, title, and telephone number.
According to the Paperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless it displays a valid OMB Control Number. the valid OMB control number for this information collection is OMB No. 0348-0046. Public reporting burden for this collection of information is estimated to average 10 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, DC 20503.
In accordance with the applicable program statute(s) and regulation(s), the undersigned certifies that financial assistance provided by the Administration for Children and Families, for the specified activities to be performed under the ________ Program by ________ (Applicant Organization), will be in addition to, and not in substitution for, comparable activities previously carried on without Federal assistance.
This certification is required by the regulations implementing the Drug-Free Workplace Act of 1988: 45 CFR Part 76, Subpart, F. Sections 76.630(c) and (d)(2) and 76.645(a)(1) and (b) provide that a Federal agency may designate a central receipt point for STATE-WIDE AND STATE AGENCY-WIDE certifications, and for notification of criminal drug convictions. For the Department of Health and Human Services, the central point is: Division of Grants Management and Oversight, Office of Management and Acquisition, Department of Health and Human Services, Room 517-D, 200 Independence Avenue, SW Washington, DC 20201.
1. By signing and/or submitting this application or grant agreement, the grantee is providing the certification set out below.
2. The certification set out below is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the agency, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the performance of the grant, the grantee shall inform the agency of the change(s), if it previously identified the workplaces in question (see paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply to this certification. Grantees' attention is called, in particular, to the following definitions from these rules.:
Controlled substance means a controlled substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo contender) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance.
Employee means the employee of a grantee directly engaged in the performance of work under a grant, including: (i) All direct charge employees; (ii) All indirect charge employees unless their impact or involvement is insignificant to the performance of the grant; and, (iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the grantee's payroll; or employees of subrecipients or subcontractors in covered workplaces).
The grantee certifies that it will or will continue to provide a drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about—
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will—
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after receiving notice under paragraph (d)(2) from an employee or otherwise receiving actual notice of such
(f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with respect to any employee who is so convicted—
(1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f).
(B) The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, state, zip code)
Check if there are workplaces on file that are not identified here.
(a) The grantee certifies that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, he or she will report the conviction, in writing, within 10 calendar days of the conviction, to every grant officer or other designee, unless the Federal agency designates a central point for the receipt of such notices. When notice is made to such a central point, it shall include the identification number(s) of each affected grant. [55 FR 21690, 21702, May 25, 1990]
Public Law 103227, Part C Environmental Tobacco Smoke, also known as the Pro Children Act of 1994, requires that smoking not be permitted in any portion of any indoor routinely owned or leased or contracted for by an entity and used routinely or regularly for provision of health, day care, education, or library services to children under the age of 18, if the services are funded by Federal programs either directly or through State or local governments, by Federal grant, contract, loan, or loan guarantee. The law does not apply to children's services provided in private residences, facilities funded solely by Medicare or Medicaid funds, and portions of facilities used for inpatient drug or alcohol treatment. Failure to comply with the provisions of the law may result in the imposition of a civil monetary penalty of up to $1000 per day and/or the imposition of an administrative compliance order on the responsible entity. By signing and submitting this application the applicant/grantee certifies that it will comply with the requirements of the Act.
The applicant/grantee further agrees that it will require the language of this certification be included in any subawards which contain provisions for the children's services and that all subgrantees shall certify accordingly.
1. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below.
2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.
3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
4. The prospective primary participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
5. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is being submitted for assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled “Certification Regarding Deparment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 49 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
(1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery,
(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.
4. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this proposal that, [[Page 33043]] should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by submitting this proposal that it will included this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transactions that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transactions with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
(1) The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
(2). Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
It is estimated that in 2001 the Federal Government will outlay $305.6 billion in grants to State and local governments. Executive Order 12372, “Intergovernmental Review of Federal Programs,” was issued with the desire to foster the intergovernmental partnership and strengthen federalism by relying on State and local processes for the coordination and review of proposed Federal financial assistance and direct Federal development. The Order allows each State to designate an entity to perform this function. Below is the official list of those entities. For those States that have a home page for their designated entity, a direct link has been provided below. States that are not listed on this page have chosen not to participate in the intergovernmental review process, and therefore do not have a SPOC. If you are located within one of these States, you may still send application materials directly to a Federal awarding agency.
Changes to this list can be made only after OMB is notified by a State's officially designated representative. E-mail messages can be sent to
Attachment L can be found at 65 FR 10027, Feb. 25, 2000.