Commodity Credit Corporation
Economics and Statistics Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Fiscal Service
Centers for Disease Control and Prevention
Food and Drug Administration
Health Care Financing Administration
Health Resources and Services Administration
Substance Abuse and Mental Health Services Administration
Land Management Bureau
Minerals Management Service
National Park Service
Immigration and Naturalization Service
Employment and Training Administration
Occupational Safety and Health Administration
Trade Representative, Office of United States
Fiscal Service
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
Substance Abuse and Mental Health Services Administration
Committee for the Implementation of Textile Agreements
Coast Guard
Federal Aviation Administration
Federal Railroad Administration
Surface Transportation Board
Alcohol, Tobacco and Firearms Bureau
Comptroller of the Currency
Fiscal Service
Internal Revenue Service
Thrift Supervision Office
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.
Office of the Comptroller of the Currency, Treasury; Board of Governors of the Federal Reserve System; Federal Deposit Insurance Corporation; and Office of Thrift Supervision, Treasury.
Final rule; delay of effective date.
This final rule delays the effective date for the final consumer protection rules for sales of insurance by depository institutions published by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of Thrift Supervision (collectively, the Agencies) in the
This amendment delays the effective date of the final rules published December 4, 2000, at 65 FR 75822, until October 1, 2001.
On December 4, 2000, the Agencies published final rules (65 FR 75822) implementing section 47 of the FDIA, which was added by section 305 of the Gramm-Leach-Bliley Act. Section 47 of the FDIA directs the Agencies jointly to prescribe and publish consumer protection regulations that apply to retail sales practices, solicitations, advertising, or offers of any insurance product or annuity by a depository institution or any person at an office of the institution or on behalf of the institution. The final rules apply to retail sales, solicitations, advertising, or offers of insurance products or annuities made by an insured depository institution, by any person at an office of the institution, or by any person off of the institution's premises if the transaction is made on behalf of the institution. The rules require, among other things, various consumer disclosures, consumer acknowledgements, and segregation of deposit taking and insurance sales areas.
The final rules included an effective date of April 1, 2001. In establishing that effective date for the final rules, the Agencies recognized that a certain lead time would be necessary for depository institutions and other entities acting “on behalf of” those institutions to adjust their internal systems and sales practices to comply with the disclosure, consumer acknowledgments, and other requirements of the final rules. Based on information available as of the promulgation of the final rules, the Agencies established the effective date for the final rules as April 1, 2001.
Since December 4, 2000, the Agencies have received written comments describing various difficulties that depository institutions are experiencing in complying with the final rules. During February, 2001, several depository institutions and financial services trade associations requested that the effective date for the final rules be extended from April 1, 2001 to January 1, 2002. One of the comment letters, signed jointly by four trade associations, advised that financial institutions need to receive guidance “as soon as possible” from the Agencies that the effective date will be significantly delayed. The commenters indicated that otherwise, many institutions will need to temporarily terminate certain insurance sales programs, especially credit insurance sales programs, for which the
The commenters stated that the following implementation problems support a significant delay in the effective date of the final rules:
• Many of the larger depository institutions underestimated the magnitude of the compliance demands required by the final rules, including the training of a significant number of individuals who currently sell insurance “on behalf of” those institutions as “dual employees” or nonaffiliated insurance agents who sell from an institution's premises.
• With respect to the credit disclosure requirements in the final rules, institutions must check every loan application document pertaining to all lending lines of credit, including revising, inventorying, and restocking all credit card applications at each location of the institutions.
• Many institutions have relationships with insurance underwriters under which the institutions use an application form prepared by the underwriters. As a result of the final rules, those institutions must request that the underwriters revise their application documents to incorporate the disclosures and consumer acknowledgments required in the final rules.
• Since changes to the application documents of insurance underwriters that are prepared for depository institutions must be approved by state insurance commissioners (in certain situations, by state insurance commissioners in all 50 states), significant additional time will be necessary for compliance with the final rules.
• The marketing of certain insurance products, such as credit insurance products, by depository institutions was significantly impacted by the final rules. New marketing formats are under development but will not be available by April 1, 2001, for implementation by third parties acting “on behalf of” depository institutions.
The Agencies have determined that the reasons submitted by the commenters after the publication of the final rules are sufficient to support a significant delay of the effective date of the final rules. The delay will provide depository institutions and other entities subject to the final rules with sufficient time to become familiar with the requirements and bring their operations into compliance, thus avoiding the need to curtail the availability of insurance products and annuities to the public.
The Agencies believe that a six-month extension of the effective date to October 1, 2001, should provide a sufficient time for depository institutions and other entities to comply with the disclosure, customer acknowledgment, and other requirements in the final rules. This period will provide sufficient opportunity for analysis and training without unreasonably delaying important consumer protections.
Under the Administrative Procedure Act (APA), an agency may suspend general notice-and-comment rulemaking procedures if the agency “for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B). The Agencies find that they have good cause to delay the effective date without first soliciting comment concerning this action. Because the effective date of the final rules (April 1, 2001) is fast approaching, it is impracticable to seek further public comment before issuing this amendment to the final rules delaying the effective date of those rules. In addition, such a delay is in the public interest for the reasons explaining above.
For similar reasons, the Agencies also find that this action delaying the effective date of the final rules must take effect on April 1, 2001, which is less than 30 days after publication of this amendment to the final rules. As a result, depository institutions and other entities subject to the final rules will not be required to comply with the new insurance consumer protection requirements for a brief period at the beginning of April 2001, as they would in the event that a 30-day, delayed effective date were used.
Under section 604 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 604), a final regulatory flexibility analysis is required only for notice-and-comment rulemakings conducted under section 553 of the APA. Since the Agencies find that there is “good cause” under the APA for not proceeding with notice-and-comment rulemaking for this amendment to the effective date for the final rules, the RFA does not require that a final regulatory flexibility analysis be provided for this amendment.
The Agencies provided regulatory flexibility analyses in the preamble to the final rules published on December 4, 2000 (65 FR 75830—75837). In those regulatory flexibility analyses, the Agencies considered the likely impact of the final rules on small entities and determined that the final rules will not have a significant impact on a substantial number of small entities.
The determinations made by the OCC and OTS that the final rules did not constitute a “significant regulatory action” (65 FR 75837) apply to the rules as amended by this effective date revision.
The Unfunded Mandates Reform Act of 1995 (UMA) applies only when an agency is required to issue a general notice of proposed rulemaking or a final rule for which a general notice of proposed rulemaking was published. 2 U.S.C. 1532. As noted above, the OCC and OTS have determined, for good cause, that this amendment to the final rules may be issued without prior notice and comment. Accordingly, the OCC and OTS have concluded that the UMA does not require an unfunded mandates analysis of this amendment to the final rules. The UMA finding made when the related final rules were published is found in the preamble of those rules (65 FR 75837-75838).
As described by the OCC and OTS in the preamble to the final rules (65 FR 75838), there are consultation requirements imposed on them by section 6(c) of Executive Order 13132. In accordance with those requirements and of section 47(a)(3) of the FDIA, the Agencies have consulted with the National Association of Insurance Commissioners concerning this amendment to delay the effective date of the rules.
By order of the Board of Directors, Federal Deposit Insurance Corporation.
By the Office of Thrift Supervision.
Federal Energy Regulatory Commission, DOE.
Technical amendment.
In Order No. 603 published in the
Effective March 19, 2001.
Administrative practice and procedure, Natural gas, Reporting and record keeping requirements.
15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.
(f) For each change in rate schedule authorized under § 157.217, the information specified in § 157.217(b);
Substance Abuse and Mental Health Services Administration, Department of Health and Human Services.
Final rule; delay of effective date and resultant amendments to the final rule.
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
This rule is effective March 18, 2001. The effective date of the “Opioid Drugs in Maintenance and Detoxification Treatment of Opiate Addiction” published in the
Nicholas Reuter, Center for Substance Abuse Treatment (CSAT), SAMHSA, Rockwell II, 5600 Fishers Lane, Rm 12-05, Rockville, MD 20857, 301-443-0457, email:
To the extent that 5 U.S.C. section 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. section 553(b)(A). Alternatively, the Department's implementation of this rule without opportunity for public comment, effective immediately upon publication today in the
Health professions, Levo-Alpha-Acetyl-Methadol (LAAM), Methadone, Reporting and recordkeeping requirements.
21 U.S.C. 823; Sections 301(d), 543, and 1976 of the 42 U.S.C. 257a, 290aa(d), 290 dd-2, 300x-23, 300x-27(a), 300y-11.
(d)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect a change of sponsor for two approved new animal drug applications (NADA's) from Wendt Laboratories, Inc., to First Priority, Inc.
This rule is effective March 19, 2001.
Norman J. Turner, Center for Veterinary Medicine (HFV-102), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-0214.
Wendt Laboratories, Inc., 100 Nancy Dr., Belle Plaine, MN 56011, has informed FDA that it has transferred to First Priority, Inc., 1585 Todd Farm Dr., Elgin, IL 60123, ownership of, and all rights and interests in NADA 48-646 for Therazone Injection and NADA 48-647 for Therazone Tablets. Accordingly, the agency is amending the regulations in 21 CFR 520.1720a and 522.1720 to reflect the transfer of ownership.
In addition, First Priority, Inc., has not been previously listed in the animal drug regulations as a sponsor of an approved application. At this time, 21 CFR 510.600(c) is being amended to add entries for the firm.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A), because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
21 U.S.C. 360b.
Bureau of Consular Affairs, DOS.
Interim rule with request for comments.
This rule incorporates into existing regulation a new special immigrant visa classification for certain international broadcasting employees of the International Broadcasting Bureau of the Broadcasting Board of Governors or grantees of that Board. This addition to the regulation results from an amendment to the pertinent legislation. The change will permit certain broadcasting employees to receive immigrant visas and apply for entry into the United States as immigrants.
Effective date: This interim rule is effective on April 18, 2001.
Comment date: Written comments must be submitted on or before May 18, 2001.
Submit comments in duplicate to the Chief, Legislation and Regulations Division, Visa Services, Department of State, 20520-0106, (202) 663-1204, e-mail
H. Edward Odom, Chief, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106.
Pub. L. 106-536 created a new class of special immigrants under INA 203(b)(4) for international broadcasting employees. Such aliens must be seeking to enter the United States to work as a broadcaster for the International Broadcasting Bureau of the Broadcasting Board of Governors, or for a grantee of the Broadcasting Board of Governors. The alien's accompanying spouse and child(ren) are entitled to derivative status. The law limits the number of immigrants in this category to 100 annually, excluding spouses and children for whom there is no numerical limitation.
The Department is amending its regulation at 22 CFR 42.32 by adding a new paragraph (d)(8).
This rule authorizes consular officers to accord fourth preference employment-based special immigrant classification to certain international broadcasters. As with other classes of fourth preference employment-based immigrants, the alien must be the beneficiary of an approved petition.
The Department's implementation of this regulation as an interim rule is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). As the amendment to the regulation simply implements without interpretation a legislative mandate that provides a benefit to aliens by extending special immigrant status to a specific class of aliens, the Department has determined that it is unnecessary to publish a proposed rule or to solicit comments from the public. In view of this benefit and since the amendment applies to visas made available in any fiscal year beginning on or after October 1, 2000, the rule will be made effective immediately upon publication in the
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The Department of State does not consider this rule, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).
This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule does not impose any new reporting or record-keeping requirements.
Aliens, Immigrants, Passports and Visas.
8 U.S.C. 1104.
(d) * * *
(8) Certain United States international broadcasting employees.
(i) Entitlement to status. An alien is classifiable as a special immigrant under INA 203(b)(4) as described in INA 101(a)(27)(M), if the consular office has received a petition approved by the INS to accord such classification, or official notification of such an approval, and the consular officer is satisfied from the evidence presented that the alien is within the class described in INA 101(a)(27)(M).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of any alien classified under INA 203(b)(4) as a special immigrant qualified under this section, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to derivative status corresponding to the classification and priority date of the beneficiary of the petition.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the Gulf of Alaska, southeast of Narrow Cape, Kodiak Island, Alaska. The zone is needed to protect the safety of persons and vessels operating in the vicinity of the safety zone during a rocket launch from the Alaska Aerospace Development Corporation, Narrow Cape, Kodiak Island facility. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Commander, Seventeenth Coast Guard District, and the Coast Guard Captain of the Port, Western Alaska, or his on scene representative. The intended affect of the proposed safety zone is to ensure the safety of human life and property during the rocket launch.
This temporary final rule is effective from 11 a.m. on March 23, 2001, until 8 p.m. on March 30, 2001.
The public docket for this rulemaking is maintained by Coast Guard Marine Safety Office Anchorage, 510 “L” Street, Suite 100, Anchorage, AK 99501. Materials in the public docket are available for inspection and copying at Coast Guard Marine Safety Office Anchorage. Normal Office hours are 7:30 a.m. to 4 p.m., Monday through Friday, except federal holidays.
LCDR Rick Rodriguez, Marine Safety Office Anchorage, at (907) 271-6700.
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after
The Alaska Aerospace Development Corporation (AADC) will launch an unmanned rocket from their facility at Narrow Cape, Kodiak Island, Alaska sometime between 1 p.m. and 6 p.m. each day between March 23, 2001 and March 30, 2001. The safety zone is necessary to protect spectators and transiting vessels from the potential hazards associated with the launch.
The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of the launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners. Because the hazardous condition is expected to last for approximately 5 hours of each day for eight days, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial and recreational traffic is expected to be minimal.
From the latest information received from the Alaska Aerospace Development Corporation, the launch window is scheduled for 5 hours each day between March 23, 2001 and March 30, 2001. The size of the safety zone has been set based upon the trajectory information in order to provide a greater safety buffer in the event that the launch is aborted shortly after take-off. The proposed safety zone includes an area approximately 133 square nautical miles in the Gulf of Alaska, southeast of Narrow Cape, Kodiak Island, Alaska. Specifically, the zone includes the waters of the Gulf of Alaska that are within the area by a line drawn from a point located at 57(30.5′ North, 152°23.5′ West, thence southeast to a point located at 57°22.0′ North, 151°52.5′ West, thence southwest to a point located at 57°15.0′ North, 152°00.0′ West, and thence northwest to a point located at 57°25.0′ North, 152°29.5′ West, and thence northeast to
This safety zone is necessary to protect spectators and transiting vessels from the potential hazards associated with the launch of the Alaskan Aerospace rocket. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of the launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential cost and benefits under section 6(a)(3) of that order. It has not been reviewed by the Office of Management and Budget under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.
Under the Regulatory Flexibility Act (5 U.S.C. 601
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
This rule contains no information collection requirements under the Paperwork Reduction Act (44 U.S.C. 3501
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal Regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided that funds to pay those costs. This rule will not impose an unfunded mandate.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not economically significant and does not cause an environmental risk to health or risk to safety that may disproportionately affect children.
This proposed rule will not have tribal implications; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, it is exempt from the consultation requirements of Executive Order 13175. If tribal implications are identified during the comment period we will undertake appropriate consultations.
The Coast Guard considered the environmental impact of this rule and concluded that, under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. The justification for this categorical exclusion is that this rule is to establish a navigation safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.401-1, 6.04-6 and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
(2) The Captain of the Port may authorize and designate any Coast Guard commissioned, warrant, or petty officer to act on his behalf in enforcing the safety zone.
(3) The general regulations governing safety zones contained in Title 33 Code
Health Care Financing Administration (HCFA), HHS.
Final rule; delay of effective date.
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
The effective date of the final rule, Hospital Conditions of Participation: Anesthesia Services, published in the
Stephanie Dyson, Health Care Financing Administration, (410) 786-9226.
Department of Health and Human Services (DHHS).
Final rule; delay of effective date.
In accordance with the memorandum of January 20, 2001, from the Assistant to the President and Chief of Staff, entitled A Regulatory Review Plan, published in the
That rule concerns Protection of Human Subjects, Additional Protections for Pregnant Women and Human Fetuses Involved in Research, and Pertaining to Human In Vitro Fertilization. To the extent that 5 U.S.C. section 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. section 553(b)(A).
Alternatively, the Department's implementation of this rule without opportunity for public comment, effective immediately upon publication today in the
The effective date of the Final Rule, Protection of Human Subjects, published in the
Melody Lin, Ph.D., Office for Human Research Protections (OHRP) 6100 Executive Blvd., Suite 3B01, Rockville, MD 20892-7505. Telephone 301-496-7005. Email
Federal Communications Commission.
Final rule.
The Commission affirmed its April 2000 decision to use a point system to select among mutually exclusive noncommercial educational (NCE) broadcast applicants on reserved channels. In response to requests for additional information, the Commission clarified various aspects of the new system and revised several rules to reflect the clarifications. Appendix D to the decision identifies approximately 1,500 pending applications that are members of closed mutually exclusive groups on reserved channels. The Commission will issue a public notice announcing a date by which those applicants must file either a supplement to claim points or a settlement agreement. The Commission will waive its rules to permit timely filed settlements to exceed the amount of the applicants' reasonable and prudent expenses.
Effective April 18, 2001.
Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Internet address:
Irene Bleiweiss, Federal Communications Commission, Mass Media Bureau, Audio Services Division, 445 12th Street, SW., Washington, DC 20554, (202) 418-2700. Internet address: ibleiwei@fcc.gov.
This is a synopsis of the Commission's
1. On February 28, 2001, the Commission released a decision responding to seventeen Petitions for Reconsideration and/or Clarification of noncommercial educational (NCE) broadcast selection procedures adopted in April 2000. The decision clarifies filing procedures and selection methods for mutually exclusive applicants seeking to construct new or to make major changes to existing reserved channel NCE broadcast stations including FM, FM translator, and television stations. While providing additional guidance to applicants, the decision leaves the point system that will be used to select among applicants basically unchanged from that adopted in April 2000.
2. Future applicants seeking to build new reserved channel NCE stations or to make major changes to such existing stations will file applications during a “filing window.” They will claim points as part of their original application, based on their qualifications at the time of filing. If mutually exclusive applications are received during the filing window the Commission will use a point system and tie breakers to select among them. Each applicant's characteristics at the time of filing will determine that applicant's maximum points and its maximum position in a tie breaker. If an applicant makes changes after filing that detract from the original proposal, it will lose points.
3. Procedures will differ somewhat for pending applications, because those applications did not contain any point information at the time of filing. Procedures will depend on whether the applicant is in a group that is considered “closed” or “open” in terms of whether it is subject to future competition from additional parties.
4. Appendix D to the Commission's decision lists the applicants in “closed” groups. With respect to these applicants the Commission will issue a public notice announcing a supplement date, approximately 30 days thereafter. By that date, applicants in “closed” groups must file either a settlement agreement or a supplement to claim points. Applicants filing neither will be dismissed. The Commission will waive its rules to permit closed group applicants that file settlements on or before the supplement date to receive consideration that exceeds reasonable and prudent expenses.
5. Two types of settlements are acceptable: Universal settlements and technical solutions, each of which allows immediate grant of an authorization. Universal settlements resolve the claims of all applicants in the mutually exclusive group. Technical solutions make it possible, by means of a minor engineering change, for one applicant to remove itself from the group on the four corners of its application without affecting the viability of any other applicants.
6. Non-settling applicants in closed groups must file point supplements to remain viable. They may claim non-technical points based on their qualifications as of the future “supplement date” to be announced by public notice. To some degree this may enable existing applicants to enhance their positions. For example, an applicant that unconditionally withdraws pending applications prior to the supplement date would not count those stations for purposes of the tie breaker which favors applicants with fewer pending applications. Not all point factors can be enhanced in that manner, however. For example, only those applicants that have been local for a full two years by the supplement date can claim points as an “established” local applicant. An organization cannot be considered established through its later actions, such as by changing in its board of directors after our adoption of the point system. Applicants also will not be permitted to claim additional points based on recent technical changes, because applications have already been studied for technical matters and changes now would cause undue delay. The applicant's technical points will be examined as of the date on which we issued a “B” cut-off public notice establishing the closed group or, if no such notice has been issued, as of April 21, 2000, the release date of our Report and Order in this proceeding. These dates establish maximum points, which will be reduced if the applicant makes detracting changes thereafter.
7. With respect to the final type of applicants (those with pending applicants that are still “open” to future competition because they were never placed on an “A” cut-off notice) such applicants will be considered along with any additional applications filed within the first filing window. Pending applicants in open proceedings have two options for claiming points. If an applicant chooses to keep its application pending, it may amend that application during the first filing window to enhance its proposal and claim the points for which it would qualify as of the close of the filing window. Alternatively, an applicant may withdraw its pending application
8. The Commission's decision makes several other clarifications. The rules are amended to clarify that, to the extent that attribution is relevant to an NCE station, the attribution standards contained in the notes to 47 CFR 73.3555 (the commercial ownership rule) will apply. The rules are amended to incorporate the provision that government entities are considered local throughout their areas of jurisdiction. It is clarified that the NCE standards for fair distribution pursuant to 47 U.S.C. 307(b) are based on whether a station is the first or second reserved channel FM station
As required by the Regulatory Flexibility Act (“RFA”),
In the Report and Order, the Commission established a point system, a type of simplified paper hearing, to select among applicants competing to construct new noncommercial educational (NCE) broadcast stations on channels reserved for NCE use. The Commission received petitions requesting reconsideration and clarification of a variety of issues. This Memorandum Opinion and Order affirms the use of a point system and the elements therein, but makes the following clarifications: (1) Attribution standards applicable to NCE stations are clarified; (2) the stated policy that government entities are considered local throughout their areas of jurisdiction is incorporated into the rules; (3) it is clarified that first and second NCE aural signals received, rather than those licensed to a community, will be considered for the threshold fair distribution analysis and that, if fair distribution is not decisive only equivalent mutually exclusive applications with respect to fair distribution will proceed to be considered under a point system; (4) the manner in which applicants will claim points is clarified; and (5) the manner in which to count translator stations is clarified. Additionally, the Memorandum Opinion and Order gives applicants in pending closed groups of mutually exclusive applications a limited opportunity to settle for more than reasonable and prudent expenses.
No comments were received in direct response to the FRFA in MM Docket No. 95-31. Two Petitioners for Reconsideration, while not addressing the FRFA, ask for clarification of whether small community colleges with fewer than five campuses can qualify for state-wide network points. The Memorandum Opinion and Order clarifies that small colleges that form consortiums with other colleges, so that at least five campuses are served, can so qualify.
The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules. 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small organization,” “small business,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.
The rules adopted in this Order will apply to television and radio stations licensed to operate on channels reserved as “noncommercial educational.” Specifically, the rules will affect reserved channel FM, FM translator, and TV stations that apply to make major changes to those existing stations and to applicants for permits to construct new reserved channel FM, FM translator, and TV stations. Stations that operate on non-reserved channels, such as TV translator stations and AM stations are not affected. Stations in low power services (LPTV and LPFM) also are not affected.
With respect to television stations, the Small Business Administration defines a television broadcasting station that has no more than $10.5 million in annual receipts as a small business. Television broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other pay television services. Television stations that the Federal Communications Commission (FCC) would consider commercial, as well as those that the FCC would consider noncommercial educational, are included in this industry. Also included are other establishments primarily engaged in television broadcasting and which produce taped television program materials. Separate establishments primarily engaged in producing taped television program materials are classified under another SIC number.
For 1992 the total number of television stations that produced less than $10.0 million in revenue was 1,155 of the 1,509 television stations then operating, both commercial and noncommercial, or 77 percent. As of February 1, 2001, of the 1,667 total television stations, 374 were noncommercial educational. Thus, we estimate that the proposed rules will potentially affect 288 (77 percent of 374) noncommercial educational television stations that are small businesses. These existing stations would only be affected if they file an application for major modification of their existing facilities, and if another applicant files a mutually exclusive application. These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from non-television affiliated companies. On the other hand they may understate the number of small entities, because we believe that a larger percentage of noncommercial educational stations are small businesses than the percentage applicable to the television industry as a whole. We recognize that the proposed rules may also affect minority and women owned stations, some of which may be small entities. In 1997, minorities owned and controlled 38 (3.2%) of 1,193 commercial television stations in the United States. Comparable figures are not available for noncommercial stations. According to the U.S. Bureau of the Census, in 1987 women owned and controlled 27 (1.9%) of 1,342 commercial and noncommercial television stations in the United States. The proposal would also affect pending and future mutually exclusive applications for noncommercial television stations. As of February 2001, there are currently 89 pending applications for 31 channels reserved for noncommercial educational television usage.
The rules would also affect noncommercial educational radio stations. The SBA defines a radio broadcasting station that has no more than $5 million in annual receipts as a small business. 13 CFR 121.201, SIC code 4832. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. 1992 Census, Series UC92-S-1, at Appendix A-9. Radio stations that the Federal Communications Commission (FCC) would consider commercial, as well as those that the FCC would consider noncommercial educational, are included in this industry. Also included are entities which primarily are engaged in radio broadcasting and which produce radio program materials. However, radio stations which are separate establishments and are primarily engaged in producing radio program material are classified under another SIC number. The 1992 Census indicates that 96 percent of radio station establishments produced less than $5 million in revenue in 1992. The Census Bureau counts radio stations located at the same facility as one establishment. Therefore, each colocated AM/FM combination counts as one establishment. Official Commission records indicate that 11,334 individual radio stations were operating in 1992. FCC News Release, No. 31327 (January 13, 1993). As of February 1, 2001, Commission records indicate that 12,751 radio stations were operating. Of that radio station total, 2,170 stations were noncommercial educational FM radio stations. Thus, we estimate that 2,083 (96%) of these noncommercial educational stations are small businesses, possibly more because we believe that a greater percentage of noncommercial educational stations are small businesses than of the radio industry overall. These existing stations would only be affected by the proposal if they choose to file applications for major modification of facilities and if their applications are mutually exclusive with the application of another noncommercial entity. Applicants for new NCE radio stations would also potentially be affected. As of February 2001 there were 439 pending mutually exclusive groups of 1,356 applications, for new noncommercial FM radio stations. We also note that this proposal will affect future full service FM applications. It also will affect pending and future noncommercial FM translator applicants. As of February 1, 2001 there were 43 pending mutually exclusive groups of 97 applications for reserved channel FM translator stations.
Most of the provisions of the Report and Order are unchanged by the Memorandum Opinion and Order. As noted in the Report and Order, the point system is expected to reduce the overall administrative burden of the Commission's application processes on applicants and the Commission. Use of a point system will eliminate the expense of preparing for and appearing at lengthy traditional hearings. Applicants should also receive decisions faster, because the Commission will make numerical calculations instead of preparing detailed hearing decisions. These savings should more than offset the time that would be required for applicants to gather and submit documentation supporting the points claimed. No additional professional services are required by applicants filing under these revised rules. Further, the cost of compliance will not vary between large and small entities.
All significant alternatives presented in the petitions and responsive comments were considered. The alternatives considered generally would affect all reserved channel applicants, regardless of whether they are small or large entities, and whether they are seeking to construct small or large stations. For example, the Commission considered but did not adopt suggestions to use lotteries rather than a point system, to adjust the previously established qualifications needed to receive various points, and to adopt points for new factors such as radio reading services. While generally affirming the choices made previously in its Report and Order in this proceeding, MM Docket No. 95-31, 15 FCC Rcd 7386 (2000), the Commission clarified various matters. Only one clarification specifically affects small entities. In response to a concern raised by community colleges, the Commission clarified that existing rules permit applicants with fewer than 5 colleges/50 secondary schools of their own to qualify as state-wide networks if through a consortium or similar arrangement they are also able to count schools under the authority of other
The Commission will send a copy of the
Radio broadcasting, Television broadcasting.
47 U.S.C. 154, 303, 334, and 336.
(f) * * * However, the attribution standards set forth in the Notes to this section will be used to determine attribution for noncommercial educational FM and TV applicants, such as in evaluating mutually exclusive applications pursuant to subpart K.
(b) In an analysis performed pursuant to paragraph (a) of this section, a full service FM applicant that will provide the first or second reserved channel noncommercial educational (NCE) aural signal received by at least 10% of the population within the station's 60dBu (1mV/m) service contours will be considered to substantially further fair distribution of service goals and to be superior to mutually exclusive applicants not proposing that level of service, provided that such service to fewer than 2,000 people will be considered insignificant. First service to 2,000 or more people will be considered superior to second service to a population of any size. If only one applicant will provide such first or second service, that applicant will be selected as a threshold matter. If more than one applicant will provide an equivalent level (first or second) of NCE aural service, the size of the population to receive such service from the mutually exclusive applicants will be compared. The applicant providing the most people with the highest level of service will be awarded a construction permit, if it will provide such service to 5,000 or more people than the next best applicant. If none of the applicants in a mutually exclusive group would substantially further fair distribution goals, all applicants will proceed to examination under a point system. If two or more applicants will provide the same level of service to an equivalent number of people (differing by less than 5,000), only those equivalent applicants will be considered together in a point system.
(b) * * *
(2) * * * Radio applicants will count commercial and noncommercial AM, FM, and FM translator stations other than fill-in stations. Television applicants will count UHF, VHF, and Class A stations.
(c) * * *
(1) * * * Radio applicants will count commercial and noncommercial AM, FM, and FM translator stations other than fill-in stations. Television applicants will count UHF, VHF, and Class A stations.
(e) For applications filed after April 21, 2000, an applicant's maximum qualifications are established at the time of application and will be reduced for any post-application changes that negatively affect any evaluation criterion.
(f) For applications filed on or before April 21, 2000, an applicant's maximum qualifications are established as of the relevant date listed in paragraph (f)(1), (2), or (3) of this section. After the relevant date for determining an applicant's maximum points, points will be reduced for any changes that negatively affect any evaluation criterion. Applicants will establish their qualifications according to the following:
(1) If the applicant is in a group for which a “B” cut-off notice issued prior to April 21, 2000 its maximum non-technical qualifications are established as of the date by which applicants must supplement their applications to supply point information, and its maximum technical qualifications are established as of the date of the “B” cut-off notice;
(2) If the applicant is in a group for which an “A” cut-off notice issued prior to April 21, 2000 but for which no “B” cut-off notice issued, its maximum non-technical qualifications are established as of the date by which applicants must supplement their applications to supply point information, and its maximum technical qualifications are established as of April 21, 2000;
(3) If the applicant was neither placed on an “A” cut-off list prior to April 21, 2000 nor filed in response to such an “A” cut-off list, it is subject to competition from applications filed within the first filing window, and its maximum technical and non-technical qualifications will be determined as of the close of the first filing window.
47 U.S.C. 154, 303, 307, 336(f), and 554.
(e) * * *
(3) * * *
(i)
(ii)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure of the penaeid shrimp fisheries in the exclusive economic zone (EEZ) off South Carolina and Georgia.
NMFS closes the trawl fishery for penaeid shrimp, i.e., brown, pink, and white shrimp, in the EEZ off South Carolina and Georgia. This closure action is taken in accordance with the procedures and criteria specified in the Fishery Management Plan for the Shrimp Fishery of the South Atlantic Region (FMP) and its implementing regulations and is intended to protect the spawning stock of white shrimp that has been severely depleted by unusually cold weather conditions.
The closure is effective March 13, 2001 until the effective date of a notification of opening which will be published in the
Dr. Steve Branstetter, 727-570-5305; fax: 727-570-5583; e-mail: Steve.Branstetter@noaa.gov.
The commercial penaeid shrimp fishery in the South Atlantic Region is managed under the FMP. The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The FMP and implementing regulations at 50 CFR 622.35(d) provide the procedures, criteria, and authority for a concurrent closure of the EEZ adjacent to South Atlantic states that have closed their waters to harvest of brown, pink, and white shrimp to protect the white shrimp spawning stock that has been severely depleted by cold weather. Consistent with those procedures and criteria, the states of Georgia and South Carolina have determined, based on standardized assessments, that unusually cold temperatures have resulted in at least an 80-percent reduction of the white shrimp populations in their respective state's waters. Both states have closed their waters to the harvest of brown, pink, and white shrimp and have requested that the Council recommend that NMFS implement a concurrent closure of the EEZ off Georgia and South Carolina. The Council convened a review panel to evaluate the data supporting the states' requests. Based on the review panel's recommendation, the Council approved the states' requests and requested that NMFS concurrently close the EEZ off Georgia and South Carolina to the harvest of brown, pink, and white shrimp. NMFS has determined that the recommended closure conforms with the procedures and criteria specified in the FMP and implementing regulations, the Magnuson-Stevens Act, and other applicable law and, therefore, implements the closure effective March 13, 2001. The closure will be effective until the ending dates of the closures in the respective states' waters, but may be ended earlier based on the states' request. In no case will the closure remain effective after June 15, 2001. NMFS will terminate the closure of the EEZ by filing a notification to that effect with the Office of the Federal Register.
During the closure, no person may: (1) trawl for brown, pink, or white shrimp in the EEZ off Georgia or South Carolina; (2) possess on board a fishing vessel brown, pink, or white shrimp in or from the EEZ off Georgia or South Carolina unless the vessel is in transit through the area and all nets with a mesh size of less than 4 inches (10.2 cm) are stowed below deck; or (3) use or have on board a vessel trawling in that part of the EEZ off Georgia or South Carolina that is within 25 nautical miles of the baseline from which the territorial sea is measured a trawl net with a mesh size less than 4 inches (10.2 cm).
This action responds to the best available information recently obtained from the fishery. The closure must be implemented immediately to protect the severely depleted spawning stock of white shrimp off Georgia and South Carolina and avoid overfishing. This action complements closures already imposed by the respective states. Any delay in implementing this action would be impractical and contradictory to the Magnuson-Stevens Act, the FMP, and the public interest. NMFS finds for good cause, that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C.
This action is authorized by 50 CFR 622.35(d) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Emergency interim rule; notification of closure; clarification of closure requirements; request for comments.
NMFS announces that the limit on the number of longline sets specified for Hawaii longline fishing restricted Area B, from January 1, 2001, through March 14, 2001, will not be reached. Therefore, NMFS will allow longline fishing to continue in Area B through March 14, 2001. Further, NMFS clarifies that from March 15, 2001 through May 31, 2001, the use of longline gear by vessels registered for use under Hawaii longline limited access permits (Hawaii-based longliners) is prohibited everywhere. Closure of Hawaii’s longline fishery takes effect at 0001 hours local time (l.t.) on March 15, 2001, at which time all Hawaii longliners at sea must have ceased fishing operations, removed their longline gear from the water, and be in active transit to the next port of call.
This emergency interim rule is effective from March 14, 2001 through August 20, 2001.
Send comments regarding any ambiguity or unnecessary complexity arising from the language used in this rule to Dr. Charles Karnella, NMFS, Pacific Islands Area Office (PIAO), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.
Alvin Katekaru, PIAO, at 808-973-2935, ext. 207.
Emergency interim measures (66 FR 11120, February 22, 2001) governing the Hawaii-based longline fishery require the NMFS Southwest Region Regional Administrator to inform Hawaii-based longliners when further use of longline gear to fish for Pacific pelagic management unit species is prohibited in Hawaii Longline Fishing Restricted Area B (all waters bounded on the south by 28° N. lat., on the north by 44° N. lat., on the east by 137° W. long. and on the west by 150° W. long; and all waters bounded on the south by 28° N. lat., on the north by 44° N. lat., on the east by 168° W. long. and on the west by 173° E. long.). Based on longline observer information, the total amount of longline fishing effort expended by Hawaii-based longliners in Area B through March 14, 2001, will be close to, but less than, the limit of 77 longline sets allowed in the area; therefore, closure of Area B will coincide with closure of the Hawaii-based longline fishery on March 15, 2001. -
At present, emergency measures prohibit the use of longline gear in Hawaii Longline Fishing Restricted Area A (waters bounded on the south by 28° N. lat., on the north by 44° N. lat., on the east by 150° W. long., and on the west by 168° W. long.). For Area B (previously described) and Hawaii Longline Fishing Restricted Area C (waters bounded on the south by 0° lat., on the north by 28° N. lat., on the east by 137° W. long., and on the west by 173° E. long.), longline fishing is prohibited from March 15, 2001, through May 31, 2001. Closure of Areas B and C, in addition to the currently closed Area A, is intended to comply with an order issued by the U.S. District Court for the District for Hawaii (Order Further Amending Order Modifying Provisions of Order of Injunction, August 4, 2000) in
When the emergency interim measures to close the Hawaii longline fishery were initially promulgated on August 25, 2000 (65 FR 51992), NMFS surmised that closing the longline fishing restricted areas, which encompass about 10 million square miles of the central and western Pacific Ocean, from March 15, 2001, through May 31, 2001, would effectively close the fishery. However, longline logbook information from August 1, 2000, through December 31, 2000, indicates that Hawaii longliners made at least 28 longline sets (19 sets east of 147° W. longitude and 9 sets west of 173° E. longitude) outside Areas A, B, and C. In this emergency interim rule, NMFS makes clear that the use of longline gear by Hawaii-based longliners is prohibited everywhere, inside and outside Areas A, B, and C. -
The emergency interim rule also clarifies that closure of the Hawaii longline fishery takes effect at 0001 hours l.t. on March 15, 2001, at which time all Hawaii-based longliners must have ceased fishing operations, removed their longline gear from the water, and be in active transit to their next port of call. -
This emergency interim rule is authorized under section 305(c)(3)(B) of the Magnuson-Stevens Fishery Conservation and Management Act. -
The Assistant Administrator for Fisheries, NOAA (AA), has determined that clarification of the emergency interim rule is necessary to comply with a valid order of the U.S. District Court. -
The AA finds for good cause that providing prior notice and opportunity for public comment for this action is unnecessary given that the Court ordered the specific actions contained in this emergency interim rule, thus precluding implementation of any alternative, and is impracticable given the Court’s deadline to close the fishery on March 15, 2001. Similarly, the AA finds, for good cause, under 5 U.S.C. 553(d)(3), that delaying the effectiveness of this emergency interim rule for 30 days is impracticable given the Court’s deadline. Accordingly, the AA is making this emergency interim rule effective from March 14, 2001 through August 20, 2001. -
Because this emergency interim rule is not required to be published with notice and opportunity for public comment under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act do not apply. -
This emergency interim rule has been determined to be not significant for purposes of Executive Order 12866. -
The President has directed Federal Agencies to use plain language in their communications with the public, including regulations. To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language
Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.
16 U.S.C. 1801
(ee) Fish for Pacific pelagic management unit species with a vessel registered for use under a Hawaii longline limited access permit using longline gear in violation of § 660.33(a)(4), (b)(1), (c)(1), (c)(4), (c)(5), or (d)(1).
(a) * * *
(4) A vessel registered for use under a Hawaii longline limited access permit may not use longline gear to fish for Pacific pelagic management unit species from March 15 through May 31, 2001.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the pollock total allowable catch (TAC) for Statistical Area 610 of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), March 16, 2001, until 1200 hrs, A.l.t., August 20, 2001.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
Within any fishing year, under harvest or over harvest of a seasonal allowance may be added to or subtracted from the subsequent seasonal allowances in a manner to be determined by the Administrator, Alaska Region, NMFS (Regional Administrator), provided that a revised seasonal allowance does not exceed 30 percent of the annual TAC apportionment (§ 679.20(a)(5)(ii)(C)). The combined A and B season allowance of the pollock TAC in Statistical Area 610 is 11,561 metric tons (mt) as established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001). The Regional Administrator hereby reduces the B season pollock TAC by 2,011 mt, the amount of the A season pollock over harvest. In accordance with § 679.20(a)(5)(ii)(C), the B season allowance of pollock TAC in Statistical Area 610 is 1,843 mt.
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the pollock TAC in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,643 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached within 24 hours of the March 15 opening date. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA effective at 1200 hrs, A.l.t., March 16, 2001.
Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the seasonal allocation of pollock in Statistical Area 610 constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent exceeding the seasonal allocation of pollock in Statistical Area 610 constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for pollock in West Yakutat
Effective 1200 hrs, Alaska local time (A.l.t.), March 1, 2001, until 2400 hrs, A.l.t., December 31, 2001.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The pollock TAC in the West Yakutat District, Statistical Area 640, was established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001) as 2,235 metric tons (mt).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the TAC of pollock in the West Yakutat District will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,035 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in the West Yakutat Districtof the GOA.
Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the pollock TAC in the West Yakutat District constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent exceeding the pollock TAC in the West Yakutat District constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 630 outside the Shelikof Strait conservation area in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the pollock total allowable catch (TAC) for Statistical Area 630 outside the Shelikof Strait conservation area.
Effective 1200 hrs, Alaska local time (A.l.t.), March 17, 2001, until 1200 hrs, A.l.t., August 20, 2001.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
Within any fishing year, under harvest or over harvest of a seasonal allowance may be added to or subtracted from the subsequent seasonal allowances in a manner to be determined by the Administrator, Alaska Region, NMFS (Regional Administrator), provided that a revised seasonal allowance does not exceed 30 percent of the annual TAC apportionment (§ 679.20(a)(5)(ii)(C)). The combined A and B season allowance of the pollock TAC in Statistical Area 630 outside Shelikof Strait is 8,211 metric tons (mt) as established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001). The Regional Administrator hereby increases the B season pollock TAC by 227 mt, the amount of the A season under harvest. In accordance with § 679.20(a)(5)(ii)(C), the B season allowance of pollock TAC in Statistical Area 630 outside Shelikof Strait is 2,964 mt. This adjusted B season TAC does exceed 30 percent of the annual TAC.
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the pollock TAC in Statistical Area 630 outside the Shelikof Strait conservation area will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,464 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached within 48 hours of the March 15 opening date. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 outside the Shelikof Strait conservation area in the GOA effective at 1200 hrs, A.l.t., March 17, 2001.
Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the seasonal allocation of pollock in Statistical Area 630 outside the Shelikof Strait conservation area constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Learjet Model 55 Series Airplanes and Model 60 Airplanes. This proposal would require replacement of the brake valve adjustment screw with a new improved screw, and for certain airplanes, it would also require installation of a new brake valve lever stop. This action is necessary to prevent bottoming of the valve components before contact of the brake valve lever with the stop, which could result in loss of all hydraulic fluid and consequent loss of normal braking. This action is intended to address the identified unsafe condition.
Comments must be received by May 3, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-128-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2000-NM-128-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas.
Shane Bertish, Aerospace Engineer, Systems and Propulsion Branch, ACE-116W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4156; fax (316) 946-4407.
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 shall 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.
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
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-NM-128-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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-128-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received numerous reports of sheared brake valve adjustment bolts on certain Learjet Model 60 airplanes. Additionally, we have received a report indicating that loss of all hydraulic fluid during taxi occurred on one airplane, which was attributed to broken brake valve adjustment bolts. Loss of all hydraulic fluid, if not prevented, could result in loss of normal braking capability.
The FAA has reviewed and approved Bomardier Service Bulletins 60-32-10, Revision 1, dated June 22, 2000 (for Learjet Model 60 airplanes), and 55-32-14, dated November 9, 1999 (for Learjet Model 55 series airplanes). Both service bulletins describe procedures for installing a new brake valve lever stop and replacing the brake valve adjustment screws with new improved screws. Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.
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 accomplishment of the actions specified in the service bulletins described previously.
There are approximately 331 airplanes of the affected design in the worldwide fleet. The FAA estimates that 285 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 16 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $2,368 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $948,480, or $3,328, per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
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 airplane 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 airplanes 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 (b) 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 bottoming of the valve components before contact of the brake valve lever with the stop, which could result in loss of all hydraulic fluid and consequent loss of normal braking; accomplish the following:
(a) Within 300 flight hours or one year after the effective date of this AD, whichever occurs first, accomplish the actions specified in paragraph (a)(1), (a)(2), or (a)(3), as applicable.
(1) For Learjet Model 60 airplanes having serial numbers 60-002 through 60-093 inclusive, and 60-095 through 60-188 inclusive: Replace the existing brake valve lever stop switch with a new brake valve lever stop switch, and replace the brake valve adjustment screws with new improved screws, per Bombardier Service Bulletin 60-32-10, Revision 1, dated June 22, 2000.
(2) For Learjet Model 60 airplanes having serial number 60-094 or 60-189: Replace the brake valve adjustment screws with new improved screws, per Bombardier Service Bulletin 60-32-10, Revision 1, dated June 22, 2000.
(3) For Learjet Model 55 series airplanes having serial numbers 55-003 through 55-147 inclusive: Replace the existing brake valve lever stop with a new brake valve lever stop, and replace the brake valve adjustment screws with new improved screws, per Bombardier Service Bulletin 55-32-14, dated November 9, 1999.
(b) 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, Wichita Aircraft Certification Office, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Wichita ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Wichita ACO.
(c) 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 airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain CASA Model CN-235 series airplanes. This proposal would require modification of the rigging of the engine control cable assembly and replacement of either the entire engine control cable assembly or a segment of the control cables. This proposal is prompted by issuance of mandatory continuing airworthiness information issued by a foreign airworthiness authority. This
Comments must be received by April 18, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-262-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2000-NM-262-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Construcciones Aeronauticas, S.A., Getafe, Madrid, Spain. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, ANM-116, FAA, Transport Airplane Directorate, 10601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
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 shall 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.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin referene as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
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-NM-262-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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-262-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Direccion General De Aviacion Civil (DGAC), which is the airworthiness authority for Spain, notified the FAA that an unsafe condition may exist on certain CASA Model CN-235 series airplanes. The DGAC reported the occurrence of three in-service incidents of the breakage of a segment of the engine control cable assembly of the power plant, due to incorrect rigging of the system. In two of these incidents, the broken cable was that of the power lever. In the other incident, the broken cable was that of the condition lever. This incorrect rigging, if not corrected, could result in fatigue of the engine control cables, leading to breakage of the cables, which could result in reduced controllability of the airplane.
The manufacturer has issued CASA COM 235-140, Revision 01, dated March 21, 2000, which appends a portion of the revised Aircraft Maintenance Manual to modify the rigging of the power levers and condition levers of the engine control stops to eliminate overload on the engine control cables. CASA COM 235-140 also recommends the replacement of either the entire engine control cable assembly or only that segment of the control cable which has been found to be broken in the three incidents. Accomplishment of the actions specified in CASA COM 235-140 is intended to adequately address the identified unsafe condition. The DGAC classified this document as mandatory and issued Spanish airworthiness directive 03/00, dated March 2000, in order to assure the continued airworthiness of these airplanes in Spain.
This airplane model is manufactured in Spain and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service information described previously.
The FAA estimates that 2 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 8 work hours per airplane to accomplish the proposed modification of the rigging of the engine control cable assembly, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of modifying the rigging on U.S. operators is estimated to be $960, or $480 per airplane.
It would take approximately 47 work hours per airplane to accomplish the proposed replacement of either the engine control cable assembly or a segment of the control cables, at an average labor rate of $60 per work hour. Required parts would cost approximately $1,444 per airplane. Based on these figures, the cost impact of the proposed replacement on U.S. operators is estimated to be $8,528, or $4,264 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
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 he 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 airplane 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 airplanes 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 (c) 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 fatigue of the engine control system cables, which could lead to breakage of the engine control cables, which could result in reduced controllability of the airplane, accomplish the following:
(a) Within 15 days after the effective date of this AD: Rig the power lever and condition lever control stops, in accordance with CASA COM 235-140, Revision 01, dated March 21, 2000.
(b) Prior to the accumulation of 12,000 total flight cycles or within 6 months after the effective date of this AD, whichever occurs later: Replace either the entire engine control cable assembly (part number 7-44728-12) with a new assembly or replace a segment of the control cable (part number 72830-20) with a new segment, in accordance with CASA COM 235-140, Revision 01, dated March 21, 2000.
(c) 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, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(d) 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 airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in Spanish airworthiness directive 03/00, dated March 2000.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to supersede an existing airworthiness directive (AD), applicable to all Airbus Model A300 B2, A300 B4, A310, A330, and A340 series airplanes; all Model A300 B4-600, A300 B4-600R, and A300 F4-600R (collectively called A300-600) series airplanes; and all A319, A320, A321 series airplanes. That AD requires repetitive checks of the alternate braking system, and replacement of the braking dual distribution valve (BDDV) if necessary. This action would require, for certain airplanes, inspecting and/or replacing the BDDV cover with an improved cover. For all other airplanes, this action would provide for optional termination of the repetitive checks. This action would also revise the applicability of the existing AD. This proposal is prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The actions specified by the proposed AD are intended to prevent failure of the alternate braking system, which could result in the airplane overrunning the end of the runway during landing.
Comments must be received by April 18, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-267-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The service information referenced in the proposed rule may be obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
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 shall 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.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
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 No. 2000-NM-267-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, Transport Airplane Directorate, ANM-114, Attention: Rules Docket 2000-NM-267-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On July 22, 1998, the FAA issued AD 98-15-51, amendment 39-10678 (63 FR 40805, July 31, 1998), applicable to all Airbus Model A319, A320, A321, A300, A310, A300-600, A330, and A340 series airplanes. That AD requires repetitive in-flight operational checks of the alternate braking system, and replacement of the braking dual distribution valve (BDDV) with a serviceable part, if necessary. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The requirements of that AD are intended to prevent failure of the alternate braking system, which could result in the airplane overrunning the end of the runway during landing.
In the preamble to AD 98-15-51, the FAA specified that the actions required by that AD were considered “interim action,” and indicated that it may consider further rulemaking action. The manufacturer has identified the more exposed location of the BDDV on Model A319, A320, and A321 series airplanes as a major contributing factor to water ingress in the BDDV cover. The manufacturer has developed a modification that will positively address the unsafe condition for those airplanes. The FAA has determined that further rulemaking action is indeed necessary; this proposed AD follows from that determination.
Airbus has issued All Operators Telex (AOT) 32-19, Revision 04, dated April 29, 1999. The original version of the AOT was cited as the appropriate source of service information for doing the operational checks required by AD 98-15-51. Revision 04 was issued to provide operators with certain updated information; the accomplishment instructions remain essentially unchanged.
Airbus has issued the following service bulletins for Model A319, A320, and A321 series airplanes:
Accomplishment of the actions specified in the AOT and Service Bulletins A320-32-1199 and A320-32-1203 is intended to adequately address the identified unsafe condition. The Direction Ge
Airbus has issued additional service bulletins that describe procedures to modify the emergency BDDV. The modification involves replacing the BDDV cover with a new, improved cover, which includes a bonded seal, new attachment parts, and a transparent drain hose. This modification, if accomplished, would eliminate the need for the repetitive checks. The service bulletins are identified as follows:
These airplanes are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 98-15-51 to continue to require repetitive in-flight operational checks of the alternate braking system, and replacement of the BDDV with a serviceable part if necessary. In addition, this action would:
• Require repetitive inspections to detect corrosion of the rocker arm mechanism inside the BDDV cover, and corrective actions if necessary, for Model A319, A320, and A321 series airplanes modified per Service Bulletin A320-32-1200.
• Require the eventual replacement of the BDDV cover with a new, improved cover for all Model A319, A320, and A321 series airplanes, which would terminate the requirements of the AD for those airplanes.
• Provide for optional terminating action for the repetitive operational checks.
• Remove airplanes from the applicability of the existing AD.
Operators should note that Service Bulletins A300-32-0429, A300-32-6075, A310-32-2113, A320-32-1203, A330-32-3086, and A340-32-4122 recommend subsequent repetitive inspections at each “4A check” to detect water inside the drain tube. However, to be consistent with the recommendations of the DGAC, this AD does not specify a 4A-check inspection, which is a task included in the airplane maintenance planning document.
Since the issuance of AD 98-15-51, the FAA has changed the manner in which it identifies the airplane models referred to as Airbus Model “A300 series airplanes” and “A300-600 series airplanes” to reflect the model designation specified on the type certificate data sheet. This proposed AD specifies the appropriate model designations for those airplanes.
There are approximately 367 airplanes of U.S. registry that would be affected by this proposed AD. Of these, approximately 311 are Model A319, A320, and A321 series airplanes.
The repetitive operational checks that are currently required by AD 98-15-51 and retained in this AD take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required repetitive checks is estimated to be $60 per airplane, per check.
The new inspection that is proposed in this AD action for certain Model A319, A320, and A321 series airplanes would take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the new inspection proposed by this AD is estimated to be $60 per airplane, per inspection cycle.
The new BDDV cover replacement that is proposed in this AD action for Model A319, A320, and A321 series airplanes would take approximately 3 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would be provided by the manufacturer at no cost to operators. Based on these figures, the cost impact of the proposed replacement on U.S. operators is estimated to be $55,980, or $180 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
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
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 removing amendment 39-10678 (63 FR 40805, July 31, 1998), and by adding a new airworthiness directive (AD), to read as follows:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes 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 (g)(1) 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 failure of the alternate braking system, which could result in the airplane overrunning the end of the runway during landing, accomplish the following:
(a) At the earlier of the times specified in paragraphs (a)(1) and (a)(2) of this AD: Perform an in-flight operational check of the alternate braking system, in accordance with Airbus All Operator Telex (AOT) 32-19, Revision 04, dated April 29, 1999.
(1) For Model A319, A320, and A321 series airplanes: Perform the check at the earlier of the times specified by paragraphs (a)(1)(i) and (a)(1)(ii) of this AD. Thereafter, repeat the operational checks at intervals not to exceed 7 days.
(i) Within 7 days after the most recent check done per AD 98-15-51, amendment 39-10678.
(ii) Within 7 days after the effective date of this AD.
(2) For all other airplanes: Perform the check at the earlier of the times specified in paragraphs (a)(2)(i) and (a)(2)(ii). Thereafter, repeat the operational checks at intervals not to exceed 500 flight hours.
(i) Within 500 flight hours after the most recent operational check done per AD 98-15-51.
(ii) Within 500 flight hours after the effective date of this AD.
(b) If any discrepancy is found during any operational check required by paragraph (a) of this AD: Prior to further flight, replace the brake dual distribution valve (BDDV) with a serviceable part, in accordance with AOT 32-19, Revision 04, dated April 29, 1999.
The AOT refers to the following Flight Operation Telexes (FOT) as additional sources of service information: FOT 999.0062, Revision 01, dated August 20, 1998 (for Model A300 series airplanes), FOT 999.0061, Revision 01, dated August 20, 1998 (for Model A300-600 and A310 series airplanes), FOT 999.0059, Revision 02, dated September 2, 1998 (for Model A319, A320, and A321 series airplanes), and FOT 999.0060, Revision 01, dated August 20, 1998 (for Model A330 and A340 series airplanes).
Doing the operational checks and replacing the BDDV per earlier versions of Airbus AOT 32-19 (issued prior to Revision 04) are also acceptable for compliance with the applicable requirements of paragraphs (a) and (b) of this AD.
(c) For Model A319, A320, and A321 series airplanes modified per Airbus Service Bulletin A320-32-1200 (production Modification 27833): Within 6 months after accomplishment of the modification, or within 3 months after the effective date of this AD, whichever occurs later, perform a detailed visual inspection to detect corrosion of the rocker arm mechanism inside the BDDV cover, per Airbus Service Bulletin A320-32-1199, dated January 15, 1999. Repeat the inspection thereafter at least every 6 months until the actions required by paragraph (e) or (f), as applicable, of this AD have been accomplished. If any corrosion is detected during any inspection required by this paragraph: Before further flight, replace the BDDV cover with a new cover per Airbus Service Bulletin A320-32-1199, dated January 15, 1999.
For the purposes of this AD, a detailed visual inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(d) Modification of the BDDV, if accomplished, per the applicable service bulletin listed in Table 2 of this AD cancels the operational checks required by paragraph (a) of this AD. Table 2 follows:
(e) Except as provided by paragraph (f) of this AD: For Model A319, A320, and A321 series airplanes, within 12 months after the effective date of this AD, replace the BDDV cover with a new, improved cover, per Airbus Service Bulletin A320-32-1203, dated June 4, 1999. This replacement terminates the requirements of this AD for these airplanes.
(f) For Model A319, A320, and A321 series airplanes modified per Airbus Service Bulletin A320-32-1200 within the compliance time specified by paragraph (e) of this AD: Do the replacement required by paragraph (e) of this AD within 15 months after doing the modification specified by Airbus Service Bulletin A320-32-1200, or within 2 months after the effective date of this AD, whichever occurs later. This replacement terminates the requirements of this AD for these airplanes.
(g)(1) 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, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
(2) Alternative methods of compliance, approved previously in accordance with AD 98-15-51, amendment 39-10678, are approved as alternative methods of compliance with the applicable requirements of this AD.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(h) 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 airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in French airworthiness directive 2000-258-146(B), dated June 14, 2000.
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission is proposing for public comment amendments to revise rules under the Investment Company Act of 1940 and the Investment Advisers Act of 1940 that permit registered investment companies and registered investment advisers to preserve required records using electronic storage media such as magnetic disks, tape, and other digital storage media. The proposed amendments would expand the ability of advisers and funds to use electronic storage media to maintain and preserve records. The Commission is proposing these rule amendments in response to the enactment of the Electronic Signatures in Global and National Commerce Act, which encourages federal agencies to accommodate electronic recordkeeping.
Comments must be received on or before April 19, 2001.
Comments should be submitted in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549-0609. Comments also may be submitted electronically at the following E-mail address: rule-comments@sec.gov. All comment letters should refer to File No. S7-06-01; this file number should be included on the subject line if E-mail is used. Comment letters will be available for public inspection and copying in the Commission's Public Reference Room, 450 5th Street, NW., Washington, DC. Electronically submitted comment letters also will be posted on the Commission's Internet web site (http://www.sec.gov).
William C. Middlebrooks, Jr., Attorney, or Martha B. Peterson, Special Counsel, Office of Regulatory Policy, (202) 942-0690, Division of Investment Management, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549-0506.
The Securities and Exchange Commission (“Commission”) today is requesting public comment on proposed amendments to rule 31a-2 [17 CFR 270.31a-2] under the Investment Company Act of 1940 [15 U.S.C. 80a] (the “Investment Company Act”), and rule 204-2 [17 CFR 275.204-2] under the Investment Advisers Act of 1940 [15 U.S.C. 80b] (the “Advisers Act”).
The federal securities laws require registered investment companies (“funds”), registered investment advisers (“advisers”), and others to make and keep books and records. The recordkeeping requirements are a key part of the Commission's investment company and investment adviser regulatory program because they allow us to monitor the operations of funds and advisers and to evaluate their compliance with the federal securities laws.
Last year, Congress passed the Electronic Signatures in Global and National Commerce Act (“Electronic Signatures Act,” “Act,” or “ESIGN”) to
Rules 31a-2 and 204-2 provide that funds and advisers may keep records on electronic storage media only if the records were originally created or received in an electronic format.
The standards for electronic recordkeeping we are proposing for advisers and funds are different from rules we have adopted for broker-dealers, which require brokerage records to be preserved in a non-rewriteable, non-erasable (“WORM”) format.
We are also proposing to amend the recordkeeping rules to clarify the obligation of funds and advisers to provide copies of their records to Commission examiners. Currently the rules require that funds and advisers “promptly provide” on request any “facsimile enlargement” of a photographic record or “computer printout or copy” of a computer storage medium.
Under the Electronic Signatures Act, an agency's recordkeeping requirements may be met by retaining electronic records that accurately reflect the information set forth in the record, and remain accessible to all persons who are entitled to access, in a format that can be accurately reproduced.
Our interpretation of the Electronic Signatures Act must be based on findings that (i) our interpreting regulations are substantially justified; (ii) the methods selected to carry out our purposes are substantially equivalent to the requirements imposed on records that are not electronic records and will not impose unreasonable costs on the acceptance and use of electronic records; and (iii) the methods selected to carry out our purposes do not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures.
The Electronic Signatures Act's principles of accuracy and accessibility are consistent with the requirements of rules 31a-2 and 204-2. Our requirements that funds and advisers store separately duplicate copies of their records, and maintain procedures to safeguard them from loss, alteration, or destruction protect the integrity of the records and assure that the records are “accurate.” If a fund or adviser separately stores a duplicate copy of its records, then if one copy is altered or damaged there will still be an accurate backup copy. Procedures to safeguard records from loss, alteration, or destruction make it possible for funds, advisers, and us to be reasonably confident that the records have not been changed in ways that cannot otherwise be detected. Our requirements that funds and advisers arrange and index records, and that they be ready to provide printouts or copies of the records, make those records accessible. Funds and advisers keep many records. Those records are not truly accessible unless there is an index system that makes it possible to find a particular record. The records are also not truly accessible if they cannot be printed out or copied for later use.
We request comment on whether rules 31a-2 and 204-2, as proposed to be amended, are consistent with the requirements of the Electronic Signatures Act.
We request comment on the proposed rule amendments that are the subject of this release, suggestions for additional provisions or changes to the rules, and comments on other matters that might have an effect on the proposals contained in this release. We request comment whether the proposals, if adopted, would promote efficiency, competition, and capital formation.
We are considering the costs and the benefits of the proposed amendments to rules 31a-2 and 204-2. We encourage commenters to discuss any costs or benefits of the proposal. The primary benefit of the amendments is the improved transparency and flexibility of our recordkeeping rules.
We do not believe the proposals will impose any costs on funds or advisers. As described above, the proposals would allow funds and advisers to maintain records in compliance with the relevant recordkeeping requirements in electronic storage media, regardless of whether the record was created or received electronically or otherwise. Electronic storage is optional under the proposals. We assume that funds and advisers will not opt for the electronic storage option provided for in the proposals unless doing so is cheaper (or otherwise more efficient and, therefore, supported by business considerations). By contrast, we believe that there may be significant benefits to the proposals. As stated, because using electronic storage media is optional, we do not believe that funds or advisers will employ such media unless the benefits conferred by the option outweigh the costs and, therefore, electronic storage makes good business sense. It is our belief, therefore, that the proposals, if adopted, would allow funds and advisers greater flexibility to make (business) decisions about recordkeeping and, when appropriate, opt for electronic storage with potential cost savings and other benefits.
We request comment on the costs and benefits of the proposed rule amendments and invite commenters to submit their own estimates of costs and benefits that would result from the proposal. In order to evaluate fully the costs and benefits associated with the proposed amendments, we request that commenters' estimates of the costs and benefits of the proposed amendments be accompanied by specific empirical data supporting their estimates.
The proposals do not require a new collection of information. They affect only the manner in which registrants can store the information that must be collected under rules 31a-2 and 204-2. In connection with rules 31a-2 and 204-2, the Commission submitted to the Office of Management and Budget, pursuant to the Paperwork Reduction Act, a request for approval and received OMB control numbers for the rules, OMB Control Nos. 3235-0179 (rule 31a-2) and 3235-0278 (rule 204-2).
The Commission has prepared an Initial Regulatory Flexibility Analysis (“IRFA”) in accordance with 5 U.S.C. 603 regarding amendments to rule 31a-2 under the Investment Company Act and rule 204-2 under the Advisers Act. The following summarizes the IRFA.
Our rules under the Investment Company Act and Advisers Act require registered funds and registered advisers to retain certain books and records. Rule 31a-2 and rule 204-2 allow funds and advisers to store these records on electronic storage media, provided they were created or received in an electronic format. The Electronic Signatures Act states that federal recordkeeping requirements may be met by retaining electronic records of the information required to be maintained so long as the electronic record is accurate and accessible to those entitled to access it.
The Regulatory Flexibility Act requires us to consider the potential effect of our rulemaking on small entities. For purposes of the Investment Company Act, a “small entity” is “an investment company that, altogether with other investment companies in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent
We estimate that there are approximately (1) 3,610 active registered management investment companies, of which 203 are small entities, and (2) 762 unit investment trusts, of which 12 are small entities. We further estimate that approximately 1,500 out of 8,100 investment advisers registered with us are small entities. All registered investment companies (including management investment companies and unit investment trusts) and all registered advisers are subject to the recordkeeping requirements of rule 31a-2 and rule 204-2, respectively. They all could be affected by the amendments we are proposing.
The IRFA states that all registered advisers and funds that choose to store required records electronically will be subject to the proposed rule amendments. There are no rules that duplicate, overlap, or conflict with the proposed amendments. We anticipate that small entities will benefit from the proposed rule amendments, because electronic record maintenance may be more affordable and efficient than paper or micrographic storage. Moreover, as electronic storage is not mandated, we assume that funds and advisers will choose to store records electronically only if it would be cost-effective.
The Commission encourages comments on the matters discussed in the IRFA. Comment is requested on the number of small entities that would be affected by the proposed amendments, and the likely impact on those small entities. Specifically, commenters are requested to describe the nature of the amendments' impact on the small entities and to provide empirical data supporting the extent of the impact. We also request comment on how many small entities will choose to store their records electronically. The comments will be placed in the same public file as comments on the proposed rule amendments. A copy of the IRFA may be obtained by contacting William C. Middlebrooks, Jr., (202) 942-0690, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549-0506.
The Commission is proposing amendments to rule 31a-2 of the Investment Company Act pursuant to authority set forth in sections 31 and 38(a) of the Investment Company Act [15 U.S.C. 80a-30 and 80a-37(a)].
The Commission is proposing amendments to rule 204-2 of the Advisers Act pursuant to authority set forth in sections 204, 206(4), and 211 of the Advisers Act [15 U.S.C. 80b-4, 80b-6(4), and 80b-11].
Investment companies, Reporting and recordkeeping requirements, Securities.
Reporting and recordkeeping requirements, Securities.
For reasons set forth in the preamble, title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows:
1. The Authority citation for part 270 continues to read in part as follows:
15 U.S.C. 80a-1
2. Section 270.31a-2 is amended by:
a. Revising paragraphs (f)(1) and (f)(2);
b. Redesignating paragraph (f)(3) as (f)(4); and
c. Adding a new paragraph (f)(3) to read as follows:
(f)(1)
(i) Micrographic media, including microfilm, microfiche, or any similar medium; or
(ii) Electronic storage media, including any digital storage medium or system that meets the terms of this section.
(2)
(i) Arrange and index the records in a way that permits easy location, access, and retrieval of any particular record;
(ii) Provide promptly (but in no case more than one business day after the request) any of the following that the Commission (by its examiners or other representatives) or the directors of the company may request:
(A) A legible, true, and complete copy of the record (or the information necessary to generate the record) in the medium and format in which it is stored;
(B) A legible, true, and complete printout of the record; and
(C) Means to access, search, view, sort, and print the records; and
(iii) Separately store, for the time required for preservation of the original record, a duplicate copy of the record stored on the micrographic or electronic storage media or any medium allowed by this rule.
(3)
(i) To maintain and preserve the records, so as to reasonably safeguard them from loss, alteration, or destruction;
(ii) To limit access to the records to properly authorized personnel, the directors of the investment company, and the Commission (including its examiners and other representatives); and
(iii) To reasonably ensure that any reproduction of a non-electronic original record on electronic storage media is complete, true, and legible when retrieved.
3. The authority citation for part 275 continues to read in part as follows:
15 U.S.C. 80b-2(a)(ii)(F), 80b-2(a)(17), 80b-3, 80b-4, 80b-6(4), 80b-6a, 80b-11, unless otherwise noted.
4. The authority citation following § 275.204-2 is removed.
5. Section 275.204-2 is amended by revising paragraphs (g)(1) and (g)(2); and adding paragraph (g)(3), to read as follows:
(g)(1)
(i) Micrographic media, including microfilm, microfiche, or any similar medium; or
(ii) Electronic storage media, including any digital storage medium or system that meets the terms of this section.
(2)
(i) Arrange and index the records in a way that permits easy location, access, and retrieval of any particular record;
(ii) Provide promptly (but in no case more than one business day after the request) any of the following that the Commission (by its examiners or other representatives) may request:
(A) A legible, true, and complete copy of the record (or the information necessary to generate the record) in the medium and format in which it is stored;
(B) A legible, true, and complete printout of the record; and
(C) Means to access, search, view, sort, and print the records; and
(iii) Separately store, for the time required for preservation of the original record, a duplicate copy of the record stored on the micrographic or electronic storage media or any medium allowed by this rule.
(3)
(i) To maintain and preserve the records, so as to reasonably safeguard them from loss, alteration, or destruction;
(ii) To limit access to the records to properly authorized personnel and the Commission (including its examiners and other representatives); and
(iii) To reasonably ensure that any reproduction of a non-electronic original record on electronic storage media is complete, true, and legible when retrieved.
By the Commission.
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard is proposing to change the operating schedules for three bridges across Terrebonne Bayou at Houma, Terrebonne Parish, LA. The proposed rule would establish the same operating schedule for all three draws to facilitate the flow of vehicular traffic during rush hours while still meeting the reasonable needs of navigation. The new schedule will provide a safe, continuous vessel passage through all three draws. This action is expected to relieve the bridge owner from the requirement to separately man each bridge by using roving drawtenders to operate the bridges when necessary.
Comments and related material must reach the Coast Guard on or before May 18, 2001.
You may mail comments to Commander (ob), Eighth Coast Guard District, 501 Magazine Street, New Orleans, Louisiana 70130-3396, or deliver them to room 1313 at the same address above between 7 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The Commander, Eighth Coast Guard District, Bridge Administration Branch maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Bridge Administration Branch, Eighth Coast Guard District between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Mr. David Frank, Bridge Administration Branch, at the address given above, or telephone (504) 589-2965.
The Coast Guard encourages interested parties to participate in this rulemaking by submitting written data, views, or arguments. Persons submitting comments should include their names and addresses, identify this rulemaking (CGD08-01-003), and the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and attachments in an unbound format, no larger than 8
We do not now plan to hold a public meeting. You may submit a request for a public meeting by writing to the Commander, Eighth Coast Guard District, Bridge Administration Branch at the address under
The S3087 Bridge, mile 33.9, the newly constructed Howard Avenue Bridge, mile 35.0, and the Daigleville Bridge, mile 35.5 all lie within a 1.6 mile section on Terrebonne Bayou. These three bridges are currently on three different operating schedules, which requires the owner to crew them at various times. Due to the close proximity of the bridges to one another and the low volume of waterway traffic, the Department of Transportation and Development (DOTD) for the State of Louisiana has requested that the Coast Guard revise the regulations in 33 CFR 117.505 that governs the S3087 and Daigleville Bridges. DOTD would like to include the Howard Avenue Bridge, which currently opens on signal at any time for the passage of vessels, and place all three bridges under the same operating schedule.
With all three bridges on the same schedule, and because they are located so close together, DOTD can operate all three bridges with a roving crew or a single draw-tender.
Currently, all three drawbridges, the S3087 Bridge (33 CFR 117.505(c)), the Howard Avenue Bridge, and the Daigleville Bridge (33 CFR 117.505(d)) across Terrebonne Bayou are required to open on signal during the day. However, both the S3087 Bridge and Daigleville Bridge have drawbridge operation regulations that require a four-hour advance notice be given. The S3087
The Coast Guard proposes to change the regulations in 33 CFR 117.505 to require the draws of the S3087, Howard Avenue, and Daigleville Bridges to open on signal if at least four hours notice is given, except that, the draw need not open for the passage of vessels Monday through Friday, except Federal holidays, from 6 a.m. to 8 a.m. and 4 p.m. to 6 p.m.
The Coast Guard has evaluated the bridge-opening log data from June 1998 to June 1999 for both the S3087 Bridge and the Daigleville Bridge. The Howard Road Bridge has only three months of data due to its recent construction.
Because of the low yearly number of requested bridge openings, the Coast Guard has determined that the request by the bridge owner, to have the bridges open on signal after a four-hour advance notice, is reasonable and meets the needs of navigation.
Traffic counts taken over a two-week period show that 26% of the daily vehicular traffic Monday through Friday, on each bridge, occurs during the two two-hour time periods requested for closure. The table below contains the Monday through Friday opening counts for all three bridges, over a one-year time period.
The Coast Guard believes that allowing these bridges to remain closed to navigation during the time periods requested is reasonable and will still meet the needs of navigation. This conclusion is based upon the low number of opening requests received during these time periods.
This proposal will allow all three bridges to operate under the same schedule, thus providing a safe continuous passage for vessels while minimizing disruption to vehicular traffic. The new regulation will allow the bridge owner to operate all three bridges only when necessary.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
The Coast Guard expects the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.
This proposed rule allows commercial fishing vessels ample opportunity to transit this waterway before and after the peak vehicular traffic period which occurs between 6 and 8 a.m. and 4 and 6 p.m. according to the vehicle traffic surveys.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule has considered the needs of the local commercial fishing vessels and it has been determined that, under 5 U.S.C. 605(b), it would not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Bridge Administration Branch, Eighth Coast Guard District at the address above.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
We have analyzed this proposed rule under Executive Order 13132 and have determined that this proposed rule would not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not economically significant and does not cause an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 32(e), of Commandant Instruction M16475.lC, this proposed rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under
Bridges.
For the reasons set out in the preamble, the Coast Guard proposes to amend Part 117 of Title 33, Code of Federal Regulations, as follows:
1. The authority citation for Part 117 continues to read as follows:
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
2. In § 117.505, paragraph (d) is removed; paragraph (e) is re-designated as paragraph (d); and paragraph (c) is revised to read as follows:
(c) The draws of the S3087 Bridge, mile 33.9, the Howard Ave Bridge, mile 35.0, and the Daigleville Bridge, mile 35.5 at Houma, shall open on signal if at least four hours notice is given; except the draws need not open for the passage of vessels Monday through Friday, except Federal holidays, from 6 a.m. to 8 a.m. and from 4 p.m. to 6 p.m.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comment.
NMFS has received an application from the U.S. Navy requesting a Letter of Authorization (LOA) for the take of small numbers of marine mammals by harassment incidental to Navy operations of the Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) Sonar. By this document, NMFS is proposing regulations to govern that take. In order to issue the LOA and issue final regulations governing the take, NMFS must determine that the taking will have a negligible impact on the affected species and stocks of marine mammals, will (if appropriate through implementation of appropriate mitigation measures) be at the lowest level practicable, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. NMFS invites comment on the application, and the regulations.
Comments must be postmarked no later than May 3, 2001. A petition requesting NMFS to hold a public hearing must be submitted no later than April 3, 2001. Comments will not be accepted if submitted via e-mail or the Internet.
Comments regarding the burden-hour estimate or any other aspect of the collection of information requirement contained in this rule should be sent to the Chief, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503.
Comments should be addressed to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226. A copy of the application, a list of references used in this document and a list of principal commenters on this action, are available and may be obtained by writing to this address or by telephoning the contact listed here (see
Kenneth R. Hollingshead (301) 713-2322, ext. 128.
Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued.
Permission may be granted for periods of 5 years or less if the Secretary finds that the taking will be small, have a negligible impact on the species or stock(s) of affected marine mammals, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and the requirements pertaining to the monitoring and reporting of such taking.
On August 12, 1999, NMFS received an application from the U.S. Navy requesting a small take exemption under section 101(a)(5)(A) of the MMPA for the taking of marine mammals incidental to operation of the SURTASS LFA sonar for a period of time not to exceed 5 years, beginning in FY 2000. SURTASS LFA sonar will operate a maximum of 4 ship systems in the 10 geographic operating regions in which SURTASS LFA sonar could potentially operate. There would be a maximum of four SURTASS LFA sonar systems with a nominal maximum of two systems at sea at any one time.
The SURTASS LFA sonar system is a long-range, low frequency (between 100 and 500 Hertz) sonar that has both active and passive components. It does not rely on detection of noise generated by the target. The active component of the system is a set of low frequency (LF) acoustic transmitting source elements (called projectors) suspended from a cable from underneath a ship. The projectors are devices that produce the active sound or pulse.
The purpose of SURTASS LFA sonar is to provide the Navy with a reliable and dependable system for long-range detection of quieter, harder-to-find submarines. LF sound travels in seawater more effectively and for greater distances than higher frequency sound used by most other active sonars. The SURTASS LFA sonar system would meet the Navy’s need for improved detection and tracking of new-generation submarines at a longer range. This would maximize the opportunity for U.S. armed forces to safely react to, and defend against, potential submarine threats while remaining a safe distance beyond a submarine’s effective weapons range.
The typical SURTASS LFA sonar signal is not a constant tone, but rather a transmission of various waveforms that vary in frequency and duration. A complete sequence of sound transmissions is referred to as a “ping” and can last for as short as 6 seconds (sec) to as long as 100 sec. The time between pings is typically from 6 to 15 minutes. Average duty cycle (ratio of sound “on” time to total time) can be controlled but is less than 20 percent; typical duty cycle is between 10 and 20 percent.
The passive or listening component of the system is SURTASS, which detects returning echoes from submerged objects, such as submarines, through the use of hydrophones. The hydrophones are mounted on a horizontal array that is towed behind the ship. The SURTASS LFA sonar ship maintains a minimum speed of 3.0 knots (5.6 km/hr; 3.4 mi/hr).
The Navy anticipates that a nominal SURTASS LFA sonar deployment schedule for a single vessel would involve about 270 days/year at sea (underway). A nominal at-sea mission would occur over a 30-day period, made up of two 9-day exercise segments. Active sonar operations could be conducted up to 20 hrs during an exercise day, although the system would actually be transmitting for only a maximum of 4 hrs/day (resulting in 432 hrs of active transmission time per year for each SURTASS LFA sonar system in operation based on a maximum duty cycle of 20 percent). The remaining 12 days of the at-sea mission would be spent in transit or repositioning the vessel. In a nominal year there could be a maximum of 9 missions, six of which would involve the employment of SURTASS LFA sonar in the active mode and three of which would employ the SURTASS LFA sonar in the passive mode. Between missions, an estimated 95 days would be spent in port for upkeep and repair. With two vessels in the Pacific-Indian Ocean area and two vessels in the Atlantic Ocean-Mediterranean Sea area, there could be up to 12 operations in each of these oceanic areas per year.
At present, only one SURTASS LFA sonar system is available for deployment. A second SURTASS LFA sonar system is expected to be available in FY 2001. The third and fourth systems are tentatively planned for FY 2003 and FY 2004, but their delivery may be postponed until after FY 2005. With 4 systems, a nominal maximum of two vessels would be at sea at any one time. As a result, under 5-year regulations NMFS proposes to authorize marine mammal harassment takings for 2 SURTASS LFA sonar vessels for FY 2000 through FY 2002, 3 vessels for FY 2003, and 4 vessels for FY 2004, recognizing, however, that there may not be more than 2 vessels operating within the 5-year window of these proposed regulations.
On October 22, 1999 (64 FR 57026), NMFS published an Advance Notice of Proposed Rulemaking (ANPR) on the U.S. Navy application and invited interested persons to submit comments, information, and suggestions concerning the application and the structure and content of regulations, if the application is accepted. During the 30-day comment period on that notice, significant comments were received from several organizations and individuals. A list of organizations and individuals whose comments are analyzed in this document is available upon request. Additionally, a large number of letters, form letters, and petitions were received. Comments regarding NMFS’ responsibilities under the MMPA, the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) are addressed in this document. Comments to the Navy regarding the Navy’s draft Overseas Environmental Impact Statement/Environmental Impact Statement (OEIS/EIS) that were attached to the comments on the ANPR, and those comments regarding the scope, content, and adequacy of the Navy draft OEIS/EIS, and the Navy’s marine mammal scientific research program have been addressed in the Navy's Final OEIS/EIS.
NMFS believes that the regions described in this proposed rule are in keeping with Congress’ legislative intent in enacting this provision. Although SURTASS LFA sonar requires fairly large geographic regions because of the Navy’s need to deploy the system on a world-wide basis, these areas have been selected so as to retain similar biological characteristics within each region. As a result, NMFS believes that these areas are large enough to accomplish the specified activity without being so large that the effects on marine mammals will not be substantially the same.
It should be noted that the regions described in this proposed rule differ from those contained in the Navy’s original application and described in the ANPR. Based on a suggestion made by NMFS in the ANPR, the U.S. Navy revised its original proposal for 10 regions to one that proposes to adopt, with modification, the United Nation Food and Agriculture Organization’s (FAO) division of the world’s oceans into 16 distinct areas as shown in this document as Figure 1. (See FAO, 1971. The Fish Resources of the Ocean. Fishing News Books (Ltd). Surry England). These regions are described later in this document. Additionally, coastal areas and Arctic and Antarctic waters would be excluded from SURTASS LFA sonar operations. NMFS proposes to issue an LOA for each individual SURTASS LFA sonar system which will list the area(s) in which the deployment vessel plans to operate. As a result, NMFS believes the designated areas closely approximate the distribution of affected marine mammal species and will allow NMFS to implement appropriate mitigation and monitoring measures. One aspect of marine mammal distribution not taken into account by these areas is the shift in marine mammal distribution due to changes in oceanographic physiography. However, NMFS believes that it would be impractical to attempt to structure regulations specifying migratory corridors. While NMFS believes that little would be accomplished by further subdivision of the world’s oceans, it welcomes additional comments on this preliminary determination.
NMFS also disagrees with the commenters' suggestion that the application should not be accepted because it is world-wide in scope and thus is more extensive than any activity previously authorized. Although no world-wide authorizations have previously been granted, NMFS does accept applications, and issue authorizations, for similar activities in more than a single geographic region. For example, seismic surveys for oil and gas exploration may be conducted concurrently in the U.S. Beaufort Sea, southern California waters, and, in the Gulf of Mexico. Similar to SURTASS LFA sonar operations, each seismic survey employs a large vessel slowly towing a high-intensity, LF sound source. If warranted, small take authorizations should be available to these activities.
NMFS does not believe that Congress intended NMFS to issue separate regulations governing taking for each “specific geographic region,” as would be one alternative. While it would be possible for NMFS to do so, NMFS believes that these regulations would be redundant and unnecessary. As a result, the proposed incidental, small take regulations for SURTASS LFA sonar have been designed to be generic; LOAs issued under these regulations, would be tailored to the vessel’s specific geographic operating area and would include any appropriate prohibitions and mitigation or monitoring requirements.
Dugongs are not under the jurisdiction of NMFS. If the Navy believes that SURTASS LFA sonar may incidentally take dugongs by harassment, they should apply to the U.S. Fish and Wildlife Service for a small take authorization for this species. However, NMFS notes that the text referenced by the commenter (Jefferson et al., 1993) states that this species is found in the Indo-Pacific in coastal and inshore waters, areas where SURTASS LFA sonar will not operate.
Because of the offshore nature of SURTASS LFA sonar operations, the Navy does not believe that there is a potential for SURTASS LFA sonar to result in marine mammal stranding incidents. Under the Navy’s LTM program however, the Navy plans to coordinate with principal world-wide marine mammal stranding networks and report any correlations between SURTASS LFA sonar operations and stranding events to NMFS. However, because the Navy has not requested an incidental take by mortality (as in a stranding event), an LOA, if issued, would not authorize this form of taking. Under regulations found at § 216.106(e), an LOA may be modified, suspended or revoked if a marine mammal is taken by a method that is not authorized.
However, NMFS does not agree that the proposed incidental takings would result in more than minimal levels of serious injury. Because serious injury is unlikely to occur unless a marine mammal is well within the 180 dB SURTASS LFA sonar safety zone and close to the source, and because the closer the mammal is to the vessel, the more likely it will be detected, and the SURTASS LFA sonar operation suspended, the potential for serious injury to occur is minimal.
For mitigation effectiveness for harassment and non-serious injury, NMFS recommends reviewers study the last column of Table 4-10 of the application (Table 4.2-10 of the OEIS/EIS). The last column lists the reduction of potential for effects on marine mammals.
In its application, the Navy states that there is a remote possibility that two sources may be operating in the same geographic area at the same time. NMFS intends to base its negligible impact assessment on that scenario. If LOAs are issued, the use of more than two SURTASS LFA sonar sources operating at the same time within the same specific geographic area would be considered a violation of the LOA.
Comment 23: Several commenters questioned the use of a 180 dB criterion for suspension of transmissions, since far lower SPLs have been demonstrated to cause clear short-term behavioral impacts on cetaceans. If an LOA is issued, a much lower level of exposure for protected species should be required.
While the commenter is correct that behavioral modifications can be expected at lower SPLs, the proposed monitoring (visual, passive acoustic and active acoustic), is not likely to be as effective at the greater distances where these impacts are likely to occur. As a result, NMFS prefers to require the Navy to concentrate monitoring in an area wherein marine mammals are more
In order for NMFS to begin the rulemaking process for designating areas of biological importance for marine mammals, proponents must petition NMFS and submit the information described in § 216.191(a). If NMFS makes a preliminary determination that the petitioners have provided sufficient information that the area is of significant biological importance for marine mammals, NMFS will propose rulemaking to add the recommended area to the list of previously designated areas. Through notice in the
To extend the list of restrictions (referred to in this document as mitigation measures), found in § 216.184, an individual or organization would need to petition NMFS under the Administrative Procedure Act (APA) to add additional mitigation measures. Petitions would need to provide sufficient information for NMFS to determine that new rulemaking is warranted and practical.
Similarly, if more protection is needed for the marine mammals inhabiting the HIHWNMS than would be provided by making Penguin Bank an OBIA, interested parties can petition
Second, NMFS has stated previously in this document that, until the Navy provides documentation supporting its claim that the HFM3 is 70 percent effective, NMFS plans to calculate incidental take levels using just the geographic mitigation. The Navy has the option to provide additional information on the effectiveness of the HFM3 sonar during this rulemaking that NMFS may use during its final determination on this action.
NMFS does not believe the MMPA requires a delay in the issuance of an authorization until mitigation or alternative technology proves effective (as long as a negligible impact determination can be made), only that the taking be reduced to the lowest level practicable. However, NMFS encourages the Navy and others to undertake research into more effective passive acoustics.
In addition, as noted in the application, incidental take levels are estimated as a percentage of the population, and not as individual numbers of animals, and the monitoring proposed by the Navy is to ensure that Level A harassment is reduced to the lowest level practicable. As a result, as presently designed, NMFS does not consider it practical to establish, and enforce, a quota system.
In the Navy draft OEIS/EIS analysis and small take application, the Navy excluded from take consideration those marine mammal species that either do not inhabit the areas wherein SURTASS LFA sonar would operate or do not possess sensory mechanisms that allow the mammal to perceive LF sounds. Where data were not available or were insufficient for one species, comparable data for a related species were used, if available. Because all species of baleen whales produce LF sounds, and anatomical evidence strongly suggests that their inner ears are well adapted for LF hearing, all balaenopterid species are considered sensitive to LF sound and at risk from exposure to LF sounds. The ten species of baleen whales that may be affected by SURTASS LFA sonar are blue (
The odontocetes (toothed whales) that may be affected because they inhabit the deeper, offshore waters where SURTASS LFA sonar might operate include both the pelagic (oceanic) whales and dolphins and those coastal species that also occur in deep water including harbor porpoise, beluga,
Potentially affected pinnipeds include hooded seals, harbor seals (
A description of affected marine mammal species, their biology, and the criteria used to determine those species that have the potential for taking by harassment are provided and explained in detail in the Navy application and draft OEIS/EIS and, although not be repeated here, are considered part of the record of decision on this matter.
The effects of underwater noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson
The analysis of potential impacts on marine mammals from SURTASS LFA sonar was developed by the Navy based on the results of a literature review, the Navy’s LF Sound Scientific Research Program (LFS SRP), and a complex, comprehensive program of underwater acoustical modeling. To assess the potential impact on marine mammals by the SURTASS LFA sonar source operating at a given site, it was necessary for the Navy to predict the sound field that a given marine mammal species could be exposed to over time. This is a multi-part process involving (1) the ability to measure or estimate an animal’s location in space and time, (2) the ability to measure or estimate the three-dimensional sound field at these times and locations, (3) the integration of these two data sets to estimate the total acoustic exposure for each animal in the modeled population, (4) converting the resultant cumulative exposures for a modeled population into an estimate of the risk from a significant disturbance of a biologically important behavior, and (5) converting these estimates of behavioral risk into an assessment of risk in terms of the level of potential biological removal.
Next, as discussed later in this document, a relationship for converting the resultant cumulative exposures for a modeled population into an estimate of the risk to the entire population of a significant disruption of a biologically important behavior and of injury was developed. This process assessed risk in relation to received level (RL) and repeated exposure. The resultant “risk continuum” is based on the assumption that the threshold of risk is variable and occurs over a range of conditions rather than at a single threshold.
Taken together, the LFS SRP results, the acoustical modeling, and the risk assessment, provide an estimate of potential environmental impacts to marine mammals.
The acoustical modeling process was accomplished using the Navy’s standard acoustical performance prediction transmission loss model-Parabolic Equation (PE) version 3.4. The results of this model are the primary input to the Acoustic Integration Model (AIM). AIM was used to estimate marine mammal sound exposures and essentially integrates simulated movements (including dive patterns) of marine mammals, a schedule of SURTASS LFA sonar transmissions, and the predicted sound field for each transmission to estimate acoustic exposure during a hypothetical SURTASS LFA sonar operation. Description of the PE and AIM models, including AIM input parameters for animal movement, diving behavior, and marine mammal distribution, abundance, and density are described in detail in the Navy application and the draft OEIS/EIS and are not discussed further in this document. NMFS recommends reviewers read these documents if additional information is desired.
Using the AIM model, the Navy developed 31 acoustic modeling scenarios for the major ocean regions (which are described in the application and draft OEIS/EIS). Locations were carefully selected by the Navy to represent the highest potential effects for each of the three major ocean acoustic regimes where SURTASS LFA sonar would be employed. These acoustic regimes were: (1) Deep-water convergence propagation zone, (2) near surface duct propagation zone, and (3) shallow water bottom interaction propagation zone. These scenarios represent the condition under which, on average, the greatest number of animals could be exposed to the greatest number of pings at the highest RLs and were considered the most severe conditions that could be expected from operation of the SURTASS LFA sonar system. Thus, if SURTASS LFA sonar operations were conducted in an area that was not acoustically modeled, the Navy believes the potential effects would most likely be less than those obtained from the most similar scenario in the analysis. The modeled scenarios were then used by the Navy to estimate the percentages of marine mammal stocks potentially affected.
In order to determine the potential impacts that exposure to LF sound from SURTASS LFA sonar operations could have on marine mammals, biological risk standards were defined by the Navy with associated measurement parameters. Based on the MMPA, the potential for biological risk was defined as the probability for injury or behavioral harassment of marine mammals. In this analysis, behavioral harassment is defined as a significant disturbance of a biologically important behavior. The potential for biological risk is a function of an animal’s exposure to a sound that would potentially cause hearing, behavioral, psychological or physiological effects. The measurement parameters for
The Navy interprets the results of the LFS SRP to justify use of unlimited exposure during a mission to 120 dB as the lowest value for risk. Below this level, the risk of a biologically significant response from marine mammals approaches zero. It is important to note that risk varies with both level and number of exposures.
In the draft OEIS/EIS and small take application, the Navy calculated the risks for take by non-serious injury based on criteria of 180 dB, which, based on Ridgway
Because the LFS SRP failed to document any extended biologically significant response at maximum RLs up to 150 dB, the Navy determined that there was a 2.5-percent value of a risk of an animal incurring a disruption of biologically important behavior at an SPL of 150 dB, a 50-percent risk at 165 dB, and a 95-percent risk at 180 dB.
This analysis of risk is used by the Navy as an alternative to an all-or-nothing use of standard thresholds for the onset of either behavioral change or injury. The subsequent discussion of risk function emphasizes the advantages of using a smoothly varying model of biological risk in relation to sound exposure. However, for the purposes of estimating the number of individuals that could potentially be injured from SURTASS LFA sonar operations, this document uses a simpler calculation. Given the low numbers of individual marine mammals that could potentially experience high received levels, the added complexity of an “injury continuum” was not deemed necessary by the Navy.
When SURTASS LFA sonar transmits, there is a boundary which will enclose a volume in which received levels exceed 180 dB, and a volume outside this boundary which experiences received levels below 180 dB. In this analysis, the 180-dB boundary is emphasized because it represents a single-ping RL that can be considered to be a scientifically reasonable estimate for the potential onset of harm or injury. Therefore, the level of risk for marine mammals depends on their location in relation to SURTASS LFA sonar. As mentioned previously, the Navy scientific team established the threshold for risk of harm as a single ping at 180 dB (Navy, 1999b). Harm was defined in this context as onset TTS. Under the Navy proposal, a marine mammal would have to receive one ping greater than, or equal to 180 dB or many pings at a slightly lower RL to potentially incur non-serious injury. For serious injury, the animal would have to be well within the 180-dB sound field at the onset of a transmission.
However, NMFS scientists and other scientists are in general agreement that TTS is not an injury (i.e., does not result in tissue damage) but is an impairment to hearing (resulting in an increased elevation in hearing sensitivity) that may last for a few minutes to a few days, depending upon the level and duration of exposure. In addition, there is no evidence that TTS would occur in marine mammals at an SPL of 180 dB, and, in fact, Schlundt
While, the Navy believes that the probability of a marine mammal occurring within the 180-dB sound field at the onset of a transmission is nearly zero because of the proposed monitoring program (described later in this document), because the monitoring is not 100 percent effective, some Level A harassment takings still need to be considered possible.
Before the biological risk standards could be applied to realistic SURTASS LFA sonar operational scenarios, two factors had to be considered by the Navy which resulted in the development of the risk continuum approach: (1) How does risk vary with repeated sound exposure? and (2) how does risk vary with RL? These questions have been addressed by the Navy by developing a function that translates the history of repeated exposures (as calculated in the AIM) into an equivalent RL for a single exposure with a comparable risk. This approach is similar to those adopted by previous studies of risk to human hearing (Richardson
It is intuitive to assume that effects would be greater for repeated exposures than for a single ping. However, because no published data on repeated exposures of LF sound on marine mammals exist, the Navy turned to the most applicable human data. Based on the analysis of Richardson
The potential effects on marine mammals from operation of SURTASS LFA sonar will not cause the direct removal of animals, but may result in a small reduction of an affected individual animal’s overall reproductive
To estimate the percentage of marine mammal stocks affected on a yearly basis, the typical annual operating schedule for SURTASS LFA sonar was correlated by the Navy to the modeled site scenarios. Even though the Navy may not have the maximum number of systems operating during the next 5 years, its analysis incorporated four systems with six operations each annually. With two vessels in the Pacific/Indian Ocean area and two vessels in the Atlantic/Mediterranean area, the Navy estimates there could be up to 12 operations in each of these oceanic basin areas. Using a total of 12 operations in each large geographic area (e.g., Eastern North Pacific, Western North Atlantic), the Navy calculated take estimates based on a 20-day exercise (actually under the nominal schedule mentioned previously in this document the Navy proposes two 9-day exercises or a total of 18 days, not 20 days of exercise). NMFS concurs with this approach but notes that because only 2 SURTASS LFA sonar vessels will be available through 2002, possibly 3 vessels during 2003, and possibly 4 vessels during 2004 and 2005, the Navy’s projected incidental harassment levels found in the draft OEIS/EIS and application are overestimates of potential harassment levels during the early period of these regulations. NMFS estimates, therefore, that there would be a total of 12 active missions annually during the first two years of these regulations (6 in each ocean basin), 18 during the third year (6 in one ocean basin, 12 in the other), and the maximum of 24 active missions during the last 2 years of these regulations (12 in each of the two ocean basins).
AIM Modeling in Table 4-10 in the application (Table 4.2-10 in the draft OEIS/EIS) provides estimates of the percentage of stocks potentially affected for single SURTASS LFA sonar operations. Tables 4-12 and 4-13 in the application (Tables 4.2-12 and 4.2-13 in the draft OEIS/EIS) provide an example of annual total estimates of percentages of marine mammal stocks potentially affected by a total of 24 operations (12 in each of the two ocean basins). As mentioned previously however, this number of operations are unlikely until the latter part of the effectiveness period of these regulations. Also, because each oceanic area is assumed to contain one or more discrete stocks of each affected species, these estimates are not additive when determining effects on marine mammal stocks. It should also be recognized that the scenarios chosen by the Navy are not the only possible combinations of where the SURTASS LFA sonar will operate. The potential effects from other scenarios can be estimated by those so wishing to do so by presupposing the areas in which the Navy would conduct SURTASS LFA sonar operations annually in each oceanic basin area, determining from Table 4-10 the percentage of each stock that may potentially be affected, and adding those percentages together for each affected stock. This is what NMFS proposes to do annually for each LOA issued. Also, as pertinent new information becomes available that would improve the Navy model, NMFS anticipates that the Navy could rerun the AIM models and recalculate take estimates. For this document however, NMFS is preliminarily adopting the Navy estimates shown in Tables 4-12 and 4-13 as the best information available in that they are based on the most likely scenario with two systems operating in each of the two oceanic areas. As indicated either by using these two tables, or by choosing a different combination of potential geographic areas for SURTASS LFA sonar operations derived from Table 4-10, NMFS believes that the potential effect by SURTASS LFA sonar operations will be limited to only small percentages of the affected stocks of marine mammals and that potential effect will be limited to incidental harassment that will not adversely affecting the stock through annual rates of recruitment or survival.
This document preliminarily adopts the Navy proposal to use visual, passive acoustic, and active acoustic monitoring of the area surrounding the SURTASS LFA sonar array to prevent the incidental injury of marine mammals that might enter the 1 km (0.54 nm) safety zone. The three monitoring systems are described in the following section of this document. If a marine mammal (or sea turtle) was detected within the 1 km (0.54 nm) safety zone SURTASS LFA sonar transmissions would be immediately delayed or suspended. Transmissions could commence/resume 15 minutes after the marine mammal/sea turtle had left the area of the 180 dB sound field or there was no further detection of the animal within the 180 dB sound field. The protocol established by the Navy for implementing this temporary shut-down is described in the application (pages 10-11). SURTASS LFA sonar operators would be required to estimate SPLs prior to and during each operation to provide the information necessary to modify the operation, including delay or suspension of transmissions, in order not to exceed the mitigation sound field criteria.
The Navy has proposed that the SURTASS LFA sonar operations would be conducted to ensure that the sound field does not exceed 180 dB (i.e., the zone of potential for injury to marine mammals) within 12 nm (22 km) of any coastline, including islands, nor in OBIAs that are outside the 12 nm (22 km) zone during the biologically important season(s) for that particular area. It should be noted that the 12 nm (22 km) safety zone restriction includes almost all marine-related critical habitats and National Marine Sanctuaries. Areas critical for marine mammals that are outside this safety zone can be nominated as an OBIA. This process was described earlier in this document.
In addition, to establishing a safety zone at 180 dB to protect marine mammals and other noise sensitive marine animals, the Navy has proposed to establish a safety zone for human divers at 145 dB re 1 microPa(rms) around all known human commercial and recreational diving sites. Although this geographic restriction is intended to protect human divers, its imposition will also reduce the LF sound levels received by marine mammals that are located in the vicinity of known dive sites.
The Navy has proposed establishing OBIAs for marine mammal protection. These areas are defined as those areas of the world’s oceans where marine mammals congregate in high densities to carry out biologically important activities such as feeding, migration, breeding, and calving. To date, the U.S. Navy has proposed three sites as OBIAs for SURTASS LFA sonar under these regulations. These areas are: (1) the North American East Coast between 30° N and 50°N from west of 40°W to the 200-m (656 ft) isobath; (2) the Antarctic Convergence Zone, from 20°E to 120°E, south of 55°S, from October through March; and (3) the Costa Rica Dome, centered at 9°N and 88°W, year-round. Also, an area included in this document, at the request of NOAA’s National Ocean Service, is Penguin Bank off the Island of Kauai, Hawaii, inside the HIHWNMS. In addition, the Navy in its application, and NMFS in this document, is proposing a system for expanding the list of OBIAs. This process is described in more detail in NMFS’ response to comment 25 earlier in this document.
It should be recognized however, that the establishment of OBIAs is not
In order to minimize risks to potentially affected marine mammals that may be present in waters surrounding SURTASS LFA sonar, the Navy has proposed to: (1) Conduct visual monitoring from the ship’s bridge during daylight hours, (2) use passive SURTASS LFA sonar to listen for vocalizing marine mammals; and (3) use high frequency active sonar (i.e., similar to a commercial fish finder) to monitor/locate/track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array.
Through observation, acoustic tracking and establishment of shut-down criteria, the Navy will ensure, to the greatest extent practicable, that no marine mammals approach the SURTASS LFA sonar source closely enough to be subjected to potentially harmful sound levels (inside the 180 dB sound field; approximately 1 km (0.54 nm) from the source). The Navy estimates that the probability of detecting a marine mammal within the 180 dB sound field of the source array by at least one of these monitoring methods is between 70 and 99 percent. However, nominally, an effectiveness of 80 percent is used in the take calculations. The Navy’s assumption incorporates the 70-percent effectiveness of the HFM3 sonar, and an additional conservative 5-percent contribution each for visual and passive monitoring. In general, the Navy believes that small, solitary marine mammals would be the most difficult to detect, while large whales and dolphin schools would be much easier to detect. However, as stated previously in this document, NMFS will not consider the effectiveness of the HFM3 sonar in reducing the incidental take of marine mammals by the SURTASS LFA sonar until such time as the Navy has demonstrated its effectiveness. In the meantime, NMFS will adopt only the geographic mitigation as being effective in reducing takes.
NMFS has reviewed this Navy proposal and believes that the proposal can be modified to provide additional protection for marine mammals. Because the HFM3 has the capability to detect marine mammals, and track them, to a distance of 2 km (1.1 nm) from the source, NMFS is proposing to require the Navy to terminate transmissions whenever a marine mammal can receive a calculated SPE of 180 dB within the zone of detectability. This will require, however, both that the marine mammal remains within the zone of detectability between “pings” while the vessel is underway, and for the Navy to continue to monitor the 2 km (1.1 nm) zone between pings. Because the time between “pings” is 6-15 minutes, and the Navy has already committed to visual and acoustic monitoring for no less than 30 minutes prior to a “ping,” monitoring will continue during the interim period and marine mammals will continue to be tracked.
During routine operations of SURTASS LFA sonar, technical and environmental data would be collected and recorded. These would include data from visual and acoustic monitoring, ocean environmental measurements, and technical operational inputs. This information would become part of the data required from the LTM Program.
The Navy proposes to provide a LTM program to conduct annual assessments of the potential cumulative impact of SURTASS LFA sonar operations on the marine environment, provide the necessary reporting to increase knowledge of the species, and to coordinate research opportunities and activities. This would include cumulative impact analyses of the annually tabulated injuries (if any) and harassments over the next 5 years. The purpose of the LTM program would be to continue scientific data collection once SURTASS LFA sonar is deployed.
While NMFS believes that research conducted to date is sufficient to assess impacts on those species of marine mammals that were identified in public meetings as most susceptible to LF noise, it believes that it would be prudent to continue research over the course of the period of effectiveness of these regulations.
The proposed regulations have been designed to allow many of the mitigation, monitoring and reporting requirements to be detailed in the LOA, rather than in these regulations. This has been done to provide NMFS the ability to change these protective measures in a prompt manner to changing conditions. While public comment will be provided for substantial modifications to LOA requirements before being made effective, modifications can be implemented in a shorter period of time if contained in LOAs than would be possible if rulemaking were required for each modification. It should be understood that the public would be provided a comparable length of time for commenting on LOA modifications (except when NMFS determines that an emergency exists which impacts on the health and welfare of the marine mammal), whether or not those requirements were contained in regulations. However, for security reasons, locations and times for certain operations may need to be classified and not provided to the public.
In the past, NMFS has promulgated rulemakings for small take authorizations that did not clearly describe LOA conditions. For this activity NMFS plans the following conditions (in addition to, or in clarification of, those found in these regulations).
(1) Prior to each exercise, the marine mammal safety zone will be measured to determine the distance from the source to the 180-dB isobleth. That distance will be the established safety zone for that exercise; and
(2) The Navy must test the effectiveness of HFM3 at detecting marine mammals within 0.5 km (0.3 nm), 1 km (0.54 nm) and 2 km (1.1 nm) of the source. A report must be provided to NMFS not later than 120 days prior to the expiration of the first LOA.
NMFS is proposing to establish a system under this proposed rule for the public to be able to propose areas for NMFS to consider adding to the list of biologically important areas for marine mammals. NMFS emphasizes that, in order for designation, an area must be of particular importance for marine mammals as an area for primary feeding, breeding, or migration, and not simply an area occupied by marine mammals. The proposed area should also not be within a previously designated area. In order for NMFS to begin the rulemaking process for designating areas of biological importance for marine mammals, proponents must petition NMFS and submit the information described in § 216.191(a). If NMFS makes a preliminary determination that the area is biologically important for marine mammals, NMFS will propose rulemaking to add the recommended area to the list of previously designated areas. Through notice in the
Based on the scientific analyses detailed in the Navy application and further supported by information and data contained in the Navy’s draft OEIS/EIS for SURTASS LFA sonar operations, NMFS concurs with the Navy that the incidental taking of marine mammals resulting from SURTASS LFA sonar operations would result in only small numbers (as the term is defined in § 216.103) of marine mammals being taken, have no more than a negligible impact on the affected marine mammal stocks or habitats and not have an unmitigable adverse impact on Arctic subsistence uses of marine mammals. These conclusions are particularly supported by the proposed mitigation measures that would be implemented for all SURTASS LFA sonar operations and the proposed LTM program. This includes geographic operation restrictions, mitigation measures to prevent injury to any marine mammals, monitoring and reporting and supplemental research that will result in increased knowledge of marine mammal species, and the potential impacts of LF sound on these species. The latter measures offer the means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing the incidental taking of marine mammals from anthropogenic underwater sound, and evaluating the possible long-term effects from exposing marine mammals to anthropogenic underwater sound.
In addition to the mitigation measures described previously, the following factors need to be considered when determining whether a taking would be negligible: (1) The small number of SURTASS LFA sonar systems that will be operating world-wide; (2) the vessel must be underway while transmitting (in order to keep the receiver array deployed); (3) the low duty cycle and short mission periods; and (4) the possibility of a marine mammal being within the 180-dB sound field during sonar transmissions is unlikely.
NMFS requests interested persons and organizations to submit comments, information, and suggestions concerning the content of the proposed regulations to authorize the taking. All commenters are requested to review the application prior to submitting comments and not submit comments solely on this
On July 30, 1999 (64 FR 41420), the Environmental Protection Agency (EPA) announced receipt of a draft OEIS/EIS from the U.S. Navy on the deployment of SURTASS LFA sonar. The public comment period on the Draft EIS ended on October 28, 1999. On February 2, 2001 (65 FR 8788), EPA announced receipt of a final OEIS/EIS from the U.S. Navy on the deployment of SURTASS LFA sonar. NMFS is a cooperating agency, as defined by the Council on Environmental Quality (40 CFR 1501.6), in the preparation of these documents.
NMFS will be consulting with the U.S. Navy under section 7 of the ESA on this action. In that regard, on October 19, 1999, the Navy has submitted to NMFS a Biological Assessment under the ESA. This consultation will be concluded prior to a determination on issuance of a final rule and exemption.
This action has been determined to be significant for purposes of E.O. 12866. NMFS has preliminarily determined that this rule, if implemented, will provide NMFS and the public, through the Navy’s monitoring and research program, with information on the SURTASS LFA sonar system’s effect on the marine environment, especially on marine mammals. Without an authorization under the MMPA, NMFS and the public are unlikely to receive this information. NMFS believes that obtaining this information is extremely important because SURTASS LFA sonar is not the only LF noise source in the world’s oceans, and the scientific findings resulting from monitoring and research is likely to be directly applicable to other activities. In addition, this rule, if implemented, and any LOAs issued thereunder, would impose appropriate mitigation measures for protecting marine mammals, sea turtles and other marine life. Without these regulations and LOAs, mitigation measures could not be required to be undertaken by the U.S. Navy.
While a determination to eventually deploy the SURTASS LFA sonar system will be made by the Navy, NMFS notes that additional benefits for implementing this proposed rule is an increased level of national defense, and improved survivability of U.S. armed forces at sea, and the Navy’s associated multi-billion dollar naval assets. The cost to the Navy cannot be fully determined at this time but these costs would be incurred through implementation of the LTM and LTR programs that will be required under this proposed rule. Preliminarily, NMFS believes that this cost would be approximately $ 1 million annually.
The Assistant General Counsel for Legislation and Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. If implemented, this proposed rule would affect only the U.S. Navy which, by definition, is not a small business. It will also affect a small number of contractors providing services related to reporting the impact of SURTASS LFA sonar on marine mammals. Some of the affected contractors may be small businesses, but the number involved would not be substantial. Further, since the research and reporting requirements are what would lead to the need for their services, the economic impact on them would be beneficial. Because of this certification, a regulatory flexibility analysis is not required.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This proposed rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by OMB under control number 0648-0151, and include applications for LOAs, and an annual report. Other information requirements in the rule are not subject to the PRA since they apply only to a single entity and therefore are not contained in a rule of general applicability.
The reporting burden for the approved collections-of-information are preliminarily estimated to be approximately 80 hours for each annual application for a LOA (total of 2 in FY2001-FY2002, 3 in FY 2003, and 4 in FY 2004), and 80 hours each for interim and final reports. These estimates include the 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 these burden estimates, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
1. The authority citation for part 216 continues to read as follows:
16 U.S.C. 1361
Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph (b) of this section by the U.S. Navy, Department of Defense, engaged in the operation of SURTASS LFA sonar operations, in areas specified in paragraph (a) of this section. The authorized activities, as specified in a Letter of Authorization issued under §§ 216.106 and 216.188, include the transmission of low frequency sounds from the SURTASS LFA sonar, and the transmission of high frequency sounds from the mitigation sonar, described in § 216.185 during training, testing, and routine military operations of SURTASS LFA sonar.
(a) With the exception of those areas specified in § 216.183(d), the incidental taking by harassment may be authorized in the following areas as specified in a Letter of Authorization:
(1) North Atlantic Ocean,
(i) Western North Atlantic, from 35° N. lat. north to a line between Cape Chidley, Labrador northeast to Nuuk, Greenland, and from the North American continent east to 41° W. long. (Area A),
(ii) Eastern North Atlantic, from 35° N. lat. north to 72° N. lat. and 41° W. long. east to the European continent (Area B),
(2) Mediterranean Sea (Area C),
(3) North Pacific Ocean,
(i) Western North Pacific, from 20° N. lat. north to the Aleutian Island chain and the Sea of Okhotsk, and from the Asian continent east to 175° W. long. (Area D),
(ii) Eastern North Pacific, from 42° N. lat. north to Alaska and the south side of the Aleutian Islands and from the North American continent west to 175° W. long. (Area E),
(4) Central Atlantic Ocean,
(i) Eastern Central Atlantic, from 7° S. lat. north to 35° N. lat. and from the African continent west to 40° W. long. between 5° N. lat. and 35° N. lat., to 30° W. long. between 0° lat. and 5° N. lat., and to 20° W. long. between 7° S. lat. and 0° lat. (Area F),
(ii) Western Central Atlantic, from 5° N. lat. north to 35° N. lat., and from the American continent, east to 40° W. long. (Area G),
(5) Indian Ocean,
(i) Eastern Indian Ocean, from 60° S. lat. north to the Bay of Bengal, and Asian continent, and from 80° E. long. east to the Asian continent, the Sunda Islands and Australia and to 150° E. long. (Area H1),
(ii) Western Indian Ocean, from 60° S. lat. north to the Arabian Sea, and from 30° E. long. east to 80° E. long. (Area H2),
(6) Central Pacific Ocean,
(i) Western Central Pacific, from 175° W. long., east to the Asian continent and Indonesia, and from 10° S. lat., north to 20° N. lat. (Area I),
(ii) Central Pacific, from 10° S. lat., north to 42° N. lat. between 175° W. long. and 130° W. long. (Area J1),
(iii) Eastern Central Pacific, from 5° S. lat. north along the American coastline to 42° N. lat., from 130° W. long. along 10° S. lat. to 105° W. long., from 10° S. lat. along 105° W. long. to 5° S. lat., from 105° W. long. along 5° S. lat. to the South American coastline, from 130° W. long. along 42° N. lat. to the North American coastline and from 42° N. lat. to 10° S. lat. along the 130° W. long. line (Area J2),
(7) South Pacific Ocean,
(i) Western South Pacific from 60° S. lat. north to 10° S. lat. and from the east coast of Australia in the north and 150° E. long. south of Australia east to 105° W. long. (Area K),
(ii) Eastern South Pacific from 60° S. lat. north to 5° S. lat. and from the 105° W. long. east to the South American coastline in the north and 70° W. long. in the south (Area L),
(8) South Atlantic Ocean,
(i) Western South Atlantic, from 60° S. lat. north to 5° N. lat. in the area west of 30° W. long., and from 60° S. lat. north to 0° lat. in the area east of 30° W. long. and from the South American continent east to 30° W. long. between 0° and 5° N. lat. and east to 20° W. long. between 0° and 60° S. lat. (Area M), and
(ii) East South Atlantic from 50° S. lat. north to 7° S. lat. and from 20° W. long. east to the African coastline in the north and 30° E. long. south of the continent (Area N).
(b) The incidental take by harassment and non-serious injury of marine
(i) Mysticete whales, including, blue whale (
(ii) Odontocete whales, including Risso’s dolphin (
(iii) Pinnipeds, including harbor seals (
Regulations in this subpart are effective from May 1, 2001, through April 30, 2006.
(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 216.188, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment and non-serious injury within the area described in § 216.180(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.
(b) The activities identified in § 216.180 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals, their habitat, and on the availability of marine mammals for subsistence uses.
Notwithstanding takings authorized by § 216.180 and by a Letter of Authorization issued under §§ 216.106 and 216.188, no person in connection with the activities described in § 216.180 shall:
(a) Take any marine mammal not specified in § 216.180(b);
(b) Take any marine mammal specified in § 216.180(b) other than by incidental, unintentional harassment or non-serious injury;
(c) Take any marine mammal while operating under a Letter of Authorization in either a non-operating area, indicated in Figure 1, or in a geographic operating area for which an authorization for taking has not been issued under a Letter of Authorization;
(d) Operate the SURTASS LFA sonar while under a Letter of Authorization, such that the SURTASS LFA sonar sound field exceeds 180 dB (re 1 micro Pa(rms)) within 12 nautical miles (22 kilometers) of any coastline, including offshore islands, or any designated offshore area that is biologically important for marine mammals that exist outside the 12 nautical miles (22 kilometers) zone during the biologically important season for that particular area.
(e) The following areas have been designated by NMFS as offshore areas of critical biological importance for marine mammals (by season if appropriate):
(f) Take a marine mammal specified in § 216.180(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(g) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§ 216.106 and 216.188.
The activity identified in § 216.180(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.180, the mitigation measures described in this paragraph and in the Letter of Authorization issued under §§ 216.106 and 216.188 must be implemented.
(a) Through monitoring described under § 216.185, the Holder of a Letter of Authorization will ensure, to the greatest extent practicable, that no marine mammal is subjected to a single ping equivalent of 180-dB within the 180-dB re 1 micro Pa(rms) sound field.
(b) If a marine mammal is detected within the 180-dB safety zone, SURTASS LFA sonar transmissions will be immediately suspended. Transmissions will not resume earlier than 15 minutes after:
(1) All marine mammals have left the area of the 180-dB re 1 micro Pa(rms) sound field; and
(2) There is no further detection of the animal within the 180-dB re 1 micro Pa(rms) sound field as determined by the visual and/or passive or active acoustic monitoring described in § 216.185.
(c) The HFM3 source, described in § 216.185 will be ramped-up slowly to operating levels over a period of no less than 5 minutes:
(1) No later than 30 minutes before the first SURTASS LFA sonar transmission;
(2) Prior to any SURTASS LFA sonar calibrations or testings that are not part of regular SURTASS LFA sonar transmissions described in paragraph (c)(1) of this section; and
(3) Anytime after the HFM3 source has been powered down for a period of time greater than 2 minutes.
(a) In order to mitigate the taking of marine mammals by SURTASS LFA sonar to the greatest extent practicable, the Holder of a Letter of Authorization must:
(1) Conduct visual monitoring from the ship’s bridge during daylight hours;
(2) Use low frequency passive SURTASS LFA sonar to listen for vocalizing marine mammals; and
(3) Use high frequency active sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the sound field produced by the SURTASS LFA sonar source array.
(b) Pursuant to (a)(1)-(3) of this section monitoring must:
(1) Commence no later than 30 minutes before the first SURTASS LFA sonar transmission;
(2) Continue between transmission pings; and
(3) Continue for at least 15 minutes after completion of the SURTASS LFA sonar transmission exercise;
(c) Holders of Letters of Authorization issued pursuant to §§ 216.106 and 216.188 for activities described in § 216.180 are required to cooperate with the National Marine Fisheries Service, and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals.
(d) Holders of Letters of Authorization must designate qualified on-site individuals to conduct the mitigation, monitoring and reporting activities specified in the Letter of Authorization issued pursuant to § 216.106 and § 216.188.
(e) Holders of Letters of Authorization must conduct all monitoring and/or research required under the Letter of Authorization.
(a) The Holder of a Letter of Authorization must submit an interim report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 90 days prior to expiration of the Letter of Authorization. This report must contain all the information required by the Letter of Authorization.
(b) A final comprehensive report must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service at least 240 days prior to expiration of these regulations. This report must contain all the information required by any final year Letter of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Navy authority that is conducting the activity identified in § 216.180, must apply for and obtain a Letter of Authorization in accordance with §§ 216.106 and 216.188.
(b) The application for an initial, or a renewal of, a Letter of Authorization must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service, at least 90 days before the date that either the vessel is scheduled to begin conducting SURTASS LFA sonar operations or the previous Letter of Authorization is scheduled to expire.
(c) All applications for a Letter of Authorization must include the following information:
(1) The date(s), duration, and the specified geographical region where the vessel’s activity described in § 216.180 will occur;
(2) The species and/or stock(s) of marine mammals likely to be found within each specified geographical region;
(3) The type of incidental taking authorization that is being requested (i.e., take by Level A and/or Level B harassment);
(4) The estimated percentage of marine mammal species/stocks potentially affected in each specified geographic region and for the 12-month period of effectiveness of the Letter of Authorization; and
(5) The means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals.
(d) NMFS will review an application for a Letter of Authorization in accordance with § 216.104(b) and, if adequate and complete, issue a Letter of Authorization for a period of time not to exceed 1 year.
(a) A Letter of Authorization, unless suspended or revoked will be valid for a period of time not to exceed one year, but may be renewed annually subject to annual renewal conditions in § 216.189.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic areas for taking;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking, its habitat, and on the availability of the species for subsistence uses; and
(4) Requirements for monitoring and reporting incidental takes.
(c) Issuance of each Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, that the total number of marine mammals taken by the activity, specified in § 216.180, as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.
(d) Notice of issuance or denial of a Letter of Authorization will be published in the
(a) A Letter of Authorization issued under § 216.106 and § 216.188 for the activity identified in § 216.180 will be renewed annually upon:
(1) Notification to the National Marine Fisheries Service that the activity described in the application submitted under § 216.187 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season;
(2) Notification to the National Marine Fisheries Service of the information items identified in § 216.187(c), including the planned geographic area(s), and anticipated duration of each SURTASS LFA sonar operation;
(3) Timely receipt of the monitoring reports required under § 216.185, which have been reviewed by the National Marine Fisheries Service and determined to be acceptable;
(4) A determination by the National Marine Fisheries Service that the mitigation, monitoring and reporting measures required under §§ 216.184 and 216.185 and the Letter of Authorization were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and
(5) Renewal of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity continues to be small, that the total number of marine mammals taken by the activity, specified in § 216.180, as a whole will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.
(b) If a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 216.188 indicates that a substantial modification to the described work, mitigation or monitoring will occur during the upcoming season, or if the National Marine Fisheries Service proposes a substantial modification to the Letter of Authorization, the National Marine Fisheries Service will provide the public a period of 30 days for review and comment on the requested modification. Amending the list of areas for upcoming SURTASS LFA sonar operations is not considered a substantial modification to the Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(a) In addition to complying with the provisions of §§ 216.106 and 216.188, except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization issued pursuant to §§ 216.106 and 216.188 and subject to the provisions of this subpart shall be made by the National Marine Fisheries Service until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 216.189, without modification, except for the period of validity and a listing of planned operating areas, or for moving the authorized SURTASS LFA sonar system from one ship to another, are not considered substantive modifications.
(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.180(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.188 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the
In order for the National Marine Fisheries Service to designate areas that are considered of biological importance for marine mammals under this rule, proponents must petition the Agency by requesting an area be added to the list of biologically important areas in § 216.183(d) and submitting the following information:
(a) Geographic region proposed for consideration (including geographic boundaries) as an area of importance,
(b) A list of marine mammals, within the proposed geographic region,
(c) Whether the proposal is for year-round designation or seasonal, and if seasonal, months of years for proposed designation, and
(d) Detailed information on the biology of marine mammals within the area including estimated population size, distribution, density, status; and principal biological activity during the proposed period of designation of the area sufficient for the National Marine Fisheries Service to make a preliminary determination that the area is biologically important for marine mammals.
(e) In order for the National Marine Fisheries Service to designate an area as an offshore area of biological importance for marine mammals under this subpart, the petitioner will need to provide detailed information on the area in regards to its importance for marine mammals for either primary feeding, breeding, or migration for those species of marine mammals that have the potential to be affected by low frequency sounds;
(f) Proposed areas that are within 12 nautical miles (22 kilometers) of any coastline including offshore islands, or within non-operating areas for SURTASS LFA sonar shown in Figure 1 will not be eligible for consideration under this section;
(g) If the National Marine Fisheries Service makes a preliminary determination that the area is biologically important for marine mammals and, that area is not located within a previously designated area, the National Marine Fisheries Service will propose rulemaking to add the recommended area to § 216.183(d).
(h) Through notice in the
(i) After review of the comments and information, the National Marine Fisheries Service will make a final decision on whether or not to add the recommended area to the list found in § 216.183(d). The National Marine Fisheries Service will either issue a final rulemaking on the proposal or provide notice in the
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 EFPs that would allow two vessels to conduct fishing operations otherwise restricted by the regulations governing the fisheries of the Northeastern United States. The Manomet Center for Conservation Sciences (Manomet) submitted a complete application for the issuance of EFPs to two commercial fishing vessels, which warrants further consideration. The experiment would be conducted in a portion of the Gulf of Maine/Georges Bank Regulated Mesh Area (GOM/GB RMA). The EFPs would be issued to two federally permitted groundfish vessels to conduct trawl net gear trials with two modified excluder devices and the associated small-mesh codend cover to target mixed groundfish species—primarily cod, yellowtail flounder, winter flounder (blackback), summer flounder (fluke), American plaice (dab) and grey sole (witch flounder), for the purpose of establishing selectivity parameters of trawl nets with and without the excluder device. EFPs would allow for exemptions to the gear restrictions, temporary possession of catch in excess of the landing limits for the purposes of data collection, and entry into the seasonal area closures in the GOM. The study is intended to determine the selective efficiency of two excluder device designs for the most effective exclusion of small cod and other sub-legal sized fish. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.
Comments on this notification 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, One 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.
Bonnie Van Pelt, Fishery Management Specialist, 978-281-9244.
Manomet submitted an industry cooperative proposal on February 5, 2001, for two EFPs to conduct gear selectivity studies to address bycatch and discard of incidental catch and sub-legal sized fish, cod in particular, in the mixed-groundfish fisheries of the Northeast. The study would be conducted with two federally permitted multispecies vessels within the following four areas, excluding portions that overlap year-round closure areas (Western GOM Closure Area and Closed Area I) and including some Canadian territorial waters as follows:
This collaborative study involves Manomet, the Massachusetts Division of Marine Fisheries, and the Maine Department of Marine Resources as co-principal investigators. In addition, project tasks will be coordinated with the Canadian Department of Fisheries and Oceans to ensure compatibility with existing methodology and data format. A bycatch reduction device called EX-it was developed by the Icelandic fishing industry, with scientific and Governmental collaboration. The EX-it device is now used by over 60 percent of the inshore fishing fleet in Icelandic waters and has been demonstrated to reduce effectively the bycatch of undersized fish in fisheries from Iceland to Namibia. -
The main objective of the experiment is to field test two modifications of the EX-it devices, which consist of a net tube in the shape of an hourglass, and steel grids. The EX-it device is inserted in the top panel of a codend (industry-standard mesh) within a trapezoidal steel frame. The grid system is made of eight smaller grids that are joined together. The field trials would deploy two EX-it devices, one with a grid bar spacing interval of 60 mm (2.36 inch), and the other of 55-mm (2.17-inch) spacing, combined with a retainer bag made of 1-7/8 inch (4.78-cm) mesh, which is attached to the EX-it devise, as well as additional 1-7/8 inch (4.78-cm) mesh cover surrounding the codend mesh itself. The retainer bag would retain all the fish that were excluded by each design of the EX-it device, and the codend covers would sample the portion of the catch that would have escaped the codend to obtain a selectivity curve, which requires the length-frequency distribution of the population sampled, as well as that of the population retained. -
The purpose of the study is to develop a size-selective trawl gear configuration through modifications to the grid bar spacing of the EX-it device to release sub-legal sized cod and flatfish species incidental to the catch, while retaining fish of marketable size. The catch data for each sample (tow) would be used to prepare gear-specific mesh selectivity curves. Video observations would be performed in conjunction with the gear trials for use in behavioral analyses to ascertain the presence/absence of species-specific behavioral patterns that may explain observed differences in the selective efficiency of the gear modifications. -
The field trials would take place over a period of approximately 5 days, with a total sample size of 20 tows; 10 tows (1 hour tow length) for each of the two EX-it device bar spacings tested, at four tows per day. These commercial gear trials would operate in the four areas designated (Tables 1-4) outside the Western GOM Year Round Closure Area and Closed Area I beginning in March 2001, until the 20 tows are obtained. Access to the GOM seasonal closures areas is necessary to maximize sampling and data return, while minimizing the need for a lengthy study and exhaustive fishing efforts. The GOM seasonal closures that may correspond in time and location with the proposed study are as follows: Rolling Closure Area I (March 1 to March 31), Rolling Closure Area II (April 1 to April 30), Rolling Closure Area III (May 1 to May 31), Rolling Closure Area IV (June 1 to June 30), and the Cashes Ledge Closure Area (July 1 to October 31). The study will continue for up to 6 months to allow for weather contingencies and to capture seasonal variability in target species distribution and abundance. -
The experimental sampling design (use of a codend cover and the retainer bag) is intended to minimize greatly the number of tows necessary to yield the necessary amount of catch information; a minimum of 10 tows (1 hour in length maximum) is required for satisfactory selectivity curve results. The target species are yellowtail flounder, winter flounder (blackback), summer flounder (fluke), American plaice (dab) and cod. The main incidental species are expected to be skates, smooth and spiny dogfish, sculpins, sea raven and sea robin. Any sub-legal sized fish would be processed by the researcher (e.g., measured) and returned immediately to the water. During the experimental trials, participating vessels would be instructed to conduct normal fishing operations. Therefore, the vessels may only retain fish for commercial sale in the amount allowed under their respective Federal fishery permits and days-at-sea allocations. -
NMFS-certified observers will collect fisheries data from each tow conducted during the course of the experiment. All the data reports will be forwarded to NMFS, the New England Fishery Management Council, various fishermen’s and industry organizations, Sea Grant offices and other interested parties. It is hoped that this experiment could serve as an example for future cooperative ventures between the U.S., Canada, and Iceland. -
EFPs would be issued to two participating federally permitted Northeast multispecies vessels to exempt them from the gear restrictions, temporary possession of catch in excess of the landing limits for the purposes of data collection, and the GOM seasonal area closures of the Northeast Multispecies Fishery Management Plan, found at 50 CFR part 648, subpart F.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advisory Panel meeting and public hearing.
NMFS will hold a joint meeting of the Atlantic Highly Migratory Species Advisory Panel (HMS AP) and the Atlantic Billfish Advisory Panel (Billfish AP), April 2 through 4, 2001, in Silver Spring, MD. NMFS will also hold a public hearing to receive comments from fishery participants and other members of the public regarding proposed regulations open for public comment at that time. Instructions on submitting written comments will be published with the respective proposed regulations.
The joint HMS-Billfish AP meeting will be held from 1 p.m. to 5 p.m. on Monday, April 2; from 8 a.m. to 5 p.m. on Tuesday, April 3; and from 8 a.m. to 3:30 p.m. on Wednesday, April 4.
The public hearing will be held from 7 p.m. until 10 p.m. on Tuesday, April 3, 2001.
The AP meeting and the public hearing will be held in the NOAA Science Center, 1301 East-West Highway, Silver Spring, MD 20910.
Materials related to the AP meeting and public hearing are available from Othel Freeman, Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910, 301-713-2347.
Dr. Ronald G. Rinaldo, 301-713-2347.
The actions to be discussed by the APs and
These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Dr. Rinaldo (see
16 U.S.C. 961
Pursuant to the Federal Advisory Committee Act, notice is hereby given of the meeting of the Food Security Advisory Committee (FSAC). The meeting will be held from 8:30 a.m. to 5:00 p.m. on March 28th, 2001 in the NASULGC Meeting Room, 1307 New York Avenue, NW, Washington, DC.
The agenda calls for FSAC to review options for recommendation to the Interagency Working Group (IWG) on Food Security regarding priorities for use in developing the U.S. position for the World Food Summit Plus Five (WFS+5). The Committee will also review important opportunities to promote food security and adopt a strategy to expand public and private sector contributions to domestic and international food security.
Those wishing to attend the meeting, or to obtain additional information about FSAC, should contact Ms. Jennifer J. Douglas, the Designated Federal Officer for FSAC, in care of the U.S. Agency for International Development, Ronald Reagan Building, Office of Agriculture and Food Security, 1300 Pennsylvania Avenue, NW., Room 2.11-061, Washington, DC 20523-2110 or telephone her at (202) 712-1687 or fax (202) 216-3060.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the Georgia Advisory Committee to the Commission will convene at 1 p.m. and adjourn at 5 p.m. on March 29, 2001, at the Renaissance Atlanta Hotel, 590 West Peachtree Street, NW., Atlanta, Georgia 30308. The purpose of the meeting is to plan the State Symposium on the “Status of Civil Rights in Georgia.”
Persons desiring additional information, or planning a presentation to the Committee, should contact Bobby D. Doctor, Director of the Southern Regional Office, 404-562-7000 (TDD 404-562-7004). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the Wisconsin Advisory Committee to the Commission will convene at 9:00 a.m. and adjourn at 1:00 p.m. on Wednesday, March 28, 2001, at the Radisson Inn Harbourwalk, 223 Gaslight Circle, Racine, Wisconsin. The purpose of the meeting is to hold a press conference to release the Committee's report, Community Forum on Race Relations in Racine County, Wisconsin. Also, the Committee will discuss current events and plan future activities.
Persons desiring additional information, or planning a presentation to the Committee, should contact Constance M. Davis, Director of the Midwestern Regional Office, 312-353-8311 (TDD 312-353-8362). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Bureau of Economic Analysis, Commerce.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act (Public Law 92-463, as amended by Public Law 94-409, Public Law 96-523, and Public Law 97-375), we are giving notice of a meeting of the Bureau of Economic Analysis Advisory Committee. The meeting's agenda is as follows: 1. Presentation of the results and recommendations arising from the Brookings Institutions' Workshops on Output and Productivity Measurement in the Service Sector. 2. Discussion of new price measures that might be integrated into the national accounts, such as those for security dealers and semiconductors. 3. Review of the North American Industry Classifications System (NAICS) implementation schedule as it affects BEA. 4. Brief discussion of the treatment of consumer durables in the national accounts. 5. Brief presentation of alternatives for the treatment of the statistical discrepancy. 6. Discussion of topics for future agendas.
On Friday, May 11, 2001, the meeting will begin at 9:15 a.m. and adjourn at approximately 4 p.m.
The meeting will take place at BEA, 2nd floor, Conference Room
J. Steven Landefeld, Director, Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; telephone: 202-606-9600
This meeting is open to the public. Because of security procedures, anyone planning to attend the meeting must contact Colleen Ryan of BEA at 202-606-9603 in advance. The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Colleen Ryan at 202-606-9603.
The Committee was established on September 2, 1999, to advise the Bureau of Economic Analysis (BEA) on matters related to the development and improvement of BEA's national, regional, and international economic accounts. This will be the Committee's third meeting.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Antidumping Duty Administrative Review.
On January 10, 2001, the Department of Commerce published the preliminary results of administrative review of the antidumping duty order on electrolytic manganese dioxide from Greece. The review covers one producer/exporter, Tosoh Hellas, during the period of review April 1, 1999, through December 31, 1999.
We gave interested parties an opportunity to comment on the preliminary results. We did not receive any comments. The review indicates the existence of no dumping margins for Tosoh Hellas during this period.
March 19, 2001.
Hermes Pinilla or Richard Rimlinger, Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, Washington, D.C. 20230; telephone: (202) 482-3477 or (202) 482-4477, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act) are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act, by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR Part 351 (2000).
On January 10, 2001, the Department published in the
Imports covered by this review are shipments of EMD from Greece. EMD is manganese dioxide (MnO
We received no comments from interested parties as a result of our preliminary results of review.
On April 20, 2000, the International Trade Commission (ITC), pursuant to section 751(c) of the Act, determined that revocation of the antidumping duty order on EMD from Greece would not be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. Therefore, because the order was revoked on May 31, 2000, as a result of the ITC's determination with an effective date of January 1, 2000, no deposit requirements are effective for shipments entered, or withdrawn from warehouse, for consumption on or after January 1, 2000.
We have determined that a weighted-average margin of zero percent exists for Tosoh for the period April 1, 1999, through December 31, 1999. The Department will issue appraisement instructions directly to the Customs Service.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce is extending the time limits of the preliminary results of the antidumping duty administrative review on extruded rubber thread from Malaysia. The review covers three producers/exporters of the subject merchandise to the United States. The period of review is October 1, 1999, through September 30, 2000.
March 19, 2001.
Irina Itkin at (202) 482-0656, Office of AD/
Because it is not practicable to complete this administrative review within the time limits mandated by section 751(a)(3)(A) of Tariff Act of 1930 (the Act), as amended by the Uruguay Round Agreements Act, the Department is extending the time limit for completion of the preliminary results. In this review, the respondents will not have their audited financial statements ready until after the scheduled date for the preliminary results. Because the Department intends to incorporate the auditors' adjustments into its calculations, we have extended the deadline until October 31, 2001.
This extension is in accordance with section 751(a)(3)(A) of the Act (19 U.S.C. 1675(a)(3)(A)) and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
March 19, 2001.
Thomas Schauer or Richard Rimlinger, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230; telephone: (202) 482-0410 or (202) 482-4477, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to the provisions codified at 19 CFR Part 351 (2000).
On February 20, 2001, the Department received a petition on imports of certain folding gift boxes from the People's Republic of China (PRC) filed in proper form by Harvard Folding Box Company, Inc., and Field Container Company, L.P., hereinafter referred to as “the petitioners.” On February 26, 2001, the Department requested clarification of certain areas of the petition and received responses on March 1, 2001, and March 5, 2001.
In accordance with section 732(b) of the Act, the petitioners allege that imports of certain folding gift boxes from the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act and that such imports are materially injuring and threaten to injure an industry in the United States.
The Department finds that the petitioners filed this petition on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) and (D) of the Act and they have demonstrated sufficient industry support with respect to the antidumping duty investigation they are requesting the Department to initiate (see “Determination of Industry Support for the Petition” below).
The merchandise subject to this petition is certain folding gift boxes. Folding gift boxes are a type of folding or knock-down carton manufactured from paper or paperboard. Folding gift boxes are produced from a variety of recycled and virgin paper or paperboard materials, including, but not limited to, clay-coated paper or paperboard and kraft (bleached or unbleached) paper or paperboard. The scope of the petition excludes gift boxes manufactured from paper or paperboard of a thickness of more than 0.8 millimeters, corrugated paperboard, or paper mache.
Folding gift boxes are typically decorated with a holiday motif using various processes, including printing, embossing, debossing, and foil stamping, but may also be plain white or printed with a single color. The subject merchandise includes folding gift boxes, with or without handles, whether finished or unfinished, and whether in one-piece or multi-piece configuration. One-piece gift boxes are die-cut or otherwise formed so that the top, bottom, and sides form a single, contiguous unit. Two-piece gift boxes are those with a folded bottom and a folded top as separate pieces. Folding gift boxes are generally packaged in shrink-wrap, cellophane, or other packaging materials, in single or multi-box packs for sale to the retail customer. The scope of the petition excludes folding cartons that have a retailer's name, logo, trademark or similar company information printed prominently on the folding carton's top exterior (such folding cartons may be known as “not-for-resale” gift boxes or “give-away” gift boxes and may be provided by department and specialty stores at no charge to their retail customers). Imports of the subject merchandise are classified under U.S. Harmonized Tariff Schedule subheadings 4819.20.00.40 and 4819.50.40.60. These subheadings also cover products that are outside the scope of this petition. Furthermore, although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive.
During our review of the petition, we discussed the scope with the petitioners to ensure that it accurately reflects the product for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the Department's regulations (62 FR 27296, 27323), we are setting aside a period for interested parties to raise issues regarding product coverage. The Department encourages all interested parties to submit such comments within 20 calendar days of publication of this notice. Comments should be addressed to Import Administration's Central Records Unit at Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. The period of scope consultations is intended to provide the Department with ample opportunity to consider all comments and consult with interested parties prior to the issuance of the preliminary determination.
Section 351.204(b) of the Department's regulations states that, in the case of a nonmarket-economy (NME) country, in an investigation, the Department normally will examine merchandise sold during the two most recently completed fiscal quarters as of the month preceding the month in which the petition was filed. The regulations further state that the Department may examine merchandise sold during any additional or alternate period it concludes is appropriate.
Following the above-noted guidelines from section 351.204(b) of the Department's regulations, the two most
For this investigation, the petitioners have requested that the Department expand the period of investigation (POI) to include the first two fiscal quarters of 2000, January through June 2000. According to the petitioners, the subject merchandise is sold using long-term contracts that require delivery to be made six to nine months after the contract is signed. The petitioners also contend that the folding gift box industry is highly seasonal and that the volume of folding gift box shipments is linked to the Christmas and Hanukkah holidays. The petitioners argue that, because of these two facts, most sales of folding gift boxes are made during January through April. Therefore, the petitioners claim that the normal POI would only capture a few non-representative sales that will greatly distort the Department's conclusions.
The Department is considering the petitioners' arguments on this matter and will make a determination on whether to expand the normal POI as established by section 351.204(b)(1) of the Department's regulations, July 1 through December 31, 2000, as the investigation proceeds.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (1) at least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition.
Section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the administering agency shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether the petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While the Department and the ITC must apply the same statutory definition regarding the domestic like product (see section 771(10) of the Act), they do so for different purposes and pursuant to separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the domestic like product, such differences do not render the decision of either agency contrary to law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
In this case, we have adopted the definition of the domestic like product defined in the “Scope of Investigation” section, above. That definition was developed n in consultation with the petitioners.
The petitioners established industry support representing over 50 percent of total production of the domestic like product. Therefore, the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and the requirements of section 732(c)(4)(A)(i) are met. Furthermore, because the Department received no opposition to the petition, the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. Thus, the requirements of section 732(c)(4)(A)(ii) are also met.
Accordingly, the Department determines that the petition was filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act. See Industry Support Attachment to the Initiation Checklist.
The following is a description of the allegation of sales at less than fair value upon which the Department based its decision to initiate this investigation. The sources of data for the deductions and adjustments relating to U.S. price and factors of production are also discussed in the Initiation Checklist. Should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determination, we may reexamine the information and revise the margin calculations, if appropriate.
Based on their knowledge and experience in the market place and on their examination of publicly available ship manifest data, the petitioners identified the following PRC companies as producers of certain folding gift boxes in the PRC: Bigfield Goldenford Holdings, Ltd., Century Distributing, Inc., China Arts Huajia Import & Export, Chung Tai Printing Company, Ltd., Dexon Workshop Company, Fangyuan International Economy and Trade Co., Gold Mile Enterprise, Ltd., Homay Paper Products Company, Ltd., Hong Kong Dasan Paper Products Co., Ltd., Hung Hing Off-Set Printing Company, Ltd., K.C. (Hong Kong), Ltd., Leo Paper Products, Ltd., Luk Ka Printing Company, Ltd., Man Sang Envelope Manufacturing Co., Ltd., Max Fortune Industrial, Ltd., Ningbo Jude Trading Company, Ltd., Rank Sharp Investments, Ltd., and Red Point Paper Products Company, Ltd. Of these 18 companies the petitioners identified Bigfield Goldenford Holdings, Ltd., Luk Ka Printing Company, Ltd., Max Fortune Industrial, Ltd., and Red Point Paper Products Company, Ltd., as the producers of a large quantity of certain folding gift boxes exported to the United States.
The petitioners based export price on the price of Chinese-manufactured folding gift boxes from a Chinese exporter. In order to obtain ex-factory prices, the petitioners deducted foreign inland freight and foreign port charges from the sales value. According to an affidavit from a person familiar with the folding gift box industry in the PRC, folding gift boxes are transported to the port by truck. To calculate foreign inland freight, the petitioners used a surrogate value based on information developed by the Department in prior cases and inflated this value to current prices using the Department's normal methodology. To calculate foreign port
The petitioners assert that the Department considers the PRC to be an NME country and, therefore, constructed normal value based on the factors-of-production methodology pursuant to section 773(c) of the Act. In previous cases, the Department has determined that the PRC is an NME country. See
As required by 19 CFR 351.202(b)(7)(i)(C), the petitioners provided a dumping margin calculation using the Department's NME methodology described in 19 CFR 351.408. For the normal value calculation, the petitioners based the factors of production, as defined by section 773(c)(3) of the Act (raw materials, labor, and overhead), for certain folding gift boxes on the quantities of inputs used by a U.S. producer of certain folding gift boxes. Based on our analysis of the data in the petition, we believe that the petitioners' normal value calculations to be reasonable and accurate. See Initiation Checklist.
The petitioners selected Indonesia as their surrogate country. The petitioners stated that Indonesia is comparable to the PRC in its level of economic development and is the only producer of certain folding gift boxes among the ten countries most comparable to the PRC. Based on the information provided by the petitioners, we believe that the petitioners' use of Indonesia as a surrogate country is appropriate for purposes of initiation of this investigation. See Initiation Checklist.
In accordance with section 773(c)(4) of the Act, the petitioners valued factors of production for certain folding gift boxes, where possible, on reasonably available, public surrogate-country data. To value paperboard, the petitioners used the value for exports as reported in the World Trade Atlas, Indonesian Export Statistics published by the Government of Indonesia. To value ink, glue, shrinkwrap, corrugated boxes, and casing tape, the petitioners used the value for imports as reported in the World Trade Atlas, Indonesian Export Statistics published by the Government of Indonesia. To value labels, the petitioners used the value for exports as reported in the World Trade Atlas, Indonesian Export Statistics published by the Government of Indonesia. The petitioners valued labor using the regression-based wage rate for the PRC, in accordance with 19 CFR 351.408(c)(3). For factory overhead expenses, the petitioners used a rate derived from the experience of the producer of certain folding gift boxes used for the factors of production. Based on information provided in exhibit 13 of the petition, we have found that this is a conservative estimate for purposes of this initiation. For selling, general and administrative expenses and profit, the petitioners applied rates derived from the publicly available annual report of an Indonesian producer of comparable merchandise, PT Pabrik Kertas Tjiwi Kimia Tbk.
The petitioners provided two sets of calculations of CV: one calculation includes packing expenses in the cost of manufacture of the folding gift boxes and the other follows our normal practice of not including packing expenses in the cost of manufacture. The petitioners argued that, unlike other manufactured products where the packaging material is simply an addition to the finished product, folding gift boxes are sold in units of “retail packs” which incorporate the packaging materials as an integral part of the product. For purposes of this initiation, however, we have used the calculation that follows our normal methodology. As noted above, should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determination, we may reexamine this issue and revise the margin calculations accordingly.
Based on comparisons of export price to normal value, calculated in accordance with section 773(c) of the Act, the estimated dumping margins for certain folding gift boxes from the PRC range from 65.00 percent to 87.68 percent.
Based on the data provided by the petitioners, there is reason to believe that imports of certain folding gift boxes from the PRC are being, or are likely to be, sold in the United States at less than fair value.
The petition alleges that the U.S. industry producing the domestic like product is being materially injured and is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value. The petitioners contend that the industry's injured condition is evident in the declining trends in the following: (1) U.S. market share, (2) domestic production, (3) shipments, (4) capacity utilization, (5) employment, and (6) profit margins.
The allegations of injury and causation are supported by relevant evidence including ITC section 332 import data, lost sales, and pricing information. The Department assessed the allegations and supporting evidence regarding material injury and causation and determined that these allegations are supported by accurate and adequate evidence and meet the statutory requirements for initiation (see Attachments to Initiation Checklist, Re: Material Injury).
Based upon our examination of the petition on certain folding gift boxes from the PRC, we find that the petition meets the requirements of section 732 of the Act. Therefore, we are initiating an antidumping duty investigation to determine whether imports of certain folding gift boxes from the PRC are being, or are likely to be, sold in the United States at less than fair value. Unless postponed, we will make our preliminary determination no later than 140 days after the date of this initiation.
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of the petition has been provided to the representatives of the PRC. We will attempt to provide a copy of the public version of the petition to each exporter named in the petition, as appropriate.
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, no later than April 6, 2001, whether there is a reasonable indication that imports of certain folding gift boxes from the PRC are causing material injury, or threatening to cause material injury, to a U.S. industry. A negative ITC determination will result in this investigation being terminated; otherwise, this investigation will proceed according to statutory and regulatory time limits.
This notice is published pursuant to section 777(i) of the Act. Effective January 20, 2001, Bernard T. Carreau is fulfilling the duties the Assistant Secretary for Import Administration.
This is a decision consolidated pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5:00 p.m. in Room 4211, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Washington, D.C.
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
Notice of first request for panel review.
On March 9, 2001, Cinsa, S.A. de C.V. (“CINSA”) and Esmaltaciones de Norte America, S.A. de C.V. (“ENASA”) filed a First Request for Panel Review with the United States Section of the NAFTA Secretariat pursuant to Article 1904 of the North American Free Trade Agreement. Panel review was requested of the final antidumping duty 13th administrative review determination made by the International Trade Administration, respecting Porcelain-on-Steel Cookware from Mexico. This determination was published in the
Caratina L. Alston, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230, (202) 482-5438.
Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.
Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established
A first Request for Panel Review was filed with the United States Section of the NAFTA Secretariat, pursuant to Article 1904 of the Agreement, on June 8, 2000, requesting panel review of the final antidumping duty administrative review described above.
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is April 9, 2001);
(b) A Party, investigating authority or interested person that does not file a Complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the first Request for Panel Review (the deadline for filing a Notice of Appearance is April 23, 2001); and
(c) The panel review shall be limited to the allegations of error of fact or law, including the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and the procedural and substantive defenses raised in the panel review.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare a supplemental environmental impact statement (SEIS); request for comments.
NMFS announces the intent of the Caribbean Fishery Management Council (Council) to prepare a SEIS for its Essential Fish Habitat (EFH) Generic Amendment to the Fishery Management Plans (FMPs) of the U.S. Caribbean (EFH Generic Amendment). The SEIS would evaluate alternatives to the designation of EFH and habitat areas of particular concern (HAPCs) for the fisheries and fishery resources under the Council’s jurisdiction. The SEIS also would evaluate the environmental impacts associated with such EFH and HAPC designations and with measures needed to mitigate impacts related to both fishing and non-fishing activities. The purpose of this notice is to solicit public comments on the scope of the issues to be addressed in the SEIS.
Written comments on the scope of the DEIS must be received on or before April 18, 2001.
Written comments on the scope of the SEIS and requests for additional information on the EFH Generic Amendment should be sent to Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 268 Muñoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-2577; telephone: 787-766-5926; fax: 787-766-6239.
Muguel Rolón, 787-766-5926, or Rickey Ruebsamen, 727-570-5317.
In 1998, the Council completed its preparation of the EFH Generic Amendment that proposed appropriate amendments to all of the Council’s fishery management plans (FMPs) for Puerto Rico and the U.S. Virgin Islands. These FMPs are for the following fisheries or fishery resources: Spiny lobster; shallow water reef fish; coral and reef associated invertebrates; and Queen conch. After conducting Secretarial review of the EFH Generic Amendment, NMFS partially approved it in 1999. NMFS published a notice of the agency decision on March 29, 1999 (64 FR 14884). -
The Council prepared the EFH Generic Amendment in response to provisions of the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996, and 50 CFR 600.815 (guidelines regarding EFH and the contents of FMPs). The EFH Generic Amendment identified and described as EFH for species managed under the Council’s FMPs as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity for species managed under the FMPs. Among other factors, the EFH Generic Amendment also identified threats to EFH from both fishing and non-fishing activities, evaluated conservation and enhancement opportunities, including the possibility of new fishery management measures, and specified HAPCs, which are especially important, sensitive, threatened, or rare subset areas of EFH. -
NMFS and the Council, following the judicial decision in
Alternatives that would be considered in the SEIS include, at a minimum, no action, the preferred alternative identified in the EFH Generic Amendment, and multiple alternatives to the description and identification of EFH and HAPCs for the managed fisheries. Action alternatives would evaluate, on the basis of the life stages of the managed fisheries, the description and identification of both larger and smaller EFH/HAPC areas than specified in the EFH Generic Amendment. Any adverse effects on EFH and HAPCs caused by fishing activities, as described in the SEIS, would form the basis for the identification of appropriate alternatives to minimize these effects to the extent practicable. These alternatives may include fishing gear restrictions, time or area closures, harvest limits, or other appropriate conservation practices. Other actions to encourage the conservation and enhancement of EFH and HAPCs also would be included. -
The Council prepared the EFH Generic Amendment and associated EA in 1998 in consultation with NMFS, the National Ocean Service in NOAA, and representatives of a variety of fishing and non-fishing interests through the Council’s committees and advisory panels. The Council conducted six public hearings in 1998 in the U.S. Virgin Islands and Puerto Rico to solicit public input on the draft EFH Generic Amendment and draft EA. The Council also provided extensive opportunity for the submission of written public comments on the draft EFH Generic Amendment and draft EA. Information gathered through these previous outreach efforts, as well as future additional public comment, will be considered fully in preparing the SEIS. -
On behalf of the Council, NMFS is requesting, by this notice, written comments on the scope of issues that should be addressed in the SEIS. Also, NMFS invites specific comment on the appropriate extent of EFH and HAPCs for Council-managed species and on the scientific basis for EFH and HAPC designations. NMFS also solicits any new information related to the impacts of fishing and non-fishing activities on EFH and HAPCs for fishery resources managed under the Council’s FMPs and to possible management measures that may mitigate adverse fishing impacts. -
To provide additional opportunity for public comment on the issues to be considered in the SEIS, the Council intends to conduct public scoping meetings. Under the National Environmental Policy Act (NEPA) and regulations issued by the Council on Environmental Quality (CEQ) for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), scoping is an early and open process for determining the scope of issues to be addressed by an environmental impact statement and for identifying the significant issues related to the proposed action. The Council will provide advance notification of the dates, times, and places of any scheduled public scoping meetings through publication of an appropriate notice in the
Once the Council completes the draft SEIS, it will submit the document to NMFS for filing with the Environmental Protection Agency (EPA). EPA will then publish in the
Copies of the EFH Generic Amendment may be obtained by contacting the Council (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare a supplemental environmental impact statement (SEIS); request for comments.
NMFS announces the intent of the Gulf of Mexico Fishery Management Council (Council) to prepare a SEIS for its Generic Amendment Addressing Essential Fish Habitat (EFH) Requirements of the Gulf of Mexico (EFH Generic Amendment). The SEIS would evaluate alternatives to the designation of EFH and habitat areas of particular concern (HAPCs) for the fisheries and fishery resources under the Council’s jurisdiction. The SEIS also would evaluate the environmental impacts associated with such EFH and HAPC designations and with measures needed to mitigate impacts related to both fishing and non-fishing activities. The purpose of this document is to solicit public comments on the scope of the issues to be addressed in the SEIS.
Written comments on the scope of the SEIS must be received on or before April 18, 2001.
Written comments on the scope of the SEIS and requests for additional information on the EFH Generic Amendment should be sent to Dr. Richard L. Leard, Deputy Executive Director, Gulf of Mexico Fishery Management Council, The Commons at Rivergate, 3018 U.S. Highway 301 North, Suite 1000, Tampa, Florida 33619-2266; phone: 813-228-2815; fax: 813-225-7015.
Richard Leard, Council staff contact, 813-228-2815, or Rickey Ruebsamen, NMFS staff contact, 727-570-5317.
In 1998, the Council completed its preparation of the EFH Generic Amendment that proposed appropriate amendments to all of the Council’s fishery management plans (FMPs) for the Gulf of Mexico. These FMPs are for the following fisheries or fishery resources: Coral reef resources; coastal migratory pelagics; red drum; reef fish; shrimp; spiny lobster; and stone crab. After conducting Secretarial review of the EFH Generic Amendment, NMFS partially approved it in 1999. NMFS published a notice of the agency decision on March 18, 1999 (52 FR 13363). -
The Council prepared the EFH Generic Amendment in response to provisions of the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996, and 50 CFR 600.815 (guidelines regarding EFH and the contents of FMPs). The EFH Generic Amendment identified and described as EFH for species managed under the Council’s FMPs as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity for species managed under the FMPs. Among other factors, the EFH Generic Amendment also identified threats to EFH from both fishing and non-fishing activities, evaluated conservation and enhancement opportunities, including the possibility of new fishery management measures, and specified HAPCs, which are especially important, sensitive, threatened, or rare subset areas of EFH. -
NMFS and the Council, following the judicial decision in
Alternatives that would be considered in the SEIS include, at a minimum, no action, the preferred alternative identified in the EFH Generic Amendment, and multiple alternatives to the description and identification of EFH and HAPCs for the managed fisheries. Action alternatives would evaluate, on the basis of the life stages of the managed fisheries, the description and identification of both larger and smaller EFH/HAPC areas than specified in the EFH Generic Amendment. Any adverse effects on EFH and HAPCs caused by fishing activities, as described in the SEIS, would form the basis for the identification of appropriate alternatives to minimize these effects to the extent practicable. These alternatives may include fishing gear restrictions, time or area closures, harvest limits, or other appropriate conservation practices. Other actions to encourage the conservation and enhancement of EFH and HAPCs also would be included. -
The Council prepared the EFH Generic Amendment and associated EA in 1998 in consultation with NMFS, the National Ocean Service in NOAA, the Gulf States Marine Fisheries Commission, fishery agencies of the States of Texas, Louisiana, Mississippi, Alabama, and Florida, and representatives of a variety of fishing and non-fishing interests through the Council’s committees and advisory panels. The Council conducted eight public hearings in 1998 throughout the southeastern U.S. to solicit public input on the draft EFH Generic Amendment and draft EA. The Council also provided extensive opportunity for the submission of written public comments on the draft EFH Generic Amendment and draft EA. Information gathered through these previous outreach efforts, as well as future additional public comment, will be considered fully in preparing the SEIS. -
On behalf of the Council, NMFS is requesting, by this notice, written comments on the scope of issues that should be addressed in the SEIS. Also, NMFS invites specific comment on the appropriate extent of EFH and HAPCs for Council-managed species and on the scientific basis for EFH and HAPC designations. NMFS also solicits any new information related to the impacts of fishing and non-fishing activities on EFH and HAPCs for fishery resources managed under the Council’s FMPs and
To provide additional opportunity for public comment on the issues to be considered in the SEIS, the Council intends to conduct public scoping meetings. Under the National Environmental Policy Act (NEPA) and regulations issued by the Council on Environmental Quality (CEQ) for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), scoping is an early and open process for determining the scope of issues to be addressed by an environmental impact statement and for identifying the significant issues related to the proposed action. The Council will provide advance notification of the dates, times, and places of any scheduled public scoping meetings through publication of an appropriate notice in the
Once the Council completes the draft SEIS, it will submit the document to NMFS for filing with the Environmental Protection Agency (EPA). EPA will then publish in the
Copies of the EFH Generic Amendment may be obtained by contacting the Council (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of proposed modification and annual renewal of a letter of authorization; request for comments.
On February 5, 2001, the 30
Comments and information must be received no later than April 18, 2001.
Comments on the application should be addressed to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225. A copy of the request for modification, the LOA and the supporting documentation, including a list of references cited in this notice, are available for review during regular business hours in the following offices: Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, and the Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.
FURTHER INFORMATION CONTACT: Simona P. Roberts, Office of Protected Resources, NMFS, (301) 713-2322, ext. 106 or Christina Fahy, NMFS, (562) 980-4023.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Permission may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations must include requirements pertaining to the monitoring and reporting of such taking. Regulations governing the taking of seals and sea lions incidental to missile and rocket launches, aircraft flight test operations, and helicopter operations at Vandenberg were published on March 1, 1999 (64 FR 9930), and remain in effect until December 31, 2003.
In accordance with the MMPA, as amended, and implementing regulations, a 1-year LOA to take small numbers of seals and sea lions was issued on May 31, 2000, to the 30
The number of rocket launches of each type of launch vehicle (Titan II, Titan IV, Lockheed-Martin, Delta II, Taurus, Atlas, and Minotaur) varies from year to year and space launches originate from both North and South Vandenberg. The 30th Space Wing requests a change in the current authorization to reflect the variable nature of the launch vehicle type by eliminating the number of launches per individual rocket program. The authorization will remain for no more than 20 rocket launches per year. They also request eliminating “South” to clarify that space launches occur from both North and South Vandenberg. Three years of monitoring have shown that this variable rocket launch schedule and launch location have not affected harbor seal distribution or behavior at VAFB.
Because the elimination of the number of launches per individual rocket program will not result in an increase in the number of launches authorized to take pinnipeds under the LOA, NMFS does not expect additional cumulative impacts to occur and, therefore, NMFS has preliminarily determined that the takes will remain small and not have more than a negligible impact on seals and sea lions at Vandenberg.
During the last 3 years, the 30
The fourth requested change is inconsistent with the 5-year programmatic permit and its implementing regulations (64 FR 9930). Due to this discrepancy, NMFS has determined that the fourth request will require modification to the current regulations governing space vehicle and test flight activities (50 CFR 216.120-128) before modification of the LOA can be considered.
First, the 30
Second, the 30
Third, the 30
Fourth, the 30
On February 21, 2001, NMFS notified the 30
As of May 31, 2001 the 30
NMFS requests interested persons to submit comments and information concerning this request (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Pacific Fishery Management Council (Council) and its advisory entities will hold public meetings.
The Council and its advisory entities will meet April 1 through April 6, 2001. The Council meeting will begin on Tuesday, April 3, at 8 a.m., reconvening each day through Friday. All meetings are open to the public, except a closed session will be held from 8 a.m. until 8:30 a.m. on Tuesday, April 3 to address litigation and personnel matters. The Council will meet as late as necessary each day to complete its scheduled business.
The meetings will be held at the Red Lion’s Sacramento Inn, 1401 Arden Way, Sacramento, CA 95815; telephone: 916-922-8041.
Dr. Donald O. McIsaac, Executive Director, Pacific Fishery Management Council; telephone: (503) 326-6352.
The following items are on the Council agenda, but not necessarily in this order:
1. Opening Remarks, Introductions,
2. Roll Call
3. Executive Director’s Report
4. Approve Agenda
5. Approve November Meeting Minutes
1. Report on Federal Regulation Implementation
2. Identification of Stocks Not Meeting Escapement Goals for Three Consecutive Years
3. Methodology Reviews for 2001
4. Tentative Adoption of 2001 Ocean Salmon Management Measures for Analysis
5. Clarify Council Direction on 2001 Management Measures
6. Final Action on 2001 Measures
7. Clarification of Final Action on 2001 Measures
1. Status of NMFS Regulatory and Other Nonregulatory Activities
2. Exempted Fishing Permit Applications
3. Groundfish Strategic Plan Implementation
4. Future Groundfish Management Process and Schedule
5. Status of Fisheries and Consideration of Inseason Adjustments
6. Discard Adjustment for Bocaccio and Lingcod
7. Rebuilding Plan Status Report
8. Observer Program
9. Bycatch Full Retention Options
10. Reconsideration of 1997 Huntington Flats Decision
Council Letters of Comment on External EFH Issues
1. Status of NMFS Regulatory and Nonregulatory Activities
2. Review Capacity Goal and Related Issues
3. Update on Squid MSY Methodologies Workshop
Channel Island National Marine Sanctuary Program (CINMSP)
Proposed 2001 Incidental Catch Regulations for the Troll Salmon Fishery and Sablefish Longline Fishery North of Point Chehalis
1. Appointments to Council Advisory Bodies or Ad-Hoc Positions
2. Council Staff Workload Priorities
3. June 2001 Council Meeting Agenda
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 Fishery Conservation and Management 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 Ms. Carolyn Porter at (503) 326-6352 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Highly Migratory Species Plan Development Team (HMSPDT) will hold a work session, which is open to the public.
The HMSPDT will meet on Monday, April 9, through Friday, April 13, 2001. See
The work session will be held in the large conference room at NMFS Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, Room D-203, La Jolla, CA 92038-0271;, telephone: (619) 546-7000.
Dan Waldeck, Pacific Fishery Management Council; telephone: (503) 326-6352.
The HMSPDT will meet on Monday, April 9, 2001, 8 a.m. to 5 p.m.; Tuesday, April 10, 2001, 8 a.m. to 5 p.m.; Wednesday, April 11, 2001, 8 a.m. to 5 p.m.; Thursday, April 12, 2001, 8 a.m. to 5 p.m.; and Friday, April 13, 2001, 8 a.m. until business for the day is completed.
The primary purpose of the work session is to revise the draft fishery management plan (FMP) for highly migratory species (HMS) per Council guidance stemming from the March 2001 Council meeting. The second draft of the FMP is scheduled for review at the June 2001 Council meeting.
Although nonemergency issues not contained in the HMSPDT meeting agenda may come before the HMSPDT for discussion, those issues may not be the subject of formal HMSPDT action during this meeting. HMSPDT action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the HMSPDT's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 326-6352 at least 5 days prior to the meeting date.
United States Patent and Trademark Office, Commerce.
Notice of request for public comments.
The United States Patent and Trademark Office (USPTO) is seeking comments to obtain the views of the public on the international effort to harmonize substantive requirements of patent laws, and the subsequent changes to United States law and practice. Comments may be offered on any aspect of this effort.
Comments will be accepted on a continuous basis until April 30, 2001. See discussion of “Text” in the
Persons wishing to offer written comments should address those comments to the Director of the United States Patent and Trademark Office, Box 4, United States Patent and Trademark Office, Washington, DC 20231, marked to the attention of Mr. Jon P. Santamauro.
Comments may also be submitted to Mr. Santamauro by facsimile transmission to (703) 305-8885 or by electronic mail through the internet at
Mr. Jon P. Santamauro by telephone at (703) 305-9300, by fax at (703) 305-8885 or by mail marked to his attention and addressed to Director of the United States Patent and Trademark Office, Box 4, Washington, DC 20231.
The United States has been involved in an effort to harmonize the substantive patent laws in the different countries of the world. The Standing Committee on the Law of Patents (SCP), meeting under the auspices of the World Intellectual Property Organization (WIPO), is developing treaty articles, rules and practice guidelines that attempt to harmonize the different substantive requirements associated with obtaining patent protection throughout the world.
Upon conclusion, these treaty articles, rules and practice guidelines will provide a truly harmonized system governing not only the substantive law of patents, but also the practice to implement that law. This will allow for uniform treatment of patent applications and patent grants and will reduce costs for patent owners in obtaining and preserving their rights for inventions in many countries of the world.
The next SCP meeting will take place at WIPO in May 2001. It is likely that an additional meeting will be held in November 2001 and regular meetings will continue thereafter.
The United States Patent and Trademark Office, leading the negotiations for the United States, is interested in obtaining comprehensive comments to assess support for the effort.
Written comments may be offered on any aspect of the draft treaty articles, rules or practice guidelines or expected implementation in the United States. The purpose of this notice is to identify and briefly outline important issues that have arisen and are likely to arise during the meetings of the SCP. A brief summary of some of these issues is provided below. Any comments provided with regard to the particular items identified below should be numbered in correspondence with the numbering of these items as shown. Comments offered on other aspects should be provided under the heading “Other Comments.”
(1) As to priority of invention, the United States currently adheres to a first-to-invent system. The remainder of the world uses a first-to-file rule in determining the right to a patent. Please comment as to which standard is the “best practice” for a harmonized, global patent system. It is noted that while the current draft of the treaty does not address this issue explicitly, it is likely that it will be raised in future meetings.
(2) As to what inventions may be considered patentable subject matter, the United States currently provides a test of whether the invention is within one of the statutory categories of 35 U.S.C. 101 and within the “useful arts” as expressed in the United States Constitution. The “useful arts” test requires that the claimed invention have a practical application providing a “useful, concrete and tangible result,”
(3) United States law currently provides for an enablement requirement, a written description requirement and a best mode requirement for patent disclosures. As to enablement, the standard of “undue experimentation” is applied. Regarding written description, United States law requires that the description convey to one of ordinary skill in the art that the applicant had possession of the invention as of the filing date of the application. The best mode requirement under United States law contains both subjective and objective components, with a subjective inquiry related to concealment on the part of the applicant. Standards vary among different patent systems as to disclosure requirements. For example, most other developed countries do not include a best mode requirement, yet many developing countries include or support a best mode requirement that is portrayed by some as a mechanism to compel technology and know-how transfer. The standard for evaluating compliance with such a requirement is an objective one; but, it is objective from the perspective of the examining authority.
(4) As to the contents of claims, some patent systems require the identification of “technical fields” to which the claimed invention relates. This apparently limits, to some degree, the categories of invention to which claims may be directed. There is no such requirement under current United States law.
(5) With regard to the issue of multiple inventions contained in a single patent application, most of the world uses a “unity of invention” standard, which is also contained in the Patent Cooperation Treaty (PCT). For national applications, the United States currently uses a restriction practice based on independence and patentable distinctness between claimed inventions.
(6) United States law currently provides a utility requirement for patentability in 35 U.S.C. 101. Utility of an invention must be specific, substantial and credible. Most other patent systems have a requirement for industrial applicability. Industrial applicability is generally considered to be a narrower standard than utility, as it requires that the invention be usable in any type of industry.
(7) Current discussions in the SCP have indicated a willingness to implement a global priority date as to the prior art effective date of patent applications that are published or granted as patents. United States law now limits the prior art effective date of United States patents and United States patent applications to their effective filing date in the United States. See In re Hilmer, 359 F.2d 859 (CCPA 1966) and 35 U.S.C. 102(e). Further, United States law currently limits the prior art date as to foreign patent publications to their publication date, although international application publications are available as of their filing date, if published in English. See 35 U.S.C. 102(e).
(8) United States practice allows patent applications to be considered prior art as to situations of both novelty and obviousness, provided the application is earlier filed and is published or granted as required by 35 U.S.C. 102(e). Some other patent systems apply this type of prior art only with respect to novelty, due to concerns of the effect of what may be considered “secret” prior art. Such a novelty-only system, however, may also allow for the granting of multiple patents directed to obvious variations of inventions.
(9) United States patent law provides a “grace period”. Disclosures by the inventor during the “grace period” do not have a patent defeating effect. Some other systems have an “absolute novelty” requirement such that any disclosures, including those by an inventor himself, made prior to the date the application is filed, are considered prior art.
(10) Recent discussions at the SCP have indicated a willingness on the part of many member states to eliminate any geographical restrictions that limit the definition of prior art. Currently, United States prior art requirements limit certain types of disclosures to acts within particular geographical limitations, such as the territory of the United States.
(11) United States law provides for loss of right provisions, as contained in 35 U.S.C. 102(c) and 102(d), that discourage delays in filing in the United States. Further, 35 U.S.C. 102(b) bars the grant of a patent when the invention was “in public use or on sale” more than one year prior to filing in the United States. Secret commercial use by the inventor is covered by the bar in order to prevent the preservation of patent rights when there has been successful commercial exploitation of an invention by its inventor beyond one year before filing. Most other patent systems do not have such provisions.
(12) Current United States novelty practice allows, in limited
(13) United States practice in determining obviousness under 35 U.S.C. 103 follows the practice set forth in Graham v. John Deere, 383 US 1 (1966), and its progeny. Obviousness determinations vary throughout different patent systems. For example, some provide for a problem-solution approach, requiring the identification of a technical problem to be solved by the invention. There is no such requirement under United States law.
(14) Current United States practice limits the filing of multiple dependent claims in 37 CFR 1.75(c) such that these claims must refer to the claims from which they depend only in the alternative. Further, a multiple dependent claim cannot depend from another multiple dependent claim. Some other patent offices allow for multiple dependent claims without these restrictions.
(15) There has also been discussion within the SCP regarding the manner in which claims should be interpreted as to validity. It is not clear at this time whether both pre-grant and post-grant interpretation issues will be addressed. However, we are interested in comments with regard to any claim interpretation issues at this time as these issues may appear in future SCP meetings. For example, the United States generally subscribes to a peripheral claiming approach to interpretation in which the language of the claims dominates, although United States law provides that when an element in a claim is expressed as a means or step for performing a function, the claim will be construed to cover the corresponding structure, material or acts described in the specification and equivalents thereof, see 35 U.S.C. 112, paragraph 6. Other systems take a different, centrally focused view of the claimed invention that allows, in certain circumstances, for broader interpretation of the scope of the claimed invention.
(16) With further regard to claim interpretation, the United States currently applies the “doctrine of equivalents” when appropriate in interpreting claims in post-grant infringement cases. The “doctrine of equivalents” has continued to evolve in the United States, especially in view of the recently decided case of
(17) United States practice now requires that a patent be applied for in the name or names of the inventor or inventors. However, some systems allow for direct filing by assignees. Although the draft treaty text is currently silent on this issue, it may be raised at future meetings.
There are preliminary drafts of both the treaty articles and regulations posted at the WIPO web site for the Standing Committee on the Law of Patents at
WIPO has expressed an intent to publish multiple drafts of these documents prior to the May 2001 meeting. The USPTO plans to comment on each draft as it is made available, taking into account the expressed views of the public. To that end, the USPTO encourages the submission of comments from the public on each draft as soon as possible after it is posted on the SCP web site mentioned above. To facilitate final preparations for the May 2001 meeting, the USPTO requests that all comments be submitted no later than April 30, 2001.
Requests for paper copies of the above texts may be made in writing to Mr. Jon P. Santamauro at the above address or by telephone at (703) 305-9300.
Committee for the Implementation of Textile Agreements (CITA)
Request for public comments concerning a request for a determination that 30 singles and 36 singles solution dyed staple spun viscose yarns cannot be supplied by the domestic industry in commercial quantities in a timely manner under the CBTPA.
Janet E. Heinzen, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
On March 12, 2001 the Chairman of CITA received a petition on behalf of Fabrictex alleging that 30 singles solution dyed staple spun viscose yarn and 36 singles solution dyed staple spun viscose yarn, for use in knit fabric, classified in subheading 5510.11.0000 of the Harmonized Tariff Schedule of the United States (HTSUS), cannot be supplied by the domestic industry in commercial quantities in a timely manner. It requests that the President proclaim that apparel articles of U.S. formed fabrics of such yarns be eligible for preferential treatment under the CBTPA. CITA hereby solicits public comments on this request, in particular with regard to whether 30 singles solution dyed staple spun viscose yarn and 36 singles solution dyed staple spun viscose yarn can be supplied by the domestic industry in commercial quantities in a timely manner. Comments must be submitted by April 3, 2001 to the Chairman, Committee for the Implementation of Textile Agreements, Room 3001, United States Department of Commerce, 14th and Constitution, NW., Washington, DC 20230.
Section 213(b)(2)(A)(v)(II) of the Caribbean Basin Economic Recovery Act, as added by Section 211(a) of the CBTPA; Section 6 of Executive Order No. 13191 of January 17, 2001.
On March 12, 2001 the Chairman of CITA received a petition on behalf of Fabrictex alleging that 30 singles solution dyed staple spun viscose yarn and 36 singles solution dyed staple spun viscose yarn, for use in knit fabric, classified in HTSUS subheading 5510.11.0000, cannot be supplied by the domestic industry in commercial quantities in a timely manner and requesting that the President proclaim quota- and duty-free treatment under the CBTPA for apparel articles that are cut and sewn in one or more CBTPA beneficiary countries from U.S. formed fabric from such yarn.
CITA is soliciting public comments regarding this request, particularly with respect to whether 30 singles solution dyed staple spun viscose yarn and 36 singles solution dyed staple spun viscose yarn, for use in knit fabric, classified in HTSUS subheading 5510.11.0000, can be supplied by the domestic industry in commercial quantities in a timely manner. Also relevant is whether other yarns that are supplied by the domestic industry in commercial quantities in a timely manner are substitutable for the yarn for purposes of the intended use. Comments must be received no later than April 3, 2001. Interested persons are invited to submit six copies of such comments or information to the Chairman, Committee for the Implementation of Textile Agreements, room 3100, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Washington, DC 20230.
If a comment alleges that 30 singles solution dyed staple spun viscose yarn and 36 singles solution dyed staple spun viscose yarn can be supplied by the domestic industry in commercial quantities in a timely manner, CITA will closely review any supporting documentation, such as a signed statement by a manufacturer of the yarn stating that it produces the yarn that is the subject of the request, including the quantities that can be supplied and the time necessary to fill an order, as well as any relevant information regarding past production.
CITA will protect any business confidential information that is marked business confidential from disclosure to the full extent permitted by law. CITA will make available to the public non-confidential versions of the request and non-confidential versions of any public comments received with respect to a request in room 3100 in the Herbert Hoover Building, 14th and Constitution Avenue, N.W., Washington, DC 20230. Persons submitting comments on a request are encouraged to include a non-confidential version and a non-confidential summary.
Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics)/Office of the Deputy Under Secretary of Defense (Industrial Affairs), Department of Defense.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Deputy Under Secretary of Defense (Industrial Affairs) announces the proposed extension of a currently approved collection and seeks public comment on the provisions thereof. 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 of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by May 18, 2001.
Interested parties should submit written comments and recommendations on the proposed information collection to: Office of the Deputy Under Secretary of Defense (Industrial Affairs), Attn: Mr. Gary Powell, 3330 Defense Pentagon, Room 3E1060, Washington, DC 20301-3330; E-mail comments submitted via the Internet should be addressed to: Gary.Powell@osd.mil.
To request further information on this proposed information collection, or to obtain a copy of the proposal and associated collection instrument, please write to the above address or call Mr. Gary Powell at (703) 602-4297.
This information is used so the authority to use a priority rating in ordering a needed item can be granted. This is done to assure timely availability of production or construction equipment to meet current Defense requirements in peacetime and in case of national emergency. Without this
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Coal Policy Committee of the National Coal Council Advisory Committee. Federal Advisory Committee Act (Public Law 92-463,86 Stat. 770) requires notice of these meetings be announced in the
Tuesday, April 3, 2001, 9 am to 1 pm.
The Sheraton Hotel, 301 East North Water Street, Chicago, IL.
Margie D. Biggerstaff, U.S. Department of Energy, Office of Fossil Energy, Washington, DC 20585. Phone: 202/586-3867.
Take notice that on March 12, 2001, AES Medina Valley Cogen, L.L.C., with its principal office located at 1823 Neal Lane, Mossville, Illinois 61552, filed with the Federal Energy Regulatory Commission, a supplement to its application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
Any person desiring to be heard concerning the amended application for exempt wholesale generator status should file a motion to intervene or comments with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). The Commission will limit its consideration of comments to those that concern the adequacy or accuracy of the amended application. All such motions and comments should be filed on or before March 26, 2001, and must be served on the applicant. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection or on the Internet at
The license for the Keuka Project No. 2852, located on the Waneta and Lamoka Lakes, Keuka Lake, and Mud Creek, in Steuben and Schuyler Counties, New York, will expire on March 1, 2003. On February 27, 2001, an application for a new non-power license was filed. The following is an approximate schedule and procedures that will be followed in processing the application:
Upon receipt of any additional information and the information filed in response to the public notice of the acceptance of the application, the Commission will evaluate the application in accordance with applicable statutory requirements and take appropriate action on the application.
Any questions concerning this notice should be directed to William Guey-Lee at (202) 219-2808, or email at:
Take notice that on March 1, 2001, as supplemented on March 9, 2001, Nornew Energy Supply, Inc. (Nornew), 19 Ivy Street, Jamestown, New York 14701 and Norse Pipeline, L.L.C. (Norse), 2500 Tanglewilde, Suite 250, Houston, Texas 77063, filed in Docket No. CP01-97-000 an abbreviated application pursuant to Section 7 of the Natural Gas Act (NGA) and the Commission's Rules and Regulations for a limited term certificate of public convenience and necessity authorizing Nornew and Norse to deliver gas to the City of Jamestown Board of Public Utilities (Jamestown BPU) to its repowered Samuel A. Carlson Generating Station (Carlson Generating Station), located in Jamestown, New York, and for Nornew to construct and operate a four-inch tap within the Carlson Generating Station's existing plant yard for a limited period beginning March 30, 2001 and ending once the Commission issues a permanent certificate of public convenience and necessity to Nornew, in order to provide natural gas to fuel the Carlson Generating Station to permit testing of the new gas-powered turbine and provide Jamestown BPU's customers with electric services, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may be viewed at
Norse and Nornew's request for a limited-term certificate is a result of the Commission's previous orders that ruled that Nornew's eight-inch, 7.63 mile pipeline that was constructed to serve the Jamestown BPU as well as some or all of Norse's facilities would be jurisdictional facilities requiring an NGA Section 7(c) certificate.
Any person desiring to be heard or to make any protest with reference to said application on or before March 21, 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 Oivind Risberg, President, Nornew Energy Supply, Inc., 2500 Tanglewilde, Suite 250, Houston, Texas 77603, telephone (713) 975-1900.
Comments, protests, and interventions 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
Under the procedure herein provided for, unless otherwise advised, it will be unnecessary for Norse and Nornew to appear or be represented at the hearing.
Take notice that the following filings have been made with the Commission:
Take notice that on March 7, 2001, Cinergy Services, Inc. (Provider), tendered for filing a Firm Point-to-Point Service Agreement under Cinergy's Open Access Transmission Service Tariff (OATT) entered into between Provider and Cinergy Services, Inc. (Customer) (AREF# 69550214).
This service agreement has a yearly firm transmission service with American Electric Power via the Gibson Unit Nos. 1-5 Generating Station.
Provider and Customer are requesting an effective date of April 1, 2001.
Take notice that on March 7, 2001, Cinergy Services, Inc. (Cinergy), tendered for filing a Market-Based Service Agreement under Cinergy's Market-Based Power Sales Standard Tariff-MB (the Tariff) entered into between Cinergy and The New Power Company (New Power).
Cinergy and New Power are requesting an effective date of February 1, 2001.
Take notice that on March 6, 2001, Cinergy Services, Inc. (Cinergy) and PG&E Power Services Company tendered for filing Notice a Cancellation of Service Agreement No. 113, under Cinergy Operating Companies, Resale of Transmission Rights and Ancillary Service Rights, FERC Electric Tariff Original Volume No. 8.
Cinergy requests an effective date of January 1, 2001.
Take notice that on March 7, 2001, Cinergy Services, Inc. (Provider), tendered for filing a Firm Point-to-Point Service Agreement under Cinergy's Open Access Transmission Service Tariff (OATT) entered into between Provider and Cinergy Services, Inc. (Customer) (AREF# 69550769).
This service agreement has a yearly firm transmission service with Southern Indiana Gas and Electric via the Gibson Unit Nos. 1-5 Generating Station.
Provider and Customer are requesting an effective date of April 1, 2001.
Take notice that on March 7, 2001, Cinergy Services, Inc. (Provider), tendered for filing a Firm Point-to-Point Service Agreement under Cinergy's Open Access Transmission Service Tariff (OATT) entered into between Provider and Cinergy Services, Inc. (Customer) (AREF# 69550215).
This service agreement has a yearly firm transmission service with American Electric Power via the Gibson Unit Nos. 1-5 Generating Station.
Provider and Customer are requesting an effective date of April 1, 2001.
Take notice that on March 7, 2001, Cinergy Services, Inc. (Provider), tendered for filing a Firm Point-to-Point Service Agreement under Cinergy's Open Access Transmission Service Tariff (OATT) entered into between Provider and Cinergy Services, Inc. (Customer) (AREF# 69550212).
This service agreement has a yearly firm transmission service with American Electric Power via the Gibson Unit Nos. 1—5 Generating Station.
Provider and Customer are requesting an effective date of April 1, 2001.
Take notice that on March 7, 2001, Cinergy Services, Inc. (Provider), tendered for filing a Firm Point-to-Point Service Agreement under Cinergy's Open Access Transmission Service Tariff (OATT) entered into between Provider and Cinergy Services, Inc. (Customer) (AREF# 69550213).
This service agreement has a yearly firm transmission service with American Electric Power via the Gibson Unit Nos. 1—5 Generating Station.
Provider and Customer are requesting an effective date of April 1, 2001.
Take notice that on March 7, 2001, PacifiCorp tendered for filing in accordance with 18 CFR 35 of the Commission's Rules and Regulations, Umbrella Service Agreements for Non-Firm and Short-Term Firm Transmission Service with Axia Energy, LP, OGE Energy Resources, Inc., and The Energy Authority, Inc. under PacifiCorp's FERC Electric Tariff, Second Revised Volume No. 11 (Tariff).
Copies of this filing were supplied to the Washington Utilities and Transportation Commission and the Public Utility Commission of Oregon.
Take notice that on March 7, 2001, Ameren Services Company (ASC), tendered for filing Service Agreements for Firm Point-to-Point Transmission Service Agreements and Non-Firm Point-to-Point Transmission Service Agreements between ASC and Ameren Energy, FirstEnergy Services Corp., Split Rock Energy LLC and Axia Energy, LP (the parties). ASC asserts that the purpose of the Agreements is to permit ASC to provide transmission service to the parties pursuant to Ameren's Open Access Transmission Tariff.
Take notice that on March 7, 2001, PJM Interconnection, L.L.C. (PJM), tendered for filing an amendment to the Reliability Assurance Agreement Among Load Serving Entities in the PJM Control Area (RAA).
PJM states that it served a copy of its filing on all parties to the RAA, and each of the state electric regulatory commissions within the PJM control area.
Take notice that on March 7, 2001, American Transmission Company LLC (ATCLLC), tendered for filing Short-Term Firm and Non-Firm Point-to-Point Transmission Service Agreements between ATCLLC and WPS Energy Services, Williams Energy Marketing & Trading Company, Upper Peninsula Power Company, and Axia Energy, LP, as well as Short-Term Firm Point-to-Point Transmission Service Agreements between ATCLLC and Southwestern Public Service Company and the Public Service Company of Colorado.
ATCLLC requests an effective date of February 6, 2001.
Take notice that on March 7, 2001, Southwest Power Pool, Inc. (SPP), tendered for filing executed service agreements for Firm Point-to-Point Transmission Service, Non-Firm Point-to-Point Transmission Service, and Loss Compensation Service with McCurtain Energy Associates, LLC and Sequoyah Energy Associates, LLC (collectively, Transmission Customers).
Copies of this filing have been served on the Transmission Customers.
Take notice that on March 7, 2001, Commonwealth Edison Company (ComEd), tendered for filing an executed Service Agreement for Network Integration Transmission Service (NSA) and associated Network Operating Agreement (NOA) between ComEd and the City of Batavia (Batavia) and an executed NSA and associated NOA between ComEd and the City of St. Charles (St. Charles). These executed NSAs and associated NOAs replace the unexecuted NSAs and NOAs between ComEd and the Cities of Batavia and St. Charles that were filed with the Commission in Docket No. ER01-546-000 and accepted for filing by the Commission on January 10, 2001.
ComEd requests an effective date of November 1, 2000 for the executed NSAs and associated NOAs to coincide with the effective date granted the unexecuted NSAs and NOAs that were previously filed with the Commission. Accordingly, ComEd requests waiver of the Commission's notice requirements.
Copies of the filing were served on Batavia and St. Charles.
Take notice that on March 5, 2001, the New England Power Pool (NEPOOL), tendered for filing (1) the Seventieth Agreement Amending New England Power Pool Agreement (the Seventieth Agreement), which provides for changes to the Restated NEPOOL Agreement, the Financial Assurance Policy for NEPOOL Participants (the Financial Assurance Policy) and the New England Power Pool Billing Policy (the Billing Policy) related to the proposed effectiveness of ISO New England Inc.'s (the ISO) Tariff for Capital Funding (the CFT) and the proposed third party funding of the ISO's capital expenditures and capitalized project costs, and (2) the Seventy-First Agreement Amending New England Power Pool Agreement (the Seventy-First Agreement), which amends the Financial Assurance Policy and the Billing Policy to create a Late Payment Account that is to be funded by late payment fees collected under the Financial Assurance Policy and that is to be applied to shortfalls resulting from payment defaults. NEPOOL requests that the Seventieth Agreement become effective simultaneously with the effectiveness of the CFT and the applications for the ISO's thirty party financing under Section 204 of the Federal Power Act.
A May 5, 2001 effective date is requested for the Seventy-First Agreement.
The NEPOOL Participants Committee states that copies of these materials were sent to the NEPOOL Participants and the New England state governors and regulatory commissions.
Take notice that on March 7, 2001, West Texas Utilities Company (WTU), tendered for filing an amended letter agreement in the above-captioned proceeding to correct an inadvertent error in the text of the letter agreement.
WTU continues to seek an effective date of March 1, 2001 for the letter agreement and, accordingly, requests waiver of the Commission's notice requirements.
Copies of this filing have been served on Rayburn, LG&E Power Marketing, Inc., Tex-La Electric Cooperative of Texas, Inc., and the Public Utility Commission of Texas.
Take notice that on March 7, 2001, Central Illinois Light Company (CILCO), 300 Liberty Street, Peoria, Illinois 61602, tendered for filing a substitute Notice of Cancellation of its FERC Rate Schedule No. 17, Wholesale Rate MW-6 with the Village of Riverton, Illinois, in compliance with the Commission order issued on February 5, 2001, in the above-referenced docket.
Copies of the filing were served on the Illinois Commerce Commission and the Village of Riverton.
Take notice that on March 6, 2001, Florida Power & Light Company (FPL), tendered for filing a revision to the January 3, 2001, in compliance with Order No. 614, FERC Stats. & Regs. 31,096 (2000).
Take notice that on March 7, 2001, Central Illinois Light Company (CILCO), 300 Liberty Street, Peoria, Illinois 61602, tendered for filing a Substitute Interconnection Agreement with the Village of Riverton.
Copies of the filing were served on the affected customer and the Illinois Commerce Commission.
Take notice that on March 7, 2001, Ameren Services Company (Ameren), tendered for filing a service agreement for network integration transmission service between Ameren and the City of Newton, Illinois, in compliance with the Commission's February 7, 2001 order in the above-referenced proceeding. The sole purpose of the compliance filing is to conform the service agreement to Order No. 614.
Ameren states that a copy of the filing was served on the Illinois Commerce Commission and on all parties to this proceeding.
Take notice that on March 7, 2001, Pacific Gas and Electric Company (PG&E), tendered for filing corrected tariff sheets to its Transmission Owner (TO) Tariff, FERC Electric Tariff Sixth revised Volume No. 5. These revisions correct the statement of certain rates and revenue requirements accepted for filing in the above-referenced docket.
Copies of this filing were served upon the Public Utilities Commission of the State of California and all interested parties.
Take notice that on March 6, 2001, Progress Energy, Inc. (Progress), on behalf of Carolina Power & Light Company (CP&L), Progress Genco Ventures, LLC, Progress Energy Ventures, Inc., Richmond County Power, LLC, Monroe Power Company (Monroe), Effingham County Power, LLC, and Rowan County Power, LLC (collectively, Applicants) tendered for filing an application requesting all necessary authorizations under section 203 of the Federal Power Act, 16 U.S.C. 824b (1996), to engage in a corporate reorganization. Applicants also seek authorization for the transfer of Monroe from CP&L to Progress.
Take notice that on March 9, 2001, Dominion Nuclear Holdings, Inc. (DNH) filed with the Federal Energy Regulatory Commission amendments to its application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations originally filed on February 2, 2001.
DNH is an indirect wholly-owned subsidiary of Dominion Energy, Inc., which is, in turn, a wholly-owned subsidiary of Dominion Resources, Inc. (Dominion), a Virginia corporation. Dominion is a registered holding company under the Public Utility Holding Company Act of 1935 (1935 Act).
DNH owns 5% of the voting securities of Dominion Nuclear Marketing III, L.L.C. (DMN III). An affiliate of DNM III, Dominion Nuclear Connecticut, Inc. (DNC), will acquire, own and operate the Millstone Nuclear Power Station located in Waterford, Connecticut (the Facility). The Facility consists of Millstone Unit 1, a 660-MW reactor that was retired from service in July 1998 and is being decommissioned; Millstone Unit 2, an operating 875-MW reactor; and 93.47% of the ownership interests in Millstone Unit 3, an operating 1,154-MW reactor. DNM III will purchase from DNC, and resell at wholesale, a portion of the power generated by the Facility.
Take notice that on March 7, 2001, FPL Energy Pecos Wind II, LP (the Applicant), with its principal office at 700 Universe Boulevard, Juno Beach, Florida 33408, filed with the Commission an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
Applicant states that it is a Delaware limited liability company engaged directly and exclusively in the business of developing and operating an approximately 80 MW wind-powered generating facility located in the County of Pecos, Texas. Electric energy produced by the facility will be sold at wholesale or at retail exclusively to foreign consumers.
Take notice that on March 7, 2001, Southern Company—Florida LLC (Applicant), 270 Peachtree Street, Atlanta, Georgia 30303, filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
Applicant is a Delaware limited liability company that intends to construct, operate, and own an undivided 65 percent interest in a 632 MW generation facility at a site located in Orange County, Florida. Applicant is engaged directly and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale.
E. Any person desiring to be heard or to protest such filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions or protests should be filed on or before the comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Copies of these filings are on file with the Commission and are available for public inspection. This filing may also be viewed on the Internet at
Comments, protests, and interventions 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
An environmental assessment (EA) is available for public review. The EA analyzes the environmental impacts of an application by Alcoa Power Generating Inc. (Alcoa) to grant a permit to KEJ Marketing Co., Inc. for the construction of four boat docks with a total of 48 boat slips and one boat ramp on Narrows reservoir, part of the Yadkin Hydroelectric Project. Alcoa proposes to grant a second permit to Heron Bay Homeowners Association for the use and operation of the above facilities. Alcoa is the licensee for the Yadkin Project which is on the Yadkin/Pee Dee River in Montgomery, Stanly, Davidson, Rowan, and Davie Counties, North Carolina. The Yadkin Project contains the following reservoirs: High Rock, Tuckertown, Narrows (Badin), and Falls. The project does not occupy any federal lands.
The EA was written by staff in the Office of Energy Projects, Federal Energy Regulatory Commission. Commission staff believe approving Alcoa's application would not constitute a major federal action significantly affecting the quality of the human environment. Copies of the EA can be viewed on the web at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments recommendation, interventions, and protests, may be electronically filed 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
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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Applicant estimates that the average annual generation would be 157.6 GWh and would be sold to local utility.
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Take notice that the following application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. Comments, protests and interventions 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
Please include the project number (P-11175-009) on any comments or motions filed.
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l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the following application has been filed with the Commission and is available for public inspection:
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b.
c.
d.
e.
f.
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All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests and interventions 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
Please include the project numbers (11175-010) on any comments or motions filed.
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k. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
m. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
n. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. An additional copy must be sent to the Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
o. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If any agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 18, 2001.
Send comments on this notice in triplicate to Mr. Mark Perez, Office of Water, Engineering and Analysis Division (4303), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue N.W., Washington DC 20460. In addition to submitting hard copies of the comments, the public may also send comments via e-mail to: perez.mark@epa.gov. Copies of the draft information collection request are available at
Mr. Mark Perez by telephone at (202) 260-2275, by facsimile at (202) 260-7185, or by e-mail at
EPA is considering an amendment to the Cluster Rules to allow direct and indirect discharging subpart B mills to demonstrate compliance with applicable chloroform limitations and standards under 40 CFR part 430 in lieu of monitoring at a fiber line required by 40 CFR 430.02 by certifying (1) that the fiber line is not using elemental chlorine or hypochlorite as bleaching agents and (2) that it also maintains certain process and operating conditions identified during the initial compliance
With approval of this ICR, mills subject to Subpart B may choose to participate by certifying that fiber lines are in compliance with effluent limitations and standards in lieu of minimum monitoring for chloroform required by 40 CFR 430.02. These mills must submit a report summarizing the results of the initial compliance demonstration period and subsequently submit periodic certification reports confirming that the participating fiber line continues to operate within the range of process and operating conditions documented during the initial compliance demonstration period.
EPA expects that the initial compliance demonstration and periodic certification reports will be used by NPDES and pretreatment control authorities to determine compliance with the Cluster Rules effluent limitations and standards for chloroform, establish permit and pretreatment control agreement conditions to include the certification option, and revise permit requirements based on data from certification reports and additional required information from the facility.
The additional reporting requirements as part of the certification option are necessary to confirm compliance with applicable chloroform limitations and standards in lieu of minimum monitoring required by 40 CFR 430.02. The burden associated with these additional reporting requirements is expected to be offset by a substantial savings in burden and costs that would otherwise be incurred by the minimum monitoring requirements.
In allowing Subpart B facilities to certify in lieu of minimum monitoring required by 40 CFR 430.02, EPA has struck a balance between: (1) the need to ensure that sufficient data are consistently available to permitting and pretreatment control authorities to provide an adequate basis to verify compliance with the effluent limitations and standards, and to participating mills to ensure the range of process and operating parameters documented during the initial compliance monitoring period captures variability of normal operations expected during the period of subsequent certification, and (2) the availability of a less burdensome option than the minimum monitoring requirements to provide sufficient data to permitting and pretreatment control authorities. The certification option also ensures sufficient process and operating data are available to the mill so that the mill operating personnel and management may quickly become aware of and react to releases that may be harmful to the environment.
EPA anticipates that some mills may elect to submit information and data required as part of the initial compliance demonstration with a claim of confidential business information (CBI). All data claimed as CBI will be maintained pursuant to 40 CFR part 2 when EPA is the permitting authority, and pursuant to regulations governing such information when States are the permitting authorities.
As required by OMB, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
EPA solicits comments on: (i) 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;
(ii) 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;
(iii) The quality, utility, and clarity of the information to be collected; and
(iv) 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 (
The following discussion describes the total annual burden and costs incurred for facilities that choose to certify their fiber lines in lieu of chloroform minimum monitoring and the associated overall reduction in annual burden and costs for reduced minimum monitoring requirements. EPA estimates 80 of the 84 (127 of the 123 fiber lines) subpart B mills will choose to certify. The reporting burden a report summarizing the results of the initial compliance demonstration period and subsequent submission of periodic certification reports. For the purposes of this ICR, EPA assumed that periodic certification reports are submitted concurrently with monthly Discharge Monitoring Reports (DMRs) to the NPDES permit authorities and Periodic Compliance Reports (PCRs) to the pretreatment control authority in order to express the full potential reporting burden and costs associated with the voluntary certification option. Facilities that choose to certify their fiber lines in lieu of minimum monitoring for chloroform will experience an overall reduction in burden and costs associated with reduced sampling, reporting, and analytical burden and costs required by minimum monitoring in 40 CFR 430.02. This reduction in cost is estimated to be $55,140 annually per mill. The total burden reduction associated with the certification option is summarized below:
EPA does not estimate any addition or reduction of recurring burden for NPDES and pretreatment control authorities or for the Agency for facilities wishing to certify their fiber lines in lieu of chloroform minimum monitoring.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 18, 2001.
Transportation and Regional Programs Division, Office of Transportation and Air Quality, Office of Air and Radiation, Mail Code 6406J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. A paper or electronic copy of the draft ICR may be obtained without charge by contacting the person listed below.
James W. Caldwell, (202) 564-9303, Fax: (202) 565-2085, caldwell.jim@epa.gov.
The EPA would like to solicit comments to:
(i) Evaluate 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 18, 2001.
Commenters should send an original and two copies of their comments referencing docket number UST 9-2 to: OUST Docket, c/o RCRA Docket Information Center, Office of Solid Waste (5305G), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Hand deliveries of comments should be made to OUST Docket c/o RCRA Docket Information Center, Crystal Gateway One, First Floor, 1235 Jefferson Davis Highway, Arlington, VA 22202. Comments may also be submitted electronically by sending electronic mail through the Internet to: rcra-docket@epamail.epa.gov. Comments in electronic form should also be identified by the docket number (UST 9-2). All electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption.
Copies of the draft ICR, supporting materials, and public comments are available for viewing in the RCRA Information Center (RIC), located at the Arlington, VA address listed above. The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. To review docket materials, it is recommended that the public make an appointment by calling (703) 603-9230. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies cost $0.15/page.
The official record for this action will be kept in paper form. Accordingly, EPA will transfer all comments received electronically into paper form and place them in the official record, which will also include all comments submitted directly in writing. The official record is the paper record maintained at the address in
EPA responses to comments, whether the comments are written or electronic, will be in a notice in the Federal Register or in a response to comments document placed in the official record for this action. EPA will not immediately reply to commenters electronically other than to seek clarification of electronic comments that may be garbled in transmission or during conversion to paper form, as discussed above.
Sammy Ng; Office of Underground Storage Tanks, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington DC 20460, (703) 603-7166, ng.sammy@epamail.epa.gov.
The data collected for new and existing UST system operations and financial requirements are used by the owners and operators and/or EPA or the implementing agency to monitor results of testing, inspections, and operations of UST systems, as well as to demonstrate compliance with regulations. EPA believes strongly that if the minimum requirements specified under the regulations are not met, neither the facilities nor EPA can ensure that UST systems are being managed in a manner protective of human health and the environment.
EPA uses State program applications to determine whether to approve a State program. Before granting approval, EPA must determine that programs will be no less stringent than the Federal program and contain adequate enforcement mechanisms.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.
EPA would like to solicit comments to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Burden Statement: This ICR is a comprehensive description of the total respondent burden for all information collection activities related to the UST program. EPA has revised its respondent
In modifying hourly respondent labor costs and technical and financial burden estimates under this ICR, EPA ensured that all respondent activities were covered by the ICR, including the development and gathering of information, not only information reporting and recordkeeping. EPA also conducted consultations with trade associations and contractors. Based on these consultations, EPA increased the labor burden associated with many activities associated with the use and management of USTs, adjusted the labor rates for facilities and contractors, and added capital and operation and maintenance (O&M) costs to various activities covered in the ICR. EPA believes that the revised burden reflects a more comprehensive and, therefore, more accurate portrait of the existing burden on the regulated community.
For State program approval procedures, this ICR estimates that the annual respondent burden will decrease slightly over the previous ICR. This decrease has resulted, in part, from the smaller number of States that are expected to apply for State Program Approval (SPA). (The current ICR estimated that four States would apply for program approval each year, while this ICR estimates that three States will submit State program materials each year). In addition, EPA revised its burden estimates based on several years of program experience and on input from State program officials. EPA believes that these changes resulted in a more accurate reflection of the burden placed on the State programs by the SPA process.
EPA estimates that the total annual respondent burden for all activities covered by this proposed ICR is 6.03 million hours. The total estimated annual financial burden is approximately $666.19 million ($302.62 million in labor costs, $57.13 million in capital/startup costs, and $306.43 million in O&M costs). The Agency estimates that the average total annual number of respondents will be 261,865 and the frequency of their response will depend upon the individual reporting and recordkeeping requirements.
Based on this analysis, the public reporting burden for UST facilities is estimated to average 12.37 hours per respondent per year. This estimate includes time for preparing and submitting notices, preparing and submitting demonstrations and applications, reporting releases, gathering information, and preparing and submitting reports. The recordkeeping burden for UST facilities is estimated to average 11.90 hours per respondent per year. This estimate includes time for gathering information and for developing and maintaining records.
For States applying for program approval, the reporting burden is estimated to average 255.30 hours per respondent per year. This estimate includes time for preparing and submitting an application and associated information. The recordkeeping burden is estimated to be 47.00 hours per respondent per year. This estimate includes time for maintaining application files.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 18, 2001.
Send comments on this notice in triplicate to Mr. Mark Perez, Office of Water, Engineering and Analysis Division (4303), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue N.W., Washington, DC 20460. In addition to submitting hard copies of the comments, the public may also send comments via e-mail to:
Mr. Mark Perez by telephone at (202) 260-2275, by facsimile at (202) 260-7185, or by e-mail at
With approval of this ICR, the permitting and pretreatment control authority must require applicable facilities subject to subparts B or E to monitor certain pollutants at specified frequencies. See 40 CFR 430.02. Under 40 CFR 122.41(e)(4), the discharger must then report these monitoring results to the permitting or pretreatment control authority. EPA expects that the permitting or pretreatment control authority will use the data from these forms to assess permittee compliance and, for mills enrolled in the Voluntary Advanced Technology Incentives Program (VATIP), to assess the mill's progress towards achieving the ultimate VATIP Tier limits beyond baseline Best Available Technology Economically Achievable (BAT).
It is the agency's intention for this ICR to cover the minimum monitoring requirements for direct discharging mills set forth in 40 CFR 430.02 until these requirements can be subsumed under the NPDES/Sewage Sludge Monitoring DMR ICR (OMB 2040-0004) and for indirect discharging mills until these requirements can be subsumed under the renewal of the National Pretreatment Program ICR (OMB 2040-0009). This ICR serves to clarify and augment the burden already identified in the National Pretreatment Program ICR incurred by indirect dischargers for compliance with minimum monitoring requirements.
These additional minimum monitoring requirements and corresponding additional reporting requirements are necessary to demonstrate compliance with the effluent limitations guidelines and standards promulgated at 40 CFR part 430, subparts B and E, particularly considering the degree of change that is expected to occur to pulping and bleaching processes as the Cluster Rules are implemented. For those mills that choose to enroll in the VATIP, EPA has established alternative monitoring requirements that ultimately reduce the monitoring burden when mills have achieved baseline BAT levels and have committed to reduce pollutant levels beyond baseline. See 40 CFR 430.02(c)-(e).
In establishing the minimum monitoring frequencies for the regulated pollutants, EPA has struck a balance between: (1) The cost of the monitoring regimen, and (2) the need to ensure that sufficient data are consistently available to permitting and pretreatment control authorities to provide an adequate basis to verify compliance with the effluent limitations and standards. Permitting and pretreatment control authorities need to have an adequate basis to verify compliance with the effluent limitations and standards, given the environmental significance of these pollutants that are highly toxic and bioaccumulative, and the generation of which is variable as available data clearly demonstrate. This monitoring regimen also ensures sufficient data are available to the mill so that the mill may quickly become aware of and react to releases that may be harmful to the environment. EPA does not anticipate that mills will be required to submit any confidential business information (CBI) or trade secrets as part of this ICR.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
EPA would like to solicit comments to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
The following paragraphs summarize the burden estimate imposed on respondents, including mills, local governments, States, and EPA. Supporting details can be found in section 6 and appendix A in the supporting statement for this ICR.
The following discussion describes the information collection requirements associated with the monitoring requirements promulgated at 40 CFR 430.02. These minimum monitoring requirements, in turn, would trigger additional reporting and recordkeeping obligations under 40 CFR part 122. These requirements apply to approximately 94 direct and indirect discharging papergrade kraft, soda, and sulfite mills. EPA estimated the total burden and costs associated with sampling, reporting and recordkeeping
Minimum monitoring requirements for non-Totally Chlorine Free (TCF) bleaching fiber lines are as follows:
EPA did not specify limitations for exclusively TCF facilities, see 40 CFR 430.24(a)(2), and thus did not specify minimum monitoring frequencies for those dischargers. Mills enrolled in the Voluntary Advanced Technology Incentives Program (VATIP) may be eligible for reduced minimum monitoring frequencies. See 40 CFR 430.02(c),(d), and (e).
The duration of the minimum monitoring requirements for non-Totally Chlorine Free (TCF) direct discharging facilities is five years, commencing on the date the applicable limitations or standards are first included in the discharger's NPDES permit.
Under current NPDES permitting regulations, permittees must report all monitoring results to the permitting authority using DMRs. Submission of such reports shall be at the frequency established by the NPDES permit authority not less than once per year. See 40 CFR 122.44(i)(2). For the purposes of this ICR, EPA assumed that DMRs are submitted monthly to the NPDES permit authority in order to express the full potential reporting and recordkeeping costs associated with the minimum monitoring requirements for subparts B and E mills. The permittee is required to retain ongoing monitoring records and reports for at least three years. See 40 CFR 122.41(j)(2).
The duration of the minimum monitoring requirements for non-Totally Chlorine Free (TCF) indirect discharging facilities is until April 17, 2006.
Under current general pretreatment regulations, permittees must report all monitoring results to the permitting authority using PCRs. Submission of such reports shall be at the frequency established by the pretreatment control authority not less than twice per year. See 40 CFR 122.44(i)(2) and section 430.12(b),(d),(e),(g). For the purposes of this ICR, EPA assumed that PCRs are submitted monthly to the pretreatment control authority in order to express the full potential reporting and recordkeeping costs associated with the minimum monitoring requirements for subpart B and E mills. The permittee is required to retain ongoing monitoring records and reports for at least three years. See 40 CFR 403.12(o)(2).
Based on the assumptions listed above, EPA estimates of the total annual respondent burden associated with these monitoring, reporting and recordkeeping requirements are summarized in Table 1.
On a per-facility basis, mills are anticipated to incur an average of 400 hours per year for sampling, reporting and recordkeeping for monthly DMRs or PCRs for an average of annual cost of $213,790, including capital and O&M costs.
NPDES-authorized States are estimated to incur 533 burden hours for processing and analyzing monitoring data captured in submitted DMRs and for follow-up activities associated with 20 percent of all DMRs submitted. This hourly burden translates to an estimated $18,010 annually for these activities.
Local pretreatment control authorities are estimated to incur 72 burden hours for processing and analyzing monitoring data captured in submitted PCRs and for follow-up activities associated with 20 percent of all PCRs submitted. This hourly burden translates to an estimated $2,220 annually for these activities. State pretreatment approval authorities are estimated to incur 24 burden hours per year for support of local follow-up activities at a cost of $810.
EPA burden is estimated to be 286 hours per year for support of State follow-up activities as well as acting as the NPDES permit authority for 10 mills where the States are not authorized NPDES authorities at a cost of $9,660. Table 2 summarizes the burden estimates for respondents (industry and State governments) and the agency.
Environmental Protection Agency (EPA).
Notice; extension of comment period.
The Environmental Protection Agency (EPA) is announcing an extension of time to comment on the Reimbursement to Local Governments for Emergency Responses to Hazardous Substance Releases Information Collection Request renewal.
Comments are due by April 30, 2001.
Send comments to Lisa Boynton, EPA, 5204G, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Materials relevant to this ICR may be inspected from 9:00 a.m. to 4:00 p.m., Monday through Friday, by visiting the Public Docket, located at 1235 Jefferson-Davis Highway (ground floor), Arlington, Virginia 22202.
Lisa Boynton, (703) 603-9052, e-mail: boynton.lisa@epa.gov.
The EPA announces an extension of time to submit comments on the Reimbursement to Local Governments for Emergency Responses to Hazardous Substance Releases Information Collection Request renewal from December 4, 2000 to April 30, 2001. The original notice for comment was published in the
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be tranferred to The George Washington University, Writing Center in accordance with 40 CFR 2.307(h)(3) and 2.308(i)(2). The George Washington University, Writing Center has been awarded a contract to perform work for OPP, and access to this information will enable The George Washington University, Writing Center to fulfill the obligations of the contract.
The George Washington University, Writing Center will be given access to this information on or before March 26, 2001.
By mail: Erik R. Johnson, FIFRA Security Officer, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-305-7248; e-mail address: johnson.erik@epa.gov.
This action applies to the public in general. As such, 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
You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “
Under contract number 01-01-0851/000, the contractor will perform the following:
Scientists must determine the risk of each pesticide to be registered or reregistered according to its use. Such risk assessments must be communicated in writings of “plain language” as mandated by former President Clinton in his memorandum, dated June 1, 1998.
The purpose of this service is to ensure or make certain that scientists can transition from scientific/technical writers into competent writers of information intended for the lay public. They will be trained to produce risk assessments that are structured logically, that avoid redundancy, and that use active instead of passive voice. Each risk assessment will be written to express the hazard and exposure as well as the estimate of potential risks (e.g., exposure and safety factors for infants and children, assessing pesticide exposure from food, assessing pesticide exposure from drinking water, assessing residential pesticide exposure and assessing occupational pesticide exposure.) The risk estimates are used to support risk management decisions and are the basis of risk communication.
The contractor shall work with a base of 20 EPA/OPP students individually and develop a needs assessment specific to each individual.
The contract involves no subcontractors.
The OPP has determined that the contract described in this document involves work that is being conducted in connection with FIFRA, in that pesticide chemicals will be the subject of certain evaluations to be made under this contract. These evaluations may be used in subsequent regulatory decisions under FIFRA.
Some of this information may be entitled to confidential treatment. The information has been submitted to EPA under sections 3, 4, 6, and 7 of FIFRA and under sections 408 and 409 of FFDCA.
In accordance with the requirements of 40 CFR 2.307(h)(3), the contract with The George Washington University, Writing Center prohibits use of the information for any purpose not specified in the contract; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each
Environmental protection, Business and industry, Government contracts, Government property, Security measures.
Environmental Protection Agency (EPA).
Notice.
The Office of Pesticide Programs (OPP), in coordination with the EPA Regions, is soliciting Tribal pesticide special projects for FY2001 funding. The total amount of funding available in FY2001 to be awarded to tribal governments and/or intertribal consortia for pesticide special projects is $200,000.
Project proposals, identified by docket control number OPP-00710, must be received by EPA Regional staff on or before May 15, 2001.
Applications may be submitted by mail or electronically. Please follow the detailed instructions for each method as provided in Unit I. of the
Regina Langton, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-7161; fax number: (703)308-1850; e-mail address: langton.regina@epa.gov.
-This action is directed to any federally-recognized tribal government or intertribal consortia eligible to receive Federal funds. Only one application may be submitted by each Tribal government or intertribal consortia.
-If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “
You may submit an application through the mail or electronically to the EPA Tribal Pesticide staff in your Region, as listed below. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-00710 in the subject line on the first page of your response.
1.
2.
ii.
Pesticide Water Quality proposals will not be considered under this solicitation, but may be submitted in accordance with the FY2001 Tribal Pesticide-Water Quality Project Solicitation. (See separate notice for Water Quality Project Solicitation published elsewhere in this issue of the
iii.
3.
a. A Special Project Proposal (maximum 6 pages of narrative), including:
A. Name of Project
B. Tribal Project Contact--
C. Project Description, including:
D. Need for Assistance
Provide the following information to the extent it relates to and is relevant to demonstrating the need for the specific project that is proposed:
E. Responsible Parties and Location
F. External Stakeholders
G. Resources
• Identify any personnel and/or contractors to be involved in the project, including their role and qualifications. Description should include any relevant training or experience the persons(s) has in writing a Sampling and Analysis Plan for a project, in conducting soil or water sampling, etc.--
• Identify existing resources/information that will be used in conducting project
• Identify any additional resources (including but not limited to training) that will be required for project
• Describe any EPA training or assistance that will be required for tribal personnel who will be working on the project. Such training may include the development of outreach material or a Sampling Analysis Plan, sampling, etc. --
H. Infrastructure and Coordination
• Identify coordination efforts required to conduct project, within or outside tribe
• Identify ways in which this project will affect tribal capacity
• Identify any assistance you may require in coordinating with other Federal, State or local agencies
b.
c.
d.
e.
ii.
4.
ii.
5.
i.
ii.
iii.
iv.
v.
vi.
vii.
Total possible points: 80
6.
The Office of Pesticide Programs (OPP), in coordination with the EPA Regions, is soliciting Tribal pesticide special projects for FY2001 funding. The total amount of funding available in FY2001 to be awarded to tribal governments and/or intertribal consortia for pesticide special projects is $200,000.
Sections 23(a) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) authorize EPA to enter into cooperative agreements with States and Indian Tribes to implement pesticide enforcement programs. Pursuant to the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act for fiscal year 1999, pesticide program implementation grants under section 23(a)(1) of FIFRA are available for “pesticide program development and implementation, including enforcement and compliance activities.” --
The award and administration of these grants will be governed by the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments set forth at 40 CFR part 31.
Under the Agency's current interpretation of the definition of a “rule ”, grant solicitations such as this which are competitively awarded on the basis of selection criteria, are considered rules for the purpose of the Congressional Review Act (CRA). The CRA, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental protection, Grants.
Environmental Protection Agency (EPA).
Notice.
The Office of Pesticide Programs (OPP), in coordination with the EPA Regions, is soliciting Tribal pesticide water quality projects for FY2001 funding. The total amount of funding available in FY2001 to be awarded to tribal governments and/or intertribal consortia for pesticide-water quality projects is $245,500.
Project proposals, identified by docket control number OPP-00711, must be received by EPA Regional staff on or before May 15, 2001.
Applications may be submitted by mail or electronically. Please follow the detailed instructions for each method as provided in Unit I. of the
Regina Langton, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-7161; fax number: (703) 308-1850; e-mail address: langton.regina@epa.gov.
This action is directed to any federally-recognized tribal government or intertribal consortia eligible to receive Federal funds. Only one water quality project application may be submitted by each Tribal government or intertribal consortia.
-If you have any questions regarding the applicability of this action to a
You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “
You may submit comments through the mail or electronically to the EPA Tribal Pesticide staff in your Region, as listed below. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-00711 in the subject line on the first page of your response.
1.
These funds may be used to help develop or advance the Tribe's program to address pesticides and water quality issues. Tribes may focus on their specific needs, as related to ground or surface water quality.
2.
ii.
-Special Project proposals will not be considered under this solicitation, but may be submitted in accordance with the FY2001 Tribal Special Projects Solicitation. (See Notice for Special Project Solicitation published elsewhere in this issue of the
iii.
3.
a. A water quality Project Proposal (maximum 6 pages of narrative), including:
A. Name of Project
B. Tribal Project Contact--
C. Project Description, including:
• Purpose and Goal(s) of the Project
• New or continuing project---
• Environmental or Health Issues Addressed-
• Approach and Methods (How the project will be carried out)-
• Expected/Desired Outcome-
• Indicators/Measures of Success-
• Resources and Time Frame Required for Project, including beginning and ending dates
Provide the following information to the extent it relates to and is relevant to demonstrating the need for the specific project that is proposed:
• A list of other sources of funding that you have sought for the project
• A description of similar, identical, or otherwise relevant work that you have undertaken, including sources of funding for that work
• A description of studies, surveys and other sources of information that document the environmental issues that will be addressed by the project.
E. Responsible Parties and Location
• Identify persons in charge of the project
• Identify major participants in the project
• Identify location(s) where project will be conducted
F. External Stakeholders
• Identify those affected by the project and how they will be affected
• Identify those who will participate in the project and their roles--
G. Resources
Identify any personnel and/or contractors to be involved in the project, including their role and qualifications. Description should include any relevant training or experience the persons(s) has in writing a Sampling and Analysis Plan for a project, in conducting soil or water sampling, etc.--
• Identify existing resources/information that will be used in conducting project
• Identify any additional resources (including but not limited to training) that will be required for project
• Describe any EPA training or assistance that will be required for tribal personnel who will be working on the project. Such training may include the development of outreach material or a Sampling Analysis Plan, sampling, etc. --
H. Infrastructure and Coordination
• Identify coordination efforts required to conduct project, within or outside tribe
• Identify ways in which this project will affect tribal capacity
• Identify any assistance you may require in coordinating with other Federal, State or local agencies
ii.
iii.
iv.
v.
4.
5.
ii.
6.
i.
ii.
iii.
iv.
v.
vi.
Total possible points: 75
7.
The Office of Pesticide Programs (OPP), in coordination with the EPA Regions, is soliciting Tribal pesticide water quality projects for FY2001 funding. The total amount of funding available in FY2001 to be awarded to tribal governments and/or intertribal consortia for pesticide water quality projects is $245,500.
Sections 23(a) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) authorize EPA to enter into cooperative agreements with States and Indian Tribes to implement pesticide enforcement programs. Pursuant to the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act for fiscal year 1999, pesticide program implementation grants under section 23(a)(1) of FIFRA are available for “pesticide program development and implementation, including enforcement and compliance activities.” --
The award and administration of these grants will be governed by the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments set forth at 40 CFR part 31.
Under the Agency's current interpretation of the definition of a “rule ”, grant solicitations such as this which are competitively awarded on the basis of selection criteria, are considered rules for the purpose of the Congressional Review Act (CRA). The CRA, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental protection, Grants, Water quality.
Environmental Protection Agency (EPA).
Correction, notice of public meeting.
Under the Federal Advisory Committee Act, Public Law 92463, EPA gives notice of a change to the meeting date of the National Advisory Council for Environmental Policy and Technology (NACEPT). A one-day meeting will be held on March 21, 2001.
The NACEPT is addressing several policy issues associated with EPA's human resource planning and the identification of emerging issues and trends facing the Agency. The NACEPT Council will: present its recommendations regarding EPA's Workforce Capacity efforts to the Agency, and provide an update on the identification of emerging issues and trends facing EPA over the next five to ten years.
The NACEPT will hold a 1-day public meeting on Wednesday, March 21, from 8:30 a.m. to 5:00 pm.
The NACEPT 1-day public meeting will be held at the Latham Hotel, 3000 M Street, NW, Washington, D.C. Materials or written comments may be transmitted to the Council through Gwendolyn Whitt, Designated Federal Officer/NACEPT, U.S. EPA, Office of Cooperative Environmental Management (1601A), 1200 Pennsylvania Avenue NW, Washington, D.C. 20460. The public will have an opportunity to make comments directly to the Council. Oral comments will be limited to a total time of five minutes. Requests to make oral comments must be submitted no later than March 19, 2001 to Gwendolyn Whitt, at the address above or faxed to (202) 501-0661. Anyone who has not reserved time in advance, may make comments during the public comment period as time allows.
Gwendolyn Whitt, Designated Federal Officer, NACEPT, at (202) 564-9741.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given of two meetings of the Ecological Processes and Effects Committee (EPEC) of the US EPA Science Advisory Board (SAB). The meetings are open to the public, however, seating is limited and available on a first come basis.
The Ecological Processes and Effects Committee will meet by conference call from 3:00 to 5:00 pm Eastern time on Tuesday, April 3, 2001. Members of the public wishing to call-in to the teleconference must make arrangements with Ms. Mary Winston by noon the Wednesday
Purpose of the Meeting—The purpose of the April 3, 2001 conference call meeting is to allow the Committee and the Agency to complete preparations for the face-to face meeting on April 20, 2001. The Agency will provide a briefing for the Committee on the Science to Achieve Results (STAR)
The Ecological Processes and Effects Committee will meet on Friday, April 20, 2001 at the Radisson Hotel Fisherman's Wharf, 250 Beach Street, San Francisco, CA 94133, telephone (416) 392-6700. The meeting will convene at 8:30 am Pacific time and will adjourn no later than 5 pm.
In 1995, a joint solicitation sponsored by EPA-STAR and the National Science Foundation (NSF) was advertised. Six hundred eighty-five proposals were received; 21 grants were funded by EPA and 15 by NSF. Because of the overwhelming response, the RFA was narrowed and has been the basis of the program ever since. In 1996, 11 grants were funded (8 EPA, 3 NSF); in 1997, 14 grants were funded (IO EPA, 4 NSF); in 1998, 15 grants were funded (9 EPA, 3 NSF, 3 USDA (new partner)); in 2000, 11 were funded (8 EPA, 1 USDA, 2 NSF).
The essence of the RFA is a Venn Diagram with intersecting circles of the ecological, physical and social sciences. Since 1996, only those proposals that integrate across all circles have been eligible for funding. In addition to integrating across disciplines, each proposal must demonstrate stakeholder involvement.
While the basic RFA has been stable over time, there have been shifts in programmatic emphasis. In 1997, the RFA focused on watershed restoration, in 1998 on urban systems, and in 2000 on projects relevant to the development of Total Maximum Daily Load (TMDL) assessments. From Fiscal Year 1995 to 2000, the STAR Water and Watersheds grants have totaled about $30 million from EPA, about $12 million from NSF, and about $4 by the U.S. Department of Agriculture.
(a) Are the STAR Water and Watershed grants, taken collectively, producing a body of research that will improve our practical understanding of: (a) “Natural and anthropogenic processes that govern the quantity, quality, and availability of water resources in natural and human-dominated systems,” and (b) “the structure, function, and dynamics of the terrestrial and aquatic ecosystems that comprise watersheds”
(b) Are the research findings likely to make a difference in environmental protection (i.e., are research results influencing Agency programs, directions, or regulations? influencing other organizations and other researchers?)
(c) Is the requirement that grant proposals integrate ecological, physical and social sciences producing a unique body of research? Would funding each of the science areas individually have the same outcome? Is the integrated approach so important that it is giving us new insights into decision-making at the watershed scale?
(d) As a result of the Water and Watersheds program, do we see any major advancements or breakthroughs in watershed science or interdisciplinary integration across the relevant disciplines?
(e) How is the program perceived within and outside the research community? What changes would you recommend to the program managers?
Any member of the public wishing further information concerning this meeting or wishing to submit brief oral comments (10 minutes or less) must contact Ms. Stephanie Sanzone, Designated Federal Officer, Science Advisory Board (1400A), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460; telephone (202) 564-4561; fax (202) 501-0582; or via e-mail at
It is the policy of the Science Advisory Board to accept written public comments of any length, and to accommodate oral public comments whenever possible. The Science Advisory Board expects that public statements presented at its meetings will not be repetitive of previously submitted oral or written statements.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application to register a pesticide product containing a new active ingredient not included in any previously registered product pursuant to the provisions of section 3(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Written comments, identified by the docket control number OPP-30509, must be received on or before May 3, 2001.
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
Mike Mendelsohn, Regulatory Action Leader, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-8715; e-mail address: mendelsohn.mike@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have 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-30509 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 identified 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 registration 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
EPA received an application as follows to register a pesticide product containing an active ingredient not included in any previously registered product pursuant to the provisions of section 3(c)(4) of FIFRA. Notice of receipt of the application does not imply a decision by the Agency on the application.
File symbol: 524-LEI. Applicant: Monsanto Company, 700 Chesterfield Parkway N., St. Louis, MO 63198. Product name: Event MON 863: Corn Rootworm Protected Corn (ZMIR13L). Type of product: Plant-pesticide. Active Ingredient:
Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
This notice announces Agency approval of applications to register the pesticide products Pylon and Chlorfenapyr Technical containing an active ingredient not included in any previously registered product pursuant to the provisions of section 3(c)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
By mail: Ann Sibold, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-6502; e-mail address: sibold.ann@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
To access a fact sheet which provides more detail on this registration, go to the Home Page for the Office of Pesticide Programs at
2.
In accordance with section 3(c)(2) of FIFRA, a copy of the approved label, the list of data references, the data and other scientific information used to support registration, except for material specifically protected by section 10 of FIFRA, are available for public inspection in the Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, Rm. 119, Crystal Mall #2, Arlington, VA (703) 305-5805. Requests for data must be made in accordance with the provisions of the Freedom of Information Act and must be addressed to the Freedom of Information Office (A-101), 1200 Pennsylvania Ave., NW., Washington, DC 20460. Such requests should: Identify the product name and registration number and specify the data or information desired.
A paper copy of the fact sheet, which provides more detail on this registration, may be obtained from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
The Agency approved the application after considering all required data on risks associated with the proposed use of chlorfenapyr (4-bromo-2-(chlorophenyl)-1-(ethoxymethyl)-5-(trifluoromethyl)-1
1. EPA issued a notice, published in the
The application was approved on January 19, 2001, as Pylon miticide-insecticide (EPA Registration Number 241-374) for use on pests of ornamentals grown in greenhouses.
2. EPA issued a notice, published in the
The application was approved on January 19, 2001, as Chlorfenapyr Technical (EPA Registration Number 241-366) containing chlorfenapyr at 96.2% for formulating into pesticide products used on ornamentals in greenhouses.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket control number PF-1002, must be received on or before April 18, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I.C. of the
By mail: Mary Waller, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-9354; e-mail address: waller.mary@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American
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 PF-1002 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 identified 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. Make sure to submit your comments by the deadline in this notice.
7. 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
EPA has received pesticide petitions as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that these petitions contain data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petitions. Additional data may be needed before EPA rules on the petitions.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petitions is printed below as required by section 408(d)(3) of the FFDCA. The summary of the petitions was prepared by the petitioner and represents the view of the petitioner. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.
EPA has received pesticide petitions (PP 9E6045, 9E6046, 9E6048, 0E6103, 0E6117, 0E6153, 0E6158, and 0E6212) from the Interregional Research Project Number 4 (IR-4), State Agricultural Experimentation, Rutgers University, 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. EPA has also received pesticide petitions (7F4895, 0F6086, and 0F6091) from Bayer Corporation, 8400 Hawthorn Road, P.O. Box 4913, Kansas City, MO 64120-0013. The petitions propose, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for residues of tebuconazole, alpha-[2-(4-chlorophenyl)ethyl]alpha-(1,1-dimethylethyl)-1
1. PP 9E6045. Proposes the establishment of tolerances in or on turnip, tops at 8.0 parts per million (ppm) and turnip, roots at 0.4 ppm.
2. PP 9E6046. Proposes the establishment of a tolerance in or on hop at 5.0 ppm.
3. PP 9E6048. Proposes the establishment of a tolerance in or on vegetable, cucurbit, group at 0.1 ppm.
4. PP 0E6103. Proposes the establishment of a tolerance in or on mango (postharvest) at 0.2 ppm.
5. PP 0E6117. Proposes the establishment of a tolerance in or on plum (postharvest) at 1.0 ppm.
6. PP 0E6153. Proposes the establishment of tolerances in or on sunflower, seed at 0.05 ppm, sunflower, refined oil at 0.2 ppm, and sunflower, meal at 0.2 ppm.
7. PP 0E6158. Proposes the establishment of a tolerance in or on okra at 1.0 ppm.
8. PP 0E6212. Proposes the establishment of a tolerance in or on lychee at 1.5 ppm.
9. PP 7F4895. Proposes the establishment of tolerances for nut, tree, group at 0.05 ppm, almond, hulls at 5.0 ppm, pistachio at 0.05, wheat, forage at 3.0 ppm, wheat, hay at 6.0 ppm, and wheat, straw at 1.4 ppm.
10. PP 0F6086. Proposes the establishment of tolerances in or on bean, succulent at 0.1 ppm, bean, seed at 0.1 ppm, cotton, undelinted seed at 2.0 ppm, and cotton, gin byproducts at 16.0 ppm.
11. PP 0F6091. Proposes the establishment of tolerances in or on asparagus at 0.01 ppm, coffee, green bean at 0.1 ppm, coffee, roasted bean at 0.2 ppm, garlic, bulb at 0.1 ppm, and onion, dry bulb at 0.1 ppm.
EPA has determined that the petitions contain data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petitions. Additional data may be needed before EPA rules on the petitions.
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A cotton processing study was conducted with Folicur 3.6 F at 5 times the maximum season proposed label use rate. Processing was performed using procedures which simulate commercial processing practices. The undelinted seed, meal, hull, and refined oil were evaluated for the residue of tebuconazole by gas chromatography. The LOQ in undelinted seed was 0.02 ppm. The LOQ in the processed products of meal, hull and refined oil was 0.04 ppm. Residue of tebuconazole in cotton undelinted seed was 0.04 ppm, while residue in the processed commodities were
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A processing study was conducted on dried green coffee beans from a field trial in Guatemala. Tebuconazole residues in dried green coffee beans, roasted coffee beans, and instant coffee were quantitated by gas chromatography. The LOQ for tebuconazole was 0.01 in green coffee beans, 0.8 ppm in roasted coffee beans, and 0.04 ppm in instant coffee. The highest average residue found in this study was 0.04 ppm in dried green coffee beans, 0.08 ppm in roasted coffee and 0.03 ppm in instant coffee. The data show that there is no concentration of residues as a result of processing into instant coffee and a slight concentration from dry beans (0.04 ppm) to roasted beans (0.08) ppm. A 0.2 ppm tolerance is being proposed for roasted coffee beans.
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ii. In a developmental toxicity study, pregnant female rabbits were gavaged with technical tebuconazole at levels of 0, 10, 30, or 100 mg/kg/day between days 6 and 18 of gestation. The maternal NOAEL was 30 mg/kg/day and the maternal LOAEL was 100 mg/kg/day
iii. In a developmental toxicity study, pregnant female mice were gavaged with technical tebuconazole at levels of 0, 10, 30, or 100 mg/kg/day between days 6 and 15 of gestation (part 1 of study) or at levels of 0, 10, 20, 30, or 100 mg/kg/day between days 6 and 15 of gestation (part 2 of study). The maternal NOAEL was 10 mg/kg/day and the maternal LOAEL was 20 mg/kg/day. Maternal toxicity (hepatocellular vacuolation and elevations in AST, ALP and alkaline phosphatase) occurred at all dose levels but was minimal at 10 mg/kg/day. Reduction in mean corpuscular volume in parallel with reduced hematocrit occurred at doses greater than or equal to 20 mg/kg/day. The liver was the target organ. The developmental NOAEL was 10 mg/kg/day and the developmental LOAEL was 30 mg/kg/day based on an increase in the number of runts.
iv. In a developmental toxicity study, pregnant female mice were administered dermal doses of technical tebuconazole applied at levels of 0, 100, 300, or 1,000 mg/kg/day between days 6 and 15 of gestation. Equivocal maternal toxicity was observed 1,000 mg/kg/day. The maternal NOAEL was nearly equal to 1,000 mg/kg/day. The developmental NOAEL was 1,000 mg/kg/day.
v. In a 2-generation reproduction study, rats were fed technical tebuconazole at levels of 0, 100, 300, or 1,000 ppm, (0, 5, 15, or 50 mg/kg/day, males and females). The parental maternal NOAEL was 15 mg/kg/day and the parental LOAEL was 50 mg/kg/day based on depressed body weights, increased spleen hemosiderosis and decreased liver and kidney weights. The reproductive NOAEL was 15 mg/kg/day and the reproductive LOAEL of 50 mg/kg/day based on decreased pup body weights from birth through 3-4 weeks.
vi. In a developmental neurotoxicity study, pregnant female rats were fed a nominal concentration of 0, 100, 300 or 1,000 ppm of tebuconazole in the diet. The NOAEL for maternal toxicity in this study was 300 ppm (based on mortality, body weight and feed consumption reductions, and prolonged gestation in the 1,000 ppm dosage group). The 1,000 ppm dose level was considered to be excessively toxic for the F
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ii. In a 90-day oral feeding study, Beagle dogs were administered technical tebuconazole at levels of 0, 200, 1,000, or 5,000 ppm (0, 74, 368, or 1,749 mg/kg/day for males or 0, 73, 352, or 1,725 mg/kg/day for females). In females, the NOAEL was 73 mg/kg/day and the LOAEL was 352 mg/kg/day based on decreased body weight and decreased body weight gain, decreased food consumption and increased liver
iii. In a 21-day dermal toxicity study, rabbits were exposed dermally to technical tebuconazole 5 days a week at doses of 0, 50, 250, or 1,000 mg/kg/day. No significant systemic effects were seen. The systemic NOAEL
iv. In a 21-day inhalation toxicity study, rats were exposed to technical tebuconazole (15 exposures - 6 hours/day for 3 weeks) at airborne concentrations of 0, 0.0012, 0.0106, or 0.1558 mg/L/day. The NOAEL was 0.0106 mg/L/day and the LOAEL was 0.1558 mg/L/day based on piloerection and induction of liver
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ii. In a 1-year chronic feeding study, Beagle dogs were administered technical tebuconazole at levels of 0, 40, 200, or 1,000 (weeks 1-39) and 2,000 ppm (weeks 40-52) (0, 1, 5 or 25/50 mg/kg/day for males and females). The NOAEL was 1 mg/kg/day and the LOAEL was 5 mg/kg/day based on ocular lesions (lenticular and corneal opacity) and hepatic toxicity (changes in the appearance of the liver and increased siderosis).
iii. In a 1-year chronic feeding study, Beagle dogs were administered technical tebuconazole at levels of 0, 100, or 150 ppm (0, 3.0, or 4.4 mg/kg/day for males or 0, 3.0 or 4.5 mg/kg/day for females). The NOAEL was 3.0 mg/kg/day and the LOAEL was 4.4 mg/kg/day based on adrenal affects in both sexes. In males there was hypertrophy of adrenal zona fasciculata cells amounting to 4/4 at 150 ppm and to 0/4 at 100 ppm and in controls. Other adrenal findings in males included fatty changes in the zona glomerulosa (3/4) and lipid hyperplasia in the cortex (2/4) at 150 ppm vs. (1/4) for both effects at 100 ppm and control dogs. In females there was hypertrophy of zona fasciculata cells of the adrenal amounting to 4/4 at 150 ppm and to 0/4 at 100 ppm and 1/4 in controls. Fatty changes in the zona glomerulosa of the female adrenal amounted to 2/4 at 150 ppm and to 1/4 at 100 ppm and in controls.
iv. In a 91-week carcinogenicity study, mice were administered technical tebuconazole at levels of 0, 500, or 1,500 ppm (0, 84.9, or 279 mg/kg/day for males or 0, 103.1, or 365.5 mg/kg/day for females). Neoplastic histopathology
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Novigen Sciences, Inc.'s Dietary Exposure Evaluation Model (DEEM), which is licensed to Bayer, was used to estimate the chronic and acute dietary exposure. This software used the food consumption data for the 1994-1996 USDA Continuing Surveys of Food Intake by Individuals (CSFII 1994-1996). To assess acute dietary risk, EPA used an endpoint of 10 mg/kg/day NOAEL from the developmental toxicity study in mice (64 FR 1132, January 8, 1999) (FRL-6050-5). This endpoint was based on an increased incidence of runts observed at the LOAEL of 30 mg/kg/day. The population adjusted dose for acute dietary (aPAD) was determined by dividing the NOAEL by an uncertainty factor of 1,000 (10X for interspecies differences, 10X for intraspecies variability and 10X for FQPA safety factor): aPAD = 10/(1,000) = 0.01 mg/kg/day. To assess the chronic dietary risk, EPA (64 FR 1132) used the NOAEL of 3.0 mg/kg/day from a 1-year dog feeding study. This endpoint was due to histopathological changes in the adrenal gland. The population adjusted dose for chronic dietary cPAD was determined by dividing the NOAEL by an uncertainty factor of 100 (10X for interspecies differences and 10X for intraspecies variability): cPAD = 3/100 = 0.03 mg/kg bw/day. This cPAD applies to all population subgroups.
Results from the acute and chronic dietary exposure analyses described below demonstrate a reasonable certainty that no harm to the overall U.S. population or any population subgroup will result from the use of tebuconazole on currently registered and pending uses.
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Tebuconazole is a member of the triazole class of systemic fungicides which included other triazoles such as bitertanol, cyproconazole, diclobutrazole, difenoconazole, diniconazole, fenbuconazole, flusilazole, hexaconazole, myclobutanil, penconazole, propiconazole, tetraconazole, triadimefon, and triadimenol. At this time, the EPA has not made a determination that tebuconazole and other substances that may have a common mechanism of toxicity would have cumulative effects. Therefore, for these tolerance petitions, it is assumed that tebuconazole does not have a common mechanism of toxicity with other substances and only the potential risks of tebuconazole in its aggregate exposure are considered.
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Using the conservative exposure assumptions described above under Unit C. Aggregate Exposure, it can be concluded that the aggregate dietary exposure estimates from the proposed uses of tebuconazole would not exceed 70.20% of the aPAD and 0.3% of the cPAD for the most sensitive population subgroup children (1-6 years). Since EPA found no concern from drinking water or non-dietary exposure (64 FR 1132), it can be concluded with reasonable certainty that the potential risks to infants and children would not exceed the Agency's level of concern.
There are no established Codex or Canadian Maximum Residue Levels (MRLs) for tebuconazole. A Mexican MRL has been established on barley for tebuconazole.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of certain pesticide chemicals in or on various food commodities.
Comments, identified by docket control number PF-000, must be received on or before April 18, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I.C. of the
By mail: Joseph Tavano, Registration Support Branch, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-6411; e-mail address: tavano.joseph@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
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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 PF-000 in the subject line on the first page of your response.
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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 identified 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. Make sure to submit your comments by the deadline in this notice.
7. 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
EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Comestic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Petitioner summaries of the pesticide petitions are printed below as required by section 408(d)(3) of the Federal Food, Drug, and Cosmetic Act (FFDCA). The summaries of the petitions were prepared by the petitioner and represent the view of the petitioner. EPA is publishing the petition summaries verbatim without editing them in any way. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.
EPA has received a pesticide petition (0F6176) from Rohm and Haas Company, 100 Independence Mall West, Philadelphia, PA 19106-02399 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of tebufenozide benzoic acid, 3,5-dimethyl-,1-(1,1-dimethylethyl)-2-(4-4-ethylbenzoyl) hydrazide in or on the raw agricultural commodity citrus crop group (Crop Group 10) at 0.8 parts per million (ppm) and in or on citrus oil at 15 parts per million (ppm). EPA has determined that the petition contains data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.
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In a 21-day dermal toxicity study, Crl: CD rats (6/sex/dose) received repeated dermal administration of either the technical 96.1% product RH-75,992 at 1,000 mg/kg/day Limit-Dose or the formulation 23.1% a.i. product RH-755,992 2F at 0, 62.5, 250, or 1,000 mg/kg/day, 6 hours/day, 5 days/week for 21 days. Under conditions of this study, RH-75,992 Technical or RH-75,992 2F demonstrated no systemic toxicity or dermal irritation at the highest dose tested 1,000 mg/kg/ during the 21-day study. Based on these results, the NOAEL for systemic toxicity and dermal irritation in both sexes is 1,000 mg/kg/day highest dose tested (HDT). A lowest-observable-effect level (LOAEL) for systemic toxicity and dermal irritation was not established.
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In a prenatal developmental toxicity study conducted in New Zealand white rabbits 20/group Tebufenozide was administered in 5 ml/kg of aqueous methyl cellulose at gavage doses of 50, 250, or 1,000 mg/kg/day on gestation days 7-19. No evidence of maternal or developmental toxicity was observed; the maternal and developmental toxicity NOAEL was 1,000 mg/kg/day.
In a 1993 two-generation reproduction study in Sprague-Dawley rats tebufenozide was administered at dietary concentrations of 0, 10, 150, or 1,000 ppm (0, 0.8, 11.5, or 154.8 mg/kg/day for males and 0, 0.9, 12.8, or 171.1 mg/kg/day for females). The parental systemic NOAEL was 10 ppm (0.8/0.9 mg/kg/day for males and females, respectively) and the LOAEL was 150 ppm (11.5/12.8 mg/kg/day for males and females, respectively) based on decreased body weight, body weight gain, and food consumption in males, and increased incidence and/or severity of splenic pigmentation. In addition, there was an increased incidence and severity of extra-medullary hematopoiesis at 2,000 ppm. The reproductive NOAEL was 150 ppm. (11.5/12.8 mg/kg/day for males and females, respectively) and the LOAEL was 2,000 ppm (154.8/171.1 mg/kg/day for males and females, respectively) based on an increase in the number of pregnant females with increased gestation duration and dystocia. Effects in the offspring consisted of decreased number of pups per litter on postnatal days 0 and/or 4 at 2,000 ppm (154.8/171.1 mg/kg/day for males and females, respectively) with a NOAEL of 150 ppm (11.5/12.8 mg/kg/day for males and females, respectively).
In a 1995 two-generation reproduction study in rats tebufenozide was administered at dietary concentrations of 0, 25, 200, or 2,000 ppm (0, 1.6, 12.6, or 126.0 mg/kg/day for males and 0, 1.8, 14.6, or 143.2 mg/kg/day for females). For parental systemic toxicity, the NOAEL was 25 ppm (1.6/1.8 mg/kg/day in males and females, respectively), and the LOAEL was 200 ppm (12.6/14.6 mg/kg/day in males and females), based on histopathological findings (congestion and extra-medullary hematopoiesis) in the spleen. Additionally, at 2,000 ppm (126.0/143.2 mg/kg/day in M/F), treatment-related findings included reduced parental body weight gain and increased incidence of hemosiderin-laden cells in the spleen. Columnar changes in the vaginal squamous epithelium and reduced uterine and ovarian weights were also observed at
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A 2-year rat carcinogenicity with no carcinogenicity observed at dosage levels up to and including 2,000 ppm (97 mg/kg/day and 125 mg/kg/day for males and females, respectively).
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The absorption and metabolism of tebufenozide were studied in a group of male and female bile-duct cannulated rats. Over a 72 hour period, biliary excretion accounted for 30%[M] to 34%[F] of the administered dose while urinary excretion accounted for about 5% of the administered dose and the carcass accounted for
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No major qualitative differences in biliary metabolites were observed between sexes. The metabolic profile in the bile was similar to the metabolic profile in the feces and urine.
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The Novigen DEEM system (version 7.075) was used for this chronic dietary exposure analysis. The analysis evaluates individual food consumption as reported by respondents in the USDA Continuing Surveys of Food Intake by Individuals conducted in 1989 through 1992. Summaries of the exposures and their representations as percentages of the cPAD for the general population and subgroups of interest are presented in Table 2 below. The subgroups listed below are (1) the U.S. Population (48 states); (2) those for infants and children; and (3) the other subgroups (adult) for which the percentage of the RfD occupied is greater than that occupied by the subgroup U.S. Population (48 states). cPAD% is defined as Exposure X 100% divided by the cPAD. The results are summarized below in Table 2:
This chronic dietary (food only) risk assessment should be viewed as conservative. Further refinement using anticipated residue values and additional PCT information would result in a lower estimate of chronic dietary exposure from food.
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For purposes of chronic risk assessment, the estimated maximum concentration for tebufenozide in surface and ground waters (16.5 ppb) was compared to the back-calculated human health DWLOCs for the chronic (non-cancer) endpoint. These DWLOCs for various population categories are summarized below in Table 3:
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Cumulative exposure to substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity”. EPA does not have, at this time, available data to determine whether tebufenozide has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, tebufenozide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance petition, Rohm and Haas has not assumed that tebufenozide has a common mechanism of toxicity with other substances.
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FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for pre- and post-natal toxicity and the completeness of the database unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. EPA believes that reliable data support using the standard uncertainty factor (usually 100 for combined inter- and intra-species variability) and not the additional tenfold MOE/uncertainty factor when EPA has a complete data base under existing guidelines and when the severity of the effect in infants or children or the potency or unusual toxic properties of a compound do not raise concerns regarding the adequacy of the standard MOE/safety factor.
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Codex MRLs have been established for residues of tebufenozide in/on pome fruit (1.0 ppm), husked rice (0.1 ppm) and walnuts (0.05 ppm). Tebufenozide is registered in Canada, and a tolerance for residues in/on apples is established at 1.0 ppm. EPA has set the pome fruit tolerance at 1.5 ppm based on U.S. field residue trials.
EPA has received a pesticide petition (0F6201) from Rohm and Haas Company, 100 Independence Mall West, Philadelphia, PA, 19106-2399 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing time-limited tolerances for indirect or inadvertent residues of methoxyfenozide [benzoic acid, 3-methoxy-2-methyl-, 2-(3,5-dimethylbenzoyl)-2-(1,1-dimethylethyl) hydrazide] and its metabolites RH-117,236 (free phenol of methoxyfenozide; 3,5-dimethylbenzoic
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The qualitative nature of the residue in animals is adequately understood based on acceptable studies conducted on goats and laying hens. EPA has determined that the residue of concern in milk and ruminant tissues (other than liver and kidney) is the parent compound, methoxyfenozide. The residue of concern in ruminant liver and kidney is the parent compound, methoxyfenozide, and its glucuronide metabolite designated as RH-141,518 (also referred to as RH-1518).
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The results of the field trials indicate that residues of methoxyfenozide will not exceed the proposed tolerances of 0.05 ppm in root and tuber vegetables, 0.1 ppm in the leaves of root and tuber vegetables, 0.1 ppm in bulb vegetables, 0.2 ppm in leafy and cole crop vegetables. No residues were found in fruiting vegetables or cucurbit vegetables. Residues of methoxyfenozide and its metabolites RH-117236, RH-151055 and RH-152072 in soybean seeds did not exceed 0.033 ppm and no residues were detected in wheat grain. Residues of methoxyfenozide and its metabolites concentrated in the dry matrices soybean hay and wheat straw at 7.1 ppm and 6.4 ppm, respectively. The results of the field trials indicate that residues of methoxyfenozide and its metabolites will not exceed the proposed tolerances of 7 ppm in forage, fodder and straw of cereal grains and grass forage, fodder and hay. Residues of methoxyfenozide and its metabolites will not exceed the proposed tolerances of 8 ppm in foliage of legume vegetables, forage, fodder, straw and hay of non-animal feeds, or in herbs and spices. Additional rotation crop trials are in progress to support these time-limited tolerances.
Residues in meat, milk, poultry, and eggs. The maximum theoretical dietary burden of methoxyfenozide for dairy or beef cattle associated with this petition is estimated to be less than 20 ppm. The established tolerances of 0.02 ppm in the milk and meat of cattle, goats, hogs, horses, and sheep, 0.1 ppm in the fat of cattle, goats, hogs, horses, and sheep, 0.1 ppm in liver and 0.02 ppm in meat byproduct (except liver) of cattle, goat, hogs, horses, and sheep were established based on a dairy cow feeding level of 45 ppm. These tolerances are adequate for the proposed rotation crop tolerances.
The maximum theoretical dietary burden of methoxyfenozide for poultry animals associated with this petition (from cotton meal and soybean seed) would contribute a maximum theoretical dietary burden for methoxyfenozide at 0.41 ppm. A poultry metabolism study was conducted at feeding levels of 58 ppm, 60 ppm, and 68 ppm which are equivalent to 145x, 150x, and 170x, respectively, the maximum theoretical dietary burden for poultry. Assuming a linear relationship between dose and residues, the expected residues in eggs and poultry tissues would be below the LOD for methods used to measure residues in poultry products. Rohm and Haas concludes that there is no reasonable expectation of finite residues in eggs and poultry tissues and that a poultry feeding study is not required at this time.
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In an acute neurotoxicity study in rats, statistically significant decreased hind limb grip strength was observed in male rats at 3 hours (approximate time of peak effect) following a single oral dose of 2,000 mg/kg (limit dose) of methoxyfenozide. Decreased hindlimb grip strength was also observed in the male rats at 7 and 14 days, but was not statistically significant. No other systemic or neurotoxic effects were observed in the male rats or in the female rats at any time in this study. Since this marginal effect occurred only in one sex, was statistically significant at only one time, was observed only at the high dose (limit dose) and no other
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In neither the developmental toxicity study in rats nor in the developmental toxicity study in rabbits was there any evidence for increased susceptibility of fetuses to in utero exposure to methoxyfenozide. In these studies, methoxyfenozide was determined not to be a developmental toxicant.
In a 2-generation (1 litter/generation) reproduction study in rats, treatment-related parental toxicity was observed only at 20,000 ppm, the highest dose tested (HDT). At this dose, increased liver weights were observed in males and females of both generations and midzonal to periportal hepatocellular hypertrophy was observed in the livers of all males and females of both generations. The LOAEL for parental toxicity was 20,000 ppm (1,552/1,821 mg/kg/day for males/females,respectively) and the NOAEL was 2,000 ppm (153/181 mg/kg/day for males/females, respectively). There were no treatment-related effects on reproductive parameters for adult (parent) animals. The NOAEL for reproductive toxicity was 20,000 ppm. Since no treatment-related effects were observed in the pups, the NOAEL for neonatal toxicity was also, 20,000 ppm. The NOAEL for parental toxicity in this reproduction study is higher than the NOAEL for the 2-year combined chronic feeding/carcinogenicity study in rats because many of the toxic effects observed in the 2-year study at the LOAEL (hematological changes, liver toxicity, histopathological changes in the thyroid gland and increased adrenal weights) were not examined in the reproduction study.
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In a 3-month feeding study in rats, the predominant treatment-related effects were increased liver weights in males and females and periportal hepatocellular hypertrophy in all males and females at 20,000 ppm highest dose tested (HDT) and at 5,000 ppm. In addition, at 20,000 ppm, a slightly decreased (7-8%%) RBC count and slightly decreased (7-8%%) hemoglobin concentration, compared to control rats, were observed in the females. The LOAEL in this study was 5,000 ppm (353/379 mg/kg/day in males/females, respectively). The NOAEL was 1,000 ppm (69/72 mg/kg/day in males/females, respectively). Although observed in the 2-week dietary study and in the 2-year chronic feeding/carcinogenicity study in rats, treatment-related effects in the thyroid and adrenal glands were not observed in the rats in this 3-month study. There is no available biological explanation for this difference in findings in the studies.
In a 2-week range-finding study in dogs, treatment-related hematological changes were observed in both males and females at 3,500 ppm, 7,000 ppm, 15,000 ppm, and 30,000 ppm (HDT). These changes included decreased RBC counts, decreased hemoglobin concentrations, decreased hematocrits, decreased MCHC, increased MCV, increased MCH, increased Heinz bodies, methemoglobinemia, changes in RBC morphology such as Howell-Jolly bodies and polychromasia, increased reticulocyte counts, increased nucleated RBC and increased platelet counts. At the same dose levels (
In a 3-month feeding study in dogs, no treatment-related effects other than a suggestion of decreased body weight gains in males and females were observed in either males or females at the HDT viz. 5,000 ppm (198/209 mg/kg/day in males/females, respectively). Although hematological effects were noted in dogs in the 2-week range-finding study
As part of the 3-month study in dogs, some male and female dogs were given 15 ppm (0.6 mg/kg/day) of methoxyfenozide in the diet for 15 weeks followed by an increase in the dietary dose to 15,000 ppm (422/460 mg/kg/day in males/females, respectively) for an additional 6 weeks. After about 2 weeks and 6 weeks at 15,000 ppm, hematological examinations were conducted. No hematological changes in these dogs were observed. Apparently, pretreatment of the dogs at 15 ppm for 15 weeks prevented the occurrence of hematological changes which would have been expected to occur based on results in the 2-week and 1-year feeding studies. One possible explanation is that the liver microsomal enzyme system may have been stimulated so much during pretreatment at 15 ppm that the metabolic (detoxification) rate of methoxyfenozide was increased to the point where blood levels of methoxyfenozide may have remained below critical effect levels at 15,000 ppm. Another possible explanation is that compensatory mechanisms for replacing damaged RBC in pretreated dogs may have been so efficient that hematological changes were not observed in these dogs even at 15,000 ppm. Other explanations for this finding are also possible.
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In a 1-year chronic feeding study in dogs, the predominant toxic effects were anemia and signs of an associated compensatory response. At 30,000 ppm, the HDT, the following treatment-related effects were observed in both males and females: decreased RBC counts, decreased hemoglobin concentrations, decreased hematocrits, methemoglobinemia, nucleated RBC, increased platelets, increased serum total bilirubin, bilirubinurea, increased hemosiderin in macrophages in liver and spleen, and increased hyperplasia in bone marrow of rib and sternum. Increased liver weights in males and females and increased thyroid weights in males were also observed at 30,000 ppm. Signs of anemia were also noted at 3,000 ppm and included decreased RBC counts, decreased hemoglobin concentrations, decreased hematocrits, methemoglobinemia, increased platelets, and increased serum total bilirubin and bilirubinurea. The LOAEL in this study was 3,000 ppm (106/111 mg/kg/day in males/females, respectively). The NOAEL was 300 ppm (9.8/12.6 mg/kg/day in males/females, respectively).
6.
7.
1.
Risk assessments were conducted by Rohm and Haas to assess dietary exposures and risks from methoxyfenozide as follows:
a.
b.
Processing factors were also applied to grape juice (1.2x), grape juice concentrate (3.6x), apple juice/cider (1.3x), apple juice concentrate (3.9x), dried apples (8x), dried beef (1.92x), dried pears (6.25x), tomato juice (1.5x), tomato puree (3.3x), tomato paste (5.4x), tomato catsup (2.5x), dried tomatoes (14.3x), dehydrated onions (9x), white dry potatoes (6.5x), and dried veal (1.92x). The processing factors are default values from DEEM.
As shown in the following table, the resulting dietary food exposures occupy up to 28.3%% of the Chronic PAD for the most highly exposed population subgroup, children 1-6 years old. These results should be viewed as conservative (health protective) risk estimates. Refinements such as use of percent crop-treated information and/or anticipated residue values would yield even lower estimates of chronic dietary exposure.
ii.
A drinking water level of comparison (DWLOC) is the concentration of a pesticide in drinking water that would be acceptable as a theoretical upper limit in light of total aggregate exposure to that pesticide from food, water, and residential uses. HED uses DWLOCs internally in the risk assessment process as a surrogate measure of potential exposure associated with pesticide exposure through drinking water. In the absence of monitoring data for a pesticide, the DWLOC is used as a point of comparison against the conservative EECs provided by computer modeling (SCI-GROW, GENEEC, PRZM/EXAMS).
a.
b.
The EECs for assessing chronic aggregate dietary risk used by HED are 6 parts per billion (ppb) (in ground water, based on SCI-GROW) and 98.5 ppb (in surface water, based on the PRZM/EXAMS, long-term mean). The back-calculated DWLOCs for assessing chronic aggregate dietary risk range from 720 ppb for the most highly exposed population subgroup (children 1-6 years old) to 2,979 ppb for the U.S. population (48 contiguous States—all seasons).
The SCI-GROW and PRZM/EXAMS chronic EECs are less than the Agency's level of comparison (the DWLOC value for each population subgroup) for methoxyfenozide residues in drinking water as a contribution to chronic aggregate exposure. Rohm and Haas thus concludes with reasonable certainty that residues of methoxyfenozide in drinking water will not contribute significantly to the aggregate chronic human health risk and that the chronic aggregate exposure from methoxyfenozide residues in food and drinking water will not exceed the Agency's level of concern (100%% of the cPAD) for chronic dietary aggregate exposure by any population subgroup. EPA generally has no concern for exposures below 100%% of the cPAD, because it is a level at or below which daily aggregate dietary exposure over a lifetime will not pose appreciable risks to the health and safety of any population subgroup. This risk assessment is considered high confidence, conservative, and very protective of human health.
2.
Cumulative exposure to substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
PA does not have, at this time, available data to determine whether methoxyfenozide has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, methoxyfenozide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, it is assumed that methoxyfenozide does not have a common mechanism of toxicity with other substances.
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iii.
Since there are currently no registered indoor or outdoor residential non-dietary uses of methoxyfenozide and no short or intermediate term toxic endpoints, Rohm and Haas considers short or intermediate term aggregate risks to be negligible.
iv.
v.
2.
FFDCA section 408 provides that EPA shall apply an additional ten-fold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. EPA believes that reliable data support using the standard uncertainty factor (usually 100 for combined interspecies and intraspecies variability) and not the additional tenfold MOE/UF when EPA has a complete data base under existing guidelines and when the severity of the effect in infants or children or the potency or unusual toxic properties of a compound do not raise concerns regarding the adequacy of the standard MOE/safety factor.
ii.
iii.
iv.
v.
vi.
vii.
There are no established or proposed Codex, Canadian or Mexican limits for residues of methoxyfenozide in/on plant or animal commodities. Therefore, no compatibility issues exist with regard to the proposed U.S. tolerances discussed in this petition review.
EPA has received a pesticide petition (0F6213) from Rohm and Haas Company, 100 Independence Mall West, Philadelphia, PA, 19106-2399 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for residues of methoxyfenozide [benzoic acid, 3-methoxy-2-methyl-, 2-(3,5-dimethylbenzoyl)-2-(1,1- dimethylethyl) hydrazide] in or on the raw agricultural commodities field corn grain at 0.05 parts per million (ppm), sweet corn (K +CWHR) at 0.05 ppm, field corn forage at 15 ppm, field corn stover (fodder) at 105 ppm, corn oil at 0.2 ppm, aspirated grain factions at 1.0 ppm, corn silage at 5.0 ppm, sweet corn forage at 30 ppm, and sweet corn stover (fodder) at 60 ppm. In addition, this petition requests an increase in the established tolerance for residues of methoxyfenozide to 0.1 ppm in milk and an increase in the established tolerances for residues of methoxyfenozide and its glucuronide metabolite to 0.5 ppm in fat, to 0.4 ppm in liver and to 0.1 ppm in meat by products (except liver) of cattle, goats, horses, hogs and sheep. EPA has determined that the petition contains data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.
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A poultry feeding study was conducted at levels of 2 ppm, 6 ppm, and 20 ppm which are equivalent to 67x, 200x, and 1,500x, respectively, the maximum theoretical dietary burden for poultry. No detectable residues of methoxyfenozide were found in any of the muscle, fat or liver samples from any dose level. In eggs, no quantifiable residues (i.e., greater than the limit of quantitation of 0.01 ppm) of either methoxyfenozide or its glucuronide metabolite were found in any of the samples. Average residues of RH-1518 in liver from hens dosed at 6 ppm were 0.016 ppm while those in the liver of hens dosed at 20 ppm were 0.031 ppm. After a 7-day depuration period, no detectable residues of RH-1518 were found in the liver of hens dosed at 20 ppm. Assuming a linear relationship between dose and residues, the expected residues in eggs and poultry tissues would be below the LOD of 0.01 ppm for methods used to measure residues in poultry products. Rohm and Haas concludes that there is no reasonable expectation of finding finite residues in eggs and poultry tissues.
1.
In an acute neurotoxicity study in rats, statistically significant decreased hind limb grip strength was observed in male rats at 3 hours (approximate time of peak effect) following a single oral dose of 2,000 mg/kg (limit dose) of methoxyfenozide. Decreased hindlimb grip strength was also observed in the male rats at 7 and 14 days, but was not statistically significant. No other systemic or neurotoxic effects were observed in the male rats or in the female rats at any time in this study. Since this marginal effect occurred only in one sex, was statistically significant at only one time, was observed only at the high dose (limit dose) and no other signs of toxicity were observed in the rats in this study, this possible effect is not considered to be biologically significant. In addition, neither decreased hindlimb grip strength nor any other signs of neurotoxicity were observed in any of the animals at any time in a 90-day subchronic neurotoxicity study in rats.
2.
3.
In neither the developmental toxicity study in rats nor in the developmental toxicity study in rabbits was there any evidence for increased susceptibility of fetuses to
In a 2-generation (1 litter/generation) reproduction study in rats, treatment-related parental toxicity was observed only at 20,000 ppm, the HDT. At this dose, increased liver weights were observed in males and females of both generations and midzonal to periportal hepatocellular hypertrophy was observed in the livers of all males and females of both generations. The LOAEL for parental toxicity was 20,000 ppm (1,552/1,821 mg/kg/day for males/females, respectively) and the NOAEL was 2,000 ppm (153/181 mg/kg/day for males/females, respectively). There were no treatment-related effects on reproductive parameters for adult (parent) animals. The NOAEL for reproductive toxicity was 20,000 ppm. Since no treatment-related effects were observed in the pups, the NOAEL for neonatal toxicity was also, 20,000 ppm. The NOAEL for parental toxicity in this reproduction study is higher than the NOAEL for the 2-year combined chronic feeding/carcinogenicity study in rats because many of the toxic effects observed in the 2-year study at the LOAEL (hematological changes, liver toxicity, histopathological changes in the thyroid gland and increased adrenal weights) were not examined in the reproduction study.
4.
In neither the developmental toxicity study in rats nor in the developmental toxicity study in rabbits was there any evidence for increased susceptibility of fetuses to
In a 2-generation (1 litter/generation) reproduction study in rats, treatment-related parental toxicity was observed only at 20,000 ppm, the HDT. At this dose, increased liver weights were observed in males and females of both generations and midzonal to periportal hepatocellular hypertrophy was observed in the livers of all males and females of both generations. The LOAEL
5.
In a 1-year chronic feeding study in dogs, the predominant toxic effects were anemia and signs of an associated compensatory response. At 30,000 ppm, the HDT, the following treatment-related effects were observed in both males and females: decreased RBC counts, decreased hemoglobin concentrations, decreased hematocrits, methemoglobinemia, nucleated RBC, increased platelets, increased serum total bilirubin, bilirubinurea, increased hemosiderin in macrophages in liver and spleen, and increased hyperplasia in bone marrow of rib and sternum. Increased liver weights in males and females and increased thyroid weights in males were also observed at 30,000 ppm. Signs of anemia were also noted at 3,000 ppm and included decreased RBC counts, decreased hemoglobin concentrations, decreased hematocrits, methemoglobinemia, increased platelets, and increased serum total bilirubin and bilirubinurea. The LOAEL in this study was 3,000 ppm (106/111 mg/kg/day in males/females, respectively). The NOAEL was 300 ppm (9.8/12.6 mg/kg/day in males/females, respectively).
6.
7.
1.
Risk assessments were conducted by Rohm and Haas to assess dietary exposures and risks from methoxyfenozide as follows:
a.
b.
Processing factors were also applied to grape juice (1.2x), grape juice concentrate (3.6x), apple juice/cider (1.3x), apple juice concentrate (3.9x), dried apples (8x), dried pears (6.25x), tomato juice (1.5x), tomato puree (3.3x), tomato paste (5.4x), tomato catsup (2.5x), dried tomatoes (14.3x), dehydrated onions (9x), white dry potatoes (6.5x), sprouted soybean seeds (0.33x), corn grain sugar (high fructose corn syrup; 1.5x), dried beef (1.92x), and dried veal (1.92x). The processing factors are default values from DEEM.
As shown in the following table the resulting dietary food exposures occupy up to 34.5%% of the Chronic PAD for the most highly exposed population subgroup, children 1-6 years old. These results should be viewed as conservative (health protective) risk estimates. Refinements such as use of percent crop-treated information and/or anticipated residue values would yield even lower estimates of chronic dietary exposure.
The subgroups listed are: (1) The U.S. population (total); (2) those for infants and children; (3) the other subgroup(s), if any, for which the percentage of the Chronic PAD occupied is greater than that occupied by the subgroup U.S. population (total); and, (4) the most highly exposed of the females subgroups (in this case, females, (13+ years, nursing).
ii.
A drinking water level of comparison (DWLOC) is the concentration of a pesticide in drinking water that would be acceptable as a theoretical upper limit in light of total aggregate exposure to that pesticide from food, water, and residential uses. HED uses DWLOCs internally in the risk assessment process as a surrogate measure of potential exposure associated with pesticide exposure through drinking water. In the absence of monitoring data for a pesticide, the DWLOC is used as a point of comparison against the conservative EECs provided by computer modeling (SCI-GROW, GENEEC, PRZM/EXAMS).
a.
b.
The EECs for assessing chronic aggregate dietary risk used by HED are 6 parts per billion (ppb) (in ground water, based on SCI-GROW) and 98.5 ppb (in surface water, based on the PRZM/EXAMS, long-term mean). The back-calculated DWLOCs for assessing chronic aggregate dietary risk range from 655 ppb for the most highly exposed population subgroup (children 1-6 years old) to 2,884 ppb for the U.S. population (48 contiguous States—all seasons).
The SCI-GROW and PRZM/EXAMS chronic EECs are less than the Agency's level of comparison (the DWLOC value for each population subgroup) for methoxyfenozide residues in drinking water as a contribution to chronic aggregate exposure. Rohm and Haas thus concludes with reasonable certainty that residues of methoxyfenozide in drinking water will not contribute significantly to the aggregate chronic human health risk and that the chronic aggregate exposure from methoxyfenozide residues in food and drinking water will not exceed the Agency's level of concern (100%% of the cPAD) for chronic dietary aggregate exposure by any population subgroup. EPA generally has no concern for exposures below 100%% of the cPAD, because it is a level at or below which daily aggregate dietary exposure over a lifetime will not pose appreciable risks to the health and safety of any population subgroup. This risk assessment is considered high confidence, conservative, and very protective of human health. The following table shows the drinking water level of comparison for chronic exposure to methoxyfenozine:
2.
Cumulative exposure to substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) requires that,
EPA does not have, at this time, available data to determine whether methoxyfenozide has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, methoxyfenozide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, it is assumed that methoxyfenozide does not have a common mechanism of toxicity with other substances.
1.
2.
FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. EPA believes that reliable data support using the standard uncertainty factor (usually 100 for combined interspecies and intraspecies variability) and not the additional tenfold MOE/UF when EPA has a complete data base under existing guidelines and when the severity of the effect in infants or children or the potency or unusual toxic properties of a compound do not raise concerns regarding the adequacy of the standard MOE/safety factor.
ii.
iii.
iv.
v.
vi.
vii.
There are no established or proposed Codex, Canadian or Mexican limits for residues of methoxyfenozide in/on plant or animal commodities. Therefore, no compatibility issues exist with regard to the proposed U.S. tolerances discussed in this petition review.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of certain pesticide chemicals in or on various food commodities.
Comments, identified by docket control number PF-999, must be received on or before April 18, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I.C. of the
The product manager listed in the table below:
You may be affected by this action if you are an agricultural producer, food manufacturer or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
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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 PF-999 in the subject line on the first page of your response.
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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 identified 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. Make sure to submit your comments by the deadline in this notice.
7. 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
EPA has received pesticide petitions as follows proposing the establishment and/or amendment of regulations for residues of certain pesticide chemicals in or on various food commodities under section 408 of the Federal Food, Drug, and Comestic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that these petitions contain data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Petitioner summaries of the pesticide petitions are printed below as required bysection 408(d)(3) of the FFDCA. The summaries of the petitions were prepared by the petitioners and represent the views of the petitioners. EPA is publishing the petition summaries verbatim without editing them in any way. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.
EPA has received a pesticide petition (OF6220) from Valent U.S.A. Corporation, 1333 North California Street, Suite 600, Walnut Creek, CA 945968025 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of pyriproxyfen, 2-[1-methyl-2-(4-phenoxyphenoxy)ethoxy]pyridine in or on the raw agricultural commodity stone fruit at 1.0 parts per million (ppm). EPA has determined that the petition contains data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.
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In the developmental toxicity study conducted with rats, technical pyriproxyfen was administered by gavage at levels of 0, 100, 300, and 1,000 milligrams/kilogram of body weight/day (mg/kg bw/day) during gestation days 7-17. Maternal toxicity (mortality, decreased body weight gain and food consumption, and clinical signs of toxicity) was observed at doses of 300 mg/kg bw/day and greater. The maternal NOAEL was 100 mg/kg bw/day. A transient increase in skeletal variations was observed in rat fetuses from females exposed to 300 mg/kg bw/day and greater. These effects were not present in animals examined at the end of the postnatal period, therefore, the NOAEL for prenatal developmental toxicity was 100 mg/kg bw/day. An increased incidence of visceral and skeletal variations was observed postnatally at 1,000 mg/kg bw/day. The NOAEL for postnatal developmental toxicity was 300 mg/kg bw/day.
In the developmental toxicity study conducted with rabbits, technical pyriproxyfen was administered by gavage at levels of 0, 100, 300, and 1,000 mg/kg bw/day during gestation days 6-18. Maternal toxicity (clinical signs of toxicity including one death, decreased body weight gain and food consumption, and abortions or premature deliveries) was observed at oral doses of 300 mg/kg bw/day or higher. The maternal NOAEL was 100 mg/kg bw/day. No developmental effects were observed in the rabbit fetuses. The NOAEL for developmental toxicity in rabbits was 1,000 mg/kg bw/day.
In the rat reproduction study, pyriproxyfen was administered in the diet at levels of 0, 200, 1,000, and 5,000 ppm through 2 generations of rats. Adult systemic toxicity (reduced body weights, liver and kidney histopathology, and increased liver weight) was produced at the 5,000 ppm dose (453 mg/kg bw/day in males, 498 mg/kg bw/day in females) during the pre-mating period. The systemic NOAEL was 1,000 ppm (87 mg/kg bw/day in males, 96 mg/kg bw/day in females). No effects on reproduction were produced at 5,000 ppm, the highest dose tested.
4.
In a 4-week inhalation study of pyriproxyfen technical in rats, decreased body weight and increased water consumption were observed at 1,000 mg/m
A 21-day dermal toxicity study in rats with pyriproxyfen technical did not produce any signs of dermal or systemic toxicity at 1,000 mg/kg bw/day, the highest dose tested (HDT). In a 21-day dermal study conducted with KNACK®. Insect Growth Regulator the test material produced a NOAEL of 1,000 mg/kg bw/day (HDT) for systemic effects, and a NOAEL for skin irritation of 100 mg/kg bw/day.
5.
Pyriproxyfen is not a carcinogen. Studies with pyriproxyfen have shown that repeated high dose exposures produced changes in the liver, kidney and red blood cells, but did not produce cancer in test animals. No oncogenic response was observed in a rat 2-year chronic feeding/oncogenicity study or in a 78 week study on mice. The oncogenicity classification of pyriproxyfen is “E” (no evidence of carcinogenicity for humans).
Pyriproxyfen technical was administered to dogs in capsules at doses of 0, 30, 100, 300 and 1,000 mg/kg bw/day for 1-year. Dogs exposed to dose levels of 300 mg/kg bw/day or higher showed overt clinical signs of toxicity, elevated levels of blood enzymes and liver damage. The NOAEL in this study was 100 mg/kg bw/day.
Pyriproxyfen technical was administered to mice at doses of 0, 120, 600 and 3,000 ppm in diet for 78 weeks. The NOAEL for systemic effects in this study was 600 ppm (84 mg/kg bw/day in males, 109.5 mg/kg bw/day in females), and a LOAEL of 3,000 ppm (420 mg/kg bw/day in males, 547 mg/kg bw/day in females) was established based on an increase in kidney lesions.
In a 2-year study in rats, pyriproxyfen technical was administered in the diet at levels of 0, 120, 600, and 3,000 ppm. The NOAEL for systemic effects in this study was 600 ppm (27.31 mg/kg bw/day in males, 35.1 mg/kg bw/day in females). A LOAEL of 3,000 ppm (138 mg/kg bw/day in males, 182.7 mg/kg bw/day in females) was established based on a depression in body weight gain in females.
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Seven metabolites of pyriproxyfen, 4'-OH-pyriproxyfen, 5''-OH-pyriproxyfen, desphenyl-pyriproxyfen, POPA, PYPAC, 2-OH-pyridine and 2,5-diOH-pyridine, have been tested for mutagenicity (Ames) and acute oral toxicity to mice. All seven metabolites were tested in the Ames assay with and without S9 at doses up to 5,000 micro-grams per plate or up to the growth inhibitory dose. The metabolites did not induce any significant increases in revertant colonies in any of the test strains. Positive control chemicals showed marked increases in revertant colonies. The acute toxicity to mice of 4'-OH-pyriproxyfen, 5''-OH-pyriproxyfen, desphenyl-pyriproxyfen, POPA, and PYPAC did not appear to markedly differ from pyriproxyfen, with all metabolites having acute oral LD
8.
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b. Acute dietary risk assessments are performed for a food use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as the result of a one day or single exposure. No acute dietary endpoint and dose was identified in the toxicology database for pyriproxyfen, therefore the Agency has concluded that there is a reasonable certainty of no harm from acute dietary exposure.
ii.
2.
No acute dermal, or inhalation dose or endpoint was identified in the toxicity data for pyriproxyfen. Similarly, doses and endpoints were not identified for short- and intermediate-term dermal or inhalation exposure to pyriproxyfen. The Agency has concluded that there are reasonable certainties of no harm from acute-, short-term, and intermediate-term dermal and inhalation occupational and residential exposures due to the lack of significant toxicological effects observed. Thus, no detailed exposure and risk analyses for non-dietary exposures to pyriproxyfen are necessary.
Section 408(b)(2)(D)(v) requires that the Agency must consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Available information in this context include not only toxicity, chemistry, and exposure data, but also scientific policies and methodologies for understanding common mechanisms of toxicity and conducting cumulative risk assessments. For most pesticides, although the Agency has some information in its files that may turn out to be helpful in eventually determining whether a pesticide shares a common mechanism of toxicity with any other substances, EPA does not at this time have the methodologies to resolve the complex scientific issues concerning common mechanism of toxicity in a meaningful way.
There are no other pesticidal compounds that are structurally related to pyriproxyfen and have similar effects on animals. In consideration of potential cumulative effects of pyriproxyfen and other substances that may have a common mechanism of toxicity, there are currently no available data or other reliable information indicating that any toxic effects produced by pyriproxyfen would be cumulative with those of other chemical compounds. Thus, only the potential risks of pyriproxyfen have been considered in this assessment of aggregate exposure and effects.
Valent will submit information for EPA to consider concerning potential cumulative effects of pyriproxyfen consistent with the schedule established by EPA at 62 FR 42020 (Aug. 4, 1997) (FRL-5734-6) and other subsequent EPA publications pursuant to the Food Quality Protection Act.
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The toxicological database for evaluating pre- and post-natal toxicity for pyriproxyfen is complete with respect to current data requirements. There are no special pre- or post-natal toxicity concerns for infants and children, based on the results of the rat and rabbit developmental toxicity studies or the 2-generation reproductive toxicity study in rats. Valent concludes that reliable data support use of the standard 100-fold uncertainty factor and that an additional uncertainty factor is not needed for pyriproxyfen to be further protective of infants and children.
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There are no presently existing Codex MRLs for pyriproxyfen.
EPA has received pesticide petitions (0E6083 and 0E6175) from the Interregional Research Project Number 4 (IR-4), Technology Centre of New Jersey, 681 U.S. Highway #1 South, North Brunswick, New Jersey 08902-3390 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for the combined residues of the herbicide, pendimethalin,
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i. A 56-day oral thyroid function study,
ii. A 92-day thyroid function study; and
iii. A 14-day intrathyroidal metabolism study.
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The Agency has not yet published guidelines to determine whether pendimethalin has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for
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FFDCA section 408 provides that EPA may apply an additional 10-fold margin of safety for infants and children in the case of threshold effects to account for pre- and post-natal toxicity and the completeness of the database. Based on current toxicological data requirements, the toxicology database for pendimethalin is complete.
Furthermore, for pendimethalin, the reproductive NOAEL of 172 mg/kg/day is 17-fold higher than the NOAEL of 10 mg/kg/day used for the RfD. Additionally, the reproductive LOAEL occurred in the presence of parental (systemic) toxicity and there was no evidence of developmental toxicity in either the rat or the rabbit studies. Therefore, American Cyanamid Company believes that these proposed tolerances do not represent any unacceptable pre- or post-natal risk to infants and children.
Using the conservative exposure assumptions described above, EPA has previously concluded that aggregate exposure to pendimethalin from food will utilize less than 2% of the RfD for infants and children. The additional dietary burden for non-nursing infants, (
There are no CODEX, Canadian or Mexican International Maximum Residue Levels (MRLs) established for residues of pendimethalin in tree nuts and pistachio, almond hull or in fruiting vegetables at this time.
-EPA has received a pesticide petition (0E6183) from the Interregional Research Project Number 4 (IR 4), Rutgers University, New Brunswick, NJ, 08903-0231 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing a tolerance for residues of the herbicide carfentrazone-ethyl (ethyl-
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-Using the Guidelines for Carcinogen Risk Assessment, carfentrazone-ethyl should be classified as Group “E” for carcinogenicity — no evidence of carcinogenicity — based on the results of carcinogenicity studies in two species. There was no evidence of carcinogenicity in an 18-month feeding study in mice and a 2-year feeding study in rats at the dosage levels tested. The doses tested are adequate for identifying a cancer risk. Thus, a cancer risk assessment is not necessary.-
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EPA is also required to consider the potential for cumulative effects of carfentrazone-ethyl and other substances that have a common mechanism of toxicity. FMC does not have information to indicate that toxic effects produced by carfentrazone-ethyl would be cumulative with those of any other chemical compounds; thus only the potential risks of carfentrazone-ethyl are considered in this exposure assessment.
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-FFDCA section 408 provides that EPA may apply an additional safety factor for infants and children in the case of threshold effects to account for pre- and post-natal toxicity and the completeness of the database. Based on the current toxicological data requirements, FMC concludes that the database relative to pre- and post-natal effects for children is complete and an additional uncertainty factor is not warranted. Therefore at this time, the RfD of 0.03 mg/kg/day is appropriate for assessing aggregate risk to infants and children.
-Using the conservative exposure assumptions described above, the percent of the RfD that will be utilized by aggregate exposure to residues of carfentrazone-ethyl for non-nursing infants (
There are no Codex Alimentarius Commission (Codex) Maximum Residue Levels (MRLs) for carfentrazone-ethyl on any crops at this time.
Environmental Protection Agency (EPA).
Notice.
EPA has received a specific exemption request from the Texas Department of Agriculture to use the pesticide bifenazate (CAS No. 149877-41-8) to treat up to 200 acres of greenhouse tomatoes to control spider mites. The Applicant proposes a first food use of this pesticide. EPA is soliciting public comment before making the decision whether or not to grant the exemption.
Comments, identified by docket control number OPP-181080, must be received on or before April 3, 2001.
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
Stephen Schaible, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703 308-9362; fax number: 703 308-5433; e-mail address: schaible.stephen@epa.gov.
You may be potentially affected by this action if you petition EPA for emergency exemption under section 18 of FIFRA. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be
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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-181080 in the subject line on the first page of your response.
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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 proposed rule or collection activity.
7. Make sure to submit your comments by the deadline in this document.
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
Under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136p), at the discretion of the Administrator, a Federal or State agency may be exempted from any provision of FIFRA if the Administrator determines that emergency conditions exist which require the exemption. The Texas Department of Agriculture has requested the Administrator to issue a specific exemption for the use of bifenazate on greenhouse tomatoes to control spider mites. Information in accordance with 40 CFR part 166 was submitted as part of this request.
As part of this request, the Applicant asserts that currently registered alternatives do not provide adequate control of spider mites. Texas greenhouse production of tomatoes utilizes an intensive integrated pest managment (IPM) program with dependence on beneficial insects for control of primary insects and mites. In addition, greenhouse tomato production uses an indeterminate variety of tomatoes that are harvested year round. For these reasons, pesticide products are needed which have a short preharvest interval (PHI <= 3 days), are efficacious against two-spotted spider mites while being safe to beneficial insects and bees, and are labeled for use on greenhouse tomatoes. The Applicant claims that the three chemicals currently registered for
The Applicant feels that for those greenhouse growers using biological agents, bifenazate will provide a much needed alternative because of its specificity to spider mites and its relative safety to beneficial insects. It is felt that the effectiveness of the product against multiple tetranychid species makes it useful for single-species and concurrent, multi-species infestations as well as for sequential infestations with two or more species. The Applicant estimates that for the major greenhouse producer, 25% of the 2,000 crop was affected by spider mites. Plants affected with spider mites lose 60% of their value when the secondary effect on quality is included. The difference in gross revenue for the requested use acreage is predicted to be $12,228,000 when using the requested pesticide over the next best alternative.
The Applicant proposes to make no more than two applications of Floramite miticide (EPA Reg. No. 400-481), containing 50% bifenazate, to 200 acres of greenhouse tomatoes in Texas. The product may be applied at a rate of 8 to 16 oz. of product (4-8 oz. of active ingredient (a.i.)) per acre; no more than 16 oz. of product may be applied per acre per year. Application will occur year round throughout the state. Under this exemption, a maximum of 200 lbs. of product (100 lbs. a.i.) may be applied over the course of the year.
This notice does not constitute a decision by EPA on the application itself. The regulations governing section 18 of FIFRA require publication of a notice of receipt of an application for a specific exemption proposing a first food use of a chemical. The notice provides an opportunity for public comment on the application.
The Agency, will review and consider all comments received during the comment period in determining whether to issue the specific exemption requested by the Texas Department of Agriculture.
Environmental protection, Pesticides and pests.
Environmental Protection Agency.
Notice; Request for public comments.
In June 1992, the United States signed the United Nations Framework Convention on Climate Change (UNFCCC). Pursuant to the national communication reporting requirements under Articles 4.2 and 12 of the Convention and to guidelines later adopted by the UNFCCC Conference of the Parties (COP), the United States submitted the first U.S. Climate Action Report (USCAR) to the UNFCCC Secretariat in 1994 and the second in 1997. The U.S. Government is currently preparing the third national communication, which is due to the UNFCCC secretariat no later than November 30, 2001. The purpose of this announcement is to notify interested members of the public of this process and to solicit contributions and input on the issues covered in the national communication before the draft text is released for public review (in summer of 2001).
Written comments should be received on or before noon, April 18, 2001. However, comments received after that date will still be welcomed and will be considered during preparation of the report.
Comments should be submitted to: Mr. Reid P. Harvey, U.S. Environmental Protection Agency, Office of Atmospheric Programs (Mail Stop 6204N), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Comments may also be e-mailed to
Mr. Reid P. Harvey, Office of Atmospheric Programs, U.S. Environmental Protection Agency at (202) 564-9429.
In accordance with the UNFCCC's reporting requirements as specified in Articles 4.2 and 12, and following reporting guidelines developed (and adopted by the UNFCCC COP at its first session), the United States prepared the U.S. Climate Action Report (CAR) and submitted it to the UNFCCC Secretariat in October 1994.
The CAR provided a description of the U.S. program designed to reduce emissions to 1990 levels by the year 2000. The initial CAR incorporated much of the information contained in the first Climate Change Action Plan announced by President Clinton and Vice President Gore on October 19, 1993.
At the Second COP, the Parties requested developed country Parties to the Convention to submit to the UNFCCC Secretariat, in accordance with Articles 12.1 and 12.2 of the Convention, a second national communication by April 15, 1997. Parties that submitted first reports in 1996 were to provide an update by the 1997 deadline and Parties with economies in transition were to provide their second communication by April 15, 1998. Developing country Parties have different guidelines and due dates for their national communications. The United States submitted its second national communication to the UNFCCC Secretariat in July 1997.
At the Fifth COP, the Parties updated the guidelines for preparation of national communications (see FCCC/CP/1999/7). This document is available on the Internet at
The third CAR will review key elements contained in the Climate Change Action Plan, including: an update on key baseline assumptions; a review and assessment of activities to date under the actions listed in the plan; and an update of the list of actions reflecting changes initiated by responsible agencies since the plan was first proposed in 1993.
In keeping with international guidelines, the third CAR will provide an inventory of U.S. greenhouse gas emissions and sinks, estimate effects of mitigation measures and policies on future emissions levels, and describe U.S. involvement in international programs, including associated contributions and funding efforts.
In addition, the text will include a discussion of U.S. national circumstances that affect U.S. vulnerability and responses to climate change. Information on the U.S. Global Change Research Program, Global Climate Observing Systems (GCOS), and adaptation programs will also presented.
This Federal Register notice solicits contributions and comments on all aspects to be covered in the third US CAR and in particular, on issues related to non-federal, state, regional, local, and private sector actions to address climate change. The document will be modeled closely on the format of the second CAR. Comments may be submitted to the contact listed above.
In addition, the U.S. will release the draft text of the Third CAR for review and comment in the summer of 2001. Comments on that document will be due within 30 days of release. Because of the tight time constraints on completing and printing the final text, a longer review period will not be possible.
We invite input now on all aspects of the document currently under development, including its content, format, and graphics. Comments received in response to this Federal Register notice will be considered in the preparation of the draft of the third national communication.
You may view the 1997 U.S. Climate Action Report on the Internet at:
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9601
Comments must be submitted on or before April 18, 2001.
The proposed settlement is available for public inspection at U.S. EPA, Region 5, 77 W. Jackson Boulevard, Chicago, IL 60604. A copy of the proposed agreement may be obtained from Christine M. Liszewski, at U.S. EPA, Region 5, 77 W. Jackson Boulevard (C-14J), Chicago, IL 60604, phone (312) 886-4670. Comments should reference the Doc's Auto Salvage prospective purchaser agreement, and should be addressed to Christine M. Liszewski.
Christine M. Liszewski, at U.S. EPA, Region 5, 77 W. Jackson Boulevard (C-14J), Chicago, IL 60604, phone (312) 886-4670.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“CERCLA”), 42 U.S.C. 9601-9675, notice is hereby given that a proposed purchaser agreement (“Purchaser Agreement”) associated with the Exeter Superfund Site (“Site”), City of Hopewell, Virginia was executed by the Environmental Protection Agency and the Department of Justice and is now subject to public comment, after which the United States may modify or withdraw its consent if comments received disclose facts or considerations which indicate that the Purchaser Agreement is inappropriate, improper, or inadequate. The Purchaser Agreement would resolve certain potential EPA claims under section 107 of CERCLA, 42 U.S.C. 9607, against the City of Hopewell, Virginia, and H.D.C., L.L.C. (“Purchasers”). The settlement would require the Purchasers to, among other things, (1) pay to EPA the sum of $50,000 within thirty (30) days of the effective date of the Purchaser Agreement, (2) remove and dispose of all remaining asbestos found on the Site, in compliance with all federal and state laws and regulations governing asbestos abatement.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the Purchaser Agreement. The Agency's response to any comments received will be available for public
Comments must be submitted on or before April 18, 2001.
Natalie L. Katz (3RC42), Assistant Regional Counsel, U.S. Environmental Protection Agency, 1650 Arch Street, Philadelphia, PA 19103, Phone: (215) 814-2615.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), notice is hereby given of a proposed administrative cost recovery settlement under section 122(h)(1) of CERCLA concerning the Metro-Plating Superfund site in Detroit, Wayne County, Michigan. The settlement resolves an EPA claim under section 107(a) of CERCLA against Jerome W. Crawford. The settlement requires the settling party to pay $2,000 to the Hazardous Substances Superfund and includes a covenant not to sue the settling party pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a). However, the agreement does not protect the settling party from the following: (1) The settling party's failure to abide by the terms of the agreement; (2) costs incurred or to be incurred by the settling party that do not meet the definition of past response costs; (3) the settling party's liability for injunctive relief or administrative order enforcement under section 106 of CERCLA, 42 U.S.C. 9606; (4) criminal liability; and (5) natural resource damages.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at the United States Environmental Protection Agency, Region 5 Records Center, 7th Floor, 77 W. Jackson Blvd, Chicago, Illinois 60604.
Comments must be submitted on or before April 18, 2001.
The proposed settlement and additional background information relating to the settlement are available for public inspection at the United States Environmental Protection Agency, Region 5 Records Center, 7th Floor, 77 West Jackson Blvd, Chicago, Illinois 60604. A copy of the proposed settlement may be obtained from William Ryczek, United States Environmental Protection Agency, Region 5, Mail Code SE-5J, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7184. Comments should reference the Metro-Plating Superfund site, Detroit, Wayne County, Michigan and EPA Docket No. ZW00C615 and should be addressed to William Ryczek at the address shown above.
William Ryczek, U.S. EPA Region 5, Mail Code SE-5J, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7184.
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces the availability for comment of EPA's determination that TMDLs are not needed for 26 waterbody/pollutant combinations in the Mermentau and Vermilion/Teche River Basins because new data and information show that water quality standards are being met. This proposed action would result in the removal of 26 waterbody/pollutant combinations from the Louisiana 303(d) list. EPA prepared the proposed determinations in response to a court order dated October 1, 1999, in the lawsuit
Comments on the 26 proposed determinations that TMDLs are not needed must be submitted in writing to EPA on or before April 18, 2001.
Comments on the proposed determinations should be sent to Ellen Caldwell, Environmental Protection Specialist, Water Quality Protection Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, TX 75202-2733. For further information, contact Ellen Caldwell at (214) 665-7513. The administrative record file for the proposed determinations is available for public inspection at this address as well. Documents from the administrative record file may be viewed at www.epa.gov/region6/water/tmdl.htm, or obtained by calling or writing Ms. Caldwell at the above address. Please contact Ms. Caldwell to schedule an inspection.
Ellen Caldwell at (214) 665-7513.
In 1996, two Louisiana environmental groups, the Sierra Club and Louisiana Environmental Action Network (plaintiffs), filed a lawsuit in Federal Court against the EPA, styled
EPA requests that the public provide to EPA any water quality related data and information that may be relevant to the 26 proposed determinations that TMDLs are not needed. EPA will review all data and information submitted during the public comment period and revise the determinations where appropriate.
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, 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 Reduction 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 May 18, 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 Les Smith, Federal Communications Commissions, 445 12th Street, SW., Room 1-A804, Washington, DC 20554 or via the Internet to lesmith@fcc.gov.
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at lesmith@fcc.gov.
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 Reduction 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 April 18, 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 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 Reduction 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 May 18, 2001. If you anticipate that you will be
Direct all comments to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judy Boley at 202-418-0214 or via the Internet at
Needs and Uses: The Order on Reconsideration addresses several petitions for reconsideration and/or clarification of our rules that amended the procedures governing complaints filed against common carriers. In the First Report and Order, the Commission adopted rules designed, inter alia, to expedite the resolution of formal complaints filed against common carriers pursuant to Section 208 of the Act, and in the Second Report and Order, adopted the Accelerated Docket rules. The Order on Reconsideration also modifies specific rules governing pre-filing letters, answers, replies, payment verification requirements, and supplemental complaints for damages. The information will be used by Commission staff to determine the sufficiency of complaints and to resolve the merits of disputes between the parties.
The postcard allows the three agencies to assess the success of the program and identify the areas of the country that need further assistance in developing their local EAS plan.
The information will be used by the FCC for the purpose of collecting reporting any delinquent amounts arising of such person's relationship with the government.
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 Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a)
Written comments should be submitted on or before May 18, 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 Les Smith, Federal Communications Commissions, Room 1 A-804, 445 Twelfth Street, SW., Washington, DC 20554 or via the Internet to lesmith@fcc.gov.
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at lesmith@fcc.gov.
OMB Control No.: 3060-0355.
Federal Communications Commission.
Notice.
This document announces the postponement of Broadcast Auction 37 and the lifting of the freeze on FM minor change applications.
Auction No. 37 is rescheduled for December 5, 2001.
Auction and Industry Analysis Division: Kathy Garland, Wireless Telecommunications Bureau at (717) 338-2888; Kenneth Burnley, Legal Branch at (202) 418-0660. Audio Services Division: Lisa Scanlan at (202) 418-2700.
This is a summary of a Public Notice released March 7, 2001. The complete text of the public notice is available for 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, N.W., Washington, DC 20036, (202) 857-3800. It is also available on the Commission's web site at
The Wireless Telecommunications Bureau and the Mass Media Bureau (collectively referred to as the “Bureaus”) announce that the upcoming auction of vacant non-reserved band allotments in the FM broadcast service, scheduled to begin on May 9, 2001, is postponed until December 5, 2001, for reasons of administrative convenience. Except for the dates listed, the information provided in previous public notices remains unchanged. (See
The new schedule is as follows:
As a result of this action, the FM Minor Change Application Freeze Public Notice announced on January 19, 2001, (not published in the
Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act of 1995.
In accordance with requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Information about this submission, including copies of the proposed collection of information, may be obtained by calling or writing the FDIC contact listed above.
The collection involves the occasional use of qualitative surveys to gather anecdotal information about regulatory burden, problems or successes in the bank supervisory process (including both safety-and-soundness and consumer-related exams), and similar concerns.
Notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed revised information collections. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), this notice seeks comments concerning the Emergency Management Exercise Reporting System (EMERS) which collects data on the results of a State or local exercise or actual disaster response.
EMERS was designed in 1992 as a means of capturing information on the positive and negative results based on the conduct of an emergency management exercise or an actual disaster response. The revised EMERS 2.0 is an automated data collection software program that is Windows-based and will allow State and local emergency managers to download the program from a FEMA web site. It is based on 13 functional areas: Alert/Notification (Emergency Response); Warning (Public); Communication; Coordination/Control; Emergency Public Information; Damage Assessment; Health & Medical; Individual/Family Assistance; Public Safety; Public Works/Engineering; Transportation; Resource Management; and Continuity of Government.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, (Public Law 93-288, as amended) title III, section 313, states:
The President shall conduct annual reviews of activities of Federal agencies and State and local governments in major disaster and emergency preparedness and in providing major disaster and emergency assistance in order to assure maximum coordination and effectiveness of such program and consistency in policies for reimbursement of States under this Act.
Written comments are solicited to (a) evaluate whether the proposed data collection is necessary for the proper performance of the agency, including whether the information shall have practical utility; (b) 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; (c) enhance the quality, utility, and clarity of the information to be collected; and (d) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Comments should be received within 60 days of the date of this notice.
Interested persons should submit written comments to Muriel B. Anderson, Chief, Records Management Branch, Program Services Division, Operations Support Directorate, Federal Emergency Management Agency, 500 C Street, SW., Room 316, Washington, DC 20472.
Bruce Hildebrand, Preparedness, Training & Exercises Directorate, Readiness Division, Program Development Branch, 500 C Street, SW., Washington, DC, or call (202) 646-3114 or email bruce.hildebrand@fema.gov for additional information. Contact Ms. Anderson at (202) 646-2625 or by facsimile number (202) 646-3524 or by email
Notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed new information collections. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), this notice seeks comments concerning a national review of local mitigation planning.
There are three FEMA programs that provide either direct funding or insurance incentives in order to promote mitigation planning at the local level. They are the Flood Mitigation Assistance Program (FMA), the Hazard Mitigation Grant Program (HMGP), and the National Flood Insurance Program (NFIP) Community Rating System. Project Impact funds may also be used for local mitigation planning but will be excluded from this evaluation since the program has a separate evaluation instrument with the University of Delaware.
Anecdotal information regarding the value of hazard mitigation planning in producing viable and effective mitigation actions exists, but this has never been studied in a systematic way. The purpose of this review will be to (1) assess the impact that FEMA's local Mitigation planning initiatives have had on local planning; (2) identify communities with successful mitigation plans and (3) document “best practices” that led to the formulation of successful plans. For example, there is the assumption that the FMA planning requirement promotes successful projects. However, there is a need to objectively evaluate whether this is a true statement, and if so, why. As a result, this objective review will give us a better opportunity to understand planning effectiveness and “best practices”.
Written comments are solicited to (a) evaluate whether the proposed data collection is necessary for the proper performance of the agency, including whether the information shall have practical utility; (b) 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; (c) enhance the quality, utility, and clarity of the information to be collected; and (d) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Comments should be received within 60 days of the date of this notice.
Interested persons should submit written comments to Muriel B. Anderson, FEMA Information Collections Officer, Federal Emergency Management Agency, 500 C Street, SW, Room 316, Washington, DC 20472.
Ms. Rosemary Krueger, Program Analyst, Federal Emergency Management Agency, Mitigation Directorate, Program Support Division, Planning Branch, (202) 646-4189 for additional information. For copies of the proposed collection of information contact Ms. Anderson at (202) 646-2625, by facsimile (202) 645-3347, or by e-mail at muriel.anderson@fema.gov.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 2, 2001.
Board of Governors of the Federal Reserve System, March 13, 2001.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 12, 2001.
In connection with this proposal, applicants also have applied to engage in lending activities, pursuant to section 225.28(b)(1) of Regulation Y.
Board of Governors of the Federal Reserve System, March 13, 2001.
Office of Acquisition Policy, Office of Governmentwide Policy, GSA.
Notice of revision in publication policy with request for comment.
The Catalog of Federal Domestic Assistance is authorized by the Federal Program Information Act, Public Law 95-220, as amended by Public Law 98-169. The laws require OMB to (1) collect and verity the accuracy of agency information regarding currently available Federal domestic assistance programs and (2) provide that information to GSA. GSA is to use the OMB-supplied information to (1) build and maintain a data base of Federal assistance information, (2) disseminate the information through a printed catalog; and (3) provide computerized online access to the information. OMB Circular No. A-89 provides a detailed description of the duties and responsibilities of Federal agencies, GSA, and OMB.
The printed Catalog has been published since 1973 on an annual basis in June with a mid-year update, usually in December. In addition, GSA now provides electronic access to the Catalog information through its web site (
The Federal Domestic Assistance Catalog Staff, Office of Acquisition Policy, is proposing to no longer publish the printed hard copy December update of the Catalog. The information will continue to be collected from agencies and updated in December each year. Electronic access to the updated information will continue to be available through the Catalog web site and other media. This action is being taken to reduce the paperwork associated with the Catalog and to reduce the cost of operations.
This change will be effective for the December, 2001 Catalog update. Comments are welcome and must be submitted on or before April 9, 2001. GSA will review all comments and will determine what policy modifications, if any, are necessary.
Comments concerning this notice should be submitted to: Kathy Hospodar, Federal Domestic Assistance Catalog Staff, Suite 101—Reporter's Building, 300 7th Street, SW., Washington, DC 20407, or e-mail to
Office of the Secretary, Office of Public Health and Science, Office of Minority Health, HHS.
Notice of availability of funds and request for applications for the Bilingual/Bicultural Service Demonstration Grant Program.
Bilingual/Bicultural Service Demonstration Grant Program.
This program is authorized under section 1707(e)(1) of the Public Health Service Act, as amended.
The purpose of this Fiscal Year 2001 Bilingual/Bicultural Service Demonstration Grant Program is to:
1. Improve and expand the capacity for linguistic and cultural competence of health care professionals and paraprofessionals working with limited-English-proficient (LEP) minority communities; and
2. Improve the accessibility and utilization of health care services among the LEP minority populations.
These grants are intended to demonstrate the merit of programs that involve partnerships between minority community-based organizations and health care facilities in a collaborative effort to:
• Address cultural and linguistic barriers to effective health care service delivery; and
• Increase access to effective health care for the LEP minority populations living in the United States.
To qualify for funding, an applicant must:
1. Be a private non-profit, minority or public community-based organization which addresses health or human services (see definition found in this announcement).
2. Provide services to a targeted LEP minority community.
3. Have an established linkage with a health care facility. Local affiliates of national organizations which have an established link with a health care facility are eligible to apply. The linkage must:
• Involve two separate and distinct entities.
• Be documented in writing as specified under the project requirements described in this announcement.
The organization submitting the application will:
• Serve as the lead agency for the grant.
• Be responsible for management of the project.
• Serve as the fiscal agent for the federal grant awarded.
Organizations
National, state-wide, and regional organizations, for-profit hospitals, universities, and schools of higher learning
About $1.25 million is expected to be available for award in FY 2001. It is expected that 9 to 15 community-based organizations (CBOs) will receive awards.
It is anticipated that $500,000 of the total funding will be awarded to projects that include HIV/AIDS as one of the targeted health problem areas.
Those applicants chosen through the competitive process:
• Are to begin their service demonstration programs on September 30, 2001.
• Will receive an award ranging from $75,000 to $150,000 total costs (direct and indirect) for a 12 month period.
• Will be able to receive noncompeting continuation awards for an additional 2 years. After year 1, funding is based on:
For the non-competing continuation awards, grantees must submit continuation
• Continuation awards are expected to range from $75,000 to $150,000. The actual funding level will depend on the availability of funds.
Budgets ranging between $75,000 to $150,000 total costs (direct and indirect) may be requested per year to cover costs of:
Funds
All budget requests must be fully justified in terms of the proposed purpose and objectives. Funds to attend an annual OMH grantee meeting must be included in the budget.
In the United States today, millions of people are not able to speak, read, write, or understand the English language at a level that permits them to interact with their English only health care providers or social services agencies. This can result in barriers in patients' getting to programs, or delays or denial of their services or care. Often, the client may walk away with inaccurate or incomplete health information.
The OMH is committed to working with CBOs to offer activities and services for people with limited English skills.
OMH aims to reach people with limited English proficiency, many of whom are members of racial or ethnic populations. To that end, OMH began the Bilingual/Bicultural Service demonstration Program in 1993. The Program works to build communication bridges and reduce barriers to care for members of LEP communities though offering funding of demonstration projects.
Each project funded under this demonstration program is to:
1. Address at least 1, but no more than 3 problem health areas identified in the section on Health Areas to be Addressed.
2. Carry out activities to improve and expand the capacity of health care providers and other health care professionals to deliver culturally and linguistically appropriate health care services to the target population.
3. Carry out activities to improve access to health care for the LEP population.
4. Have an
A single signed agreement between the applicant organization and the partner organization must be submitted with the application. The agreement must specify in detail the roles and resources that each entity will bring to the project, and the terms of the linkage. The linkage agreement must cover the entire project period.
The document must be signed by individuals with the authority to represent the organization (e.g., president, chief executive officer, executive director).
In FY 2001, the Bilingual/Bicultural Service Demonstration Program will target 21 health areas which are part of the Healthy People 2010 focus areas.
An applicant is required to address at least 1, but no more than 3 of the following health areas for its demonstration project:
• For this grant, you must use form PHS 5161-1 (Revised June 1999 and approved by OMB under Control Number 0937-0189).
• You are advised to pay close attention to the specific program guidelines and general instructions provided in the application kit.
• To get an application kit, write to: Ms. Karen Campbell, Acting Grants Management Officer, Division of Management Operations, Office of Minority Health, Rockwall II Building, Suite 1000, 5515 Security Lane, Rockville, MD 20852; or, call Karen Campbell at: (301) 594-0758.
Send the original and 2 copies of the complete grant application to: Ms. Karen Campbell, Acting Grants Management Officer, Division of Management Operations, Office of Minority Health, Rockwall II Building, Suite 1000, 5515 Security Lane, Rockville, MD 20852.
To receive consideration, grant applications must be received by the OMH Grants Management Office by May 18, 2001. Applications will be considered as meeting the deadline if they are: (1) Received on or before the deadline date, or (2) postmarked on or before the deadline date and received in time for orderly processing. A legibly dated receipt from a commercial carrier or U.S. Postal Service will be accepted in lieu of a postmark. Private metered postmarks will not be accepted as proof of timely mailing. Applications submitted by facsimile transmission (FAX) or any other electronic format will not be accepted. Applications which do not meet the deadline will be considered late and will be returned to the applicant unread.
In addition to contacting Karen Campbell for application kits, she may also be contacted for technical assistance on budget and business aspects of the application. For questions on the program and assistance in preparing a grant proposal, contact: Ms. Cynthia H. Amis, Director, Division of Program Operations, Office of Minority Health, Rockwall II Building, Suite 1000, 5515 Security Lane, Rockville, MD 20852; or, call Cynthia Amis at: (301) 594-0769.
For additional assistance contact OMH Regional Minority Health Consultants listed in the grant application kit.
For health information call the OMH Resource Center at 1-800-444-6472.
• Applications will be screened upon receipt. Applications that are not complete or do not conform to or address the criteria of the announcement will be returned without comment.
• Each organization may submit no more than one proposal under this announcement.
• Organizations submitting more than one proposal will be deemed ineligible. The proposals will be returned without comment.
• Accepted applications will be reviewed for technical merit in accordance with PHS policies.
• Applications will be evaluated by an Objective Review Panel. Panel members are chosen for their expertise in minority health and their understanding of the unique health problems and related issues confronted by the racial/ethnic minority populations in the United States.
The technical review of applications will consider the following 5 generic factors.
Funding decisions will be determined by the Deputy Assistant Secretary for Minority Health, OMH and will take under consideration:
A successful applicant under this notice will submit: (1) Progress reports; (2) an annual Financial Status Report; and (3) a final progress report and Financial Status Report in the format established by the OMH, in accordance with provisions of the general regulations which apply under 45 CFR Part 74.51-74.52, with the exception of State and local governments to which 45 CFR Part 92, Subpart C reporting requirements apply.
The PHS strongly encourages all grant recipients to provide a smoke-free workplace and to promote the nonuse of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of a facility) in which regular or routine education, library, day care, health care or early childhood development services are provided to children.
This program is subject to Public Health Systems Reporting Requirements. Under these requirements, a community-based nongovernmental applicant must prepare and submit a Public Health System Impact Statement (PHSIS). The PHSIS is intended to provide information to State and local health officials to keep them apprised of proposed health services grant applications submitted by community-based organizations within their jurisdictions.
Community-based nongovernmental applicants are required to submit, no later than the Federal due date for receipt of the application, the following information to the head of the appropriate state and local health agencies in the area(s) to be impacted: (a) A copy of the face page of the application (SF 424), and (b) a summary of the project (PHSIS), not to exceed one page, which provides: (1) a description of the population to be served, (2) a summary of the services to be provided, and (3) a description of the coordination planned with the appropriate State or local health agencies. Copies of the letters forwarding the PHSIS to these authorities must be contained in the application materials submitted to the Office of Minority Health.
This program is subject to the requirements of Executive Order 12372 which allows States the option of setting up a system for reviewing applications from within their States for assistance under certain Federal programs. The application kit available under this notice will contain a list of States which have chosen to set up a review system and will include a State Single Point of Contact (SPOC) in the State for review. Applicants (other than federally recognized Indian tribes) should contact their SPOCs as early as possible to alert them to the prospective applications and receive any necessary instructions on the State process. For proposed projects serving more than one State, the applicant is advised to contact the SPOC of each affected State. The due date for State process recommendations is 60 days after the application deadline established by the OMH Grants Management Officer. The OMH does not guarantee that it will accommodate or explain its responses to State process recommendations received after that date. (See “Intergovernmental Review of Federal Programs,” Executive Order 12372, and 45 CFR Part 100 for a description of the review process and requirements.)
For 1 free copy of
This document may also be downloaded from the NCHS web site:
In FY 1993, OMH launched the Bilingual/Bicultural Service Demonstration Program to specifically address the linguistic, cultural and social barriers the LEP minority populations encounter when accessing health services. In addition, the program recognized other factors which contribute to the poor health status of LEP minorities including:
These factors continue to hinder the LEP populations' ability to access and attain quality health care. Therefore, it is essential that health care providers, health care professionals, and other staff become informed about the diverse linguistic, cultural and medical perspectives of the clientele.
Enhancement of cultural and linguistic competency among these individuals should increase LEP minority populations' knowledge of the Western health care model, and increase their access to and willingness to accept appropriate health care.
In a further effort to insure that all people entering the health care system receive equitable and effective treatment in a culturally and linguistically appropriate manner, the OMH finalized the National Standards on Culturally and Linguistically Appropriate Services (CLAS) in Health Care on December 22, 2000.
While these 14 standards are primarily directed at health care organizations, the principals and activities of culturally and linguistically appropriate services should be undertaken in partnership with communities being served. OMH encourages minority community-based organizations to work with partner health care facilities to implement activities addressing those CLAS standards that have applicability to the purposes of the Bilingual/Bicultural Service Demonstration Program.
For purposes of this grant announcement, the following definitions are provided:
A health care facility may be a hospital, outpatient medical facility, community health center, migrant health center, or a mental health center. Facilities providing only screening and referral activities are not included in this definition.
Revision to the Standards for the Classification of Federal Data on Race and Ethnicity,
Office of the Secretary, Office of Public Health and Science, Office of Minority Health, HHS.
Notice of availability of funds and request for applications for the Community Programs to Improve Minority Health Grant Program.
This program is authorized under section 1707(e)(1) of the Public Health Service Act (PHS), as amended.
This program is intended to demonstrate the effectiveness of community-based coalitions in:
• Developing, implementing, and conducting demonstration projects which coordinate integrated community-based educational screening and outreach services, and include linkages for access and treatment to minorities in high-risk, low-income communities; and
• Addressing sociocultural and linguistic barriers to health care.
To qualify for funding, an applicant must meet both the criteria listed below:
1. Be a private non-profit, minority or public community-based organization which addresses health or human services, Historically Black College or University (HBCU), Hispanic Serving Institution (HSI), or Tribal College or University (TCU); and
2. Have an established community coalition of at least three discrete organizations that include a minority community-based organization and a health care facility such as a community health center, migrant health center, health department, or medical center to provide follow-up treatment services.
The organization submitting the application will:
• Serve as the lead agency for the grant;
• Be responsible for management of the project; and
• Serve as the fiscal agent for the federal grant awarded.
Organizations are not eligible to receive funding from more than one Office of Minority Health (OMH) grant program concurrently. An organization may submit only one proposal under this announcement.
National, state-wide, and regional organizations may not apply for these grants. For-profit hospitals and local school districts are also ineligible, although they can be included in the project as a member of the community coalition they may not be the fiscal agent.
Local affiliates of national, state-wide, or regional organizations that meet the definition of a minority community-based organization are eligible to apply.
About $2.5 million is expected to be available for award in FY 2001. It is expected that 17 to 25 awards will be made.
It is anticipated that $600,000 of the total funding will be awarded to projects that include HIV/AIDS as one of the targeted health problem areas.
Those applicants chosen through the competitive review process:
• Are to begin their service demonstration programs on July 1, 2001.
• Will receive an award ranging from $75,000 to $150,000 total costs (direct and indirect) for a 12 month period.
• Will be able to receive noncompeting continuation awards for an additional 2 years. After year 1, funding is based on:
For the non-competing continuation awards, grantees must submit continuation applications, written reports, and continue to meet the established funding guidelines.
• Continuation awards are expected to range from $75,000 to $150,000. Actual funding levels will depend on the availability of funds.
Budgets ranging from $75,000 to $150,000 total costs (direct and indirect) may be requested per year to cover costs of;
Funds
All budget requests must be fully justified in terms of the proposed purpose and objectives. Funds to attend an annual OMH grantee meeting must be included in the budget.
This program is based on the hypothesis that the community coalition approach to health promotion and risk reduction can be effective in reaching minority target populations—especially those most at risk or hard to reach. Among the merits of using coalitions is the higher likelihood that:
1. The intervention will be culturally sensitive, credible, and more acceptable to the target population;
2. The project will address the health problem(s) within the context of related socio-economic issues; and
3. The effort will contribute to overall community empowerment by strengthening indigenous leadership and organizations.
The OMH is continuing, through this FY 2001 announcement, to promote the utilization of community coalitions to develop and implement health education, promotion, and disease risk reduction programs.
In FY 2001, eligibility for the Community Programs to Improve Minority Health Grant Program is being expanded to include HBCUs, HSIs, and TCUs because of their unique and, in many instances, historical relationship with the target communities.
Also in FY 2001, the Community Programs to Improve Minority Health Grant Program will target 21 of the health areas which are part of the
To learn more about the health disparities that exist among racial and ethnic minorities in the United States today, read applicable sections of
The Healthy People 2010 focus areas will also be listed in the grant application kit.
Each project funded under this demonstration program is to:
1. Address at least 1, but no more than 3, of the health problem areas identified in the section on Health Areas to be Addressed.
2. Have an
The coalition must have the capacity to:
• Plan and coordinate services which reduce existing sociocultural and/or linguistic barriers to health care; and
• Carry out screening, outreach, and enabling services to ensure that clients follow up with treatment and treatment referrals.
3. Include at least 3 discrete entities in the coalition. This must include a minority community-based organization and a health care facility.
A single, signed agreement between the applicant organization, the health care facility, and the remaining coalition member(s) must be submitted with the application. The agreement must specify in detail the roles and resources that each entity will bring to the project, and the terms of the linkage. The linkage agreement must cover the entire project period.
The document must be signed by individuals with the authority to represent the organization (e.g., chief executive officer, executive director, president/chancellor, school principal).
In FY 2001, the Community Programs to Improve Minority Health Program will target 21 health areas which are part of the Healthy People 2010 focus areas.
An applicant is required to address at least 1, but no more than 3 of the following health areas for its demonstration project:
• For this grant, Form PHS 5161-1 (Revised June 1999 and approved by OMB under Control Number 0937-0189) must be used.
• An applicant is advised to pay close attention to the specific program guidelines and general instructions provided in the application kit.
• To get an application kit, write to: Ms. Karen Campbell, Acting Grants Management Officer, Division of Management Operations, Office of Minority Health, Rockwall II Building, Suite 1000, 5515 Security Lane, Rockville, MD 20852; or call Karen Campbell at (301) 594-0758.
Send the original and 2 copies of the complete grant application to: Ms. Karen Campbell, Acting Grants Management Officer, Division of Management Operations, Office of Minority Health, Rockwall II Building, Suite 1000, 5515 Security Lane, Rockville, MD 20852.
To receive consideration, grant applications must be received by the OMH Grants Management Office by May 18, 2001. Applications will be considered as meeting the deadline if they are: (1) Received on or before the deadline date, or (2) postmarked on or before the deadline date and received in time for orderly processing. A legibly dated receipt from a commercial carrier or U.S. Postal Service will be accepted in lieu of a postmark. Private metered postmarks will not be accepted as proof of timely mailing. Applications submitted by facsimile transmission (FAX) or any other electronic format will not be accepted. Applications which do not meet the deadline will be considered late and will be returned to the applicant unread.
In addition to contacting Karen Campbell for application kits, she may also be contacted for technical assistance on budget and business aspects of the application. For questions on the program and assistance in preparing a grant proposal, contact: Ms. Cynthia H. Amis, Director, Division of Program Operations, Office of Minority Health, Rockwall II Building, Suite 1000, 5515 Security Lane, Rockville, MD 20852; or call: Cynthia Amis at (301) 594-0769.
For additional assistance contact the OMH Regional Minority Health Consultants listed in the grant application kit.
For health information call the OMH Resource Center at 1-800-444-6472.
• Applications will be screened upon receipt. Applications that are not complete or that do not conform to or address the criteria of the announcement will be returned without comment.
• Each organization may submit no more than one proposal under this announcement.
• Organizations submitting more than one proposal will be deemed ineligible. The proposals will be returned without comment.
• Accepted applications will be reviewed for technical merit in accordance with PHS policies.
• Applications will be evaluated by an Objective Review Panel. Panel members are chosen for their expertise in minority health and their understanding of the unique health problems and related issues confronted by the racial/ethnic minority populations in the United States.
The technical review of applications will consider the following 5 generic factors.
Funding decisions will be determined by the Deputy Assistant Secretary for Minority Health, OMH and will take under consideration:
A successful applicant under this notice will submit: (1) Progress reports; (2) an annual Financial Status Report; and (3) a final progress report and
The PHS strongly encourages all grant recipients to provide a smoke-free workplace and to promote the non-use of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of a facility) in which regular or routine education, library, day care, health care or early childhood development services are provided to children.
This program is subject to Public Health Systems Reporting Requirements. Under these requirements, a community-based nongovernmental applicant must prepare and submit a Public Health System Impact Statement (PHSIS). The PHSIS is intended to provide information to State and local health officials to keep them apprised of proposed health services grant applications submitted by community-based organizations within their jurisdictions.
Community-based nongovernmental applicants are required to submit, no later than the Federal due date for receipt of the application, the following information to the head of the appropriate State and local health agencies in the area(s) to be impacted: (a) a copy of the face page of the application (SF 424), and (b) a summary of the project (PHSIS), not to exceed one page, which provides: (1) a description of the population to be served, (2) a summary of the services to be provided, and (3) a description of the coordination planned with the appropriate State or local health agencies. Copies of the letters forwarding the PHSIS to these authorities must be contained in the application materials submitted to the Office of Minority Health.
This program is subject to the requirements of Executive Order 12372 which allows States the option of setting up a system for reviewing applications from within their States for assistance under certain Federal programs. The application kit available under this notice will contain a list of States which have chosen to set up a review system and will include a State Single Point of Contact (SPOC) in the State for review. Applicants (other than federally recognized Indian tribes) should contact their SPOCs as early as possible to alert them to the prospective applications and receive any necessary instructions on the State process. For proposed projects serving more than one State, the applicant is advised to contact the SPOC of each affected State. The due date for State process recommendations is 60 days after the application deadline established by the Office of Minority Health's Acting Grants Management Officer. The Office of Minority Health does not guarantee that it will accommodate or explain its responses to State process recommendations received after that date. (See “Intergovernmental Review of Federal Programs” Executive Order 12372 and 45 CFR Part 100 for a description of the review process and requirements).
For a free copy of
This document may also be downloaded from the NCHS web site
For purposes of this grant announcement, the following definitions are provided:
A health care facility may be a hospital, outpatient medical facility, community health center, migrant health center, or a mental health center. Facilities providing only screening and referral activities are not included in this definition.
Minority Community-Based Organizations—Private non-profit, community-based organizations or local affiliates of national organizations that have a governing board composed of 51 percent or more racial/ethnic minority members and have a significant number of minorities employed in key program positions.
Risk Factor—-The environmental and behavioral influences capable of causing ill health with or without predisposition.
Sociocultural Barriers—Policies, practices, behaviors, and beliefs that create obstacles to health care access and service delivery. Examples of sociocultural barriers include:
Tribal Colleges and Universities—Those institutions cited in section 532 of the Equity in Education Land-Grants Status Act of 1994 (U.S.C. 301 note) or that qualify for funding under the Tribally Controlled Community College Assistance Act of 1978, (25 U.S.C. 1801 et seq.), and Navajo Community College, authorized in the Navajo Community College Assistance Act of 1978, Public Law 95-471, Title II (25 U.S.C. 640a note).
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2002 funds for institutional training grants in occupational safety and health. This program addresses the “Healthy People 2010” priority area of occupational safety and health. The goal of the program is to provide an adequate supply of qualified personnel to carry out the purposes of the Occupational Safety and Health Act. The specific program objective is to provide financial assistance to eligible institutions or agencies to assist in providing an adequate supply of qualified professional occupational safety and health personnel. Projects are supported for Occupational Safety and Health Education and Research Center Training Grants (ERCs) and for Long-Term Training Project Grants (TPGs). ERCs are funded academic institutions that provide interdisciplinary graduate training and continuing education in the industrial hygiene, occupational health nursing, occupational medicine, occupational safety, and closely related occupational safety and health fields. The ERCs also serve as regional resource centers for industry, labor, government, and the public. TPGs are funded academic institutions that primarily provide single-discipline graduate training in the industrial hygiene, occupational health nursing, occupational medicine, occupational safety, and closely related occupational safety and health fields.
Any public or private educational or training agency or institution that has demonstrated competency in the occupational safety and health field and is located in a State, the District of Columbia, or U.S. Territory is eligible to apply for an institutional training grant.
Public Law 104-65 states that an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, cooperative agreement, contract, loan, or any other form.
In FY 2002, a total of approximately $16,200,000 is available for award. Approximately $10,280,000 of this total is available for non-competing continuation awards. Approximately $5,920,000 is available for competing continuation or new awards to fund ERC and TPG programs as described below:
1. For ERCs:
Approximately $5,520,000 of the total funds available will be utilized as follows:
a. Approximately $4,800,000 is available to award seven competing continuation or new ERC grants. This includes $280,000 to augment the support of occupational medicine residents. Awards range from $400,000 to $800,000 with the average award being $680,000.
b. Approximately $480,000 is available to award supplemental funds to eight competing continuation or new training grants; four of the awards are planned for $240,000 for Hazardous Substance Academic Training (HSAT) Programs and four of the awards are planned for $240,000 for Hazardous Substance Training (HST) Programs. The awards are to support the development and presentation of: continuing education and short courses (HST Programs) and academic curricula (HSAT Programs) for trainees and professionals engaged in the management of hazardous substances. Program support is available for faculty and staff salaries, trainee costs, and other costs to provide training and education for occupational safety and health and other professional personnel engaged in the evaluation, management, and handling of hazardous substances.
c. Approximately $120,000 is available to award supplemental funds to two competing continuation or new training grants. These awards will support the development of specialized educational programs in agricultural safety and health within the existing core disciplines of industrial hygiene, occupational medicine, occupational health nursing, and occupational safety.
d. Approximately $120,000 is available to award supplemental funds to two new grants to support the enhancement of the ERC research training mission through the support of pilot project research training programs. The pilot projects should be related to the National Occupational Research Agenda (NORA).
2. For TPGs:
Approximately $400,000 of the total funds available will be utilized as follows:
To award approximately six competing continuation or new TPG grants. Awards will range from approximately $20,000 to $100,000, with the average award being $65,000. This includes $40,000 to augment the support of occupational medicine residents. These awards will support academic programs in the core disciplines (i.e., industrial hygiene, occupational health nursing, occupational/industrial medicine, and occupational safety and ergonomics) and relevant components (e.g., occupational injury prevention, industrial toxicology, ergonomics). These awards are intended to augment the scope, enrollment, and quality of training programs rather than to replace
3. It is expected that awards will begin on or about July 1, 2002, and will be made for a 12-month budget period within a project period of up to five years. Supplemental awards will be made for a 12-month budget period within a project period not to exceed that of the main training grant.
Continuation awards within an approved project period will be made on the basis of satisfactory progress as evidenced by required reports and the availability of funds.
The following are applicant requirements:
1. An ERC shall be an identifiable organizational unit within the sponsoring organization. Applicants must meet the following characteristics in order to be considered responsive. If the characteristics are not met, the application will be considered non-responsive and will be returned to the applicant without a review.
(a) Cooperative arrangements with a: medical school or teaching hospital (with an established program in preventive or occupational medicine); school of nursing or its equivalent; school of public health or its equivalent; or school of engineering or its equivalent. It is expected that other schools or departments with relevant disciplines and resources shall be represented and shall contribute as appropriate to the conduct of the total program,
(b) An ERC Director who possesses a demonstrated capacity for sustained productivity and leadership in occupational health and safety education and training. The Director shall oversee the general operation of the ERC Program and shall, to the extent possible, directly participate in training activities. A Deputy Director shall be responsible for managing the daily administrative duties of the ERC and to increase the ERC Director's availability to ERC staff and to the public.
(c) Program Directors who are full-time faculty and professional staff representing various disciplines and qualifications relevant to occupational safety and health who are capable of planning, establishing, and carrying out or administering training projects undertaken by the ERC. Each academic program, as well as the continuing education and outreach program, shall have a Program Director.
(d) Faculty and staff with demonstrated training and research expertise, appropriate facilities and ongoing training and research activities in occupational safety and health areas.
(e) A program for conducting education and training for four core disciplines: occupational physicians, occupational health nurses, industrial hygienists, and occupational safety personnel. There shall be a minimum of five full-time students or full-time equivalent students in each of the core programs, with a goal of a minimum of 30 full-time students (total in all of core and component programs together). ERCs are encouraged to recruit and train minority students to help address the under-representation of minorities among the occupational safety and health professional workforce. Although it is desirable for an ERC to have the full range of core programs, an ERC with a minimum of three academic programs of which two are in the core disciplines is eligible for support providing it is demonstrated that students will be exposed to the principles and issues of all four core disciplines. In order to maximize the unique strengths and capabilities of institutions, consideration will be given to the development of: new and innovative academic programs that are relevant to the occupational safety and health field,
(f) A specific plan describing how trainees in core and component academic programs will be exposed to the principles of all other occupational safety and health core and allied disciplines. ERCs that apply as a consortium (contracting with other institutional partners) generally have geographic, policy and other barriers to achieving this ERC characteristic and, therefore, must give special, innovative, attention to thoroughly describing the approach for fulfilling interdisciplinary interaction between students.
(g) Demonstrated impact of the ERC on the curriculum taught by relevant medical specialties, including family practice, internal medicine, dermatology, orthopedics, pathology, radiology, neurology, perinatal medicine, psychiatry, etc., and on the curriculum of undergraduate, graduate and continuing education of primary core disciplines as well as relevant medical specialities and the curriculum of other schools such as engineering, business, and law.
(h) An outreach program to interact with and help other institutions or agencies located within the region. Programs shall be designed to address regional needs and implement innovative strategies for meeting those needs. Partnerships and collaborative relationships shall be encouraged between ERCs and TPGs. Programs to address the under-representation of minorities among occupational safety and health professionals shall be encouraged. Specific efforts should be made to conduct outreach activities to develop collaborative training programs with academic institutions serving minority and other special populations, such as Tribal Colleges and Universities, Historically Black Colleges and Universities, and Hispanic-Serving Institutions. Examples of outreach activities might include activities such as: Interaction with other colleges and schools within the ERC and with other universities or institutions in the region to integrate occupational safety and health principles and concepts within existing curricula (e.g., Colleges of Business Administration, Engineering, Architecture, Law, and Arts and Sciences); exchange of occupational safety and health faculty among regional educational institutions; providing curriculum materials and consultation for curriculum/course development in other institutions; use of a visiting faculty program to involve labor and management leaders; cooperative and collaborative arrangements with professional societies, scientific associations, and boards of accreditation, certification, or licensure; and presentation of awareness seminars to undergraduate and secondary
(i) A specific plan for preparing, distributing and conducting courses, seminars and workshops to provide short-term and continuing education training courses for physicians, nurses, industrial hygienists, safety engineers and other occupational safety and health professionals, paraprofessionals and technicians, including personnel from labor-management health and safety committees, in the geographical region in which the ERC is located. The goal shall be that the training be made available to a minimum of 400 trainees per year representing all of the above categories of personnel, on an approximate proportional basis with emphasis given to providing occupational safety and health training to physicians in family practice, as well as industrial practice, industrial nurses, and safety engineers. Priority shall be given to establishing new and innovative training technologies, including distance learning programs and to short-term programs designed to prepare a cadre of practitioners in occupational safety and health. Where appropriate, it shall be professionally acceptable that Continuing Education Units (as approved by appropriate professional associations) may be awarded. These courses should be structured so that higher educational institutions, public health and safety agencies, professional societies or other appropriate agencies can utilize them to provide training at the local level to occupational health and safety personnel working in the workplace. Further, the ERC shall conduct periodic training needs assessments, shall develop a specific plan to meet these needs, and shall have demonstrated capability for implementing such training directly and through other institutions or agencies in the region. The ERC should establish and maintain cooperative efforts with labor unions, government agencies, and industry trade associations, where appropriate, thus serving as a regional resource for addressing the problems of occupational safety and health that are faced by State and local governments, labor and management.
(j) A Board of Advisors or Consultants representing the user and affected population, including representatives of labor, industry, government agencies, academic institutions and professional associations, shall be established by the ERC. The Board should meet at least annually to advise an ERC Executive Committee and to provide periodic evaluation of ERC activities. The Executive Committee shall be composed of the ERC Director and Deputy Director, academic Program Directors, the Director for Continuing Education and Outreach and others whom the ERC Director may appoint to assist in governing the internal affairs of the ERC.
(k) A plan to incorporate research training into all aspects of training and, in research institutions, as documented by on-going funded research and faculty publications, a defined research training plan for training doctoral-level researchers in the occupational safety and health field. The plan will include how the ERC intends to strengthen existing research training efforts, how it will integrate research training activities into the curriculum, field and clinical experiences, how it will expand these research activities to have an impact on other primarily clinically-oriented disciplines, such as nursing and medicine, and how it will build on and utilize existing research opportunities in the institution. Each ERC is required to identify or develop a minimum of one, preferably more, areas of research focus related to work environment problems. Consideration shall be given to the CDC/NIOSH priority research areas identified in the National Occupational Health Research Agenda (NORA). Further information regarding NORA may be found at the CDC/NIOSH home page:
1. Evidence in obtaining support from other sources, including other Federal grants, support from States and other public agencies, and support from the private sector including grants from foundations and corporate endowments, chairs, and gifts.
2. TPG applicants must document that the program covers an occupational safety and health discipline in critical need or meets a specific regional workforce need. There shall be a minimum of three full-time students or full-time equivalent students in each academic program. Applicants should address the importance of providing training and education content related to special populations at risk, including minority and disadvantaged workers. The types of training currently eligible for support are:
(a) Graduate training for practice, teaching, and research careers in occupational safety and health. Priority will be given to programs producing graduates in areas of greatest occupational safety and health need. Strong consideration will be given to the establishment of innovative training technologies including distance learning programs.
(b) Undergraduate and other pre-baccalaureate training providing trainees with capabilities for positions in occupational safety and health professions.
(c) Special technical or other programs for long-term training of occupational safety and health technicians or specialists.
Applications will be evaluated on the basis of the Program Requirements, Other Requirements, and Evaluation Criteria sections listed, so it is important to follow them in laying out the program plan. The narrative should be no more than 15 pages per program. Prepare the application single-sided and single-spaced, staying within the margin limitations indicated on the form and continuation pages. The print must be clear and legible. Use standard size, black letters that can be clearly copied. Do not use photo reduction. Prepare all graphs, diagrams, tables, and charts in black ink. The application must contain only material that can be photocopied. Do not include course catalogue and course brochures. When additional space is needed to complete any of the items, use plain white paper (8
Please consult the detailed Recommended Outline for Preparation of Competing New/Renewal Training Grant Applications provided in each application kit (CDC 2.145 A).
Applications should be clearly identified as an application for an ERC Training Grant or TPG Training Grant.
Submit the original and two copies of CDC 2.145 A—ERC or TPG (OMB Number 0920-0261). Forms are in the application kit. Forms and instructions are also available on the CDC home page:
Deadline: Applications shall be considered as meeting the deadline if they are either:
(a) Received on or before the deadline date; or
(b) Sent on or before the deadline date and received in time for submission to the independent review group. (Applicants must request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or U.S. Postal Service. Private metered postmarks shall not be acceptable as proof of timely mailing.)
Late Applications: Applications which do not meet the criteria in (a) or (b) above are considered late applications, will not be considered, and will be returned to the applicant.
Each application will be evaluated individually against the following criteria. The initial peer review will be conducted by means of a panel meeting or site visit. The purpose of the initial review is to obtain basic information regarding elements of the proposed training grant program and to provide a technical report as input to the Special Emphasis Panel. The final official peer review will be conducted by a Special Emphasis Panel appointed by CDC.
In reviewing ERC grant applications, the evaluation criteria are as follows:
1. Plans to satisfy the regional needs for training in the areas outlined by the application, including projected enrollment, recruitment and current workforce populations. Special consideration should be given to the development of programs addressing the under-representation of minorities among occupational safety and health professionals. Indicators of regional need should include measures utilized by the ERC such as previous record of training and placement of graduates. The need for supporting students in allied disciplines must be specifically justified in terms of user community requirements.
2. Extent to which arrangements for day-to-day management, allocation of funds and cooperative arrangements are designed to effectively achieve the “Characteristics of an Education and Research Center” (see D.1).
3. The establishment of new and innovative programs and approaches to training and education relevant to the occupational safety and health field and based on documentation that the program meets specific regional workforce needs. In reviewing such proposed programs, consideration shall be given to the developing nature of the program and its capability to produce graduates who will meet such workforce needs.
4. Extent to which curriculum content and design includes formalized training objectives, minimal course content to achieve degree, course descriptions, course sequence, additional related courses open to occupational safety and health students, time devoted to lecture, laboratory and field experience, and the nature of specific field and clinical experiences including their relationships with didactic programs in the educational process.
5. Academic training including the number of full-time and part-time students and graduates for each core and component program, the placement of graduates, employment history, and their current location by type of institution (academic, industry, labor, etc.). Previous continuing education training in each discipline and outreach activity and assistance to groups within the ERC region.
6. Methods in use or proposed methods for evaluating the effectiveness of training and outreach including the use of placement services and feedback mechanisms from graduates as well as employers, innovative strategies for meeting regional needs, critiques from continuing education courses, and reports from consultations and cooperative activities with other universities, professional associations, and other outside agencies.
7. Competence, experience and training of the ERC Director, the Deputy ERC Director, the Program Directors and other professional staff in relation to the type and scope of training and education involved.
8. Institutional commitment to ERC goals. An example of institutional commitment to the long-term stability of ERC programs is the commitment of tenured or tenure-track faculty positions to each participating academic program.
9. Academic and physical environment in which the training will be conducted, including access to appropriate occupational settings.
10. Appropriateness of the budget required to support each academic component of the ERC program, including a separate budget for the academic staff's time and effort in continuing education and outreach.
11. Evidence of the integration of research experience into the curriculum, and field and clinical experiences. In institutions seeking funds for doctoral and post-doctoral (physician training) level research training, evidence of a plan describing the research and research training the ERC proposes. This shall include goals, elements of the program, research faculty and amount of effort, support faculty, facilities and equipment available and needed, and methods for implementing and evaluating the program.
12. Evidence of success in attaining outside support to supplement the ERC grant funds including other Federal grants, support from States and other public agencies, and support from the private sector including grants from foundations and corporate endowments, chairs, and gifts.
13. Evidence of a strategy to evaluate the impact that the ERC and its programs have had on the region served by the Center. Examples could include a continuing education needs assessment, a workforce needs survey, consultation and research programs provided to address regional occupational safety and health problems, the impact on primary care practice and training, a program graduate data base to track the employment history and contributions of graduates to the occupational safety and health field, and the cost effectiveness of the program.
14. Past performance based on evaluation of the most recent CDC/NIOSH Objective Review Summary Statement and the grant application Progress Report(Competing Continuation applications only).
In reviewing supplements to ERC grants, consideration will be given to:
1.
a. Relevance of the proposed project to each element of the characteristics of a hazardous substance training program.
b. Comprehensiveness and soundness of the training plan developed to carry out the proposed activities. This is based on a documented need for the training and evidence to support the approach used to provide the required training. It includes description of the scope and magnitude of the hazardous substance problem in the region served by the ERC and current activities and training efforts.
c. Education and experience of the Project Director, faculty, and staff assigned to this project with respect to handling, managing or evaluating hazardous substance sites and to the training of professionals in this field.
d. Creativity and innovation of the project leadership with respect to marketing the courses, structure in attracting trainees and/or providing incentives for training.
e. Extent to which the applicant considered the work of relevant agencies involved in hazardous substance activities, including EPA, and cooperated with these agencies in developing and implementing this training program.
f. Suitability of facilities and equipment available for this project.
g. Appropriateness of the budget to carry out the planned activities.
2.
a. Evidence of a needs assessment directed to the overall contribution of the training program toward meeting the job market, especially within the applicant's region, for qualified personnel to carry out the purposes of the Occupational Safety and Health Act of 1970. The needs assessment should consider the regional requirements for outreach, continuing education, information dissemination and special industrial or community training needs that may be peculiar to the region.
b. Evidence of a plan to satisfy the regional needs for training in the areas outlined by the application, including projected enrollment, recruitment and current workforce populations. The need for supporting students in allied disciplines must be specifically justified in terms of user community requirements.
c. The extent to which arrangements for day-to-day management, allocation of funds and cooperative arrangements are designed to effectively achieve characteristics of an ERC.
d. The extent to which curriculum content and design includes formalized training objectives, minimal course content to achieve degree, course descriptions, course sequence, additional related courses open to occupational safety and health students, time devoted to lecture, laboratory and field experience, and the nature of specific field and clinical experiences including their relationships with didactic programs in the educational process.
e. Previous record of academic training in agricultural safety and health including the number of full-time and part-time students and graduates, the placement of graduates, employment history, and their current location by type of institution (academic, industry, labor, etc.). Previous record of continuing education training in agricultural safety and health and record of outreach activity and assistance to agricultural groups within the ERC region.
f. Methods in use or proposed for evaluating the effectiveness of training and services including the use of placement services and feedback mechanisms from graduates as well as employers, critiques from continuing education courses, and reports from consultations and cooperative activities with other universities, professional associations, and other outside agencies.
g. The competence, experience and training of the Program Director and other professional staff in relation to the type and scope of training and education involved.
h. Institutional commitment to Center goals.
i. Academic and physical environment in which the training will be conducted, including access to appropriate occupational agricultural settings.
j. Appropriateness of the budget required to support the agricultural safety and health education program. This includes the budget for the academic program and the continuing education and outreach program.
k. Evidence of a plan describing the agricultural safety and health training the Center proposes. This shall include goals, elements of the program, faculty and amount of effort, support faculty, facilities and equipment available and needed, and methods for implementing and evaluating the program.
l. Evidence of success in attaining outside support to supplement the ERC grant funds including other federal grants, support from states and other public agencies, and support from the private sector including grants from foundations and corporate endowments, chairs, and gifts.
3.
a. Evidence of a needs assessment directed to the overall contribution of the proposed training program toward meeting the needs of the job market, especially within the applicant's region. The needs assessment should consider the regional requirements for hazardous substance training, information dissemination and special industrial, labor or community training needs that may be peculiar to the region.
b. Evidence of a plan to satisfy regional needs for training in the areas outlined by the application, including Program projected enrollment and recruitment and current workforce populations.
c. The extent to which the HSAT curriculum content and design includes: Formalized training objectives; minimal course content to achieve a degree or successful completion of the specialty area requirements; course descriptions; course sequence; additional related courses open to occupational safety and health students; time devoted to lecture, laboratory, and field experience; and the nature of specific field and clinical experiences including their relationships with didactic programs in the educational process.
d. Previous record of academic and/or short course training delivered in the hazardous substances field, including the number and type of students trained. Previous record of hazardous substances outreach activity and assistance to hazardous substance groups within the ERC's region.
e. Methods in use or proposed for evaluating the effectiveness of training and services including the use of placement services and feedback mechanisms from graduates as well as employers, student evaluations from academic and continuing education courses, and reports from consultations and cooperative activities with other universities, professional associations, and other outside agencies.
f. The competence, experience and training of the Program Director and other professional staff in relation to the type and scope of training and education involved.
g. Institutional commitment to HSAT Program goals.
h. Academic and physical environment in which the training will be conducted.
i. Appropriateness of the budget required to support the training courses developed, including accounting for the academic staff's time.
j. Evidence of a plan describing the hazardous substances academic training the Center proposes. This shall include goals, elements of the program, faculty and amount of effort, support faculty,
k. Evidence of success in attaining outside support to supplement the ERC grant funds including other federal grants, support from states and other public agencies, and support from the private sector including grants from foundations and corporate endowments, chairs, and gifts.
l. Extent to which the applicant has collaborated with state and federal agencies having hazardous substance management functions, including the U.S. Environmental Protection Agency, and has cooperated with the agencies in developing and implementing this program.
4.
a. Relevance of the proposed program, including objectives that are specific and consistent.
b. Adequacy of the plan proposed to conduct the pilot projects program, including procedures for reviewing and funding projects, the scientific review mechanism, program quality assurance. Human Subjects—Are the procedures proposed adequate for the protection of human subjects and are they fully documented? Are all procedures in compliance with applicable published regulations?
c. Extent to which the applicant demonstrates collaboration with other research training institutions in the region, including NIOSH Training Project Grantees.
d. Education and experience of the proposed Research Training Program Director and faculty in the occupational safety and health field, including the utilization of pilot projects as a research training mechanism.
e. Appropriateness of the proposed budget to carry out the planned activities.
f. Adequacy of the plan to evaluate the effectiveness of the proposed pilot projects program.
g. Gender and minority issues—Are plans to include both sexes and minorities and their subgroups adequately developed (as appropriate for the scientific goals of the project)? Are strategies included for the recruitment and retention of human subjects? (See Attachment 1, AR-2—Requirements for Inclusion of Women and Racial and Ethnic Minorities in Research.)
In reviewing TPG applications, the evaluation criteria are as follows:
1. Need for training in the program area outlined by the application. This should include documentation of a plan for student recruitment, projected enrollment, job opportunities, regional need both in quality and quantity, and for programs addressing the under-representation of minorities in the profession of occupational safety and health.
2. Potential contribution of the project toward meeting the needs for graduate or specialized training in occupational safety and health.
3. The establishment of new and innovative programs and approaches to training and education relevant to the occupational safety and health field and based on documentation that the program meets specific regional workforce needs. In reviewing such proposed programs, consideration shall be given to the developing nature of the program and its capability to produce graduates who will meet such workforce needs.
4. Curriculum content and design which should include formalized program objectives, minimal course content to achieve degree, course sequence, related courses open to students, time devoted to lecture, laboratory and field experience, nature and the interrelationship of these educational approaches. There should also be evidence of integration of research experience into the curriculum, and field and clinical experiences.
5. Previous records of training in this or related areas, including placement of graduates.
6. Methods proposed to evaluate effectiveness of the training.
7. Degree of institutional commitment: Is grant support necessary for program initiation or continuation? Will support gradually be assumed? Is there related instruction that will go on with or without the grant? An example of institutional commitment to the long-term stability of TPG programs is the commitment of tenured or tenure-track faculty positions to each academic program.
8. Adequacy of facilities (classrooms, laboratories, library services, books, and journal holdings relevant to the program, and access to appropriate occupational settings).
9. Competence, experience, training, time commitment to the program and availability of faculty to advise students, faculty/student ratio, and teaching loads of the program director and teaching faculty in relation to the type and scope of training involved. The program director must be a full-time faculty member.
10. Admission Requirements: Student selection standards and procedures, student performance standards and student counseling services.
11. Advisory Committee: Membership, industries and labor groups represented; how often they meet; who they advise, role in designing curriculum and establishing program need. The Committee should meet at least annually to provide advice and periodic evaluation of TPG activities.
12. Evidence of a strategy to evaluate the impact that the program has had on the region. Examples could include a workforce needs survey, consultation and research programs provided to address regional occupational safety and health problems, a program graduate data base to track the employment history and contributions of graduates to the occupational safety and health field, and the cost effectiveness of the program.
13. Past performance based on evaluation of the most recent CDC/NIOSH Objective Review Summary Statement and the grant application Progress Report(Competing Continuation applications only).
Provide CDC with original plus two copies of:
1. Progress reports (annual and may be incorporated as component of non-competing continuation applications);
2. Financial status report, no more than 90 days after the end of the budget period; and
3. Final financial status and progress reports, no more than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in Section J of this announcement, “Where to Obtain Additional Information”.
The following additional requirements are applicable to this program. For a complete description of each, see Attachment 1 in the application kit.
*=Applies to ERC Supplemental Pilot Project Research Training Program applications only.
Data collection initiated under this training grant program has been approved by the Office of Management and Budget under Number 0920-0261. “NIOSH Training Grants, 42 CFR part 86, Application and Regulations,” Expiration Date 1/31/2004.
This program is authorized under section 21(a) of the Occupational Safety and Health Act [29 U.S.C. 670 (a)]. The Catalog of Federal Domestic Assistance number is 93.263.
This and other CDC announcements are available through the CDC homepage on the Internet at
To receive additional written information and to request an application kit, call 1-888-GRANTS4 (1-888-472-6874). You will be asked to leave your name and address and will be instructed to identify the announcement number of interest. Please refer to Program Announcement 02001 and specify ERC or TPG when you request information. If you have questions after reviewing the contents of all the documents, business management technical assistance may be obtained from: Sonia V. Rowell, Grants Management Specialist, Grants Management Branch, Procurement and Grants Office, Announcement 02001, Centers for Disease Control and Prevention (CDC), 2920 Brandywine Road, Room 3000, Atlanta, GA 30341-4146, Telephone: (770) 488-2724, Email address: srowell@cdc.gov.
For program technical assistance, contact: John T. Talty, Principal Engineer, Office of Extramural Programs, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention (CDC), 4676 Columbia Parkway, Mailstop C-7, Cincinnati, OH 45226-1998, Telephone (513) 533-8241, Email address: jtt2@cdc.gov.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on two proposed collections of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collections of information by May 18, 2001.
Submit electronic comments on the collections of information to http://www.accessdata.fda.gov/scripts/oc/dockets/edockethome.cfm. Submit written comments on the collections of information to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. All comments should be identified with the docket number found in brackets in the heading of this document.
Karen L. Nelson, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA’s functions, including whether the information will have practical utility; (2) the accuracy of FDA’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques when appropriate, and other forms of information technology.
Under the Federal Food, Drug, and Cosmetic Act (the act), FDA is responsible for ensuring that the labeling and advertising of prescription drugs is truthful and not misleading. Section 502(n) of the act (21 U.S.C. 352(n)) prohibits the advertising of prescription drugs that is false or misleading or that fails to provide required information about product risks. Although advertising of prescription drugs was once primarily addressed to health professionals, consumers increasingly have become a primary target audience, and DTC advertising has dramatically increased in the past few years. However, DTC advertising raises many questions and issues. While it may alert consumers to new information and facilitate treatment of their medical problems, it also may confuse consumers and adversely impact the relationship between patients and their health care providers. In August 1997, when the agency issued its draft guidance on consumer-directed broadcast advertisements, FDA announced that it intended to evaluate the effects of the guidance and of DTC promotion in general within 2 years of finalizing the guidance. The guidance was finalized on August 9, 1999 (64 FR 43197). In the notice announcing
The purpose of the proposed information collection is to follow up on the agency’s 1999 patient survey and expand information collection to include physicians. FDA needs information from physicians and patients about their reactions to, and behaviors that stem from, DTC prescription drug advertising in order to develop policy on appropriate requirements for regulating drug product promotional materials.
Two data collections will be conducted: A patient survey and a physician survey. The patient survey will be conducted through randomized telephone interviews with a national probability sample consisting of 775 adults 18 years of age and over who have recently visited a physician. The sample will be limited to those respondents who have seen a doctor or other health care professional in the last 3 months. Patient respondents will be asked their views about any prescription drug they may have received and prescription drugs in general, and their attitudes and behavior in relation to DTC advertising. Demographic information will also be collected.
The physician survey will be conducted through telephone interviews with a national probability sample of office-based physicians who engage in-patient care at least half of the time. The sampling frame of physicians will consist of names drawn from the American Medical Association’s Physician Masterfile. In an effort to maximize the response rate for physicians, prenotification letters will be mailed to all potential physician respondents. The survey itself will cover DTC-related patient interactions, perceived patient outcomes, attitudes toward appropriate DTC categories, and general opinions about DTC advertising. Demographic information will also be collected.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Mammography Facilities, Standards, and Lay Summaries for Patients” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Food Safety Survey” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the withdrawal, without prejudice to a future filing, of a food additive petition (FAP 2B3627) proposing that the food additive regulations be amended to provide for the safe use of 2-(4-thiazolyl)benzimidazole as a component of adhesives and paper and paperboard.
Julius Smith, Center for Food Safety and Applied Nutrition (HFS-215), Food and Drug Administration, 200 C St. SW.,Washington, DC 20204, 202-418-3091.
In a notice published in the
Health Care Financing Administration (HCFA), Department of Health and Human Services (HHS).
Notice of modified or altered system of records (SOR).
In accordance with the requirements of the Privacy Act of 1974, we are proposing to modify or alter a system of records, “A Current Beneficiary Survey (CBS), HHS/HCFA/OACT, System No. 09-70-6002.” We propose to delete published routine use number 2 authorizing disclosure to the Bureau of the Census, and an unnumbered routine use authorizing disclosure to the Social Security Administration. Routine use number 2 unnecessarily duplicated Exception 4 of the Privacy Act allowing release of data to the Bureau of the Census. We propose to add a new routine use for release of information to another federal agency to broaden the scope of release for activities related to this system of records. We will modify the name of this system to read, “Medicare Current Beneficiary Survey (MCBS).” The security classification previously reported as “None” will be modified to reflect that the data in this system is considered to be “Level Three Privacy Act Sensitive.” We are modifying the language in the remaining routine uses to provide clarity to HCFA's intention to disclose individual-specific information contained in this system. The routine uses will then be prioritized and reordered according to their usage. We will also take the opportunity to update any sections of the system that were affected by the recent reorganization and to update language in the administrative sections to correspond with language used in other HCFA (SOR).
The primary purpose of the system of records is to maintain a research database for HCFA and other researchers that is capable of producing data sets suitable for both longitudinal and cross-sectional analysis to be used to: (1) Produce projections for current programs and proposed program changes, (2) produce national level estimates of health care expenditures by the aged and disabled, and (3) provide a research database that can be used to provide guidance to program management and policies. Information in this system will also be used to: support research of policy issues, quality and effectiveness of care, and of epidemiological projects, support regulatory and policy functions performed within the agency or by a contractor or consultant, another federal agency, support constituent requests made to a congressional representative, and support litigation involving the agency related to this system of records. We have provided background information about the modified system in the
HCFA filed a modified or altered system report with the Chair of the House Committee on Government Reform and Oversight, the Chair of the Senate Committee on Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on March 12, 2001. To ensure that all parties have adequate time in which to comment, the modified or altered system of records, including routine uses, will become effective 40 days from the publication of the notice, or from the date it was submitted to OMB and the Congress, whichever is later, unless HCFA receives comments that require alterations to this notice.
The public should address comments to: Director, Division of Data Liaison and Distribution, HCFA, Room N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9 a.m.-3 p.m., eastern time zone.
Sydney P. Galloway, Privacy Act Coordinator, Systems, Technical, and Analytic Resources Group, Office of Strategic Planning (OSP), HCFA, Mailstop C3-24-07, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. The telephone number is 410-786-6645. The e-mail address is sgalloway@hcfa.gov.
In 1990, HCFA established a (SOR) under the authority of section 1875 of the Social Security Act (42 United States Code (U.S.C.) 139511), entitled “Studies and Recommendations.” Notice of this system, “A Current Beneficiary Survey (CBS), HHS/HCFA/OACT, System No. 09-70-6002,” was published in the
The system contains a random sampling of individuals enrolled for hospital insurance (Part A) and/or supplemental medical benefits (Part B) under the Medicare program. Information contained in this system include the name of beneficiary, health insurance claim (HIC) number, age, sex, race, education, military service history, income data, marital status, medical utilization and cost data, prescription drug usage and cost data, health and functional status, health insurance coverage, medical condition status, household composition data, and medical provider names.
The Privacy Act permits us to disclose information without an individual's consent if the information is to be used for a purpose which is compatible with the purpose(s) for which the information was collected. Any such disclosure of data is known as a “routine use.” The government will only release CBS information that can be associated with an individual as provided for under “Section III. Proposed Routine Use Disclosures of Data in the System.” Both identifiable and non-identifiable data may be disclosed under a routine use.
We will only disclose the minimum personal data necessary to achieve the purpose of CBS. HCFA has the following policies and procedures concerning disclosures of information which will be maintained in the system. In general, disclosure of information from the system of records will be approved only for the minimum information necessary to accomplish the purpose of the disclosure only after HCFA:
(a) Determines that the use or disclosure is consistent with the reason that the data is being collected, e.g., to maintain a research database that is capable of producing data sets suitable for both longitudinal and cross-sectional analysis to: (1) Produce projections for current programs and proposed program changes, (2) produce national level estimates of health care expenditures by the aged and disabled, and (3), provide a research database that can be used to provide guidance to program management and policies.
(b) Determines:
(1) That the purpose for which the disclosure is to be made can only be accomplished if the record is provided in individually identifiable form;
(2) That the purpose for which the disclosure is to be made is of sufficient importance to warrant the effect and/or risk on the privacy of the individual that additional exposure of the record might bring; and
(3) That there is a strong probability that the proposed use of the data would in fact accomplish the stated purpose(s).
(c) Requires the information recipient to:
(1) Establish administrative, technical, and physical safeguards to prevent unauthorized use of disclosure of the record;
(2) Remove or destroy at the earliest time all individually-identifiable information; and
(3) Agree to not use or disclose the information for any purpose other than the stated purpose under which the information was disclosed.
(d) Determines that the data are valid and reliable.
The Privacy Act allows us to disclose information without an individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such compatible use of data is known as a “routine use.” The proposed routine uses in this system meet the compatibility requirement of the Privacy Act. We are proposing to establish the following routine use disclosures of information maintained in the system:
1. To an individual or organization for research, evaluation, or epidemiological projects related to the prevention of disease or disability, or the restoration or maintenance of health, and for payment related projects.
The collected data will provide the research, evaluation and epidemiological projects a broader, longitudinal, national perspective of the data. HCFA anticipates that many researchers will have legitimate requests to use these data in projects that could ultimately improve the care provided to Medicare patients and the policy that governs the care. HCFA understands the concerns about the privacy and confidentiality of the release of data for a research use. Disclosure of data for research and evaluation purposes may involve aggregate data rather than individual-specific data.
2. To agency contractors, or consultants who have been engaged by the agency to assist in accomplishment of a HCFA function relating to the purposes for this system of records and who need to have access to the records in order to assist HCFA.
We contemplate disclosing information under this routine use only in situations in which HCFA may enter into an award or similar agreement with a third party to assist in accomplishing HCFA function relating to purposes for this system of records.
HCFA occasionally contracts out certain of its functions when doing so would contribute to effective and efficient operations. HCFA must be able to give a contractor or consultant whatever information is necessary for the contractor or consultant to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor or consultant from using or disclosing the information for any purpose other than that described in the contract and requires the contractor or consultant to return or destroy all information at the completion of the contract.
3. To another federal agency to enable such agency to administer a federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a federal statute or regulation that implements a health benefits program funded in whole or in part with federal funds.
Other federal agencies in their administration of a federal health program may require MCBS information in order to support evaluations and monitoring of reimbursement for services provided.
4. To a Member of Congress or to a congressional staff member in response to an inquiry of the congressional office made at the written request of the constituent about whom the record is maintained.
Beneficiaries sometimes request the help of a Member of Congress in resolving an issue relating to a matter before HCFA. The Member of Congress then writes HCFA, and HCFA must be able to give sufficient information to be responsive to the inquiry.
5. To the Department of Justice (DOJ), court or adjudicatory body when:
(a) The agency or any component thereof, or
(b) Any employee of the agency in his or her official capacity, or
(c) Any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee, or
(d) The United States Government
Whenever HCFA is involved in litigation, or occasionally when another party is involved in litigation and HCFA's policies or operations could be affected by the outcome of the litigation, HCFA would be able to disclose information to the DOJ, court or adjudicatory body involved.
The MCBS system will conform with applicable law and policy governing the privacy and security of federal automated information systems. These include but are not limited to: the Privacy Act of 1974, Computer Security Act of 1987, the Paperwork Reduction Act (PRA) of 1995, the Clinger-Cohen Act of 1996, and OMB Circular A-130, Appendix III, “Security of Federal Automated Information Resources.” HCFA has prepared a comprehensive system security plan as required by the Office and Management and Budget (OMB) Circular A-130, Appendix III. This plan conforms fully to guidance issued by the National Institute for Standards and Technology (NIST) in NIST Special Publication 800-18, “Guide for Developing Security Plans for Information Technology Systems.” Paragraphs A-C of this section highlight some of the specific methods that HCFA is using to ensure the security of this system and the information within it.
A.
To assure security of the data, the proper level of class user is assigned for each individual user as determined at the agency level. This prevents unauthorized users from accessing and modifying critical data. The system database configuration includes five classes of database users:
• Database Administrator class owns the database objects; e.g., tables, triggers, indexes, stored procedures, packages, and has database administration privileges to these objects;
• Quality Control Administrator class has read and write access to key fields in the database;
• Quality Indicator (QI) Report Generator class has read-only access to all fields and tables;
• Policy Research class has query access to tables, but are not allowed to access confidential individual identification information; and
• Submitter class has read and write access to database objects, but no database administration privileges.
B.
Access to all servers is controlled, with access limited to only those support personnel with a demonstrated need for access. Servers are to be kept in a locked room accessible only by specified management and system support personnel. Each server requires a specific log-on process. All entrance doors are identified and marked. A log is kept of all personnel who were issued a security card, key and/or combination which grants access to the room housing the server, and all visitors are escorted while in this room. All servers are housed in an area where appropriate environmental security controls are implemented, which include measures implemented to mitigate damage to Automated Information System (AIS) resources caused by fire, electricity, water and inadequate climate controls.
Protection applied to the workstations, servers and databases include:
• User Log-ons—Authentication is performed by the Primary Domain Controller/Backup Domain Controller of the log-on domain.
• Workstation Names—Workstation naming conventions may be defined and implemented at the agency level.
• Hours of Operation—May be restricted by Windows NT. When activated all applicable processes will automatically shut down at a specific time and not be permitted to resume until the predetermined time. The appropriate hours of operation are determined and implemented at the agency level.
• Inactivity Log-out—Access to the NT workstation is automatically logged out after a specified period of inactivity.
• Warnings—Legal notices and security warnings display on all servers and workstations.
• Remote Access Services (RAS)—Windows NT RAS security handles resource access control. Access to NT resources is controlled for remote users in the same manner as local users, by utilizing Windows NT file and sharing permissions. Dial-in access can be granted or restricted on a user-by-user basis through the Windows NT RAS administration tool.
There are several levels of security found in the MCBS system. Windows NT provides much of the overall system security. The Windows NT security model is designed to meet the C2-level criteria as defined by the U.S. Department of Defense's Trusted Computer System Evaluation Criteria document (DoD 5200.28-STD, December 1985). Netscape Enterprise Server is the security mechanism for all transmission connections to the system. As a result, Netscape controls all information access requests. Anti-virus software is applied at both the workstation and NT server levels.
Access to different areas on the Windows NT server are maintained through the use of file, directory and share level permissions. These different levels of access control provide security that is managed at the user and group level within the NT domain. The file and directory level access controls rely on the presence of an NT File System (NTFS) hard drive partition. This provides the most robust security and is tied directly to the file system. Windows NT security is applied at both the workstation and NT server levels.
C.
HCFA proposes to modify this system in accordance with the principles and requirements of the Privacy Act and will collect, use, and disseminate information only as prescribed therein. Data in this system will be subject to the authorized releases in accordance with the routine uses identified in this system of records.
HCFA will monitor the collection and reporting of MCBS data. MCBS information on individuals is completed by agency personnel and submitted to HCFA through standard systems located at different locations. HCFA will utilize a variety of onsite and offsite edits and audits to increase the accuracy of MCBS data.
HCFA will take precautionary measures (see item IV. above) to minimize the risks of unauthorized access to the records and the potential harm to individual privacy or other personal or property rights including not collecting individually identifiable data for non-HCFA individuals. HCFA will collect only that information necessary to perform the system's functions. In addition, HCFA will make disclosure of identifiable data from the modified system only with consent of the subject individual, or his/her legal representative, or in accordance with an applicable exception provision of the Privacy Act.
HCFA, therefore, does not anticipate an unfavorable effect on individual privacy as a result of the disclosure of information relating to individuals.
Medicare Current Beneficiary Survey (MCBS) System, HHS/HCFA/OSP.
Level Three Privacy Act Sensitive.
HCFA Data Center, 7500 Security Boulevard, North Building, First Floor, Baltimore, Maryland 21244-1850.
The system contains a random sampling of individuals enrolled for hospital insurance (Part A) and/or supplemental medical benefits (Part B) under the Medicare program.
Information contained in this system include the name of the beneficiary, health insurance claim number (HIC) number, age, sex, race, education, military service history, income, marital status, medical utilization and cost, prescription drug usage and cost data, health and functional status, health insurance coverage, medical condition status, household composition and medical provider names.
Authority for the maintenance of this system of records is given under of section 1875 of the Social Security Act (42 United States Code (USC) 1395ll), entitled, “Studies and Recommendations.”
The primary purpose of the system of records is to maintain a research database for HCFA and other researchers that is capable of producing data sets suitable for both longitudinal and cross-sectional analysis to be used to: (1) Produce projections for current programs and proposed program changes, (2) produce national level estimates of health care expenditures by the aged and disabled, and (3) provide a research database that can be used to provide guidance to program management and policies. Information in this system will also be used to: Support research of policy issues, quality and effectiveness of care, and of epidemiological projects, support regulatory and policy functions performed within the agency or by a contractor or consultant, other federal agencies, support constituent requests made to a congressional representative, and support litigation involving the agency related to this system of records.
The Privacy Act allows us to disclose information without an individual's consent if the information is to be used for a purpose which is compatible with the purpose(s) for which the information was collected. Any such compatible use of data is known as a “routine use.” The proposed routine use in this system meets the compatibility requirement of the Privacy Act. We are proposing to modify the following routine use disclosures of information which will be maintained in the system:
1. To an individual or organization for research, evaluation, or epidemiological projects related to the prevention of disease or disability, or the restoration or maintenance of health, and for payment related projects.
2. To agency contractors, or consultants who have been engaged by the agency to assist in accomplishment of a HCFA function relating to the purposes for this system of records and who need to have access to the records in order to assist HCFA.
3. To another federal agency to enable such agency to administer a federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a federal statute or regulation that implements a health benefits program funded in whole or in part with federal funds.
4. To a Member of Congress or to a congressional staff member in response to an inquiry of the congressional office made at the written request of the constituent about whom the record is maintained.
5. To the Department of Justice (DOJ), court or adjudicatory body when:
(a) The agency or any component thereof, or
(b) Any employee of the agency in his or her official capacity, or
(c) Any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee, or
(d) The United States Government is a party to litigation or has an interest in such litigation, and by careful review, HCFA determines that the records are both relevant and necessary to the litigation and that the use of such records is deemed by the agency to be for a purpose that is compatible with the purposes for which the agency collected the records.
Computer diskette and on magnetic storage media.
Information can be retrieved by the name, and HIC of the beneficiary.
HCFA has safeguards for authorized users and monitors such users to ensure against excessive or unauthorized use. Personnel having access to the system have been trained in the Privacy Act and systems security requirements. Employees who maintain records in the system are instructed not to release any data until the intended recipient agrees to implement appropriate administrative, technical, procedural, and physical safeguards sufficient to protect the confidentiality of the data and to prevent unauthorized access to the data.
In addition, HCFA has physical safeguards in place to reduce the exposure of computer equipment and thus achieve an optimum level of protection and security for the MCBS system. For computerized records, safeguards have been established in accordance with the Department of Health and Human Services (HHS) standards and National Institute of Standards and Technology guidelines, e.g., security codes will be used, limiting access to authorized personnel. System securities are established in accordance with HHS, Information Resource Management (IRM) Circular #10, Automated Information Systems Security Program; HCFA Automated Information Systems (AIS) Guide, Systems Securities Policies, and OMB Circular No. A-130 (revised), Appendix III.
Records are maintained in a secure storage area with identifiers. Disposal occurs ten years after the final action of the research project is completed.
Director, Systems, Office of Strategic Planning, HCFA, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
For purpose of access, the subject individual should write to the system manager who will require the system name, HIC, date of birth, and sex, and for verification purposes, the subject individual's name (woman's maiden name, if applicable), and SSN. Furnishing the SSN is voluntary, but it may make searching for a record easier and prevent delay.
For purpose of access, use the same procedures outlined in Notification Procedures above. Requestors should also reasonably specify the record contents being sought. (These procedures are in accordance with Department regulation 45 CFR 5b.5(a)(2)).
The subject individual should contact the system manager named above, and reasonably identify the record and specify the information to be contested. State the corrective action sought and the reasons for the correction with supporting justification. (These procedures are in accordance with Department regulation 45 CFR 5b.7).
HCFA obtains the identifying information contained in this records system from Medicare enrollment records, Medicare bill records, Medicare provider records, Medicare beneficiaries and or their representatives, and Medicare carriers and intermediaries.
None.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act, (Public Law 92-463), announcement is made of the following National Advisory body scheduled to meet during the month of April 2001.
The meeting is open to the public.
Agenda items will include, but not be limited to: Welcome; plenary discussion of Interdisciplinary Education; presentations by speakers representing: the HRSA Bureau of Health Professions; Health Care Associations; Committee members; the Division of Interdisciplinary, Community-Based Programs (DICP); and Bureau of Health Professions (BHPr) staff supporting Committee activities; presentation of Interdisciplinary, Community-Based Case Studies; and defining standards for the Committee report due to the Secretary and the Congress in November 2001.
Meeting content will be based on the Committee's charge under Section 756 of the Public Health Service Act, to include discussion and draft of the Committee report and scheduling of topics of the next Committee meeting in June 2001.
Public comment will be permitted before lunch and at the end of the Committee meeting on April 9, 2001. Oral presentations will be limited to 5 minutes per public speaker. Persons interested in providing an oral presentation should submit a written request, with a copy of their presentation to: Mr. Leo Wermers, Principal Staff Liaison, Division of Interdisciplinary, Community-Based Programs, Bureau of Health Professions, Health Resources and Services Administration, Room 9-105, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 443-1648.
Requests should contain the name, address, telephone number, and any business or professional affiliation of the person desiring to make an oral presentation. Groups having similar interests are requested to combine their comments and present them through a single representative. The Division of Interdisciplinary, Community-Based Programs will notify each presenter by mail or telephone of their assigned presentation time.
Persons who do not file an advance request for a presentation, but wish to make an oral statement may register to do so at the Doubletree Hotel Park Terrace on Embassy Row, Washington, DC on April 9, 2001. These persons will be allocated time as the Committee meeting agenda permits.
Anyone requiring information regarding the Committee should contact Mr. Wermers, Division of Interdisciplinary, Community-Based Programs, Bureau of Health Professions, Health Resources and Services Administration, Room 9-105, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 443-1648.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (301) 443-7978.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the 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, including through the use of automated collection techniques or other forms of information technology.
Send comments to Nancy Pearce, SAMHSA Reports Clearance Officer, Room 16-105, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Substance Abuse and Mental Health Services Administration, HHS.
Correction to a Notice of Funding Availability regarding the Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Mental Health Services, Grants for Statewide Family Networks.
This notice is to inform the public that there is a correction to the SAMHSA/CMHS Guidance for Applicants announcement No. SM01-004 entitled Grants for Statewide Family Networks, published in the
The entities' organizational mission and scope of work must have a statewide scope and focus on families who have children, youth and adolescents age 18 and under or 21 and under if served by an Individual Education Plan; with serious emotional, behavioral, or mental disorder.
Substance Abuse and Mental Health Services Administration, HHS.
Correction to a Notice of Funding Availability regarding the Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Mental Health Services, Technical Assistance Center for Statewide Family Networks Program.
This notice is to inform the public that there is a correction to the SAMHSA/CMHS Guidance for Applicants announcement No. SM01-005 entitled Cooperative Agreement for a Technical Assistance Center for Statewide Family Networks, published in the
The entities' organizational mission and scope of work must have a statewide scope and focus on families who have children, youth and adolescents age 18 and under or 21 and under if served by an Individual Education Plan; with serious emotional, behavioral, or mental disorder.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been 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 approval number and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department. This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been 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 approval number (2528-0017) and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail Wayne_Eddins@HUD.gov; telephone (202) 708-2374. This is not a toll-free number. Copies of the proposed forms and other available documents submitted to OMB may be obtained from Mr. Eddins.
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (1) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department. This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Bureau of Land Management, Interior.
Correction.
In FR Doc. 01-3821 published in the
1. On page 10511, in the third column, lines 8 to 11 of the SUMMARY paragraph, delete “This notice opens the lands that are not located within the Agua Fria National Monument to surface entry and mining.”
2. On page 10512, in the first column, replace the last two paragraphs (lines 6 through 49 from the top) with “At 9 a.m. on March 19, 2001, the segregative effect for the lands described in the Notice of Proposed Withdrawal in the
Minerals Management Service, Interior.
Availability of Revised Outer Continental Shelf Official Protraction Diagrams.
Notice is hereby given that effective with this publication, two NAD 27-based Outer Continental Shelf Official Protraction Diagrams, last revised on November 1, 2000, are on file and available for information only, in the Gulf of Mexico OCS Regional Office, New Orleans, Louisiana.
Copies of Leasing Maps and Official Protraction Diagrams (OPDs) are $2.00 each. These may be purchased from the Public Information Unit, Information Services Section, Gulf of Mexico OCS Region, Minerals Mangement Service, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123-2394, Telephone (504) 736-2519 or (800) 200-GULF.
In accordance with Title 43, Code of Federal Regulations, these diagrams are the basic record for the description of mineral and oil and gas lease sales in the geographic areas they represent.
Leasing Maps and OPDs may be obtained in two digital formats:
The National Park Service is seeking public comments regarding its consideration to ease its overnight mooring restriction at Washington Harbor, changing the overnight mooring closure from Midnight until 6 a.m., to 2 a.m, until 6 a.m.
A public meeting will be held on April 2, from 7 p.m. until 9 p.m., at the Thompson's Boat Center at Virginia Avenue, N.W., and the Rock Creek and Potomac Parkway, in Washington, DC.
Pursuant to 36 CFR 1.5(a), the National Park Service has had for a number of years an overnight mooring restriction at Washington Harbour that has been from midnight until 6 a.m. It is considering easing the restriction by changing it to 2 a.m. until 6 a.m. The National Park Service requests public comment on this proposed change. Oral and written comments will be accepted at the public meeting which will be held at the address and time listed above. Written comments will also be accepted from now until May 2, 2001, and should be sent to Rock Creek Park, 3545 Williamsburg Lane, NW, Washington, DC 20008-1207.
All written comments will be available for public review. We anticipate that we will either tape record or transcribe oral comments that are submitted at the April 2 meeting, and that these comments will also be available for public review.
Rock Creek Park Superintendent Adrienne Coleman at (202) 282-1063.
United States International Trade Commission.
Institution of antidumping investigation and scheduling of a preliminary phase investigation.
The Commission hereby gives notice of the institution of an investigation and commencement of preliminary phase antidumping investigation No. 731-TA-924 (Preliminary) under section 733(a) of the Tariff Act of 1930 (19 U.S.C. 1673b(a)) (the Act) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of
For further information concerning the conduct of this investigation and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
March 12, 2001.
Sioban Maguire (202-708-4721), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
This investigation is being instituted in response to a petition filed on March 12, 2001, by Great Eastern Mussel Farms, Tenants Harbor, Maine.
Persons (other than petitioners) wishing to participate in the investigation as parties must file an entry of appearance with the Secretary to the Commission, as provided in sections 201.11 and 207.10 of the Commission's rules, not later than seven days after publication of this notice in the
Pursuant to section 207.7(a) of the Commission's rules, the Secretary will make BPI gathered in this investigation available to authorized applicants representing interested parties (as defined in 19 U.S.C. 1677(9)) who are parties to the investigation under the APO issued in the investigation, provided that the application is made not later than seven days after the publication of this notice in the
The Commission's Director of Operations has scheduled a conference in connection with this investigation for 9:30 a.m. on April 2, 2001 at the U.S. International Trade Commission Building, 500 E Street SW., Washington, DC. Parties wishing to participate in the conference should contact Sioban Maguire (202-708-4721) not later than March 28, 2001, to arrange for their appearance. Parties in support of the imposition of antidumping duties in this investigation and parties in opposition to the imposition of such duties will each be collectively allocated one hour within which to make an oral presentation at the conference. A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the conference.
As provided in sections 201.8 and 207.15 of the Commission's rules, any person may submit to the Commission on or before April 5, 2001 a written brief containing information and arguments pertinent to the subject matter of the investigation. Parties may file written testimony in connection with their presentation at the conference no later than three days before the conference. If briefs or written testimony contain BPI, they must conform with the requirements of sections 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's rules do not authorize filing of submissions with the Secretary by facsimile or electronic means.
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ's”) initial determination (“ID”) amending the complaint and notice of investigation in the above-captioned investigation to add Fujitsu Hitachi Plasma Display Limited (“FHP”) as a respondent.
Tim Yaworski, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436, tel. (202) 205-3096. Hearing impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at (202) 205-1810. General information concerning the Commission may also be obtained by accessing the Commission's internet server (http://www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS-ON-LINE) at
The Commission instituted this investigation on January 22, 2001, based on a complaint filed on behalf of the Board of Trustees of the University of Illinois and Competitive Technologies, Inc. The four respondents named in the complaint were Fujitsu Limited, Fujitsu General Limited, Fujitsu General America Corp., and Fujitsu Microelectronics, Inc.
On February 2, 2001, complainants moved to amend the complaint and notice of investigation to add FHP as a fifth respondent. The motion was supported by the Commission investigative attorney, but opposed by the original respondents. On February 21, 2001, the ALJ issued an ID (Order No. 5) granting the motion. No party petitioned for review of the ID.
The authority for the Commission's action is contained in section 337 of the Tariff Act of 1930, as amended (19 CFR § 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR § 210.42). Copies of the ALJ's ID and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, S.W., Washington, DC 20436, telephone (202) 205-2000.
International Trade Commission.
Change in deadline for written submissions in connection with the Commission's interim letter to USTR.
March 12, 2001.
For general information, contact Kim Freund (202-708-5402; kfreund@usitc.gov) of the Office of Industries; for information on legal aspects, contact William Gearhart (202-205-3091; wgearhart@usitc.gov) of the Office of the General Counsel. The media should contact Margaret O'Laughlin, Public Affairs Officer (202-205-1819). Hearing impaired individuals may obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information about the Commission may be obtained by accessing its Internet server (
Effective February 12, 2001, the Commission instituted an investigation on U.S. market conditions for certain wool articles and established a deadline for the receipt of written submissions in connection with the preparation of the interim letter for USTR (see 66 FR 11315, Feb. 23, 2001). The Commission has changed the deadline for receiving written submissions from March 7, 2001 to 20 calendar days (or the next workday thereafter if the 20th day falls on a weekend or holiday) following the U.S. Department of Commerce's publication of a notice in the
Interested parties may monitor the Department of Commerce's release of its solicitation for requests by accessing the Department of Commerce's Internet server (
For further information concerning this investigation, see the Commission's notice of investigation cited above.
By order of the Commission.
Notice of Information Collection under Review: Immigrant Petition for Alien Workers.
The Department of Justice, Immigration and Naturalization Service (INS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until April 18, 2001. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Department of Justice Desk Officer, Room 10235, Washington, DC 20530; 202-395-4718.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(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, including the validity of the methodology an assumptions used;
(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, electronic, mechanical, or other technological collection techniques or
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan 202-514-3291, Director and Instructions Branch, Immigration and Naturalization Service, U.S. Department of Justice, Room 4034, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Robert B. Briggs, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 850, Washington Center, 1001 G Street, NW., Washington, DC 20530.
Occupational Safety and Health Administration, DOL.
Notice.
The Occupational Safety and Health Administration (OSHA) is announcing that a collection of information regarding the recording of occupational injuries and illnesses has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. This document announces the OMB approval number and expiration date.
David Schmidt, Directorate of Information Technology, Office of Statistics, Occupational Safety and Health Administration, U.S. Department of Labor, Room N3507, 200 Constitution Avenue, NW., Washington, DC 20210, telephone (202) 693-1886.
In the
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 (NRC or Commission) is considering issuance of an exemption, pursuant to 10 CFR 72.7, from the provisions of 10 CFR 72.212(a)(2), 72.212(b)(2)(i), and 72.214 to Exelon Generation Company, LLC (EGC). The requested exemption would allow EGC to deviate from the requirements of Certificate of Compliance 1008 (the Certificate), Appendix B, Items 1.4.6.a, 1.4.6.b and 1.4.6.d and place HI-STAR 100 Cask Systems, loaded with spent nuclear fuel, on a concrete storage pad with a concrete thickness of less than or equal to 28 inches, concrete compressive strength of less than or equal to 6,000 psi at 28 days, and soil effective modulus of elasticity of less than or equal to 16,000 psi at the Dresden Nuclear Power Station (Dresden) Independent Spent Fuel Storage Installation (ISFSI).
By letter dated January 11, 2001, EGC requested an exemption from the requirements of 10 CFR 72.212(a)(2), 72.212(b)(2)(i), and 72.214 to deviate from the requirements of Certificate of Compliance 1008, Appendix B, Items 1.4.6.a, 1.4.6.b and 1.4.6.d. EGC is a general licensee, authorized by NRC to use spent fuel storage casks approved under 10 CFR Part 72, Subpart K.
EGC plans to use the HI-STAR 100 Cask System to store spent nuclear fuel, generated at the Dresden Nuclear Power Station, at an ISFSI located in Morris, Illinois, on the Dresden Nuclear Power Station site. The Dresden ISFSI has been constructed for interim dry storage of spent nuclear fuel.
By exempting EGC from 10 CFR 72.212(a)(2), 72.212(b)(2)(i), and 72.214, EGC will be authorized to place loaded HI-STAR 100 Casks Systems on cask storage pads that include the following characteristics:
(1) Concrete Thickness: ≤ 28 inches
(2) Concrete Compressive Strength: ≤ 6,000 psi at 28 days
(3) Soil Effective Modulus of Elasticity: ≤ 16,000 psi
The storage pad characteristics specified above would be in lieu of those specified in Certificate of Compliance 1008, Appendix B, Items 1.4.6.a, 1.4.6.b, and 1.4.6.d, respectively. The proposed action before the Commission is whether to grant this exemption under 10 CFR 72.7.
On August 4, 2000, the cask designer, Holtec International (Holtec), submitted to NRC an application to amend Certificate of Compliance 1008. The requested amendment includes revision to the storage pad specifications in Item1.4.6 in Appendix B to the Certificate and requests approval of a second set of cask pad parameters. Item 1.4.6.a requires a concrete thickness of less than or equal to 36 inches; the analysis performed by Holtec demonstrates that this requirement can be revised to specify a concrete thickness of less than or equal to 28 inches. Item 1.4.6.b requires a concrete compressive strength of less than or equal to 4,200 psi at 28 days; the analysis performed by Holtec demonstrates that this requirement can be revised to specify a concrete compressive strength of less than or equal to 6,000 psi at 28 days. Item 1.4.6.d includes the requirement that the soil effective modulus of elasticity be less than or equal to 28,000 psi; the analysis performed by Holtec demonstrates that this requirement can be revised to specify that the soil effective modulus of elasticity be less than or equal to 16,000 psi. The NRC staff has reviewed the application and determined that placement of HI-STAR 100 Cask Systems on storage pads with the revised characteristics would have minimal impact on the design basis and would not be inimical to public health and safety.
There are a number of Dresden Unit 1 spent fuel assemblies in the Dresden Unit 2 spent fuel pool. To maintain full core offload capability in the Dresden Unit 2 spent fuel pool once new fuel arrives in the Summer of 2001, EGC needs to begin loading spent fuel into storage casks in Spring of 2001. Unless the exemption is granted or the Certificate is amended, the storage pads at the Dresden ISFSI will not be in full conformance with the Certificate. Because the 10 CFR part 72 rulemaking to amend the Certificate will not be completed prior to the date that EGC plans to begin loading HI-STAR 100 Cask Systems, the NRC is granting this exemption based on the staff's technical review of information submitted by EGC and Holtec.
The potential environmental impact of using the HI-STAR 100 Cask System was initially presented in the Environmental Assessment (EA) for the Final Rule to add the HI-STAR 100 Cask System to the list of approved spent fuel storage casks in 10 CFR 72.214 (64 FR 171, 09/03/99). Furthermore, each general licensee must assess the environmental impacts of the specific ISFSI in accordance with the requirements of 10 CFR 72.212(b)(2). This section also requires the general licensee to perform written evaluations to demonstrate compliance with the environmental requirements of 10 CFR 72.104, “Criteria for radioactive materials in effluents and direct radiation from an ISFSI or MRS [Monitored Retrievable Storage Installation].”
The HI-STAR 100 Cask System is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an ISFSI include tornado winds and tornado generated missiles, design basis earthquake, design basis flood, accidental cask drop, lightning effects, fire, explosions, and other incidents.
The HI-STAR 100 Cask System consists of a stainless steel multi-purpose canister and a steel overpack. The welded MPC provides confinement and criticality control for the storage and transfer of spent nuclear fuel. The overpack provides radiation shielding and structural protection of the MPC during storage and handling operations. Special design feature requirements for the cask and for the site are specified in Certificate of Compliance 1008, Appendix B. These include the storage pad design characteristics.
Considering the specific cask and site design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control. Without the loss of either containment, shielding, or criticality control, the risk to public health and safety is not compromised.
The staff performed a safety evaluation of the proposed exemption and the Certificate amendment. The HI-STAR amendment requests a revision to Item 1.4.6 of Appendix B to the Certificate of Compliance (CoC), which defines some of the design requirements for cask pad. The CoC amendment requests specific approval for an additional set of cask pad parameters.
The staff found that the proposed exemption is consistent with the cask drop and tipover analyses presented in the revised Safety Analyses Report for the HI-STAR 100 Cask System and do not reduce the safety margin. In addition, the staff has determined that placement of loaded HI-STAR 100 Cask Systems on storage pads with a (1) concrete thickness of less than or equal to 28 inches, (2) concrete compressive strength of less than or equal to 6,000 psi at 28 days, and (3) soil effective modulus of elasticity less than or equal to 16,000 psi does not pose any increased risk to public health and safety. Furthermore, the proposed action now under consideration would not change the potential environmental effects assessed in the initial rulemaking (64 FR 171, 09/03/99).
Therefore, the staff has determined that there is no reduction in the safety margin nor significant environmental impacts as a result of placing loaded HI-STAR 100 Cask Systems on storage pads with a concrete thickness of less than or equal to 28 inches, concrete compressive strength of less than or equal to 6,000 psi at 28 days, and soil effective modulus of elasticity less than or equal to 16,000 psi.
Since there is no significant environmental impact associated with the proposed action, alternatives with equal or greater environmental impact are not evaluated. The alternative to the proposed action would be to deny approval of the exemption. Denial of the exemption request will have the same environmental impact.
On February 9, 2001, Mr. F. Niziolek, Reactor Safety Section Head, Illinois Department of Nuclear Safety, was contacted about the Environmental Assessment for the proposed action and had no comments.
The environmental impacts of the proposed action have been reviewed in accordance with the requirements set forth in 10 CFR part 51. Based upon the foregoing EA, the Commission finds that the proposed action of granting an exemption from 10 CFR 72.212(a)(2), 72.212(b)(2)(i), and 72.214 so that EGC may place loaded HI-STAR 100 Cask Systems on concrete storage pads with a concrete thickness of less than or equal to 28 inches, concrete compressive strength of less than or equal to 6,000 psi at 28 days, and soil effective modulus of elasticity less than or equal to 16,000 psi at the Dresden ISFSI will not significantly impact the quality of the human environment. Accordingly, the Commission has determined not to prepare an environmental impact statement for the proposed exemption.
The request for exemption was docketed under 10 CFR part 72, Docket 72-37. For further details with respect to this action, see the exemption request dated January 11, 2001, which is available for public inspection at the Commission's Public Document Room, One White Flint North Building, 11555 Rockville Pike, Rockville, Maryland 20852, or from the publicly available records component of NRC's Agencywide Document Access and Management System (ADAMS). ADAMS is accessible from the NRC web site at
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”).
Notice of application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A), (B), and (C) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act.
Applicants request an order to permit certain registered unit investment trusts to acquire shares of registered management investmentcompanies and unit investments trusts both within and outside the same group of investment companies.
Nuveen Investments, Nuveen Tax-Free Unit Trusts and Nuveen Unit Trusts.
The application was filed on June 8, 2000, and amendments were filed on January 2, 2001, and February 26, 2001.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on April 5, 2001, and should be accompanied by proof of service on applicants in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, 333 West Wacker Drive, Chicago, IL 60606.
Michael W. Mundt, Branch Chief, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102, (202) 942-8090.
1. The Nuveen Unit Trusts and Nuveen Tax-Free Unit Trusts (“Trusts”) and their series (“Trust Series”) are unit investment trusts registered under the Act and sponsored by Nuveen Investments (“Sponsor”). The Sponsor, a Delaware corporation, is a wholly-owned subsidiary of The John Nuveen Company.
2. Applicants requests relief to permit the Trusts Series to invest in (a) registered investment companies that are part of the same “group of investment companies” (as that term is defined in section 12(d)(1)(G) of the Act) as the Trust (“Affiliated Funds”), and (b) registered investment companies that are not part of the same group of investment companies as the Trust (“Unaffiliated Funds,” together with the Affiliated Funds, the “Funds”). The Unaffiliated Funds may include unit investment trusts (“Unaffiliated Underlying Trusts”) and open-end or closed-end management investment companies (“Unaffiliated Underlying
3. Applicants states that the requested relief will benefit unitholders by providing investors with a professionally selected, diversified portfolio of investment company shares through a single investment vehicle.
1. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the act prohibits a registered open-end investment company from selling its shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to by owned by investment companies generally. Section 12(d)(1)(C) prohibits an investment company, other investment companies having the same investment adviser, and companies controlled by such investment companies, from acquiring more than 10% of the outstanding voting stock of a registered closed-end management investment company.
2. Section 12(d)(1)(G) provides, in relevant part, that section 12(d)(1) will not apply to securities of a registered open-end investment company or unit investment trust acquired by a registered unit investment trust if the acquired company and the acquiring company are part of the same group of investment companies, provided that certain other requirements contained in section 12(d)(1)(G) are met. Applicants state that they may not rely on section 12(d)(1)(G) because a Trust Series will invest in Unaffiliated Funds in addition to Affiliated Funds.
3. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person security, or transaction, or any class or classes of persons, securities or transactions, from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) to permit a Trust Series to acquire shares of a Fund and a permit a Fund to sell shares to a Trust Series beyond the limits set forth in sections 12(d)(1)(A), (B), and (C).
4. Applicants state that the proposed arrangement will not give rise to the policy concerns underlying sections 12(d)(1)(A), (B), and (C), which include concerns about undue influence by a fund or funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and protection of investors.
5. Applicants state that the proposed arrangement will not result in undue influence by a Trust Series or its affiliates over Funds. To limit the control that a Trust Series may have over an Unaffiliated Fund, applicants propose a condition prohibiting the Sponsor, the Trust Series, and certain affiliates (individually or in the aggregate) from controlling an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. To limit further the potential for undue influence over Unaffiliated Funds, applicants propose conditions 2 through 6, stated below, to preclude a Trust Series and its affiliated entities from taking advantage of an Unaffiliated Fund with respect to transactions between the entities and to ensure that transactions will be on an arm's length basis.
6. As an additional assurance that an Unaffiliated Fund understands the implications of an investment by a Trust Series under the requested order, a Trust Series and Unaffiliated Fund will execute an agreement prior to the investment stating that the board of directors of the Unaffiliated Fund, if any, and the investment adviser to or sponsor of the Unaffiliated Fund understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. Applicants note that an Unaffiliated Fund may choose to reject an investment from the Trust Series.
7. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. Applicants state that a condition to the order would provide that any sales charges and/or service fees (as those terms are defined in Rule 2830 of the Conduct Rules of the National Association of Securities Dealers (“NADS Conduct Rules”)) charged with respect to Units of a Trust Series will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the NASD Conduct Rules. In addition, the trustee to a Trust Series (“Trustee”) will waive or offset fees otherwise payable by the Trust Series in an amount at least equal to any compensation (including fees paid pursuant to plan adopted by an Unaffiliated Underlying Fund under rule 12b-1 under the Act (“12b-1 Fees”)) received by the Sponsor or Trustee, or an affiliated person of the Sponsor or Trustee, from an Unaffiliated Fund in connection with the investment by a Trust Series in the Unaffiliated Fund.
8. Applicants state that the proposed arrangement will not create an overly complex fund structure. Applicants not that a Fund will be prohibited from acquiring securities of any investment company in excess of the limits contained in section 12(d)(1)(A). Applicants also represent that a Trust Series' prospectus and sales literature will contain concise, “plain English” disclosure designed to inform investors of the unique characteristics of the trust of funds structure, including, but not limited to, its expense structure and the additional expenses of investing in Funds.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person; (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person; and (c) any person directly or indirectly controlling, controlled by, or under common control with the other person.
2. Applicants state that a Trust Series and Affiliated Funds might be deemed to be under the common control of the Sponsor or an entity controlling, controlled by, or under common control with the Sponsor. Applicants also state that a Trust Series and a Fund might become affiliated persons if the Trust
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transactions from any provisions of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants submit that the proposed arrangement satisfies the standards for relief under sections 17(b) and 6(c) of the Act. Applicants state that the terms of the arrangement are fair and reasonable and do not involve overreaching. Applicants note that the consideration paid for the sale and redemption of shares of the Funds will be based on the net asset values of the Funds. Applicants state that the proposed arrangement will be consistent with the polices of each Trust Series and Fund, and with the general purposes of the Act.
Applicants agree that the requested order will be subject to the following conditions:
1. (a) The Sponsor, (b) any person controlling, controlled by, or under common control with the Sponsor, and (c) any investment company and any issuer that would be an investment company but for section 3(c)(1) or section 3(c)(7) of the Act sponsored or advised by the Sponsor or any person controlling, controlled by, or under common control with the Sponsor (collectively, the “Group”) will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Unaffiliated Fund, the Group, in the aggregate, becomes a holder of more than 35% of the outstanding voting securities of the Unaffiliated Fund, the Group will vote its shares in the same proportion as the vote of all other holders of the Unaffiliated Fund's shares.
2. A Trust Series and its Sponsor, promoter, and principal underwriter, and any person controlling, controlled by, or under common control with any of those entities (each a “Trust Series Affiliate”) will not cause any existing or potential investment by the Trust Series in shares of an Unaffiliated Fund to influence the terms of any services or transactions between the Trust Series or a Trust Series Affiliate and the Unaffiliated Fund or its investment adviser, sponsor, promoter, and principal underwriter, and any person controlling, controlled by, or under common control with any of those entities.
3. Once an investment by a Trust Series in the securities of an Unaffiliated Underlying Fund exceeds the limits of section 12(d)(1)(A)(i) of the Act, the board of directors of the Unaffiliated Underlying Fund, including a majority of the disinterested directors, will determine that any consideration paid by the Unaffiliated Underlying Fund to a Trust Series or a Trust Series Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Unaffiliated Underlying Fund; (b) is within the range of consideration that the Unaffiliated Underlying Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned.
4. No Trust Series or Trust Series Affiliate will cause an Unaffiliated Fund to purchase a security from any underwriting or selling syndicate in which a principal underwriter is the Sponsor or a person of which the Sponsor is an affiliated person (each an “Underwriting Affiliate”). An offering during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate is considered an “Affiliated Underwriting.”
5. The Board of directors of an Unaffiliated Underlying Fund, including a majority of the disinterested directors, will adopt procedures reasonably designed to monitor any purchases by the Unaffiliated Underlying Fund of securities in Affiliated Underwritings once an investment by a Trust Series in the securities of the Unaffiliated Underlying Fund exceeds the limits of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The board of directors will review these purchases periodically, but not less frequently than annually, to determine whether the purchase were influenced by the investment by the Trust Series in shares of the Unaffiliated Underlying Fund. The board of directors will consider, among other things, (a) whether the purchases were consistent with the investment objectives and policies of the Unaffiliated Underlying Fund; (b) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (c) whether the amount of securities purchased by the Unaffiliated Underlying Fund in Affiliated Underwritings and the amount purchased directly from Underwriting Affiliates have changed significantly from prior years. The board of directors shall take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities from Affiliated Underwritings are in the best interests of shareholders.
6. An Unaffiliated Underlying Fund shall maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications, and shall maintain and preserve for a period not less than 6 years from the end of the fiscal year in which any purchase from an Affiliated Underwriting occurred, the first 2 years in an easily accessible place, a written record of each purchase made once an investment by a Trust Series in the securities of an Unaffiliated Underlying Fund exceeded the limits of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the board's determinations were made.
7. Prior to an investment in an Unaffiliated Fund in excess of the limit in section 12(d)(1)(A)(i), the Trust Series and the Unaffiliated Fund will execute an agreement stating, without limitation, that the board of directors of the Unaffiliated Fund, if any, and the investment adviser to or sponsor of the Unaffiliated Fund understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Unaffiliated Fund in excess of the limit in section 12(d)(1)(A)(i), a
8. The Trustee will waive or offset fees otherwise payable by a Trust Series in an amount at least equal to any compensation (including 12b-1 Fees) received by the Sponsor or Trustee, or an affiliated person of the Sponsor or Trustee, from an Unaffiliated Fund in connection with the investment by a Trust Series in the Unaffiliated Fund.
9. Any sales charges and/or service fees (as those terms are defined in Rule 2830 of the NASD Conduct Rules) charged with respect to Units of a Trust Series will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the NASD Conduct Rules.
10. No Fund will acquire securities of any other investment company in excess of the limits contained in section 12(d)(1)(A) of the Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Amex Rule 590, Minor Rule Violation Fine Systems. The text of the proposed rule change is available at the Amex and at the Commission.
In its filing with the Commission, the Exchange 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 has had a Minor Rule Violation Fine Plan (“Plan”) since 1976 that provides a simplified procedure for the resolution of minor violations of certain rules. Codified in Amex Rule 590, the plan has three distinct sections: Part 1 (“General Rule Violations”), which covers more substantive matters, the violation of which are nonetheless deemed “minor;” Part 2 (“Floor Decorum”), which covers floor decorum and operational matters; and Part 3 (“Reporting Violations”), which covers the late submission of routine reports.
The Exchange's Enforcement Department and its Minor Floor Violation Disciplinary Committee (“Committee”)
The issuance of a “written statement” by the Enforcement Department of the Committee does not constitute a finding of guilt. Persons receiving a written statement may plead “no contest” and return the statement to the Exchange with the specified fine. In the alternative, persons who are charged under the plan may contest the fine and receive a hearing before an Exchange Disciplinary Panel (“Panel”). The Panel that hears contested Committee matters currently is composed of a hearing officer and two members of the Committee that did not participate in the decision to issue the fine.
The Exchange believes that the proposed changes to Amex Rule 590 will make the Plan more efficient and timely. Under the proposal, the size and composition of the Committee would be changed from ten persons, all Floor members, to six persons consisting of two Amex staff, three Floor members, and one representative of an “upstairs” member firm. As is currently the case with the Committee, the Amex Board would appoint the persons that are eligible to serve on the Committee.
As a result of the change in the composition of the Committee, the Panel that hears contested fines would no longer include two members of the Committee in addition to the professional hearing officer. Instead, the Panel would be selected in accordance with Article V, Section 1(b)(4) of the Exchange Constitution or Amex Rule 345 as appropriate.
As described below, the Exchange proposes to add five violations to the list of rules under the Enforcement Department's jurisdiction in Part 1 of Amex Rule 590. The Exchange also seeks to transfer responsibility for enforcing three rules from the Committee to the Enforcement Department and move certain routine reports from Part 1 to Part 3 where the Exchange believes they more properly belong.
The proposed changes would transfer to the Enforcement Department rule violations pertaining to the SEC's Firm Quote rule,
Under the proposal, routine filings that are currently under the jurisdiction of the Committee (
The Exchange proposes to remove three rule violations from Amex Rule 590 altogether: (1) Members trading ahead of customer orders (Amex Rule 150); (2) leaving orders with more than one broker (Amex Rule 157), and (3) off-Floor trading (Amex Rule 958(g)).
Part 1 currently has graduated fine schedules for individuals and member organizations with progressively higher fines for second, third, and subsequent offenses occurring within a “rolling” 12-month period.
The Exchange has determined that most violations covered under the Plan could be included in an expanded 24-month review period. In addition, certain rules that may be violated more frequently, such as the Firm Quote rule or rules requiring the submission of audit trail data, are best enforced using a “patterns and practices” approach, where market participants are evaluated both in terms of their overall performance and relative to their peers. For these types of rules, using a “patterns and practices” approach, the Exchange believes that extending the time period is also appropriate.
The Exchange believes that an extension of the rolling time period is appropriate only if it is coupled with explicit authority to combine separate violations into a single offense under the Plan, where appropriate. The Exchange, therefore, proposes that Amex Rule 590(e) be amended to clarify the authority of the staff and the Committee to combine violations under paragraphs (g) and (h) of Amex Rule 590. The staff and Committee would be permitted to aggregate violations when the number of violations is determined based upon a program of comprehensive surveillance, thereby enabling the staff or Committee to analyze large amounts of regulatory data and craft appropriate remedies, including minor fines, without being held to rigid schedules or being compelled to bring formal disciplinary action based on a minimal number of surveillance breaks. The staff and Committee also would be permitted to aggregate similar violations generally if the conduct was unintentional or negligent, if there was no injury to public investors, or if the violations resulted from a single systemic problem or cause that has since been corrected.
The Amex believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change will impose no burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
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 such filing will also be available for inspection and copying at the principal office of the Amex. All submissions should refer to file number SR-Amex-00-48 and should be submitted by April 9, 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”)
Amex proposes to increase from 250 to 2500 the maximum permissible number of equity and index option contracts in an order that may be entered in the Amex Order File System. Although this limit does not appear in the Exchange's rules as such, Amex will notify members of the increase in this limit by issuing an information circular.
In its filing with the Commission, Amex 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. Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Amex Order File (“AOF”) handles limit orders routed to specialists' order books and orders routed to Auto-Ex, an automatic execution system that executes public customer market and marketable limit orders in options at the best bid or offer displayed at the time the order is entered. In October 1999, Amex filed to expand from 100 to 250 the number of option contracts that a member or member firm may enter directly into an Exchange specialist's order book (the Amex Order Display Book or “AODB”) from off the Exchange's trading floor using AOF.
The Exchange now proposes to further increase from 250 to 2500 the maximum permissible number of option contracts in an order that can be entered through AOF directly into the AODB.
Amex believes that, since its introduction, AOF/AODB has been successful in enhancing execution and operational efficiencies. Amex anticipates that the proposed increase to the AOF's parameters should further increase the enhanced execution and operational efficiencies realized since the introduction of the AOF.
Amex states that the proposed rule change is consistent with Section 6(b) of the Act
Amex 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.
Amex represents that the proposed rule change would effect a change in an existing order-entry or trading system that: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not have the effect of limiting the access to or availability of the system. Amex concludes, therefore, that the proposal 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 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 Exchange. All submissions should refer to File No. SR-Amex-01-11 and should be submitted by April 9, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On October 18, 2000, the Chicago Stock Exchange, Incorporated (“Exchange” or “CHX”), filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the CHX rule governing preopening orders in Nasdaq/NM securities to provide for additional clarity regarding the types of orders eligible for treatment as preopening orders and the price at which such orders will be filled. The Exchange represents that because Article XX, Rule 37(a)(4) of the Exchange's rules does not explicitly define what constitutes a preopening order in the case of Nasdaq/NM securities, there has been some confusion as to which orders are eligible for treatment as preopening orders, and consequently, some unintended execution guarantees. The proposed rule change will expressly provide that, for an order to be considered a preopening order, an order must be received at or prior to 8:25 a.m. (Central Time) of the date of the opening.
The Exchange also proposes to provide additional clarity regarding the price at which each preopening order will be filled. Currently, the rule provides that preopening orders for Nasdaq/NM securities must be filled “at the Exchange opening trade price.” The Exchange believes that it is in the best interest of its order-sending firms and their customers to provide for greater specificity as to the parameters governing the fill price for preopening orders. Accordingly, the proposed rule change provides that each preopening order must be filled “on a single price opening at or better than the NBBO at the first unlocked, uncrossed market.”
After careful review, 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.
The Commission finds that the Exchange's amendments to its rule governing preopening orders provides greater clarity and alleviates some confusion for investors as to what constitutes “preopening orders” in Nasdaq/NM securities and how such orders are priced. The CHX proposal explicitly defines preopening orders in Nasdaq/NM securities as those orders received at or prior to 8:25 a.m. (Central Time) on the date of the opening. The CHX proposal also specifies that each preopening order must be filled on a single price opening at or better than the NBBO at the first unlocked, uncrossed market.
The Commission finds that the Exchange's proposed rule change is consistent with the Act because it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market, and to protect investors and the public interest, by providing more specificity and clarity for order-sending firms and their customers regarding its rule governing preopening orders in Nasdaq/NM securities.
For the foregoing reasons, the Commission finds that the CHX's proposal to amend its rule governing preopening orders in Nasdaq/NM securities, as amended, is consistent with the requirements of the Act and rules and regulations thereunder.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On October 9, 2001, the National Association of Securities Dealers, Inc. (“NASD” or “Association”), through its subsidiary, the Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act),”
NASD Rule 4330(f) requires a Nasdaq issuer to comply with all applicable initial inclusion requirements under Nasdaq rules if the issuer enters into a merger, consolidation, or other types of acquisition with a non-Nasdaq entity which results in a change of control and either a change in business or a change in the financial structure of the Nasdaq issuer.
Nasdaq notes that it adopted NASD Rule 4330(f)
According to Nasdaq, some issuers and their counsel have expressed uncertainty regarding the circumstances under which NASD Rule 4330(f) is applicable. Therefore, Nasdaq proposes to amend NASD Rule 4330(f) to indicate that an issuer must apply for initial inclusion following a transaction whereby the issuer combines with a non-Nasdaq entity, resulting in a change of control of the Nasdaq issuer
Nasdaq also proposes to make conforming changes to IM-4300.
After careful review, 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 association.
According to Nasdaq, some issuers have expressed uncertainty regarding
The Commission believes that the proposal should clarify NASD Rule 4330(f) and provide guidance to issuers concerning the circumstances under which an issuer that combines with a non-Nasdaq entity must apply for initial inclusion. At the same time, the Commission believes that NASD Rule 4330(f), as amended, will continue to protect investors and the public interest by helping to prevent “backdoor listings” on Nasdaq.
The Commission finds that the conforming changes to IM-4300 will make IM-4300 consistent with NASD rule 4330(f), as amended, and provide guidance concerning the circumstances under which the conversion of a Future Priced Security could result in a Reverse Merger.
For the foregoing reasons, the Commission finds that the proposal is consistent with the requirements of the Act and rules and regulations thereunder.
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 amend its Disciplinary Rules, specifically Rule 960.5, to include a provision that allows hearing panelists to be compensated in connection with certain extraordinary matters. The text of proposed rule change is available at the Exchange and at the Commission.
In its filing with the Commission, the Exchange 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 purpose of the proposed rule change is to amend the Exchange's current Disciplinary Rules to include a provision that would allow hearing panelists to be compensated in certain instances. Pursuant to Exchange rules, a hearing on a Statement of Charges is held before a Hearing Panel composed of three persons that are appointed by the Chairman of the Business Conduct Committee (“BCC”).
The proposed amendment specifically provides that hearing panelists appointed by the Chairman of the Exchange's BCC may be compensated in extraordinary cases, as determined by the Chairman of the BCC, in consultation with the Chairman of the Board of Governors (“Board”). Factors to be considered when determining whether a case is extraordinary include, but are not limited to, the anticipated length of time of the hearing; the complexity and serious nature of the matter; and magnitude of the potential penalty.
In general, compensation will be paid only for attending (in person or by telephone) formal hearings, formal pre-hearing conferences or hearing panel deliberations, and not for conversations with staff, or telephone calls for the purpose of scheduling or other administrative matters. No compensation will be paid unless the Chairman of the BBC makes an affirmative determination that certain tasks warrant compensation. The Chairman of the BCC may also establish any caps or limits on compensation to hearing panelists for a given matter.
The Exchange believes that the proposed rule change is consistent with
The Exchange does not believe that the proposed rule change will impose any inappropriate or unnecessary burden on competition.
Written comments were neither solicited nor received.
Interested persons are invited to submit written data, views and arguments concerning the foregoing including whether the proposal is consistent with the Act. Persons making written submission 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 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 filings will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-Phlx-01-16 and should be submitted by April 9, 2001.
The Exchange requests accelerated approval pursuant to Rule 19(b)(2)(B)
Specifically, the Commission finds that the proposed rule change is consistent with Section 6(b)(7) of the Act.
The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice of the date by which the United States is to respond to the recommendations and rulings of the Dispute Settlement Body (“DSB”) of the World Trade Organization (“WTO”) in United States—Antidumping Act of 1916. The Antidumping Act of 1916 was the subject of separate disputes brought by the European Communities (the “EC”), and Japan. In both cases, Japan and the EC alleged that this statute is inconsistent with obligations of the United States under the General Agreement on Tariffs and Trade 1994 (“GATT 1994”) and the Agreement on Implementation of Article VI of GATT 1994 (“the Antidumping Agreement”). In both cases, the panels determined that the 1916 Act is inconsistent with Article VI of GATT and certain provisions of the Antidumping Agreement; the WTO Appellate Body affirmed the panel's findings in both cases. In October 2000, the United States confirmed to the DSB its commitment to implement the recommendations and rulings of the DSB in a manner which respects U.S. WTO obligations. As a result of arbitral proceedings the United States has a period of ten months from the date of adoption of the panel report—i.e., until July 26, 2001—to implement the recommendations and rulings of the DSB. The USTR invites written comments from the public concerning the manner in which it should respond.
Comments should be submitted by April 16, 2001, to be assured of timely consideration by the USTR in developing a response to the DSB recommendations and rulings.
Comments are to be submitted to Sandy McKinzy, Litigation Assistant, Office of Monitoring and Enforcement, Room 122, Attn: U.S.—Antidumping Act of 1916 dispute, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC, 20508.
Rhonda K. Schnare, Associate General Counsel, (202) 395-3582.
On November 11, 1999, the EC submitted a
Separately, on June 3, 1999, Japan also submitted a request for the establishment of a WTO dispute settlement panel to examine the same matter. The DSB established a panel for this purpose on July 26, 1999, and the panel was composed on August 11, 1999. On May 29, 2000, after full briefing and hearings, the panel issued its recommendations and rulings.
Thereafter, the United States appealed both panel reports to the WTO Appellate Body. After further briefing and a hearing, the Appellate Body issued a report affirming the panel reports on August 28, 2000. The Appellate Body's recommendations and rulings were adopted by the DSB on September 26, 2000.
In October 2000 the United States affirmed that it would implement the DSB's recommendations and rulings. On November 17, 2000, the EC and Japan requested arbitration on the reasonable period of time for the United States to implement the DSB's recommendations and rulings. The arbitrator issued a report on February 28, 2001, granting the United States a period of ten months, or until July 26, 2001, to implement the DSB's recommendations and rulings.
The EC and Japan both alleged that the 1916 Act is inconsistent with Articles III and VI of GATT 1994 and various provisions of the Antidumping Agreement. Specifically, in addition to Article III of GATT 1994, the EC alleged that the 1916 Act is inconsistent with Articles VI:2 and VI:1 of GATT 1994 and Articles 1, 2, 3, 4, 5 of the Antidumpting Agreement.
Japan alleged that the 1916 Act is inconsistent with article VI:2 of GATT and 18.1 of the Antidumping Agreement, which Japan asserted permits the imposition of antidumping duties as the only possible remedy for dumping. Japan also alleged that the 1916 Act is inconsistent with Articles 1, 2, 3, 4, 5, 9 and 11 of the Antidumping Agreement and Article XI of GATT 1994.
Finally, both the EC and Japan asserted that the United States failed to comply with Article XVI:4 of the Marakesh Agreement establishing the WTO which requires that Members bring their laws into compliance with their obligations under the WTO agreements.
In the EC dispute, the panel found that the 1916 Act is inconsistent with Article VI:1 and VI:2 of the GATT 1994; Articles 1, 4, and 5.5 of the Antidumping Agreement; and Article XVI:4 of the WTO Agreement. Specifically, the panel found that 1916 Act violates Article VI because it does not provide exclusively for the material injury test set forth under Article VI, and that by providing for the imposition of treble damages, fines or imprisonment instead of antidumping duties, the 1916 Act violates Article VI:2. The panel also found that by not requiring that cases be filed by or behalf of a domestic industry, the Act violates the Antidumping Agreement's standing provision in Article 4: and that the Act fails to provide the notice required by Article 5 of the Antidumping Agreement.
Similarly, in the Japan dispute, the panel found that the 1916 Act violates Article VI:1 and VI:2 of GATT 1994. The panel also found that the Act is inconsistent with the procedural requirements in Articles 1, 4.1, 5.1, 5.2, 5.4 of the Antidumping Agreement, and Articles 18.1 and 18.4 of the Anti-dumping Agreement by virtue of the other procedural violations. Article 5.1 requires that a request for initiation of an anti-dumping investigation be made by or on behalf of the domestic industry. Article 4.1 defines “domestic industruy” for the purpose of the AntiDumping Agreement. Article 5.4 requires the investigating authorities to determine hat an application is supported by those producers whose collective output constitutes more than 50 per cent of the total production of the like product of those producers supporting or opposing the application, and Article 5.2 requires that the application include evidence of dumping, injury and causation.
In both cases, the panel declined to reach the GATT Article III claim and found that the United States is in violation of Article XVI:4 of the WTO Agreement only to the extent that it is in violation of other WTO provisions. In the Japan case, the panel also declined to rule upon the GATT Article XI claim.
The disputes were combined for purposes of briefing and hearings before the WTO Appellate Body, which affirmed the panel's findings in both cases.
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Comments must be in English and provided in fifteen copies to Sandy McKinzy at the address provided above. A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitting person. Confidential business information must be clearly marked “BUSINESS CONFIDENTIAL” in a contrasting color ink at the top of each page of each copy.
Information or advice contained in a comment submitted, other than business confidential information, may be determined by the USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitting person believes that information or advice may qualify as such, the submitting person—
(1) Must so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” in a contrasting color ink at the top of each page of each copy; and
(3) Is encouraged to provide a non-confidential summary of the information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), the USTR maintains a file on this dispute settlement proceeding, accessible to the public, in the USTR Reading Room: Room 101, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508. the public file will include all non-confidential comments received by the USTR from the public in response to this request. An appointment to review the public file (Docket WTO/D-162, United States—Anti-dumping Act of 1916) may be made by calling Brenda Webb, (202) 395-6186. The USTR Reading Room is open to the public from 9:30 a.m. to 12 noon and 1 p.m. to 4 p.m., Monday through Friday.
Coast Guard, DOT.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Coast Guard intends to seek the approval of OMB for the renewal of one Information Collection Request (ICR). The ICR comprises Alternative Compliance for International and Inland Navigation Rules—33 CFR Parts 81 and 89. Before submitting the ICR to OMB, the Coast Guard is requesting comments on the ICR described below.
Comments must reach the Coast Guard on or before May 18, 2001.
You may mail comments to the Docket Management System (DMS) [USCG 2001-9009], U.S. Department of Transportation (DOT), room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001, or deliver them to room PL-401, located on the Plaza Level of the Nassif Building at the same address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
The DMS maintains the public docket for this request. Comments will become part of this docket and will be available for inspection or copying in room PL-401, located on the Plaza Level of the Nassif Building at the above address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also access this docket on the Internet at
Copies of the complete ICR are available through this docket on the Internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on this document; or Dorothy Beard, Chief, Documentary Services Division, U.S. Department of Transportation, 202-366-5149, for questions on the docket.
The Coast Guard encourages interested persons to submit written comments. Persons submitting comments should include their names and addresses, identify this document [USCG 2001-9009], and give the reason for the comments. Please submit all comments and attachments in an unbound format no larger than 8
1.
Federal Aviation Administration, DOT.
Notice of availability of advisory circular on in-service inspection of safety critical turbine engine parts at piece-part opportunity.
The Federal Aviation Administration (FAA) announces the availability of advisory circular (AC) No. 33.4-2, Instructions for Continued Airworthiness: In-Service Inspection of Safety Critical Turbine Engine Parts at Piece-Part Opportunity.
The Engine and Propeller Directorate, Aircraft Certification Service, issued AC 33.4-2 on March 8, 2001.
Mark Liptak, Engine and Propeller Standards Staff, ANE-110, 12 New England Executive Park, Burlington, MA 01803; telephone: (781) 238-7749; fax: (781) 238-7199; e-mail: mark.liptak@faa.gov. The subject AC is available on the Internet at the following address: www.faa.gov/avr/air/acs/achome.htm.
The FAA published a notice in the
This AC provides guidance and acceptable methods, but not the only methods, that may be used to demonstrate compliance with the requirements of 14 CFR 33.4, Instructions for Continued Airworthiness, for in-service inspections of safety critical turbine engine parts at piece-part opportunity. Analysis of fifteen years of transport aircraft accident and incident data shows that the leading cause of engine related CAAM level 3 and 4 accidents for turbofan engines is the uncontained failure of safety critical parts. The failure of safety critical parts can present a significant hazard to an aircraft by releasing fragments that can penetrate the cabin or fuel tanks, damage control surfaces, or sever flammable fluid or hydraulic lines. To significantly reduce the occurrence of these incidents, part features most critical to safety should be subjected to in-service inspections at each piece-part opportunity during their service lives, using methods that detect flaws that could lead to failure.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received and of dispositions of prior petitions.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of a petition seeking relief from specified requirements of 14 CFR, and dispositions of certain petitions previously received. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before April 9, 2001.
Send comments on any petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2000-XXXX at the beginning of your comments. If you wish to receive confirmation that FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing the petition, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Dockets Office (telephone 1-800-647-5527) is on the plaza level of the NASSIF Building at the Department of Transportation at the above address. Also, you may review public dockets on the Internet at http://dms.dot.gov.
Forest Rawls, (202) 267-8033, or Vanessa Wilkins, (202) 267-8029, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of public meeting.
The FAA will convene a two-day public meeting addressing liability and risk-sharing for commercial space launch and reentry activities. Public views obtained at the meeting will be included in a report to Congress. In layman's terms, the report is intended to include a variety of views and comments concerning whether the government should continue to provide the potential for assurance of financial risk-based support beyond insurance
The meeting will take place on April 25-26, 2001, from 9:00 am to 4:30 pm, and will continue thereafter during a two week on-line public forum accessible through the Internet.
The meeting will take place in the FAA Auditorium, located at 800 Independence Avenue, SW., 3rd floor, Washington, DC 20591. Further information regarding the on-line public forum will be provided by public notice approximately three weeks before the public meeting. Persons unable to participate in either the public meeting or the on-line public forum may mail or deliver views, in writing and in duplicate, to the U.S. Department of Transportation Dockets, Docket No. FAA-2001-9119, 400 Seventh Street, SW., Washington, DC, 20590, or may do so electronically by sending them to the Documents Management Systems (DMS) at the following Internet address:
Ms Esta M. Rosenberg, Senior Attorney-Advisory, Regulations Division, Office of the Chief Counsel, Federal Aviation Administration, U.S. Department of Transportation (202) 366-9320, or Mr. Ronald K. Gress, Manager, Licensing and Safety Division, Associate Administrator for Commercial Space Transportation, Federal Aviation Administration, U.S. Department of Transportation (202) 267-7985.
Congress has directed the Secretary of Transportation to conduct a comprehensive and multi-faceted study of the liability risk-sharing regime applicable to U.S. commercial space transportation. Under delegated authority, the Federal Aviation Administration (FAA)'s Associate Administrator for Commercial Space Transportation (AST) is responsible for preparing the report required by the Commercial Space Transportation Competitiveness Act of 2000 (referred to in this Notice as the Space Competitiveness Act ), Public Law 106-405. The report contents, as prescribed by Congress, are delineated below and must present the views of interested Federal agencies as well as the public. The purpose of the public meeting is to elicit views from interested members of the public regarding the different aspects of risk sharing required to be addressed in the report and to do so in a public forum. There will be other opportunities for the interested public to provide input to the FAA. These include an on-line public forum that will continue for two weeks following the public meeting and future opportunities to submit views, in writing, to the FAA.
The Space Competitiveness Act, enacted in October 2000, extends for an additional 4-year term the existing statutory liability risk-sharing regime for commercial space transportation, popularly referred to as indemnification. Under the statutory program, FAA-licensed operators conducting space launch and reentry activities share with the U.S. Government the risk of liability, chiefly to uninvolved persons, for injury, damage or loss associated with licensed operations. Originally due to expire in 1993, the indemnification provisions of 49 USC Subtitle IX, chapter 701, popularly referred to as the Commercial Space Launch Act or CSLA, were extended in 1993, for an additional six years, followed by a one year extension in 1999. Passage in 2000 of the Space Competitiveness Act ensures that FAA-licensed operators will be eligible for indemnification under statutorily prescribed procedures through the year 2004, and for some time thereafter as long as their substantially complete launch or reentry license application has been submitted to the FAA by the end of 2004. The most recent extension of the indemnification provisions was accompanied by the requirement to prepare a comprehensive report on the need to continue further, beyond the year 2004, the risk-sharing scheme of the CSLA in its present or modified form.
The U.S. commercial launch industry has had an impressive safety record. There has never been a request for indemnification under the statutory program. In fact, the FAA is unaware of any third-party claims having been processed under the statutorily-directed financial responsibility program. Nevertheless, since the statutory risk allocation program was first enacted by Congress in 1988, U.S. launch operators have maintained that indemnification is critical to their ability to conduct launch operations without “betting the company” and to compete successfully with foreign launch services providers offering customers government-backed assurances that their liability exposure will be covered without risk or additional cost to the customer. The report mandated by the Space Competitiveness Act is intended to facilitate congressional consideration of a further extension of the existing program, and the need for any changes to the program, when it next expires December 31, 2004.
Indemnification is one element of a comprehensive risk allocation program detailed in the CSLA and explained in final rules issued by the FAA to implement the statute. (
Under a three-tiered approach to risk allocation, launch and reentry licensees are effectively relieved of the risk of potentially catastrophic and unlimited liability associated with hazardous launch or reentry operations. The first tier of liability risk is that having the greatest likelihood of occurrence. It is managed through an FAA requirement for a demonstration of financial responsibility, typically private liability insurance purchased by a licensee authorized to conduct a launch or reentry. The liability to third parties of all participants, including the U.S. Government, involved in a licensed launch or reentry must be covered by the licensee's insurance. The amount of coverage is prescribed by the FAA based on an assessment of risk, known as a maximum probable loss analysis, to third parties and third-party or uninvolved property, up to a statutory limit of $500 million.
The second tier of liability risk is for losses to third parties and third-party or uninvolved property in excess of required insurance. Under the current statutory scheme, responsibility for covering excess claims is allocated to the Government under a procedure,
This arrangement benefits all participants in licensed launch and reentry activities, including the Government at no cost to the Government. Coverage of the Government's responsibility for damage or loss to third parties is significant because of its liability exposure as a participant in supporting launches and reentries at federal ranges and as a signatory to the Outer Space Treaties. Specifically, under the Convention on International Liability for Damage Caused by Space Objects (Liability Convention), the United States is absolutely liable for damage caused on Earth or to aircraft in flight, outside of U.S. territory, when the United States is a launching State under the terms of the Outer Space Treaties. The current statutory liability risk-sharing regime ensures that the Government's treaty-based financial responsibility for commercial launch and reentry activities will, in all probability, be satisfied by private insurance and without cost to the U.S. taxpayer.
Above the combined amount of insurance plus congressionally authorized payment, or indemnification, responsibility for covering third-party liability returns to the licensee or other liable party. As a general matter, managing the third tier of liability risk is therefore the responsibility of commercial entities involved in licensed activity.
Indemnification under the CSLA ensures that relief will be available to compensate injured persons not involved in space activity but who suffer damage or loss as a result of a launch or reentry accident, as well as Government personnel as defined by FAA regulations, who suffer loss or injury in supporting a commercial launch or reentry. Only successful claims for third-party injury, damage or loss may be eligible for Government indemnification. Indemnification does not cover claims for damage or loss to a launch vehicle or reentry vehicle, or to a satellite or other payload. Nor is it intended to cover losses sustained by employees of commercial entities involved in licensed activity. As explained in the above-referenced rulemaking documents, private entities involved in a licensed launch or reentry are responsible for managing their own damage or loss and that of their employees. To ensure this result, the CSLA directs certain contractual arrangements among the various launch or reentry participants to address the risk of damage or loss to their property and personnel involved in launch or reentry activities. FAA regulations include a contractual agreement, known as an “Agreement for Waiver of Claims and Assumption of Responsibility,” documenting this arrangement among the various participants. (See appendix B to 14 CFR parts 440 and 450, respectively.) The statutory risk-sharing program does not dictate risk management decisions for private entities involved in space activities beyond the required waiver of claims agreement just described. An owner of a launch or reentry vehicle or payload may choose to insure its property through private insurance, or not.
The current statutory liability risk-sharing regime has been credited with reducing launch costs by virtue of requirements for comprehensive insurance covering all participants, and by significantly limiting the threat of litigation and its associated costs among participants in licensed activity. It has also been cited as a critical component in building the international competitiveness of the U.S. space transportation industry by placing U.S. launch services providers on a more equal footing with their competition. For example, Arianespace, still the primary competitor of the U.S. launch industry, continues to offer customers full indemnification by the French Government for third-party liability that exceeds required insurance of 400 million French francs (currently, approximately $80 million).
Recently, the statutory risk-sharing regime was extended to reentry vehicles, including reusable launch vehicles (RLVs), through enactment of the Commercial Space Act of 1998. Although no commercial RLV concept is sufficiently mature for FAA licensing consideration, extension of the risk-sharing program to licensed reentry activities has been regarded as critical to RLV development and ability to operate commercially, just as it was to the ability of U.S. industry to offer commercial expendable launch vehicle services beginning in the late 1980s through the present.
Seven specific areas of study and analysis are identified in the Space Competitiveness Act and the FAA seeks public views on each of them. Although recommendations on appropriate modifications to existing law are required as part of the report, the FAA is advised that the principal purpose of the report is to provide an understanding of the factual and legal bases for continuing or modifying the indemnification and statutory risk-sharing program, as opposed to formulation of policy that may involve statutory changes.
The seven areas of study are listed below along with some associated issues preliminarily identified by the FAA to stimulate, but not limit or direct, consideration of the issues by the public. The report mandated by the Space Competitiveness Act is broad in its required scope and coverage and the interested public is urged to explore the issues in depth. For this reason, the FAA is providing weeks of advance notice of the public meeting. The report shall:
1. Analyze the adequacy, propriety, and effectiveness of, and the need for, the current liability risk-sharing regime in the United States for commercial space transportation.
2. Examine the current liability and liability risk-sharing regimes in other countries with space transportation capabilities.
As previously noted, Arianespace offers customers government-backed relief from liability risk exposure arising out of a launch accident. Other governments offer varying forms of financial support to address potential liability of launch providers and their customers. The FAA seeks information and public views on the ability of U.S. launch services providers to compete effectively with foreign providers in the context of the current risk-sharing regime and their ability to continue to do so if the regime were absent or modified. Specifically, the FAA is interested in the impact indemnification has on the ability of U.S. providers to attract and retain customers, both foreign and domestic, under the present scheme and the potential effects ending or changing the current scheme could have on sustaining and enhancing the international competitiveness of the U.S. space transportation industry.
3. Examine the appropriateness of deeming all space transportation activities to be “ultrahazardous activities” for which a strict liability standard may be applied and which liability regime should attach to space transportation activities, whether ultrahazardous activities or not.
Government indemnification has been made available to industries that have been deemed ultrahazardous in nature, such as nuclear energy generation, and subject by courts to a strict liability standard. Similarly, under special provisions, such as Public Law 85-804, government contractors engaging in
In the context of a licensed launch in the United States, consisting of certain pre-flight ground operations as well as ignition and flight of a launch vehicle, is the current liability risk-sharing regime necessary and appropriate for all licensed launches and launch activities? The FAA is interested in information and public views as to whether it is reasonable and appropriate to separate licensed activities that may be deemed ultrahazardous and therefore subject to a strict liability standard by a court from those that would not be so considered.
4. Examine the effect of relevant international treaties on the Federal Government's liability for commercial space launches and how the current domestic liability risk-sharing regime meets or exceeds the requirements of those treaties.
As stated above, the United States accepts liability for certain damage when it is a launching State under the Outer Space Treaties, that is, when it launches or procures the launch of a space object or when the launch takes place from U.S. territory or a U.S. facility. (Liability Convention, Article I.) A “space object” includes component parts of a space object as well as its launch vehicle and parts thereof.
By regulation, the FAA requires launch insurance for a term of 30 days following a licensed launch; however, the Government's liability as a signatory to the Outer Space Treaties may extend beyond the event of conducting a launch or reentry. The FAA seeks information and public views on the adequacy of the existing statutory and regulatory program in light of treaty obligations undertaken by the United States. The Outer Space Treaties are available by accessing the United Nations Internet site.
5. Examine the appropriateness, as commercial reusable launch vehicles enter service and demonstrate improved safety and reliability, of evolving the commercial space transportation liability regime towards the approach of the airline liability regime.
The airline liability regime differs from that applicable to commercial space transportation in several ways. Unlike its acceptance of an international liability regime applicable to damage on the ground or to aircraft resulting from certain space activities when the United States is a launching State under the Liability Convention as explained in item 4, above, the United States has not accepted a comparable regime for airline liability and is not party to a multilateral agreement under which the U.S. Government accepts financial responsibility for covering damage on the ground arising out of civil aircraft operation. Department of Transportation economic regulations require U.S. and foreign air carriers to have liability insurance coverage in certain minimum amounts, on a per person and per occurrence basis, to cover injury, loss or damage to the traveling public and persons on the ground.
6. Examine the need for changes to the Federal Government's indemnification policy to accommodate the risks associated with commercial spaceport operations.
Licensed launch site and reentry site operators, popularly referred to as spaceports, currently participate in the liability risk-sharing regime as a contractor to the launch or reentry licensee when their site is used to support a licensed launch or reentry. If a launch accident occurred, for example, insurance obtained by the launch licensee would cover claims of third parties against the licensed launch site operator and that operator would be eligible for government payment of excess claims, or indemnification, if third-party claims exceeded the required amount of insurance. At other times, such as when there is no launch vehicle present, the CSLA does not provide statutory authority for payment by the Government of third-party claims resulting from operation of a launch or reentry site separate from licensed launch or reentry activities. Those risks are managed in the same manner as other industrial risks, that is, as part of an operator's business plan for managing the risk of liability through insurance or other financial protection. The FAA seeks information and public views on the adequacy of the existing statutory scheme as it affects licensed launch site and reentry site operators.
7. Recommend appropriate modifications to the commercial space transportation liability regime and the actions required to accomplish those modifications.
Interested members of the public are invited to participate in the public meeting by offering views on any or all of the areas of study identified above. In order to assure all participants an opportunity to present views, persons interested in participating in the meeting should reserve time for their presentations by contacting AST directly at (202) 267-7793.
Additional information regarding the on-line public forum, as well as additional details concerning the public meeting, will be made available in the weeks preceding the public meeting through notice in the
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for Special Committee (SC)-197 meeting to be held April 10-11, 2001, starting at 9:00 a.m. The meeting will held RTCA Inc., 1140 Connecticut Ave., NW., Suite 1020, Washington, DC 20036.
At the request of the Federal Aviation Administration, RTCA has established a new Special Committee (SC-197) to develop Minimum Operational Performance Standards (MOPS) for the Construction, Performance, and Testing of Rechargable and Starting Batteries as Power Sources for Equipment Installed in Aircraft. The FAA would then consider adopting the RTCA standard by reference in a Technical Standard Order.
The agenda will include: (1) Welcome and Introductory Remarks; (2) Review Meeting Agenda; (3) Review of RTCA and Federal Advisory Committee Procedures; (4) Review FAA Aircraft Battery Requirements; (5) Review SC-197 Terms of Reference; (6) Identify Goals/Develop Work/Plans Examine Milestones; (7) Organize Work Groups/Determine Leadership/Establish Interim Milestones; (8) Announce Work Group Leaders/Assign Tasks and Work Groups/Begin Work Group Breakout Sessions; April 11: (9) Working Groups meetings; Plenary Session: (10) Working Groups Reports; (11) Proposed Schedules for Subsequent Meetings; (12) Other Business; (13) Establish Agenda for Next Meeting; (14) Date and Location of Next Meeting; (15) Closing.
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the RTCA Secretariat, 1140 Connecticut Avenue, NW., Suite 1020, Washington, DC, 20036; (202) 833-9339 (phone); (202) 833-9434 (fax); or
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Alpena County Regional Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before April 18, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Federal Aviation Administration, Detroit Airports District Office Willow Run Airport, East, 8820 Beck Road, Belleville, Michigan 48111.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Bryan K. Holland of the Alpena County Regional Airport at the following address: Alpena County Regional Airport, 1617 Airport Road, Alpena, Michigan 49707.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the Alpena County Regional Airport under section 158.23 of part 158.
Mr. Jon Gilbert, Program Manager, Federal Aviation Administration, Detroit Airports District Office, Willow Run Airport, East, 8820 Beck Road, Belleville, Michigan 48111 (734-487-7281). The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Alpena County Regional Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR part 158).
On February 5, 2001, the FAA determined that the application to impose and use the revenue from a PFC submitted by Alpena County Regional Airport was substantially complete within the requirements of section 158.25 of Part 1568. The FAA will approve or disapprove the application, in whole or in part, no later than May 16, 2001.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may upon request, inspect the application, notice, and other documents germane to the application in person at the Alpena County Regional Airport.
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to use the revenue from a PFC at Hartsfiled Atlanta International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before April 18, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Atlanta District Office, Campus Building, 1701 Columbia Avenue, Suite 2-260, College Park, Georgia 30337-2747.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Art Bacon, Aviation Business Manager of the City of Atlanta's Department of Aviation at the following address: Art Bacon, Aviation Business Manager, City of Atlanta, Department of Aviation, P.O. Box 20509, Atlanta, GA 30320-2509.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the City of Atlanta under section 158.23 of Part 158.
Terry Washington, P.E., Program Manager, Atlanta Airports District Office, Campus Building, 1701 Columbia Avenue, Suite 2-260, College Park, Georgia 30337-2747, Telephone Number: 404-305-7143. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to use the revenue from a PFC at ATL under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
On February 23, 2001, the FAA determined that the application to use the revenue from a PFC submitted by the City of Atlanta was substantially complete within the requirements of section 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than May 24, 2001. The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the City of Atlanta's Department of Aviation.
Federal Aviation Administration (FAA), DOT.
Notice of Intent to Rule on Application.
The FAA proposes to rule and invite public comment on the application to use the revenue from a PFC at Juneau International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990). (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before April 18, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: David S. Stelling, Acting Manager, Alaskan Region Airports Division, 222 West 7th, Box 14, Anchorage, AK 99513.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Allan A. Heese, Airport Manager, of the Juneau International Airport at the following address: Juneau International Airport, 1873 Shell Simmons Drive, Juneau, AK 99801.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the Juneau International Airport under section 158.23 of Part 158.
Debbie Roth, Programming Specialist, Alaskan Region Airports Division, Planning and Programming Branch, AAL-611A, 222 W 7th, Box 14, Anchorage, AK 99513, (907) 271-5443. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application (#01-04-C-00-JNU) to use the revenue from a PFC at Juneau International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
On February 28, 2001, the FAA determined that the application to use the revenue from a PFC submitted by City and Borough of Juneau, Juneau International Airport, Juneau, Alaska, was substantially complete within the requirements of section 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than June 8, 2001.
The following is a brief overview of the application.
Class or classes of air carriers which the public agency has requested not be required to collect PFCs: None.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Juneau International Airport.
Federal Aviation Administration (FAA), DOT.
Notice of Intent To Rule on Application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a passenger facility charge (PFC) at Richmond International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before April 18, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Arthur Winder, Project Manager, WASHINGTON AIRPORTS DISTRICT OFFICE, 23723 Air Freight Lane, Suite 210, Dulles, Va. 22016.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Jon E. Mathiasen, Executive Director, Capital Region Airport Commission, at the following address: Capital Region Airport Commission, 1 Richard E. Byrd Terminal Drive, Richmond International Airport, Virginia 23250-2400.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the Capital Region Airport Commission under section 158.23 of Part 158.
Arthur Winder, Program Manager, Washington Airports District Office, 23723 Air Freight Lane, Suite 210, Dulles, Va. 22016, (703) 661-1363. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Richmond International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
On February 16, 2001, the FAA determined that the application to impose and use the revenue from a PFC submitted by Capital Region Airport Commission was substantially complete within the requirements of section 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than May 17, 2001.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the FAA Regional Airports Office located at: Federal Aviation Administration, Airports Division, AEA-610, 1 Aviation Plaza, Jamaica, NY 11434-4809.
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Richmond International Airport.
Federal Aviation Administration, DOT.
Notice of availability; policy statement.
The Federal Aviation Administration (FAA) announces the availability of policy for evaluating the use of structural dynamic analysis methods for blade containment and rotor unbalance tests.
The FAA issued policy statement number ANE-2000-33.94-R0 on March 8, 2001.
Jay Turnberg, FAA, Engine and Propeller Standards Staff, ANE-110, 12 New England Executive Park, Burlington, MA 01803; e-mail:
The FAA published a notice in the
Engine manufacturers are developing and using various types of structural dynamic analysis methods to support both engine certification activities and aircraft manufacturers' certification activities. The FAA has developed policy to provide guidance for evaluating the use of structural dynamic analysis methods to show compliance with the requirements of § 33.94 of Title 14 of the Code of Federal Regulations, “Blade containment and rotor unbalance tests.” This policy specifically addresses paragraph (a) of § 33.94 for engine design and configuration changes. This policy does not create any new requirements.
49 U.S.C 106(g), 40113, 44701-44702, 44704.
Pursuant to Title 49 Code of Federal Regulations (CFR) Part 235 and 49 U.S.C. 20502(a), the following railroads have petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of the signal system or relief from the requirements of 49 CFR Part 236 as detailed below.
I&M Rail Link, LLC seeks approval of the proposed modification of the traffic control system, on the single main track, between Chillocothe and Braymer, Missouri, on the First Subdivision, consisting of the discontinuance and removal of controlled signals 16RA, and 16L at East Dawn, milepost 431.9; the discontinuance and removal of controlled signals 14R, and 14LA at West Dawn, milepost 432.8; 22R, and the installation of new back to back intermediate signals 4332 and 4333 at milepost 432.35.
The reason given for the proposed changes is that the siding track between East Dawn and West Dawn was retired by the previous owner, thereby eliminating the need for the controlled signals.
Any interested party desiring to protest the granting of an application shall set forth specifically the grounds upon which the protest is made, and contain a concise statement of the interest of the party in the proceeding. Additionally, one copy of the protest shall be furnished to the applicant at the address listed above.
All communications concerning this proceeding should be identified by the docket number and must be submitted to the Docket Clerk, DOT Central Docket Management Facility, Room PI-401, Washington, DC 20590-0001. Communications received within 45 days of the date of this notice will be considered by the FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9:00 a.m.-5:00 p.m.) at DOT Central Docket Management Facility, Room PI-401 (Plaza Level), 400 Seventh Street, SW., Washington, DC 20590-0001. All documents in the public docket are also available for inspection and copying on the internet at the docket facility's Web site at
FRA expects to be able to determine these matters without an oral hearing. However, if a specific request for an oral hearing is accompanied by a showing that the party is unable to adequately present his or her position by written statements, an application may be set for public hearing.
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioners' arguments in favor of relief.
The Minnesota Northern Railroad and St. Croix Valley Railroad have petitioned for a permanent waiver of compliance for one locomotive, ILSX 904, from the requirements of Safety Glazing Standards, 49 CFR Part 223, which requires certified glazing.
This locomotive is intended for primary use on the St. Croix Valley Railroad in and near Hinkley, Minnesota. The St. Croix Valley Railroad operates in East Central Minnesota, the location of the railroad is largely rural, approximately 50% cultivated farm land and 50% wooded.
Interested parties are invited to participated in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2000-8368) and must be submitted to the Docket Clerk, DOT Central Docket Management Facility, Room P1-401, Washington, DC 20590-0001. Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communication concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at DOT Central Docket Management Facility, Room P1-401 (Plaza Level), 400 7th Street, SW., Washington, DC. All documents in the public docket are available for inspection and copying on the internet at the docket facility's WEB site at http://dms.dot.gov.
Surface Transportation Board
Policy statement on use of third-party contracting In preparation of environmental documentation.
This policy statement discusses the Surface Transportation Board's practice of using third-party contractors to aid in preparing environmental documentation necessary to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321
This policy statement is effective upon publication.
Victoria Rutson, (202) 565-1545 or Evelyn Kitay, (202) 565-1563 [TDD/TYY for the hearing impaired: 1-800-877-8339].
The Surface Transportation Board (Board) often uses third-party contractors to assist in preparing Environmental Assessments (EAs)
NEPA requires federal agencies “to the fullest extent possible” to consider the environmental consequences “in every recommendation or report on major federal actions significantly affecting the quality of the human environment.”
Our Section of Environmental Analysis (SEA) assures that the Board meets its responsibilities under NEPA. SEA provides us with an independent environmental review of these proposals for which an environmental review is triggered by NEPA and our implementing regulations at 49 CFR part 1105 (generally rail line constructions, abandonments, and mergers). SEA prepares an EA or EIS, as appropriate, and provides technical advice and recommendations to the Board on environmental matters.
Third-party contracting is a voluntary arrangement in which the applicant pays for a contractor to assist SEA by developing environmental analyses necessary for compliance with NEPA and related environmental laws,
SEA follows certain steps when preparing environmental documents with the aid of third-party contractors. The first step is to inform applicants about the third-party contractor option. As stated above, third-party contracting is a voluntary arrangement. Applicants can choose either (1) to retain a third-party contractor to assist in the preparation of the environmental document or (2) to prepare an environmental (and historic) report on their own, evaluating the potential environmental impacts and any reasonable alternatives to the proposed action, and submit the report with, or prior to, the time they file their project with the Board.
Once an applicant decides to use a third-party contractor to assist in the preparation of the environmental document, the next step in the process is to select a third-party contractor. SEA maintains a list of approved third-party contractors, comprised of individuals and firms with expertise and experience in environmental review of rail or transportation projects.
After the third-party contractor has signed and returned the disclosure statement to SEA, SEA prepares a Memorandum of Understanding (MOU), which SEA, the applicant, and the third-party contractor must all sign. The MOU outlines the conditions and procedures each party must follow in preparing the environmental document. Under the MOU, the applicant's primary responsibility is to pay for the contractor's services; the contractor's primary responsibility is to assist SEA in preparing the environmental document as SEA directs; and SEA's primary responsibility is to supervise and direct the contractor's work. The MOU provides that the applicant will not attempt to improperly influence the contractor's work, and that the contractor will cooperate fully with SEA. The MOU clarifies that SEA, not the applicant, is in control of the preparation of the environmental analysis, even though the applicant is paying the contractor's bills. The specific responsibilities of SEA, the applicant, and the third-party contractor detailed in a typical MOU are set forth below.
(a)
(b)
Every MOU states that the contractor may engage subcontractors to perform work on the project, but that all work performed by subcontractors will also be under the direction, control, supervision, and final approval of SEA. MOUs also typically require the contractor to perform work in a “timely, responsive, satisfactory, and cost-effective manner * * *”
(c)
The final step before beginning preparation of the environmental document is the development of a Work Plan that describes the work to be performed by the contractor, sets forth a proposed schedule for completing the work, names the individual members of the contractor's staff who will be primarily responsible for the project, and outlines environmental tasks that will need to be performed for the project known to date (for example, preparation of a biological assessment under the Endangered Species Act, 16 U.S.C 1531
Once all of the preliminary matters have been settled, SEA and the contractor begin working together to prepare the environmental document under SEA's direction and control.
Additionally, the extensive public participation that is an integral part of the environmental review process guarantees that the environmental document will reflect multiple points of view and reduces the possibility of one-sided or applicant-biased environmental analyses.
Other agencies participate in the environmental review process as well, which adds further checks and balances to the process and makes the environmental documents required by NEPA more comprehensive. One of the first tasks SEA directs a third-party contractor to undertake is the preparation of consultation letters to appropriate Federal, state and local agencies. All agencies are encouraged to participate and submit comments during the Board's environmental review process. Moreover, SEA may request agencies that have jurisdiction under other laws over some aspect of the proposal, or agencies that have “special expertise with respect to any environmental issue,” to participate as “cooperating agencies” in the Board's environmental review process.
In short, our third-party contracting process provides an effective means to prepare an independent, comprehensive environmental analysis that meets the requirements of NEPA and related environmental laws. The contractors function as an extension of SEA's staff. They work under SEA's direction to collect and verify environmental information from the railroads, consulting agencies, other interested parties, and the general public; conduct unbiased environmental analysis; develop appropriate environmental criteria and methodologies for analyzing particular environmental issue areas; and prepare environmental documentation and mitigation options.
At times, members of the public and certain applicants have raised concerns about the Board's third-party contracting process. The public has questioned whether any environmental document prepared with the assistance of a contractor paid by the railroad constitutes an impartial analysis, and whether the work of a contractor paid by the railroad is influenced by the applicant-railroad. We believe that adequate safeguards exist that ensure the neutrality of the third-party contracting process. As discussed above, SEA remains fully responsible for the contents of the EA or EIS and closely monitors the work of the contractor throughout the environmental review process. There is extensive public outreach to ensure public awareness of the proposals before the agency and participation in the process. Also, SEA issues every EA or EIS in draft form for public review and comment and consults with appropriate Federal, state and local agencies. A final environmental document is then prepared responding to the comments, which also are made public.
Applicants' concerns primarily focus on the cost and lack of control over the scope of the environmental review.
Because the potential environmental impacts of a project cannot always be predicted at the beginning of the environmental review process, particularly in large rail construction cases or major rail mergers such as
As our regulations state, we encourage the use of third-party contractors because they expedite and facilitate the environmental analysis.
Moreover, the Board lacks the broad range of in-house technical experts that third-party contractors can tap. Environmental analyses in Board proceedings are becoming increasingly complex, requiring the input of a number of experts in highly technical fields, such as atmospheric science and meteorology, anthropology and ethnography, geographic information system (GIS) analysis, acoustical engineering, and environmental justice analysis. Almost all environmental documents prepared by SEA require the input of some experts. However, individual experts are needed only on a periodic basis, as issues requiring their specific area of expertise do not arise in every case before the Board requiring environmental review. Thus, it would be impractical and prohibitively expensive for a small agency such as the Board to employ its own experts in these highly technical areas on a full-time basis.
Furthermore, while third-party contractors, as private businesses, are free to commit their staff resources to as many or as few clients as they wish, the Board, as a government agency, cannot refuse to conduct environmental analyses and produce environmental documents due to limited staff. In order to prepare appropriate environmental
Certain applicants have expressed concern about the significant costs that they can incur with the third-party contractor process.
We have examined the processes used by other agencies to see if we could improve our process and allow applicants to better control costs without compromising the need to ensure the independent nature of the contractor's environmental analysis. We conclude that our current process, although not without problems, offers the best available alternative for preparing the environmental documentation needed to fulfill the Board's NEPA obligations.
Some agencies have policies similar or identical to ours. For example, the Federal Energy Regulatory Commission's (FERC) procedure for third-party contracting is essentially the same as our process.
The third-party contracting process used by the U.S. Environmental Protection Agency (EPA) in the preparation of EISs, outlined at 40 CFR 6.604(g)(3), is also similar to our process in several respects.
Other agencies either have separate funding for contractors, or they may require applicants to place funds for paying contractors into separate accounts that are subject to oversight by agency officials. For example, the Federal Aviation Administration (FAA) has separate funds to pay contractors who prepare environmental documents for airport development projects; applicants must pay for hiring contractors to prepare environmental documents in other matters.
We remain open and receptive to suggestions on how to improve our third-party contracting process. But for now, the current process appears to be the most efficient and effective way for the Board to ensure a thorough, adequate, and legally sound environmental review under NEPA and related environmental laws. As discussed above, we believe sufficient safeguards exist to address the public's chief concern—assurance of the objectivity of the environmental review process. To date, most of applicants' concerns relate to experience with a few extremely controversial rail proposals, such as
NEPA mandates a process rather than a result. In order to respond to new developments, SEA, as well as contractors working under SEA's supervision and applicants, must remain flexible and responsive. We understand that this process may introduce some undesired uncertainty and additional cost into the environmental review process, but NEPA has certain requirements, including thorough, accurate, and ultimately, legally defensible environmental analyses, and the current third-party contractor process is needed to meet those requirements in the most timely and efficient way possible.
We do not seek public comment on this policy statement because we do not propose a new rule or policy here. Rather, we are explaining the Board's existing policy regarding third-party contractors.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
By the Board, Chairman Morgan, Vice Chairman Clyburn, and Commissioner Burkes.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW., Washington, DC 20220.
Written comments should be received on or before April 18, 2001 to be assured of consideration.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the Bureau of Alcohol, Tobacco and Firearms within the Department of the Treasury is soliciting comments concerning the Application For An Amended Federal Firearms License.
Written comments should be received on or before May 18, 2001 to be assured of consideration.
Direct all written comments to Bureau of Alcohol, Tobacco and Firearms, Linda Barnes, 650 Massachusetts Avenue, NW., Washington, DC 20226, (202) 927-8930.
Requests for additional information or copies of the form(s) and instructions should be directed to Charles Bartlett, Chief, ATF National Licensing Center, 2600 Century Parkway, Suite 400, Atlanta, Georgia 30345, (404) 679-5007.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) whether the collection of information is necessary for the proper performance of the functions of the
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the Bureau of Alcohol, Tobacco and Firearms within the Department of the Treasury is soliciting comments concerning the Implementation of Public Law 103-322, The Violent Crime Control and Law Enforcement Act of 1994.
Written comments should be received on or before May 18, 2001 to be assured of consideration.
Direct all written comments to Bureau of Alcohol, Tobacco and Firearms, Linda Barnes, 650 Massachusetts Avenue, NW., Washington, DC 20226, (202) 927-8930.
Requests for additional information or copies of the form(s) and instructions should be directed to Richard Van Loan, Chief, Public Safety Branch, 650 Massachusetts Avenue, NW., Washington, DC 20226, (202) 927-7930.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 12 to the Treasury Department Circular 570; 2000 Revision, published June 30, 2000, at 65 FR 40868.
Surety Bond Branch at (202) 874-6905.
A Certificate of Authority as an acceptable surety on Federal bonds is hereby issued to the following Company under 31 U.S.C. 9304 to 9308. Federal bond-approving officers should annotate their reference copies of the Treasury Circular 570, 2000 Revision, on page 40900 to reflect this addition:
Certificates of Authority expire on June 30 each year, unless revoked prior to that date. The Certificates are subject to subsequent annual renewal as long as the companies remain qualified (31 CFR Part 223). A list of qualified companies is published annually as of July 1 in Treasury Department Circular 570, with details as to underwriting limitations, areas in which licensed to transact surety business and other information.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this Notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6A04, Hyattsville, MD 20782.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8332, Release of Claim to Exemption for Child of Divorce or Separated Parents.
Written comments should be received on or before May 18, 2001 to be assured of consideration.
Direct all written comments to Garrick R. Shear, Internal Revenue Service, Room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Larnice Mack, (202) 622-3179, Internal Revenue Service, Room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8612, Return of Excise Tax on Undistributed Income of Real Estate Investment Trusts.
Written comments should be received on or before May 18, 2001 to be assured of consideration.
Direct all written comments to Garrick R. Shear, Internal Revenue Service, Room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Larnice Mack, (202) 622-3179, Internal Revenue Service, Room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1363, Export Exemption Certificate.
Written comments should be received on or before May 18, 2001 to be assured of consideration.
Direct all written comments to Garrick R. Shear, Internal Revenue Service, Room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Larnice Mack, (202) 622-3179, Internal Revenue Service, Room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
In notice document 01-5458, appearing on page 13631, in the issue of Tuesday, March 6, 2001, make the following correction:
On page 13631, in the second column, under the heading
Commodity Credit Corporation, USDA.
Final rule.
This rule implements provisions of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (the 2001 Act) related to the Dairy Price Support, Dairy Recourse Loan, Livestock Assistance (LAP), American Indian Livestock Feed (AILFP), and Pasture Recovery (PRP) Programs. Dairy price support is extended through calendar year 2001 and dairy recourse loans are postponed until January, 2002. The LAP and PRP are being extended to cover disaster-related losses that occurred in calendar year 2000 and the AILFP was given additional funding. Other provisions of the 2001 Act will be implemented under separate rules.
Effective March 14, 2001.
For dairy: Dan Colacicco, Director, Dairy and Sweeteners Analysis Division, Farm Service Agency (FSA), U.S. Department of Agriculture, STOP 0508, 1400 Independence Ave., SW., Washington, DC 20250-0540, telephone 202-720-6733, e-mail:
Section 840 of the 2001 Act (Public Law 106-387) requires that the regulations necessary to implement the provisions regarding LAP, AILFP, and PRP be issued as soon as practicable and without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture (the Secretary) effective July 24, 1971 (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. These provisions are thus issued as final and are effective immediately.
Similarly, section 742 of the 2001 Act, relating to the dairy provisions, amends section 141 of the Agricultural Market Transition Act (AMTA) (7 U.S.C. 7251). The amendment made by the 2001 Act merely extends the current program for one year and delays the effectiveness of the loan provisions until 2002. These statutory amendments supercede existing regulations, such that the changes to the regulations have effectively been made by the 2001 Act, and this rule merely carries out and announces those amendments. Additionally, the 2001 Act amended provisions of AMTA for which 7 U.S.C. 7281 provides an identical exemption from public notice and comment, allowing CCC to issue the dairy provisions as a final rule, effective immediately.
This final rule is issued in conformance with Executive Order 12866 and has been determined to be economically significant and has been reviewed by the Office of Management and Budget. Cost/benefit assessments were completed and are summarized after the background section explaining the actions this rule will take.
The Regulatory Flexibility Act is not applicable to this rule because USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.
It has been determined by an environmental evaluation that this action will have no significant impact on the quality of the human environment. Therefore, neither an environmental assessment nor an Environmental Impact Statement is needed.
This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).
This rule has been reviewed in accordance with Executive Order 12988. The provisions of this rule preempt State laws to the extent such laws are inconsistent with the provisions of this rule. Before any judicial action may be brought concerning the provisions of this rule, the administrative remedies must be exhausted.
The provisions of Title II of the Unfunded Mandates Reform Act of 1995 are not applicable to this rule because USDA is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule. Further, in any case, these provisions do not impose any mandates on state, local or tribal governments, or the private sector.
Section 840 of the 2001 Act requires that the regulations necessary to implement the provisions for LAP, AILFP, and PRP be issued as soon as practicable and without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971 (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. Section 840 also requires that the Secretary use the provisions of 5 U.S.C. 808 (the Small Business Regulatory Enforcement Fairness Act (SBREFA)), to find that good cause exists to implement the rule immediately and that public notice is impracticable, unnecessary, or contrary to the public purpose. CCC finds that because this rule affects the incomes of a large number of agricultural producers who have been hit hard by natural disasters and poor market conditions it would be contrary to the public interest to delay those provisions of this rule, as expressed in the 2001 Act. Therefore, this rule is issued as final, effective immediately.
With respect to the dairy provisions, CCC interprets theses statutory requirements as superceding existing regulations, such that the changes to the regulations have effectively been made by the 2001 Act and this rule merely carries out and announces those amendments. Additionally, the 2001 Act amends provisions of AMTA for which 7 U.S.C. 7281 provides an
There are no information collections associated with the dairy provisions of this rule. In addition, section 840 of the 2001 Act requires that the regulations implementing the provisions regarding LAP, AILFP, and PRP be promulgated without regard to the Paperwork Reduction Act. This means that the normal 60-day public comment period and OMB approval of the information collections required by this rule are not required before the regulations may be made effective. However, the 60-day public comment period and OMB approval under the provisions of 44 U.S.C. chapter 35 are still required for LAP, AILFP, and PRP after the rule is published.
This rule will implement requirements of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001, (the 2001 Act) (Public Law 106-387) related to the Dairy Price Support, Dairy Recourse Loan, Livestock Assistance (LAP) Pasture Recovery (PRP), and American Indian Livestock Feed (AILFP) Programs. The provisions are as follows.
Section 742 of the 2001 Act postpones the termination date of the Milk Price Support Program until December 31, 2001, and continues the $9.90 per hundredweight support rate for milk that was in effect during calender years 1999 and 2000 through the year 2001. Section 742 also postpones the start of the Recourse Loan Program for Commercial Processors of Dairy Products—from January 1, 2001, to January 1, 2002. This rule modifies the provisions of 7 CFR part 1430 accordingly.
Section 806 of the 2001 Act requires that the Secretary of Agriculture use $490 million of the funds of the Commodity Credit Corporation to make and administer payments for livestock losses using the criteria established to carry out the 1999 Livestock Assistance Program (1999 LAP) to producers for losses in a county that has received an emergency designation by the President or the Secretary after January 1, 2000. The funds are available through September 30, 2001. The statute further provides that of the $490 million, up to $40 million may be used for the Pasture Recovery Program (PRP), up to $12 million for the American Indian Livestock Feed Program (AILFP); and as amended by section 101(5) of the Consolidated Appropriations Act, 2001, (Pub. L. 106-554), $5 million to be transferred to the State of Alabama to be used in conjunction with the program administered by the Alabama Department of Agriculture and Industries, $2 million for losses due to Poult Enteritis Mortality Syndrome, and $300,000 to be transferred to the State of Montana for transportation needs associated with emergency haying and feeding, leaving $430.7 million for LAP-2000. This rule does not implement the program provisions of Public Law 106-554. Public Law 106-554 also mandated a Government-wide rescission of 0.22 percent of appropriated funds. Available funding for the livestock programs is thus reduced to $429.752 million for LAP, $39.912 million for PRP, and $11.974 for AILFP.
Livestock producers who suffered livestock feed losses as a result of natural disaster may apply for benefits to compensate for losses that occurred in calendar year 2000. Benefits will be provided to eligible livestock producers only in those counties where a natural disaster occurred and that were subsequently approved by FSA's Deputy Administrator for Farm Programs. A county must have suffered a 40-percent or greater grazing loss for 3 consecutive months during the 2000 calendar year as a result of damage due to a natural disaster in order to be eligible. Livestock producers in counties contiguous to an approved county are not eligible. A livestock producer in an approved county must have suffered at least a 40-percent loss of normal grazing for the producer's eligible livestock for a minimum of 3 consecutive months. Losses will only be compensable up to 80 percent of the total grazing available and the compensable loss may not exceed a county maximum set by the local FSA county committee. Payments will be made according to a formula subject to funding and other limitations, including a $40,000 per person payment limitation and a $2.5 million gross revenue limitation. In the event that the total amount of claims submitted under this subpart exceeds the funding available for LAP-2000, each payment shall be reduced by a uniform national percentage.
Section 806 of the 2001 Act provides that the Secretary may use up to $40 million of CCC funds to carry out a Pasture Recovery Program (PRP), reduced $39.912 million by the 0.22 percent Government-wide rescission. These funds are to be used to compensate livestock producers in reseeding permanent pasture that was severely damaged or destroyed by natural disaster during calendar year 2000. PRP payments will be authorized only in counties that requested and were determined eligible for the Emergency Conservation Program (ECP) for losses during 2000. Requests must be received by a date determined and announced by FSA to be eligible. For the land to be eligible, it must be established pasture land on which livestock is normally grazed but that was so damaged or destroyed by natural disaster that seeding is required to reestablish a cover. Hayland and rangeland will not be eligible, nor will land operated by the Federal or a State Government or a political subdivisions of a State.
Eligible producers must agree to reestablish the forage crop and maintain the crop for three full years after the calendar year of installation. To be an eligible recipient of program benefits, the applicant must be an owner or operator of eligible land damaged or destroyed in 2000 who normally grazes livestock on such land and such applicant must be the person who will restore and maintain the property for three full calendar years after the year of installation.
All conditions must be satisfied if a person is to be eligible for a PRP payment. For example, if an owner leases pasture land to an operator for grazing the operator's livestock, then the operator is eligible for a PRP payment only if the operator reestablishes the forage crop on the leased pasture land and has a lease and the equipment necessary to maintain the forage crop for three full calendar years after the year of installation. If an owner leases pasture land to an operator who normally grazes the operator's livestock but the owner agrees to reestablish the forage crop on the pasture land, then neither the operator nor the owner are eligible for PRP benefits because neither can meet all of the eligibility requirements. The owner is ineligible because the owner does not normally graze livestock on the pasture land, and the operator is ineligible because the operator did not reestablish the forage crop on the pasture land. Other
This program will be subject to the general provisions for emergency livestock assistance programs found in Subpart A of part 1439. Among other provisions, that subpart provides for limitations on total benefits that a person may receive and the gross revenue of eligible persons. The gross revenue limitation will apply to the PRP. However, a different benefit limitation is provided in this rule.
Accordingly, and in order to efficiently maximize the use of program funds for those farmers most in need of relief, the PRP will not be available to a person whose annual gross revenue is in excess of $2.5 million. Further, benefits are limited to $2,500 per “person” determined according to the “person” determination regulations at 7 CFR part 1400.
In order to receive payments, applicants will be required to certify that pasture land to be enrolled in the PRP was so damaged or destroyed by natural disaster during calendar year 2000 that seeding is required to reestablish the forage crop. State Farm Service Agency (FSA) committees will establish per-acre payment rates equal to 65 percent of the eligible area's average cost of reestablishing the approved forage crop on eligible pasture land not to exceed $100 per acre. The FSA Deputy Administrator for Farm Programs may approve higher per-acre payment rates not to exceed $125 per acre. In no case will per-acre payment rates exceed $125 per acre. Seeding and related fertilizing requirements will be required to be carried out according to standards for agronomic practices and applicable environmental laws and regulations. Payments may be issued upon certification by the participant that approved practices to reestablish the forage crop have been completed. Certifications are subject to spot-check by FSA.
Signup periods for this new program will be announced by CCC, but are expected to be conducted no later than the spring 2001 planting season for affected regions. It is expected that all seeding will be required to be completed in calendar year 2001 by a date announced by CCC.
The American Indian Livestock Feed Program (AILFP) makes assistance available to eligible livestock owners when, as a result of natural disaster occurring on tribal-governed land, a significant loss of livestock feed has occurred and a livestock feed emergency exists, as determined by FSA's Deputy Administrator for Farm Programs. Section 806 of the 2001 Act provided that, of the $490 million of CCC funds made available for livestock assistance, up to $12 million could be used for the AILFP, which was later reduced to $11.973 million by the 0.22 percent Government-wide rescission. The regulations for the AILFP finalized on June 8, 2000 (65 FR 86578) included a statement that the program was funded for $12.5 million. This rule will amend the AILFP regulations to conform with the additional funding provided by the 2001 Act, which will be available when the original $12.5 million is exhausted.
Outlays for the programs this rule implements are shown in the table below. Discussion of the individual programs follows.
The total cost to CCC for extending the milk price support program one year is estimated at $470 million. The Dairy Recourse Loan Program is not expected to have a net cost to CCC because the loans will be secured and must be repaid in full. The federal cost to administer the recourse loan program that would replace the milk price support program is similar to the cost of administering the milk price support program so there is no net change in program costs.
Extending the milk price support program will help maintain the all-milk price and dairy farm incomes because CCC's purchase price is providing a floor under the current market price for nonfat dry milk (NDM). The domestic price of NDM would be expected to fall at least 10 cents per pound if the program were not extended. The 10-cent-per-pound drop in the price of NDM would be expected to allow a drop in the all-milk price of about 10-14 cents per cwt., which would reduce dairy income by about $200-300 million.
It is estimated that over 31 million head of cattle, 3 million horses, and 2 million sheep are in the affected states. The potential cost of the LAP-2000 before application of a national factor is estimated to be about $450 million. Because projected claims exceed the $429.752 million expected to be available for the program, each producer's payment will be prorated based on the ratio of the maximum allowed benefits to total claims. Payments will assist producers affected by disasters in meeting their financial obligations for income lost due to poor grazing conditions. It is assumed, in part as a result of the LAP, that producers affected by the disaster will remain in business. The impact of the payments on livestock prices and feed prices is expected to be small. For those producers who actually suffered the losses, the impact on their equity and cash flow positions is significant. In the absence of this program, some producers would have been forced to liquidate their herds, increasing livestock supplies and lowering prices in the short term. The changes would likely be small and temporary. Thus, the impact on consumers would be negligible. Aggregate farm income in 2000 is expected to be about $429.7 million higher.
Natural disasters continue to cause significant loss of livestock feed production on land governed by American Indian Tribes. The states primarily affected during the 2000 crop year were Montana, Arizona, Oklahoma, Colorado, and New Mexico. A large proportion of American Indian livestock producers reside in communities where the USDA has had difficulty coordinating and implementing programs to meet the needs and financial constraints of American Indians.
Up to $11.974 million will be available to American Indian tribes to provide to producers who suffered loss of livestock feed production as a result of a natural disaster occurring on tribal-governed land during 2000 and subsequent years. For assistance to be made available, a loss of feed grain and forage used for livestock production in
Individual producer assistance is determined based on the estimated value of livestock feed needed to maintain the producer's eligible livestock. Assistance is paid at a rate of either 30 percent of the cost of purchased feed needed to maintain the producer's eligible livestock for the approved feeding period, or 30 percent of the eligible livestock owner's calculated Animal Unit Days (AUD) for the approved feeding period, whichever is smaller. This rate is the same rate of loss coverage that FSA has used in previous livestock feed programs. If any feed has been sold by producers these receipts must be reported as feed sold and the total amount deducted from the calculated payment amount.
Program assistance will be provided on a first-come, first-serve basis. Thus, if total claims in 2000 exceed $11.974 million, the first $11.974 million in qualifying claims will receive assistance. Using this procedure eliminates the need to make partial payment and withhold some assistance until all claims are processed to determine a prorating factor for final assistance payments. A downside to first-come, first-serve is that some tribes otherwise eligible for assistance may not be paid if available funds are exhausted. Spending between November 27, 1998 and November 16, 2000, totaled $11.4 million. Current funding is expected to last into 2002 if similar claims are filed as with the past program.
AILFP provides financial assistance to eligible livestock producers who have suffered significant loss of livestock feed production for the 2000 calendar year and subsequent years. These funds will assist eligible livestock producers in meeting financial obligations against purchased feed stocks needed to maintain livestock enterprises on the farm as a result of lost livestock feed production on the farm. Further, the impact of the livestock feed program on livestock feed and livestock prices and consumer prices is not expected to be measurable. Based on program funding of $11.974 million for 2000 and subsequent years, program assistance is less than 1 percent of the national value of all livestock feed production. Assistance, therefore, will not have a measurable impact on national price levels for livestock feed ingredients or livestock. Aggregate American Indian farm income losses will be somewhat offset or reduced by AILFP payments. Federal outlays could increase by up to $11.974 million for the 2001 program year, but funds are expected to cover two years of loss claims.
Funds to reestablish pasture damaged by drought will be allocated from funds provided for livestock loss assistance under the 2001 Act. PRP payments will be authorized only in counties determined eligible for the for the ECP. Applications for payment will probably exceed the funding level of $39.912 million based on the expected number of eligible producers and re-seeding costs. To be eligible, land must be established pasture land on which livestock are normally grazed and that was so damaged by drought or other natural disaster that seeding is required to reestablish a cover crop. Neither hay land nor rangeland is eligible.
Payment rates per acre will equal 65 percent of the eligible area's average cost of reestablishing the approved forage crop. FSA State committees will establish the average cost of reestablishing the approved forage crop.
The cost to reestablish pastures is assumed to be between $100 and $250 per acre, depending on the tillage and fertilization rates required. Most are expected to fall between $100 and $150 per acre, which will allow producers a payment rate of $65-97.50 per acre. At an average payment rate of $81.25 per acre and subject to the $2,500 limitation producers could reestablish pasture on about 30 acres. Farm income is expected to increase by $39.912 million, equal to government outlays.
For further information on the cost/benefit assessments, contact Dan Colacicco, 202-720-6733.
Dairy products, Price support programs, Reporting and recordkeeping requirements.
Animal feeds, Disaster assistance, Grant programs—agriculture, Livestock, Pasture, Reporting and recordkeeping requirements.
7 U.S.C. 7251 and 7252; and 15 U.S.C. 714b and 714c.
(a)(1) The levels of price support provided to farmers marketing milk containing 3.67 percent milkfat from dairy cows are: $10.35 per hundredweight for calendar year 1996, $10.20 per hundredweight for calendar year 1997, $10.05 per hundredweight for calendar year 1998, and $9.90 per hundredweight for calendar years 1999 through 2001.
(a) The regulations in this subpart are applicable to eligible dairy products produced after December 31, 2001. The regulations in this subpart set forth the terms and conditions under which CCC will make recourse loans to eligible processors. Additional terms and conditions shall be those set forth in the loan application and the note and security agreement which a processor must execute in order to receive such a loan.
(a) The Secretary will announce before January 1, 2002, and thereafter, before October 1 of each year, that a recourse loan program is available under this subpart, and loan rates for Cheddar cheese, butter, and nonfat dry milk based on a milk equivalent value of $9.90 per hundredweight of milk containing 3.67 percent butterfat.
(a) * * *
(2) A request for an initial loan must be filed no later than September 30 of
7 U.S.C. 1427a; 15 U.S.C. 714
Stat. 2681-42-44; Pub. L. 106-31, 113 Stat. 57; Pub. L. 106-78, 113 Stat. 1135; Pub. L. 106-113, 113 Stat. 1501; Sec. 257 Pub. L. 106-224, 114 Stat. 358; Secs. 802, 806, & 813 Pub. L. 106-387, 114 Stat. 1549.
(a) This subpart sets forth the terms and conditions applicable to the 2000 Livestock Assistance Program (LAP-2000) authorized by Public Law 106-387, 114 Stat. 1549. Program regulations for prior livestock assistance programs can be found at 7 CFR 1439 as it was published on January 1, 2001. Benefits will be provided to eligible livestock producers in the United States for LAP-2000 but only in counties where a natural disaster declaration was issued after January 1, 2000 by the President of the United States or the Secretary of Agriculture of the United States and that were subsequently approved for relief under this part by the Deputy Administrator for Farm Programs.
(b) During the 2000 calendar year for LAP-2000, a producer must be in a county where a natural disaster declaration was approved after January 1, 2000, and also approved and determined by the Deputy Administrator for Farm Programs (or a designee) as having suffered losses during calendar year 2000. Contiguous counties that were not designated as a disaster area in their own right will not be eligible for participation in the LAP-2000 under this part. Grazing losses must have occurred on native and improved pasture with permanent vegetative cover and other crops planted specifically for the sole purpose of providing grazing for livestock, but such losses do not include losses on, or with respect to, seeded small grain forage crops.
(c) To be eligible for assistance under this subpart, a livestock producer's pastures must have suffered at least a 40-percent loss of normal carrying capacity for a minimum of 3 consecutive months during the relevant calendar year. The percent of loss eligible for compensation shall not exceed the maximum percentage of grazing loss for the county as determined by the county committee. In addition, the producer will not be compensated for that part of any loss that would represent payment of a loss greater than 80 percent.
(d) Except as approved by the Deputy Administrator for Farm Programs (or designee), a livestock producer is not eligible to receive payments for the same loss under this subpart if that loss has been recovered under another Federal program of some other source.
The definitions set forth in this section shall be applicable for all purposes of administering this subpart. The definitions in § 1439.3 shall also be applicable, except where those definitions conflict with the definitions set forth in this subpart, in which case the definitions in this section will apply. The definitions follow:
(a) Livestock producers must submit a completed application prior to the close of business on March 23, 2000, or such other date as established and announced by the Deputy Administrator. The application and any other supporting documentation shall be submitted to the county FSA office with administrative authority over a producer's eligible grazing land or to the county FSA office that maintains the farm records for the livestock producer.
(b) Livestock producers shall certify as to the accuracy of all the information contained in the application, and provide any other information to CCC that the county FSA office or committee deems necessary to determine the livestock producer's eligibility.
(a) County committees shall determine whether due to natural disasters their county has suffered a 40-percent loss affecting pasture and normal grazing crops for at least 3 consecutive months during calendar year 2000 for LAP-2000. In making this determination, county committees, using the best information available from sources including but not limited to: the Extension Service, the Natural Resources Conservation Service; the Palmer Drought Index; and general knowledge of local rainfall data, pasture losses, grazing livestock movement out of county, abnormal supplemental feeding practices for livestock on pasture and liquidation of grazing livestock, shall determine the percentage of grazing losses for pastures on a county-wide basis. The county committee shall submit rainfall data, percentage of grazing losses for each general type of pasture, and the weighted average percentage of grazing loss for the county, with State committee concurrence, to the Deputy Administrator on form CCC-654. The maximum grazing losses the county committees shall submit on form CCC-654 is 80 percent. These determinations shall be subject to review and approval of the Deputy Administrator. For purposes of this subpart, such counties are called “eligible counties.”
(b) In each county, the county committee shall determine a LAP crop year. The LAP crop year shall be that period of time in a calendar year that begins with the date grazing of new growth pasture normally begins and ends on the date grazing without supplemental feeding normally ends in the county.
(c) In and for each eligible county, the county committee shall determine normal carrying capacities for each type of grazing or pasture during the LAP crop year. The normal carrying capacity for the LAP crop year shall be the normal carrying capacity the county committee determines could be expected from pasture and normal grazing crops for livestock for the LAP crop year if a natural disaster had not diminished the production of these grazing crops.
(d) In each eligible county, the county committee shall determine the payment period for the county. The payment period for the county shall be the period of time during the county's LAP crop year where for 3 consecutive months
(a) Grazing land for which a livestock producer requests benefits must be within the physical boundary of the county for which a Presidential disaster declaration or Secretarial disaster declaration was granted for disasters occurring during calendar year 2000. Livestock producers in unapproved counties contiguous to an eligible county will not receive benefits under this subpart.
(b) To be eligible for benefits under this subpart, a livestock producer in an eligible county must have suffered a loss of grazing production equivalent to at least a 40-percent loss of normal carrying capacity for a minimum of 3 consecutive months.
(c) A producer shall certify each type of pasture and percentage of loss suffered by each type on the application. In establishing the percentage of grazing loss, producers shall consider the amount of available grazing production during the LAP crop year, whether more than the normal acreage of grazing land was required to support livestock during the LAP crop year, and whether supplemental feeding of livestock began earlier or later than normal.
(d) The county committee shall determine the producer's grazing loss and shall consider the amount of available grazing production during the LAP crop year, whether more than the normal acreage of grazing land was required to support livestock during the LAP crop year, and whether supplemental feeding of livestock began earlier or later than normal. The county committee shall request the producer to provide proof of loss of grazing production if the county committee determines the producer's certified loss exceeds other similarly situated livestock producers.
(e) The percentage of loss claimed by a livestock producer shall not exceed the maximum allowable percentage of grazing loss for the county as determined by the county committee in accordance with § 1439.104(a). Livestock producers will not receive benefits under this subpart for any portion of their loss that exceeds 80 percent of normal carrying capacity.
(f) Conservation Reserve Program acres released for haying and/or grazing and seeded small grain forage crops shall not be used to calculate losses under this subpart.
(a) Only one livestock producer will be eligible for benefits under this subpart with respect to an individual animal.
(b) Only owners of livestock who themselves provide the pasture or grazing land, including cash leased pasture or grazing land, for the livestock may be considered as livestock producers eligible to apply for benefits under this subpart.
(c) An owner of livestock who uses another person to provide pasture or grazing land on a rate-of-gain basis is not considered to be the livestock producer eligible to apply for benefits under this subpart.
(d) An owner who pledges livestock as security for a loan shall be considered as the person eligible to apply for benefits under this subpart if all other requirements of this part are met. Livestock leased under a contractual agreement that has been in effect at least 3 months and establishes an interest for the lessee in such livestock shall be considered as being owned by the lessee.
(e) Livestock must have been owned for at least 3 months before becoming eligible for payment.
(f) The following entities are not eligible for benefits under this subpart:
(1) State or local governments or subdivisions thereof; or
(2) Any individual or entity who is a foreign person as determined in accordance with the provisions of §§ 1400.501 and 1400.502 of this chapter.
(a) The value of LAP assistance determined with respect to a livestock producer for each type and weight class of livestock owned or leased by such producer shall be the lesser of the amount calculated under paragraph (b) of this section (the total value of lost feed needs for eligible livestock) or calculated under paragraph (c) of this section (the total value of lost eligible pasture).
(b) The total value of lost feed needs shall be the amount obtained by multiplying:
(1) The number of days in the payment period the livestock are owned or, in the case of purchased livestock, meet the 3-month ownership requirement; by
(2) The number of pounds of corn-equivalent per day, as established by CCC, that is determined necessary to provide the energy requirements established for the weight class and type of livestock; by
(3) The 5-year national average market price for corn ($2.36 bushel or $0.0421428 per pound); by
(4) The number of eligible animals of each type and weight range of livestock owned or leased by the person; by
(5) The percent of the producer's grazing loss during the relevant period as certified by the producer and approved by the county committee in accordance with § 1439.105.
(c) The total value of lost eligible pasture shall be the amounts for each type of pasture calculated by:
(1) Dividing the number of acres of each pasture type by the carrying capacity established for the pasture; and multiplying the result by
(2) The 5-year national average market price for corn ($2.36 bushel or $0.0421428 per pound); by
(3) The daily feed grain equivalent per animal (15.7 pounds of corn necessary for a beef cow, factored for the weight class and type of livestock, as determined by CCC); by
(4) The applicable number of days in the LAP payment period; by
(5) The percent of the producer's grazing loss during the relevant period as certified by the producer and approved by the county committee in accordance with § 1439.105.
(d) The final payment shall be the smaller of paragraph (b) of this section or paragraph (c) of this section multiplied by the national factor if required under § 1439.108. The final payment shall not exceed 50 percent of the smaller of paragraph (b) or (c) of this section determined prior to applying the national factor provided for in § 1439.108.
(e) Seeded small grain forage crops shall not be counted as grazing land under paragraph (c) of this section with respect to supporting eligible livestock.
(f) The number of equine animals that are used to calculate benefits under this subpart and in paragraph (a) of this section are limited to the number actually needed to produce food and fiber on the producer's farm or to breed horses and mules to be used to produce food and fiber on the owner's farm, and shall not include animals that are used for recreational purposes or are running wild or uncontrolled on land owned or leased by the owner.
In the event that the total amount of claims submitted under this subpart exceed $429,752,460, each payment shall be reduced by a uniform national percentage. Such payment reductions shall be made after the imposition of applicable payment limitation provisions.
(a) The provisions of §§ 1439.10 and 1439.11 apply to LAP-2000.
(b) Benefits under this part are not subject to administrative offset. See section 842 of the 2001 Act (Public Law 106-387, 114 Stat. 1549).
(a) The regulations in this part will be administered under the general supervision and direction of the Executive Vice President, Commodity Credit Corporation (CCC), and the Deputy Administrator, for Farm Programs, Farm Service Agency (FSA). In the field, the regulations in this part will be administered by the FSA State and county committees (“State committees” and “county committees”, respectively).
(b) State executive directors, county executive directors, and State and county committees do not have the authority to modify or waive any of the provisions in this part unless specifically authorized by the Deputy Administrator.
(c) The State committee may take any action authorized or required by this part to be taken by the county committee that has not been taken by such committee, such as:
(1) Correct or require a county committee to correct any action taken by such county committee that is not in accordance with this part; or
(2) Require a county committee to withhold taking any action that is not in accordance with this part.
(d) No delegation herein to a State or county committee shall preclude the Executive Vice President, CCC, or a designee, or the Deputy Administrator from determining any question arising under this part or from reversing or modifying any determination made by a State or county committee.
(e) Data furnished by the applicants will be used to determine eligibility for program benefits. Although participation in the Pasture Recovery Program (PRP) is voluntary, program benefits will not be provided unless the participant furnishes the appropriate data.
The following definitions shall be applicable to this subpart:
Under the PRP, the CCC will enter into contracts with eligible producers to provide payments to assist producers to reestablish the damaged or destroyed pasture land to an approved forage crop upon a promise and obligation to maintain the new crop for 3 full years after the calendar year of installation.
In order to be eligible to enter into a PRP contract in accordance with this part, a person must be an owner or operator of eligible pasture land that was damaged or destroyed by natural disaster during calendar year 2000 and:
(a) Must normally graze livestock on such pasture land; and
(b) If an operator of eligible land that the operator does not own, must provide satisfactory evidence that such operator will be in control of such eligible pasture land for the full term of the PRP contract period.
(a) Except as otherwise provided in this section, land in the PRP must be pastureland that:
(1) As determined by CCC, is located within a county that was approved for assistance under the Emergency Conservation Program provided for in 7 CFR part 701 because of a 2000 natural disaster, or was later approved for such participation based upon an application filed by such date as is determined and announced by the Deputy Administrator and based upon natural disaster damage suffered in 2000.
(2) Has been established pasture land on which livestock is normally grazed or on which the forage crop was so damaged or destroyed by natural disaster in calendar year 2000 that the forage crop will not return in the 2001 grazing year, and seeding is required to reestablish the forage crop, as determined by CCC.
(b) Notwithstanding paragraph (a) of this section, land, as determined by CCC, shall be ineligible for enrollment if the pasture land is:
(1) Federal-operated land;
(2) State-operated land;
(3) Hayland; or
(4) Rangeland, as determined by the CCC.
Contracts under this subpart and their forage crop maintenance requirements shall be for three years. The installation of the practice must be completed no later than the date specified in the PRP contract.
A person, as determined in accordance with part 1400 of this chapter, who has annual gross revenue in excess of $2.5 million shall not be eligible to receive assistance under this part. For the purpose of this determination, annual gross revenue means:
(a) With respect to a person who receives more than 50 percent of such person's gross income from farming and ranching, the total gross revenue received from such operations; and
(b) With respect to a person who receives 50 percent or less of such person's gross income from farming and ranching, the total gross revenue from all sources.
All participants subject to a PRP contract must agree to:
(a) Carry out the terms and conditions of the PRP contract including carrying out all approved practices and meeting the schedule of dates for seeding and for maintenance measures provided for in the contract to establish and maintain the approved forage crop;
(b) Comply with all requirements of part 12 of this title;
(c) Comply with noxious weed laws of the applicable State or local jurisdiction on such land;
(d) Control, subject to the contract, all weeds, insects, pests and other undesirable species to the extent necessary to ensure that the establishment and maintenance of the approved forage crop is adequately protected, as determined by CCC;
(e) Not harvest the re-seeded cover crop at any time during the contract period; and
(f) Be jointly and severally responsible with other persons qualifying for payments under this program on the same land for compliance with such contract and the provisions of this part and for any refunds, payment adjustments, or liquidated damages that may be required for violations of any of the terms and conditions of the PRP contract.
CCC shall:
(a) Upon establishment of the required forage crop, and provided all other eligibility criteria have been met, make PRP payments to participants in accordance with the provisions of this part; and
(b) Provide such technical assistance as it determines necessary to assist the participant in carrying out the PRP contract.
Eligible practices are those practices specified in the contract that meet all quantity and quality standards needed to cost-effectively reestablish the approved forage crop, as determined by CCC, on acreage subject to the contract, including reseeding.
Only applications for contracts submitted by a participant at the FSA office responsible for administering CCC programs in the county where the participant's farm is located during designated signup periods, as announced by CCC, will be approved.
(a) As determined by CCC, PRP contracts may be terminated before the expiration date when:
(1) The owner loses control of, or transfers, all or part of the acreage under contract and the new owner does not wish to continue the contract;
(2) The participant voluntarily requests in writing to terminate the contract and obtains the approval of CCC subject to such conditions on approval as may be determined by CCC;
(3) The participant is not in compliance with the terms and conditions of the contract;
(4) The same acreage is later enrolled in another State, Federal, or local conservation program;
(5) The PRP practice fails and CCC determines the cost of restoring the cover outweighs the benefits received from the restoration; or
(6) The PRP contract was approved based on erroneous eligibility determinations.
(b) When a PRP contract is terminated, the participant must, except as agreed to by CCC, refund all or part of the payments made with respect to such contract plus interest thereon, as determined by CCC, and shall pay liquidated damages as provided for in such contract.
By mutual agreement between CCC and the participant, a PRP contract may be modified in order to:
(a) Decrease acreage in the PRP;
(b) Facilitate the practical administration of the PRP; or
(c) Accomplish the goals and objectives of the PRP, as determined by CCC.
(a) Payments shall be made available upon a determination by CCC that an eligible practice, or an identifiable unit thereof, has been established in compliance with the appropriate standards and specifications. Payments will be prorated if requests for assistance exceed available funding.
(b) Except as otherwise provided for in this part, payments may be made
(c) Payments shall be made in such amount and in accordance with a schedule specified in the PRP contract.
(d) Payment shall be made on a per-acre basis.
(e) The payment shall be divided among the participants on a single contract in the manner agreed upon in such contract.
(f) The maximum amount of all payments that a person may receive under the PRP shall not exceed $2,500. The regulations set forth at part 1400 of this chapter shall be applicable in making certain eligibility and “person” determinations as they apply to payment limitations under this part.
(g) Payments shall be limited as needed or appropriate to account for mandatory or discretionary limits on payments.
(a) CCC shall pay not more than 65 percent of the average cost of reestablishing the approved forage crop, including reseeding, on eligible land.
(b) The average cost of performing a practice may be determined by CCC based on recommendations from the State Technical Committee or on such other basis as it deemed appropriate.
(c) Notwithstanding paragraph (a) or (b) of this section, no payment shall exceed $100 per acre without approval of the Deputy Administrator. In no case shall a payment exceed $125 per acre.
Payments shall be made to the participants responsible for the establishment of the practice.
(a) If a participant fails to carry out the terms and conditions of a PRP contract, CCC may terminate the PRP contract.
(b) If the PRP contract is terminated by CCC:
(1) The participant shall forfeit all rights to payments under such contract and refund all payments previously received together with interest; and
(2) Pay liquidated damages to CCC in such amount as specified in the contract.
(c) If the Deputy Administrator determines such failure does not warrant termination of such contract, the Deputy Administrator may authorize relief as the Deputy Administrator deems appropriate.
If, after a PRP contract is approved by CCC, CCC discovers that the PRP contract is not in conformity with the provisions of this part, the provisions of the regulations in this part shall prevail and the contract may be terminated.
The provisions of § 718.8 of this title relating to performance based upon the action or advice of a representative of the Secretary of Agriculture shall be applicable to this part.
(a) The applicant or participant shall, as requested, provide all representatives or designees of CCC with access to all land that is:
(1) The subject of an application for a contract under this part; or
(2) Under contract or otherwise subject to this part.
(b) With respect to such land identified in paragraph (a) of this section, the participant or applicant shall provide such representatives with access to examine records with respect to such land for the purpose of determining compliance with the terms and conditions of the PRP.
Any person who is dissatisfied with a determination made with respect to this part may make a request for reconsideration or appeal of such determination in accordance with the appeal regulations set forth at parts 780 and 11 of this title.
(a) In the event there is a failure to comply with any term, requirement, or condition for payment or assistance arising under this part, and if any refund of a payment to CCC shall otherwise become due in connection with this part, all payments made in regard to such matter shall be refunded to CCC, together with interest as determined in accordance with paragraph (b) of this section and late-payment charges as provided for in part 1403 of this chapter.
(b) All persons with a financial interest in the operation or in an application for payment shall be jointly and severally liable for any refund, including related charges, that is determined to be due CCC for any reason under this part.
(c) Interest shall be applicable to refunds required of the livestock owner or other party receiving assistance or a payment if CCC determines that payments or other assistance were provided to the owner and the owner was not eligible for such assistance. Such interest shall be charged at the rate of interest that the United States Treasury charges CCC for funds, as of the date CCC made such benefits. Such interest that is determined to be due CCC shall accrue from the date such benefits were made available by CCC to the date of repayment or the date interest increases in accordance with part 1403 of this chapter. CCC may waive the accrual of interest if CCC determines that the cause of the erroneous determination was not due to any action of the livestock owner or other individual or entity receiving benefits.
(d) Interest otherwise determined due in accordance with paragraph (c) of this section may be waived with respect to refunds required of the owner or other program recipient because of unintentional misaction on the part of the owner or other individual or entity, as determined by CCC.
(e) Late payment interest shall be assessed on all refunds in accordance with the provisions of, and subject to the rates prescribed in part 1403 of this chapter.
(f) Individuals or entities who are a party to any program operated under this part must refund to CCC any excess payments made by CCC with respect to such program.
(g) In the event that any request for assistance or payment under this part was established as a result of erroneous information or a miscalculation, the assistance or payment shall be recomputed and any excess refunded with applicable interest.
(a) Any remedies permitted CCC under this part shall be in addition to any other remedy, including, but not limited to criminal remedies, or actions for damages in favor of CCC, or the United States, as may be permitted by law.
(b) Absent a scheme or device to defeat the purpose of the program, when an owner loses control of PRP acreage due to foreclosure, CCC may waive the demand that could otherwise be made for refunds.
(c) Payments under this subpart are subject to provisions contained in Subpart A of this part including, but not limited to provisions concerning misrepresentations, payment limitations, limitations on eligibility tied to the person's gross income, and refunds to CCC, liens, assignment of payments, and appeals, and
(d) Any payments not earned that have been paid must be returned with interest subject to such other remedies as may be allowed by law.
(e) No interest will be paid or accrue on benefits under this subpart that are delayed or otherwise not timely issued unless otherwise mandated by law.
(f) Nothing in this subpart shall require a commitment of funds to this subpart in excess of that determined to be appropriate by the Deputy Administrator and/or CCC.
(g) Any payment otherwise due under this subpart will be reduced to the extent that it is determined that such payment produces a duplicate benefit under another program operated by the Department of Agriculture and that to make such duplicate payment would be contrary to the purposes of the program.
(h) In no instance may the amount expended under this subpart exceed $39.912 million.
(i) Payments under this subpart shall be made without regard to questions of title under State law and without regard to any claim or lien against the crop, or proceeds thereof, in favor of the owner or any other creditor except agencies of the U.S. Government. The regulations governing offsets and withholdings found at part 1403 of this chapter shall be applicable to PRP contract payments.
(j) Any producer entitled to any payment may assign any payments in accordance with regulations governing assignment of payment found at part 1404 of this chapter.
(k) In those instances in which, prior to the March 14, 2001 effective date of this subpart, a producer has signed a power of attorney on an approved FSA-211 for a person or entity indicating that such power shall extend to “all above programs”, without limitation, such power will be considered to extend to this program unless by April 2, 2001 the person granting the power notifies the local FSA office for the control county that the grantee of the power is not authorized to handle transactions for this program for the grantor.
(l) Livestock producers or any other individual or entity seeking or receiving assistance under this part shall maintain and retain records that will permit verification of PRP practice completion for at least 3 years following the end of the calendar year in which payment was made, or for such additional period as CCC may request. An examination of such records by a duly authorized representative of the United States Government shall be permitted at any time during business hours.
(m) A person shall be ineligible to receive assistance under PRP and be subject to such other remedies as may be allowed by law, if, with respect to the PRP, it is determined by the State committee or the county committee or an official of FSA that such person has:
(1) Adopted any scheme or other device that tends to defeat the purpose of a program operated under this part;
(2) Made any fraudulent representation with respect to such program; or
(3) Misrepresented any fact affecting a program determination.
This subpart sets forth the terms and conditions of a government-to-government program titled the American Indian Livestock Feed Program (AILFP). Assistance will be available in those regions that CCC determines have been affected by natural disaster, and where a determination is made by the Deputy Administrator for Farm Programs that a livestock feed emergency exists on tribal land. Funds made available to CCC shall be available for any outstanding crop year 2000 payment applications and in subsequent crop years contract requests until funding is exhausted. Payments may become available as contracts with tribal governments are approved. If any other benefits are received from the Department of Agriculture for the same loss, then payments under this part will be reduced accordingly. Payments will terminate when funds have been exhausted, without respect to the date of any application, or of when any contract has been entered into by any tribal government and CCC. Applicants will receive benefits on a first-come, first-served basis.
(a) * * * All contracts requesting region approval must be submitted by the date 30 days after the end of the disaster period specified on the contract.
Commodity Futures Trading Commission.
Proposed rules.
The Commodity Futures Trading Commission requests comment on proposed privacy rules published under section 5g of the Commodity Exchange Act which directs the Commission to prescribe regulations under Title V of the Gramm-Leach-Bliley Act. Title V requires certain federal agencies to adopt rules implementing notice requirements and restrictions on the ability of certain financial institutions to disclose nonpublic personal information about consumers to nonaffiliated third parties. Under section 503, a financial institution must provide its customers with a notice of its privacy policies and practices, and must not disclose nonpublic personal information about a consumer to nonaffiliated third parties unless the institution provides certain information to the consumer and the consumer has not elected to opt out of the disclosure. Section 505 further requires certain federal agencies to establish for financial institutions appropriate standards to protect customer information. The proposed rules implement these requirements of the Gramm-Leach-Bliley Act with respect to futures commission merchants, commodity trading advisors, commodity pool operators and introducing brokers that are subject to the jurisdiction of the Commission under the Commodity Exchange Act as amended.
Comments must be received by April 18, 2001.
Comments should be sent to the Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581, attention: Office of the Secretariat. Comments may be sent by facsimile transmission to (202) 418-5521, or by e-mail to secretary@cftc.gov. Reference should be made to “Privacy Rules.”
Susan W. Nathan, Assistant General Counsel, or Bella Rozenberg, Attorney, Office of General Counsel; Nancy E. Yanofsky, Assistant Chief Counsel, Division of Economic Analysis; or Ky Tran-Trong, Attorney, Division of Trading and Markets, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5000, E-mail: (SNathan@cftc.gov), (BRozenberg@cftc.gov), (NYanofsky@cftc.gov), or (KTran-Trong@cftc.gov).
The Commodity Futures Trading Commission today is proposing for public comment a new part 160, 17 CFR part 160, under Subtitle A of Title V of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338 (1999), to be codified at 15 U.S.C. 6801-6809) and the Commodity Exchange Act as amended by the Commodity Futures Modernization Act of 2000 (7 U.S.C. 1
On November 12, 1999, President Clinton signed the Gramm-Leach-Bliley Act (GLB Act)
On December 21, 2000, as part of the Commodity Futures Modernization Act of 2000 (CFMA), Congress amended the Commodity Exchange Act (CEA or Act) to provide that certain entities subject to the Commission's jurisdiction—specifically, futures commission merchants (FCMs), commodity trading advisors (CTAs), commodity pool operators (CPOs) and introducing brokers (IBs)—shall be treated as financial institutions for purposes of Title V. At the same time, Congress also amended the CEA to provide that the Commission shall be treated as a Federal functional regulator within the meaning of Title V and to require the Commission to prescribe regulations under Title V within six months.
The Commission has consulted with representatives from the Agencies in drafting these proposed rules to implement Title V. The rules that we are proposing today are, to the extent possible, consistent with and comparable to the rules adopted by the Agencies. Proposed part 160 contains rules of general applicability that are substantially similar to the rules adopted by the Agencies. The proposed rules also contain examples that illustrate the application of the general rules and an appendix of sample clauses that may, to the extent applicable, be used by FCMs, CTAs, CPOs and IBs to comply with the notice and opt-out requirements. These proposed examples and sample clauses differ from those used by the Agencies in order to provide more meaningful guidance to the financial institutions subject to the Commission's jurisdiction. Furthermore, in order to minimize the compliance burden for FCMs that are also registered with the SEC as broker-dealers (“dual registrants”), the Commission is proposing to permit dual registrants to
Title V also requires the Agencies to establish appropriate standards for financial institutions subject to their jurisdiction to safeguard customer information and records. The rules that we are proposing today include requirements for FCMs, CTAs, CPOs and IBs to adopt appropriate policies and procedures that address safeguards to protect this information.
We request comment on all aspects of the proposed rules as well as comment on the specific provisions and issues highlighted in the section-by-section analysis below. We specifically request comment on the proposed examples and sample clauses and any additional examples or sample clauses that would be helpful.
Proposed paragraph (a) of section 160.1 identifies three purposes of the rules. First, the rules require a financial institution to provide notice to consumers about the institution's privacy policies and practices. Second, the rules describe the conditions under which a financial institution may disclose nonpublic personal information about a consumer to a nonaffiliated third party. Third, the rules provide a method for a consumer to “opt out” of the disclosure of that information to nonaffiliated third parties, subject to certain exceptions discussed below.
Proposed paragraph (b) sets out the scope of the Commission's rules and identifies the financial institutions covered by the rules. This paragraph notes that the rules apply only to information about individuals who obtain a financial product or service primarily for personal, family, or household purposes. The financial institutions covered by the rules are FCMs, CTAs, CPOs and IBs. Consistent with section 5g of the Act, the rules as proposed apply to these categories of financial institutions whether or not they are required to register with the Commission.
Proposed paragraph (b) also provides that part 160 does not apply to any foreign (or “non-resident”) FCM, CTA, CPO or IB that is not registered with the Commission. The Commission believes that it would be impracticable to apply part 160 to those foreign unregistered entities. If a foreign financial institution conducts activities through U.S. interstate commerce in a manner that subjects it to the registration requirements of the CEA, it is subject to the part 160 requirements and any other applicable protections to customers, such as anti-fraud protections. We do not believe that subjecting unregistered foreign entities to the obligation to provide the privacy and opt out notices under part 160 would add to the protections provided to customers under the GLB Act. The Commission, however, is seeking comment on the application of this approach to firms that are subject to a rule 30.10 order. Such firms deal directly with U.S. customers and, but for relief provided in accordance with rule 30.10, would be required to register with the Commission.
We note that other federal, State, or applicable foreign laws may impose limitations on disclosures of nonpublic personal information in addition to those imposed by the GLB Act and these proposed rules. Thus, financial institutions will need to monitor and comply with relevant legislative and regulatory developments that affect the disclosure of consumer information. Proposed paragraph (b) also makes clear that nothing in the rules is intended to supersede rules relating to medical information that have been issued by the Secretary of Health and Human Services under the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d—1320d-8.
Paragraph (a) of proposed § 160.2 sets out a rule of construction intended to clarify the effect of the examples used in the rules and the sample clauses in the appendix to the rules. Given the wide variety of transactions that Title V covers, the proposal would include rules of general applicability and provide examples that are intended to assist financial institutions in complying with the rule. The examples are not intended to be exhaustive; rather, they are intended to provide guidance on how the rules would apply in specific situations. The proposed rule also states that compliance with the examples will constitute compliance with the rule.
Paragraph (b) of proposed § 160.2 provides that an FCM that is also registered with the SEC as a broker-dealer may comply with part 160 by complying with the privacy rules of the SEC, which are found at 17 CFR part 248. The Commission invites comment on whether it should provide for a broader form of substituted compliance, by permitting an FCM that is affiliated with a financial holding company, a bank holding company, a national bank or a broker-dealer to comply with part 160 by complying with the privacy rules of the functional regulator for the affiliated entity.
(a)
(b)
There is a range of approaches an FCM, CTA, CPO or IB could use based on current technology. For example, an FCM could use a dialog box that pops up to provide the disclosure before a consumer provides information to a financial institution. Another approach would be a simple, clearly labeled graphic located near the top of the page or in close proximity to the financial institution's logo, directing the customer, through a hypertext link or hotlink, to the privacy disclosures on a separate web page.
(c)
(d)
(e)
(f)
(g)
(h)
A person is a “consumer” under the proposed rules if he or she obtains a financial product or service from a financial institution that is to be used primarily for personal, family or household purposes. The definition of “financial product or service” in proposed § 160.3(m) includes, among other things, a financial institution's evaluation of an individual's application to obtain a financial product or service. Thus, a financial institution that intends to share nonpublic personal information about a consumer with nonaffiliated third parties outside of the exceptions described in §§ 160.14 and 160.15 will have to give the requisite notices, even if the application or request is denied or withdrawn.
The examples that follow the definition of “consumer” explain when someone is a consumer. The examples clarify that a consumer includes someone who provides nonpublic personal information in connection with seeking to obtain commodity interest brokerage or trading or advisory services, but does not include someone who provides only name, address, and areas of investment interest in order to obtain a brochure or other information about a financial product or service.
(i)
(j)
(k)
The distinction between consumers and customers determines the notices that a financial institution must provide. If a consumer never becomes a customer, the institution is not required to provide any notices to the consumer unless the institution intends to disclose nonpublic personal information about that consumer to nonaffiliated third parties (outside of the exceptions as set out in §§ 160.14 and 160.15). By contrast, if a consumer becomes a customer, the institution must provide a copy of its privacy policy before it establishes the customer relationship and at least annually during the continuation of the customer relationship.
(l)
A one-time transaction may be sufficient to establish a customer relationship, depending on the nature of the transaction. The examples that follow the definition of “customer relationship” clarify that an individual's purchase or sale of a futures or options contract through an FCM with whom the customer opens an account would be sufficient to establish a customer relationship because of the continuing nature of the service. By contrast, an individual who is merely referred by an IB to an FCM would not be the IB's customer if the IB does not regularly enter orders for the individual.
(m)
(n)
The GLB Act excludes “any person or entity” that is subject to the Commission's jurisdiction from Title V's coverage.
Notwithstanding subparagraph (A), the term “financial institution” does not include any person or entity with respect to any financial activity that is subject to the jurisdiction of the Commodity Futures Trading Commission under the Commodity Exchange Act.
Notwithstanding section 509(3)(B) of the Gramm-Leach-Bliley Act, any futures commission merchant, commodity trading advisor, commodity pool operator, or introducing broker that is subject to the jurisdiction of the Commission under this Act with respect to any financial activity shall be treated as a financial institution for purposes of title V of such Act with respect to such financial activity.
(o)
The Commission's proposed definition of “financial product or service” differs from that of the other Agencies to the extent that it includes any product or service that an FCM, CTA, CPO or IB could offer subject to the Commission's jurisdiction that is not otherwise included as a financial activity under section 4(k) of the BHCA. The other Agencies have defined financial product or service as any product or service that a financial institution could offer that is financial in nature, or incidental to such a financial activity, under section 4(k) of the BHCA. The Commission's proposed broader definition would include certain activity—such as acting as a CPO—which is not financial in nature, or incidental to such a financial activity, under section 4(k) of the BHCA.
The proposed definition includes the financial institution's evaluation of information collected in connection with an application by a consumer for a financial product or service even if the application ultimately is rejected or withdrawn. It also includes the distribution of information about a consumer for the purpose of assisting the consumer to obtain a financial product or service.
(p)
(q)
(r)
(s)
(t)
The proposed rule implements the definition of “nonpublic personal information” under the GLB Act by restating the categories of information described above. The proposed rule provides that information will be deemed to be “publicly available” and therefore excluded from the definition of “nonpublic personal information” if an FCM, CTA, CPO or IB reasonably believes that the information is lawfully made available to the general public from one of the three categories of sources listed in the rule.
The approach of the proposed rule is the same as that taken by the Agencies in their rules
To implement the complex definition of “nonpublic personal information” that is provided in the statute, the proposed rule would adopt a definition that consists, generally speaking, of (i) personally identifiable financial information, plus (ii) a consumer list or description or grouping of consumers (and publicly available information pertaining to the consumers) that is derived using any personally identifiable financial information that is not publicly available information. From that body of information, the proposed rule excludes publicly available information (except as noted above or if the information is disclosed in a manner that indicates that the individual is the institution's consumer) and any consumer list that is derived without using personally identifiable financial information that is not publicly available information.
(u)
The proposed rules define “personally identifiable financial information” to include three categories of information. The first category includes any information that a consumer provides a financial institution in order to obtain a financial product or service from the institution. As noted in the examples that follow the definition, this would include information provided on an application to obtain a loan, credit card, or other financial product or service. If, for example, a consumer provides medical information on an application to obtain a financial product or service, that information would be considered “personally identifiable financial information” for purposes of the proposed rules. Similarly, information that may be required for financial planning purposes, including details about retirement and family obligations, such as the care of a disabled child, would be covered by the definition.
The second category includes any information about a consumer resulting from any transaction between the consumer and the financial institution involving a financial product or service. This would include, as noted in the examples following the definition, information about account balance, payment or overdraft history, credit or debit card purchases or financial products purchased or sold.
The third category includes any financial information about a consumer otherwise obtained by the financial institution in connection with providing a financial product or service. This would include information obtained through an information-collecting device from a web server, often referred to as a “cookie.” It would also include information from a consumer report or from an outside source to verify information a consumer provides on an application to obtain a financial product or service. It would not, however, include information that is publicly available (unless, as previously noted, the information is part of a list of consumers that is derived using personally identifiable financial information).
The examples clarify that the definition of “personally identifiable financial information” does not include a list of names and addresses of people who are customers of an entity that is not a financial institution. Thus, the names and addresses of people who subscribe, for instance, to a particular magazine would fall outside the definition. The examples also clarify that aggregate information (or “blind data”) lacking personal identifiers is not covered by the definition of “personally identifiable financial information.”
(v)
As discussed in greater detail above, the proposed rules treat information as publicly available if it could be obtained from one of the public sources listed in the rules. If an institution reasonably believes the information is lawfully made available to the general public from one of the listed public sources, then the information will be considered publicly available and excluded from the scope of “nonpublic personal information,” whether or not the institution obtains it from a publicly available source (unless, as previously noted, it is part of a list of consumers that is derived using personally identifiable financial information). Under this approach, the fact that a consumer has given information to a financial institution would not automatically extend to that information the protections afforded to nonpublic personal information.
The proposal incorporates the concept of information being lawfully obtained. Thus, under the proposal, information unlawfully obtained will not be deemed to be publicly available notwithstanding that it may be available to the general public through widely distributed media.
(w)
Paragraph (a) of proposed § 160.4 states the general rule regarding these notices. A financial institution must provide a clear and conspicuous notice, as defined in proposed § 160.3(b), that accurately reflects the institution's privacy policies and practices. Accordingly, a financial institution must maintain the protections that its notice represents it will provide. The Commission expects that FCMs, CTAs, CPOs and IBs will take appropriate measures to adhere to their stated privacy policies and practices.
The proposed rules do not prohibit two or more institutions from providing a joint initial, annual or opt out notice, as long as the notice is delivered in accordance with the rules and is accurate with respect to all institutions. For example, institutions that could provide joint notices include: (i) An IB and its FCM; (ii) a CTA and the FCM carrying the customer's account; and (iii) a clearing FCM and an executing FCM. Similarly, the rules do not preclude an institution from establishing different privacy policies and practices for different categories of consumers, customers or products so long as each particular consumer or customer receives a notice that is accurate with respect to that individual.
Paragraph (c) of proposed § 160.4 identifies the time a customer relationship is established as the point at which a financial institution and a consumer enter into a continuing relationship. The examples in paragraph (c) clarify that, for customer relationships that are contractual in nature including, for example, a commodity interest advisory relationship, a customer relationship is established when the customer enters into the contract (whether written or oral) that is necessary to engage in the activity in question. Thus, for example, a customer relationship is established with an FCM when the customer executes a commodity interest trade through the FCM or opens an account with the FCM under its procedures. We request comment on whether there are other times at which customer relationships with FCMs, CTAs, CPOs and IBs may be established.
We note that in most situations, a financial institution should give the initial notice at a point when the consumer still has a meaningful choice about whether to enter into the customer relationship. The exceptions listed in the examples, while not exhaustive, are intended to illustrate the less frequent situations when delivery either would pose a significant impediment to the conduct of a routine business practice or the consumer agrees to receive the notice later in order to obtain a financial product or service immediately.
Section 503 of the GLB Act requires a financial institution to provide notices of its privacy policies and practices to its customers at least annually. Proposed § 160.5 implements this requirement by providing that a clear and conspicuous notice that accurately reflects the institution's current privacy policies and practices be provided at least once during any period of twelve consecutive months during which the customer relationship exists. The rules governing how to provide an initial notice also apply to annual notices.
Section 503(a) of the GLB Act requires that the annual notice be provided “during the continuation” of a customer relationship. Accordingly, the proposed rules state that a financial institution is not required to provide an annual notice to a customer with whom it no longer has a continuing relationship. For example, a customer becomes a former customer when the individual's account is closed.
The Commission invites comment generally on whether there are other situations in which an individual may have an account with a financial institution but the customer relationship has ended. We also invite comment on the regulatory burden of providing annual notices and on the methods financial institutions anticipate using to provide the notices.
Section 503 of the GLB Act identifies the categories of information that must be included in a financial institution's initial and annual privacy notices and establishes the general requirement that a financial institution must provide customers with a notice describing the institution's policies and practices with respect to, among other things, disclosing nonpublic personal information to both affiliates and nonaffiliated third parties. Section 503(b) of the GLB Act identifies certain elements that the notice must address. The required content is the same for initial and annual notices of privacy policies and practices. While the information contained in the notices must be accurate as of the time the notices are provided, a financial institution may prepare its notices based on current and anticipated policies and practices.
Paragraph (a) of proposed § 160.6 prescribes the information to be included; proposed paragraph (c) provides examples of how to comply with this requirement.
(1)
(2)
Financial institutions may choose to provide more detailed information in the initial and annual notices. If a financial institution does not disclose, and does not intend to disclose, nonpublic personal information to affiliates or nonaffiliated third parties, its initial and annual notices may simply state this fact without further elaboration about categories of information disclosed.
3.
Proposed rule 160.6(a)(3) implements the notice requirement of section 503. The example explains that a financial institution will adequately categorize the affiliates and nonaffiliated third parties to whom it discloses nonpublic information about consumers if it identifies the types of businesses in which they engage. Types of business may be described in general terms, such as financial products or services, if the financial institution provides examples of the significant types of businesses engaged in by the recipient.
Section 502(e) of the GLB Act creates exceptions to the requirements that apply to the disclosure of nonpublic personal information to nonaffiliated third parties. The Act does not require a financial institution to list the categories of persons to whom information may be disclosed under any of the enumerated exceptions. Accordingly, proposed rule 160.6(a)(4) requires only that a financial institution inform customers that it makes disclosures as permitted by law to nonaffiliated third parties in addition to those described in the notice. The Commission invites comment on whether such notice would be adequate.
If a financial institution does not disclose, and does not intend to disclose, nonpublic personal information to affiliates or nonaffiliated third parties, its initial and annual notices may state this fact without further elaboration about categories of third parties.
4.
5.
Proposed rule 160.6(a)(5) implements these provisions by requiring that, if a financial institution discloses nonpublic personal information to a nonaffiliated third party under the GLB Act exception for service providers and joint marketing, it must include in its initial and annual privacy notices a separate description of the categories of information that are disclosed and the categories of third parties providing the services. A financial institution may comply with these requirements by providing the same level of detail in the notice as is required to satisfy proposed §§ 160.6(a)(2) and (3).
6.
7.
Proposed rule 160.6(a)(7) implements section 503(b)(4) of the GLB Act by requiring that a financial institution's initial and annual privacy notices include any disclosures the institution makes under section 603(d)(2)(A)(iii) of the FCRA.
8.
Proposed rule 160.6(a)(8) implements these provisions by requiring a financial institution to include in its initial and annual privacy notices the institution's policies and practices with respect to protecting the confidentiality, security and integrity of nonpublic personal information. The example in the proposed rules states that a financial institution may comply with the requirement for confidentiality and security if the institution explains such matters as who has access to the information and the circumstances under which the information may be accessed. The information about integrity should focus on the measures the financial institution takes to protect against reasonably anticipated threats or hazards. The proposed rule does not require a financial institution to disclose technical or proprietary information about how it safeguards consumer information.
Proposed § 160.7 provides that any opt out notice required by § 160.10(a) must provide a clear and conspicuous notice to each consumer that accurately
The examples outlined in paragraph (a)(2) of proposed § 160.7 state that a financial institution will provide adequate notice of the right to opt out if it identifies the categories of nonaffiliated third parties to whom the information may be disclosed and explains that the consumer may opt out of those disclosures. A financial institution that plans to disclose only limited types of information or to make disclosures only to a specific type of nonaffiliated third party may provide a correspondingly narrow notice to consumers. To minimize the number of opt out notices a financial institution must provide, however, the institution may wish to base its notices on current and anticipated information sharing plans. A new opt out notice is not required for disclosures to different types of nonaffiliated third parties or of different types of information so long as the most recent opt out notice is sufficiently broad to cover the entities or information in question. A financial institution also need not provide subsequent opt out notices when a consumer establishes a new type of customer relationship with that financial institution, unless the institution's opt out policies vary based on the type of customer relationship.
The examples suggest several methods of providing reasonable means to opt out, including check-off boxes, reply forms, electronic mail addresses, and toll-free telephone numbers. A financial institution does not provide a reasonable means of opting out if the only means provided is for the consumer to write his or her own letter requesting to opt out. The Commission invites comment on whether a financial institution that provides its notice electronically should be required to provide an electronic means to opt out.
Paragraph (b) of proposed § 160.7 applies to delivery of the opt out notice the same rules that apply to delivery of the initial and annual privacy notices and clarifies that the opt out notice may be provided together with, or on the same form as, the initial and annual notices. Paragraph (c) provides that if the opt out notice is provided after the initial notice, a financial institution must provide a copy of the initial notice along with the opt out notice.
Paragraph (d) of proposed § 160.7 states that if two or more consumers jointly obtain a financial product or service from a financial institution, the institution may provide a single opt out notice. The opt out notice must, however, explain how the financial institution will treat an opt out direction by a joint customer. The Commission invites comment on how the right to opt out should apply in the case of joint accounts. For example, should a financial institution require all parties to an account to opt out before the opt out becomes effective? If not, and only one of the parties opts out, should the opt out apply only to that party or should it apply to information about all parties to the account?
Paragraph (e) provides that a financial institution must comply with the customer's opt out as soon as reasonably practicable after receiving it. Paragraph (f) clarifies that a consumer has the right to opt out at any time. The Commission invites comment on whether the rules should specify a time within which an opt out must be honored.
Paragraph (g) states that an opt out will continue until it is revoked by the consumer in writing or, if the consumer agrees, electronically. When a customer relationship terminates, the customer's opt out direction continues to apply to the nonpublic personal information collected by the financial institution during or related to the relationship. If that individual subsequently establishes a new customer relationship with the financial institution, the opt out direction that applied to the former relationship does not apply to the new relationship and the institution must provide a new opt out notice to the customer in connection with the new relationship. The Commission invites comment on the likely burden of complying with the requirement to provide opt out notices, the methods financial institutions anticipate using to deliver the opt out notices, and the approximate number of opt out notices they anticipate delivering and processing.
This section sets forth the rules governing a financial institution's obligations in the event the institution changes its disclosure policies. As stated in this section, a financial institution may not directly or through an affiliate disclose nonpublic personal information to a nonaffiliated third party unless the institution first provides a revised notice and a new opportunity to opt out. The institution must wait a reasonable period of time before disclosing information according to the terms of the revised notice in order to afford the consumer a reasonable opportunity to opt out. A financial institution must provide a consumer the revised notice of its policies and practices and an opt out notice in a manner such that each consumer can reasonably be expected to receive actual notice, as provided in § 160.9.
Paragraph (a) of proposed § 160.9 requires that any privacy and opt out notices provided by a financial institution be provided in a manner such that each consumer can reasonably be expected to receive actual notice in writing or, if the customer agrees, electronically. Paragraph (b) sets forth examples of reasonable expectation of actual notice, including, for example, hand-delivery to the consumer of a printed copy of the notice, mailing a printed copy of the notice to the last known address of the consumer, and, for a consumer who conducts transactions electronically, posting the notice on the electronic site and requiring the consumer to acknowledge receipt of the notice as a necessary step to obtaining the particular financial product or service.
Paragraph (c) describes additional examples of reasonable expectation of actual notice which apply only in the context of the annual privacy notice. A financial institution may reasonably expect that a customer who uses the institution's web site to obtain financial products and services will receive actual notice of the annual privacy notice if the customer has agreed to accept notices at the institution's web site and if the institution continuously posts a current notice of its privacy policies and practices in a clear and conspicuous manner on the web site. This paragraph also makes clear that a financial institution need not send the annual privacy notice to a customer who affirmatively requests no communication from the institution, provided that the notice is available upon request. Paragraph (d) prohibits financial institutions from providing privacy notices orally. Paragraph (e) clarifies that the requirement that a privacy policy be provided in a manner that permits a customer to retain or reaccess the policy may be satisfied if the financial institution makes available on its web site the privacy policy currently in effect.
Proposed § 160.9(f) expressly permits the provision of joint notice from two or more financial institutions as long as the notice is accurate with respect to all financial institutions and identifies each institution by name. The Commission
Where two or more consumers jointly obtain a financial product or service from a financial institution, paragraph (g) of proposed § 160.9 permits the financial institution to satisfy the initial, annual and revised notice requirements of this section by providing one notice to those customers jointly. The Commission invites comment with respect to whether this provision is likely to provide a reasonable expectation of actual notice in all situations.
Section 502(a) of the GLB Act generally prohibits a financial institution from sharing nonpublic personal information about a consumer with a nonaffiliated third party unless the institution provides the consumer with notice of the institution's privacy policies and practices. Section 502(b) further requires that the financial institution provide the consumer with a clear and conspicuous notice that the consumer's nonpublic personal information may be disclosed to nonaffiliated third parties, that the consumer be given an opportunity to opt out of that disclosure, and that the consumer be informed as to how to opt out.
Proposed § 160.10 implements these provisions by setting forth the criteria that a financial institution must satisfy before disclosing nonpublic personal information to nonaffiliated third parties and by defining “opt out” in a way that incorporates the exceptions to the right to opt out enunciated in proposed §§ 160.13, 160.14 and 160.15.
The proposed rule requires that the opportunity to opt out be “reasonable,” which recognizes that the appropriate waiting time before disclosure will vary depending on many factors including, for example, the method of delivery of the opt out notice. The examples that follow the general rule are intended to provide guidance in situations involving notices by mail and by electronic means and notices that are to be provided in the case of isolated transactions with a consumer. In the case of mail and electronic notices, the consumer will be considered to have had a reasonable opportunity to opt out if the financial institution provides 30 days in which to opt out. In the case of an isolated transaction, the opportunity will be reasonable if the consumer must decide as part of the transaction whether to opt out before completing the transaction. The Commission invites comment on whether 30 days is a reasonable opportunity to opt out in the case of notices sent by mail and by electronic means.
The requirement that a consumer have a reasonable opportunity to opt out does not mean that the consumer forfeits that right once the opportunity passes. As provided in proposed § 160.7(f), a consumer always has the right to opt out. If, however, a consumer does not exercise the opt out right when first presented with the opportunity, the financial institution would be permitted to disclose nonpublic personal information to nonaffiliated third parties during the period of time before it implements the consumer's subsequent opt out direction.
All customers are consumers under the proposed rules. Accordingly, paragraph (b) of proposed § 160.10 clarifies that the right to opt out applies regardless of whether a consumer has established a customer relationship with the financial institution. The fact that a consumer establishes a customer relationship with a financial institution does not change the institution's obligations to comply with the requirements of proposed § 160.10 before sharing nonpublic personal information about the consumer with nonaffiliated third parties. Importantly, the proposed rule applies as well in the context of a consumer who had a customer relationship with a financial institution and subsequently terminated the relationship. Paragraph (b) establishes that the consumer protections afforded by paragraph (a) apply to all nonpublic personal information collected by a financial institution, regardless of when collected. Thus, if a consumer elects to opt out of information sharing with nonaffiliated third parties, the election applies to all nonpublic information about the consumer in the financial institution's possession, regardless of when the information is obtained.
Paragraph (c) of proposed § 160.10 provides that a financial institution may—but is not required to—provide consumers with the option of a partial opt out in addition to the opt out required by this section. This option could enable a consumer to limit, for instance, the types of information disclosed to nonaffiliated third parties or the types of recipients of the nonpublic personal information about the consumer. If the financial institution elects to provide the partial opt out, it must state this option in a way that clearly informs the consumer about the choices available and the resulting consequences.
Section 502(c) of the GLB Act provides that a nonaffiliated third party that receives nonpublic personal information from a financial institution shall not, directly or through an affiliate, disclose the information to any person that is not affiliated with either the financial institution or the third party, unless the disclosure would be lawful if it were made directly by the financial institution. Proposed § 160.11 implements the GLB Act's restrictions on redisclosure and reuse of nonpublic personal information about consumers.
The GLB Act places the institution that receives the nonpublic personal information in the shoes of the institution that discloses the information for the purpose of determining whether redisclosures by the receiving institution are lawful. Thus, the GLB Act permits the receiving institution to redisclose the information to an entity to whom the original transferring institution could disclose the information pursuant to one of the exceptions in proposed § 160.14 or § 160.15, or to an entity to whom the original transferring institution could have disclosed the information as described under its notice of privacy policies and practices, unless the consumer has exercised the right to opt out of that disclosure. Because a consumer can exercise the right to opt out of a disclosure at any time, the GLB Act may effectively preclude third parties that receive information to which the opt out right applies from redisclosing the information other than under one of the exceptions in proposed §§ 160.13, 160.14 or § 160.15.
Sections 502(b)(2) and 502(e) of the GLB Act describe the circumstances under which a financial institution may disclose nonpublic personal information without providing the consumer with the initial privacy notice and an opportunity to opt out. Those exceptions apply only when the information is used for the specific purposes set forth in those sections
Section 502(d) of the GLB Act prohibits a financial institution from disclosing, other than to a consumer reporting agency, account numbers or similar forms of access numbers or access codes for a credit card account, deposit account, or transaction account of a consumer to any nonaffiliated third party for use in telemarketing, direct mail marketing, or marketing through electronic mail to the consumer. Proposed § 160.12 applies this prohibition to disclosures made directly or indirectly as it has been applied by the Agencies, and incorporates the exceptions that have been established by the Agencies.
Section 502(b)(2) of the GLB Act creates an exception to the opt out rules for the disclosure of information to a nonaffiliated third party for its use to perform services for or functions on behalf of the financial institution, including the marketing of the financial institution's own products or services or financial products or services offered under a joint agreement between two or more financial institutions. A consumer will not have the right to opt out of disclosing nonpublic personal information about the consumer to nonaffiliated third parties under these circumstances if the financial institution satisfies certain requirements.
Before the information may be shared, section 502(b)(2) of the GLB Act requires the institution to (i) “fully disclose” to the consumer that it will provide this information to the nonaffiliated third party and (ii) enter into a contractual agreement with the third party that requires the third party to maintain the confidentiality of the information. Paragraph (a) of proposed § 160.13 would implement these provisions of the GLB Act by requiring the FCM, CTA, CPO or IB to (i) provide the initial notice required by proposed section 160.4 and (ii) enter into a contract that prohibits the third party from disclosing or reusing the information other than to carry out the purposes for which the information was disclosed, including use under an exception in proposed rules 160.14 and 160.15 in the ordinary course of business to carry out those purposes. The contract should be designed to ensure that the third party will maintain the confidentiality of the information at least to the same extent as is required for the financial institution that discloses it, and will use the information solely for the purposes for which the information is disclosed or as otherwise permitted under the proposed rules.
The Commission invites comment on any other requirements that would be appropriate to protect a consumer's financial privacy and on whether the rules should provide examples of the types of joint agreements that are covered.
Section 502(e) of the GLB Act creates exceptions to the requirements that apply to the disclosure of nonpublic personal information to nonaffiliated third parties. Paragraph (1) of that section provides certain exceptions for disclosures made in connection with the administration, processing, servicing and sale of a consumer's account. Proposed § 160.14 sets forth those exceptions and also the definition of “necessary to effect, administer, or enforce” contained in section 509(7) of the GLB Act.
These exceptions and the exceptions discussed in proposed § 160.15, below, do not affect a financial institution's obligation to provide initial notices of its privacy policies and practices at or prior to the time it establishes a customer relationship and annual notices thereafter. These notices must be provided to all customers, even if the financial institution intends to disclose the nonpublic personal information only under the exceptions in proposed § 160.14.
As discussed above, the GLB Act contains several exceptions to the requirements that otherwise would apply to the disclosures of nonpublic personal information to nonaffiliated third parties. Proposed § 160.15 sets forth the exceptions that are not made in connection with the administration, processing, servicing or sale of a consumer's account.
Section 506(c) of the GLB Act states that, except for the amendments regarding rulemaking authority, nothing in Title V is to be construed to modify, limit or supersede the operation of the FCRA, and no inference is to be drawn on the basis of the provisions of Title V whether information is transaction or experience information under section 603 of the FCRA. Proposed § 160.16 implements section 506(c) of the GLB Act by restating the GLB Act with clarifying changes.
Section 507 of the GLB Act provides that Title V does not preempt any state law that provides greater protections than are provided by Title V. Determinations whether a state law or Title V provide greater protections are to be made by the FTC after consultation with the agency that regulates either the
Proposed § 160.17 is substantively identical to section 507, noting that the proposed rules (like the GLB Act) do not preempt state laws that provide greater protection for consumers than do the rules.
Proposed § 160.18 establishes an effective date for part 160 of June 21, 2001, which is the date by which the Commission is required to prescribe final rules implementing Title V.
Under the proposed rule, full compliance with the rules' restrictions on disclosures would be required by December 31, 2001. To be in full compliance, FCMs, CTAs, CPOs and IBs would be required to provide their existing customers with a privacy notice, an opt out notice, and a reasonable amount of time to opt out before that date. If these have not been provided, the disclosure restrictions would apply. This means that an FCM, CTA, CPO or IB would have to cease sharing customers' nonpublic personal information with nonaffiliated third parties on that date, unless it may share the information under an exception under § 160.14 or § 160.15. FCMs, CTAs, CPOs and IBs that both provide the required notices and allow a reasonable period of time to opt out before December 31, 2001, would be able to share nonpublic personal information after that date for customers who do not opt out.
Under the proposed rule, FCMs, CTAs, CPOs and IBs would not be required to give initial notices to customers whose relationships had terminated before the date by which institutions must be in compliance with the rules. Thus, if under a financial institution's policies an account is inactive before December 31, 2001, then no initial notice would be required in connection with that account. However, because these former customers would remain consumers, an FCM, CTA, CPO or IB would have to provide a privacy and opt out notice to them if the institution intended to disclose their nonpublic personal information to nonaffiliated third parties beyond the exceptions in §§ 160.14 and 160.15.
Section 501 of the GLB Act directs the Agencies to establish appropriate safeguards for financial institutions relating to administrative, technical and physical safeguards to protect customer records and information. Proposed § 160.30 implements this directive by requiring every FCM, CTA, CPO or IB that is subject to the jurisdiction of the Commission to adopt policies and procedures to address the safeguards described above. Consistent with the GLB Act, the proposed rule further requires that the policies and procedures be reasonably designed to: (i) Insure the security and confidentiality of customer records and information; (ii) protect against any anticipated threats or hazards to the security or integrity of customer records and information; and (iii) protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer.
The Commission believes it is appropriate for each financial institution to tailor its policies and procedures to its own systems of information gathering and transfer and to the needs of its customers and has not prescribed specific policies or procedures that financial institutions must adopt. The Commission requests comment on whether the proposed standards should be more specific and, if so, what specifications would be appropriate to particular financial institutions.
The Commission requests comment on the proposed rules and suggestions for additional examples that may be appropriate to include in the rules. In light of the need to promulgate regulations by June 21, 2001—six months after the enactment of the CFMA—the Commission does not anticipate extending the comment period, and encourages commenters to submit their comments as early as possible during the comment period.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,
Section 15 of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. The Commission understands that, by its terms, section 15 does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Nor does it require that each proposed rule be analyzed piecemeal or in isolation when that rule is a component of a larger package of rules or rule revisions. Rather, section 15 simply requires the Commission to “consider the costs and benefits” of its action.
Section 15 further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas of concern and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.
Proposed part 160 constitutes a package of related rule provisions. The Commission has considered their costs and benefits as a totality. The rules impose disclosure and procedural requirements that are either mandated by or fully consistent with the privacy provisions of the GLB Act and section 5g of the CEA, and thus impose no costs in addition to those already imposed. The Commission has considered the costs and benefits of this rule package in light of the specific areas of concern identified in section 15:
After considering these factors, the Commission has determined to propose part 160 as discussed above. The Commission invites public comment on its application of the cost-benefit provision. Commenters also are invited to submit any data that they may have quantifying the costs and benefits of the proposed rules with their comment letters.
This proposed rulemaking contains information collection requirements within the meaning of the Paperwork Reduction Act of 1995 (PR”) (44 U.S.C. 3501
An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a currently valid OMB control number. The Commission is currently requesting a control number for this information collection from OMB.
The proposed regulation contains several disclosure requirements. The financial institutions covered by this regulation must prepare and provide the initial notice to all current customers and all new customers at the time of establishing a customer relationship (proposed § 160.4(a)). Subsequently, an annual notice must be provided to all customers at least once during a twelve-month period during the continuation of the customer relationship (proposed § 160.5(a)). The initial notice and opt out notice must be provided to a consumer prior to disclosing nonpublic personal information to certain nonaffiliated third parties. If a financial institution wishes to disclose information in a way that is inconsistent with the notices previously given to a consumer, the institution must provide consumers with revised notices (proposed § 160.8(c)).
The proposed regulation also contains consumer reporting requirements. In order for consumers to opt out, they must respond to the opt out notice (proposed §§ 160.10(a)(2), (a)(3)(i), and (c)). At any time during their continued relationship with the institution, consumers have the right to change or update their opt out status with the institution (proposed §§ 160.7(f) and (g)). The Commission believes that most, if not all, financial institutions will not share nonpublic personal information about consumers with nonaffiliated third parties and will not have to provide opt out notices to consumers or customers. Thus, the Commission estimates that the annual burden of responding to an opt out notice will be nominal. The Commission requests public comment on all aspects of the collections of information contained in this proposed regulation, including consumer responses to the opt out notice and consumer changes to their opt out status with a financial institution.
The initial and annual privacy notices are mandatory. The opt out notice is not mandatory for institutions that do not share nonpublic personal information with nonaffiliated third parties. The likely respondents are FCMs, CTAs, CPOs and IBs. The required notices are not submitted to the Commission, and there is no assurance of confidentiality of the collections of information. The Commission estimates that approximately 200 FCMs, 920 CTAs, 1400 CPOs and 1400 IBs will respond to the proposed regulation.
The estimated burden was calculated as follows:
Organizations and individuals wishing to submit comments on the information collection requirements that would be required by this proposed regulation should direct them to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10202, New Executive Office Building, 725 17th Street, NW., Washington, DC 20503; Attention: Desk Officer for the Commodity Futures Trading Commission.
The Commission considers comments by the public on this proposed collection of information in:
• Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• Evaluating the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of 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;
OMB is required to make a decision concerning the collection of information contained in this proposed regulation between 30 and 60 days after publication of this document in the
Copies of the information collection submission to OMB are available from the CFTC Clearance Officer, 1155 21st Street, NW., Washington, DC 20581, (202) 418-5160.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Section 5g of the Act, as added by section 124 of the CFMA, makes the Commission a Federal functional regulator
Section 5g of the Act directs the Commission to prescribe regulations necessary to implement Title V's provisions within 6 months from the date the CFMA was signed into law (December 21, 2000). The Commission believes that a regulatory promulgation will give the private sector greater certainty on how to comply with the GLB Act and clearer guidance regarding how the privacy provisions will apply with respect to FCMs, CTAs, CPOs and IBs that are subject to the Commission's jurisdiction with respect to any financial activity.
Because neither Title V of the GLB Act nor section 124 of the CFMA provide a general exception for small businesses, the proposed rules would apply to all FCMs, CTAs, CPOs and IBs, including those that are considered “small entities.”
Subject to certain exceptions explained below, the proposed rule generally requires that a financial institution that is subject to the Commission's jurisdiction with respect to any financial activity (
The proposed rules also require a financial institution to provide its consumers an initial privacy notice and an opt out notice prior to disclosing the individual's nonpublic personal information to nonaffiliated third parties. If a financial institution does not intend to share such information about its consumers, then the institution need not provide either notice. An institution's “consumer” includes a customer as well as an individual who has not established an ongoing relationship with a financial institution, such as an individual who applies for a financial product or service but does not obtain it, or an individual who has an FCM execute a trade without opening an account for the individual (
There are many exceptions to the general rule stated above. An institution may share a consumer's nonpublic personal information with nonaffiliated third parties without having to give a privacy and opt out notice if, for example, such sharing is necessary: (1) To effect, administer, or enforce a transaction requested or authorized by the consumer; (2) to protect the security of records pertaining to the consumer, service, product, or transaction; (3) to protect against or prevent actual or potential fraud, unauthorized transactions, claims or other liability; or (4) to provide information to rating agencies or the institution's attorneys, auditors, and accountants. In addition, in cases where a financial institution enters into a contract with a nonaffiliated third party to undertake joint marketing or to have the third party perform certain functions on behalf of the institution, the institution need not give an opt out notice. In such case, the institution must disclose to the consumer that it is providing the information and enter into a contract with the third party that restricts the third party's use of the information and requires the third party to maintain confidentiality of the information.
Compliance requirements will vary depending, for example, upon an institution's information sharing practices, whether the institution already has or discloses a privacy policy, and whether the institution already has established an opt-out mechanism. A financial institution would have to summarize its practices regarding its collection, sharing, and safeguarding of certain nonpublic personal information in its initial and annual notices. However, the institution may streamline its privacy notice, if it does not share that information (or shares only to the extent permitted under the exceptions). The Commission
Further, to minimize the burden and costs of distributing privacy policies, the proposed rules do not specify the method for distributing required notices. For example, an FCM or CTA may include an annual privacy notice with periodic account statements that the FCM or CTA already sends to the customer. Customers of an IB may be provided a joint notice by the FCM carrying the customer accounts that would be applicable for both the FCM and the IB. The initial privacy notice also may be provided with other required disclosure statements, such as the risk disclosure document required under Commission Rule 1.55. The Commission estimates that the costs of distributing the notices will be minimal because institutions would include them in account statements or disclosures that the institution already sends to consumers and customers. In addition, the institution may deliver the required notices electronically with customer consent.
The Commission understands that most, if not all, FCMs, CTAs, CPOs and IBs currently do not share nonpublic personal information about consumers with nonaffiliated third parties except as would be consistent with one of the many exceptions in the proposed rules. The Commission also understands that those institutions that do share information under one of the permitted exceptions generally have contract provisions that prohibit the third party's use of the information for purposes other than the purpose for which the information was shared. Thus, the Commission believes that as a result of the proposed rules, most if not all financial institutions will not have to provide opt out notices to consumers or customers, and will not need to revise their contracts with nonaffiliated third parties to restrict those parties' use of information.
Section 501 of the GLB Act directs the Commission, and the other Federal functional regulators, to establish appropriate standards for administrative, technical and physical safeguards to protect customer records and information. The proposed rules implement this section by requiring every FCM, IB, CPO and CTA to adopt policies and procedures to address these safeguards. Consistent with the GLB Act, the proposed rules further require that the policies and procedures be reasonably designed to: (i) Insure the security and confidentiality of customer records and information; (ii) protect against any anticipated threats or hazards to the security or integrity of customer records and information; and (iii) protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer.
The Commission believes that most, if not all, financial institutions already have policies and procedures to address the safety and confidentiality of consumer records and information. Nevertheless, financial institutions may review and revise their policies after the rules are adopted. The amount of time an institution will spend reviewing and revising its policies will depend, among other things, on the institution's current policies and its sharing practices. The rules do not specify the means by which institutions must ensure the safety of customer information and records in order to allow each institution to tailor its policies and procedures to its own systems of information gathering and transfer, and the needs of its customers. The Commission has estimated that a financial institution would spend 15 hours on average to revise its procedures.
Professional skills needed to comply with the proposed rules may include clerical, computer systems, personnel training, as well as legal drafting and advice. The information collection requirements imposed by the GLB Act, the CFMA, and the proposed rules are further addressed in the section titled, “Paperwork Reduction Act.”
While the scope of the proposed regulation (pursuant to the GLB Act and the CFMA) is unique, there may be some overlap in certain circumstances with the following laws: As noted above, the Fair Credit Reporting Act requires a financial institution that (i) does not want to be treated as a consumer reporting agency and (ii) desires to share certain consumer information (
The RFA directs the Commission to consider significant alternatives that would accomplish the stated objective, while minimizing any significant adverse impact on small entities. As previously noted, the proposed rules' requirements are expressly mandated by the GLB Act and the CFMA. The proposed rules attempt to clarify, consolidate, and simplify the statutory requirements for all financial institutions, including small entities. The proposed rules also provide substantial flexibility so that any financial institution, regardless of size, may tailor its practices to its individual needs. While the Commission may grant exceptions to the provisions of Title V of the GLB Act pursuant to its broad exemptive authority under section 4(c) of the Act, the Commission must first determine that the exemption would be consistent with the public interest. As stated in section 501(a) of the GLB Act, “It is the policy of the Congress that
Brokers, Consumer protection, Privacy, Reporting and recordkeeping requirements.
For the reasons articulated in the preamble, the Commission proposes to amend Title 17 of the Code of Federal Regulations by adding a new part 160 to read as follows:
7 U.S.C. 7g and 8a(5); 15 U.S.C. 6801
(a)
(1) Requires a financial institution to provide notice to customers about its privacy policies and practices;
(2) Describes the conditions under which a financial institution may disclose nonpublic personal information about consumers to nonaffiliated third parties; and
(3) Provides a method for consumers to prevent a financial institution from disclosing nonpublic personal information to most nonaffiliated third parties by “opting out” of that disclosure, subject to the exceptions in §§ 160.13, 160.14, and 160.15.
(b)
(a)
(b)
For purposes of this part, unless the context requires otherwise:
(a)
(1) That company is regulated under Title V of the GLB Act by the Federal Trade Commission or by a federal functional regulator other than the Commission; and
(2) Rules adopted by the Federal Trade Commission or another federal functional regulator under Title V of the GLB Act treat the futures commission merchant, commodity trading advisor, commodity pool operator or introducing broker as an affiliate of that company.
(b)(1)
(2)
(A) Present the information in the notice in clear, concise sentences, paragraphs and sections;
(B) Use short explanatory sentences or bullet lists whenever possible;
(C) Use definite, concrete, everyday words and active voice whenever possible;
(D) Avoid multiple negatives;
(E) Avoid legal and highly technical business terminology whenever possible; and
(F) Avoid explanations that are imprecise and readily subject to different interpretations.
(ii)
(A) Use a plain-language heading to call attention to the notice;
(B) Use a typeface and type size that are easy to read;
(C) Provide wide margins and ample line spacing;
(D) Use boldface or italics for key words; and
(E) Use distinctive type size, style and graphic devices, such as shading or sidebars when you combine your notice with other information.
(iii)
(A) Place the notice on a screen that consumers frequently access, such as a page on which transactions are conducted; or
(B) Place a link on a screen that consumers frequently access, such as a page on which transactions are conducted, that connects directly to the notice and is labeled appropriately to convey the importance, nature and relevance of the notice.
(c)
(d)
(e)
(f)
(g)
(h) (1)
(2)
(ii) An individual is not your consumer if he or she provides you only with his or her name, address and general areas of investment interest in connection with a request for a brochure or other information about financial products or services.
(iii) An individual is not your consumer if he or she has an account with another futures commission merchant (originating futures commission merchant) for which you provide clearing services for an account in the name of the originating futures commission merchant.
(iv) An individual who is a consumer of another financial institution is not your consumer solely because you act as agent for, or provide processing or other services to, that financial institution.
(v) An individual is not your consumer solely because he or she has designated you as trustee for a trust.
(vi) An individual is not your consumer solely because he or she is a beneficiary of a trust for which you are a trustee.
(vii) An individual is not your consumer solely because he or she is a participant or a beneficiary of an employee benefit plan that you sponsor or for which you act as a trustee or fiduciary.
(i)
(j)
(k)
(l) (1)
(2)
(A) You are a futures commission merchant through whom a consumer has opened an account, or that carries the consumer's account on a fully-disclosed basis, or that effects or engages in commodity interest transactions with or for a consumer, even if you do not hold any assets of the consumer.
(B) You are an introducing broker that regularly solicits or accepts specific orders for trades;
(C) You are a commodity trading advisor with whom a consumer has a contract or subscription, either written or oral, regardless of whether the advice is standardized, or is based on, or tailored to, the commodity interest or cash market positions or other circumstances or characteristics of the particular consumer;
(D) You are a commodity pool operator, and you accept or receive from the consumer, funds, securities, or property for the purpose of purchasing an interest in a commodity pool;
(E) You hold securities or other assets as collateral for a loan made to the consumer, even if you did not make the loan or do not effect any transactions on behalf of the consumer; or
(F) You regularly effect or engage in commodity interest transactions with or for a consumer even if you do not hold any assets of the consumer.
(ii)
(A) You have acted solely as a “finder” for a futures commission merchant, and you do not solicit or accept specific orders for trades; or
(B) You have solicited the consumer to participate in a pool or to direct his or her account and he or she has not provided you with funds to participate in a pool or entered into any agreement for you to direct his or her account.
(m)
(1) The Board of Governors of the Federal Reserve System;
(2) The Office of the Comptroller of the Currency;
(3) The Board of Directors of the Federal Deposit Insurance Corporation;
(4) The Director of the Office of Thrift Supervision;
(5) The National Credit Union Administration Board;
(6) The Securities and Exchange Commission; and
(7) The Commodity Futures Trading Commission.
(n) (1)
(i) any futures commission merchant, commodity trading advisor, commodity pool operator or introducing broker that is registered with the Commission as such or is otherwise subject to the Commission's jurisdiction; and
(ii) any other institution the business of which is engaging in financial activities as described in section 4(k) of the Bank Holding Company Act of 1956, 12 U.S.C. 1843(k).
(2)
(i) Any person or entity, other than a futures commission merchant, commodity trading advisor, commodity pool operator or introducing broker, with respect to any financial activity, that is subject to the jurisdiction of the Commission under the Act;
(ii) The Federal Agricultural Mortgage Corporation or any entity chartered and
(iii) Institutions chartered by Congress specifically to engage in securitizations, secondary market sales (including sales of servicing rights) or similar transactions related to a transaction of a consumer, as long as such institutions do not sell or transfer nonpublic personal information to a nonaffiliated third party.
(o) (1)
(i) Any product or service that a futures commission merchant, commodity trading advisor, commodity pool operator, or introducing broker could offer that is subject to the Commission's jurisdiction; and
(ii) Any product or service that any other financial institution could offer by engaging in an activity that is financial in nature or incidental to such a financial activity under section 4(k) of the Bank Holding Company Act of 1956, 12 U.S.C. 1843(k).
(p)
(q)
(r)
(s) (1)
(i) Your affiliate; or
(ii) A person employed jointly by you and any company that is not your affiliate, but nonaffiliated third party includes the other company that jointly employs the person.
(2)
(t) (1)
(i) Personally identifiable financial information; and
(ii) any list, description or other grouping of consumers, and publicly available information pertaining to them, that is derived using any personally identifiable financial information that is not publicly available information.
(2)
(i) Publicly available information, except as included on a list described in paragraph (t)(1)(ii) of this section or when the publicly available information is disclosed in a manner that indicates the individual is or has been your consumer; or
(ii) Any list, description or other grouping of consumers, and publicly available information pertaining to them, that is derived without using any personally identifiable financial information that is not publicly available information.
(3)
(ii) Nonpublic personal information does not include any list of individuals' names and addresses that contains only publicly available information, is not derived in whole or in part using personally identifiable financial information that is not publicly available information, and is not disclosed in a manner that indicates that any of the individuals on the list is a consumer of a financial institution.
(u) (1)
(i) A consumer provides to you to obtain a financial product or service from you;
(ii) About a consumer resulting from any transaction involving a financial product or service between you and a consumer; or
(iii) You otherwise obtain about a consumer in connection with providing a financial product or service to that consumer.
(2)
(A) Information a consumer provides to you on an application to obtain a loan, credit card, or other financial product or service;
(B) Account balance information, payment history, overdraft history, and credit or debit card purchase information;
(C) The fact that an individual is or has been one of your customers or has obtained a financial product or service from you;
(D) Any information about your consumer if it is disclosed in a manner that indicates that the individual is or has been your consumer;
(E) Any information you collect through an Internet “cookie” (an information-collecting device from a web server); and
(F) Information from a consumer report.
(ii)
(A) A list of names and addresses of customers of an entity that is not a financial institution; or
(B) Information that does not identify a consumer, such as aggregate information or blind data that does not contain personal identifiers such as account numbers, names or addresses.
(v)(1)
(i) Federal, state or local government records;
(ii) Widely distributed media; or
(iii) Disclosures to the general public that are required to be made by federal, state or local law.
(2)
(A) You have a reasonable belief that information about your consumer is made available to the general public if you have confirmed, or your consumer has represented to you, that the information is publicly available from a source described in paragraphs (v)(1)(i)-(iii) of this section.
(B) You have a reasonable belief that information about your consumer is made available to the general public if you have taken steps to submit the information, in accordance with your internal procedures and policies and with applicable law, to a keeper of federal, state or local government records that is required by law to make the information publicly available.
(C) You have a reasonable belief that an individual's telephone number is lawfully made available to the general public if you have located the telephone number in the telephone book or on an internet listing service, or the consumer has informed you that the telephone number is not unlisted.
(D) You do not have a reasonable belief that information about a consumer is publicly available solely because that information would normally be recorded with a keeper of federal, state or local government records that is required by law to make the information publicly available, if the consumer has the ability in accordance with applicable law to keep that information nonpublic, such as where a consumer may record a deed in the name of a blind trust.
(ii)
(iii)
(w)
(1) Any futures commission merchant;
(2) Any commodity trading advisor;
(3) Any commodity pool operator; and
(4) Any introducing broker.
(a)
(1)
(2)
(b)
(1) You do not disclose any nonpublic personal information about the consumer to any nonaffiliated third party other than as authorized by §§ 160.13, 160.14 or 160.15.
(2) You do not have a customer relationship with the consumer.
(c)
(1)
(2)
(i) Instructs you to execute a commodity interest transaction for the consumer;
(ii) Opens a commodity interest account through an introducing broker or with a futures commission merchant that clears transactions for its customers through you on a fully-disclosed basis;
(iii) Transmits specific orders for commodity interest transactions to you that you pass on to a futures commission merchant for execution, if you are an introducing broker;
(iv) Enters into an advisory contract or subscription with you, whether in writing or orally, and whether you provide standardized, or individually tailored commodity trading advice based on the customer's commodity interest or cash market positions or other circumstances or characteristics.
(v) Provides to you funds, securities, or property for an interest in a commodity pool, if you are a commodity pool operator.
(d)
(1) You may provide a revised privacy notice under § 160.8 that covers the customer's new financial product or service; or
(2) If the initial, revised or annual notice that you most recently provided to that customer was accurate with respect to the new financial product or service, you do not need to provide a new privacy notice under paragraph (a) of this section.
(e)
(i) Establishing the customer relationship is not at the customer's election;
(ii) Providing notice not later than when you establish a customer relationship would substantially delay the customer's transaction and the customer agrees to receive the notice at a later time; or
(iii) A nonaffiliated financial institution establishes a customer relationship between you and a consumer without your prior knowledge.
(2)
(ii)
(iii)
(f)
(a)(1)
(2)
(b)(1)
(2)
(i) The individual's commodity interest account is closed;
(ii) The individual's advisory contract or subscription is terminated or expires;
(iii) The individual has redeemed all of his or her units in your pool.
(c)
(a)
(1) The categories of nonpublic personal information that you collect;
(2) The categories of nonpublic personal information that you disclose;
(3) The categories of affiliates and nonaffiliated third parties to whom you disclose nonpublic personal information, other than those parties to whom you disclose information under §§ 160.14 and 160.15.
(4) The categories of nonpublic personal information about your former customers that you disclose and the categories of affiliates and nonaffiliated third parties to whom you disclose nonpublic personal information about your former customers, other than those parties to whom you disclose information under §§ 160.14 and 160.15;
(5) If you disclose nonpublic personal information to a nonaffiliated third party under § 160.13 (and no other exception applies to that disclosure), a separate statement of the categories of information you disclose and the categories of third parties which you have contracted;
(6) An explanation of the consumer's rights under § 160.10(a) to opt out of the disclosure of nonpublic personal information to nonaffiliated third parties, including the method(s) by which the consumer may exercise that right at that time;
(7) Any disclosures that you make under section 603(d)(2)(A)(iii) of the Fair Credit Reporting Act (15 U.S.C. 1681a(d)(2)(A)(iii)) (that is, notices regarding the ability to opt out of disclosures of information among affiliates);
(8) Your policies and practices with respect to protecting the confidentiality and security of nonpublic personal information; and
(9) Any disclosure that you make under paragraph (b) of this section.
(b)
(c)
(2)
(i) You satisfy the requirement to categorize the nonpublic personal information you disclose if you list the categories described in paragraph (e)(1) of this section, as applicable, and a few examples to illustrate the types of information in each category.
(ii) If you reserve the right to disclose all of the nonpublic personal information about consumers that you collect, you may simply state that fact without describing the categories or examples of the nonpublic personal information you disclose.
(3)
(i) Financial service providers;
(ii) Non-financial companies; and
(iii) Others.
(4)
(i) List the categories of nonpublic personal information you disclose, using the same categories and examples you used to meet the requirements of paragraph (a)(2) of this section, as applicable; and
(ii) State whether the third party is:
(A) A service provider that performs marketing services on your behalf or on behalf of you and another financial institution; or
(B) A financial institution with which you have a joint marketing agreement.
(5)
(6)
(i) Describe in general terms who is authorized to have access to the information; and
(ii) State whether you have security practices and procedures in place to ensure the confidentiality of the information in accordance with your policy. You are not required to describe technical information about the safeguards you use.
(d)
(1) You may satisfy the initial notice requirements in §§ 160.4(a)(2), 160.7(b) and § 160.7(c) for a consumer who is not a customer by providing a short-form initial notice at the same time as you deliver an opt out notice as required in § 160.7.
(2) A short-form initial notice must:
(i) Be clear and conspicuous;
(ii) State that your privacy notice is available upon request; and
(iii) Explain a reasonable means by which the consumer may obtain your privacy notice.
(3) You must deliver your short-form initial notice according to § 160.9. You are not required to deliver your privacy notice with your short-form initial notice. You instead may simply provide the consumer a reasonable means to obtain your privacy notice. If a consumer who receives your short-form notice requests your privacy notice, you must deliver your privacy notice according to § 160.9.
(4)
(i) Provide a toll-free telephone number that the consumer may call to request the notice; or
(ii) For a consumer who conducts business in person at your office, maintain copies of the notice on hand that you provide to the consumer immediately upon request.
(e)
(1) Categories of nonpublic personal information that you reserve the right to
(2) Categories of affiliates and nonaffiliated third parties to whom you reserve the right in the future to disclose, but to whom you do not currently disclose, nonpublic personal information.
(f)
(a)(1)
(i) That you disclose or reserve the right to disclose nonpublic personal information about your consumer to a nonaffiliated third party;
(ii) That the consumer has the right to opt out of that disclosure; and
(iii) A reasonable means by which the consumer may exercise the opt out right.
(2)
(i)
(A) Identify all of the categories of nonpublic personal information that you disclose or reserve the right to disclose, and all of the categories of nonaffiliated third parties to which you disclose the information, as described in § 160.6(a)(2) and (3), and state that the consumer can opt out of the disclosure of that information; and
(B) Identify the financial products or services that the consumer obtains from you, either singly or jointly, to which the opt out direction would apply.
(ii)
(A) Designate check-off boxes in a prominent position on the relevant forms with the opt out notice;
(B) Include a reply form together with the opt out notice;
(C) Provide an electronic means to opt out, such as a form that can be sent via electronic mail or a process at your web site, if the consumer agrees to the electronic delivery of information; or
(D) Provide a toll-free telephone number that consumers may call to opt out.
(iii)
(A) The only means of opting out is for the consumer to write his or her own letter to exercise that opt out right; or
(B) The only means of opting out as described in any notice subsequent to the initial notice is to use a check-off box that you provided with the initial notice but did not include with the subsequent notice.
(iv)
(b)
(c)
(d)
(1) If two or more consumers jointly obtain a financial product or service from you, you may provide a single opt out notice. Your opt out notice must explain how you will treat an opt out direction by a joint consumer.
(2) Any of the joint consumers may exercise the right to opt out. You may either:
(i) Treat an opt out direction by a joint consumer as applying to all of the associated joint consumers; or
(ii) Permit each joint consumer to opt out separately.
(3) If you permit each joint consumer to opt out separately, you must permit one of the joint consumers to opt out on behalf of all of the joint consumers.
(4) You may not require
(5)
(i) Send a single opt out notice to John's address, but you must accept an opt out direction from either John or Mary;
(ii) Treat an opt out direction by either John or Mary as applying to the entire account. If you do so, and John opts out, you may not require Mary to opt out as well before implementing John's opt out direction; or
(iii) Permit John and Mary to make different opt out directions. If you do so:
(A) You must permit John and Mary to opt out for each other.
(B) If both opt out, you must permit both to notify you in a single response (such as on a form or through a telephone call).
(C) If John opts out and Mary does not, you may only disclose nonpublic personal information about Mary, but not about John, and not about John and Mary jointly.
(e)
(f)
(g)
(1) A consumer's direction to opt out under this section is effective until the consumer revokes it in writing or, if the consumer agrees, electronically.
(2) When a customer relationship terminates, the customer's opt out direction continues to apply to the nonpublic personal information that you collected during or related to that relationship. If the individual subsequently establishes a new customer relationship with you, the opt out direction that applied to the former relationship does not apply to the new relationship.
(h)
(a)
(1) You have provided to the consumer a clear and conspicuous revised notice that accurately describes your policies and practices;
(2) You have provided to the consumer a new opt out notice;
(3) You have given the consumer a reasonable opportunity, before you disclose the information to the nonaffiliated third party, to opt out of the disclosure; and
(4) The consumer does not opt out.
(b)
(i) Disclose a new category of nonpublic personal information to any nonaffiliated third party;
(ii) Disclose nonpublic personal information to a new category of nonaffiliated third party; or
(iii) Disclose nonpublic personal information about a former customer to
(2) A revised notice is not required if you disclose nonpublic personal information to a new nonaffiliated third party that you adequately described in your prior notice.
(c)
(a)
(b)(1)
(i) Hand-deliver a printed copy of the notice to the consumer;
(ii) Mail a printed copy of the notice to the last known address of the consumer; or
(iii) For the consumer who conducts transactions electronically, post the notice on the electronic site and require the consumer to acknowledge receipt of the notice as a necessary step to obtaining a particular financial service or product.
(2)
(i) Only post a sign in your branch or office or generally publish advertisements of your privacy policies and practices; or
(ii) Send the notice via electronic mail to a consumer who does not obtain a financial product or service from you electronically.
(c)
(1) The customer uses your web site to access financial products and services electronically and agrees to receive notices at the web site and you post your current privacy notice continuously in a clear and conspicuous manner on the web site; or
(2) The customer has requested that you refrain from sending any information regarding the customer relationship, and your current privacy notice remains available to the customer upon request.
(d)
(e)
(1) For customers only, you must provide the initial notice required by § 160.4(a)(1), the annual notice required by § 160.5(a), and the revised notice required by § 160.8, so that the customer can retain them or obtain them later in writing or, if the customer agrees, electronically.
(2)
(i) Hand-deliver a printed copy of the notice to the customer;
(ii) Mail a printed copy of the notice to the last known address of the customer; or
(iii) Make your current privacy notice available on a web site (or a link to another web site) for the customer who obtains a financial product or service electronically and agrees to receive the notice at the web site.
(f)
(g)
(a)(1)
(i) You have provided to the consumer an initial notice as required under § 160.4;
(ii) You have provided to the consumer an opt out notice as required in § 160.7;
(iii) You have given the consumer a reasonable opportunity, before you disclose the information to the nonaffiliated third party, to opt of the disclosure; and
(iv) The consumer does not opt out.
(2)
(3)
(i)
(ii)
(iii)
(b)
(2) Unless you comply with this section, you may not, directly or through any affiliate, disclose any nonpublic personal information about a consumer that you have collected, regardless of whether you have collected it before or after receiving the direction to opt out from the consumer.
(c)
(a)(1)
(i) You may disclose the information to the affiliate of the financial institution from which you received the information;
(ii) You may disclose the information to your affiliates, but your affiliates may, in turn, disclose and use the information only to the extent that you may disclose and use the information; and
(iii) You may disclose and use the information pursuant to an exception in § 160.14 or 160.15 in the ordinary course of business to carry out the activity covered by the exception under which you received the information.
(2)
(b)(1)
(i) To the affiliates of the financial institution from which you received the information;
(ii) To your affiliates, but your affiliates may, in turn, disclose the information only to the extent that you can disclose the information; and
(iii) To any other person, if the disclosure would be lawful if made directly to that person by the financial institution from which you received the information.
(2)
(i) You may use that list for your own purposes;
(ii) You may disclose that list to another nonaffiliated third party only if the financial institution from which you purchased the list could have lawfully disclosed that list to that third party. That is, you may disclose the list in accordance with the privacy policy of the financial institution from which you received the list as limited by the opt out direction of each consumer whose nonpublic personal information you intend to disclose, and you may disclose the list in accordance with an exception in §§ 160.14 and 160.15, such as in the ordinary course of business to your attorneys, accountants, or auditors.
(c)
(1) The third party may disclose the information to your affiliates;
(2) The third party may disclose the information to its affiliates, but its affiliates may, in turn, disclose and use the information only to the extent that the third party may disclose and use the information; and
(3) The third party may disclose and use the information pursuant to an exception in §§ 160.14 or 160.15 in the ordinary course of business to carry out the activity covered by the exception under which it received the information.
(d)
(1) To your affiliates;
(2) To its affiliates, but its affiliates, in turn, may disclose the information only to the extent the third party can disclose the information; and
(3) To any other person, if the disclosure would be lawful if you made it directly to that person.
(a)
(b)
(1) To your agent or service provider solely in order to perform marketing for your own services or products, as long as the agent or service provider is not authorized to directly initiate charges to the account; or
(2) To a participant in a private-label credit card program or an affinity or similar program where the participants in the program are identified to the customer when the customer enters into the program.
(c)
(a)
(i) Provide the initial notice in accordance with § 160.4; and
(ii) Enter into a contractual agreement with the third party that prohibits the third party from disclosing or using the information other than to carry out the purposes for which you disclosed the information, including use under an exception in §§ 160.14 or 160.15 in the ordinary course of business to carry out those purposes.
(2)
(b)
(c)
(a)
(1) Processing or servicing a financial product or service that a consumer requests or authorizes;
(2) Maintaining or servicing the consumer's account with you, or with another entity as part of an extension of credit on behalf of such entity; or
(3) A proposed or actual securitization, secondary market sale or similar transaction related to a transaction of the consumer.
(b)
(1) Required, or is one of the lawful or appropriate methods, to enforce your rights or the rights of other persons engaged in carrying out the financial transaction or providing the product or service; or
(2) Required, or is a usual, appropriate or acceptable method:
(i) To carry out the transaction or the product or service business of which the transaction is a part, and record, service or maintain the consumer's account in the ordinary course of providing the financial service or financial product;
(ii) To administer or service benefits or claims relating to the transaction or the product or service business of which it is a part;
(iii) To provide a confirmation, statement or other record of the transaction, or information on the status or value of the financial service or financial product to the consumer or the consumer's agent or broker;
(iv) To accrue or recognize incentives or bonuses associated with the transaction that are provided by you or any other party;
(v) In connection with:
(A) The authorization, settlement, billing, processing, clearing, transferring, reconciling or collection of amounts charged, debited or otherwise paid using a debit, credit or other payment card, check or account number, or by other payment means;
(B) The transfer of receivables, accounts or interests therein; or
(C) The audit of debit, credit or other payment information.
(a)
(1) With the consent or at the direction of the consumer, provided that the consumer has not revoked the consent or direction;
(2)(i) To protect the confidentiality or security of your records pertaining to the consumer, service, product or transaction;
(ii) To protect against or prevent actual or potential fraud, unauthorized transactions, claims or other liability;
(iii) For required institutional risk control or for resolving consumer disputes or inquiries;
(iv) To persons holding a legal or beneficial interest relating to the consumer; or
(v) To persons acting in a fiduciary or representative capacity on behalf of the consumer;
(3) To provide information to insurance rate advisory organizations, guaranty funds or agencies, agencies that are rating you, persons that are assessing your compliance with industry standards, and your attorneys, accountants and auditors;
(4) To the extent specifically permitted or required under other provisions of law and in accordance with the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401
(5)(i) To a consumer reporting agency in accordance with the Fair Credit Reporting Act, 15 U.S.C. 1681
(ii) From a consumer report reported by a consumer reporting agency;
(6) In connection with a proposed or actual sale, merger, transfer or exchange of all or a portion of a business or operating unit if the disclosure of nonpublic personal information concerns solely consumers of such business or unit; or
(7)(i) To comply with federal, state or local laws, rules and other applicable legal requirements;
(ii) To comply with a properly authorized civil, criminal or regulatory investigation, or subpoena or summons by federal, state or local authorities; or
(iii) To respond to judicial process or government regulatory authorities having jurisdiction over you for examination, compliance or other purposes as authorized by law.
(b)
(2) A consumer may revoke consent by subsequently exercising the right to opt out of future disclosures of nonpublic personal information as permitted under § 160.7.
Nothing in this part shall be construed to modify, limit or supersede the operation of the Fair Credit Reporting Act, 15 U.S.C. 1681
(a)
(b)
(a)
(b)(1)
(2)
(c)
Every futures commission merchant, commodity pool operator, commodity trading advisor and introducing broker subject to the jurisdiction of the Commission must adopt policies and procedures that address administrative, technical and physical safeguards for the protection of customer records and information. These policies and procedures must be reasonably designed to:
(a) Insure the security and confidentiality of customer records and information;
(b) Protect against any anticipated threats or hazards to the security or integrity of customer records and information; and
(c) Protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer.
Financial institutions, including those that use a common privacy notice, may use the following sample clauses, if the clause is accurate for each institution that uses the notice. Note that disclosure of certain information, such as assets, income and information from a consumer reporting agency, may give rise to obligations under the Fair Credit Reporting Act, such as a requirement to permit a consumer to opt out of disclosures to affiliates or designation as a consumer reporting agency if disclosures are made to nonaffiliated third parties.
You may use this clause, as applicable, to meet the requirement of § 160.6(a)(1) to describe the categories of nonpublic personal information you collect.
We collect nonpublic personal information about you from the following sources:
• Information we receive from you on applications or other forms;
• Information about your transactions with us, our affiliates or others; and
• Information we receive from a consumer reporting agency.
You may use one of these clauses, as applicable, to meet the requirement of § 160.6(a)(2) to describe the categories of nonpublic personal information you disclose. You may use these clauses if you disclose nonpublic personal information other than as permitted by the exceptions in §§ 160.13, 160.14 and 160.15.
We may disclose the following kinds of nonpublic personal information about you:
• Information we receive from you on applications or other forms, such as [
• Information about your transactions with us, our affiliates or others, such as [
• Information we receive from a consumer reporting agency, such as [
We may disclose all of the information that we collect, as described [
You may use this clause, as applicable, to meet the requirements of §§ 160.6(a)(2), (3) and (4) to describe the categories of nonpublic personal information about customers and former customers that you disclose and the categories of affiliates and nonaffiliated third parties to whom you disclose. You may use this clause if you do not disclose nonpublic personal information to any party, other than as is permitted by the exceptions in §§ 160.14 and 160.15.
We do not disclose any nonpublic personal information about our customers or former customers to anyone, except as permitted by law.
You may use this clause, as applicable, to meet the requirement of § 160.6(a)(3) to describe the categories of affiliates and nonaffiliated third parties to whom you disclose nonpublic personal information. You may use this clause if you disclose nonpublic personal information other than as permitted by the exceptions in §§ 160.13, 160.14 and 160.15, as well as when permitted by the exceptions in §§ 160.14 and 160.15.
We may disclose nonpublic personal information about you to the following types of third parties:
• Financial service providers, such as [
• Non-financial companies, such as [
• Others, such as [
We may also disclose nonpublic personal information about you to nonaffiliated third parties as permitted by law.
You may use one of these clauses, as applicable, to meet the requirements of § 160.6(a)(5) related to the exception for service providers and joint marketers in § 160.13. If you disclose nonpublic personal information under this exception, you must describe the categories of nonpublic personal information you disclose and the categories of third parties with whom you have contracted.
We may disclose the following information to companies that perform marketing services on our behalf or to other financial institutions with which we have joint marketing agreements:
• Information we receive from you on applications or other forms, such as [
• Information about your transactions with us, our affiliates, or others, such as [
• Information we receive from a consumer reporting agency, such as [
We may disclose all of the information we collect, as described [
You may use this clause, as applicable, to meet the requirement of § 160.6(a)(6) to provide an explanation of the consumer's right to opt out of the disclosure of nonpublic personal information to nonaffiliated third parties, including the method(s) by which the consumer may exercise that right. You may use this clause if you disclose nonpublic personal information other than as permitted by the exceptions in §§ 160.13, 160.14 and 160.15.
If you prefer that we not disclose nonpublic personal information about you to nonaffiliated third parties you may opt out of those disclosures; that is, you may direct us not to make those disclosures (other than disclosures permitted or required by law). If you wish to opt out of disclosures to nonaffiliated third parties, you may [
You may use this clause, as applicable, to meet the requirement of § 160.6(a)(8) to describe your policies and practices with respect to protecting the confidentiality and security of nonpublic personal information.
We restrict access to nonpublic personal information about you to [
By the Commission.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing its finding that the St. Louis ozone nonattainment area (hereinafter referred to as the St. Louis area) failed to attain the 1-hour ozone national ambient air quality standard (NAAQS or standard) by November 15, 1996, the attainment date for moderate nonattainment areas set forth in the Clean Air Act (CAA or Act). By operation of law, the St. Louis area is to be reclassified from a moderate to a serious nonattainment area on the effective date of this rule. In addition, EPA is requiring Missouri and Illinois to submit State Implementation Plan (SIP) revisions addressing the CAA's pollution control requirements for serious ozone nonattainment areas within 12 months of the effective date of this rule and establishing November 15, 2004, as the date by which the St. Louis area must attain the ozone NAAQS. In a separate document entitled “Proposed Effective Date Modification for Determination of Nonattainment as of November 15, 1996, and Reclassification of the St. Louis Ozone Nonattainment Area; States of Missouri and Illinois,” published elsewhere in today's
Missouri and Illinois are in the concluding stage of a process that could culminate in EPA final action on an attainment date extension. This extension, if granted, would allow the area to remain classified as a moderate nonattainment area. EPA is continuing to work to complete action on the extension request by June 29, 2001. If EPA takes final action to extend the attainment date during the pre-effective period of this rule, EPA intends to withdraw this final determination and reclassification prior to the time that they become effective.
In an Order issued January 29, 2001, and amended on February 14, 2001, the United States District Court for the District of Columbia directed EPA to determine, by March 12, 2001, whether the St. Louis area had attained the applicable ozone standard under the CAA, and ordered EPA to publish the required notice, if any, that results from its determination by March 20, 2001.
This rule is effective on May 18, 2001.
Copies of the St. Louis area monitored air quality data analyses and other relevant materials are available for public inspection during normal business hours at the following addresses: United States Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604 (please telephone Edward Doty at (312) 886-6057 before visiting the Region 5 office); United States Environmental Protection Agency, Region 7, Air, RCRA, and Toxics Division, 901 North 5th Street, Kansas City, Kansas 66101.
Royan W. Teter, EPA Region 7, (913) 551-7609; or Edward Doty, EPA Region 5, (312) 886-6057.
Throughout this document whenever “we, us, or our” is used, we mean EPA. This section provides additional information by addressing the following questions:
Since the CAA's inception in 1970, EPA has set NAAQS for six common air pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. The CAA requires that these standards be set at levels that protect public health and welfare with an adequate margin of safety. These standards present state and local governments with the air quality levels they must meet to achieve clean air. Also, these standards allow the American people to assess whether or not the air quality in their communities is healthful.
The NAAQS for ozone is expressed in two forms which are referred to as the 1-hour and 8-hour standards. Table 1 summarizes the ozone standards.
The 1-hour ozone standard of 0.12 parts per million (ppm) was promulgated in 1979. The 1-hour ozone standard continues to apply to St. Louis and it is the classification of the St. Louis area with respect to the 1-hour ozone standard that is addressed in this document.
Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the NAAQS established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally enforceable SIP.
Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive. They may contain state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
The St. Louis ozone nonattainment area is an interstate area which includes Madison, Monroe, and St. Clair Counties in Illinois; and Franklin, Jefferson, St. Charles, St. Louis Counties and the City of St. Louis in Missouri.
Under section 107(d)(1)(C) of the CAA, each ozone area designated nonattainment for the 1-hour ozone standard prior to enactment of the 1990 CAA Amendments, such as the St. Louis area, was designated nonattainment by operation of law upon enactment of the 1990 Amendments. In addition, under section 181(a) of the Act, each area designated nonattainment under section 107(d) was classified as “marginal,” “moderate,” “serious,” “severe,” or “extreme,” depending on the severity of the area's air quality problem. The design value for an area, i.e., the highest of the fourth highest 1-hour daily maximums in a given three-year period, characterizes the severity of the air quality problem. Table 2 provides the design value ranges for each nonattainment classification. Ozone nonattainment areas with design values between 0.138 and 0.160 ppm, such as the St. Louis area (which had a design value of 0.156 ppm in 1989), were classified as moderate. These nonattainment designations and classifications were initially codified in 40 CFR Part 81 (see 56 FR 56694, November 6, 1991).
In addition, under section 182(b)(1)(A) of the CAA, states containing areas that were classified as moderate nonattainment were required to submit SIPs to provide for certain air pollution controls, to show progress toward attainment of the ozone standard through incremental emissions reductions, and to provide for attainment of the ozone standard as expeditiously as practicable,
On March 18, 1999, EPA proposed (64 FR 13384) its finding that the St. Louis area did not attain the 1-hour ozone NAAQS by November 15, 1996, as required by the CAA. The proposed finding was based on 1994-1996 air quality data which indicated the area's air quality violated the standard and the area did not qualify for an attainment date extension under the provisions of section 181(a)(5).
Although the area was not eligible for an attainment date extension under section 181(a)(5), our March 18, 1999, proposal included a notice of the St. Louis area's potential eligibility for an attainment date extension, pursuant to EPA's July 16, 1998, “Guidance on Extension of Air Quality Attainment Dates for Downwind Transport Areas” (hereinafter referred to as the extension policy), signed by Richard D. Wilson, Acting Assistant Administrator for Air and Radiation. The extension policy, published in a March 25, 1999,
This action finalizes our finding that the St. Louis area failed to attain the 1-hour ozone NAAQS by November 15, 1996, as prescribed in section 181 of the CAA, and fulfills EPA's nondiscretionary duty pursuant to section 182(b)(2)(A) of the Act. In addition, this action sets the dates by which Missouri and Illinois must submit SIP revisions addressing the CAA's pollution control requirements for serious ozone nonattainment areas and attain the 1-hour NAAQS for ozone. EPA's rulemaking actions are to be effective 60 days from publication of this rule, unless the effective date is delayed as set forth below.
In a separate document entitled “Proposed Effective Date Modification for the Determination of Nonattainment and Reclassification of the St. Louis Ozone Nonattainment Area; States of Missouri and Illinois,” published elsewhere in today's
In an Order dated March 9, 2001, the Court, indicating that its review was limited to whether EPA's planned course of action would contravene the Court's January 29 Order, as amended, noted that “EPA is required to reach a final determination by March 12, 2001, and to publish notice, if necessary under the CAA, by March 20, 2001. Under its alternative proposal, EPA will comply with these two elements.”
Thus, EPA is today fully complying with the Court's Order while continuing to work with Missouri and Illinois to make progress towards final rulemaking action on an attainment date extension request for the St. Louis area. The states and EPA are in the final stages of completing the actions necessary for a final rule, and EPA believes that it is in the public interest to move forward to complete that rulemaking. Completion of the rulemaking prior to the effective date of today's action would allow EPA to assess and take into consideration the role of transported pollution in St. Louis' nonattainment problems, and to provide for an equitable distribution of responsibility for achieving attainment of the ozone standard in the area. In addition, concluding a rulemaking on the attainment date extension would allow EPA to make available to the St. Louis area the attainment date extension policy that EPA has applied in other areas affected by transport. Recently EPA issued three final rulemakings granting requests for attainment date extensions based on its policy in three ozone nonattainment areas: Washington, D.C., Greater Connecticut, and Springfield, Massachusetts. 66 FR 586 (January 3, 2001); 66 FR 634 (January 3 2001); 66 FR 666 (January 3, 2001). In addition, EPA has proposed granting attainment date extensions to Louisville, Kentucky, and Beaumont, Texas. 64 FR 27734 (May 21, 1999); 64 FR 12,854 (April 16, 1999); 65 FR 81,786 (December 27, 2000). Thus, EPA's rulemaking actions today should be viewed in the context of complying with the Court's Order in
Section 181(b)(2)(A) of the Act specifies that:
Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a) to the higher of—
(i) the next higher classification for the area, or
(ii) the classification applicable to the area's design value as determined at the time of the notice required under subparagraph (B).
No area shall be reclassified as Extreme under clause (ii).
On October 2, 1996, Missouri submitted a request for a one-year extension of the attainment date. However, eight exceedances of the 1-hour ozone standard occurred in the St. Louis area in 1996 (refer to Table 4). Two of these exceedances occurred at the Alton monitoring site in Illinois. Although this was the only monitoring site recording more than one exceedance in 1996, under section 181(a)(5) of the Act, the St. Louis area failed to qualify for an attainment date extension based on 1996 air quality data.
Once EPA determines an area has failed to attain the NAAQS and is not eligible for an attainment date extension under the provisions of section 181(a)(5), section 181(b)(2)(B) of the Act stipulates:
The Administrator shall publish a notice in the
Table 4 lists the average number of days when ambient ozone concentrations exceeded the 1-hour ozone standard at each monitoring site in the St. Louis area for the period 1994-1996. The ozone design value for each monitor is also listed for the same period. A complete listing of the ozone exceedances for each monitoring site, as well as EPA's calculations of the design values, can be found in the docket file. The data in Table 3 show that for 1994-1996, seven monitoring sites in the St. Louis area averaged more than one exceedance day per year. Therefore, pursuant to section 181(b)(2)(A) of the CAA, EPA is here making a final determination that the St. Louis area did not attain the 1-hour standard by the November 15, 1996, deadline. Note the air quality data in Table 4 were available for comment in our March 18, 1999, proposed finding of the area's failure to attain the ozone NAAQS. We received no comments pertaining to the accuracy of these data.
For some time, EPA has recognized that pollutant transport can impair an area's ability to meet air quality standards. In March 1995 a collaborative, Federal-state process to assess the ozone transport problem began. Through a two-year effort known as the Ozone Transport Assessment Group (OTAG), EPA worked in partnership with the 37 easternmost states and the District of Columbia, industry representatives, academia, and environmental groups to develop recommended strategies to address
On November 7, 1997, EPA acted on OTAG's recommendations and issued a proposal (the proposed oxides of nitrogen (NO
On July 16, 1998, in consideration of these factors and the realization that many areas are unable to meet the CAA-mandated attainment dates due to transport, EPA issued an attainment date extension policy. Under this policy, the attainment date for an area may be extended provided that the following criteria are met: (1) The area is identified as a downwind area affected by transport from either an upwind area in the same state with a later attainment date, or an upwind area in another state that significantly contributes to downwind nonattainment (by “affected by transport,” EPA means an area whose air quality is affected by transport from an upwind area to a degree that affects the area's ability to attain); (2) an approvable attainment demonstration is submitted along with any necessary, adopted local measures and with an attainment date that shows that the area will attain the 1-hour standard no later than the date that the reductions are expected from upwind areas under the final NO
EPA contemplated that when it acted to approve such an area's attainment demonstration, it would, as necessary, extend that area's attainment date to a date appropriate for that area in light of the schedule for achieving the necessary upwind reductions. As a result, the area would no longer be subject to reclassification or “bump-up” for failure to attain by its original attainment date under section 181(b)(2).
EPA's final NO
In October 1998, EPA notified the Governors of Missouri and Illinois of the availability of the extension policy. EPA also requested that, if they wished to demonstrate their eligibility for the extension policy, the Governors respond to EPA with letters committing their respective states to meet the requirements necessary to qualify for an attainment date extension under the policy by November 15, 1999.
On November 23, 1998, Missouri submitted a letter to EPA providing a commitment to meet the requirements of the extension policy. Similarly, on December 15, 1998, Illinois submitted a letter to EPA providing a commitment to meet the requirements of the extension policy. (EPA's letters notifying the Missouri and Illinois Governors of the extension policy, and the respective responses are included in the docket for this rulemaking.)
As previously noted, on March 18, 1999, EPA proposed (64 FR 13384) its finding that the St. Louis area failed to attain the 1-hour ozone NAAQS by its attainment date and announced the area's potential eligibility for an attainment date extension under the extension policy. The area's eligibility was dependent in part, on EPA's approval of an attainment demonstration.
On April 17, 2000, EPA proposed two alternative actions (65 FR 20404) with respect to the Illinois and Missouri 1-hour ozone attainment demonstration SIPs for the St. Louis area. Our proposed actions described the conditions that EPA anticipated would lead to final action on both alternatives.
EPA proposed to approve the plans, with final approval contingent upon the states making certain additional submissions in accordance with a specified schedule. If these additional submissions were approved after further notice and comment, EPA would extend the St. Louis area's attainment date to a date consistent with the approved attainment demonstration. Under these circumstances, the area would retain its moderate nonattainment status. In other words, EPA proposed to defer the attainment determination required under section 181(b)(2)(B) of the Act until such time as the new, extended attainment date had passed.
Alternatively, EPA proposed to disapprove the attainment demonstration SIPs if Illinois and Missouri did not make certain additional submissions in accordance with the specified schedule or such submissions were deemed unapprovable after notice and comment.
In November 1998, the Sierra Club and the Missouri Coalition for the Environment filed a complaint in the United States District Court for the District of Columbia against EPA (
With respect to the reclassification issue, EPA acknowledged that it had a duty to make a determination on the attainment status of the area by May 15, 1997, and that it had not made a determination. EPA asked the Court for a schedule for a final resolution of the reclassification which would allow the states to make the necessary submissions, and for EPA to determine whether the area could qualify for an attainment date extension.
The Court dismissed all of the claims relating to failure of EPA to act on the Missouri SIP revisions. On the reclassification issue, the Court in an opinion and Order filed January 29, 2001, rejected the Sierra Club request that the Court order EPA to publish a particular determination (that the area failed to attain the standard) and rejected Sierra Club's request to make the determination retroactive to May 1997. However, the Court noted that the Act required that EPA make an attainment determination and that the determination was to have been made by May 15, 1997. The Court also noted that a “determination of nonattainment” would result in a higher classification by operation of law.
The Court stated that it would require EPA to “reach its statutorily required determination promptly,” and ordered EPA to make its determination, no later
Missouri and Illinois have met most of the requirements of the extension policy. Both states submitted and EPA has approved regulations or negative declarations fully addressing volatile organic compound (VOC) reasonably available control technology (RACT) controls for major VOC sources. Missouri submitted and EPA approved a regulation addressing NO
EPA has approved, and Illinois has implemented, VOC emission reductions as part of the state's 15 percent Rate-of-Progress Plan (ROPP or 15 percent plan) (see 62 FR 66279). Illinois has implemented VOC controls including: (1) Requiring the lowering of Reid Vapor Pressure of gasoline to 7.2 pounds per square inch (decreased volatility); (2) transportation control measures; (3) automobile refinishing emission control regulations; (4) marine vessel loading emission control regulations; (5) tightened RACT standards and emission cutoffs for various industrial source categories; (6) underground gasoline storage tank breathing emission controls; (7) organic chemical batch process RACT regulations; and (8) expansion of basic vehicle inspection and maintenance (I/M) area coverage. Illinois has implemented an enhanced vehicle I/M program and cold-cleaner degreasing regulations, which should further reduce VOC emissions in the Illinois portion of the St. Louis area. Illinois has adopted and implemented a contingency plan resulting in additional VOC control measures.
The state of Missouri has also taken a number of actions to improve air quality in the St. Louis area. As part of its approved 15 percent ROPP (65 FR 31485),
Section 181(b)(2)(A) of the Act requires that, when an area is reclassified for failure to attain, its reclassification be the higher of the next higher classification or the classification applicable to the area's ozone design value at the time the notice of reclassification is published in the
Under section 181(a)(1) of the Act, the new attainment deadline for moderate ozone nonattainment areas reclassified to serious under section 181(b)(2) would generally be as expeditious as practicable but no later than the date applicable to the new classification, i.e., November 15, 1999. However, for the reasons given above, EPA did not finalize the determination and reclassification prior to November 15, 1999. As the Court acknowledged in its opinion, it is too late for the area to demonstrate attainment by that date. In our March 18, 1999, proposal, we recognized that November 1999, would not be a realistic attainment date and expressed our belief that we need to establish an appropriate attainment date (later than November 1999) for the area in the event of a reclassification. Thus, we discussed and invited comment regarding options for establishing a new attainment date. These options were based on our belief that the new attainment date should be as expeditious as practicable, taking into account any pertinent factors.
Section 182(i) states that the Administrator may adjust applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to ensure consistency for submission of the new requirements
One option, as discussed in the proposal, is to construct a schedule consistent with recent reclassifications of other areas. EPA reclassified other moderate ozone nonattainment areas, including Phoenix, Arizona; Santa Barbara, California; and Dallas-Fort Worth, Texas; on November 6, 1997, December 10, 1997, and February 18, 1998, respectively (62 FR 60001, 62 FR 65025, and 63 FR 8128). In these cases, the new attainment date was November 15, 1999. The most recent reclassification was for the Dallas-Fort Worth area. EPA published the notice reclassifying this area on February 18, 1998, thereby providing approximately 21 months for the area to attain the standard. EPA thus proposed that an approach consistent with that of the Dallas-Fort Worth area might constitute an adequate period for a moderate nonattainment area to attain the standard where the new attainment date had not yet lapsed but where there was less time remaining than the Act had contemplated. EPA thus suggested, as one option, an attainment date in keeping with the time frame allowed for the Dallas-Fort Worth area, i.e., 21 months from publication of the final reclassification notice.
Another option discussed in the proposal allowed for the consideration of the impacts of pollutant transport. In other words, the new attainment date would coincide with the date set for upwind area reductions under the NO
Upon consideration of the comments, EPA has decided that an attainment date which is as expeditiously as practicable and accounts for the upwind reductions associated with the NO
In addition to establishing a new attainment date, EPA must also address the schedule by which Illinois and Missouri are required to submit SIP revisions meeting the CAA's pollution control requirements for serious areas. An option on which EPA invited comments (64 FR 13384), is to require that the states submit SIP revisions fulfilling all of the serious area requirements, no later than one year after final action on the reclassification. The measures required by section 182(c) of the CAA include, but are not limited to, the following: (1) Attainment and reasonable further progress demonstrations; (2) enhanced vehicle I/M programs; (3) clean-fuel vehicle programs; (4) the major source threshold being defined as 50 tons per year; (5) more stringent new source review requirements; (6) an enhanced air monitoring program; and (7) contingency provisions.
Illinois submitted a comment supporting a deadline of 12 months for submittal of the SIP revisions meeting the CAA's pollution control requirements for serious areas and EPA received no adverse comments on the 12-month option. EPA believes that a submittal deadline of 12 months after the effective date of the determination and reclassification will give the states adequate time to adopt and submit the additional serious area requirements. EPA also notes that the 12-month deadline is consistent with the time given to other areas (such as Dallas-Fort Worth, Phoenix, and Santa Barbara) which were reclassified from moderate to serious. Therefore, EPA is requiring Missouri and Illinois to submit SIP revisions addressing the Act's pollution control requirements for serious ozone nonattainment areas within 12 months of the effective date of this rule.
EPA received comments on the proposed Clean Air Reclassification and Notice of Potential Eligibility for Attainment Date Extension, Missouri and Illinois, dated March 18, 1999 (64 FR 13384). Comments were submitted by Lewis C. Green and Douglas R. Williams on behalf of the Sierra Club and the Missouri Coalition for the Environment, by the Illinois Environmental Protection Agency, and by the Missouri Department of Natural Resources. EPA also received comments on the proposed approval of the Illinois and Missouri attainment demonstration and request for attainment date extension dated April 17, 2000 (65 FR 20404). Comments on the latter notice were submitted by Lewis C. Green on behalf of the Sierra Club and the Missouri Coalition for the Environment (which also incorporated comments dated March 20, 2000, submitted in response to EPA's proposed rulemaking
The commenter did not specify any particular instance of “recalcitrance” or indicate how that factor could be considered in making a determination under section 181(b)(2)(A) of the Act. The Act does contain a mechanism, in section 182(j)(2), by which one state in a multistate area can be relieved of liability for sanctions under section 179 of the Act for failure to demonstrate attainment, if it can show that its failure is based on a failure of another state to adopt all controls required of the area under section 182. However, the Act does not contain any express link between section 182(j)(2) and section 181(b)(2)(A). Even if there were an implicit link, EPA does not believe that allegations of “recalcitrance” should influence its attainment determination for the St. Louis area, and has not considered that factor in its final decision.
With respect to the perceived burden imposed on industry by the serious area requirements, EPA notes that the serious area planning requirements are imposed by section 182(c) of the CAA and the economic impact of a reclassification is not a consideration in making the attainment determination under section 181(b)(2) of the Act. It is, however, appropriate for the states to consider specific economic impacts in meeting the planning requirements of section 182(c) and in developing specific regulatory requirements for specific sources.
EPA cannot finalize the attainment date extension by the time the Court has ordered EPA to act. Despite the efforts of the states and the substantial progress made to date, some submissions necessary for approval of the attainment date extension, including an approvable attainment demonstration, will not be submitted for final EPA approval prior to the time that EPA must act pursuant to the Court's Order. Because EPA is unable to authorize an attainment date extension that meets the criteria set forth in its guidance prior to the deadline set by the Court to make a determination of attainment or nonattainment, EPA must abide by the existing deadline for attainment in making the Court-ordered determination. EPA, in its Court filings, repeatedly sought to obtain additional time for the states to qualify for the attainment date extension, and regrets that this avenue is not open to the states and the Agency prior to the time that EPA must make its determination. However, as explained above, in a separate
In the March 18, 1999, proposed reclassification, EPA took comment on what the attainment date should be if the area is reclassified. EPA noted that the statutory attainment date for serious areas was November 15, 1999, but explained that, since it would be impossible for the states to meet that date, EPA was proposing options for later dates (see 64 FR 13390 for a more detailed explanation of this issue). One option was to set an attainment date which was 21 months after the effective date of the reclassification, based on the amount of time provided for attainment in EPA's most recent reclassification of a moderate ozone nonattainment area. Another option was to set a date based on the recognition that the St. Louis area is affected by transport, and establish the attainment date consistent with the compliance date for EPA's NO
After considering the comments, EPA has determined that it is appropriate to establish an attainment date which takes into account the impact of transport on the area. As proposed, this date will coincide with the date by which sources will be required to comply with the NO
Therefore, EPA is establishing an attainment date which must be as expeditious as practicable, but no later than November 15, 2004. If the submissions by Missouri and Illinois required as a result of the reclassification indicate that the area can practicably attain sooner than November 2004, EPA would adjust the date to reflect the earlier date, consistent with section 181(a)(1) of the Act.
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is required to determine whether regulatory actions are significant and therefore should be subject to Office of Management and Budget (OMB) review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, under paragraph (1), that the rule may “have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities.”
The Agency has determined that the determination of nonattainment would result in none of the effects identified in section 3(f) of the Executive Order. Under section 181(b)(2) of the CAA, determinations of nonattainment are based upon air quality considerations and the resulting reclassifications must occur by operation of law. They do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classifications that, in turn, are triggered by air quality values, determinations of nonattainment and reclassification cannot be said to impose a materially adverse impact on state, local, or tribal governments or communities.
Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This action is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.
On November 6, 2000, the President issued Executive Order 13175 (65 FR 67249) entitled “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 took effect on January 6, 2001, and revokes Executive Order 13084 (Tribal Consultation) as of that date. EPA developed this final rule, however, during the period when Executive Order 13084 was in effect; thus, EPA addressed tribal considerations under Executive Order 13084. Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.
Today's finding of failure to attain does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this finding of failure to attain.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
Determinations of nonattainment and the resulting reclassification of nonattainment areas by operation of law under section 181(b)(2) of the CAA do not in and of themselves create any new requirements. Instead, this rulemaking only makes a factual determination, and does not directly regulate any entities. See 62 FR 60001, 60007-8, and 60010 (November 6, 1997) for additional analysis of the RFA implications of attainment determinations. Therefore, pursuant to 5 U.S.C. 605(b), I certify that today's final action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA believes, as discussed above, that the finding of nonattainment is a factual determination based upon air quality considerations and that the resulting reclassification of the area must occur by operation of law. Thus, the finding does not constitute a Federal mandate, as defined in section 101 of the UMRA, because it does not impose an enforceable duty on any entity.
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of
This determination of nonattainment and the resulting reclassification of a nonattainment area by operation of law will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because this action does not, in and of itself, impose any new requirements on any sectors of the economy, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to these actions.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involved technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 18, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401,
Environmental Protection Agency (EPA).
Proposed delay of effective date.
EPA is proposing to delay the effective date of its final rule entitled “Determination of Nonattainment as of November 15, 1996, and Reclassification of the St. Louis Ozone Nonattainment Area; States of Missouri and Illinois,” published elsewhere in today's
During the pre-effective date period, EPA would also continue to work on completing a separate rulemaking on the issue of whether St. Louis should be granted an extension of its attainment date pursuant to EPA's Guidance on “Extension of Air Quality Attainment Dates for Downwind Transport Areas,” published March 25, 1999, and continue to retain a moderate classification. In this action, EPA is also stating its intent to propose to withdraw its final March 12 determination of nonattainment and notice of reclassification, if EPA approves an attainment date extension before the effective date of that final action.
In an order issued January 29, 2001, and amended on February 14, 2001, the United States District Court for the District of Columbia directed EPA to determine, by March 12, 2001, whether the St. Louis area had attained the applicable ozone standard under the Clean Air Act (CAA), and ordered EPA to publish any required notice resulting from its determination by March 20, 2001.
The Court, in a limited review to determine whether EPA's planned course of action would contravene the Court's order, indicated that EPA, by signing a determination by March 12 and publishing Notice by March 20, would comply with the Court's Order. The Court noted that it lacked jurisdiction to assess the propriety of the remainder of EPA's planned course of action.
Comments must be received on or before April 18, 2001.
Written comments should be mailed to Royan W. Teter, Air Planning and Development Branch, U.S. Environmental Protection Agency, 901 North 5th Street, Kansas City, Kansas 66101; and Edward Doty, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Royan W. Teter, EPA Region 7, (913) 551-7609; or Edward Doty, EPA Region 5, (312) 886-6057.
Throughout this document whenever “we, us, or our” is used, we mean EPA.
In November 1998, the Sierra Club and the Missouri Coalition for the Environment filed a complaint in the United States District Court for the District of Columbia against EPA (
With respect to the reclassification issue, EPA acknowledged that it had a duty to make a determination on the attainment status of the area by May 15, 1997, and that it had not made a determination. EPA asked the Court for a schedule for a final resolution that would allow the states to make the necessary submissions, so that EPA could determine whether the area could qualify for an attainment date extension.
The Court dismissed all of the claims relating to failure of EPA to act on the Missouri SIP revisions. On the reclassification issue, the Court in an opinion and Order dated January 29, 2001, rejected the Sierra Club request that the Court order EPA to publish a particular determination (that the area failed to attain the standard) and rejected Sierra Club's request to make the determination retroactive to May 1997. However, the Court noted that the Act required that EPA make an attainment determination. The Court also noted that a “determination of nonattainment” would result in a higher classification by operation of law.
The Court stated that it would require EPA to “reach its statutorily required determination promptly,” and ordered EPA to make its determination, no later than March 12, 2001, “whether the St. Louis NAA attained the requisite ozone standards.” It also ordered EPA to publish a notice of the determination, as required by the Act, by March 12, 2001. EPA subsequently requested and the Court granted an extension to March 20, 2001, for publishing notice. Court Order of February 14, 2001. Our rule entitled “Determination of Nonattainment as of November 15, 1996, and Reclassification of the St. Louis Ozone Nonattainment Area; States of Missouri and Illinois,” is published elsewhere in today's
EPA believes that the proposed additional delay of the effective date is necessary to allow regulated entities in St. Louis a period of time to prepare for the new requirements that are applicable to serious nonattainment areas. For example, on the effective date of the reclassification to serious, under the Illinois SIP, the cutoff for “major sources” will be reduced from 100 tons of emissions on an annual basis to 50 tons. Thus, a number of facilities with volatile organic compound or nitrogen oxide emission levels between 50 and 100 tons per year may become subject to major source requirements for the first time.
EPA will continue to work on completing a separate rulemaking on the issue of whether St. Louis should be granted an extension of its attainment date pursuant to EPA's “Guidance on Extension of Air Quality Attainment Dates for Downwind Transport Areas,” 64 FR 14441 (March 25, 1999), and remain classified as a moderate nonattainment area. If EPA takes final action to delay the effective date for the nonattainment determination, EPA could be in a position to take final action to approve the extended attainment date for St. Louis before the nonattainment determination becomes effective. Section 181(b)(2)(A) of the Act requires that EPA determine attainment within six months of the attainment date. If the attainment date were extended, there would be a new deadline for the determination that would arise only in the future.
EPA is seeking public comment on whether it would be appropriate to delay the effective date of its final rulemaking until June 29, 2001, in order to allow sources to prepare to meet new requirements and also allow EPA and the states to complete rulemaking actions regarding the transport-based attainment date extension. In light of the fact that Missouri has submitted its final SIP submissions and Illinois has made draft submissions and is expected to submit its final SIP submissions by the end of April, EPA believes that it will be able to complete rulemaking on the attainment date extension request by June 29, 2001. The public comment period on delaying the effective date will run for 30 days after publication of this document.
As noted above, in an order issued January 29, 2001, and amended on February 14, 2001, the United States District Court for the District of Columbia directed EPA to determine, by March 12, 2001, whether the St. Louis area had attained the applicable ozone standard under the CAA, and ordered EPA to publish any required notice resulting from its determination by March 20, 2001.
The Court, in a limited review to determine whether EPA's planned course of action would contravene the Court's order, indicated that EPA, by signing a determination by March 12 and publishing the required Notice by March 20, would comply with the Court's Order. The Court noted that it lacked jurisdiction to assess the propriety of the remainder of EPA's planned course of action.
EPA has now received Missouri's final SIP submittal which would allow it to be considered for an attainment date extension, and has also received submissions from Illinois for parallel processing. EPA expects shortly to sign a proposal with respect to these submissions, and to take final action on these submissions and an attainment date extension by June 29, 2001, the delayed effective date proposed herein. Such a course would harmonize the need to allow the Agency to fulfill its duty to take into account upwind transport, while adhering to a fixed and very near-term schedule. It would also allow EPA to apply to the St. Louis area the attainment date extension policy which EPA has applied in other areas affected by transport. Recently EPA issued three final rulemakings granting requests for attainment date extensions based on its policy in three ozone nonattainment areas: Washington, DC, Greater Connecticut, and Springfield, Massachusetts. 66 FR 586 (January 3, 2001), 66 FR 634 (January 3, 2001), 66 FR 666 (January 3, 2001). In addition, EPA has proposed granting attainment date extensions to Louisville, Kentucky, and Beaumont, Texas. 64 FR 27734 (May 21, 1999), 64 FR 12854 (April 16, 1999), 65 FR 81786 (December 27, 2000).
For the reasons stated above, EPA proposes to delay to June 29, 2001, the effective date of the final rule entitled “Determination of Nonattainment as of November 15, 1996, and Reclassification of the St. Louis Ozone Nonattainment Area; States of Missouri and Illinois,” published elsewhere in today's
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is required to determine whether regulatory actions are significant and therefore should be subject to Office of Management and Budget (OMB) review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, under paragraph (1), that the rule may “have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.”
The Agency has determined that this proposed effective date modification would result in none of the effects identified in section 3(f) of the Executive Order. This proposal would merely delay the effective date of EPA's determination of nonattainment and would not impose any new requirements on any sectors of the economy, or on state, local, or tribal governments or communities.
Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed action is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.
On November 6, 2000, the President issued Executive Order 13175 (65 FR
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This proposal to delay the effective date of EPA's nonattainment determination does not create any new requirements. Instead, this rulemaking would only delay the effective date of a factual determination, and would not regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), I certify that today's proposal would not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA believes, as discussed above, that the delay of the effective date of a determination of nonattainment would not constitute a Federal mandate, as defined in section 101 of the UMRA, because it would not impose an enforceable duty on any entity.
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.
This proposed delay of the effective date of a nonattainment determination would not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because this action does not impose any new requirements on any sectors of the economy, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed action.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This proposed action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Employment and Training Administration, Labor.
Notice; request for comments.
The purpose of this notice is to encourage comments on the Department of Labor's approach to the implementation of changes to the Senior Community Service Employment Program (SCSEP) occasioned by the revisions to Title V of the Older Americans Act (OAA) by the Older Americans Act Amendments 2000 (Pub. L. 106-501) (dated November 13, 2000). Comments are welcome on a variety of subjects, including: (1) Issues and concerns that should be addressed in regulations; (2) issues and concerns that should be addressed in policy guidance; (3) suggestions and comments on the overall implementation plan, such as consultation strategies; (4) specific suggestions on the approach that should be taken in implementing any or all of the new title V provisions; and (5) suggestions on revisions that should be made to the existing title V regulations which were published in the
The Department invites written comments on title V of OAA in response to this notice. Comments received on or before May 18, 2001 will be considered in the development of regulations and policy guidance, as well as in the overall implementation strategy. The Department has already begun consultation with various individuals within the older worker employment system and will continue these consultations throughout the implementation process.
Submit written comments to the Employment and Training Administration, Division of Older Worker Programs, 200 Constitution Avenue, NW., Room N4644, Washington, DC 20210, Attention: Mr. Erich W. (“Ric”) Larisch.
All comments will be available for public inspection and copying during normal business hours at the address listed above. Copies of title V of the OAA are available at the address above, as well as on the SCSEP website at
Mr. Erich W. (“Ric”) Larisch, Division of Older Worker Programs, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N4644, Washington, D.C. 20210, Telephone: (202) 693-3742 (voice), TTY (202) 693-2871 (these are not toll-free numbers).
This paper provides an overview of changes to the Senior Community Service Employment Program (SCSEP) due to the reauthorization of the Older Americans Act (OAA), signed into law on November 13, 2000. The Older Americans Act is the major vehicle for the organization and delivery of supportive and nutrition services to older persons, authorizing funding for programs including SCSEP, Meals on Wheels, elder abuse prevention activities, and a new National Family Caregiver Support Program.
SCSEP, administered by the U.S. Department of Labor under Title V of the OAA, is the only Federally sponsored job creation program targeted to low-income older Americans. The program subsidizes part-time community service jobs for low-income persons age 55 years and older who have poor employment prospects. Approximately 100,000 program enrollees annually work in a wide variety of community service jobs, including nurse's aides, teacher aides, librarians, clerical workers and day care assistants. Clearly, SCSEP benefits not only its program participants, but also the communities in which they serve. The Department of Labor allocates funds to operate the program to State agencies on aging and 10 national organizations. SCSEP grantees are represented on State and local business-led boards (Workforce Investment Boards) that provide strategic planning and oversight of workforce development activities, established under the bipartisan Workforce Investment Act of 1998 (WIA).
As the baby boom generation ages, the demand for employment and training services and income support for low-income older persons will substantially increase. The Urban Institute projects that there will be 1.4 million more disadvantaged adults over the age of 55 in the year 2005 than in 1995. Low-income seniors generally must continue working, which will put added strain on workforce investment resources and the One-Stop system, which provides a single point of contact for job seekers and employers seeking information about local workforce development activities. The OAA Amendments require improved integration with WIA, which will not only support SCSEP reforms, but will also help the workforce investment system prepare for the greater number of older workers it will serve outside of SCSEP. One-Stops can benefit from the experience SCSEP has gained in serving this population.
SCSEP provisions of the OAA Amendments are designed to:
• Enhance employment and training opportunities for seniors by reinforcing connections with the broader workforce investment system;
• Establish an enhanced performance accountability system to hold each grantee accountable for attaining quality levels of performance with respect to core measures, such as customer satisfaction and placement in unsubsidized employment;
• Improve the ability of States to coordinate services, by providing for the broad participation of stakeholders in the development of an annual plan to ensure an equitable distribution of projects within the State;
• Strengthen administrative procedures by incorporating fiscal accountability provisions similar to the Workforce Investment Act, including definitions of administrative and programmatic costs and the application of uniform cost principles; and
• Revise the distribution of funding.
The OAA Amendments strengthen connections between SCSEP and WIA in order to provide older individuals with easier access to appropriate services while minimizing duplication of services. In 1998, WIA included SCSEP as a required partner in the One-Stop delivery system to ensure that older workers have access to information about the range of employment-related services available to them. The OAA Amendments build on that partnership by requiring that all SCSEP grantees in an area coordinate their activities through the One-Stop delivery system. The legislation also clarifies that service strategies or participant assessments of skills, interests, and circumstances provided under WIA should be accepted by SCSEP programs (and vice versa).
WIA provides for three levels of services—core, intensive, and training—with service at one level a prerequisite for moving to the next level. Localities establish gateway activities that lead from participation in core to intensive and training services. The OAA Amendments allow Local Workforce Investment Boards (Local Boards) to deem SCSEP participants eligible for WIA-funded intensive and training services without first accessing core services.
Other OAA provisions parallel requirements in WIA that link SCSEP to the new workforce investment system, such as the requirement that SCSEP programs participate as a One-Stop partner. As a One-Stop partner, SCSEP programs must: (1) provide core services through the One-Stop system; (2) use a portion of funds to create and maintain the One-Stop system; (3) enter into a memorandum of understanding with the Local Board relating to the operation of the One-Stop system; and (4) participate in the operation of the One-Stop system. A representative of Title V grantees must also be a member of the Local Board.
The OAA Amendments formally recognize unsubsidized employment as a program goal, while maintaining the community service nature of the program. By moving able participants into unsubsidized employment, SCSEP can increase the number of eligible individuals who have access to the program's broad array of employment services and opportunities.
The OAA Amendments create an accountability system for all SCSEP projects to promote continuous improvement in performance with respect to required measures and consequences for grantee inability to meet performance expectations. The Department will establish performance measures for grantees in order to assess their performance. Required measures include:
• The placement and retention of participants in unsubsidized employment;
• Customer satisfaction of enrollees, employers, and host agencies;
• The number of persons served, particularly those with the greatest economic or social need, poor employment history or prospects, and those more than 60 years old; and
• Community services provided.
Should grantees prove unable to meet performance expectations, their funding may be subject to competition. The Department of Labor will evaluate each grantee within 120 days after the end of the Program Year that ends June 30. It will provide technical assistance and require a corrective action plan for those grantees that are unable to meet their performance levels. Grantees that do not reach their performance levels after a second consecutive program year will have 25 percent of their funds awarded to another entity through competition. After a third consecutive year of underperformance the Department will oversee a competition for the grantee's entire grant award.
Governors are responsible for overseeing all aspects of performance in their State programs. In addition, Governors may request the Department of Labor to review the performance of any national grantee in the State.
The Governor of each State plays an important role in the planning and development of SCSEP services in the State. The Governor must submit an annual Senior Employment Services Coordination Plan (the “State Plan”) to ensure greater coordination of SCSEP activities within a State among State and national grantees, and to provide for an equitable allocation of program resources. In its State Plan each State must identify the number and distribution of eligible persons in the State (including those with greatest economic and social need, and minorities), their employment situations and skills, and the localities and populations where community service projects are most needed. States must also describe their plans to coordinate SCSEP with WIA activities.
In developing the State Plan, Governors must select and work with representatives from aging and other organizations, including:
• State and Area Agencies on Aging;
• State and Local Workforce Investment Boards, formed under the Workforce Investment Act;
• Public and private nonprofit providers of employment services, including all SCSEP grantees in the State; and
• Social service organizations.
The OAA Amendments contain provisions to strengthen the administration of SCSEP. Under the legislation, the Department will determine the initial eligibility of grantees through 14 responsibility tests. The OAA Amendments also establish uniform definitions of program and administrative costs and strengthen current Departmental regulations that stipulate that not less than 75 percent of Federal funds go directly to program participants in the form of wages and fringe benefits.
Through the OAA Amendments, Congress sought to ensure that grantees and subgrantees received sufficient administrative resources to cover their costs. Therefore, the legislation requires grantees to pass through a sufficient amount of their administrative cost allocation to the subgrantee. The OAA Amendments also specify that grantees must comply with OMB Circulars on cost allocation, cost principles, and administrative requirements, and that they must maintain records and submit reports about their SCSEP activities to the Department of Labor.
The legislation continues to authorize at least 70,000 part-time employment positions. The overwhelming majority of funds will be distributed so that grantees receive at least the amount necessary to maintain their fiscal year 2000 level of activities. Any remaining funds will be distributed to each State on the basis of its relative population aged 55 and over, and by the State's relative per capita income. Currently, national grantees receive 78 percent of the SCSEP appropriation and States receive 22 percent.
The legislation specifies that the first $35 million in funding appropriated above the amount that is necessary to maintain the current level of activities must be allocated such that 75 percent of the funding is reserved for State agency grantees, and the remaining 25 percent is allotted to national grantees. Any funds appropriated above this $35 million increase are to be allotted on an equal basis, with 50 percent reserved to State agency grantees and 50 percent reserved to private or public nonprofit agencies and organizations.
The OAA Amendments became effective upon enactment. Nevertheless, the implementation of some provisions will be required once regulations have been finalized, and the Department will issue further guidance and regulations on these requirements in the early summer of 2001. States must submit their first State Plans early in 2001, however. The Department will provide additional information on the required State Plan submission in the near future.
Attached is a table that compares current law with revisions effected by the Older Americans Act Amendments of 2000 (Pub. L. 106-501).
Office of Personnel Management.
Interim rule with request for comments.
The Office of Personnel Management is amending its regulations to include new rules for correcting certain retirement coverage errors. We are amending the regulations to implement the provisions of the Federal Erroneous Retirement Coverage Corrections Act (the FERCCA), title II of Public Law 106-265. The regulations will allow agencies and OPM to correct affected retirement coverage errors.
This interim rule is effective March 19, 2001. We must receive your comments by April 18, 2001.
Send comments on this interim rule to Mary Ellen Wilson, Director, Retirement Policy Center, Office of Personnel Management, Washington, DC 20415-3200. You may also submit comments by sending electronic mail (E-mail) to:
Cynthia Reinhold, 202-606-0299.
The Office of Personnel Management (OPM) is amending parts 831, 841, and 846 of title 5, Code of Federal Regulations, and adding a new part 839, to implement the Federal Erroneous Retirement Coverage Corrections Act (FERCCA), title II of Public Law 106-265, which was enacted on September 19, 2000. The law provides a set of remedies to correct substantive retirement coverage errors. The law requires OPM to issue implementing regulations.
Participation in the Civil Service Retirement System (CSRS), the Civil Service Retirement System Offset (CSRS Offset) plan, the Federal Employees' Retirement System (FERS), and the Thrift Savings Plan (TSP) is governed by title 5 of the United States Code. Social Security coverage for benefit purposes is governed by section 210 of the Social Security Act. Sections 3101(a) and 3111(a) of the Internal Revenue Code of 1986 govern the collection and payment of Social Security taxes. Coverage under these Federal retirement plans and Social Security is mandatory for employees who meet the statutory requirements. Prior to passage of this legislation, neither OPM, the Treasury Department, nor the Federal Retirement Thrift Investment Board had the statutory authority to waive the rules for retirement plan or Social Security participation. When errors in retirement coverage occurred, correction was mandatory. The employee was “forced,” retroactively, into a different retirement plan. The mandatory retroactive correction of a retirement coverage error can place an employee in a difficult financial situation with regard to retirement planning.
Retirement coverage errors that prevent an employee from saving for retirement are usually the most damaging because it is extremely difficult to make up the lost opportunity to save. These are primarily errors that cause an employee to believe that he or she is covered by CSRS rather than FERS. The FERS basic benefit is a little over half that of the CSRS benefit. To obtain retirement income under FERS that is similar to CSRS, the employee needs to save for retirement in the TSP or elsewhere. Because of the error, the employee may not have contributed to the TSP, believing that CSRS benefits were enough to meet retirement needs. If the error is undiscovered for a long period, the employee is forced to begin saving during the years after the error is corrected. In the absence of the error, the employee could have saved for retirement over his or her entire career.
• With newly discovered retirement coverage errors,
• With an error that was discovered and corrected in the past,
• Who have retired from Federal service, or
• Who are survivors of an individual with a retirement coverage error.
For an individual who is erroneously put in CSRS and belonged in FERS, the choice is between CSRS Offset or FERS. CSRS Offset coverage is for an employee mandatorily covered by Social Security and CSRS, and provides, through combined CSRS and Social Security benefits, a benefit that is at least equivalent to, if not more than, CSRS. While working, the individual earns retirement credits under the CSRS formula and also adds to any Social Security benefits already earned, increasing career earnings under Social Security and, as a result, the Social Security benefit. At retirement, OPM computes the CSRS Offset benefit under the same rules that apply to other CSRS retirees. At age 62 (when the individual becomes eligible for Social Security benefits), OPM reduces, or offsets, the CSRS retirement benefit. This reduction is based on the value of the Social Security benefit earned during CSRS Offset service. For a person erroneously put in CSRS, CSRS Offset provides the benefit the person could reasonably have expected to receive without requiring a change in retirement saving behavior.
The FERCCA disqualifies certain separated employees from making a choice between retirement plans. Separated employees whose retirement coverage error was previously discovered and corrected to FERS and later took a refund of FERS deductions or a distribution from the TSP, are not eligible to elect between FERS and CSRS Offset. Their coverage will remain FERS for the period of service affected by the retirement coverage error.
Some individuals do not have a choice about their retirement coverage. If an individual should have had Social Security coverage during Federal employment, then he or she must have Social Security coverage in addition to Federal retirement coverage. In these cases, the FERCCA does not provide a choice about Social Security coverage. If an individual was incorrectly placed in CSRS rather than CSRS Offset, then the retirement coverage must be corrected to CSRS Offset. Likewise, if an individual was incorrectly placed in CSRS Offset instead of CSRS, then the retirement coverage must be corrected to CSRS. Although the individual cannot choose to keep Social Security coverage, the Social Security Administration will allow credit for all but the last 3 years before the retirement coverage was corrected.
In addition, an employee who was erroneously excluded from retirement coverage under CSRS, CSRS Offset, or
The Internal Revenue Code's 3-year statute of limitations on retroactive taxes applies to Social Security tax amounts that were not withheld during the period of the error. This means that, for an employee erroneously in CSRS, any Social Security taxes that should have been withheld from pay that was subject to Social Security taxes but not CSRS deductions (such as overtime or awards), must be collected from the employee, but not for periods beyond the 3-year statute. However, OPM has the authority under the FERCCA to reimburse an employee for payments of Social Security taxes that were not withheld because of a retirement coverage error.
In addition, OPM may waive repayment of settlements employees received after suing for damages from a coverage error. If an employee has settled a dispute over having been forced retroactively into FERS, the employee generally should not keep the amount received and regain CSRS Offset benefits under the FERCCA. However, if the employee can show that getting CSRS Offset coverage does not fully compensate him or her, the FERCCA authorizes OPM to allow the CSRS Offset election with partial or no repayment of the settlement.
If a retirement coverage error led to a deposit being erroneously computed under FERS rules, when it should have been computed under CSRS rules, the FERCCA allows credit for the service without actual payment of the deposit. The balance of the deposit owed at retirement forms the basis for an actuarial reduction in the retirement or survivor benefit. The deposit is considered paid by a life-time reduction in the benefit. This provision applies to all deposits that are computed under CSRS rules rather than FERS rules because of a retirement coverage error, regardless of the length of the error.
Section 831.205 requires that any future placement in CSRS will have to be approved by OPM in situations where a CSRS employee has had a break in CSRS service of more than 1 year.
Sections 831.301 and 831.303 provide a new method for payment of certain deposits for civilian and military service. The FERCCA permits credit for certain types of service that are not subject to retirement deductions without actual payment of a service credit deposit. The deposit requirement may be satisfied instead by an actuarial reduction in the annuity that continues for the life of the retiree or survivor. This alternative is also available to individuals whose errors lasted for less than 3 years of service. It applies to individuals who owed a FERS deposit, and because of a retirement coverage error, learn that the deposit must be computed under CSRS rather than FERS rules.
A new part 839 is established in question-and-answer format.
Section 841.604 is amended to allow OPM to pay interest to individuals who overpaid the amount of a service credit deposit because of a retirement coverage error. Interest is payable only if the error lasted for at least 3 years of service after December 31,1986.
Section 846.204(b)(2) is amended to clarify that this section (concerning deemed elections of FERS coverage) applies only to errors lasting for less than 3 years of service. If the error lasted for at least 3 years of service, then it is corrected in accordance with the newly established part 839.
Under section 553(b)(3)(B) and (d)(3) of title 5, United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking and for making these rules effective in less than 30 days. These regulations will affect the operation of all Federal agencies on and after March 19, 2001. Publication of a general notice of proposed rulemaking would be contrary to the public interest because it would delay the intended relief provided to individuals harmed by a retirement coverage error.
I certify that this rule will not have a significant economic impact on a substantial number of small entities because the rule only affects Federal employees, agencies, and benefits
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
Administrative practice and procedure, Alimony, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental relations, Law enforcement officers, Pensions, Reporting and recordkeeping requirements, Retirement.
Administrative practice and procedure, Annuities, Claims, Employment, Employment taxes, Government employees, Pensions, Reporting and recordkeeping requirements, Retirement, Social Security.
Administrative practice and procedure, Air traffic controllers, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental relations, Law enforcement officers, Pensions, Retirement.
Administrative practice and procedure, Air traffic controllers, Firefighters, Government employees, Law enforcement officers, Pensions, Retirement.
5 U.S.C. 8347; Sec. 831.102 also issued under 5 U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec. 831.108 also issued under 5 U.S.C. 8336(d)(2); Sec. 831.114 also issued under 5 U.S.C. 8336(d)(2) and section 7001 of Pub. L. 105-174, 112 Stat. 58; Sec. 831.201(b)(1) also issued under 5 U.S.C. 8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); Sec. 831.201(g) also issued under sections 11202(f), 11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 831.201(g) also issued under sections 7(b) and 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.201(i) also issued under sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.204 also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec. 831.205 also issued under section 2207 of Pub. L. 106-265, 114 Stat. 784; Sec. 831.301 also issued under section 2203 of Pub. L. 106-265, 114 Stat. 780; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2) and section 2203 of Pub. L. 106-235, 114 Stat. 780; Sec. 831.502 also issued under 5 U.S.C. 8337; Sec. 831.502 also issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp. p. 317; Sec. 831.663 also issued under 5 U.S.C. 8339(j) and (k)(2); Secs. 831.663 and 831.664 also issued under section 11004 (c)(2) of Pub. L. 103-66, 107 Stat. 412; Sec. 831.682 also issued under section 201(d) of Pub. L. 99-251, 100 Stat. 23; subpart V also issued under 5 U.S.C. 8343a and section 6001 of Pub. L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also issued under section 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388-328.
If an agency determines that an employee is CSRS-covered, the agency must submit its determination to OPM for written approval. This requirement does not apply if the employee has been employed in Federal service with CSRS coverage within the preceding 365 days.
(a) * * *
(3) * * *
(ii) For an employee, Member, or survivor who is entitled, or upon application would be entitled, to monthly old-age or survivors benefits under section 202 of the Social Security Act (41 U.S.C. 402) based on the individual's wages or self-employment income, the employee, Member, or survivor has completed a deposit in accordance with subpart U of this part, or the annuity has been reduced under § 831.303(d), for each full period of such military service performed after December 1956. If a deposit has not been completed or the annuity has not been reduced under § 831.303(d), periods of military service performed after December 31, 1956 (other than periods of military service covered by military leave with pay from a civilian position), are excluded from credit from and after the first day of the month in which the individual (or survivor) becomes entitled, or upon proper application would be entitled, to Social Security benefits under section 202. Military service performed prior to January 1957 is included in the computation of the annuity regardless of whether a deposit is made for service after December 31, 1956.
(b) * * *
(3) The employee, Member, or survivor has completed a deposit in an amount equal to 7 percent of his or her basic pay under section 204 of title 37, United States Code, (plus interest, if any) or the annuity has been reduced under § 831.303(d), for each full period of such military service performed after December 1956. * * *
(d)(1)
(i) Civilian service that was not subject to retirement deductions, or
(ii) Military service performed after December 31, 1956, will receive credit for the service without payment of the deposit if, because of an erroneous retirement coverage determination, the service is subsequently credited under chapter 83 of title 5, United States Code (CSRS rules).
(2)(i) The beginning monthly rate of annuity payable to a retiree whose annuity includes service credited under paragraph (d)(1) of this section and service creditable under CSRS rules that would not be creditable under FERS rules is reduced by an amount equal to the CSRS deposit owed, or unpaid balance thereof, divided by the present value factor for the retiree's age (in full years) at the time of retirement. The result is rounded to the next highest dollar amount, and is the monthly actuarial reduction amount.
(ii)(A) The beginning monthly rate of annuity payable to a survivor whose annuity includes service credited under paragraph (d)(1) of this section is reduced by an amount equal to the CSRS deposit owed, or unpaid balance thereof, divided by the present value factor for the survivor's age (in full years) at the time of death. The result is rounded to the next highest dollar
(B) The survivor annuity is not reduced if the employee annuity was reduced under paragraph (d)(2)(i) of this section.
(3) For the purpose of paragraph (d)(2) of this section, the terms “present value factor” and “time of retirement” have the same meaning as in § 831.2202 of this chapter.
Title II, Pub. L. 106-265, 114 Stat. 770.
(a) The Federal Erroneous Retirement Coverage Corrections Act (FERCCA) is Title II of Public Law 106-265, enacted September 19, 2000. The FERCCA addresses the problems created when employees are in the wrong retirement plan for an extended period.
(b) Generally, you must be in the wrong retirement plan for at least 3 years of service after December 31, 1986, before the FERCCA applies to you. Depending on the type of error, the FERCCA provides:
(1) A choice between retirement plans,
(2) New rules for crediting civilian and military service that was not subject to retirement deductions,
(3) Payment of lost earnings on employee make-up contributions to the Thrift Savings Plan, and
(4) Payment of certain out-of-pocket expenses that are a direct result of a retirement coverage error.
(a) These rules apply to employees who had a qualifying retirement coverage error. For all purposes, a qualifying retirement coverage error must have lasted for at least 3 years of Federal service after December 31, 1986, as stated in the definitions section (§ 839.102). It does not matter whether you have left Federal service, retired, or have been reemployed as an annuitant, as long as you had a qualifying retirement coverage error. In addition, the survivor of an employee, separated employee, or retiree who had a qualifying retirement coverage error is also covered by these rules.
(b) An error that lasted less than 3 years of Federal service after December 31, 1986, is not qualifying under the rules in this part.
(c) For errors lasting less than 3 years that involve erroneous placement in FERS during a period that the employee was eligible to elect FERS, see § 846.204(b) of this chapter for guidance.
The FERCCA does not provide an election opportunity in all situations where there was a qualifying retirement coverage error. Even if your error is one that provides an election opportunity under the FERCCA, certain events may disqualify you from making an election under the FERCCA. If you had a qualifying retirement coverage error, your eligibility to choose your retirement plan may be affected by the situations described in the next seven questions.
If your qualifying retirement coverage error was previously corrected to FERS and you then received a refund of your FERS retirement deductions, you are not allowed to elect retirement plan coverage under the FERCCA.
(a) You may not make a retirement coverage election if your qualifying retirement coverage error was previously corrected to FERS, and you later received one of the following TSP withdrawals:
(1) A TSP annuity after separation from service, but before receiving a FERS annuity; or
(2) A single payment or monthly payments after separation from service; or
(3) An age-based in-service withdrawal.
(b) If you received an automatic cashout of your TSP account after you separated (because your account balance was $3,500 or less), or if you received a financial hardship in-service withdrawal, you may make a retirement coverage election.
No, you may make an election of retirement coverage under the FERCCA if you made a TSP withdrawal as a retiree.
You can make a retirement coverage election under the FERCCA if OPM waives repayment of the entire amount under § 839.1202. If OPM does not waive the entire repayment, you must pay back the amount that OPM did not waive.
No, OPM regulations allow certain employees who were put in FERS in error to choose between remaining in FERS or being covered under their automatic retirement coverage. (See § 846.204(b)(2) of this chapter). If you already had this opportunity to choose your retirement coverage; then you may not make an election of retirement coverage based on the same error under these rules.
Yes, but if you want to elect FERS you need your former spouse's consent to the election. If you are subject to a qualifying court order and want to elect FERS, the requirements in § 846.722 of this chapter (Former Spouse's Consent to an Election of FERS Coverage) apply to you.
If the employee dies before making an election of retirement coverage under the FERCCA, all eligible potential survivors, that is, both the current and any former spouses, must consent to an election of FERS coverage. If they do not all consent, the election cannot be made.
If you were in CSRS or CSRS Offset and should have been in FERS or Social Security-Only, or if you were in FERS and should have been in CSRS, CSRS Offset, or Social Security-Only, then you have an election opportunity. This is summarized in the following chart:
You must be in the wrong retirement plan for at least 3 years of Federal service after December 31, 1986. You need not be in the same wrong retirement plan during the entire 3-year period. If you had more than one type of erroneous retirement coverage, then you will have a retirement plan election under these rules if one of the errors is of a type that qualifies you for an election.
(a) If you are an employee, your employer has your personnel records and will review them to determine whether an error has been made. Therefore, you should notify your employer's human resources office if you believe an error has been made in your case. Notify your current employer even if you believe the error occurred while you were employed at another agency.
(b) If you are not currently employed by the Federal Government, you should notify OPM at: U.S. Office of Personnel Management, Retirement Operations Center, Post Office Box 45, Boyers, Pennsylvania 16017. You can also contact us by electronic mail at FERCCA@OPM.GOV. Notify OPM regardless of whether you are a retiree, survivor, or separated employee.
(c) You may also get additional information about the FERCCA and whether or not you qualify at: www.opm.gov/benefits/correction.
(a) Your employer must provide you with written notice of the error. The notice must include an explanation of the error, your options regarding the error, and any time limits that apply.
(b) Your employer must inform you if they find that you do not have a retirement coverage error.
The FERCCA requires your employer to take reasonable and appropriate measures to identify individuals affected by a qualifying retirement coverage error and notify them of their rights under the law.
(a) If your error has not previously been corrected, the 6-month time limit on making an election of retirement coverage under the FERCCA (see § 839.611(a)) does not begin to run until you are notified of the error.
(b) If your error was previously corrected, the 18-month time limit on making an election of retirement coverage ends on September 19, 2002. Employers and OPM may extend the time limit if you were prevented from making a timely election due to a cause beyond your control (see § 839.612).
If you were placed in CSRS or CSRS Offset due to a qualifying retirement coverage error and you should have been in FERS, you may elect CSRS Offset or FERS. If you were placed in CSRS or CSRS Offset due to a qualifying retirement coverage error and you should have been in Social Security-Only, you may elect CSRS Offset or Social Security-Only. This is summarized in the following chart:
If you were placed in FERS due to a qualifying retirement coverage error and you should have been in CSRS, you may elect FERS or CSRS. If you were placed in FERS due to a qualifying retirement coverage error and you should have been in CSRS Offset, you may elect FERS or CSRS Offset. If you were placed
If you were moved out of CSRS or CSRS Offset due to a qualifying retirement coverage error and were placed in FERS, you may elect CSRS Offset or remain in FERS. If you were moved out of CSRS or CSRS Offset due to a qualifying retirement coverage error and were placed in Social Security-Only, you may elect CSRS Offset or remain in Social Security-Only. This is summarized in the following chart:
An employee who was erroneously placed in FERS during a time when the employee should have had an opportunity to elect FERS is allowed to keep the erroneous FERS coverage. If the employee was given an opportunity to remain in FERS, then the employee is disqualified from making an election of retirement coverage under the FERCCA (see § 839.221). If you were not allowed to remain in FERS and were placed in CSRS due to a qualifying retirement coverage error, you may elect FERS or remain in CSRS. If you were not allowed to remain in FERS and were placed in CSRS Offset due to a qualifying retirement coverage error, you may elect FERS or remain in CSRS Offset. If you were not allowed to remain in FERS and were placed in Social Security-Only due to a qualifying retirement coverage error, you may elect FERS or remain in Social Security-Only. This is summarized in the following chart:
You may make your election using the form issued by OPM. If you are an employee, your employer will provide you with this form. If you are not a current employee, OPM will provide the form.
(a) If your qualifying retirement coverage error was not previously corrected and you fail to make an election within the time limit under § 839.611(a), your retirement coverage is summarized in the following chart:
(b) If your qualifying retirement covereage error was previously corrected and you fail to make an election within the time limit under § 839.611(b), you are considered to have elected to remain in your current retirement plan.
Your election is irrevocable once your employer or OPM processes it. If you do not make a timely election, the resulting coverage (see § 839.602) is also irrevocable.
Your election is effective on the date that the retirement coverage error first occurred. This means that your election will be retroactive, or will change your retirement coverage for a period of service in the past.
(a) If your qualifying retirement coverage error was not previously corrected, you have 6 months from the date you receive notice of the error under § 839.302 to make an election.
(b) If your qualifying retirement coverage error was previously corrected, the time limit for making an election expires on September 19, 2002.
(a) If you are an employee, your employer can waive the time limit for making an election if you request such a waiver in writing. The employer would have to determine that you exercised due diligence, but could not make an election within the time limit because of circumstances beyond your control.
(b) Your employer's decision not to waive the time limit under this section must be in writing and include notice of your right to request OPM to reconsider the decision.
(c) OPM can waive the time limit for separated employees, retirees, and survivors who exercised due diligence but could not make an election because of circumstances beyond their control if a request is submitted to OPM, and OPM concludes that a waiver is justified.
If you were erroneously in CSRS, CSRS Offset, or Social Security-Only at the time you elected FERS and you have an election opportunity under the FERCCA, you can choose whether you want the FERS election to remain in effect. However, you may not choose whether you want your FERS election to remain in effect if you chose FERS after your employer notified you that you were put in FERS by mistake (see § 839.221).
Yes, your FERS coverage election does not disqualify you from making a retirement coverage election under the FERCCA. You can choose whether you want the FERS election to remain in effect. However, you may not choose whether you want your FERS election to remain in effect if you chose FERS after your employer notified you that you were put in FERS by mistake (see § 839.221).
No, If you decide to keep FERS, the original FERS election will remain unchanged.
Under the FERCCA, the types of retirement coverage errors listed in § 839.241 trigger a right to make a retirement coverage election. The following chart summarizes the types of errors that do not trigger an election right:
After your retirement coverage is corrected to the proper plan, your retirement deductions will be adjusted in accordance with subpart H of this part and your Social Security taxes will be adjusted in accordance with subpart I of this part, if applicable. You may also file a claim for losses in accordance with subpart L of this part.
(a) No, your employer is responsible for paying any additional amount to the Fund. Your employer will not bill you for any additional retirement deductions.
(b) For qualifying retirement coverage errors corrected under this part, the rules at § 831.111(b) of this chapter (pertaining to employee options when the employer fails to withhold CSRS or CSRS Offset retirement deductions) do not apply.
CSRS Offset and FERS require employees to pay Social Security taxes in addition to retirement deductions. When you are retroactively changed under the FERCCA to CSRS Offset, FERS, or Social Security-Only, the deductions you paid in under CSRS will be used to pay both the amounts required for retirement deductions under CSRS Offset or FERS, as applicable to you, and also the Social Security taxes that you would have paid had you been in CSRS-Offset, FERS, or Social Security-Only.
Yes, either OPM or your employer, as appropriate, will issue the payment in accordance with OPM instructions.
(a) If you (as a reemployed annuitant) were erroneously in CSRS and had retirement deductions withheld from pay, and later are corrected to CSRS Offset or FERS coverage, the amount erroneously withheld under CSRS will be used to pay the retroactive CSRS Offset or FERS retirement deductions and Social Security taxes.
(b) If you (as a reemployed annuitant) were erroneously placed in CSRS and elected not to have retirement deductions withheld from pay, and later are corrected to CSRS Offset or FERS, your share of retroactive Social Security taxes will be treated as an overpayment of salary. If you are corrected to CSRS Offset, you may elect to have retirement deductions withheld from future salary as a reemployed annuitant and may also make a deposit to cover the retirement deductions for past service as a reemployed annuitant in accordance with § 837.503(c) of this chapter. If you are corrected to FERS, your retirement deductions under FERS will be treated as an overpayment of salary.
(c) If you (as a reemployed annuitant) were erroneously in CSRS Offset and had retirement deductions withheld from pay, and later are corrected to CSRS or FERS coverage, the amount erroneously withheld under CSRS Offset will be used to pay the retroactive CSRS or FERS retirement deductions. The employer is responsible for paying to the Fund any additional retirement deductions.
(d) If you (as a reemployed annuitant) were erroneously placed in CSRS Offset and elected not to have retirement deductions withheld from pay, and later are corrected to CSRS, you may elect to have retirement deductions withheld from future salary as a reemployed annuitant and may also make a deposit to cover the retirement deductions for past service as a reemployed annuitant in accordance with § 837.503(c) of this chapter. Your retirement deductions under CSRS will be treated as an overpayment of salary.
(e) If you (as a reemployed annuitant) were erroneously placed in CSRS Offset and elected not to have retirement deductions withheld from pay, and later are corrected to FERS, your retirement deductions under FERS will be treated as an overpayment of salary.
(f) A reemployed annuitant erroneously placed in FERS and later corrected to CSRS or CSRS Offset is considered to have elected retirement deductions as a reemployed annuitant under the corrected coverage. The employer is responsible for paying to the Fund any additional retirement deductions under the corrected retirement coverage.
(g) If you have a salary overpayment, your employer will inform you of your rights regarding the overpayment.
(h) These rules are summarized in the following chart:
Yes, your employer must pay any additional retirement contributions to the Fund.
No, if you were erroneously in CSRS, CSRS Offset, or Social Security-Only, then a correction of a retirement coverage error will not reduce the employer retirement contribution owed. Also, the FERCCA states that an employer may not remove from the Fund FERS employer contributions when correcting a qualifying retirement coverage error under this part.
(a) Your current employer will correct your records in accordance with OPM instructions. Your employer must not delay correcting your records.
(b) For former employees and retirees, the last employer will correct the records. For survivors, the employee's last employer will correct the records. If an employer no longer exists as an organization, and there is no successor agency, then OPM will correct the records.
Your current or most recent employer will be responsible for this purpose. Even if that employer was not involved in the retirement coverage error, it must issue corrected records for the entire period of the retirement coverage error.
(a) If you are in CSRS by mistake and belong in CSRS Offset, FERS, or Social Security-Only, your employer must begin withholding Social Security taxes by changing your retirement coverage to CSRS Offset. Your employer must begin this withholding as soon as possible after the error is discovered.
(b) Your employer will correct your retirement coverage back to the date the error first occurred once you are notified of the error and have an opportunity to make any elections that you are eligible to make.
(a) If your qualifying retirement coverage error was not previously corrected, the amount erroneously withheld for CSRS retirement deductions will be:
(1) Used to pay your new retirement deduction amount; and
(2) Applied toward any Social Security taxes you owe for the time you were in the wrong retirement plan.
(b) You will get Social Security credit for all the time you were erroneously covered by CSRS. Your employer will send the Social Security Administration a record of your earnings for all the years you should have had Social Security coverage.
(a) Except for the last 3 years, the money you erroneously paid into Social Security will remain to your credit in the Social Security fund. The Social Security Administration will include all but those last 3 years in determining your eligibility for, and the amount of, future benefits.
(b) The amount you paid into Social Security for the last 3 years will be used to help pay your CSRS retirement deductions.
The Board's error correction regulations (5 CFR 1605 of chapter VI) generally allow you to increase your TSP account through a schedule of make-up contributions to replace the missed employee contributions. In addition, the FERCCA allows certain employees who have completed a schedule of make-up contributions, or who plan to schedule make-up contributions, to receive lost earnings on those contributions under certain circumstances. Employees are (and have been) entitled to lost earnings on the make-up agency contributions they receive as a result of the correction of an agency error.
If you made contributions to the TSP after your qualifying retirement coverage error was previously corrected, OPM will compute the lost earnings on your make-up contributions to the TSP under the following circumstances:
(a) Lost earnings will generally be computed in accordance with the Board's lost earnings regulations (5 CFR 1606 of chapter VI). However, the FERCCA states that OPM may compute the lost earnings in an alternative manner if such a computation is not administratively feasible. The alternative manner will yield an amount that is as close as practicable to the amount computed under 5 CFR 1606 of chapter VI.
(b) Your employer is required to submit to OPM all information required to compute the amount of lost earnings.
(a) Yes. If the TSP account is not withdrawn, the lost earnings are paid to the account.
(b) If there is no TSP account at the time the lost earnings are payable, you or your survivors will receive the payment directly.
Unless otherwise stated in this part, your retirement benefit is computed as if you were properly put in CSRS or CSRS Offset on the effective date of the error. All the eligibility and benefit computation rules for CSRS or CSRS Offset apply to your retirement benefit.
OPM will compute your retirement benefit as if you were properly put in FERS on the effective date of the error. All the eligibility and benefit computation rules for FERS apply to your retirement benefit.
No, employees who should have been automatically placed in FERS (generally because they did not have 5 years of past service under CSRS rules) do not have a CSRS component in their future FERS benefit. All service must be treated as FERS service in this circumstance.
(a) Yes, if you elect to change your retirement coverage under the FERCCA, you will have an opportunity to change the election you made for survivor benefits.
(b) If you elect less than the maximum survivor benefit, your spouse's consent is necessary in accordance with § 831.614 or § 842.603(a)(1) of this chapter, as applicable.
Yes, you may retroactively change your decision regarding waiver of your military retired pay.
Yes, you or your survivor will have a new opportunity to decide whether to pay any deposits or redeposits.
Your annuity may be subject to three possible actuarial reductions under the FERCCA. These reductions may be required for an unpaid deposit (see § 831.303(d) and § 839.1116 of this chapter), for Government contributions in a TSP account (see § 839.1118), or for a previous payment of the Basic Employee Death Benefit (see § 839.1121).
An actuarial reduction allows you to receive benefits without having to pay an amount due in a lump sum. OPM reduces your annuity in a way that, on average, allows the Fund to recover the amount of the missing lump sum over your lifetime. The actuarial reduction becomes a permanent reduction in your benefit. The amount of the reduction depends on your age and the amount of the lump sum you would otherwise have to pay at that time. To compute an actuarial reduction, OPM divides the lump sum amount by the present value factor for your age at retirement.
You can choose to pay the additional deposit amount. If you choose not to pay the deposit, OPM will actuarially reduce your annuity, as explained in 831.303(d) of this chapter.
No, the FERCCA allows OPM to reduce an annuity by an actuarial reduction only for the deposit amount that remains unpaid.
Retirees and survivors of deceased employees who received a Government contribution to their TSP account after being corrected to FERS and who later elect CSRS Offset under the FERCCA are allowed to keep the Government contributions, and earnings on the Government contributions in the TSP account. Instead of adjusting the TSP account, the FERCCA requires that the CSRS-Offset annuity be reduced actuarially.
(a) The part of your TSP account on the date you retired that is Government contributions and earnings on those Government contributions forms the basis for the actuarial reduction. OPM will divide the Government contributions and earnings by the present value factor for your age (in full years) at the time you retired. OPM will then round the result to the next highest dollar amount, which will be the monthly actuarial reduction amount.
(b) If a survivor annuity is the only benefit that is payable, the present value factor for the survivor's age at the time of death is used. The survivor benefit is not reduced for TSP if the retiree's rate was reduced.
If you received a BEDB under FERS and you elect CSRS Offset under these rules, you do not have to pay back the BEDB. Instead, the FERCCA requires that OPM actuarially reduce your survivor annuity. The reduction will be the amount of the BEDB divided by the present value factor for your age at the time of the employee's death. The result is rounded to the next highest dollar amount and is the monthly actuarial reduction amount. If you elected to receive the BEDB in installments rather than a lump sum, the lump-sum amount is used for the purpose of computing the actuarial reduction.
You may still elect CSRS Offset if otherwise eligible. OPM will collect the amount of the one-time death benefit from any survivor benefits that are payable.
(a) The FERCCA allows OPM, in its sole discretion, to reimburse you for necessary and reasonable expenses you actually incurred while pursuing a legal or administrative remedy of your qualifying retirement coverage error.
(b) Necessary and reasonable expenses include actual amounts paid for attorney fees, court costs, expert witness fees, and other litigation expenses.
(c) You may not receive reimbursement under this section if you received a monetary award that compensated you for your litigation expenses.
(d) You must support your request for reimbursement with evidence that supports your claim.
(e) In determining what is a necessary and reasonable expense, OPM will consider:
(1) The type and amount of the expense;
(2) The circumstances that gave rise to the expense; and
(3) Whether the expense is directly related to litigation concerning a retirement coverage error.
(a) The FERCCA allows OPM, in its sole discretion, to waive repayment of all or part of a settlement payment or court-ordered payment if you can demonstrate that CSRS Offset coverage does not fully compensate you for your losses.
(b) Your request for waiver must state why you believe waiver of repayment is appropriate and include any evidence that supports your request.
(a) The FERCCA allows OPM, in its sole discretion, to compensate you for a monetary loss that is a direct and proximate result of your retirement coverage error.
(b) Monetary losses include payments of additional Social Security taxes, payment of additional retirement deductions, and other out-of-pocket expenses that you incurred because of a retirement coverage error.
(c) You must substantiate your claim for losses with any evidence that supports your request.
(d) OPM cannot pay you for:
(1) Claimed losses related to forgone contributions and earnings under the TSP, other than lost earnings on make-up contributions to the TSP as provided in subpart J of this part; and
(2) Claimed losses related to any other investment opportunities.
(a) OPM will base its decision on only the written record, including all of your submissions and other documentation in OPM's possession.
(b) At OPM's discretion, OPM may request your employer to provide an administrative report. The report may include:
(1) A description of the retirement coverage error;
(2) A statement as to whether a settlement or other court-ordered award was made;
(3) The employer's recommendation for resolution of the claim; and
(4) Any other information your employer believes OPM should consider.
(c) The burden of proof that the criteria for approving a reimbursement of expenses is on you.
The Associate Director for Retirement and Insurance and his or her delegatees have the authority to perform the Director's actions, as set out in this subpart (see section 2208 of the FERCCA).
(a) No specific form is required. Your request must be in writing and contain the following information:
(1) It must describe the basis for the claim and state the dollar amount you seek to receive;
(2) It must include your name, address, and telephone number;
(3) It must include the name, address, and telephone number of your current or last employer;
(4) It must be signed by you; and
(5) It must include any information you believe OPM should consider, such as cancelled checks or other evidence of amounts you paid.
(b) Send your claim to: Office of Personnel Management, Retirement and Insurance Service, ATTN: FC Section, Washington, DC 20415-3200
(a) Your employer must provide you with a written decision. The decision must include the reason for the decision, and notice of your right to appeal the decision to the MSPB.
(b) If your employer determines that it cannot waive the time limit for making an election under § 839.612, the decision must inform you of your right to ask OPM to review the decision. OPM will advise you in writing of your appeal rights following its review of your employer's decision.
(a) You can appeal to the MSPB a decision that affects your rights and interests under this part, except an OPM decision under subpart L (see § 839.1303). Some examples of decisions are:
(1) Your employer's determination that your error is not subject to these rules;
(2) Your employer's determination that you are not eligible to elect retirement coverage under these rules; and
(3) OPM's denial of your request for a waiver of the time limit for making an election.
(b) You may not seek review of a decision under any employee grievance procedures, including those established by chapter 71 of title 5, United States Code, and 5 CFR part 771.
Yes, OPM's decisions under subpart L (Discretionary Actions by OPM) are final and conclusive and are not subject to administrative or judicial review.
(a) Except for claims under subpart L (see § 839.1303), and after exhausting your administrative remedies as set out in this subpart, you may bring a claim against the Government under section 1346(b) or chapter 171 of title 28, United States Code.
(b) You may also bring a claim against the Government under any other provision of law if your claim is for amounts not otherwise provided for under these rules.
5 U.S.C. 8461; Sec. 841.108 also issued under 5 U.S.C. 552a; subpart D also issued under 5 U.S.C. 8423; Sec. 841.504 also issued under 5 U.S.C. 8422; Sec. 841.507 also issued under section 505 of Pub. L. 99-335; subpart J also issued under 5 U.S.C. 8469; Sec. 841.506 also issued under 5 U.S.C. 7701(b)(2); Sec. 841.508 also issued under section 505 of Pub. L. 99-335; Sec. 841.604 also issued under Title II, Pub. L. 106-265, 114 Stat. 780.
(c) In the case of a retirement coverage error that was corrected under part 839 (pertaining to errors that lasted for at least 3 years of service after December 31, 1986) in which:
(1) A CSRS service credit deposit was made; and
(2) There is a subsequent retroactive change to FERS, the excess of the amount of the CSRS civilian or military service credit deposit over the FERS civilian or military deposit, together with interest computed under § 842.305 of this chapter, shall be paid to the employee or annuitant. In the case of a deceased employee or annuitant, payment is made to the individual entitled to lump-sum benefits under subpart B of part 843 of this chapter.
5 U.S.C. 8347(a) and 8461(g) and Title III of Pub. L. 99-335, 100 Stat. 517; Sec. 846.201(b) also issued under 5 U.S.C. 7701(b)(2) and section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec. 846.201(d) also issued under section 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 846.201(d) also issued under section 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 846.202 also issued under section 301(d)(3) of Pub. L. 99-335, 100 Stat. 517; Sec. 846.204(b) also issued under Title II, Pub. L. 106-265, 114 Stat. 778; Sec. 846.726 also issued under 5 U.S.C. 1104; subpart G also issued under section 642 of Pub. L. 105-61, 111 Stat. 1272.
(b) * * *
(2)(i)
(e)