Animal and Plant Health Inspection Service
Cooperative State Research, Education, and Extension Service
Forest Service
Rural Telephone Bank
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Army Department
Navy Department
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Children and Families Administration
Health Resources and Services Administration
Fish and Wildlife Service
National Park Service
Immigration and Naturalization Service
Trade Representative, Office of United States
Health Resources and Services Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Research and Special Programs Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
Animal and Plant Health Inspection Service, USDA.
Affirmation of interim rule as final rule.
We are adopting as a final rule, without change, an interim rule that amended the Asian longhorned beetle regulations by expanding the quarantined areas in the city of New York and in Nassau and Suffolk Counties, NY. As a result the interim rule, the interstate movement of regulated articles from those areas is restricted. The interim rule was necessary to prevent the artificial spread of the Asian longhorned beetle to noninfested areas of the United States.
The interim rule became effective on September 6, 2000.
Mr. Michael B. Stefan, Staff Officer, Invasive Species and Pest Management Staff, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1231; (301) 734-7338.
In an interim rule effective September 6, 2000, and published in the
Comments on the interim rule were required to be received on or before November 13, 2000. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.
This action also affirms the information contained in the interim rule concerning Executive Orders 12866, 12372, and 12988 and the Paperwork Reduction Act.
Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.
This rule affirms an interim rule that amended the Asian longhorned beetle regulations by expanding the quarantined areas in the city of New York and in Nassau and Suffolk Counties, NY. As a result of that action, the interstate movement of regulated articles from those areas is restricted.
The following analysis addresses the economic effects of the interim rule on small entities, as required by the Regulatory Flexibility Act. The small businesses potentially affected by the interim rule are nurseries, arborists, tree removal services, and firewood dealers located within the quarantined areas. The actual number of such businesses in the quarantined areas added by the interim rule is unknown. However, we anticipate that the number of such businesses is small since the newly quarantined areas are urban and suburban communities as opposed to rural farm areas.
It is further estimated that the number and value of regulated articles that would, upon inspection, be determined to be infested, and therefore denied a certificate or a limited permit for movement, is small. Current data from the Animal and Plant Health Inspection Service (APHIS) Asian longhorned beetle project being conducted in Amityville, NY, support this conclusion.
Finally, the regulations allow businesses to chemically treat, fumigate, or process by chipping or burning all regulated articles before they are presented for APHIS inspection. It is likely that, given their low value relative to the cost of treatment, most regulated articles would not undergo such treatment.
Under these circumstances, the Administrator of APHIS has determined that this action will not have a significant economic impact on a substantial number of small entities.
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 7752, 7753, and 7754; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
Board of Governors of the Federal Reserve System.
Interim final rules; lifting mandatory compliance date.
On March 30, and April 4, 2001, the Board published interim final rules to establish uniform standards for using electronic communication to deliver disclosures required under five
The October 1, 2001, mandatory compliance date for the interim final rules published at 66 FR 17322 and 17329 (March 30, 2001) and at 66 FR 17779, 17786 and 17795 (April 4, 2001) is lifted.
David A. Stein or Ky Tran-Trong, Attorneys; Division of Consumer and Community Affairs, at (202) 452-2412 or (202) 452-3667.
Financial institutions and others covered by the Board's consumer disclosure rules are currently permitted to provide electronic disclosures if they obtain consumers' consent consistent with the requirements of the federal Electronic Signatures in Global and National Commerce Act (the E-Sign Act), which became effective on October 1, 2000. On March 30 and April 4, 2001, the Board published interim final rules to provide guidance on how the E-Sign Act applies to the consumer financial services and fair lending laws and regulations administered by the Board. The Board established October 1, 2001 as the date for mandatory compliance with the interim final rules.
The interim rules give guidance on the timing and delivery of electronic disclosures. Disclosures can be provided by e-mail or can be made available at another location such as an institution's web site. If a disclosure—such as an account statement or a notice of a change in account terms—is provided at a web site, an institution must notify the consumer of the disclosure's availability by e-mail. In addition, the disclosure must remain available on the web site for 90 days.
A number of commenters on the interim final rules noted that there are operational issues raised by the interim rules' requirement that institutions alert consumers by e-mail when electronic disclosures are made available at another location, such as a web site. They also noted that the October 1, 2001, compliance deadline does not afford them adequate time for making the needed changes.
Some institutions have been offering electronic disclosures for several years under Regulations E and DD, based on interim rules issued by the Board in 1998 and 1999 respectively.
Based on the comments, the Board is considering adjustments to the rules to provide additional flexibility. Therefore, the Board is lifting the mandatory compliance date for the interim rules. Institutions may continue to provide electronic disclosures under their existing policies and practices, or may follow the interim rules, until the Board issues permanent rules. Once permanent final rules are issued, the Board expects to afford institutions a reasonable period of time to comply with those rules.
In 1998 and 1999, the Board adopted interim rules under Regulations E and DD respectively, to allow the electronic delivery of certain disclosures, if the consumer agrees. The 1998 and 1999 interim rules did not specify the manner or form of consumer's consent to electronic disclosures.
Effective October 1, 2000, the E-Sign Act permits institutions to provide disclosures to consumers using electronic communications, if the institution complies with the requirements of section 101(c) of that act. The Board's 2001 interim final rules set forth the general rule that institutions subject to Regulations E and DD may provide disclosures electronically only if the institution complies with section 101(c) of the E-Sign Act. Accordingly, the Board's 2001 interim rules provided that the 1998 and 1999 interim rules were withdrawn. The Board's action lifting the mandatory compliance date for the 2001 interim rules has no effect on the withdrawal of the 1998 and 1999 interim rules.
To provide consistency among the regulations, the interim final rules also included revisions to Regulations B (§ 202.4(b)), E (§ 205.4(a)(2)), and Z (§ 226.27) that permit disclosures in languages other than English as long as disclosures in English are also available upon request. The Board's action lifting the mandatory compliance date for the 2001 interim rules has no effect on these provisions.
By order of the Board of Governors of the Federal Reserve System, August 2, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain Boeing Model 747 series airplanes, that requires repetitive inspections to find cracking of the frame web, strap, inner chords, and inner chord angle of the forward edge frame of the number 5 main entry door cutout, and repair, if necessary. These actions are necessary to find and fix such cracking, which could result in severing of the frame, inability of the edge frame to react door stop loads, and consequent rapid depressurization of the airplane. This action is intended to address the identified unsafe condition.
Effective September 12, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 12, 2001.
The service information referenced in this AD may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the Federal Aviation Administration (FAA),
Rick Kawaguchi, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1153; fax (425) 227-1181.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747 series airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
Two commenters have no objection to the proposed rule.
One commenter, the manufacturer, states that, subsequent to issuance of Revision 2 of the referenced service bulletin, it committed to a production revision at line number 1305, Production Revision Request 85415, which eliminates the need for the inspections in the proposed rule for airplanes with and after that line number. The commenter recommends that the applicability in the proposed rule be limited to Model 747 series airplanes, line numbers 1 through 1304, except Model 747SP.
The FAA partially agrees. We will change the applicability section in the final rule to specify all affected models in the subject line of the final rule; it will not include the 747SP series airplane. However, because the Production Revision Request has not yet been incorporated, we cannot limit the line number applicability.
One commenter asks that paragraph (a) of the proposed rule be changed. The commenter states that paragraph (a)(1) of the proposed rule does not actually state a compliance time or refer to the referenced service bulletin as a means of compliance. The commenter adds that paragraph (a)(2) of the proposed rule calls for the inspection to be done within 3,000 flight cycles after the first inspection in the bulletin. Therefore, the inspection may never be done if operators decide not to do the bulletin, but the commenter presumes this statement has been added for those operators that did the inspection before the release of the AD, per the bulletin. The commenter notes paragraph (a)(2) is redundant because repeat inspections will already have been carried out per the bulletin. The commenter states that the specified compliance times are very difficult to understand and suggests the following wording for the compliance times be used in the proposed rule:
• At the times specified in the logic diagram of the referenced service bulletin, except substituting “receipt of service bulletin” for “effective date of this AD.” Or
• Within 3,000 flight cycles from the effective date of the AD, whichever is later. The commenter's interpretation of paragraph (a)(2) of the proposed rule is that the commenter would have until 3,000 flight cycles after the inspection at 16,000 flight cycles to inspect its oldest airplane.
The FAA partially concurs. (The paragraph numbering in the final rule has been revised.) Paragraph (b) of the final rule has been changed for clarification, to specifically cite accomplishment of the inspection at the applicable time specified in the logic diagram in Figure 1 of the service bulletin. However, we do not concur that paragraph (c) of the final rule should be revised to within 3,000 flight cycles from the effective date of the AD. Paragraph (c) addresses those operators who have already accomplished the inspections per previous revisions of the service bulletin. The 3,000-flight-cycle threshold allows operators to transition from the old revisions to the revision of the service bulletin specified in this final rule.
Additionally, we do not concur that the commenter would have until 3,000 flight cycles after the inspection at 16,000 flight cycles to accomplish the initial inspection on its airplanes. The commenter has not accomplished the inspections on its airplanes per the old revisions to the service bulletin, so paragraph (c) does not apply, and the commenter must accomplish the initial inspection at the 16,000-flight-cycle threshold as mandated by paragraph (b) of the final rule.
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
This is considered to be interim action. The manufacturer has advised that it currently is developing a modification that will positively address the unsafe condition addressed by this AD. Once this modification is developed, approved, and available, the FAA may consider additional rulemaking.
There are approximately 1,314 airplanes of the affected design in the worldwide fleet. The FAA estimates that 258 airplanes of U.S. registry will be affected by this AD, that it will take approximately 16 work hours per airplane to accomplish the required inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspections required by this AD on U.S. operators is estimated to be $247,680, or $960 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3)
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends 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 (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To find and fix cracking of the frame web, strap, inner chords, and inner chord angle of the forward edge frame of the number 5 main entry door cutout, which could result in severing of the frame, inability of the edge frame to react door stop loads, and consequent rapid depressurization of the airplane, accomplish the following:
(a) Inspect the airplane for cracks per Boeing Alert Service Bulletin 747-53A2450, Revision 2, including Appendix A, dated January 4, 2001; at the later of the times specified in either paragraph (b) or (c) of this AD, per Table 1 as follows:
(b) Do the inspections per Table 1 at the applicable time specified in the logic diagram in Figure 1 of Boeing Alert Service Bulletin 747-53A2450, Revision 2, including Appendix A, dated January 4, 2001. Where the compliance time in the logic diagram specifies a compliance time beginning, “from receipt of this service bulletin,” this AD requires that the compliance time begin “after the effective date of this AD.” Repeat the inspections after that at intervals not to exceed 3,000 flight cycles.
(c) Within 3,000 flight cycles after accomplishment of the inspections specified in Figure 1 of Boeing Alert Service Bulletin 747-53A2450, dated May 4, 2000; or Revision 1, dated July 6, 2000; repeat the inspections after that at intervals not to exceed 3,000 flight cycles.
There is no terminating action currently available for the inspections required by paragraph (a) of this AD.
Where there are differences between the AD and the alert service bulletin, the AD prevails.
(d) If any cracking is found during any inspection required by paragraph (a) of this AD, before further flight, repair per a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle ACO, to make such findings. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the approval letter must specifically reference this AD.
(e) 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, Seattle ACO. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(f) 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.
(g) The inspections shall be done in accordance with Boeing Alert Service Bulletin 747-53A2450, Revision 2, including Appendix A, dated January 4, 2001. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(h) This amendment becomes effective on September 12, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain BAE Systems (Operations) Limited Model Avro 146-RJ series airplanes, that requires inspection to detect incorrect wiring of the fire extinguisher bottles located on the engines and on the auxiliary power unit (APU), and corrective action, as necessary. It also requires modification of the wiring of the fire extinguisher bottles located on the engines and on the APU. This amendment is prompted by reports of incorrect wiring of the fire extinguisher bottles on the engines and the APU discovered during routine maintenance. The actions specified by this AD are intended to prevent failure of the fire extinguisher bottles to discharge, which could result in the inability to extinguish a fire in the engines or in the APU.
Effective September 12, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 12, 2001.
The service information referenced in this AD may be obtained from British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Todd Thompson, Aerospace Engineer, ANM-116, International Branch, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain BAE Systems (Operations) Limited Model Avro 146-RJ series airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
The FAA has revised paragraph (a) of the final rule to cite the latest service information, BAE Systems (Operations) Limited Inspection Service Bulletin ISB.26-60, Revision 2, dated January 18, 2001, as the appropriate source of service information for accomplishment of the actions required by that paragraph. The original issue and Revision 1 of the service bulletin were cited in the proposed AD; however, Revision 2 is similar to those versions of the service bulletin. In addition, the FAA has added a new
After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
The FAA estimates that 44 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection on U.S. operators is estimated to be $2,640, or $60 per airplane.
The FAA estimates that it will take approximately 4 work hours per airplane to accomplish the required modification of the wiring of the fire extinguisher bottles on the engines, and that the average labor rate is $60 per work hour. According to the applicable service bulletin, the cost of required parts is to be arranged between BAE Systems and the operator. Based on these figures, the cost impact of this modification on U.S. operators is estimated to be $10,560, or $240 per airplane, excluding any costs to the operator for required parts.
The FAA also estimates that it will take approximately 1 work hour per airplane to accomplish the required modification of the wiring of the fire extinguisher bottles on the APU, and that the average labor rate is $60 per work hour. According to the applicable service bulletin, the cost of required parts is to be arranged between BAE Systems and the operator. Based on these figures, the cost impact of this modification on U.S. operators is estimated to be $2,640, or $60 per airplane, excluding any costs to the operator for required parts.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
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 (d) 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 the failure of the fire extinguisher bottles on the engines or on the auxiliary power unit (APU) to discharge, which could result in the inability to extinguish a fire in the engines or in the APU, accomplish the following:
(a) Within 90 days after the effective date of this AD: Perform a one-time inspection consisting of a “continuity check” to detect incorrect wiring on the fire extinguisher bottles located on the engines and on the APU, in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.26-60, Revision 2, dated January 18, 2001. If incorrect wiring is detected, prior to further flight, correct the wiring in accordance with the service bulletin.
Accomplishment of the actions required by paragraph (a) of this AD in accordance with BAE Systems (Operations) Limited Inspection Service Bulletin ISB.26-60, dated September 4, 2000, or Revision 1, dated October 10, 2000, is acceptable for compliance with the requirements of that paragraph.
(b) Following any maintenance work, including a complete engine change, that affects the wiring of the fire extinguisher bottles located on the engines or on the APU and prior to further flight thereafter: Perform the inspection required by paragraph (a) of this AD. If incorrect wiring is detected, prior to further flight, correct the wiring in accordance with BAE Systems (Operations) Limited Modification Service Bulletin SB.26-061-36220A or SB.26-060-01688A, both dated January 18, 2001, as applicable.
(c) Within one year after the effective date of this AD: Modify the wiring of the fire extinguisher bottles located on the engines, in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Modification Service Bulletin SB.26-060-01688A, dated January 18, 2001; and modify the wiring of the fire extinguisher bottle located on the APU, in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Modification Service Bulletin SB.26-061-36220A, dated January 18, 2001. Accomplishment of these actions constitutes terminating action for the requirements of this AD.
(d) 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.
(e) 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.
(f) The actions shall be done in accordance with BAE Systems (Operations) Limited Inspection Service Bulletin ISB.26-60, Revision 2, dated January 18, 2001; BAE Systems (Operations) Limited Modification Service Bulletin SB.26-061-36220A, dated January 18, 2001; and BAE Systems (Operations) Limited Modification Service Bulletin SB.26-060-01688A, dated January 18, 2001; as applicable. Revision 2 of BAE Systems (Operations) Limited ISB.26-60 contains the following list of effective pages:
(The revision date is listed only on the first page of the document; no other page contains this information.) This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
The subject of this AD is addressed in British airworthiness directive 002-09-2000.
(g) This amendment becomes effective on September 12, 2001.
Department of Justice.
Final rule.
The Department of Justice (DOJ) is exempting two Privacy Act systems of records from subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5) and (8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). These systems of records are the “Correspondence Management Systems (CMS) for the Department of Justice (DOJ), DOJ/003”; and “Freedom of Information Act, Privacy Act, and Mandatory Declassification Review Requests and Administrative Appeals for the Department of Justice (DOJ), DOJ/004”. The exemptions are necessary to protect law enforcement and investigatory information and functions and will be applied only to the extent that information in a record is subject to exemption pursuant to 5 U.S.C. 552a(j) and (k).
This final rule is effective August 8, 2001.
Mary Cahill at 202-207-1823.
On June 4, 2001 (66 FR 29921) a proposed rule was published in the
This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act 5 U.S.C. 601-612, this order will not have a significant economic impact on a substantial number of small entities.
Administrative Practices and Procedures, Courts, Freedom of Information Act, Government in Sunshine Act, Privacy.
5 U.S.C. 301, 552, 552a, 552(b)(g), 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
(a) The following Department of Justice systems of records are exempted from subsections (c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (5) and (8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). These exemptions apply only to the extent that information in a record is subject to exemption pursuant to 5 U.S.C. 552a(j) and (k).
(1) Correspondence Management Systems (CMS) for the Department of Justice (DOJ), DOJ/003.
(2) Freedom of Information Act, Privacy Act, and Mandatory Declassification Review Requests and Administrative Appeals for the Department of Justice (DOJ), DOJ/004.
(b) These systems are exempted for the reasons set forth from the following subsections:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
Department of Justice.
Final rule.
The Department of Justice (DOJ), is exempting a Privacy Act System of records from subsections (c)(3) and (4), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8), (f) and (g) of the Privacy Act, 5 U.S.C. 552a,
This final rule is effective August 8, 2001.
Mary Cahill—(202) 307-1823.
On April 23, 2001 (66 FR 20410) a proposed rule was published in the
This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, it is hereby stated that the order will not have “a significant economic impact on a substantial number of small entities.”
Administrative Practices and Procedures, Courts, Freedom of Information Act, Government in the Sunshine Act, Privacy.
5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534, 31 U.S.C. 3717, 9701.
(a) The following system of records is exempt from 5 U.S.C. 552a(c)(3) and (4), (d), (e)(1), (2), (3), (4)(G) and (H), (e)(5) and (8), (f) and (g): Nationwide Joint Automated Booking System, Justice/DOJ-005. These exemptions apply only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). Where compliance would not interfere with or adversely affect the law enforcement process, the DOJ may waive the exemptions, either partially or totally.
(b) Exemption from the particular subsections are justified for the following reasons:
(1) From subsections (c)(3), (c)(4), and (d) to the extent that access to records in this system of records may impede or interfere with law enforcement efforts, result in the disclosure of information that would constitute an unwarranted invasion of the personal privacy of collateral record subjects or other third parties, and/or jeopardize the health and/or safety of third parties.
(2) From subsection (e)(1) to the extent that it is necessary to retain all information in order not to impede,compromise, or interfere with law enforcement efforts, e.g., where the significance of the information may not be readily determined and/or where such information may provide leads or assistance to Federal and other law enforcement agencies in discharging their law enforcement responsibilities.
(3) From subsection (e)(2) because, in some instances, the application of this provision would present a serious impediment to law enforcement since it may be necessary to obtain and verify information from a variety to sources other than the record subject to ensure safekeeping, security, and effective law enforcement. For example, it maybe necessary that medical and psychiatric personnel provide information regarding and the subject's behavior, physical. health, or mental stability, etc. to ensure proper care while in custody, or it may be necessary to obtain information from a case agent or the court to ensure proper disposition of the subject individual.
(4) From subsection (e)(3) because the requirement that agencies inform each individual whom it asks to supply information of such information as required by subsection (e)(3) may, in some cases, impede the information gathering process or otherwise interfere with or compromise law enforcement efforts, e.g., the subject may deliberately withhold information, or given erroneous information.
(5) From subsection (4)(G) and(H) because the application of these provisions would present a serious impediment to law enforcement efforts.
(6) From subsection (e)(5) because in the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance and the accuracy of such information can only be determined in a court of law. The restrictions imposed by subsection (e)(5) would restrict the ability to collect information for law enforcement purposes, may prevent the eventual development of the necessary criminal intelligence, or otherwise impede law enforcement or delay trained law enforcement personnel from timely exercising their judgment in managing the arrestee.
(7) From subsection (e)(8) to the extent that such notice may impede, interfere with, or otherwise compromise law enforcement and security efforts.
(8) From subsection 5 U.S.C. 552a(f) to the extent that compliance with the requirement for procedures providing individual access to records, compliance could impede, compromise, or interfere with law enforcement efforts.
(9) From subsection (g) to the extent that this system is exempt from the access and amendment provisions of subsection (d).
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a time-limited tolerance for residues of ethalfluralin in or on safflower seed. This action is in response to EPA's granting of an emergency exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act authorizing use of the pesticide on safflower. This regulation establishes a maximum permissible level for residues of ethalfluralin in this food commodity. The tolerance will expire and is revoked on June 30, 2003.
This regulation is effective August 8, 2001. Objections and requests for hearings, identified by docket control number OPP-301155, must be received by EPA on or before October 9, 2001.
Written objections and hearing requests may be submitted by mail, in person, or by courier. Please
By mail: Barbara Madden, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-6463; and e-mail address: madden.barbara@epa.gov.
You may be potentially 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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EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for residues of the herbicide ethalfluralin, [
Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
The applicants state that there are no herbicides registered for use on safflower that effectively control kochia and ALS-resistant kochia. Kochia resistant to sulfonylurea herbicides, 2,4-D, and dicamba are found throughout the state. Research data and grower experience indicate that Treflan (trifluralin) only provides suppression of kochia and can result in three times more kochia density than Sonalan (ethalfluralin). Kochia (especially ALS resistant biotypes) has become a very serious weed problem that farmers have had difficulty controlling. The problem has become particularly noticeable since 1998. No specific economic data has been generated to study safflower yield impacts from kochia competition. However, research conducted in several other crops has documented that yield
Safflower is an annual oil seed crop that is most productive when seeded early in the spring. Annual grasses and broadleaf weeds that compete with safflower germinate and emerge along with safflower seedlings. Although delayed seeding and or tillage can reduce weed abundance, it is not a compatible practice in safflower production. Safflower is not very competitive with weeds in the early vegetative stages. In-crop cultivation is not viable for weed control. Harrowing after planting with a light spike tooth or light coil spring may control some weeds, but damage to the emerging safflower can occur and some plants will be buried.
EPA has authorized under FIFRA section 18 the use of ethalfluralin on safflower for control of kochia and ALS-resistant kochia in North Dakota and Montana. After having reviewed the submission, EPA concurs that emergency conditions exist for these States.
As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of ethalfluralin in or on safflower. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6). Although this tolerance will expire and is revoked on June 30, 2003, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on safflower seed after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether ethalfluralin meets EPA's registration requirements for use on safflower or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of ethalfluralin by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for any State other than North Dakota and Montana to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for ethalfluralin, contact the Agency's Registration Division at the address provided under
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).
Consistent with section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of ethalfluralin and to make a determination on aggregate exposure, consistent with section 408(b)(2), for a time-limited tolerance for residues of ethalfluralin in or on safflower seed at 0.05 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.
The dose at which no observed adverse effect level (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological endpoint. However, the dose at which the lowest adverse effect level (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.
For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA Safety Factor.
For non-dietary risk assessments (other than cancer) the UF is used to determine the level of concern (LOC). For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.
The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10
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Section 408(b)(2)(F) states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings:
Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue.
Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group.
Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
The Agency used PCT information as follows: 34% of dry beans and peas treated; 4% melons and cantaloupes treated; 16% cucumbers treated; 15% watermelons treated and 1% soybeans treated.
The Agency believes that the three conditions listed have been met. With respect to condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to under estimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to under estimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an under estimation. As to conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which ethalfluralin may be applied in a particular area.
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The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in ground water. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The
None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.
Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to ethalfluralin they are further discussed in the aggregate risk sections below.
Based on the PRZM/EXAMS and SCI-GROW models the estimated environmental concentrations (EECs) of ethalfluralin for acute exposures are estimated to be 2.3 parts per billion (ppb) for surface water and 0.02 ppb for ground water. The EECs for chronic exposures are estimated to be 0.052 ppb for surface water and 0.02 ppb for ground water.
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EPA does not have, at this time, available data to determine whether ethalfluralin 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, ethalfluralin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that ethalfluralin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).
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In the developmental toxicity study in rabbits, the maternal (systemic) NOAEL was 75 mg/kg/day, based on abortions and decreased food consumption at the LOAEL of 150 mg/kg/day. The developmental (fetal) NOAEL was also 75 mg/kg/day, based on a slightly increased number of resorptions, abnormal cranial development, and increased sternal variants at the LOAEL of 150 mg/kg/day.
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In a 7-month multi-generation bridging study in rats, the parental NOAEL of 20 mg/kg/day was based on increased liver weights at the LOAEL of 61 mg/kg/day. The reproductive (pup) NOAEL was ≥ 61 mg/kg/day the HDT.
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To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + chronic non-dietary, non-occupational exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC.
A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the US EPA Office of Water
When EECs for surface water and ground water are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to ethalfluralin in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of ethalfluralin in drinking water as a part of the aggregate risk assessment process.
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Adequate enforcement methodology (GLC-ECD) is available in PAM II to enforce the tolerance expression. The limit of detection in plant commodities is 0.01 ppm.
There are no Codex maximum residue limits (MRLs) established for ethalfluralin. Mexico has established MRLs of 0.05 ppm in/on squash, cucumber, and melon. Canada has labels for uses on oil seed and pulse crops, wheat, field crop vegetables, barley, rapeseed, flax, canola, and mustard. There are no published tolerances so presumably the Canadian default tolerance of 0.10 ppm applies to these crops.
Do not exceed 1.15 lbs. active ingredient (ethalfluralin) per acre per crop year.
Therefore, the tolerance is established for residues of ethalfluralin,
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301155 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 9, 2001.
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Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.
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EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
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A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes a time limited tolerance under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346(a) and 371.
(b) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS announces that, effective 0001 hrs, local time, August 17, 2001, through 2400 hr, local time, November 14, 2001, vessels may not fish for, or possess, red crab harvested from the exclusive economic zone (EEZ) in excess of 100 lb (45.4 kg) per trip. This action is based on a determination that the red crab total allowable catch (TAC) is projected to be reached as of August
Effective 0001 hrs, local time, August 17, 2001, through 2400 hrs, local time, November 14, 2001.
E. Martin Jaffe, Fishery Policy Analyst, 978-281-9272, fax 978-281-9135, e-mail martin.jaffe@noaa.gov.
On May 8, 2001, NMFS published a red crab emergency interim rule (66 FR 23182) to address concerns that overfishing of the red crab resource may be occurring within the EEZ from Cape Hatteras Light, NC, northward to the U.S.-Canada border. This action contained measures that included a TAC of 2.5 million lb (1,134 mt) of red crab for the 180-day period of effectiveness for the rule. To help ensure that the TAC is not exceeded, this rule also contained regulations that require the closure of the directed red crab fishery as of the date NMFS determines that the total landings of red crab will reach or exceed the TAC. NMFS is required to publish notification of such closure in the
NMFS has determined, based on landings and other available information, that 100 percent of the TAC for red crab will be harvested by August 17, 2001. Therefore, effective 0001 hrs, local time, August 17, 2001, through 2400 hrs, local time, November 14, 2001, notwithstanding any other regulations of Subpart M of 50 CFR part 648, vessels may not fish for, or possess, red crab harvested from the EEZ in excess of 100 lb (45.4 kg) per trip. If NMFS decides to recommend a 180-day extension of the emergency rule to the Secretary of Commerce (Secretary), and the Secretary approves, a notification will be published in the Federal Register to inform the industry.
This action is required by 50 CFR part 648 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 species that comprise the shallow-water species fishery by vessels using trawl gear in the Gulf of Alaska (GOA), except for vessels fishing for pollock using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. This action is necessary because the fourth seasonal apportionment of the 2001 halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA has been caught.
Effective 1200 hrs, Alaska local time (A.l.t.), August 4, 2001, until 1200 hrs, A.l.t., October 1, 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 Pacific halibut bycatch allowance for the GOA trawl shallow-water species fishery, which is defined at § 679.21 (d)(3)(iii)(A), was established by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001), adjusted (66 FR 17087, March 29, 2001), and amended (66 FR 34852, July 2, 2001) for the fourth season, the period July 1, 2001, through October 1, 2001, as 200 metric tons.
In accordance with § 679.21 (d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the fourth seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA has been caught. Consequently, NMFS is prohibiting directed fishing for species included in the shallow-water species fishery by vessels using trawl gear in the GOA, except for vessels fishing for pollock using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. The species and species groups that comprise the shallow-water species fishery are: pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species”.
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 fourth seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA 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 fourth seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA 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 § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Immigration and Naturalization Service, Justice.
Proposed rule.
This rule proposes to adjust the fee schedule of the Immigration Examinations Fee Account (IEFA) for certain immigration and naturalization applications and petitions, as well as the fee for the fingerprinting of applicants who apply for certain immigration and naturalization benefits. Fees collected from persons filing these applications and petitions are deposited into the IEFA and used to fund the full cost of processing immigration and naturalization applications and petitions and associated support benefits; the full cost of providing similar benefits to asylum and refugee applicants; and the full cost of similar benefits provided to other immigrants, as specified in the regulation, at no charge. The proposed fees will allow the Service to process applications and petitions that it expects to receive in 2002 and 2003, and provide funding to other programs supported by IEFA.
Written comments must be submitted on or before October 9, 2001.
Please submit written comments to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC, 20536. To ensure proper handling, please reference INS Number 2072-00 on your correspondence. The public may also submit comments electronically at insregs@usdoj.gov. When submitting comments electronically, please include INS No. 2072-00 in the subject box. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.
Paul Schlesinger, Chief, Immigration Services Branch, Office of Budget, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 20536, telephone (202) 314-3410.
With reference to the fees for applications and petitions, the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1989, Pub. L. No. 100-459, Sec. 209, 102 Stat. 2186, 2203 (1988) authorized the Immigration and Naturalization Service (Service) to prescribe and collect fees to recover the cost of providing certain immigration and naturalization benefits. That law also authorized the establishment of the IEFA in the Treasury of the United States. All revenue from fees collected for immigration and naturalization benefits are deposited in the IEFA and remain available to provide immigration and naturalization benefits and the collection, safeguarding and accounting for fees. 8 U.S.C. 1356(n).
In subsequent legislation, the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub. L. No. 101-515, Sec. 210(d), 104 Stat. 2101, 2121 (1990), Congress further provided that “fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.” 8 U.S.C. 1356(m).
The House Conference Report to the bill entitled, “Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies For the Fiscal Year Ending September 30, 1996, and For Other Purposes,” H.R. Conf. Rep. No. 104-378, at 82 (1995), directs the Service to fund the cost of the Cuban-Haitian Entrant Program from the IEFA. The Report states, “(t)he conferees have also agreed that the activities related to the resettlement of Cubans and Haitians should be transferred to the * * * Service and that the costs of these activities should be supported by the [IEFA].”
With reference to the fingerprint fee, the Department of Justice Appropriations Act, 1998, Pub. L. No. 105-119, 111 Stat. 2440, 2448 (1997), required the Service, with limited exceptions, to prepare all fingerprint cards used to conduct FBI criminal background checks on individuals applying for certain benefits under the Immigration and Nationality Act of 1952, as amended (Act). This legislation also authorized the Service to charge a fee for this fingerprinting service.
The Service also employs the authority granted by the Independent Offices Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701, commonly referred to as the “user fee statute,” to develop its fees. The user fee statute directs Federal agencies to identify services provided to unique segments of the population and to charge fees for those services, rather than supporting such services through general tax revenues. The IOAA states that “[i]t is the sense of Congress that each service or thing of value provided by an agency * * * to a person * * * is to be self-sustaining to the extent possible.” 31 U.S.C. 9701(a).
The IOAA further provides that charges for such services or things of value should be fair and based on “(A) the costs to the Government; (B) the value of the service or thing to the recipient; (C) the public policy or interest served; and (D) other relevant facts.” 31 U.S.C. 9701(b).
The Service must also conform to the requirements of the Chief Financial Officers Act of 1990 (CFO Act), Pub. L.
When developing fees for special benefits, the Service adheres to the principles contained in OMB Circular No. A-25, Revised, User Charges (1993). OMB Circular No. A-25 states that as a general policy a “user charge * * * will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public.”
The guidance contained in OMB Circular No. A-25 is applicable to the extent that it is not inconsistent with any Federal statute. For example, specific legislative authority to charge fees for special benefits takes precedence over OMB Circular No. A-25 when the statute expressly designates “who pays the charge; how much is the charge; where collections are deposited.”
(a) Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement;
(b) Physical overhead, consulting, and other indirect costs, including material and supply costs, utilities, insurance, travel and rents or imputed rents on land, buildings, and equipment;
(c) Management and supervisory costs; and
(d) The costs of enforcement, collection, research, establishment of standards, and regulation.
Finally, section 6(d)(1)(e) states that “[f]ull cost shall be determined or estimated from the best available records of the agency, and new cost accounting systems need not be established solely for this purpose.”
When developing fees for services, the Service also adheres to the cost accounting concepts and standards recommended by the Federal Accounting Standards Advisory Board (FASAB). The FASAB was established in 1990, and its purpose is to recommend accounting standards for the Federal Government. The FASAB defines “full cost” to include “direct and indirect costs that contribute to the output, regardless of funding sources.” Federal Accounting Standards Advisory Board, Statement of Financial Accounting Standards No. 4: Managerial Cost Accounting Concepts and Standards for the Federal Government 36 (July 31, 1995). To obtain full cost, FASAB identifies various classifications of costs to be included, and recommends various methods of cost assignment, as will be discussed later.
In 1988, Congress established the IEFA. See Pub. L. No. 100-459, Sec. 209, 102 Stat. at 2203. In the first year of the IEFA's existence, the Service retained the appropriation that funded the processing of immigration and naturalization applications and petitions. During that year, fees collected for these applications and petitions were used to enhance the Adjudications and Naturalization Program (although Congress did temporarily direct the Service to deposit $50 million of the fee revenue into the General Fund of the Treasury).
In a fee review of the IEFA for certain immigration and naturalization applications and petitions completed in July 1997, the Service identified a shortfall of revenues to expenses in the IEFA because the fees did not recover the full costs of services provided. This review involved an in-depth analysis of resources, activities, and applications and petitions using an activity-based costing methodology. The majority of current immigration and naturalization application and petition fees are based on this review.
A recent General Accounting Office report entitled “Immigration Benefits—Several Factors Impede Timeliness of Application Processing” (May 2001), identified inadequate automation as one of the three factors which has impeded the INS' ability to reduce backlogs, improve processing times, and effectively manage its workload.
Since fiscal year (FY) 1998, the costs of providing immigration and naturalization benefits have risen as a result of general cost-of-living increases. Therefore, the fees need to be adjusted to recover the full costs associated with the benefits provided.
The major Service programs that support immigration and naturalization services are discussed below.
The
Naturalization processes also include the examination of aliens to determine their qualifications for naturalization, the issuance of citizenship documents, the appearance of Service officials and the conduct of administrative naturalization oaths, and the appearance of Service officials at Federal and State Courts that administer naturalization oaths.
The A&N Program operates in District Offices located throughout the United States, and in four Service Centers located in California, Texas, Nebraska, and Vermont. Applications for immigration, nationality and citizenship benefits, and naturalization are received and adjudicated by a corps of immigration Adjudication Officers and adjudication support personnel. District Officers adjudicate cases that may require personal appearances by applicants and petitioners. Service Center operations concentrate on cases that can be processed without individual appearances, and benefit from the economies generated by large volume, production-oriented processing.
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The Service conducted a partial review of the current fee levels in FY 1999. This review attempted to build upon the extensive work completed in a 1997 review. In the FY 1999 review, the Service made numerous changes to the underlying methodology of the 1997 review and selected a few forms to conduct further analysis. As a result of the methodology changes, the FY 1999 model produced different fee levels than the 1997 review. However, the Service could not easily explain the programmatic reasons for the changes in fee levels,
Because of the apparent problems with the FY 1999 review, the Service is relying primarily on the 1997 review, on which the majority of current fees are based, to determine the proposed fees. This is consistent with OMB's statement in Circular No. A-25 that “full cost shall be determined or estimated from the best available records of the agency.” Sec. 6(d)(1)(e). The 1997 review was based on an Activity-Based Costing (ABC) methodology to determine the full costs of processing immigration and naturalization applications and petitions. ABC is sanctioned by FASAB as one of the recommended full cost methodologies. In the 1997 review, applying ABC involved an in-depth analysis of resources, resource drivers, activities, activity drivers, and applications/petitions. The Service continues to believe that the current fees accurately represented the costs for adjudicating cases in 1998. However, costs have increased as a result of inflation.
Therefore, the current fees have been adjusted for inflation (per OMB inflationary factors) from 1998 to 2002. The adjusted fee level was then averaged with the 2003 inflationary fee level, as the fee is anticipated to be effective during 2002 and 2003. The Service then applied $5.00 equally to all applications and petitions to recover information technology and quality assurance costs that are not included in the current fee levels. The Service believes that this approach recovers the full costs of processing immigration applications/petitions that it expects to receive over the next two years.
The Service requests comments on whether it should set separate fee schedules for FY 2002 and FY 2003 versus a single, blended schedule that is
Yes, the Service plans on conducting a new fee study during the next two years. Based on its experience with the 1999 review, the Service plans on conducting a review of all application forms, as it did in the 1997 review. As with this proposed rule, the Service intends to continue using activity-based costing methodology as the primary basis for the fees.
The Service began to operate its own fingerprint program in 1998. Individuals applying for certain immigration and naturalization benefits that require an FBI criminal background check are fingerprinted by one of four methods. The four methods are as follows:
(1) The Service fingerprints the majority of individuals at 129 Service offices known as Application Support Centers (ASCs);
(2) Designated Law Enforcement Agencies (DLEAs) that have entered into cooperative agreements with the Service fingerprint individuals who do not reside near an ASC;
(3) Service personnel use mobile equipment to fingerprint individuals at remote locations (mobile routes);
(4) United States consular offices or military installations abroad fingerprint individuals residing outside of the United States.
The Service charges a fee to recover the operating costs of its fingerprinting program. Congress directed the Service to implement changes to its fingerprinting process within three months. This short timeframe did not allow for an in-depth analysis of the costs. Accordingly, the Service initially estimated the appropriate fee for fingerprinting at $25 per individual and the fee was established by publication of an interim rule in the
To determine the actual cost of fingerprinting individuals applying for certain immigration and naturalization benefits, the Service reviewed the FY 1999 costs of operating the fingerprint program. The applications included in this review were Forms I-360, Petition for Amerasian, Widow(er), or Special Immigrant; I-485, Application to Register Permanent Residence or Adjust Status; I-600/600A, Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of Orphan Petition; I-817, Application for Benefits under the Family Unity Program; and N-400, Application for Naturalization. The Service determined the number of individuals fingerprinted by taking an average of the number of prints taken for FY 1998 and FY 1999 in order to allow for variances in available application volumes. To determine the fingerprinting unit cost for individuals seeking certain immigration and naturalization benefits, the Service divided the cost of the fingerprint capture program by the average number of individuals fingerprinted.
The Service assigned the cost of operating and maintaining the ASCs, DLEAs, and mobile routes to the cost of operating and maintaining the fingerprint capture program. The main costs included the fee for contractor services at the ASCs and the Service's labor cost for persons assigned to the fingerprinting program. The FY 1999 cost was adjusted for inflation (per OMB inflationary factors) to FY 2000 and FY 2001, and averaged FY 2002 and FY 2003 costs, as the fee is anticipated to be effective during these latter fiscal years.
The proposed fees, current fees, and their dollar differences are displayed in Table 1.
Based on its review of costs, the Service is proposing to increase the fingerprint fee to $50. The proposed fee has been rounded up to the nearest whole $5 in accordance with the Service's standard practice.
In an interim final rule published June 1, 2001, Adjustment of Status Under Legal Immigration Family Equity (LIFE) Act and Legalization Provisions and LIFE Act Amendments Family Unity Provisions, 66 FR 29,661, 29,672 (June 1, 2001), the Service established a $330 fee for filing legalization applications under section 1004 of the Legal Immigration Family Unity Equity Act (LIFE Act) and the LIFE Act Amendments. In establishing the fee, the Service first identified the adjustment of status application (Form I-485) process as most similar to the new legalization application process.
The Service now questions the methodology and limited nature of this review and is proposing that the Form I-485 fee be $255. However, the Service also recognizes that there are start-up costs associated with processing legalization applications that were not accounted for in the 1999 review and, therefore, will not be recovered with the proposed Form I-485 fee. As a result, the Service is currently reviewing the $330 fee established for filing legalization applications. In light of these developments, the Service intends to publish a separate
Yes, the Service has the authority to waive fees on a case-by-case basis pursuant to 8 CFR 103.7(c).
The Administration is committed to building and maintaining an immigration services system that ensures integrity, provides services accurately and in a timely manner, and emphasizes a culture of respect. The President proposed a universal six-month processing standard for all immigration applications. To support this standard, the 2002 Budget proposed $100 million—the first installment in a five-year, $500 million initiative to address the backlog problem.
In contrast to the budget, which requests appropriated resources to eliminate the application backlog, this proposed rule addresses the costs of processing cases that will be filed over the next two years. If the Service does not adjust the current fees to reflect the costs of processing applications and petitions, the backlog will likely increase.
The Attorney General, in accordance with 5 U.S.C. 605(b), has reviewed this regulation and by approving it has determined that this rule will not have a significant economic impact on a substantial number of small entities.
The majority of applications and petitions are submitted by individuals and not small entities as that term is defined in 5 U.S.C. 601(6).
The Service acknowledges, however, that a number of small entities, particularly those filing business-related applications and petitions, such as Forms I-140, Immigrant Petition for Alien Worker; I-526, Immigrant Petition by Alien Entrepreneur; and I-829, Petition by Entrepreneur to Remove Conditions may be affected by this rule. For FY 2001, the Service projects approximately 130,000 Forms I-140, 400 Forms I-526, and 400 Forms I-829 will be filed. However, this volume represents petitions filed by a variety of businesses, ranging from large multi-national corporations to small domestic businesses. The Service does not collect data on the size of the businesses filing petitions, and therefore does not know the number of small businesses that may be affected by this rule. Even if all of the employers applying for benefits met the definition of small businesses, however, the resulting degree of economic impact would not require a Regulatory Flexibility Analysis to be performed.
This rule will not impose a mandate of enforceable duty on State, local and tribal governments, in the aggregate, or on the private sector, and it will not significantly or uniquely affect small governments. Accordingly, no further actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is a major rule as defined by the Small Business Regulatory
The projected increase in revenues probably overstates the actual receipt of applications and petitions because it is likely that there will be fewer applications and petitions filed due to the implementation of the higher fees. The decrease in volume due to the higher fees has a real economic effect in that there will be fewer people applying for and receiving services paid for by the Service's user fees.
This rule is considered by the Department of Justice to be an economically “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, because it will have an annual effect on the economy of over $100 million. Without the fee adjustments, the Service estimates that it will collect approximately $815 million in fees for immigration and naturalization benefits in FY 2002. If the fee adjustments become effective on January 1, 2002, the Service anticipates collecting approximately $942 million in FY 2002—$127 million in additional revenue.
The projected increase in revenues probably overstates the actual receipt of applications and petitions because it is likely that there will be fewer applications and petitions filed due to the implementation of the higher fees. The decrease in volume due to the higher fees has a real economic effect in that there will be fewer people applying for and receiving services paid for by the Service's user fees.
This increase in revenue will be used to fund the processing of immigration and naturalization applications and petitions. The revenue increase is based on the Service's costs and workload volumes. The volume of applications and petitions filed is projected based on a regression analysis of a 5-year history of actual applications and petitions received by the Service. The regression analysis is adjusted for any anticipated or actual changes in laws, policies, or procedures that may affect future filing patterns. The proposed fees will be paid by an estimated 6.6 million individuals and businesses filing immigration and naturalization applications and petitions. Accordingly, this regulation has been submitted to OMB for review.
This rule 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, the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Under the Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 109 Stat. 163 (1995), all Departments are required to submit to OMB, for review and approval, any reporting or recordkeeping requirements inherent in a final rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.
Administrative practice and procedure, Authority delegations (Government agencies), Freedom of Information, Privacy, Reporting and recordkeeping requirements, Surety bonds.
Accordingly, part 103 of chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 103 continues to read as follows:
5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p.166; 8 CFR part 2.
2. In § 103.7, paragraph (b)(1) is amended by revising the entry “For fingerprinting by the Service” and by revising the entries for the following forms. The revisions read as follows:
(b) * * *
(1) * * *
Federal Housing Finance Board.
Proposed rule.
The Federal Housing Finance Board (Finance Board) is proposing a small number of modifications to the capital and related regulations that were adopted on December 20, 2000. Many of the changes were identified in response to an advance notice of proposed rulemaking (ANPR) relating to unforeseen issues that were not addressed by the final capital rule. In addition to proposing certain conforming amendments, the Finance Board is proposing to clarify that the Federal Home Loan Banks (Banks) may pay dividends on Class A stock from retained earnings, to provide Banks with discretion to prohibit members from transferring Bank stock, to define the phrase “charges against the capital of the Bank”, to clarify the off-balance sheet conversion factors for commitments to make advances and commitments to acquire loans, to change the provision governing the membership termination date for members seeking to voluntarily withdraw from the Bank System, and to add a requirement that a Bank make certain disclosures to its members before its capital plan can be implemented. This proposal also addresses other issues arising under the capital rule that, based on the ANPR comments, appear to require additional explanation or clarification, even though no amendments to the regulations are being proposed.
The Finance Board will consider written comments on the proposed rulemaking that are received on or before September 7, 2001.
Send comments to: Elaine L. Baker, Secretary to the Board, by electronic mail at , or by regular mail to the Board, at the Federal Housing Finance Board, 1777 F Street, NW., Washington, DC 20006. Comments will be available for inspection at this address.
James L. Bothwell, Managing Director, (202) 408-2821; Scott L. Smith, Acting Director, (202) 408-2991; Ellen
The Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 133 Stat. 1338 (November 12, 1999) (GLB Act), amended the Federal Home Loan Bank Act (Bank Act) to change, among other things, the capital structure of the Banks from a “subscription” structure to one that includes both risk-based and minimum leverage requirements. The GLB Act also required the Finance Board to prescribe uniform capital standards for the Banks and required each Bank to adopt and implement a capital plan consistent with provisions of the GLB Act and Finance Board regulations.
In addition to approving the new capital regulations, the Finance Board adopted on December 20, 2000 a resolution directing its staff to develop an ANPR that would seek comment on any issues that could arise in the capital planning process, from actions of other regulatory bodies or from other events in the general economy that could affect the capital development of the Banks, and that could require further action by the Finance Board. Accordingly, on March 2, 2001, the Finance Board approved an ANPR to help identify issues or uncertainties that were not contemplated by, or fully addressed in, the final capital rule or that have arisen only after the Banks have begun to develop their capital plans.
The Finance Board received 16 comment letters on the ANPR. Eight letters were from Banks, five from trade associations, and three letters were from Bank members, although two of the member comment letters were from the same member. The Finance Board has carefully considered all comments received on the ANPR. It is addressing below, however, only those issues that were not fully considered and resolved in the final capital rule, that have arisen since the Finance Board adopted the capital rule or that appear to require additional clarification or explanation. Some of the issues are addressed by proposing specific changes to the capital rule. In other cases, the Finance Board addresses the issues through a more complete explanation of current regulatory provisions.
The first issue assumes that a member is required to hold Class B shares to support outstanding borrowing from a Bank and is required to hold Class A shares as a condition of membership. Under those circumstances, the Bank asked whether a member withdrawing from the Bank could redeem its Class A stock at the end of the six-month redemption period or must the member wait until the end of the five-year Class B redemption period.
As adopted, § 925.26(b) sets the effective date of a member's termination as of the date on which the last of the applicable stock redemption period ends for the member's stock, whether the stock in question is held as a condition of membership, to fulfill an activity-based stock purchase requirement or as excess stock, unless the member cancels its withdrawal notice before that date. Thus, this provision would appear to prevent the Bank from redeeming Class A stock at the end of the six-month redemption period because that stock would be required to be held as a condition of membership until the membership terminates at the end of the five-year redemption period for the member's outstanding Class B stock. Because the rule appears effectively to extend the redemption notice period for Class A stock in the situation described by linking the membership termination to activity-based stock purchase requirements, and thereby, may burden members unnecessarily, the Finance Board is proposing to change the regulation. Under the proposed change, the membership of an institution that has submitted a notice of withdrawal would terminate as of the date on which the last of the applicable stock redemption periods end for the stock that is held as a condition of membership, as that requirement is set out in the Bank's capital plan, unless the institution has cancelled its notice of withdrawal prior to that date. If adopted, the proposed change would, in situations like those described by the Bank, require the Bank to redeem the Class A shares that are held as a condition of membership at the end of six-months, unless a Bank's membership requirement also required a member to hold Class B stock. In most cases, however, the Finance Board believes that the proposed rule change would help assure that the redemption date for the Class A stock held as a condition of membership would correspond to the date on which the member's withdrawal became effective.
The Bank also requested a clarification of the application of § 925.26(c), to a member that continues to participate in an activity after filing a notice of withdrawal. Specifically, the Bank asked if the redemption period for any additional Class B stock bought to fulfill an activity stock purchase requirement would begin to run from the date that the original withdrawal notice was filed, from the date of purchase of the new Class B stock, or some other date.
Under § 925.26(c), as adopted, the receipt by the Bank of a member's notice to withdraw commences the applicable stock redemption period for all Bank stock held by the member that is not already subject to a redemption request. The regulation does not address when the redemption period would commence for Bank stock purchased after the notice to withdraw has been submitted (such as to support new advances taken by the member). The regulation currently sets a minimum standard for the commencement of the notice period, as required by the Bank Act.
Alternatively, the redemption period may not be effectively lengthened either. For example, consider a member that holds only Class B stock, provides the Bank with a notice of withdrawal, and on the same day takes down a seven-year advance and purchases the additional Class B stock to support the advance. Five years after the notice of withdrawal, membership would terminate and all excess stock would be redeemed. The member, however, still would have an advance outstanding and still would hold stock that supports the advance. At the time of withdrawal, the member would have the option to hold the advance until maturity—in this case, another two years. If the institution makes the decision to hold the advance until maturity, the Bank would have to redeem the stock supporting the advance once the advance has been repaid, because the five-year redemption notice period would have elapsed two years earlier.
The Finance Board does not believe that a change in § 925.26(c) is required and intends to maintain the current flexibility provided in the rule, as outlined above.
The Finance Board received comments from several Banks, all of which generally favored amending the regulations as necessary to permit the payment of Class A dividends from retained earnings. One Bank commented that the GLB Act should be construed as permitting dividends to be paid to Class A shareholders from retained earnings. Another Bank recommended that the GLB Act provisions giving Class B shareholders an ownership interest in the retained earnings be construed to mean that Class B shareholders get the retained earnings upon liquidation or the declaration of a dividend, but at all other times the board of directors is free to use the retained earnings in the ordinary course to pay an FHLBank's obligations, including the declared dividends on Class A Stock. A third Bank indicated that it plans to address any potential problem paying dividends on Class A stock from retained earnings by requiring all members to hold Class B stock; therefore no class of its members will be disadvantaged by a decision to pay dividends on Class A stock. That Bank further indicated that it would limit the amount of dividends paid on its Class A stock to the amount of its current earnings (presumably after they have been transferred to retained earnings), so that there would be no expropriation of retained earnings from a previous period by Class A shareholders. That Bank asked the Finance Board to clarify the conditions under which the Banks may be permitted to pay dividends on Class A stock.
A fourth Bank concurred that there is no indication that Congress intended to deprive Class A shareholders of dividends when it granted ownership of retained earnings to the Class B shareholders, and recommended that the Finance Board permit a Bank to pay Class A dividends from current earnings that have been closed to the Bank's retained earnings account.
The question about the use of retained earnings as a source of dividends for a Bank's Class A stock arises because of the interrelationship of three provisions of the Bank Act. One provision permits a Bank to pay dividends on its stock only from two sources: previously retained earnings and current net earnings. 12 U.S.C. 1436(a). A separate provision, added by the GLB Act, provides that the holders of the Class B stock shall own the retained earnings of the Bank. Id. Section 1426(h)(1). Yet another provision authorizes the Banks to issue either, or both, Class A and Class B stock and to establish the “terms, rights, and preferences including * * * dividends * * * of each class of stock * * * consistent with Finance Board regulations and market requirements.”
The use of current earnings as a source of dividends (whether for Class A or Class B stock) is problematic because under GAAP a Bank must close its current earnings to its retained earnings account at the close of each accounting period. Although the previously retained earnings of a Bank are, by statute, a source for the payment of dividends, the GLB Act provisions conferring on the Class B stockholders an ownership interest in the retained earnings have created some uncertainty about whether a Bank may use its retained earnings to pay dividends on its Class A stock or only on its Class B stock.
As noted above, there are other provisions of the GLB Act that suggest strongly that the Congress did not intend that the retained earnings provision should be read so narrowly as to preclude the payment of dividends on the Class A stock. For example, Congress provided that each Bank must include in its capital plan, among other things, provisions relating to the “terms, rights, and preferences, including * * * dividends * * * of each class of stock issued by the bank, consistent with Finance Board regulations and market requirements.”
Given the intent of Congress to allow an individual Bank, subject to Finance Board regulation, to determine the dividend rights for any class of stock that it issues, it appears unlikely that the Congress also intended to preclude a Bank from paying any dividends on the Class A stock. Even if the Congress were to have intended that result, it is more likely that the Congress would have done so expressly, rather than indirectly by enacting a new provision that is somewhat at odds with a long-standing provision of the Bank Act regarding the available sources of dividends for Bank stock. Moreover, construing these provisions of the Bank Act in a manner that would effectively preclude the payment of dividends on the Class A stock could make it difficult, if not impossible, for a Bank to sell Class A stock to its members. That would be an absurd result, in light of the clear intent of the Congress to create a new capital structure for the Banks. For those reasons, the Finance Board believes that it should construe these provisions to allow the payment of dividends on Class A stock from retained earnings, as those amounts may be calculated under GAAP. Accordingly, the Finance Board proposes to amend § 931.4 to state expressly that a Bank may pay dividends on both Class A and Class B stock from either of the sources specified in 12 U.S.C. 1436(a).
The limited circumstances set forth in § 931.6 in which a member can transfer Bank stock to another member are broadly consistent with current practice for stock transfers that have long been allowed under the Bank Act.
Upon consideration of this comment, the Finance Board believes that it would be consistent with the discretion afforded a Bank in the GLB Act “to establish standards, criteria, and requirements for the * * * transfer * * * of stock issued by that bank,”
Section 931.8 specifies that a Bank may not redeem or repurchase capital stock without the written permission of the Finance Board if the Finance Board or the board of directors of the Bank determines that the Bank has or is likely to incur losses that result in or are likely to result in charges against the capital of the Bank. The prohibition of § 931.8 applies even if the Bank would be in compliance with its regulatory capital requirements after the stock repurchase or redemption and for as long as the Bank continues to incur such charges or until the Finance Board determines that such charges are not expected to continue. This provision implements the requirements of § 6(f) of the Bank Act, as amended by the GLB Act, which states that:
After further consideration, the Finance Board agrees that the phrase “charges against the capital of the Bank” as used in § 931.8 should be clarified. The phrase is taken from 6(f) of the Bank Act, as amended by the GLB Act, but it is not defined in that provision or elsewhere in the statute. More generally, while the statute defines both “permanent capital” and “total capital”, the term “capital” itself is not defined in the Bank Act. The Finance Board, however, believes that, given general principles of statutory construction, the purpose of the statutory provision and the regulatory scheme established by the Bank Act, the phrase “charges against the capital of the Bank” is more reasonably interpreted to mean a charge against the capital stock of a Bank.
General rules of statutory constructions dictate that every word or clause in a statute should be given effect.
More importantly, interpreting “charges against the capital of the Bank” to include a charge against retained earnings would seem inconsistent with other provisions in the statute. Specifically, the Bank Act authorizes the Banks to pay dividends from previously retained earnings, but contains no prohibition on paying such dividends if the Bank is or is about to incur a loss.
Thus, the Finance Board believes that the phrase “charges against the capital of the Bank” should be interpreted to mean a charge against the capital stock of the Bank.
In adopting Table 2, the Finance Board divided a category that had been proposed as “commitments to make advances or other loans” into two categories one of which covered commitments to make advances and the other which covered commitments to acquire loans. This change recognized that under Acquired Members Asset (AMA) programs, the Banks may enter into certain commitments to acquire loans that may be recorded as off-balance sheet items. Like the former category, the new categories of commitments were given a 100 percent conversion factor.
The Finance Board received comments from seven Banks on the off-balance sheet credit conversion factor for commitments to acquire loans. Generally, the commenters expressed concern that “master commitments” to acquire loans under AMA programs would appear to have a 100 percent conversion factor even though such commitments were not an accurate indicator of future acquisitions. Commenters suggested that the Finance Board conform its requirements to those of other federal bank regulators, who would apply a 100 percent conversion factor only to commitments subject to “certain drawdown,” (
Because it was generally the intent of the Finance Board to conform to the extent possible its credit risk charges to the Basle Accord as currently incorporated by the federal bank regulatory agencies, the Finance Board is proposing to revise the credit conversion factors of Table 2 so that the 100 percent credit conversion factor applies only to commitments subject to certain drawdown. Further, the Finance Board is proposing to define certain drawdown to mean a legally binding agreement that commits the Bank to make an advance or to acquire a loan, at or by a specified future date.
Because, as noted by one Bank, AMA master commitments to acquire loans, in general, appear to be effectively cancelable by either party, it appears that most, if not all AMA master commitments, would not be commitments subject to certain
The Guidance indicates that the Finance Board will review materials and communications made available by the Banks to their members for the quality of information provided regarding a number of issues, including: (1) Adequate description of the member's minimum investment requirements; (2) sufficient information to describe whether the capital requirements favor some members over others, or whether certain activities are priced to encourage or discourage member participation; (3) sufficient description of the Bank's dividend policy, including discussion, as appropriate, of any risk factors that could adversely affect dividends, and of the potential impact of different member leverage and risk-based capital requirements on return on equity; (4) description of the Bank's current operating and financial condition, including material issues that bear on the future operations of the Bank; and (5) description of any changes in products, activities and strategies contemplated in the Bank's capital plan or strategic plan.
As the Guidance was being developed, and even after the Guidance was transmitted to the Banks, a number of the Banks have requested clarification with respect to the type and amount of communications they should or will be required to provide to members in connection with their capital plans. The Finance Board was not inclined initially to impose specific disclosure requirements on the capital plan process, choosing instead to leave the entire member outreach process to the discretion of the Banks. Given that the use of disclosure documents can be a valuable tool in any member outreach program, given that the Banks have continued to ask for assistance in this area, and given that the quality of disclosure on a number of important issues will play a critical role in the Finance Board's review of the capital plans, the Finance Board has now come to believe that there is merit in prescribing a baseline of required disclosure that would help the Banks meet the criteria established in the Guidance. The Finance Board believes also that it is appropriate to look to the disclosure standards established by the Securities and Exchange Commission (SEC) as the model for any disclosure requirements that it includes in its rules, and it has done so in drafting proposed § 933.5.
The proposed rule first would require that no capital plan become effective until disclosure meeting the requirements of Item 11(a) through (d) and Item 12(a) through (e) of Schedule 14A of the SEC's proxy rules (17 CFR 240.14a-101, Items 11 and 12) (Proxy Statement Disclosure) and of § 933.5(b) of the proposed rule has been provided to members. Finance Board rules establish the effective date of a Bank's capital plan as the date on which the Bank first issues any Class A or Class B stock.
Items 11 and 12 of Schedule 14A are usually thought of as mutually exclusive provisions—Item 11 requires disclosure regarding transactions in which action is to be taken with respect to the authorization or issuance of securities otherwise than for exchange of outstanding securities of the issuer; Item 12 requires disclosure regarding transactions in which action is to be taken with respect to the modification of any class of securities of the issuer, or the issuance or authorization for issuance of securities of the issuer in exchange for outstanding securities of the issuer. Because of the unique nature of the Banks and of this capitalization, the transactions that will occur upon implementation of the Banks' capital plans are something of a hybrid. Rather than try to characterize the transactions as one or the other, § 933.5(a) of the proposed rule contemplates that the appropriate disclosure from both items would be provided, such as: the title and amount of securities “authorized” under the capital plan (Item 11(a)); the information required by Item 202 of Regulation S-K of the SEC's regulations (17 CFR 229.202) (a description of dividend rights, and other rights, terms and preferences of the stock) (Item 11(b)); a description of any material differences between the outstanding securities and the “new” securities in respect of any Item 202 of Regulation S-K matters (Item 12(b)); the reasons for the transaction and the general effect upon the rights of existing security holders (Items 11(d) and 12(c)); and a brief outline of any other material features of the capital plan (Item 12(e)).
Section 933.5(b)(1)(i) of the proposed rule would require disclosure of financial information that is in scope, form and content consistent with the requirements of the SEC's regulations S-X and S-K (17 CFR parts 210 and 229). The proposed rule also would require disclosure of pro forma financial information related to the implementation of the capital plan, consistent with that referenced in the Guidance. Proposed § 933.5(b)(1)(ii) would require disclosure of quarterly pro forma balance sheets and income statements covering two years from the “as of” date (next-to-latest quarter or latest quarter-end prior to submission of the capital plan) or, at a minimum, six quarters from the expected date of conversion to the new capital stock, whichever time period is greater, in detail sufficient to illustrate changes in the Bank's capital structure, dividends, product volumes, investment volumes, new business lines, and risk profile. Section 933.5(b)(1)(iii) of the proposed rule would require disclosure of the pro forma risk-based capital requirement for the “as of” date and for the quarterly periods reflected pursuant to proposed § 933.5(b)(1)(ii), if not already included
Any of the financial information required by proposed § 933.5(b)(1) may be incorporated by reference into the disclosure document chosen by the Bank, provided the information being incorporated is contained in an annual or quarterly Bank or Bank System report, or in information filed with the Finance Board as a part of the capital plan approval process, and the disclosure document identifies the information being incorporated by reference.
The Finance Board is not prescribing a form to be used by the Banks in providing the required disclosure to members. The full range of possible formats is available—proxy statements (if the Bank is choosing to seek a member vote), information statements, letters, brochures—and the Bank is free to make use of whatever format it believes is appropriate.
The Finance Board is also proposing that members be provided all disclosures that would be required under § 933.5 of the proposed rule at least 20 days prior to the intended effective date of a Bank's capital plan. In thinking about models for a suitable timeframe, the Finance Board once again looked to the securities laws for help, and specifically to the proxy statement analog. Many state corporate codes impose a meeting notice or proxy statement delivery requirement minimum of ten days on state-chartered business corporations. For example, the Delaware General Corporate Code states that written notice of any meeting shall be given not less than 10 nor more than 60 days before the date of the meeting to each security holder entitled to vote at the meeting.
The reason for a minimum information delivery requirement is to allow shareholders adequate time to consider the issues involved in the actions being taken. Generally speaking, the more complex or essential to the life of the corporation the action is, the longer the prior delivery period would be to be deemed reasonable. So, while ten days would be adequate time for shareholders to consider a slate of directors for an uncontested election, shareholders are required to be given a minimum of 20 days to study the implications of a corporate acquisition under the SEC's proxy rules, even if no vote is required.
The Finance Board believes that the implementation of the new capital structures for the Banks would generally be considered an issue of importance to Bank members. The Finance Board also believes that delivery of the required disclosure at least 20 days prior to the effective date of a capital plan, would provide a member with reasonable opportunity to opt out of the “conversion” under the capital plan if the member so desired while not unreasonably delaying the Bank's implementation of the capital plan once the capital plan had been approved by the Finance Board. It should be noted that the proposed rule provides that all required disclosure “shall be transmitted, sent, or given to members” at least 20 days prior to the effective date of a Bank's capital plan; therefore, the disclosure material does not have to be in members hands 20 days prior to the capital plan's effective date. However, it is the Finance Board's intent that the Banks choose a reasonably expeditious form of transmission for the disclosure material so as not to render the 20-day period a nullity. Regular, first class mail is presumed, but other reasonably prompt methods of distribution may be used instead of mailing. The Finance Board requests comment on whether a longer or shorter time period may be more reasonable than the 20 days now proposed in § 933.5(a).
Finally, the Finance Board wishes to stress that these provisions are being proposed primarily to add consistency, clarity and precision to the regulations. It is not the Finance Board's intention to impose liability under the federal securities laws on the Banks, nor to create any private right of action. Therefore, the Finance Board has included proposed § 933.5(c) to make clear that nothing in § 933.5 would create or be deemed to create any rights in any third party.
Three Banks and one member institution commented on this matter.
The member institution generally opposed allowing a Bank to acquire out-of-district assets arguing that such investments shifted risks from the out-of-district seller to the Bank members. The member also opposed capitalizing out-of-district assets through voluntary stock purchases because these purchases could create distinctions between owners and users of the Bank System, and ultimately raise safety and soundness concerns because non-user owners would be more likely to leave the system in times of financial stress.
Based on these comments, the question of capitalizing out-of-district assets does not appear to raise issues that are immediately pressing. As the two commenters noted, out-of-district assets are similar to, and can be capitalized in the same manner as, any other Bank investment that does not have a direct nexus with a Bank member. Further, it does not appear that the Banks' current investments in out-of-district assets are raising safety and soundness concerns or changing the nature of the Bank System along the lines described by the member institution in its comments. The Finance Board also believes that it is at best unclear whether the suggestion that it allow the conditioned sale of Class B stock to members of another district would be consistent with the statutory dictates that a Bank's stock only be held by members of that Bank.
Because it is possible that some members of a Bank that has issued both Class A and Class B stock might not own both classes of stock as of the record date, the commenters questioned whether the Bank should calculate the average number of shares outstanding by using as the denominator all of the members that are located within a particular state or just the total number of members within that state that own the particular class of stock as of the record date. The Finance Board believes that the statutory language, which refers to the amount of stock “required * * * to be held” by the “members of such bank located in such State,” requires that the calculation of the state averages be done based on the total number of members located in the particular state, regardless of whether certain of those members own both classes of stock. Because the Bank Act gives each Bank considerable latitude in establishing the minimum stock purchase requirements to be imposed on each of its members, it is possible that a capital plan could impose a stock purchase requirement of “zero shares” on certain of its members for one class of stock. For example, if a capital plan were to require a member to purchase Class A stock for membership purposes and to purchase Class B stock for activity purposes, any member that had no outstanding advances or other business activities as of the record date would have a stock purchase requirement for the Class B stock of “zero shares”. Under section 7(b) of the Bank Act, the Banks must use the amount of stock “required to be held” by each member in calculating the average stock holdings for each state. Even though the new capital provisions adopted by the GLB Act allow for the possibility that the amount of a particular class of stock that is “required to be held” by a particular member may be zero in certain circumstances, that possibility alone does not justify disregarding the “required to be held” language in the Bank Act. Accordingly, the Finance Board is not proposing to amend its regulations to exclude from the calculation members who happen to own no shares of a particular class of stock as of the record date. In order to avoid any uncertainty on this issue, however, the Finance Board is taking this opportunity to make clear that the state-by-state calculation of the average stock ownership is to be conducted using in the denominator the number of members that were located in the particular state as of the record date.
The following example illustrates how the voting rights should be computed in an election of directors for a Bank that has issued both Class A and Class B stock but where some members do not own both classes of stock. Assume that a Bank were to have 100 members located in a particular state, each of which each owned various amounts of Class A stock, but only 60 of which also owned shares of Class B stock. Assume further, that the amount of Class B stock required to be held by those 60 members varies from member to member, but in the aggregate totals 800 shares. When computing the average number of Class B shares required to be held by the members in that state, the denominator would be 100 (representing the 100 members located in that state) and the numerator would be the aggregate amount of Class B stock required to be held as of the record date, which would be 800 shares. Thus, the maximum number of votes that any one of the 60 members from that state could cast based on its Class B stock ownership would be 8 votes (800 shares ÷ 100 members = 8 shares). Any member required to hold 8 or fewer shares of Class B stock as of the record date would be unaffected by the cap, but any other members required to hold more than 8 shares of Class B stock could cast no more than 8 votes in the election of directors, based on their Class B stock ownership. To the extent that those 60 members also were required to hold shares of Class A stock as of the record date, they could cast a number of votes based on their Class A
The commenters also stated that § 931.7(a) appeared to require a Bank to redeem a member's excess stock at the end of the required notice period. They believed that such an interpretation was contrary to section 6(e)(1) of the Bank Act, 12 U.S.C. 1426(e)(1), which they interpreted as providing a Bank with discretion to decline to redeem excess stock. Several of the commenters expressed concern that a mandatory redemption requirement would undermine the reasoning of the Internal Revenue Service's ruling allowing tax deferred treatment of dividends paid out as Bank stock, and would result in the loss of tax deferred treatment for these stock dividends
After considering these comments, the Finance Board believes that it should provide additional explanation concerning the redemption and repurchase provisions of the Bank Act and the Finance Board rules.
First, the redemption and repurchase rules do not prohibit a Bank from repurchasing excess stock for which a member has already filed a redemption notice as some commenters seem to fear. Section 6(e)(1) of the Bank Act states that “a Bank, in its sole discretion, may redeem or repurchase, any shares of Class A or Class B stock issued by [it] and held by a member that are in excess of the minimum stock investment required of that member.” In the Finance Board's view, this provision provides a Bank with the discretion either to repurchase a member's excess stock or to wait for the end of the applicable notice period to redeem such excess stock. This discretion is fully captured in § 931.7(b) of the Finance Board's rules, which states that a “Bank, in its discretion and without regard to the applicable redemption periods, may repurchase from a member any outstanding Class A or Class B capital stock that is in excess [of the member's minimum investment requirement].” 12 CFR 931.7(b). Section 931.7(b) does not limit the Bank's right to repurchase stock only to those shares of excess stock for which a member has not filed a notice of redemption. Thus, a Bank already has the discretion to repurchase any excess shares of stock without regard to the notice period, whether or not a member has filed a notice to redeem such stock, and no further changes need to be made to § 931.7(a) to provide this right. The right to repurchase excess stock, however, would be subject to other applicable limitations in the Bank Act, the capital regulations and a Bank's capital plan, including those in §§ 931.7(c) and 931.8 of the Finance Board rules, 12 CFR 931.7(c) and 931.8.
Second, the Finance Board wishes to reiterate that § 931.7(a) requires that a Bank redeem stock at the end of the statutory redemption, except if the limitations set forth in §§ 931.7(c) and 931.8 of the Finance Board rules apply. Before adopting the final capital rule, the Finance Board considered the question of whether the Bank Act provided a Bank with the discretion to deny a redemption request. The Finance Board concluded that:
The Finance Board also declines to adopt the commenter's suggestion to revise § 931.7(a) to allow a Bank to repurchase stock held pursuant to a membership requirement upon the filing of a notice to withdraw from membership and prior to the expiration of the required notice period, because this change appears to be contrary to the statute. The GLB Act allows only excess stock to be repurchased prior to the end of the statutorily imposed notice periods. Under the statutory scheme as implemented by the Finance Board
The Finance Board also has received inquiries about whether stock held by a member of one Bank may be considered to be excess stock (and thus eligible for repurchase) whenever that institution merges into a member of another Bank. As noted above, the Bank Act expressly provides that the submission of a notice of withdrawal from membership or the termination of membership in any other manner (such as through a merger into a member of another Bank) do not cause the stock of the member to become excess stock. Accordingly, such a merger, in and of itself, cannot cause the disappearing member's Bank stock to become excess stock. As a practical matter, however, some or all of the Bank stock owned by a member that has merged into a nonmember of that Bank could become excess stock as a result of the Bank's next calculation of each member's minimum stock purchase requirement. In the normal course, each Bank likely will adjust periodically the amount of Bank stock that each member is required to own as a condition of membership; under the current capital structure, such calculations are done at least annually. If a member were to merge out of existence during the course of the year, its membership will have terminated. As of the next annual calculation of that institution's minimum stock purchase requirement, the amount of stock required as a condition of membership may well be zero (depending on the terms of that Bank's capital structure plan) and the amount of the activity-based stock purchase requirement will depend on what portion of the prior member's business activities were assumed by the surviving institution. If the annual recalculation were to reduce the membership component of the stock purchase requirement to zero, all Bank stock formerly held as a condition of membership would at that time become excess stock, and thus would be eligible for repurchase at the discretion of the Bank. Because a Bank can only calculate membership requirements under the conditions set forth in its capital plan, a Bank wishing to provide itself with the flexibility to recalculate membership requirements more frequently than annually, such as upon the completion of a merger, would have to include in its capital plan a provision allowing for more frequent calculation of the membership stock purchase requirements.
The Finance Board does not believe that a Bank should be able to deem a notice of redemption to be a notice of withdrawal, even if the member is requesting redemption of all of its required membership stock. Section 6(d) of the Bank Act sets forth the conditions for a member's withdrawal from a Bank or for the involuntary termination of its membership. 12 U.S.C. 1426(d). It would appear inconsistent with the statutory provision requiring a member to file a notice to withdraw before it may voluntarily terminate its membership in a Bank to allow the Bank to deem a redemption notice to be the equivalent of a withdrawal notice in the absence of some affirmative member action to signify its intent to withdraw.
Further, because the Bank cannot actually redeem any required membership or activity-based stock until the member's withdrawal is effective or the activity in question is no longer on the Bank's balance sheet, the Finance Board does not think that members have as great an incentive to engage in rolling redemptions as the commenter may fear, especially if the Bank intends to actively manage its excess stock position. Additionally, § 931.7(a) permits a Bank to impose a fee, to be specified in its capital plan, on a member that cancels a pending notice of redemption, which could be used to further reduce the incentive to engage in rolling redemptions. Thus, the Finance Board is not proposing any changes to its rules in response to the comments on this issue.
Permanent capital, as defined in the statute and the Finance Board regulations, equals retained earnings determined in accordance with GAAP plus the amounts paid in for Class B stock. Total capital, as defined in the statute and the Finance Board regulations, equals permanent capital plus amounts paid in for Class A stock plus, consistent with GAAP, any general allowance for losses plus the amount of any other appropriate instruments that the Finance Board has determined to be available to absorb losses. Thus by
The Finance Board emphasizes, however, that the regulatory definition for total and permanent capital differs in its meaning and calculation from the item “total capital” (which is also known as GAAP capital or GAAP total capital), which appears on the Statements of Condition for the Bank System and the individual Banks as published in their Annual and Quarterly Reports. The commenter appears to have interpreted total capital, as defined in the statute and the Finance Board's regulations, to be the same as the balance sheet GAAP total capital, which is not the case.
More importantly, the Basel Committee recently reported that “the target proportion of regulatory capital related to operational risk (i.e., 20%) will be reduced in line with the view that this reflects too large an allocation * * * to this risk as the Basel Committee has defined it.” Basel Committee Press Release, “Update on New Basel Capital Accord” (June 25, 2001) (available at
Thus, given the difficulties in directly applying the Basel approach to the Banks and current uncertainties surrounding the Basel Committee's operations risk proposal, the Finance Board continues to believe that the statutory charge imposed on the other housing GSEs, the Federal National Mortgage Association (FannieMae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), remains the best basis for assessing an operations risk capital charge for the Banks.
This language generally requires a Bank to set its minimum investment requirement at levels that provide enough capital for it to meet its regulatory capital requirements and that provide a sound and stable capitalization base after considering conditions at the Bank. The provision does not mean that excess stock may not be counted toward meeting the regulatory capital requirements. The statute provides no basis for making distinction between excess and required capital stock in calculating levels of permanent and total capital. Thus, the paid-in value of all capital stock, regardless of whether the capital stock is considered in excess of a member's minimum stock purchase requirement, counts as total capital, while the paid-in value of all Class B stock outstanding is counted as permanent capital.
The Finance Board believes that the language in section 933.2(a)(4) is accurate and does not require any change. The Finance Board, however, would like to reiterate that while excess capital is included in calculations for purposes of meeting regulatory capital requirements, placing undue reliance on excess stock to fulfill these capital requirements in a proposed capital plan may be viewed as inconsistent with the concept of “excess stock”, and the capital structure proposed in that capital plan may be viewed as deficient by the Finance Board, requiring additional action by the Bank to address the capital structure's shortcomings.
The final rule would apply only to the Banks, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (RFA). See 5 U.S.C. 601(6). Therefore, in accordance with section 605(b) of the
The proposed rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995.
Credit, Federal home loan banks, Reporting and recordkeeping requirements.
Capital, Credit, Federal home loan banks, Investments, Reporting and recordkeeping requirements.
Accordingly, the Federal Housing Finance Board proposes to amend title 12, chapter IX of the Code of Federal Regulations as follows:
1. The authority citation for part 925 continues to read as follows:
12 U.S.C. 1422, 1422a, 1422b, 1423, 1424, 1426, 1430, 1442.
2. Amend § 925.26 by revising paragraph (b) to read as follows:
(b)
3. Amend § 925.27 by revising paragraph (c) to read as follows:
(c)
4. The authority citation for part 930 continues to read as follows:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1440, 1443, 1446.
5. In § 930.1 add, in correct alphabetical order the definitions for
6. The authority citation for part 931 continues to read:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1440, 1443, 1446.
7. Amend § 931.4 by revising the first sentence of § 931.4(a) to read as follows:
(a) A Bank may pay dividends on Class A or Class B stock, including any subclasses of such stock, only out of previously retained earnings or current net earnings, and shall declare and pay dividends only as provided by its capital plan. * * *
8. Amend § 931.6 by revising the first sentence of the section and adding a new sentence at the end of the section to read as follows:
A Bank in its capital plan may allow a member to transfer any excess capital stock of the Bank to another member of that Bank or to an institution that has been approved for membership in that Bank and that has satisfied all conditions for becoming a member, other than the purchase of the minimum amount of Bank stock that it is required to hold as a condition of membership. * * * The Bank may, in its capital plan, require a member to receive the approval of the Bank before a transfer of the Bank's stock, as allowed under this section, is completed.
9. The authority citation for part 932 continues to read as follows:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1440, 1443, 1446.
10. Amend § 932.4 by revising paragraph (d) heading, revising the first sentence in paragraph (e)(2)(ii)(E) and revising Table 2 which follows paragraph (f)(1), to read as follows:
(d)
(e) * * *
(2) * * *
(ii) * * *
(E) The credit risk percentage requirement for mortgage assets that are acquired member assets described in § 955.2(a) of this chapter shall be assigned from Table 1.2 of this part based on the rating of those assets after taking into account any credit enhancement required by § 955.3 of this chapter. * * *
(f) * * *
(1) * * *
11. The authority citation for part 933 continues to read:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1440, 1443, 1446.
12. Amend § 933.2 by redesignating paragraphs (e)(4), (e)(5) and (e)(6) as paragraphs (e)(5), (e)(6) and (e)(7), respectively and by revising paragraph (e)(3) and adding new paragraph (e)(4) to read as follows:
(e) * * *
(3) Shall specify whether the stock of the Bank may be transferred among members, and, if such transfer is allowed, shall specify the procedures that a member should follow to effect such transfer, and that the transfer shall be undertaken only in accordance with § 931.6 of this chapter;
(4) Shall specify that the stock of the Bank may be traded only between the Bank and its members;
13. Add new § 933.5 to read as follows:
(a) No capital plan shall become effective until disclosure meeting the requirements of Item 11(a) through (d) and Item 12(a) through (e) of Schedule 14A of the Securities and Exchange Commission's (SEC's) rules (17 CFR 240.14a-101, Items 11 and 12) (Proxy Statement Disclosure) and of paragraph (b) of this section has been provided to members. All disclosure required under this section shall be transmitted, sent or given to members at least twenty days prior to the effective date of a Bank's capital plan.
(b) In addition to Proxy Statement Disclosure, the following information shall be provided to members:
(1) The Bank shall disclose financial information as follows:
(i) Audited balance sheets as of the end of the two most recent fiscal years, statements of income and cash flows for each of the three fiscal years preceding the date of the most recent audited balance sheet being presented, and interim balance sheets and statements of income and cash flows as of and for appropriate interim dates that are in scope, form and content consistent with the requirements of the SEC's Regulations S-X and S-K (17 CFR parts 210 and 229);
(ii) Quarterly pro forma balance sheets and income statements covering two years from the “as of” date (next-to-latest quarter or latest quarter-end prior to submission of the capital plan) or, at a minimum, six quarters from the expected date of conversion to the new capital stock, whichever time period is greater, in detail sufficient to illustrate changes in the Bank's capital structure, dividends, product volumes, investment volumes, and new business lines, and risk profile;
(iii) Pro forma risk-based capital requirement for the “as of” date and for the quarterly periods reflected pursuant to § 933.5(b)(1)(ii), if not already included in the pro forma balance sheet;
(iv) Disclosure of the assumptions underlying the pro forma financial information required by paragraphs (b)(1)(ii) and (b)(1)(iii) of this section, and the basis for these assumptions; and
(v) Any of the financial information required by § 933.5(b)(1) may be incorporated by reference, provided the information being incorporated is contained in an annual or quarterly Bank or Bank System report, or in information filed with the Finance Board along with the Bank's capital plan, and the disclosure identifies the information being incorporated by reference.
(2) Any amendments anticipated to be made to the Bank's by-laws, policies or other governance documents as a result of the implementation of the capital plan should be fully described.
(3) The Bank should state the name, address and telephone number where members may direct written or oral requests for a copy of the capital plan and any other instrument or document that defines the rights of the member/stockholders. This information shall be provided to the members without charge to them.
(4) The Bank shall provide a brief statement as to the anticipated accounting treatment and the federal income tax consequences of the transaction.
(c) Nothing in this section shall create or be deemed to create any rights in any third party.
By the Board of Directors of the Federal Housing Finance Board.
Federal Housing Finance Board.
Proposed rule.
The Federal Housing Finance Board (Finance Board) is proposing to amend the unsecured credit provision of its rules, which was adopted as part of its capital rule on December 20, 2000 and governs the amount of unsecured credit that a Federal Home Loan Bank (FHLBank) can extend to a particular counterparty. The limits adopted in December were generally stricter than the limits under which the FHLBanks operated with the Finance Board's Financial Management Policy (FMP). The proposed amendments would set the amount of unsecured credit that an FHLBank can extend to a government-sponsored enterprise (GSE) at the level allowed under the FMP, adjust the limits for sales of overnight federal funds and the limits for unsecured credit that can be extended to groups of affiliated counterparties. They also would clarify how an FHLBank should calculate its credit exposures from on- and off-balance sheet items and derivative contracts and make other technical or clarifying changes to the unsecured credit provision. On March 7, 2001, the Finance Board published for comment in the
The Finance Board will consider written comments on the proposed rulemaking that are received on or before September 7, 2001.
Send comments to: Elaine L. Baker, Secretary to the Board, by electronic mail at
James L. Bothwell, Managing Director, (202) 408-2821; Scott L. Smith, Acting Director, (202) 408-2991; or Julie Paller, Senior Financial Analyst, (202) 408-2842, Office of Policy, Research and Analysis; or Thomas E. Joseph, Senior Attorney-Advisor, (202) 408-2512, Office of General Counsel, Federal Housing Finance Board, 1777 F Street, NW., Washington, DC 20006.
On December 20, 2000, in accordance with the Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 133 Stat. 1338 (November 12, 1999) (GLB Act), the
On March 7, 2001, the Finance Board published a proposed rule requesting comment on potential amendments to certain sections of the unsecured credit requirements. Specifically, the Finance Board requested comment on adjusting the limit on a Bank's unsecured extensions of credit to a GSE, including supporting analysis concerning the appropriate level for the new limit; and on excluding from the unsecured credit limits sales of federal funds with a maturity of one day or less, or federal funds sold under a continuing contract. These changes were proposed after FHLBanks indicated that, given the magnitude of the reduction in the allowable credit exposure to a GSE under § 932.9, they would experience difficulty in developing new investment strategies to conform to the new limits.
In conjunction with the Finance Board's approval of the proposed rule, the Finance Board also adopted a resolution waiving FHLBank compliance with the unsecured credit limits of § 932.9 and, because they are related to the unsecured credit limits, the liquidity requirements of § 932.8 of the Finance Board's rules, until July 2, 2001.
The Finance Board is now proposing amendments to the unsecured credit limits that address issues beyond those that were discussed in the proposed rule. Many of these issues were identified as a result of comments received on the proposed rule. Because the amendments now being proposed are more far-reaching, albeit rather technical in nature, than those previously proposed, the Finance Board believes it appropriate to solicit comments on them. Thus, the Finance Board is re-proposing amendments to its rule concerning unsecured credit limits for a 30-day comment period.
The Finance Board received nine comment letters on its proposal to amend the unsecured credit limits set forth in § 932.9 of its regulations. Eight of the comments were from FHLBanks, and the ninth was from the Council of Federal Home Loan Banks (Council). In addition to commenting on the proposed changes to the GSE credit limits, the letters also responded to the Finance Board's request for comments on excluding sales of federal funds with a maturity of one day or less or subject to a continuing contract
The Finance Board generally agrees with these commenters' observations and, as discussed more fully in the next section, is proposing to change the limits on unsecured extensions of credit to a GSE to the lesser of the FHLBank's total capital or the GSE's total capital. However, because the Finance Board's support for the proposed higher GSE limit is based in large part on the fact that GSEs have historically been viewed in debt markets more favorably than even the highest-rated corporate debt issuers, the Finance Board is also proposing to adopt the commenter's suggestion that the preferential unsecured credit limit for GSEs automatically ceases to apply if any NRSRO rates a GSE's senior unsecured obligations, or downgrades such obligations to a rating, less than the highest investment grade or if any NRSRO places a GSE on a credit watch for a potential downgrade. This provision would help ensure that the preferential unsecured credit limit would not be applied to any GSE undergoing obvious financial difficulties.
A commenter also suggested that the Finance Board make explicit that the unsecured credit limits applied to GSEs by § 932.9 also applied to unsecured extensions of credit from one FHLBank to another. The FMP currently excludes unsecured extensions of credit from one FHLBank to another from its credit limits. This exclusion was adopted in recognition of a long-standing business practice of inter-FHLBank lending. In adopting current § 932.9 of its regulations, the Finance Board did not incorporate the FMP's exclusion for inter-FHLBank extensions of unsecured credit, but it also did not explicitly address whether that exclusion was being removed. However, the Finance Board believes that inter-FHLBank lending does not raise any safety and soundness concerns and that the practice can be supervised without establishing specific limits. Thus, the Finance Board does not find a strong reason to disrupt a long-standing FHLBank practice, and is proposing to incorporate the FMP's exclusion for inter-FHLBank unsecured extensions of credit into the rule.
One commenter did not comment directly on the GSE limits but instead urged the Finance Board to adopt a different approach to setting the unsecured credit limits. Specifically, the commenter recommended that the limits be based on the lesser of some percentage of the FHLBank's capital or the counterparty's assets, and include an FHLBank System-wide limit on exposures at each credit rating level stated as a percentage of the counterparty's assets. Further, the commenter believed that each FHLBank should be allocated a
The Finance Board believes that the approach suggested by this commenter would be very complex to implement and monitor. Furthermore, the general approach underlying the current and proposed versions of § 932.9 addresses the Finance Board's concerns with the potential concentration of unsecured credit with a limited number of counterparties,
The Finance Board carefully considered these comments. The FHLBanks' sales of overnight federal funds, however, currently are included in the amount of unsecured credit that is subject to the FMP limits. In adopting the unsecured credit limits set forth in § 932.9, the Finance Board intended to implement stronger safeguards against undue concentrations of unsecured credit in individual or affiliated counterparties. Exempting all overnight federal funds transactions from these new unsecured credit limits would represent a significant loosening of current practices and would be inconsistent with the goal of implementing more rigorous limits.
The Finance Board has also considered the fact that other federal bank regulators exclude overnight federal funds transactions from their credit limits. See 12 CFR part 32 (Office of the Comptroller of the Currency (OCC)) and 12 CFR 560.93 (Office of Thrift Supervision (OTS)). However, the Finance Board also recognizes that commercial depository institutions and the FHLBanks have different incentives to lend in the federal funds markets. The FHLBanks can benefit from the funding advantage afforded by their GSE-status to borrow in the consolidated obligation (CO) market and then profitably lend those funds in the federal funds market. Commercial depository institutions, on the other hand, do not enjoy the same funding advantage as GSEs and generally lend excess reserves that are on-hand in order to earn interest on such reserves. Because of the GSE funding advantage, adopting the same exclusion for overnight federal funds transactions as applies to commercial depository institutions would provide the FHLBanks with an incentive, not available to commercial institutions, to borrow in the CO market and expand their lending in the federal funds market. This type of arbitrage activity could create safety and soundness concerns if significant concentrations of unsecured credit were created because of unchecked, short-term lending to a limited number of counterparties.
The Finance Board, therefore, is not proposing to exclude sales of overnight federal funds from the unsecured credit limits, but is proposing more lenient limits for these transactions. The Finance Board believes that the proposed limits, which are described in more detail below, will provide the FHLBanks sufficient leeway to prudently invest funds to meet both their liquidity needs and to counter cyclical fluctuations in their business but still limit incentives to create undue concentrations of credit in a few counterparties.
The Finance Board has considered these comments but continues to believe that conservative, aggregate limits on the unsecured extensions of credit to affiliated counterparties are needed to prevent undue concentrations of credit in a limited number of counterparties at both the FHLBank level and the FHLBank System level. See 66 FR at 8302. Concentrations of credit in affiliated counterparties raise safety and soundness concerns because the financial difficulties or default of one party significantly raises the potential that affiliated entities will experience a deteriorating credit situation or default. These spillover effects would raise the potential for loss at an FHLBank if it had a significant unsecured credit exposure to a group of affiliated entities of which one or more were experiencing severe financial difficulties.
Moreover, other federal banking regulators recognize the safety and soundness problems raised by excessive concentrations of credit in affiliated entities and limit extensions of credit to groups of affiliated counterparties. The OCC's rules restrict a commercial bank's aggregate extensions of secured and unsecured credit to a corporate group to an amount not to exceed 50 percent of the bank's capital and surplus.
Further, depository institutions are not necessarily immune from spill-over effects caused by the default of one of their affiliated institutions. For example, by law, depository institutions that are insured by the Federal Deposit Insurance Corporation (FDIC) may be held liable for the losses (or anticipated losses) to the FDIC caused by the default of affiliated, FDIC-insured institutions.
The purpose of the part 980 regulations is to provide the Finance Board with prior notice that an FHLBank is undertaking an activity that among other things involves a risk not previously and regularly managed by the FHLBank so that the Finance Board may disapprove, examine, or restrict such activity as necessary on a case-by-case basis. See 65 FR 44414, 44420 (July 18, 2000) (discussing part 980 regulations). Prior notice, therefore, provides the Finance Board with a needed opportunity to verify that the new activity will be executed in a safe and sound manner, regardless of whether the activity in question is authorized or otherwise addressed by other provisions in the Finance Board's regulations.
In this respect, as investment and lending restrictions imposed by the FMP are lifted, the FHLBanks will be able to take on exposures to different types of counterparties and for much longer maturities than was allowed under the FMP. Such authority could allow an FHLBank to develop new investment strategies that would alter its risk profile and involve new risks for the FHLBank. The Finance Board continues to believe, therefore, that approval under the part 980 regulations is proper before the FHLBanks undertake significant lending or investing activities that were not permitted under the FMP.
Given the comments received on this matter, however, the Finance Board wishes to clarify when a notice filing under part 980 may be required for new unsecured lending activities. The FHLBanks will not be required to provide notice under part 980 each time they intend to lend to a new counterparty, or to purchase a new class of debt instrument or to take on a credit exposure that would have been prohibited under the FMP, if such activity involves only marginal changes in the FHLBank's investment portfolio.
Two commenters asked the Finance Board to delay the effective date of § 932.9 until after the capital plans have been approved and implemented. The safety and soundness concerns, however, raised by undue concentrations of credit in a limited number of counterparties are not related to the implementation of the FHLBanks' new capital structures required by the GLB Act. While the Finance Board has been willing to delay the effective date of § 932.9 to assure that the rule can be implemented with the least disruption possible, it still believes that its concerns with concentrations of credit should be addressed in as timely a fashion as possible. Therefore, it would not be prudent to delay the effective date of § 932.9 until the FHLBanks' capital plans are implemented.
One commenter noted that sections of the FMP, other than the section controlling unsecured extensions of credit, impose counterparty and maturity limitations on the FHLBanks' lending activities, and the commenter specifically requested that the Finance Board rescind certain investment restrictions set forth in Section II.B of the FMP. In this respect, the Finance Board's investment regulation states that investments authorized thereunder are subject to among other things, the FMP.
In addition, proposed § 932.9(c)(2) would treat GSEs like other private counterparties in the event any NRSRO assigns a credit rating to, or downgrades the credit rating of, any long-term, senior unsecured debt obligation issued by a GSE to below the highest investment grade, or places the GSE on a credit watch for a potential downgrade. In this case, the FHLBank would be required to calculate the maximum amount of its unsecured extensions of credit to that GSE in accordance with paragraph (a)(1) of the proposed rule.
Further, proposed § 932.9(c)(3) would incorporate the FMP exclusion for inter-FHLBank credit exposure, as discussed above. Under this proposal, extensions of credit to another FHLBank would still be subject to the reporting requirements of § 932.9, which have been redesignated as paragraph (e) in the proposed rule.
Under proposed § 932.9(a)(1), an FHLBank would not include sales of federal funds with a maturity of one day or less and sales of federal funds subject to a continuing contract in its calculation of unsecured extensions of credit to a specific counterparty. Such overnight federal funds transactions would therefore not be subject to the term limit on unsecured extensions of credit that would be imposed under this proposed provision. However, under proposed § 932.9(a)(2), an FHLBank would add into its calculation of total extensions of unsecured credit all sales of federal funds with a maturity of one day or less and sales of federal funds subject to a continuing contract with the counterparty. The resulting total amount of unsecured credit including these overnight sales of federal funds could not exceed an overall limit equal to twice the term limit.
For example, if a counterparty's applicable credit rating was determined to be the highest investment grade category, the term limit that would apply under proposed § 932.9(a)(1) would equal 15 percent of the lesser of the FHLBank's total capital, or the counterparty's Tier 1 capital, or if Tier 1 capital is not available, total capital (as defined by the counterparty's principal regulator) or some similar comparable measure identified by the FHLBank. The overall limit under proposed § 932.9(a)(2) would apply when sales of overnight federal funds are added into the total extensions of unsecured credit to the counterparty. The overall limit would equal 30 percent of the lesser of the FHLBank's total capital or the counterparty's applicable capital measurement but, because the term limit would also apply, an FHLBank's extensions of unsecured extensions of credit, other than overnight federal funds transactions, could not exceed 15 percent of the FHLBank's total capital or the counterparty's applicable capital measurement.
In addition, the Finance Board is proposing to define “sales of federal funds subject to a continuing contract” as an overnight federal funds loan that is automatically renewed each day unless terminated by either the lender or the borrower. This definition is consistent with the generally understood meaning of the term. See Goodfriend and Whelpley, n.2,
The general approach adopted in § 932.9, however, of imposing more restrictive maximum capital exposure limits on lower-rated, and therefore potentially riskier, counterparties is not altered by the proposed rule amendments. This general approach is consistent with principles for sound management of credit risk articulated by the Basel Committee on Banking Supervision (Basel Committee), which has stated that:
As proposed, the applicable maximum capital exposure limit for a counterparty rated at the highest investment grade by an NRSRO would remain 15 percent. This level is broadly consistent with federal lending limits pertaining to commercial banks as set forth by statute and regulation, although the fifteen-percent limit for commercial banks remains the same regardless of the credit rating of the borrower.
To perform the required calculation, the Finance Board first averaged the credit risk percentage requirements for each credit rating category across all maturity buckets provided in Table 1.3. The average credit risk percentage requirement corresponding to the highest investment grade was then divided by the average credit risk percentage requirement corresponding to each of the other investment grades. The result of this calculation for each investment grade, and for the highest below-investment grade rating category, was then multiplied by 15 percent—the maximum capital exposure limit corresponding to the highest investment grade—and the product was rounded to the nearest whole percentage point. The result of the calculation, as rounded, for each investment grade equals the proposed maximum capital exposure limit with the result of the calculation for the highest below-investment grade rating category being used to set the proposed maximum capital exposure limit for the category, “Below Investment Grade or Other,” in Table 4.
Section 932.9(a)(3) of the proposed rule also would require an FHLBank to determine the maximum capital exposure limit applicable to a counterparty based primarily on the counterparty's long-term credit rating. Under this proposed change, a short-term credit rating would be used only in the rare circumstance that an NRSRO has provided a short-term credit rating for a counterparty but has not provided a long-term rating for that counterparty. Further, the Finance Board is proposing that where a short-term credit rating is used, the highest short-term investment grade rating would correspond to the maximum capital exposure limit assigned to the third highest long-term investment grade rating in proposed Table 4 (
The proposed approach for determining the applicable maximum capital exposure limit is the same as the approach already adopted in § 932.4 of the Finance Board's capital rule for determining the credit risk percentage requirement applicable to a particular asset.
Moreover, the Finance Board believes that the proposed use of long-term credit ratings to determine the maximum capital exposure limit would more accurately reflect the relative default risks among counterparties. Based on Moody's default data from 1970 to 2000, counterparties that are rated in the highest short-term investment grade or third highest long-term investment grade categories have a significantly higher 30-day maximum default rate than those rated in the highest or second highest investment grade long-term credit rating.
Relying primarily on long-term credit ratings to determine the applicable maximum capital exposure limit also would simplify the FHLBanks' monitoring of counterparties credit ratings. Currently, § 932.9 requires that the maximum capital exposure limit corresponding to the higher of a counterparty's short-term or long-term credit rating be used to calculate the total unsecured credit limit for the counterparty, while the lower of the two ratings be used to calculate the limit applicable to any unsecured credit with a maturity corresponding to the ratings.
The proposed rule still would allow the use of short-term ratings to determine the maximum capital exposure limit when an NRSRO has not provided a long-term rating to a counterparty. For this purpose, however, the proposed rule, in effect, deems the highest short-term investment grade credit rating to be the equivalent of the third highest long-term investment grade credit rating and the second and third highest short-term investment grade ratings to be the equivalent of the fourth highest long-term investment grade rating.
This approach is consistent with the approach adopted in § 932.4 for determining the credit risk percentage requirement where an NRSRO has assigned a short-term rating to an asset but not a long-term rating.
The proposed aggregate limit on extensions of credit to affiliated counterparties would provide the FHLBanks with more flexibility to extend somewhat larger amounts of unsecured credit to large financial groups than does the current aggregate limit in § 932.9. Given historic FHLBank lending patterns and the FHLBank's current counterparties that would benefit from this additional lending flexibility, the Finance Board does not believe that the proposed change in the aggregate limit, if adopted, would result in a build-up of unsecured credit exposures of questionable quality. Furthermore, the Finance Board believes that the proposed aggregate limit on lending to affiliated counterparties remains sufficiently restrictive, especially when coupled with the proposed individual counterparty limits, to keep unsecured credit exposure concentrations to affiliated counterparties from raising safety and soundness concerns.
The Finance Board also is proposing to amend the definition of affiliated counterparty in § 930.1 to read as follows:
In addition, the proposed rule makes clear that a renewal of an existing unsecured extension of credit, including any decision not to terminate a sale of federal funds subject to a continuing contract, would be considered a new extension of unsecured credit.
The Finance Board also is proposing to change the wording in § 932.9 so that derivative contracts are identified as items distinct from on-or off-balance sheet items. The wording change is being proposed because of changes required by Statement of Financial Accounting Standards (SFAS) No. 133,
The Finance Board also is proposing to add new paragraph (g) to § 932.9 to make clear that obligations of, or guaranteed by, the United States would not be subject to any of the requirements of § 932.9 (including the reporting requirements that are contained in proposed § 932.9(e)). This exclusion is contained in the FMP limitations on unsecured credit but was not included in § 932.9 when the rule was adopted. The Finance Board, however, has stated that § 932.9 does not apply to obligations backed by the full faith and credit of the United States,
The final rule would apply only to the FHLBanks, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (RFA).
The proposed rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995.
Capital, Credit, Federal home loan banks, Investments, Reporting and recordkeeping requirements.
Accordingly, the Federal Housing Finance Board proposes to amend title 12, chapter IX, Code of Federal Regulations as follows:
1. The authority citation for part 930 continues to read as follows:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1440, 1443, 1446.
2. In § 930.1 revise the definition of
3. The authority citation for part 932 continues to read as follows:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1440, 1443, 1446.
4. Revise § 932.9, to read as follows:
(a)
(1)
(i) The Bank's total capital; or
(ii) The counterparty's Tier 1 capital, or if Tier 1capital is not available, total capital (as defined by the counterparty's principal regulator) or some similar comparable measure identified by the Bank.
(2)
(3)
(ii) If a counterparty does not have a long-term credit rating but has received a short-term credit rating from an NRSRO, the maximum capital exposure limit applicable to that counterparty shall be based upon the short-term credit rating, as determined in accordance with paragraph (a)(4) of this section, as follows:
(A) The highest short-term investment grade credit rating shall correspond to the maximum capital exposure limit provided in Table 4 of this part for the third highest long-term investment grade rating;
(B) The second highest short-term investment grade rating shall correspond to the maximum capital exposure limit provided in Table 4 of this part for the fourth highest long-term investment grade rating; and
(C) The third highest short-term investment grade rating shall correspond to the maximum capital exposure limit provided in Table 4 of this part for the fourth highest long-term investment grade rating.
(4)
(i) The counterparty's most recent credit rating from a given NRSRO shall be considered;
(ii) If only one NRSRO has rated the counterparty, that NRSRO's rating shall be used. If a counterparty has received credit ratings from more than one NRSRO, the lowest credit rating from among those NRSROs shall be used;
(iii) Where a credit rating has a modifier, the credit rating is deemed to be the credit rating without the modifier;
(iv) If a counterparty is placed on a credit watch for a potential downgrade by an NRSRO, the credit rating from that NRSRO at the next lower grade shall be used; and
(v) If a counterparty is not rated by an NRSRO, the Bank shall determine the applicable credit rating by using credit rating standards available from an NRSRO or other similar standards.
(b)
(2)
(c)
(i) The Bank's total capital; or
(ii) The GSE's total capital (as defined by the GSE's principal regulator) or some similar comparable measure identified by the Bank.
(2)
(3)
(d)
(e)
(i) The Bank's total capital; or
(ii) The counterparty's, or affiliated counterparties' combined, Tier 1 capital, or if Tier 1 capital is not available, total capital (as defined by each counterparty's principal regulator) or some similar comparable measure identified by the Bank.
(2)
(f)
(1) For on-balance sheet transactions, an amount equal to sum of the book value of the item plus net payments due the Bank;
(2) For off-balance sheet transactions, an amount equal to the credit equivalent amount of such item, calculated in accordance with § 932.4(f) of this part; and
(3) For derivative transactions, an amount equal to the sum of the current credit exposure and the potential future exposure for the derivative contract, where the current credit exposure and potential future credit exposure are calculated in accordance with §§ 932.4(g) or 932.4(h) of this part, as applicable.
(g)
By the Board of Directors of the Federal Housing Finance Board.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) is proposing to amend its adjudication regulations concerning presumptive service connection for certain diseases for veterans who participated in radiation-risk activities during active service or while members of reserve components during active duty for training or inactive duty training. This proposed amendment would add cancers of the bone, brain, colon, lung, and ovary to the list of diseases which may be presumptively service connected and amend the definition of the term “radiation-risk activity.” The intended effect of this amendment is to ensure that veterans who may have been exposed to radiation during military service have the same burden of proof as civilians exposed to ionizing radiation who may be entitled to compensation for these cancers under comparable Federal statutes.
Comments must be received on or before October 9, 2001.
Mail or hand-deliver written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Ave., NW, Room 1154, Washington, DC 20420; or fax comments to (202) 273-9289; or e-mail comments to
Bill Russo, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, telephone (202) 273-7210.
Under the provisions of the Radiation-Exposed Veterans Compensation Act of 1988, Pub. L. 100-321, § 2(a), 102 Stat. 485 (codified as amended at 38 U.S.C. 1112(c)), if a veteran who participated in a radiation-risk activity while serving on active duty or as a member of a reserve component while on active duty for training or inactive duty training subsequently develops leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, gall bladder, bile ducts, salivary gland, or urinary tract, multiple myeloma, lymphomas (except Hodgkin's disease), primary cancer of the liver (except if cirrhosis or hepatitis B is indicated), or bronchiolo-alveolar carcinoma, the disease is presumed to be service connected. Section 1112(c)(3)(B) of title 38, United States Code defines “radiation-risk activity” to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan or service on active duty in Japan following such internment during World War II which resulted in an opportunity for exposure to ionizing radiation.
The Radiation Exposure Compensation Act (RECA), Pub. L. No. 101-426, 104 Stat. 920 (1990) (codified as amended at 42 U.S.C. 2210 note), authorizes compensation for certain residents of Nevada, Utah, and Arizona who lived downwind from the Government's above-ground nuclear tests, for underground uranium miners, and for persons who participated onsite in a test involving the atmospheric detonation of a nuclear device and contracted a specified disease, including all cancers included in 38 U.S.C. 1112(c)(2). On July 10, 2000, the President signed into law the RECA Amendments of 2000, Pub. L. No. 106-245, § 3, 114 Stat. 501, 502, which expanded the definition of persons eligible to receive compensation to include above-ground uranium miners, millers and persons who transported ore. The RECA Amendments also expanded the list of specified diseases for which compensation is payable to include lung, colon, brain, and ovarian cancers. Other than bronchiolo-alveolar carcinoma (a rare type of lung cancer), No no presumption of service connection currently exists for these four cancers under 38 U.S.C. 1112(c).
Section 1112(c)(2) is slightly broader in that it includes urinary tract cancer not just bladder cancer as RECA does.
On October 30, 2000, the President signed into law the Floyd D. Spence National Defense Authorization Act for FY 2001, Pub. L. No. 106-398, 114 Stat. 1654. Title XXXVI of Pub. L. No. 106-398, the Energy Employees Occupational Illness Compensation Act Amendments of 2000, authorizes compensation and benefits for certain Department of Energy (DOE) employees and persons employed by DOE contractors, subcontractors, and vendors who were involved in DOE nuclear weapons-related programs. Under the Act, if a member of a Special Exposure Cohort develops a “specified cancer” after beginning employment at a DOE facility for a DOE contractor, or at an atomic weapons facility for an atomic weapons contractor, the cancer is presumed to have been sustained in the performance of duty and is compensable. The term “Special Exposure Cohort” refers to employees of DOE or DOE contractors or subcontractors on Amchitka Island, Alaska prior to January 1, 1974, who were exposed to ionizing radiation in
Section 501(a)(1) of title 38, United States Code, provides that the Secretary of Veterans Affairs has the authority to promulgate regulations regarding the nature and extent of proof and evidence in order to establish entitlement to veterans' benefits. Pursuant to this authority, VA proposes to amend 38 CFR 3.309(d)(2) to add bone, brain, colon, lung, and ovarian cancers, which are covered under the Energy Employees Occupational Illness Compensation Program Act or are covered under the RECA Amendments but are currently not included in the list of diseases in 38 U.S.C. 1112(c)(2) that are presumed to be service connected for radiation-exposed veterans. While veterans may establish service connection for these five cancers under 38 U.S.C. 1110 or 1131, or the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984), doing so is difficult because, inter alia, it requires sound scientific and medical evidence establishing that it is at least as likely as not the veteran's disease resulted from exposure to radiation in service based in part on an assessment of the amount of radiation to which a veteran was exposed. 38 CFR 3.311.
VA believes that public policy and equity dictate that veterans are entitled to the reduced burden of proof for these five cancers available to persons covered under RECA and Pub. L. No. 106-398 for purposes of establishing that their same cancers are attributable to radiation to which they may have been exposed while serving our Nation. Congress has found that nuclear weapons testing involves “unique dangers, including . . . recurring exposures to radioactive substances that, even in small amounts, can cause medical harm.” Pub. L. No. 106-398, § 3602(a)(1). Congress has also found that scientific data resulting from the enactment of the Radiation-Exposed Veterans Compensation Act of 1988, Pub. L. 100-321, and obtained from the Committee on the Biological Effects of Ionizing Radiation and the President's Advisory Committee on Human Radiation Experiments, “provide medical validation for the extension of compensable radiogenic pathologies.” RECA Amendments of 2000, § 2(4), 114 Stat. 501. Based upon these findings, Congress passed the RECA Amendments of 2000 and the Energy Employees Occupational Illness Compensation Program Act of 2000. Public policy favors consistent, nationwide application of rules in federal benefits programs,
To further ensure that veterans exposed to radiation during military service receive the same consideration for the risks of radiation exposure as the employees of DOE, DOE contractors and subcontractors, and atomic energy employers with whom they worked, we also propose to revise the definition of “radiation-risk activity” in 38 CFR 3.309(d)(3)(ii) by adding service at Amchitka Island, Alaska, prior to January 1, 1974, if exposed to ionizing radiation in performance of duty related to certain underground nuclear tests. “Radiation-risk activity” would also include service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, if during such service, the veteran was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the veteran's body to radiation or served in a position that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. We have defined the term “day” as all or any portion of a calendar day. This definition is appropriate since military personnel are on duty 24 hours per day and do not always have a fixed, limited work shift. DOE has advised us that the facilities at Paducah, Kentucky, and Portsmouth, Ohio, were gaseous diffusion plants, while the gaseous diffusion plant at Oak Ridge, Tennessee, was restricted to one area of the campus identified as K25.
We estimate that the 10-year benefits cost of this proposed rule from appropriated funds would be $769 million in benefits costs. We estimate that during several of these years, the annual benefits costs would be more than $100 million. We also estimate that the 10-year cost in Government operating expenses would be $34 million. Since we estimate that the adoption of the proposed rule would have an annual effect on the economy of $100 million of more, the Office of Management and Budget has designated this rule as a major rule under the Congressional Review Act, 5 U.S.C. 802, and a significant regulatory action under Executive Order 12866, Regulatory Planning and Review. The following information is provided pursuant to E.O. 12866.
As explained above, the Secretary has proposed this regulatory amendment to ensure that veterans exposed to radiation during military service receive the same consideration for the risks of this exposure as DOE employees, contractors, and subcontractors. There are no feasible alternatives to this proposed rule, since it is needed to provide fairness and equity for veterans and their survivors. This rule would not interfere with State, local, or tribal governments in the exercise of their governmental functions.
Over the next 10 years, VA expects to process 91,567 service-connected disability compensation claims (living veterans) and 48,050 Dependency and Indemnity Compensation (DIC) claims (veterans' survivors claims for service connection for cause of death) filed as a result of this proposed rule. Historically, about 12% of all radiation related claims have been granted. If past experience proves a reliable indicator of future events, VA expects to grant 10,988 of those disability compensation claims and 5,766 of those DIC claims.
We estimate that the cumulative totals of benefits awards to claimants over the next 10 years would be as follows: $8,040,630, $26,248,947, $44,265,910, $61,126,347, $76,565,137, $90,329,734, $102,328,198, $112,436,560, $120,555,709, and $126,704,527, for a total benefits cost of $768,601,698 over 10 years.
Based on the administrative workload projected to result from this proposed rule (discussed above), VA estimates that full time employee (FTE) resources devoted to processing claims in years 1 through 10 would be 77, 113, 69, 64, 51, 40, 39, 35, 35, and 33 respectively. Estimated Government operating expenses (GOE) costs for the next 10 years are as follows: $3,910,578, $5,047,838, $3,584,683, $4,127,798, $3,419,862, $2,817,402, $2,825,825, $2,669,755, $2,780,414 and $2,750,142, for a total GOE cost of $33,934,297 over 10 years.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
This document has been reviewed by the Office of Management and Budget under Executive Order 12866.
The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program numbers are 64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam.
For the reasons set forth in the preamble, 38 CFR part 3 is proposed to be amended as follows:
1. The authority citation for part 3, subpart A continues to read as follows:
38 U.S.C. 501(a), unless otherwise noted.
2. Section 3.309 is amended by:
A. Adding new paragraphs (d)(2)(xvii) through (d)(2)(xxi).
B. Adding new paragraph (d)(3)(ii)(D).
The additions read as follows:
(d)
(2) * * *
(xvii) Cancer of the bone.
(xviii) Cancer of the brain.
(xix) Cancer of the colon.
(xx) Cancer of the lung.
(xxi) Cancer of the ovary.
(3) * * *
(ii) * * *
(D)(
(
(
(
(
Postal Service.
Proposed rule.
The Postal Service is seeking comments on the following proposed rule change to the Domestic Mail Manual (DMM). Under this proposal, the 5% error limit for carrier route walk-sequenced mail is clarified to include line-of-travel (LOT)-sequenced mail. For all sequenced mail, no more than 5% of the total pieces in the entire carrier route mailing may be found out of sequence or sorted to the wrong carrier route.
Comments must be received on or before September 7, 2001.
Send written comments to the Manager, Business Mail Acceptance, U.S. Postal Service, 1735 North Lynn Street, Room 3011, Arlington, VA 22209-6030. Written comments may be submitted via fax to 703-292-3738. Copies of all written comments will be available for inspection and photocopying between 9:00 a.m. and 4:00 p.m., Monday through Friday, in Room 3011 at the above address.
Mary Bronson, 703-292-3539.
The Postal Service requires all mail claimed at the Periodicals basic carrier route rate or the Standard Mail Enhanced Carrier Route rate to be sequenced in either walk-sequence or line-of-travel (LOT) order. Current standards state that for each carrier route receiving mail, no more than 5% of the total pieces may be found out of sequence or sorted to the wrong carrier route. The 5% limitation for missorted or missequenced mail is applied to an individual carrier route because, until recently, the Postal Service was able to detect such errors only at the delivery unit and could not easily determine an error percentage for the entire mailing.
Due to technological innovations, the Postal Service now can detect missequenced carrier route pieces at and prior to acceptance, where the entire mailing can be evaluated. Therefore, the Postal Service proposes to amend the current standards to apply the 5% limit for walk-sequence and LOT errors to the entire mailing, and not to an individual carrier route. This change will make how the Postal Service determines eligibility for carrier route rates consistent with how it determines eligibility for other postage discounts. The Postal Service will use the established statistically valid sampling methods for business mail entry unit (BMEU) acceptance procedures to determine whether the 5% error limit is exceeded for the carrier route mailing.
Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the
Administrative practice and procedure, Postal Service.
1. The authority citation for 39 CFR Part 111 continues to read as follows:
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
2. Amend the following sections of the Domestic Mail Manual (DMM) as set forth below:
For carrier routes sequenced in walk-sequence order, no more than 5% of the total pieces in the mailing may be found out of sequence or sorted to the wrong carrier route.
For carrier routes sequenced in line-of-travel (LOT) order, no more than 5% of the total pieces in the mailing may be found out of sequence or sorted to the wrong carrier route.
For this standard, pieces are not considered missorted or missequenced because of USPS scheme changes not yet incorporated in the scheme that the mailer was authorized to use to prepare the mailing. When sortation or sequencing errors over the applicable 5% limit in 2.1 and 2.2 are detected, the mailer is notified that they must re-sequence the mail or pay the next higher rate for which the mail qualifies. The percent of mail determined to be missorted or missequenced within the mailing is subject to additional postage for the difference between the carrier route rate claimed and the next higher rate for which the mail qualifies.
If this proposal is adopted, an appropriate amendment to 39 CFR 111.3 will be published to reflect this change.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to make determinations of attainment for the particulate matter with an aerodynamic diameter less than or equal to a nominal 10 microns (PM
Written comments must be received on or before September 7, 2001.
Written comments may be mailed to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air and Radiation Program, Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202 and copies of the Incorporation by Reference material are available at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460.
Cindy Rosenberg, EPA, Region VIII, (303) 312-6436.
Throughout this document, wherever “we”, “us”, or “our” are used, we mean the Environmental Protection Agency (EPA).
The Whitefish and Thompson Falls areas were designated nonattainment for PM
All PM
Generally, we will determine whether an area's air quality is meeting the PM
As described in 40 CFR part 50 and appendix K, attainment of the annual PM
Based on quality-assured data meeting the requirements of 40 CFR 50, appendix K, we are proposing to find that Whitefish, Montana attained the PM
This action should not be confused with a redesignation to attainment under CAA section 107(d) because neither Montana nor Colorado have submitted a maintenance plan as required under section 175(A) of the CAA or met the other CAA requirements for redesignation. The designation status in 40 CFR part 81 will remain moderate nonattainment for all three areas until such time as Montana and Colorado meet the CAA requirements for redesignations to attainment.
We are soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the
1. Determination that the Whitefish PM
Whether an area has attained the PM
The PM
Review of the annual standard for calendar years 1997, 1998 and 1999 reveals that Whitefish also attained the annual PM
Since the attainment date for Thompson Falls was December 31, 2000, the three year period covers calendar years 1998, 1999, and 2000. The PM
As described above, the 1987 Guideline provides eligibility requirements and example situations in which data may be substituted. For Thompson Falls, there were two quarters during this three year attainment period (1998-2000), which had less than 75% data capture, but greater than 50% data capture and thus qualified for data substitution under our guidelines. The first quarter of 1999 had 12 values substituted, and used an 89 μg/m
In 1999, the data recovery for Thompson Falls was incomplete due to extenuating circumstances at the monitoring site. The Courthouse on which the monitoring site had been located was being re-roofed and therefore, MDEQ was forced to find a new site on short notice, without enough time to set up a new monitoring site before the existing site was shut down. This forced MDEQ to miss all the monitoring days for the entire 3rd quarter of 1999. A new monitoring site was set up on the grounds of the local high school for the fourth quarter of 1999. The Region used 40 CFR part 50 appendix K and our April 1987 “Guideline on Exceptions to Data Requirements for Determining Attainment of Particulate Matter Standards” to address the missing data from 1999. The Region decided to substitute third quarter data from 1998 for 1999 because we believe that it is representative of what third quarter 1999 data would have looked like had the monitoring site continued to operate. We believe this is an acceptable method because the exceedances that Thompson Falls experienced in the early 1990's were during winter months, not during the third quarter of the year. In addition, the particulate problem in Thompson Falls is related to road dust and that problem has been resolved since street sweeping measures were adopted by Montana and implemented in 1998. Therefore, we don't expect that there would have been any recorded exceedances during the third quarter of 1999 had the monitor been operating.
Since MDEQ was forced to change monitoring sites in the middle of the three year period necessary for Thompson Falls to show attainment by the area's attainment date, we don't have complete data at any one monitoring site. However, we believe that combining the data from the two separate monitoring sites is acceptable in this situation. We also believe that the location of the replacement monitoring site within the extremely small town of Thompson Falls provides adequate characterization of the community's air. We believe that Thompson Falls' data meets our Guideline and rule requirements. Therefore, with the preceding actions concluded, we believe that the data indicates that Thompson Falls attained the 24-hour and annual PM
Since the attainment date for Steamboat Springs was December 31, 2000, the three year period covers calendar years 1998, 1999, and 2000. Steamboat Springs was operating on an every day sampling frequency during this time period. The PM
Review of the annual standard for calendar years 1998, 1999 and 2000 reveals that Steamboat Springs also attained the annual PM
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. This proposed action merely determines that certain States have met federal requirements and imposes no requirements. Accordingly, the Administrator certifies that this proposed rule will not have a significant
As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Federal Communications Commission.
Proposed rule.
This document requests comments on the proposed substitution of Channel 266A for Channel 224A at station KMBF(FM), Mendocino, California. This channel change will allow Station KMBF to increase its effective radiated power from 3 kilowatts to 6 kilowatts at the existing transmitter site. Coordinates used for this proposal are 39-20-33 NL and 123-46-51 WL.
Comments must be filed on or before September 17, 2001, and reply comments on or before October 2, 2001.
Secretary, Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, as follows: George Anderson, 14200 Prairie Way, Mendocino, California 94560.
R. Barthen Gorman, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-168, adopted July 18, 2001, and released July 27, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800.
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for Part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under California, is amended by adding Channel 266A at Mendocino and removing Channel 224A at Mendocino.
Federal Communications Commission.
Proposed rule.
This document requests comments on a petition filed by Clear Channel Broadcasting Licenses, Inc. requesting the reallotment of Channel 296A from Danville, Kentucky, to Nonesuch, Kentucky, and modification of the license for Station WHIR-FM to specify operation on Channel 296A at Nonesuch, Kentucky, as its community of license. The coordinates for Channel 296A at Nonesuch are 37-50-12 and 84-38-15. In accordance with section 1.420(i) of the Commission's Rules, we shall not accept competing expressions of interest in the use of Channel 296A at Nonesuch.
Comments must be filed on or before September 17, 2001, and reply comments on or before October 2, 2001.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC,
Kathleen Scheuerle, Mass Media Bureau, (202) 418-2180.
This is a summary of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-169, adopted July 18, 2001, and released July 27, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805. Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Kentucky, is amended by removing Danville, Channel 296A and adding Nonesuch, Channel 296A.
Federal Communications Commission.
Proposed rule.
This document requests comments on a petition for rule making filed on behalf of Pittsburg Broadcasting Company, requesting the allotment of Channel 246A to Pittsburg, New Hampshire, as that community's first local aural transmission service. Coordinates used for this proposal are 45-02-25 NL and 71-21-17 WL. Pittsburg is located within 320 kilometers (200 miles) of the U.S.-Canadian border and will result in a short-spacing to the proposed allotment of Channel 247C1 at Thetford Mines, Quebec at coordinates 46-03-28 NL and 71-36-06 WL. Therefore, concurrence in the requested allotment by the Canadian government as a specially negotiated short-spaced allotment, must be obtained. Although the Pittsburg proposal is also short-spaced to a proposed allotment on Channel 247C2 at Sherbrooke, Quebec, at coordinates 45-24-00 NL and 71-54-00, the Sherbrooke proposal has been scheduled for deletion.
Comments must be filed on or before September 17, 2001, and reply comments on or before October 2, 2001.
Secretary, Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner's counsel, as follows: Mark N. Lipp, Esq., Shook Hardy & Bacon, L.L.P., 600 14th Street, NW., Suite 800, Washington, DC 20005.
Nancy Joyner, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-170, adopted July 18, 2001, and released July 27, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800.
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR §§ 1.415 and 1.420.
Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under New Hampshire, is amended by adding Pittsburg, Channel 246A.
Research and Special Programs Administration (RSPA), DOT.
Notice of proposed rulemaking (NPRM).
RSPA proposes to revise its regulations on the use of the Uniform Hazardous Waste Manifest for shipments of hazardous wastes to
Submit comments by October 4, 2001. To the extent practicable, we will consider comments received after this date in making our decision on a final rule.
Address your comments to the Dockets Management System, U.S. Department of Transportation, Room PL 401, 400 Seventh St., SW, Washington, DC 20590-0001. You must identify the docket number, RSPA-01-10292 (HM-206E) at the beginning of your comments, and you should submit two copies of your comments. If you wish to receive confirmation that your comments are received, include a self-addressed stamped postcard. You may also submit your comments and review all comments by accessing the Docket Management System website at
The Dockets Unit is located on the Plaza Level of the Nassif Building at the U.S. DOT at the above address. You may view public dockets between the hours of 10 a.m. and 5 p.m., Monday through Friday, except on Federal holidays. An electronic copy of this document may be downloaded from the
Michael Johnsen, Office of Hazardous Materials Standards, telephone (202) 366-8553, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
Under the authority of the Resource Conservation and Recovery Act (RCRA; 42 U.S.C. 6901, et seq.) and regulations of the Environmental Protection Agency (EPA) at 40 CFR Parts 262-264, hazardous wastes are tracked from their producer (generator) to their final disposal sites. The central tracking element of this system is the Uniform Hazardous Waste Manifest (uniform manifest), which accompanies a hazardous waste shipment from its point of origin to its destination. In 42 U.S.C. 6923, RCRA directs EPA to consult with DOT and issue regulations on the transportation of hazardous wastes that are “consistent with” requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180).
In coordinated rulemakings that followed joint EPA-DOT public hearings, EPA and RSPA issued final rules in 1980 requiring that a manifest accompany each shipment of hazardous waste during transportation. See 45
EPA has recently proposed to revise its uniform manifest regulations (66
A uniform manifest that is prepared and transmitted electronically, from the generator to the transporter, the disposal facility, and the monitoring governmental agencies, can provide all the information necessary to track a shipment of hazardous waste. However, an electronic manifest cannot serve the purpose of a shipping paper to alert emergency responders as to the nature and hazards of materials in a transport vehicle or freight container, in the event of an incident during transportation of those materials, when electronic translators or readers may not be available. Accordingly, EPA has proposed that a paper copy of the manifest or other shipping paper must accompany the shipment.
In order to parallel EPA's proposal for an electronic manifest, RSPA proposes to modify 49 CFR 172.205 to provide that, when an electronic manifest is used, the hazardous waste must be accompanied by a physical shipping paper that can be either (1) a print-out (paper copy) of the electronic manifest or (2) a separate shipping paper that meets all of the shipping paper requirements in 49 CFR, subpart C of part 172. In addition, to prevent confusion by enforcement officials, if an electronic manifest is being used in the transportation of a hazardous waste, the shipping paper or copy of the electronic manifest must indicate on the document that an electronic manifest is being used.
Because § 172.204(d)(2) allows for a shipping paper to be “signed manually, by typewriter, or by other mechanical means,” no change to the HMR is needed when a paper copy of the electronic manifest is used as the shipping paper accompanying hazardous waste during transportation. The signature of the generator on the electronic manifest, as printed out on a physical copy, would satisfy the requirement in § 172.204(d). Other changes to the uniform manifest proposed by EPA that relate to requirements in the HMR would not require changes in the HMR.
This NPRM is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the
The intent of the changes in this notice is to clarify that shipping paper information must still accompany every shipment of hazardous waste, even those for which electronic manifests are authorized. The net effect of these changes is to maintain current shipping paper requirements for hazardous wastes. Since there is no change in the shipping paper requirements other than the inclusion of an indication on the shipping documentation that an electronic manifest is being used, the costs and benefits would be so minimal as to not warrant preparation of a regulatory impact analysis or regulatory evaluation. This determination may be revised as a result of public comment.
This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule would preempt State, local, and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous material transportation law (Federal law), 49 U.S.C. 5101-5127, contains an express preemption provision in 49 U.S.C. 5125(b)(1) that a State, local, or Indian tribe requirement about any of the following subjects is preempted if the non-Federal requirement is not substantively the same as a provision in the Federal law or the HMR:
(A) The designation, description, and classification of hazardous material;
(B) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(C) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;
(D) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or
(E) The design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.
This proposed rule addresses the preparation and use of shipping documents, and Federal law would preempt State, local, and Indian tribe written incident reporting requirements that are not “substantively the same as” the requirements in this proposed rule HMR.
Federal law provides at section 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule, if adopted, would not significantly or uniquely affect the Indian tribal communities, and would not impose substantial direct compliance costs, the funding and consultation requirements of the Executive Order do not apply.
The intent of the changes in this notice is to clarify that shipping paper information must still accompany every shipment of hazardous waste, even those for which electronic manifests are authorized. The net effect of these changes is to maintain current shipping paper requirements for hazardous wastes. Since there is no change in the shipping paper requirements other than the inclusion of an indication on the shipping documentation that an electronic manifest is being used, the impacts of this rule, if adopted, are anticipated to be so minimal as to not warrant preparation of a regulatory impact analysis. Therefore, I certify that this rulemaking action will not have a significant economic impact on a substantial number of small entities.
Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid Office of Management and Budget (OMB) control number. This proposed rule does not propose any change in information collection burdens. The information collection associated with the proposal is currently reported and has been approved by OMB under control number 2137-0034.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This rulemaking would not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector.
The intent of the changes in this notice is to clarify that shipping paper information must still accompany every shipment of hazardous waste, even those for which electronic manifests are authorized. The net effect of these changes is to maintain current shipping paper requirements for hazardous wastes. Since there is no change in the shipping paper requirements other than the inclusion of an indication on the shipping documentation that an electronic manifest is being used, we find that there are no significant environmental impacts associated with this proposed rule.
Education, Hazardous materials transportation, Hazardous waste, Labeling, Packaging and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR part 172 is proposed to be amended as follows:
1. The authority citation for part 172 would continue to read as follows:
49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In § 172.205, paragraphs (a), (b), (c), (d) and the introductory text of paragraph (f) would be revised, paragraph (e) would be removed and reserved, paragraph (g) would be
(a) No person may offer, transport, transfer, or deliver a hazardous waste (waste) unless a hazardous waste manifest (manifest) is prepared in accordance with 40 CFR 262.20 and the manifest is signed, carried, and given in accordance with this section.
(b) When a generator prepares an electronic manifest in accordance with 40 CFR 262.20(a)(3)—
(1) Either a physical copy of the electronic manifest bearing the signature of the generator or a shipping paper meeting the requirements of §§ 172.200 through 172.204 must accompany the waste during transportation; and
(2) The copy of the electronic manifest or the shipping paper must include a statement indicating that an electronic manifest is being used, such as “electronic manifest.”
(c) When a generator prepares a paper manifest on Form 8700-22 (and 8700-22A when necessary) in accordance with 40 CFR 262.20(a)(2) and the instructions in the appendix to 40 CFR part 262—
(1) The original copy of the manifest must be dated by, and bear the handwritten signatures of, the person representing:
(i) The generator of the hazardous waste at the time that the hazardous waste is offered for transportation, and
(ii) The initial carrier accepting the hazardous waste for transportation;
(2) A copy of the manifest must be dated by, and bear the handwritten signatures of the person representing:
(i) Each subsequent carrier accepting the hazardous waste for transportation at the time of acceptance, and
(ii) The designated facility receiving the hazardous waste, upon receipt; and
(3) A copy of the manifest bearing all required dates and signatures must be:
(i) Given to a person representing each carrier accepting the hazardous waste for transportation;
(ii) Given to a person representing the designated facility receiving the hazardous waste;
(iii) Returned to the generator by the carrier that transported hazardous waste from the United States; and
(iv) Retained by the generator and by the initial and each subsequent carrier for three years from the date the waste was accepted by the initial carrier. Each retained copy must bear all required signatures and dates up to and including those entered by the next person who received the hazardous waste from the person retaining the copy.
(d) A physical copy of an electronic manifest or a paper manifest may be used as a shipping paper if it contains all the information required by this subpart. When used as a shipping paper, the physical copy of an electronic manifest or the paper manifest must be carried during transportation in the same manner as required by this subchapter for shipping papers.
(e) [Reserved]
(f)
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on a new information collection associated with an agency research project to study social and economic impacts of public land and resource management in general terms. This study requires administration of a survey to a statistical sample of the general public.
Comments must be received in writing on or before October 9, 2001 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments should be addressed to Dr. Daniel W. McCollum, USDA Forest Service, Rocky Mountain Research Station, 2150-A Centre Ave., Suite 350, Fort Collins, CO 80526-1891. Comments also may be submitted by e-mail to
Dr. Daniel W. McCollum, Rocky Mountain Research Station at (970) 295-5962,
This collection of information will include three aspects of public preferences, which are: (1) Objectives (comprised of values and desired outcomes) and preferences related to public land and public land management, (2) land attributes and people's behaviors and perceived consequences that can be linked to policy and management alternatives (in particular, measurable indicators of changes caused or prevented by policy and management actions), and (3) identification of how people evaluate the measured indicators of policy and management outcomes and consequences.
Surveys will be administered primarily by mail, although some telephone contacts and some very brief in-person contacts may be used in particular instances or case studies. Administration of surveys via the World Wide Web/Internet will be considered if and when appropriate. Respondents will be asked to complete an optional questionnaire containing questions about how, why, and where they use public land, how they think public land should be managed, and their preferences related to management tradeoffs. Both those who use public land and members of the general public who do not use these lands will be surveyed to provide a broad base of information.
Forest Service researchers and researchers at cooperating agencies and institutions who are specialists in economics, social science, outdoor recreation, survey research, and statistics will design and develop the surveys and collect and analyze the information.
This survey is necessary to provide land managers with reliable information on the public they serve. With the results of this survey, managers and planners will broaden and deepen their understanding of the public perceptions of various land management practices and impacts of those practices.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for Office of Management and Budget approval.
Forest Service, USDA.
Notice.
On December 20, 1999, the Deputy Under Secretary of Natural Resources and Environment created the Sewee Purchase Unit. This purchase unit comprises 3000 acres, more or less, within Charleston County, South Carolina. A copy of the establishment document, which includes the legal description of the lands within the purchase unit, appears at the end of this notice.
Establishment of this purchase unit was effective December 20, 1999.
A copy of the map showing the purchase unit is on file and available for public inspection in the Office of the Director, Lands Staff, 4th Floor-South, Sidney R. Yates Federal Building, Forest Service, USDA, 201 14th Street, SW., Washington, D.C. 20250, between the hours of 8:30 a.m. and 4:30 p.m. on business days. Those wishing to inspect the map are encouraged to call ahead to (202) 205-1248 to facilitate entry into the building.
Jack Craven, Director, Lands Staff, Forest Service, USDA, P.O. Box 96090, Washington, D.C. 20090-6090, telephone: (202) 205-1248.
Forest Service, USDA.
Notice.
On July 12, 1999, and January 16, 2001, respectively, the Secretary of the Army and the Secretary of Agriculture signed a joint interchange order that authorizes the transfer of administrative jurisdiction from the Department of Agriculture to the Department of the Army for approximately 943 acres, consisting of 108 acres of fee lands and 835 acres of perpetual flowage easement rights, lying within the San Bernardino National Forest, San Bernardino County, California. Furthermore, the order transfers from the Department of the Army to the Department of Agriculture for inclusion in the San Bernardino National Forest approximately 773 acres lying within the San Bernardino National Forest, San Bernardino County, California. A copy of the joint order, as signed, is set out at the end of this notice.
This order is effective August 8, 2001. The 45-day Congressional oversight requirement of the Act of July 26, 1956 (70 Stat. 656; 16 U.S.C. 505a, 505b) has been met.
The joint interchange order signed by the Secretary of the Army and the Secretary of Agriculture and the accompanying exhibits, which contain maps showing the lands being conveyed and descriptions of the lands and interests being conveyed, are on file and available for public inspection in the Office of the Director, Lands Staff, 4th Floor-South, Sidney R. Yates Federal Building, Forest Service, USDA, 201 14th Street, SW, Washington, DC 20250, between the hours of 8:30 a.m. and 4:30 p.m. on business days. Those wishing to inspect the documents are encouraged to call ahead to (202) 205-1248 to facilitate entry into the building.
David M. Sherman, Lands Staff, Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-6090, Telephone (202) 205-1248.
2 p.m., Thursday, August 16, 2001.
Conference 0204, South Building, Department of Agriculture, 1400 Independence Avenue, SW., Washington, DC.
Open.
Stockholders' Meeting.
9 a.m., Friday, August 17, 2001.
Conference Room 104-A, Jamie L. Whitten Building, Department of Agriculture, 12th and Jefferson Drive, SW., Washington, DC.
Open.
The following matters have been placed on the agenda for the stockholders' meeting.
Board of Directors Meeting.
Following the stockholders' meeting, Friday, August 17, 2001.
Conference Room 104-A, Jamie L. Whitten Building, Department of Agriculture, 12th and Jefferson Drive, SW., Washington, DC.
Open.
The following matters have been placed on the agenda for the Board of Directors meeting:
Roberta D. Purcell, Assistant Governor, Rural Telephone Bank, (202) 720-9554.
Notice is hereby given of the withdrawal of the application submitted by the Massachusetts Port Authority, grantee of FTZ 27, Boston, MA, requesting special-purpose subzone status for the apparel, footwear and accessories warehousing/distribution facilities of J. Baker, Inc., located in Canton, MA. The application was filed on September 13, 1999 (64 FR 49440, 9/13/99).
The withdrawal was requested because of changed circumstances, and the case has been closed without prejudice.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Cleveland-Cuyahoga County Port Authority, grantee of FTZ 40, on behalf of HMI Industries Inc. (HMI), requesting authority to manufacture vacuum and air cleaners under FTZ procedures within FTZ 40—Site 8. The application was formally filed on July 31, 2001.
The application requests authority on behalf of HMI to manufacture high filtration vacuum and air cleaners under zone procedures within FTZ 40—Site 8, Strongsville Industrial Park, Royalton Road (State Route 82), Strongsville, Ohio. The HMI facility (117 employees) is located at 13325 Darice Parkway, Unit A (1 bldg., 80,000 sq. ft.).
HMI is currently using FTZ procedures for the warehouse and distribution operations at this facility. The facility is also used for the manufacture of high filtration vacuum surface and air cleaning devices (HTS 8509 and 8421, duty free). Components and materials sourced from abroad (representing about 30% of all parts consumed in manufacturing) include: AC/DC motors; paper sacks and bags; insulated copper conductors and other insulated conductors; flexible plastic tubes, pipes and hoses and their plastic fittings; metal casters; aluminum casting articles; and vacuum cleaners, housings and parts (HTS 8501.2060, 8501.2040, 8509.9015, 8509.1000, 4819.4000, 8544.5190, 8544.5920, 3917.3900, 3917.4000, 8302.2000, 7616.9950, 8509.9005, duty rates range from duty-free to 5.7%, weighted average—1%).
FTZ procedures would exempt HMI from Customs duty payments on the foreign components used in export production. Nearly 70 percent of the plant's shipments are exported. On its domestic sales, HMI would be able to choose the duty rates during Customs entry procedures that apply to finished vacuum and air cleaners (duty-free) for the foreign inputs noted above. The company would also be exempt from duty payments on foreign merchandise that becomes scrap/waste. The application indicates that savings from zone procedures would help improve the plant's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ staff has been designated examiner to investigate the application and report to the Board.
Public comment on the application is invited from interested parties. Submissions (original and three copies) shall be addressed to the Board's Executive Secretary at the address below.
The closing period of their receipt is October 9, 2001. Rebuttal comments in response to material submitted during the foregoing period may be submitted
A copy of the application and the accompanying exhibits will be available for public inspection at the following locations:
Notice is hereby given that the application of the Foreign-Trade Zone Corporation of Southeastern Pennsylvania, grantee of FTZ 147, requesting special-purpose subzone status for the footwear warehousing/distribution facility of C&J Clark America, Inc. (Clark), in Hanover, Pennsylvania (66 FR 12459, 2/27/01), has been amended to include an additional building (71,153 sq. ft.) within the subzone. The building will be used for receiving, storage, handling, packaging, distributing and shipping footwear.
The application remains otherwise unchanged.
The comment period is reopened until September 7, 2001.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review of the suspension agreement.
In response to a request from petitioners, Bethlehem Steel Corporation, Ispat Inland, Inc., LTV Steel Company Inc., National Steel Corporation, and U.S. Steel Group, a unit of USX Corporation (collectively domestic producers), the Department of Commerce (the Department) is conducting an administrative review of the Suspension Agreement on hot-rolled flat-rolled carbon quality steel (hot-rolled steel) from Brazil. This review covers three manufacturers and exporters of the subject merchandise, Companhia Siderurgica Nacional (CSN), Usinas Siderurgicas de Minas Gerais (USIMINAS), and Companhia Siderurgica Paulista (COSIPA) during the period of review (POR) from July 19, 1999 through June 30, 2000. We preliminarily determine that CSN and USIMINAS have made sales below the reference price established by the Suspension Agreement. We also preliminarily determine that the amount by which the estimated normal value exceeds the export price for each entry by CSN and USIMINAS/COSIPA indicates that the dumping margin on certain entries exceeds 15 percent of the weighted average margin for CSN and USIMINAS/COSIPA in the LTV investigation. For reasons stated in this notice, the Department preliminarily determines that CSN and USIMINAS/COSIPA have violated the Agreement. Interested parties are invited to comment on these preliminary results. Parties who submit comments are requested to submit with the argument: (1) a statement of the issues and (2) a brief summary of the arguments.
August 8, 2001.
Phyllis Hall (CSN), Michael Ferrier or Dena Aliadinov (USIMINAS/COSIPA), or Nancy Decker, Enforcement Group III, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room 7866, Washington, DC 20230; telephone (202) 482-1398, (202) 482-1394, (202) 482-3362, and (202) 482-0196, 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, as amended (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are references to the provisions codified at 19 CFR part 351 (2000).
On July 6, 1999, the Department entered into the Agreement Suspending the Antidumping Investigation on Hot-Rolled Flat-Rolled Carbon-Quality Steel from Brazil produced by CSN, USIMINAS, and COSIPA.
On July 28, 2000, petitioners requested the Department to conduct an administrative review of the sales and cost of USIMINAS, COSIPA, and CSN to ensure that the parties are in compliance with the terms of the Suspension Agreement. The Suspension Agreement stipulates that the Department may conduct administrative reviews under section 751 of the Act, upon request or upon its own initiative, to ensure that exports of hot-rolled steel from Brazil are at prices consistent with the terms of the agreement. Pursuant to petitioners' request, the Department initiated this administrative review on August 25, 2000 (
On October 24, 2000, the Department issued the antidumping questionnaire. On November 28, 2000, the respondents submitted section A of the questionnaire. On December 22, 2000, the respondents submitted sections B-D of the questionnaire. On January 25, 2001, the Department issued the first supplemental questionnaire. On February 7, 2001, the Department issued a second supplemental questionnaire. On February 12, 2001, the respondents submitted their responses to the first supplemental questionnaire. On February 16, 2001, the Department issued the third supplemental questionnaire, and on March 2, 2001 the respondents submitted their responses to the second and third supplemental questionnaires. On May 11, 2001 and May 18, 2001, the Department issued the fourth and fifth supplemental questionnaires. On June 6, 2001, the respondents submitted their responses to the fourth and fifth supplemental questionnaires.
Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for issuing the preliminary results in an administrative review if it determines that it is not practicable to complete the preliminary results within the statutory time limit of 245 days. On March 8, 2001, the Department published a notice of extension of the time limit for the completion of the preliminary results by 120 days, until July 31, 2001.
The review covers the period July 19, 1999 through June 30, 2000. The Department is conducting this review in accordance with section 751 of the Act.
The products covered are certain hot-rolled flat-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers) regardless of thickness, and in straight lengths, of a thickness less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.
Steel products to be included in the scope of this agreement, regardless of HTSUS definitions, are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
All products that meet the physical and chemical description provided above are within the scope of this agreement unless otherwise excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of this agreement:
• Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including e.g., ASTM specifications A543, A387, A514, A517, and A506).
• SAE/AISI grades of series 2300 and higher.
• Ball bearing steels, as defined in the HTSUS.
• Tool steels, as defined in the HTSUS.
• Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 1.50 percent.
• ASTM specifications A710 and A736.
• USS Abrasion-resistant steels (USS AR 400, USS AR 500).
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled dual phase steel, phase-hardened, primarily with a ferritic-martensitic microstructure, contains 0.9 percent up to and including 1.5 percent silicon by weight, further characterized by either (i) tensile strength between 540 N/mm
• Hot-rolled bearing quality steel, SAE grade 1050, in coils, with an inclusion rating of 1.0 maximum per ASTM E 45, Method A, with excellent surface quality and chemistry restrictions as follows: 0.012 percent maximum phosphorus, 0.015 percent maximum sulfur, and 0.20 percent maximum residuals including 0.15 percent maximum chromium.
• Grade ASTM A570-50 hot-rolled steel sheet in coils or cut lengths, width of 74 inches (nominal, within ASTM tolerances), thickness of 11 gauge (0.119 inch nominal), mill edge and skin passed, with a minimum copper content of 0.20%.
The merchandise subject to this agreement is classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, 7211.19.75.90, 7212.40.10.00, 7212.40.50.00, 7212.50.00.00. Certain hot-rolled flat-rolled carbon-quality steel covered by this investigation, including: vacuum degassed, fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Although the HTSUS subheadings are provided for convenience and Customs purposes, the written description of the merchandise under this agreement is dispositive.
As provided in section 782(i) of the Act, we verified information using standard verification procedures, including the examination of the relevant sales and financial records.
Our verification results are outlined in the public versions of the verification reports. See COSIPA Sales Verification Report dated May 9, 2001 and July 31, 2001, USIMINAS Sales Verification Report dated May 9, 2001 and July 31, 2001, CSN Sales Verification Report dated May 9, 2001 and July 31, 2001 and other U.S. sales verification reports dated May 9, 2001 and May 11, 2001.
Section 776(a)(2) of the Act provides that “if an interested party or any other person—(A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i), the administering authority shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title.
The statute requires that certain conditions be met before the Department may resort to the facts available. Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent
In addition, section 776(b) of the Act provides that, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of the party as the facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action (SAA) accompanying the URAA, H.R. Doc. No. 316, 103d Cong. 2nd Sess. (1994), at 870. Furthermore, “an affirmative finding of bad faith on the part of the respondent is not required before the Department may make an adverse inference.” See Antidumping Duties, Countervailing Duties Final Rule, 62 FR 27340. The statute notes, in addition, that in selecting from among the facts available the Department may, subject to the corroboration requirements of section 776(c), rely upon information drawn from the petition, a final determination in the investigation, any previous administrative review conducted under section 751 (or section 753 for countervailing duty cases), or any other information on the record.
The Department's questionnaire of October 24, 2000 instructed the respondents to report all home market sales of the merchandise under review. In a letter dated November 1, 2000, from USIMINAS/COSIPA and CSN commenting on the Department's October 24, 2000 questionnaire, respondents requested not to report cut-to-length hot-rolled merchandise in the home market. In the letter, respondents asserted that given the restrictions in the Suspension Agreement for what respondents can export to the United States, home market sales of cut-to-length sheet are an example of a hot-rolled product that “cannot be deemed identical and would unlikely ever be deemed most similar to the products exported to the United States.” The respondents had argued that the Suspension Agreement stipulates that the respondents can only sell coil products in the U.S. market. CSN and COSIPA reported sales of cut-to-length hot-rolled merchandise in the home market; however, in USIMINAS' December 22, 2000 Section B submission, USIMINAS only reported home market sales of coil. In supplemental questionnaires dated February 7, 2001 and May 11, 2001 the Department requested USIMINAS to report home market sales of cut-to-length hot-rolled merchandise and elaborated in the May 11, 2001 questionnaire that if this merchandise is not reported, “the Department will apply adverse facts available to any non-identical matches that could have matches to cut-to-length products.” In both instances, USIMINAS stated that it would not report cut-to-length merchandise in the home market. USIMINAS asserted that there is no possibility for the Department to compare a U.S. sale of USIMINAS coil to a home market sale of cut-to-length material, as it has sufficient sales of identical or similar hot-rolled coil in the home market for comparison to all U.S. sales.
Within the model match hierarchy, all characteristics preceding the coil/cut-to-length characteristic are more defining. For instance, the characteristic immediately preceding the coil/cut-to-length characteristic is width. If the widths differ between a U.S. market coil sale and a home market coil sale, then a more suitable home market match for this U.S. observation would be a cut-to-length product with the same width (all other characteristics being equal), not a home market coil with a different width. In this instance, we have found certain U.S. sales that do not have an identical match at the width characteristic (but all other characteristics were equal). Therefore, a cut-to-length product of the same width (with all other characteristics being equal) as the U.S. sale would be a better match than the coil product with a different width. Since USIMINAS has not reported its home market cut-to-length sales, we have no way of determining if one of these sales would provide a better match.
USIMINAS did not report cut-to-length sales, even though it had the ability to do so. Therefore, pursuant to section 776(a) of the Act, since USIMINAS failed to cooperate by not acting to the best of its ability in reporting cut-to-length sales, we are applying adverse facts available. We are assigning USIMINAS, as adverse facts available, the highest calculated margin for any USIMINAS/COSIPA U.S. sale observation, where a home market cut-to-length product is a potentially more suitable match than a home market coil product. See USIMINAS/COSIPA Preliminary Analysis Memorandum, dated July 31, 2001.
In accordance with section 771(16) of the Act, all products produced by the respondents covered by the description in the “Scope Review” section above and sold in Brazil during the POR are considered to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, the Department compared U.S. sales to the next most similar foreign like product on the basis of the characteristics listed in Appendix V of the Department's October 24, 2000, antidumping questionnaire. If there were no home market foreign like products to compare to a U.S. sale, we used constructed value (CV).
Under section 771(33)(E) of the Act, if one party owns, directly or indirectly, five percent or more of the other, such parties are considered to be affiliated for purposes of the antidumping law. Furthermore, it is the Department's practice to collapse affiliated producers for purposes of calculating a margin when they have production facilities for similar or identical products that would not require substantial retooling in order to restructure manufacturing priorities and the facts demonstrate that there is significant potential for manipulation of pricing or production. In the final determination of the investigation underlying this suspension agreement, we determined that USIMINAS and COSIPA were affiliated parties, and we collapsed these entities. See Notice of Final Determination of Sales at Less Than Fair Value Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil; 64 FR 38756, 38759) (Final Determination). In response to our questions concerning this issue, USIMINAS/COSIPA have indicated that there have been no major changes in the corporate structure and
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, the Department determines Normal Value based on sales in the comparison market at the same level of trade (LOT) as the export price (EP) or constructed export price (CEP) transaction. The NV LOT is that of the starting price of sales in the comparison market or, when NV is based on CV, that of the sales from which the Department derives selling, general, and administrative expenses (SG&A) and profit. For EP, the LOT is also the level of the starting price sale, which is usually from the exporter to the importer. For CEP, it is the LOT of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP or CEP sales, the Department examines stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, the Department makes a LOT adjustment in accordance with section 773(a)(7)(A) of the Act. For CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the differences in the levels between NV and CEP sales affects price comparability, the Department adjusts NV under section 773(A)(7)(B) of the Act (the CEP offset provision). See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from South Africa, 62 FR 61731 (November 19, 1997).
CSN claims to sell directly to trading companies, as well as to end-users and distributors through an agent (see further discussion of agency sales below) in the U.S. market. CSN also claims to sell to service center/distributors and end-users in the home market. CSN states that it provides warranties, technical assistance, returns, and freight arrangements equally to service centers/distributors and end-users. Thus, the selling functions provided to different classes of home market customers do not vary significantly. CSN provides the same selling functions for U.S. sales except for technical assistance. Technical assistance is only provided with respect to home market sales. However, CSN notes that this assistance is mainly provided in connection with warranty claims which are available to all customers. We preliminarily find that the varying levels of technical assistance provided in this case do not establish a significant difference between the services provided to home market and U.S. customers. Consequently, the Department preliminarily determines that there is only one LOT in the home market and that it is at the same level as the single LOT in the U.S. market.
In the home market, USIMINAS/COSIPA claims to make sales through two primary channels of distribution: (1) direct sales to distributors and end users and (2) sales through affiliated distributors.
In determining whether separate levels of trade exist in the home market, the Department first examined available information on the record about the company's selling functions for each channel of distribution. USIMINAS/COSIPA claims that the selling functions performed by the affiliated distributors in the second channel of distribution (downstream sales) are much more significant than those performed by USIMINAS/COSIPA in their direct mill sales to end-users and unrelated distributors. To support its claim, the respondent provides the following examples of selling functions provided for downstream sales but not mill direct sales: inventory maintenance for customers, more flexible credit terms, special warehousing, technical services beyond those offered by the mills, special processing (on-site cutting and slitting activities), and more extensive delivery services. Of these selling functions, special processing does not appear to be a traditional selling function relevant to the Department's LOT analysis but, rather, is a production cost. For mill direct sales, USIMINAS/COSIPA provides only limited after-sales services/warranties, freight and delivery arrangements, and technical advice.
In addition, we have combined two selling functions, inventory maintenance and special warehousing (which, together, we refer to as “warehousing”) because we find that they were not sufficiently distinct to warrant being treated as unique selling functions.
Based on these types of services performed by the affiliated distributors and the greater number of services provided by the affiliated distributors compared with the mills, we preliminary determine that the selling functions of the affiliates for downstream sales were significantly different than those for mill direct sales, and therefore, we have determined that downstream sales by affiliates were made at a different LOT than other HM sales. Thus, we preliminarily determine that downstream sales and mill direct sales represent two different home market LOTs.
In the U.S. market, COSIPA sold directly to unaffiliated trading companies, while USIMINAS stated that it sold directly to U.S. customers (service centers and large-volume steel consumers) using unrelated trading companies as its agents. USIMINAS/COSIPA noted that although the channels of distribution used by each company are slightly different, there is no difference between the types of services offered to each group of customers. USIMINAS/COSIPA claim that all U.S. sales are made at the same level of trade as USIMINAS/COSIPA's direct home market sales to end users and distributors. Both USIMINAS and COSIPA provided very few services to its U.S. customers. The limited selling functions associated with U.S. sales include warranties only for merchandise that conforms to the specifications ordered and freight and delivery arrangements. As noted above, these services are also provided to home market mill direct customers. The only additional selling function offered for home market mill direct sales is a limited amount of technical advice. Both home market mill direct sales and U.S. sales involve sales to large customers, including service centers/distributors that resell steel and end-users. The Department finds the limited type of selling functions for mill direct sales in the home market to be similar to U.S. sales. Therefore, based on our analysis of selling functions, the Department finds U.S. sales to be at the same LOT as home market mill direct sales.
USIMINAS indicated that all its sales to the United States were made through
During verification, we were able to confirm that the trading companies solicit and interact directly with the U.S. customers. Both CSN and USIMINAS negotiate a price that they charge the trading companies. Although both CSN and USIMINAS claim that the end customer is their customer, we found that the trading companies have the power to negotiate and set the price and terms of the sale to the U.S. customer with few restrictions (
We also found that both CSN and USIMINAS invoice the trading companies when the merchandise is shipped from the mill, whereas the trading companies do not invoice the end customer until after the end customer receives the merchandise. Consequently, there is often a lengthy gap between these invoices. In cases where the end customer cancels the sale before delivery, we found that the trading companies are responsible for warehousing the merchandise and for selling the merchandise. For these sales, the trading companies would have already paid the mill, and there is no indication that the mill would reimburse the trading companies for the payment it made on a canceled sale. Accordingly, we find that, inconsistent with an agency relationship, the trading companies bear the risk of loss for unpaid sales. While the invoices and sales contracts indicate that the trading companies are holding themselves out as agents on behalf of the mill (CSN or USIMINAS), we found no other documentation supporting this fact. In addition, neither company had a written agreement with their trading companies to act as their agents. While the absence of a written agreement is not dispositive of an agency relationship, we find that nothing in the record supports the conclusion that either CSN or USIMINAS controls or directs the trading companies in their transactions with end users.
Based upon the facts outlined above, we preliminarily determine that for these sales and for purposes of this suspension agreement, the first sale to an unaffiliated party in the United States is the sale from the exporter to the trading companies. Therefore, for these sales we have compared the prices to the trading companies (plus any other charges, not included in the price to the trading company, incurred in bringing the steel to the first customs port of discharge in the U.S. market) to the applicable reference prices. We have also used the price to the trading companies in calculating export price.
As stated in 19 CFR 351.401(i), the Department normally will use invoice date as the date of sale unless another date better reflects the date on which the exporter or producer establishes the material terms of sale. Both CSN and USIMINAS/COSIPA reported the date of the nota fiscal (
CSN maintains that it uses the date of the nota fiscal for home market sales in its accounting records because this is the date on which material terms of sale are finalized. The Department used the nota fiscal date in the investigation (see Final Determination at 38768). CSN states that there have been no significant changes to CSN's sales process since the investigation.
For its U.S. sales, CSN reported the order confirmation date, stating that it is the date of sale defined in the Suspension Agreement even though CSN uses the commercial invoice date in its normal accounting records. The Suspension Agreement defines the date of sale as the date on which a signatory confirms an order for a fixed quantity of hot-rolled steel at a fixed price (see Suspension Agreement, 64 FR 38793).
USIMINAS and COSIPA maintain that for their home market sales, the nota fiscal is the date on which the material terms of sale are first finalized. The nota fiscal is also used by both companies' accounting systems to register home market sales.
For their U.S. sales, USIMINAS and COSIPA also reported the order confirmation date as date of sale stating that it is the date of sale defined in the Suspension Agreement.
Based upon the respondent's arguments for these preliminary results, we have used the dates of sale as reported for all three companies.
To determine the amount by which estimated normal value exceeds export price, the Department compared the EP to the NV, as described in the “Export Price” and “Normal Value” sections of this notice below. In accordance with sections 777A(d)(2) and 734(c)(1)(B)of the Act, the Department calculated monthly weighted-average prices for NV and compared these to individual U.S. entries of each exporter.
In a letter dated November 1, 2000, USIMINAS, COSIPA and CSN informed the Department of their intent not to report resales by their affiliated companies as part of their questionnaire responses.
On November 28, 2000 and revised on March 8, 2001, CSN provided aggregate sales information of its affiliated reseller. According to CSN, its reseller's sales of products made from hot-rolled steel are non-subject merchandise and/or would not match to the U.S. sales. The remaining sales by the reseller account for a small percentage of CSN's
In the USIMINAS/COSIPA response to the Department's questionnaire, these companies did not report their downstream sales. They cited the following reasons: (1) USIMINAS/COSIPA sales to their affiliated distributors represent a relatively small portion of the total sales of USIMINAS/COSIPA; (2) most of the merchandise the affiliated distributors resell is different from what the mills export to the United States; (3) the Department's determination from the investigation that the sales by the distributors are at different levels of trade from those by the mills. USIMINAS' and COSIPA's sales to affiliated resellers in the home market accounted for more than 5% of total sales, and the Department's supplemental questionnaire dated February 7, 2001 asked USIMINAS and COSIPA to provide aggregate sales data for each of their affiliated resellers. In the March 2, 2001 response, USIMINAS and COSIPA provided aggregate sales information of their affiliated resellers.
Based upon the information on the record, we preliminarily find that sales by the affiliated resellers are at a separate level of trade from the direct sales by the mills. Numerous direct mill sales are identical to or very similar to U.S. sales and are at the same LOT, and are available for matching to the U.S. sales. Therefore, we have preliminarily determined that the sales by affiliated resellers would likely be used to match to few, if any, U.S. sales, and we have not required respondents to report resales by their affiliates.
The Department based its calculations on EP, in accordance with section 772(a) of the Act, because the subject merchandise was sold by the producer or exporter directly to the first unaffiliated purchaser in the United States prior to importation. Furthermore, the Department calculated EP based on packed prices charged to the first unaffiliated customer in the United States.
The Department made company-specific adjustments as follows.
The Department made deductions from the starting price, where appropriate, for international freight, foreign inland freight, and foreign brokerage and handling incurred by CSN on its U.S. sales, in accordance with section 772(c)(2)(A) of the Act.
The Department made deductions from the starting price, where appropriate, for the following movement expenses, in accordance with section 772(c)(2)(A) of the Act: foreign inland freight, international freight, and foreign brokerage and handling expenses.
After testing home market viability and whether home market sales were at below-cost prices, the Department calculated NV as noted in the “Price-to-Price Comparisons” and “Price-to-CV Comparison” sections of this notice.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
Sales to affiliated customers in the home market not made at arm's length prices (if any) were excluded from our analysis because the Department considered them to be outside the ordinary course of trade. See 19 CFR 351.102. To test whether these sales were made at arm's length prices, the Department compared, on a model-specific basis, the prices of sales to affiliated and unaffiliated customers net of all movement charges, direct selling expenses, and packing. Where, for the tested models of subject merchandise, prices to the affiliated party were on average 99.5 percent or more of the price to unaffiliated parties, the Department determined that sales made to the affiliated party were at arm's length. See 19 CFR 351.403(c). In instances where no price ratio could be constructed for an affiliated customer because identical merchandise was not sold to unaffiliated customers, the Department was unable to determine that these sales were made at arm's length prices and, therefore, excluded them from our less than fair value analysis. See, Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat Products from Argentina, 58 FR 37062, 37077 (July 9, 1993). Where the exclusion of such sales eliminated all sales of the most appropriate comparison product, the Department made a comparison to the next most similar product.
The Department initiated an investigation to determine in fact whether the respondents made home market sales during the POR at prices below their cost of production (COP) within the meaning of section 773(b) of the Act. Based on the fact that the Department had disregarded sales in the less than fair value investigation (the most recently completed investigation/review of CSN and USIMINAS/ COSIPA at the time of initiation in this review) because they were made below the COP, the Department has reasonable grounds, in accordance with section 773(b)(2)(A)(ii) of the Act, to believe or suspect that respondents made home market sales in this review at prices below the cost of producing the merchandise.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of each (CSN and combined USIMINAS/COSIPA) respondent's cost of materials and fabrication for the foreign like product, plus an amount for SG&A, including interest expenses, and packing costs.
We used the information from each respondent's section D questionnaire and supplemental questionnaire responses to calculate COP. We compared the weighted-average COP for each respondent to home market sales prices of the foreign like product, as required under section 773(b) of the Tariff Act. In determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales were made (i) in substantial quantities over an extended period of time, and (ii) at prices which permitted the recovery of all costs within a reasonable period of time. On a product-specific basis, we compared COP to home market prices, less any applicable movement charges, billing adjustments, taxes, and discounts and rebates.
Pursuant to section 773(b)(2)(C)(i) of the Act, where less than twenty percent of a respondent's sales of a given product were at prices less than the
Our cost test for each respondent revealed that less than twenty percent of each respondent's home market sales of certain products were at prices below their respective COP. Therefore, we retained all such sales in our analysis. For other products, more than twenty percent of each respondent's sales were at below-cost prices. In such cases we disregarded the below-cost sales, while retaining the above-cost sales for our analysis. See Preliminary Analysis Memoranda, July 31, 2001.
In accordance with section 773(e)(1) of the Act, we calculated CV based on the sum of respondent's cost of materials, fabrication, SG&A, including interest expenses, and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A and profit on the amounts incurred and realized by each respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the foreign country. We used the CV data each respondent supplied in its section D questionnaire and supplemental questionnaire responses.
We calculated NV based on FOB or delivered prices to unaffiliated customers or prices to affiliated customers that we determined to be at arm's-length prices. Consistent with past practice, we adjusted NV for the full amount of IPI and ICMS taxes collected on the subject merchandise, in accordance with section 773(a)(6)(B)(iii) of the Act, because these are VAT taxes. We made adjustments for differences in physical characteristics of the merchandise pursuant to section 773(a)(6)(C)(ii) of the Act, as well as for differences in circumstances of sale (COS) in accordance with section 773(a)(6)(iii) of the Act and 19 CFR 351.410. We also deducted home market packing costs and added U.S. packing costs in accordance with section 773(a)(6)(A) and(B) of the Act.
For CSN, we based NV on prices of home market sales that passed the cost test. We made deductions for applicable billing adjustments, and certain taxes as discussed above. We made deductions, where appropriate, for inland freight pursuant to section 773(a)(6)(B) of the Act. We made COS adjustments for differences in credit, interest revenue, and warranty expenses, where appropriate.
For USIMINAS/COSIPA we based NV on prices of home market sales that passed the cost test. We made deductions for applicable billing adjustments, discounts, and taxes. We made deductions, where appropriate, for inland freight, warehousing, and inland insurance, pursuant to section 773(a)(6)(B) of the Act. We made COS adjustments for imputed credit expense, interest revenue, and warranties.
Based on verification, we have made adjustments to home market warehousing, U.S. warranties and U.S. and home market imputed credit expenses. We have also disallowed COSIPA's home market technical services expenses as a direct selling expense.
In accordance with section 773(a)(4) of the Act, we based NV on CV if we were unable to find a home market match of identical or similar merchandise. We calculated CV based on the costs of materials and fabrication employed in producing the subject merchandise, SG&A, and profit. In accordance with section 773(a)(2)(A) of the Act, we based SG&A expense and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in Brazil. For selling expenses, we used the weighted-average home market selling expenses. Where appropriate, we made adjustments to CV in accordance with section 773(a)(8) of the Act. For comparisons to EP, we made COS adjustments by deducting home market direct selling expenses and adding U.S. direct selling expenses.
We made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank. Section 773A(a) of the Act directs the Department to use a daily exchange rate in order to convert foreign currencies into U.S. dollars unless the daily rate involves a fluctuation. It is the Department's practice to find that a fluctuation exists when the daily exchange rate differs from the benchmark rate by 2.25 percent. The benchmark is defined as the moving average of rates for the past 40 business days. When we determine a fluctuation to have existed, we substitute the benchmark rate for the daily rate, in accordance with established practice. (For an explanation of this method,
The purpose of the review is to review the current status of, and compliance with, the terms of the Suspension Agreement.
Under the statute, the Department is required to review sales made under the Agreement to determine whether the terms of the Agreement are being complied with. Specifically, section IV(E) of the Agreement requires that for each entry of each exporter the amount by which the estimated normal value exceeds the export price (or the constructed export price) will not exceed a specified amount. That limit is 15 percent of the weighted average amount by which the estimated normal value exceeded the export price (or the constructed price) for all less-than-fair-value entries of the exporter examined during the course of the investigation.
We examined the extent to which CSN or USIMINAS/COSIPA may have made sales that were not in compliance with this provision of the Agreement. To this end, we examined the number of sales which had margins that exceeded the limit established by the Agreement and the amount by which these sales exceeded this limit. As a result, we found that at least one company made sales at dumping margins that exceeded the limit
We note that the respondents have taken issue with some aspects of our approach in analyzing these sales. Specifically, the respondents argue that they are affiliated with the trading companies through which they sold to the United States and therefore the appropriate basis for our analysis are the sales by the trading companies. However, even if the Department were to determine that the trading companies acted as agents and that the first unaffiliated U.S. customers are the trading companies' customers, as respondents have argued, the extent to which the dumping margins for entries from CSN and USIMINAS/COSIPA would exceed 15 percent of the weighted average margin for CSN and USIMINAS/COSIPA in the LTFV investigation would not be insignificant. Therefore, we would still have found that there were sales in violation of the Agreement.
Section IV(A) of the agreement contains the reference price requirements for merchandise subject to the agreement. We compared the price charged by the mill to the first unaffiliated customer in the United States to the reference price for the applicable period for that sale (based upon the order confirmation date). The Suspension Agreement states that the reference price includes all transportation charges to the U.S. port of entry, together with port fees, duties, offloading, wharfage and other charges incurred in bringing the steel to the first customs port of discharge in the U.S. market. In addition, the Suspension Agreement stipulates that if the sale for export is on terms that do not include these expenses, the Signatories will ensure that the actual terms are equivalent to a price that is not lower than the reference price. Therefore, we have added to the price to the first unaffiliated U.S. customer any of these charges that were not included in the price terms to that first unaffiliated U.S. customer, and we compared this total to the applicable reference price.
In our analysis, we examined the number of sales and the amount by which they were made at prices below the reference price established by the Suspension Agreement. As a result, we found that for at least one company, neither the number of sales made below the reference price established by the Suspension Agreement nor the amount by which they were below the reference price was insignificant. On this basis, we cannot conclude that these sales inconsistent with the Agreement are inconsequential or inadvertent. See USIMINAS/COSIPA and CSN's Preliminary Analysis Memoranda, dated July 31, 2001.
Therefore, we preliminarily determine that CSN and USIMINAS/COSIPA have made sales in violation of these terms of the Agreement. Pursuant to Article X of the Agreement, the Department may engage in consultations with any Signatory to the Agreement regarding this determination. In the event that this determination is confirmed in the final results of this review, we will take whatever action we deem appropriate under section 734(i) of the Act, the Department regulations and Article XI of the Agreement.
The Department will disclose calculations performed within five days of the date of publication of this notice to the parties of this proceeding in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results.
This administrative review and this notice are in accordance with Section 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has received a request to conduct a new shipper review of the antidumping duty order on silicon metal from the People's Republic of China (PRC). In accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(d), we are initiating this new shipper review.
August 7, 2001.
Jacqueline Arrowsmith or Maureen Flannery, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC. 20230; telephone: (202) 482-4052 or (202) 482-3020, respectively.
Unless otherwise indicated, all citations to the Act are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all references to the Department's regulations are to 19 CFR Part 351 (2001).
On June 28, 2001, the Department received a timely request from Groupstars Chemical Company, Ltd. (Groupstars), in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(c), for a new shipper review of the antidumping duty order on silicon metal from the PRC. This order has a June anniversary month. The period of review is, therefore, June 1, 2000 through May 31, 2001.
Pursuant to 19 CFR 351.214(b)(2)(i) and 19 CFR 351.214(b)(2)(iii)(A), Groupstars' June 28, 2001 request for a review certified that Groupstars had not exported the subject merchandise to the United States during the period of investigation (POI) and that it had not been affiliated with any company which exported subject merchandise to the United States during the POI. Pursuant to 19 CFR 351.214, Groupstars also certified that its export activities are not controlled by the central government of the PRC. In addition, pursuant to 19 CFR 351.214(b)(2)(iv), Groupstars' request contained documentation establishing: the date the subject merchandise was first shipped to the United States, the volume of that shipment, and the date of the first sale to an unaffiliated customer in the United States.
Therefore, in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(d), we are initiating a new shipper review of the antidumping duty order on silicon metal from the PRC.
It is the Department's usual practice in cases involving non-market economies to require that a company seeking eligibility for a separate rate from the country-wide rate provide
Pursuant to 19 CFR 351.214 (g)(1)(i)(A) of the Department's regulations, the POR for a new shipper review initiated in the month immediately following the anniversary month will be the twelve-month period immediately preceding the anniversary month. Therefore, the POR for this review is June 1, 2000 through May 31, 2001.
Concurrent with the publication of this initiation notice, and in accordance with 19 CFR 351.214(e), effective on the date of publication of this notice, we will instruct the U.S. Customs Service to allow, at the option of the importer, the posting of a bond or security in lieu of a cash deposit for each entry of the subject merchandise exported by the company named above, until the completion of the review.
Interested parties may submit applications for disclosure of business proprietary information under administrative protective order in accordance with 19 CFR 351.305 and 351.306.
This initiation and notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.214.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review of Stainless Steel Sheet and Strip in Coils From Taiwan.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on stainless steel sheet and strip in coils (“SSSS”) from Taiwan in response to requests from respondents Yieh United Steel Corporation (YUSCO), Tung Mung Development Co., Ltd. (Tung Mung) and Chia Far Industries Co., Ltd. (Chia Far), and petitioners
Our preliminary results of review indicate that Chia Far has sold subject merchandise at less than normal value (“NV”) during the POR, and that YUSCO and Tung Mung did not make any sales below normal value during the POR. In addition, we have preliminarily determined to rescind the review with respect to Ta Chen because it had no shipments of subject merchandise to the United States during the period of review. If these preliminary results are adopted in our final results of this administrative review, we will instruct the U.S. Customs Service to assess antidumping duties on suspended entries on all appropriate entries.
We invite interested parties to comment on these preliminary results. Parties who submit arguments in this segment of the proceeding should also submit with each argument (1) a statement of the issue and (2) a brief summary of the argument.
August 8, 2001.
Michael Panfeld (Ta Chen); Stephen Shin (Chia Far); Stephen Bailey (YUSCO), Mesbah Motamed (Tung Mung); or Rick Johnson, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0172, (202) 482-0413, (202) 482-1102, (202) 482-1382 or (202) 482-3818, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (2000).
On July 20, 2000, the Department published in the
Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit. On January 8, 2001, the Department extended the time limit for the preliminary results in this review to July 1, 2001.
On September 28, 2000, and in subsequent submissions on October 4, 12, and 31, 2000, Ta Chen informed the Department that it had no shipments of subject merchandise to the United States during the period of review (POR). We have confirmed this with the U.S. Customs Service.
Ta Chen has also stated that its U.S. affiliate (“TCI”) had resales of SSSS from Taiwan during the POR. However, Ta Chen has stated that these sales were from inventory that was entered into the United States prior to the suspension of liquidation. The Department has previously determined that “(s)ales of merchandise that can be demonstrably linked with entries prior to the suspension of liquidation are not subject merchandise and therefore are not subject to review by the Department.”
Ta Chen has certified that of TCI's resales of Taiwanese merchandise from its U.S. warehouse inventory during the POR, all merchandise entered before the POR. The Department's Customs inquiry indicates that such merchandise did not enter the United States after the suspension of liquidation. Consequently, in accordance with 19 CFR 351.213(d)(3) and consistent with our practice, we are preliminarily rescinding our review for Ta Chen. For further discussion, see the “Partial Rescission of Review” section of this notice, below.
The Department is conducting this administrative review in accordance with section 751 of the Act.
As provided in section 782(i) of the Act, we verified sales information provided by Chia Far, from June 16, 2001 to June 22, 2001, using standard verification procedures, including an examination of relevant sales, cost, and financial records, and selection of original documentation containing relevant information. In addition, we verified sales information provided by Tung Mung and YUSCO from April 25, 2001 to May 2, 2001 and from June 25, 2001 to June 29, 2001, respectively. Our verification results are outlined in the public version of the verification reports and are on file in the Central Records Unit (“CRU”) located in room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, N.W., Washington, D.C.
For purposes of this review, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (e.g., cold-rolled, polished, aluminized, coated, etc.) provided that it maintains the specific dimensions of sheet and strip following such processing.
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTS) at subheadings: 7219.13.00.31, 7219.13.00.51, 7219.13.00.71, 7219.13.00.81 , 7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05, 7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05, 7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36, 7219.33.00.38, 7219.33.00.42, 7219.33.00.44, 7219.34.00.05, 7219.34.00.20, 7219.34.00.25, 7219.34.00.30, 7219.34.00.35, 7219.35.00.05, 7219.35.00.15, 7219.35.00.30, 7219.35.00.35, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.12.10.00, 7220.12.50.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.20.70.05, 7220.20.70.10, 7220.20.70.15, 7220.20.70.60, 7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. Although the HTS subheadings are provided for convenience and Customs purposes, the
Excluded from the scope of this order are the following: (1) sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (i.e., flat-rolled stainless steel products of a thickness of 4.75 mm or more), (4) flat wire (i.e., cold-rolled sections, with a prepared edge, rectangular in shape, of a width of not more than 9.5 mm), and (5) razor blade steel. Razor blade steel is a flat-rolled product of stainless steel, not further worked than cold-rolled (cold-reduced), in coils, of a width of not more than 23 mm and a thickness of 0.266 mm or less, containing, by weight, 12.5 to 14.5 percent chromium, and certified at the time of entry to be used in the manufacture of razor blades.
In response to comments by interested parties, the Department also determined that certain specialty stainless steel products were excluded from the scope of the investigation and the subsequent order. These excluded products are described below.
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of the order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (“ASTM”) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (“UNS”) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of the order. These include stainless steel strip in coils used in the production of textile cutting tools (e.g., carpet knives).
As noted above, Ta Chen informed the Department that it had no shipments of subject merchandise to the United States during the POR. We have confirmed this with the U.S. Customs Service. Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with the Department's practice, we are preliminarily rescinding our review with respect to Ta Chen.
Section 776(a)(2) of the Act provides that if any interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested; (C) significantly impedes an antidumping investigation; or (D) provides such information but the information cannot be verified, the Department shall use facts otherwise available in making its determination. Pursuant to section 782(d) of the Act, if the Department:
On September 7, 2000, the Department sent Chia Far a questionnaire requesting that it provide information regarding any sales that it made to the United States during the POR. On October 12, 2000 and November 1, 2000, Chia Far submitted its Section A and Section C responses to the Department in which the company claimed that Chia Far was not affiliated with any of its U.S. customers and that all U.S. sales should be classified as EP sales. Based on these responses, the Department had no reason to believe that any affiliation issues existed between Chia Far and its U.S. customers. On May 24, 2001 petitioners submitted an allegation that Chia Far is affiliated by virtue of a principal/agent relationship with one of its U.S. customers.
During the course of verification, Chia Far made verbal claims that it had evidence rebutting the information provided in petitioners' June 18, 2001 submission and that it intended to submit such information on the record.
In determining whether a principal/agent relationship exists, the Department first examines whether an explicit agreement exists from the alleged principal, authorizing the agent to act on its behalf in a specified context. This agreement must not only state that such a relationship exists, but the alleged agent must expressly consent to such representation on behalf of the principal.
1. the foreign producer's role in negotiating price and other terms of sale;
2. the extent of the foreign producer's interaction with the U.S. customer;
3. whether the agent/reseller maintains inventory;
4. whether the agent/reseller takes title to the merchandise and bears the risk of loss; and 5. whether the agent/reseller further processes or otherwise adds value to the merchandise.
In the case at hand, the Department found correspondence at verification which appears to document that Chia Far's relationship with the U.S. customer satisfies the criteria for a principal/agent relationship. Because of the proprietary nature of this issue, for further discussion, please
Based on the record evidence and facts appearing on the record of this review, the Department therefore considers Chia Far to be affiliated with the U.S. customer in question.
The Department notes that pursuant to the requirements of section 782(d) of the Act, Chia Far was given several opportunities to disclose information concerning its relationship with this U.S. customer (
As a result, the record evidence and facts of the review show that Chia Far is affiliated with this U.S. customer. However, Chia Far's present database incorrectly reported sales to this customer as EP sales and did not include the first sale to an unaffiliated purchaser from this agent, nor does it contain the necessary data for CEP adjustments. Without this information, the Department is unable to accurately calculate a dumping margin. Moreover, because Chia Far has failed to respond accurately to the Department's initial Section A and Section C questionnaires and supplemental questionnaires, the Department is unable to further explore this issue within the statutory deadlines for completing this review.
Chia Far has reported sales to this agent as EP sales. Thus, the Department does not have Chia Far's sales to the first unaffiliated U.S. customer or the corresponding sales information necessary to calculate U.S. price. Moreover, because EP sales are reported based upon entry date into the United States during the POR while CEP sales are reported based upon a date of sale by the U.S. affiliate during the POR, a change in classification from EP to CEP may well result in a different universes of sales being reported. Consequently, Chia Far's response may be both inaccurate, in terms of reporting appropriate U.S. prices, and incomplete in terms of the sales which were reported.
Furthermore, sales to this agent make up a significant proportion of Chia Far's total reported sales to the United States during the POR. For the remaining sales, the number and volume of sales are insignificant in comparison to the volume of sales through Chia Far's affiliate. Thus, there is no reason to believe that Chia Far's sales to other U.S. customers would significantly reflect Chia Far's U.S. selling practices. Therefore, the Department finds that it is necessary to apply facts available to all of Chia Far's U.S. sales during the POR. For a further discussion, please
When the Department finds that a party has not participated in a review to the “best of its ability,” it may apply adverse facts available. Section 776(b) of the Act provides:
“If the administering authority [* * *] finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority [* * *], the administering authority [* * *], in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.”
Chia Far explicitly denied on two occasions that it had a principle/agency relationship with this U.S. customer. In fact, in one response Chia Far stated:
Chia Far and this customer do not have, did not have in the POR, and did not have prior to the POR a principal/agent relationship, either in fact (via an agency contract) or in theory.
Because the Department finds that Chia Far did not supply us with accurate and complete information, and, in fact, provided us with inaccurate and misleading information, we determine that Chia Far did not cooperate by complying with our requests for information and did not provide information on the level of that of a “reasonable respondent.” We therefore find that Chia Far did not act to the “best of its ability” in responding to the Department's questionnaires, and in order to ensure that it does not benefit from its lack of cooperation, pursuant to section 776(b) of the Act, we find that a total adverse inference is warranted in selecting from among the facts otherwise available.
The Department's practice when selecting an adverse FA rate from among the possible sources of information has been to ensure that the margin is sufficiently adverse so “as to effectuate the purpose of the FA rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
In order to ensure that the rate is sufficiently adverse so as to induce cooperation from Chia Far in future reviews, we have assigned to Chia Far, as total adverse FA, the highest margin from the investigation for Taiwan of 34.95 percent.
Information from prior segments of the proceeding, such as involved here, constitutes “secondary information” under section 776(c) of the Act. Secondary information is described in the SAA as “information derived from the petition that gave rise to the investigation or review, the final determination concerning subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
With respect to the relevance aspect of corroboration in this review for adverse FA, the Department stated in TRBs that it will “consider information reasonably at its disposal as to whether there are circumstances that would render a margin irrelevant. Where circumstances indicate that the selected margin is not appropriate as adverse FA, the Department will disregard the margin and determine an appropriate margin.”
To determine whether respondent's sales of subject merchandise from Taiwan to the United States were made at less than fair value, we compared the export price (“EP”) and constructed export price (“CEP”), as appropriate, to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual EP and CEP transactions. We made corrections to reported U.S. and home market sales data based on the Department's findings at verification, as appropriate.
In accordance with section 771(16) of the Act, we considered all products covered by the
In accordance with section 772(a) of the Act, export price (“EP”) is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States. In accordance with section 772(b) of the Act, constructed export price (“CEP”) is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter.
For purposes of this review, YUSCO has classified its sales as export price (“EP”) sales. In alleging that its U.S. sales should be considered EP sales, YUSCO stated that “(it) sold subject merchandise directly to an importer in the United States during the POR. The Department, therefore, should treat YUSCO's U.S. sales as export price sales.”
Based on the information on the record, we are using export price as defined in section 772(a) of the Act because the merchandise was sold, prior to importation, by YUSCO to an unaffiliated purchaser for exportation to the United States, and constructed export price (CEP) methodology was not otherwise warranted based on the facts on the record. YUSCO identified one channel of distribution for U.S. sales (sales to an unaffiliated U.S. distributor) for its U.S. sales during the POR. We based EP on packed prices to Ta Chen International (“TCI”), a U.S. distributor, for export to the United States. We made deductions for inland freight (from YUSCO's plant to the port of export), international freight, marine insurance, container handling fees, certification handling fees, and foreign brokerage and
The Department treated each of Tung Mung's U.S. market transactions as EP sales because the merchandise was sold, prior to importation, by Tung Mung to an unaffiliated purchaser for exportation to the United States, and constructed export price (CEP) methodology was not otherwise warranted based on the facts on the record. We based EP on the packed prices to unaffiliated purchasers in the United States. We made deductions for domestic inland freight, brokerage and handling, harbor duty, bank charges, international ocean freight, and marine insurance (where applicable). Additionally, we added to the U.S. price an amount for duty drawback pursuant to section 772(c)(1)(B) of the Act.
For YUSCO and Tung Mung, we compared the aggregate volume of home market sales of the foreign like product and U.S. sales of the subject merchandise to determine whether the volume of the foreign like product sold in Taiwan was sufficient, pursuant to section 773(a)(1)(C) of the Act, to form a basis for NV. Because the volume of home market sales of the foreign like product was greater than five percent of the U.S. sales of subject merchandise for all three companies, in accordance with section 773(a)(1)(B)(i) of the Act, we have based the determination of NV upon the home market sales of the foreign like product. Thus, we used as NV the prices at which the foreign like product was first sold for consumption in Taiwan, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same level of trade (“LOT”) as the CEP or NV sales, as appropriate.
After testing home market viability and whether home market sales were at below-cost prices, we calculated NV as noted in the “Price-to-Price Comparisons” and “Price-to-Constructed Value (“CV”) Comparison” sections of this notice.
Because the Department determined that YUSCO and Tung Mung made sales in the home market at prices below the cost of producing the subject merchandise in the investigation and therefore excluded such sales from normal value, the Department determined that there are reasonable grounds to believe or suspect that YUSCO and Tung Mung made sales in the home market at prices below the cost of producing the merchandise in this review.
We conducted the COP analysis described below.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of YUSCO's and Tung Mung's cost of materials and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), including interest expenses, and packing costs. We used home market sales and COP information provided by YUSCO and Tung Mung in its questionnaire responses.
We compared the weighted-average COP from June 8, 1999 through June 30, 2000 (“cost reporting period”) for YUSCO and Tung Mung, adjusted where appropriate, to their home market sales of the foreign like product as required under section 773(b) of the Act. In determining whether to disregard home market sales made at prices less than the COP, we examined whether: (1) Within an extended period of time, such sales were made in substantial quantities; and (2) such sales were made at prices which permitted the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given product within an extended period of time are at prices less than the COP, we do not disregard any below-cost sales of that product because the below-cost sales are not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the extended period are at prices less than the COP, we determine such sales to have been made in “substantial quantities.”
In accordance with section 773(e)(1) of the Act, we calculated YUSCO's and Tung Mung's constructed value (“CV”) based on the sum of their cost of materials, fabrication, SG&A, including interest expenses, and profit. We calculated the COPs included in the calculation of CV as noted above in the “Calculation of COP” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based SG&A and profit on the amounts incurred and realized by YUSCO and Tung Mung in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in the foreign country.
We based normal value (“NV”) on the home market prices to unaffiliated purchasers and those affiliated customer sales which passed the arm's length test. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act.
We calculated NV based on the home market prices to unaffiliated home market customers. We made adjustments, where applicable, for rebates and for movement expenses (i.e., inland freight from plant to customer) in accordance with section 773(a)(6)(B) of the Act. We made circumstance-of-sale adjustments for warranty expense, where appropriate. At verification, the Department noted inaccuracies in YUSCO's reported date of shipment, and consequently the value of its reported imputed credit expenses. Specifically, YUSCO reported the scheduled date, rather than the actual date of shipment, taken from the company's delivery notice. YUSCO reported that the scheduled date of shipment preceded the actual date of shipment by an average of six days.
We based home market prices on the packed, delivered prices to unaffiliated purchasers in the home market. We made adjustments, where applicable, in accordance with section 773(a)(6) of the Act. Such adjustments included adjustments for packing expenses. Where applicable, we made adjustments for movement expenses. To adjust for differences in circumstances of sale between the home market and the United States, we reduced home market prices by the amounts for direct selling expenses (
In accordance with section 773(a)(4) of the Act, we base NV on CV if we are unable to find suitable home market sales of the foreign like product. We did not use CV for YUSCO or Tung Mung for these preliminary results of review.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP transaction. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive SG&A expenses and profit. For EP, the LOT is also the level of the starting-price sale, which is usually from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act.
In the present review, YUSCO did not request a LOT adjustment. To determine whether an adjustment was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Taiwan markets, including the selling functions, classes of customer, and selling expenses.
For the home market (“HM”), YUSCO reported one level of trade.
For the U.S. market, YUSCO reported one level of trade.
Based on our analysis of the selling functions performed for sales in the HM and U.S. market, we preliminarily determine that, despite the existence of certain minor additional selling expenses (
In the present review, Tung Mung stated that a LOT adjustment was not applicable. To determine whether an adjustment is necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and home markets, including the selling functions, classes of customer, and selling expenses.
In the home market (“HM”), Tung Mung reported two levels of trade.
For sales in the HM, Tung Mung performed sales-related activities, including arranging for freight and delivery and warranty for both distributors and end-users. Therefore, based on Tung Mung's selling functions performed for each type of customer, we preliminarily determine that there is one LOT in the home market.
In the U.S. market Tung Mung reported two levels of trade.
For U.S. sales to both distributors and trading companies, Tung Mung performed many of the same major selling functions, including freight and delivery and warranty services. Therefore, based on Tung Mung's selling functions performed for each type of customer, we preliminarily determine that there is one LOT in the U.S. market.
Finally, because the selling functions performed for both HM and EP sales are identical, we preliminarily determine that there is not a significant difference in the selling functions performed in the home market and U.S. market and that these sales are made at the same LOT.
For purposes of the preliminary results, we made currency conversions in accordance with section 773A of the Act, based on the official exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank of New York. Section 773A(a) of the Act directs the Department to use the daily exchange rate in effect on the date of sale in order to convert foreign currencies into U.S. dollars, unless the daily rate involves a “fluctuation.” In accordance with the Department's practice, we have determined as a general matter that a fluctuation exists when the daily exchange rate differs from a benchmark by 2.25 percent.
As a result of our review, we preliminarily determine that the following weighted-average dumping margin exists for the period June 8, 1999 through June 30, 2000:
The Department will disclose calculations performed within five days of the date of publication of this notice to the parties to this proceeding in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results.
Upon issuance of the final results of this review, the Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b), the Department calculated an assessment rate on all appropriate entries. We calculated importer-specific duty assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value, or entered quantity, as appropriate, of the examined sales for that importer. Upon completion of this review, where the assessment rate is above de minimis, we will instruct the U.S. Customs Service to assess duties on all entries of subject merchandise by that importer.
The following cash deposit requirements will be effective upon publication of these final results for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for each of the reviewed companies will be the rate listed in the final results of review (except that if the rate for a particular product is de minimis, i.e., less than 0.5 percent, a cash deposit rate of zero will be required for that company); (2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less than fair value (“LTFV”) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be the “all others” rate of 12.61 percent, which is the all others rate established in the LTFV investigation. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, that continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the 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.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review of stainless steel sheet and strip in coils from Italy
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on stainless steel sheet and strip in coils from Italy
Our preliminary results of review indicate that respondent AST has sold subject merchandise at less than normal value during the POR. If these preliminary results are adopted in our final results of this administrative review, we will instruct the U.S. Customs Service to assess antidumping duties on suspended entries for AST.
We invite interested parties to comment on these preliminary results. Parties who submit arguments in this segment of the proceeding should also submit with each argument (1) a statement of the issue and (2) a brief summary of the argument.
August 8, 2001.
Carrie Blozy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0165.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR part 351 (2000).
On July 20, 2000, the Department published in the
On September 21, 2000, AST submitted a letter which requested certain exclusions to the data required by the Department's antidumping questionnaire. Also, on September 21, 2000, in a separate letter, AST submitted a request that the Department not require it to report downstream home market sales by its Italian affiliates. On September 22, 2000, AST requested that it not be required to submit transaction-specific data with respect to U.S. re-sales by Thyssen Copper & Brass Sales, Inc. (“CBS”), an affiliated downstream service center reseller. On October 24, 2000, petitioners filed a letter requesting that the Department deny AST's requested reporting exemptions. On October 25, 2000, the Department informed AST that, based on their representations, we were not requiring AST to report downstream sales data and were permitting AST to report cost data for finished products. However, we informed AST that we were denying their other exclusion requests.
On October 10, 2000, the Department received AST's response to Section A of the questionnaire. On November 6, 2000, we received AST's response to the remainder of the questionnaire. On December 22, 2001, the Department issued a supplemental questionnaire for Sections A, B, and C, and received AST's response on January 29, 2001. On February 21, 2001, the Department issued AST a supplemental questionnaire on Section D, and received AST's responses on March 22, 2001, and May 10, 2001. On March 28, 2001, and April 30, 2001, the Department issued Section E supplemental questionnaires for Ken-Mac Metals, Inc. (“Ken-Mac”), The Stainless Place (“TSP”), and TCT Stainless Steel (“TCT”). AST submitted its supplemental response for Ken-Mac on April 16, 2001 and their supplemental responses for TSP and TCT on May 25, 2001. The Department issued a second supplemental questionnaire for Sections A, B, and C on May 3, 2001, and received AST's response on May 29, 2001.
Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit. On January 2, 2001, the Department extended the time limit for the preliminary results in this review by 90 days.
The Department is conducting this administrative review in accordance with section 751 of the Act.
As provided in section 782(i) of the Act, we verified further manufacturing cost information, cost and sales information provided by AST, from May 9, 2001 through May 11, 2001, June 4, 2001, to June 8, 2001, and June 11, 2001, to June 14, 2001, respectively, using standard verification procedures, including an examination of relevant sales, cost, and financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public version of the verification report and are on file in the Central Records Unit (“CRU”) located in room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW., Washington, DC.
The POR is January 4, 1999 through June 30, 2000.
For purposes of this review, the products covered are certain stainless steel sheet and strip in coils (“SSSS”). Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (e.g., cold-rolled, polished, aluminized, coated, etc.) provided that it maintains the specific dimensions of sheet and strip following such processing.
The merchandise subject to this review is currently classifiable in the Harmonized Tariff Schedule of the United States (“HTS”) at subheadings: 7219.13.0031, 7219.13.0051, 7219.13.0071, 7219.1300.81
Excluded from the scope of this review are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (i.e., flat-rolled stainless steel products of a thickness of 4.75 mm or more), (4) flat wire (i.e., cold-rolled sections, with a prepared edge, rectangular in shape, of a width of not more than 9.5 mm), and (5) razor blade steel. Razor blade steel is a flat-rolled product of stainless steel, not further worked than cold-rolled (cold-reduced), in coils, of a width of not more than 23 mm and a thickness of 0.266 mm or less, containing, by weight, 12.5 to 14.5 percent chromium, and certified at the time of entry to be used in the manufacture of razor blades. See Chapter 72 of the HTS, “Additional U.S. Note” 1(d).
Flapper valve steel is also excluded from the scope of this review. This product is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this review. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this review. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (“ASTM”) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (“UNS”) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Also excluded are three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments. These include stainless steel strip in coils used in the production of textile cutting tools (e.g., carpet knives).
To determine whether AST's sales of subject merchandise from Italy to the United States were made at less than fair value, we compared the constructed export price (“CEP”) to the normal value (“NV”), as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual CEP transactions. We made corrections to reported home market sales and cost data based on the Department's findings at verification, as appropriate.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the respondent's volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise. Pursuant to sections 773(a)(1)(B) and (C) of the Act, because AST's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales for the subject merchandise, we determined that sales in the home market provide a viable basis for calculating NV.
During the POR AST sold SSSS in the home market to affiliated customers (resellers and end-users). To test whether these sales were made at arm's-length prices, we compared on a model-specific basis the starting prices of sales to affiliated and unaffiliated customers net of all billing adjustments, rebates, movement charges, direct selling expenses, and home market packing. Where, for the tested models of subject merchandise, prices to the affiliated party were on average 99.5 percent or more of the price to the unaffiliated parties, we determined that sales made to the affiliated party were at arm's-length.
In accordance with section 771(16) of the Act, we considered all products covered by the Scope of the Review section above, which were produced and sold by AST in the home market during the POR, to be foreign like products for purposes of determining appropriate comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire.
In accordance with section 772(a) of the Act, export price (“EP”) is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c). In accordance with section 772(b) of the Act, CEP is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections (c) and (d).
For purposes of this review, AST classified its U.S. sales through channel one as EP sales and sales through channels two and three as CEP sales. However, based on the information on the record, we preliminarily find that all of AST's U.S. sales are appropriately classified as CEP sales.
Channel two sales are made from the inventory of Acciai Speciali Terni USA (“AST USA”), AST's affiliated U.S. based reseller. Channel three sales involve subject merchandise that is sold by AST to an affiliated U.S. reseller (
We calculated CEP, in accordance with section 772(b) of the Act, based on the packed, CIF or FOB prices to the first unaffiliated customer in the United States. We made adjustments to the starting price for billing adjustments, where applicable. In addition, we made adjustments to the starting price by adding alloy surcharges, skid charges, and freight equalization charges, where appropriate. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight, foreign inland insurance, foreign brokerage and handling, marine insurance, international freight, U.S. customs
After testing home market viability and whether home market sales were at below-cost prices, we calculated NV as noted in the “Price-to-Price Comparisons.”
Because the Department determined that AST made sales in the home market at prices below the cost of producing the subject merchandise in the investigation and therefore excluded such sales from normal value (
We conducted the COP analysis as described below.
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of AST's cost of materials and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), including interest expenses, and packing costs. AST requested that the Department use quarterly cost data when performing the sales-below-cost test because of the extended time period of the review (18 months) and because of alleged significant fluctuations in the price of raw materials (
1. At verification, we found that AST improperly applied the general and administrative (“G&A”) expense ratio to total cost of manufacture.
2. At verification we found that AST did not include foreign exchange rate losses in its calculation of G&A expenses for fiscal year 1999/2000.
3. During verification AST explained that they did not intend to claim an interest income offset to interest expenses for fiscal year 1999/2000 despite having included the offset in their reported interest expenses.
4. During verification, we found that AST made a clerical error in its calculation of the fixed overhead expense ratio.
We compared the weighted-average COP from January 1, 1999, through June 30, 2000 (“cost reporting period”) for AST, adjusted where appropriate (
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given product within an extended period of time are at prices less than the COP, we do not disregard any below-cost sales of that product because the below-cost sales are not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the extended period are at prices less than the COP, we determine such sales to have been made in “substantial quantities.”
We based NV on the home market delivered prices to unaffiliated customers or prices to affiliated customers that we determined to be at arm's-length. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. We made adjustments for billing adjustments, rebates, and alloy surcharges, where appropriate. We made adjustments for foreign inland freight in accordance with section 773(a)(6)(B) of the Act. We made circumstance-of-sale adjustments for credit, warranty expense, interest revenue, and insurance revenue, where appropriate. In accordance with section 773(a)(6), we deducted home market packing costs and added U.S. packing costs.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP or CEP transaction. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive SG&A expenses and profit. For EP, the LOT is also the level of the starting-price sale, which is usually from the exporter to the importer. For CEP, it is the level of the constructed sale from the exporter to the affiliated importer.
To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. Substantial differences in selling activities are a necessary, but not sufficient condition for determining that there is a difference in the stage of marketing. 19 CFR 351.412(c)(2). If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make a LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the differences in the levels between NV and CEP sales affect price comparability, we adjust NV under section 773(A)(7)(B) of the Act (the CEP offset provision).
In the present review, AST requested a CEP offset. (As noted above, we have preliminarily determined that all of AST's U.S. sales are CEP sales.) To determine whether a CEP offset was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Italian markets, including the selling functions, classes of customer, and selling expenses.
In the home market, AST reported one level of trade. AST sold through two channels of distribution in the home market: (1) directly from its mill to unaffiliated end-users/speciality end-users, white goods manufacturers and affiliated and unaffiliated service centers; and (2) from its warehouse to industrial end-users, speciality end-users, and service centers/distributors. AST claimed two levels of trade in its U.S. market. AST sold through three channels of distribution in the U.S. market: (1) Directly from its mill through AST USA to unaffiliated end-users and distributors/service centers; (2) from the inventory of AST USA; and (3) from the mill through AST USA to its affiliated U.S. further manufacturers/reseller, which then sell to unaffiliated customers.
For sales in home market channel one, AST performed all sales-related activities, including arranging for freight and delivery; pre-sale and continuous technical assistance; trial lots; warranty services; price negotiation; sales calls and visits; after-sales service; and extending credit. The same selling functions were performed in home market channel two; however, unlike direct factory sales, these sales carry no guarantee or warranty. Also, AST, rather than the customer, typically initiates sales of these products by distributing a list of available products to potential customers. Because these selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the home market.
We reviewed the selling functions and services performed by AST in the U.S. market, as represented by AST in its responses. AST indicated that the selling functions performed by AST for CEP sales, regardless of channel of distribution, include the following: processing AST USA inquiries and purchase orders; invoicing AST USA; extending credit to AST USA; freight and delivery arrangements from AST's plant to the U.S. port (including the cost of transporting the goods to the European port, port handling, and ocean freight), and warranty services. Although AST characterizes its involvement in the CEP sales as low, for back-to-back U.S. sales shipped directly from AST's factory to the unaffiliated customer (
In addition to the above selling functions, based on information provided by AST, we find that AST made sales visits and provided pre-sale and technical assistance. Although AST indicated in its response that it did not make sales calls and visits for its CEP sales, AST did report that AST representatives occasionally visit the United States and meet with AST USA officials.
AST performs identical selling functions across all three U.S. channels of distribution and at the same degree with the exception of more intensive price negotiations and freight and delivery services for U.S. back-to-back sales. We find that the differences in the degree of selling functions performed to be relatively minor. Therefore, we preliminarily determine that there is one LOT in the U.S. market.
AST performed many of the same selling functions for both its CEP sales (
Proprietary information submitted by AST indicates that selling activities associated with price negotiations and the provision of prototypes and trial lots by AST in the home market were not substantial.
As a result of our review, we preliminarily determine that the following weighted-average dumping margin exists for the period January 4, 1999 through June 30, 2000:
The Department will disclose calculations performed within five days of the date of publication of this notice to the parties to this proceeding in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results.
Upon issuance of the final results of this review, the Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific assessment rates. We divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct the U.S. Customs Service to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's entries under the relevant order during the review period. Upon completion of this review, the Department will issue appraisement instructions directly to the Customs Service.
The following cash deposit requirements will be effective upon publication of these final results for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed company will be the rate listed above (except that if the rate for a particular product is
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, that continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the 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.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review.
In response to a request by respondent Mexinox S.A. de C.V. (Mexinox) and Mexinox USA, Inc. (Mexinox USA) (collectively, Mexinox), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on stainless steel sheet and strip in coils (S4 in coils) from Mexico (A-201-822). This review covers one manufacturer/exporter (Mexinox) of the subject merchandise to the United States during the period January 4, 1999 to June 30, 2000.
We preliminarily determine that sales of S4 in coils from Mexico have been made below the normal value (NV). If these preliminary results are adopted in our final results of administrative review, we will instruct the U.S. Customs Service to assess antidumping duties based on the difference between United States price and the NV. Interested parties are invited to comment on these preliminary results. Parties who submit argument in these proceedings are requested to submit with the argument (1) a statement of the issues and (2) a brief summary of the argument.
August 8, 2001.
Deborah Scott or Robert James, AD/CVD Enforcement, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-2657 or (202) 482-0649, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Tariff Act) are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act by the Uruguay Rounds Agreements Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR Part 351 (April 1, 2000).
On July 27, 1999 the Department published in the
In accordance with 19 CFR 351.213 (b)(1), the respondent (Mexinox) requested that we conduct an administrative review of Mexinox in the A-201-822 case. On September 6, 2000, we published in the
Because it was not practicable to complete these reviews within the normal time frame, on February 15, 2001, we published in the
In response to the Department's March 23, 2001 supplemental questionnaire, on April 20, 2001 Mexinox submitted a database containing information regarding downstream sales made by its affiliate, Mexinox Trading. (For more information about the Department's request, see “Sales Through Affiliated Resellers” below.) In the accompanying narrative, Mexinox reported that certain of the sales made by Mexinox Trading were of quantities less than 20 kgs. (53 lbs.). Mexinox described this merchandise as “small pieces that have been crudely cut (with scissors) from a coil on a piece-by-piece basis based on length measurements specified by the customer.” Mexinox further stated that “these materials are more properly considered cut-to-length sheets than stainless steel sheet and strip in coils. In fact they are curled into a circular shape only for the convenience of the customer for transportation.” In the database submitted to the Department, Mexinox coded sales of this merchandise both as outside the ordinary course of trade and as non-subject.
On May 10, 2001, the Department requested further information about Mexinox Trading's sales of merchandise of quantities less than 20 kg. In its May 25, 2001 response, Mexinox reiterated the description of the merchandise made in its April 20, 2001 submission, and added that the cut pieces are “rolled up like a poster and held together with a rope or steel band to facilitate transportation.”
Based on the criteria set forth under section 351.225(k) of the Department's regulations, we have determined that materials sold in quantities of less than 20 kg are covered by the scope of this review. First, the Department's written description of the merchandise under review is dispositive. Specifically, the material in question is a stainless steel flat-rolled product that is “rolled up like a poster” (
For purposes of this order, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (e.g., cold-rolled, polished, aluminized, coated, etc.) provided that it maintains the specific dimensions of sheet and strip following such processing.
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTS) at subheadings: 7219.13.00.31, 7219.13.00.51, 7219.13.00.71, 7219.13.00.81, 7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05, 7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05, 7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36, 7219.33.00.38, 7219.33.00.42, 7219.33.00.44, 7219.34.00.05, 7219.34.00.20, 7219.34.00.25, 7219.34.00.30, 7219.34.00.35, 7219.35.00.05, 7219.35.00.15, 7219.35.00.30, 7219.35.00.35, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.12.10.00, 7220.12.50.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.20.70.05, 7220.20.70.10, 7220.20.70.15, 7220.20.70.60, 7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. Although the HTS subheadings are provided for convenience and Customs purposes, the Department's written description of the merchandise under review is dispositive.
Excluded from the scope of this order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled; (2) sheet and strip that is cut to length; (3) plate (i.e., flat-rolled stainless steel products of a thickness of 4.75 mm or more); (4) flat wire (i.e., cold-rolled sections, with a prepared edge, rectangular in shape, of a width of not more than 9.5 mm); and (5) razor blade steel. Razor blade steel is a flat-rolled product of stainless steel, not further worked than cold-rolled (cold-reduced), in coils, of a width of not more than 23 mm and a thickness of
In response to comments by interested parties the Department has determined that certain specialty stainless steel products are also excluded from the scope of this order. These excluded products are described below.
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves for compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of between 0.002 and 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (
As provided in section 782(i) of the Tariff Act, we verified information provided by Mexinox using standard verification procedures such as the examination of relevant sales and financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public versions of the verification reports, which we will place on file in Room B-099 of the main Commerce building.
As noted in Mexinox's October 6, 2000 questionnaire response at 11 and 12, both Ken-Mac Metals Inc. (Ken-Mac) and Copper and Brass Sales, Inc. (CBS) are affiliated resellers that sold subject merchandise in the United States during the POR. Thus, we have included in our preliminary margin calculation resales of Mexinox subject merchandise made through Ken-Mac and CBS.
Mexinox Trading, S.A. de C.V. (Mexinox Trading) is a wholly-owned subsidiary of Mexinox which sells both subject and non-subject merchandise in the home market. In its October 6, 2000 questionnaire response, Mexinox reported that sales through Mexinox Trading represented less than five percent of Mexinox's total sales of subject merchandise in the home market. Because Mexinox Trading's sales of subject merchandise were less than five percent of home market subject merchandise sales, and because Mexinox reported that these sales passed the Department's arm's-length test, pursuant to section 351.403 (c) and (d) of the Department's regulations, we permitted Mexinox to report its sales to Mexinox Trading rather than require it to report downstream sales to the first unaffiliated customer.
In several letters to the Department, the petitioner alleged that the record contained insufficient information about the role of Mexinox Trading in Mexinox's home market transactions, and therefore urged the Department to collect information regarding downstream sales made by Mexinox Trading. On March 23, 2001, the Department requested that Mexinox report all sales of the foreign like product by Mexinox Trading to the first unaffiliated customer in a separate database, and asked Mexinox to provide more information about Mexinox Trading's operations. The Department did not make a determination at that time as to whether it would use the sales from Mexinox Trading to the first unaffiliated customer in calculating normal value. Instead, as the Department indicated in a separate memorandum, it might include those sales in calculating normal value if it made a determination that Mexinox and Mexinox Trading were functioning as a single entity.
Based on the additional information provided by Mexinox as well as our findings at verification, we find that Mexinox and Mexinox Trading are functioning as separate and distinct entities. Therefore, for this preliminary determination, we find no reason to use the downstream sales through Mexinox Trading in calculating normal value. Rather, pursuant to section 351.403 (c) and (d) of the Department's regulations, we have used the sales from Mexinox to Mexinox Trading, since they constitute less than five percent of sales of the foreign like product in the home market, and because those sales pass the arm's-length test.
To determine whether sales of S4 in coils from Mexico to the United States were made at less than fair value, we compared the export price (EP) or constructed export price (CEP) to the normal value (NV), as described in the “Export Price and Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Tariff Act, we compared individual EPs and CEPs to monthly weighted-average NVs.
For its home market and U.S. sales, Mexinox reported the date of invoice as the date of sale, in keeping with the Department's stated preference for using the invoice date as the date of sale (section 19 CFR 351.401(i)). Mexinox stated that the invoice date represented the date when the essential terms of sales,
In accordance with section 771(16) of the Tariff Act, we considered all products produced by the respondent covered by the description in the “Scope of the Review” section, above, and sold in the home market during the POR, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire.
In accordance with section 773(a)(1)(B)(i) of the Tariff Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP or CEP transaction. The NV LOT is that of the starting price of the comparison sales in the home market or, when NV is based on CV, that of the sales from which we derive selling, general, and administrative (SG&A) expenses and profit. For EP the LOT is also the level of the starting price sale, which is usually from the exporter to the importer. For CEP it is the level of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make a LOT adjustment under section 773(a)(7)(A) of the Tariff Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the differences in the levels between NV and CEP sales affect price comparability, we adjust NV under section 773(A)(7)(B) of the Tariff Act (the CEP offset provision).
We asked Mexinox to identify the specific differences and similarities in selling functions and support services between all phases of marketing in the home market and the United States. Mexinox identified two channels of distribution in the home market: (1) retailers and (2) end-users. For both channels, Mexinox performs similar selling functions such as pre-sale technical assistance and after-sales warranty services.
For the U.S. market Mexinox reported two LOTs: (1) EP sales consisting, in some cases, of sales made directly to unaffiliated U.S. customers, and in other cases of sales made from the stock of finished goods held at the Mexican factory in San Luis Potosi (SLP Stock sales) to unaffiliated U.S. customers; and (2) CEP sales made through Mexinox USA's Brownsville warehouse to service centers and end users. The Department examined the selling functions performed by Mexinox for both EP and CEP sales (after deductions made pursuant to section 772(d) of the Tariff Act). These selling functions included customer sales contacts (
When we compared EP sales to home market sales, we determined that both sales were made at the same LOT. For both EP and home market transactions, Mexinox sold directly to the customer, and provided similar levels of customer sales contacts, technical services, and inventory maintenance. For CEP sales (as adjusted), Mexinox performed fewer customer sales contacts, technical services, inventory maintenance, and warranty services. In addition, the differences in selling functions performed for home market and CEP transactions indicate that home market sales involved a more advanced stage of distribution than CEP sales. In the home market, Mexinox provides marketing further down the chain of distribution by providing certain downstream selling functions that are normally performed by service centers in the U.S. market (
Based on the above analysis, we determined that CEP and the starting price of home market sales represent different stages in the marketing process, and are thus at different LOTs. Therefore, when we compared CEP sales to home market sales, we examined whether a level-of-trade adjustment may be appropriate. In this case, Mexinox sold at one LOT in the home market; therefore, there is no basis upon which to determine whether there is a pattern of consistent price differences between levels of trade. Further, we do not have the information which would allow us to examine pricing patterns of Mexinox's sales of other similar products, and there are no other respondents or other record evidence on which such an analysis could be based.
Because the data available do not provide an appropriate basis for making a LOT adjustment and the level of trade in Mexico for Mexinox is at a more advanced stage than the level of trade of the CEP sales, a CEP offset is appropriate in accordance with section 773(a)(7)(B) of the Tariff Act, as claimed by Mexinox. We based the CEP offset amount on the amount of home market indirect selling expenses, and limited the deduction for home market indirect selling expenses to the amount of indirect selling expenses deducted from CEP in accordance with section 772(d)(1)(D) of the Tariff Act. We applied the CEP offset to NV, whether based on home market prices or CV.
In addition to the three U.S. channels of distribution discussed above (direct sales, SLP stock sales, and sales through Mexinox's affiliate, Mexinox USA), Mexinox reported U.S. sales through two other channels of distribution: CEP sales through Ken-Mac and CEP sales through CBS (
Mexinox reported some of its sales of subject merchandise sold to unaffiliated U.S. customers through its affiliated company, Mexinox USA, as EP transactions. For EP sales, the price terms were set by management in Mexico before importation into the United States, and the products were shipped directly to the customer through Mexinox USA without being introduced into U.S. inventory. Furthermore, we reviewed the information Mexinox submitted about the sales process for these sales and determined that the role Mexico USA played was ancillary at most. Mexinox reported as CEP transactions its sales of subject merchandise sold to Mexinox USA for its own account. Mexinox USA then resold the subject merchandise after importation to unaffiliated customers in the United States.
We calculated EP in accordance with section 772(a) of the Tariff Act for those sales where the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation and CEP methodology was not otherwise warranted, based on the facts of record. We based EP on packed prices to unaffiliated purchasers in the United States. We made deductions for discounts, rebates, and debit/credit notes. We also made adjustments for movement expenses in accordance with section 772(c)(2)(A) of the Tariff Act; these included, where appropriate, foreign inland freight, foreign brokerage and handling, foreign inland insurance, U.S. inland freight, U.S. brokerage and handling, U.S. customs duty, and U.S. warehousing. We also added duty drawback to the starting price, in accordance with section 772(c)(1)(B) of the Tariff Act.
We calculated CEP in accordance with section 772(b) of the Tariff Act for those sales to the first unaffiliated purchaser that took place after importation into the United States. We based CEP on packed prices to unaffiliated purchasers in the United States. We made adjustments for discounts, rebates, and debit/credit notes where applicable. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Tariff Act; these included, where appropriate, U.S. customs duties, U.S. inland freight, foreign brokerage and handling, and foreign inland insurance. In accordance with section 772(d)(1) of the Tariff Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (credit costs and warranty expenses), inventory carrying costs, and other indirect selling expenses. We also made an adjustment for profit in accordance with section 772(d)(3) of the Tariff Act, and added duty drawback to the starting price in accordance with section 772(c)(1)(B) of the Tariff Act. For those sales in which material was sent to an unaffiliated U.S.
In accordance with section 776(a)(1) of the Tariff Act, in these preliminary results we find it necessary to use partial facts available in those instances where the respondent did not provide us with certain information necessary to conduct our analysis. In a small number of cases, Mexinox's affiliated U.S. reseller, Ken-Mac, was unable to confirm the origin of the subject merchandise it sold during the POR. Therefore, Mexinox provided data about these particular resales through Ken-Mac in a separate database. At page KM-3 of its March 5, 2001 submission, Mexinox reported that it allocated these sales of “unattributable” merchandise “amongst the potential suppliers of the material based on relative percentage, by volume, of stainless steel and strip purchased during the POR by Ken-Mac from each supplier.” In addition to Mexinox, “potential suppliers” of this merchandise include, among others, Krupp Thyssen Nirosta GmbH (KTN), a producer which is subject to the companion antidumping duty administrative review covering S4 in coils from Germany. At our sales verification of Ken-Mac, we thoroughly reviewed this issue and determined that Ken-Mac had acted to the best of its ability in attemping to trace the origin of the subject merchandise that it sold during the POR.
Because of the unknown origin of certain of Ken-Mac's resales of subject merchandise, Mexinox has, in effect, not provided all the information necessary to complete our analysis. Therefore, we have preliminarily determined that, pursuant to section 776(a) of the Tariff Act, it is appropriate to use the facts otherwise available in calculating a margin on these sales. Section 776(a) of the Tariff Act provides that the Department will, subject to section 782(d), use the facts otherwise available in reaching a determination if “necessary information is not available on the record.” Therefore, for these preliminary results, we have calculated a margin on Ken-Mac's “unattributable” resales by applying the overall margin calculated on all other sales/resales of subject merchandise to the weighted-average price of these “unattributable” sales. We then weighted the result using a portion of the “unattributable” database representing the ratio of Ken-Mac's purchases of stainless steel from Mexinox to stainless steel purchases from all vendors.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
Sales to affiliated customers in the home market not made at arm's-length prices were excluded from our analysis because we considered them to be outside the ordinary course of trade.
Because we disregarded sales of certain products made at prices below the cost of production (COP) in our investigation of S4 in coils from Mexico (
We calculated the COP based on the sum of the respondent's cost of materials and fabrication for the foreign like product, plus amounts for SG&A and packing costs, in accordance with section 773(b)(3) of the Tariff Act.
We used the respondent's reported COP amounts to compute weighted-average COPs during the POR. We compared the weighted-average COP figures to home market sales prices of the foreign like product as required under section 773(b) of the Tariff Act, in order to determine whether these sales had been made at prices below COP. On a product-specific basis, we compared the COP to the home market prices, less any applicable movement charges and discounts.
In determining whether to disregard home market sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Tariff Act: (1) whether within an extended period of time, such sales were made in substantial quantities; and (2) whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade.
Where twenty percent or more of the respondent's sales of a given product were at prices below the COP, we found that sales of that model were made in “substantial quantities” within an extended period of time, in accordance with sections 773(b)(2) (B) and (C) of the Tariff Act. Based on our comparison of prices to the weighted-average per-unit cost of production for the POR, we determined whether the below-cost
Our cost test for Mexinox revealed that less than twenty percent of Mexinox's home market sales of certain products were at prices below Mexinox's COP. We therefore concluded that for such products, Mexinox had not made below-cost sales in substantial quantities. See section 773 (b)(2)(C)(i) of the Tariff Act. We therefore retained all such sales in our analysis. For other products, more than twenty percent of Mexinox's sales were at below-cost prices. In such cases we disregarded the below-cost sales, while retaining the above-cost sales for our analysis. See Preliminary Results Analysis Memorandum dated July 31, 2001, a public version of which is on file in room B-009 of the main Commerce building. We relied on the respondent's COP and CV amounts as reported.
In accordance with section 773(e) of the Tariff Act, we calculated CV based on the sum of the respondent's cost of materials, fabrication, SG&A expenses, profit, and U.S. packing costs. In accordance with section 773(e)(2)(A) of the Tariff Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in the foreign country. We deducted from CV the weighted-average home market direct selling expenses incurred on sales made in the ordinary course of trade.
We calculated NV based on prices to unaffiliated customers or prices to affiliated customers that we determined to be at arm's length. We made adjustments for debit/credit notes, interest revenue, discounts, rebates, insurance revenue, and freight revenue, where appropriate. We made deductions, where appropriate, for foreign inland freight, insurance, handling, and warehousing, pursuant to section 773(a)(6)(B) of the Tariff Act. In addition, we made adjustments for differences in cost attributable to differences in physical characteristics of the merchandise pursuant to section 773(a)(6)(C)(ii) of the Tariff Act and 19 CFR 351.411, as well as for differences in circumstances of sale (COS) in accordance with section 773(a)(6)(C)(iii) of the Tariff Act and 19 CFR 351.410. We made COS adjustments for imputed credit expenses and warranty expenses. We also made an adjustment, where appropriate, for the CEP offset in accordance with section 773(a)(7)(B) of the Tariff Act. Finally, we deducted home market packing costs and added U.S. packing costs in accordance with sections 773(a)(6)(A) and (B) of the Tariff Act.
In accordance with section 773(a)(4) of the Tariff Act, we based NV on CV if we were unable to find a home market match of such or similar merchandise. Where appropriate, we made adjustments to CV in accordance with section 773(a)(8) of the Tariff Act. For comparisons to EP, we made COS adjustments by deducting home market direct selling expenses and adding U.S. direct selling expenses. Where we compared CV to CEP, we deducted from CV the weighted-average home market direct selling expenses. We also made an adjustment, where appropriate, for the CEP offset in accordance with section 773(a)(7)(B) of the Tariff Act.
We made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank, in accordance with section 773A(a) of the Tariff Act.
As a result of our review we preliminarily determine the following weighted-average dumping margin exists for the period January 4, 1999 through June 30, 2000:
The Department will disclose calculations performed within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). An interested party may request a hearing within thirty days of publication.
The Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we will calculate importer-specific
Furthermore, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of S4 in coils from Mexico entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Tariff Act:
(1) The cash deposit rate for Mexinox will be the rate established in the final results of review;
(2) If the exporter is not a firm covered in this review or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and
(3) If neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will be the all others rate from the investigation (30.85 percent;
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results and partial recission of antidumping duty administrative review of stainless steel sheet and strip in coils from the Republic of Korea.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on stainless steel sheet and strip in coils from the Republic of Korea in response to a request from respondents Pohang Iron & Steel Co., Ltd. (“POSCO”), Samwon Precision Metals Co., Ltd. (“Samwon”), Daiyang Metal Co., Ltd. (“DMC”), and petitioners,
Our preliminary results of review indicate that Samwon and DMC have sold subject merchandise at less than normal value (“NV”) during the POR and that POSCO did not make any sales below normal value during the POR. In addition, we have preliminarily determined to rescind the review with respect to Sammi because it had no shipments of subject merchandise to the United States during the period of review. If these preliminary results are adopted in our final results of review, we will instruct the U.S. Customs Service to assess antidumping duties on suspended entries for Samwon and DMC.
We invite interested parties to comment on these preliminary results. Parties who submit arguments in this segment of the proceeding should also submit with each argument (1) a statement of the issue and (2) a brief summary of the argument.
August 8, 2001.
Laurel LaCivita (POSCO); Stephen Shin (Samwon); Amy Ryan (DMC), Brandon Farlander (Sammi); or Rick Johnson, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4243, (202) 482-0413, (202) 482-0961, (202) 482-0182 or (202) 482-3818, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended, are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (2001).
On July 20, 2000, the Department published in the
On September 20, 2000, and in subsequent submissions on September 28, 2000, October 13, 2000, and November 3, 2000, Sammi informed the Department that it had no shipments of subject merchandise to the United States during the POR. We have confirmed this with the Customs Service. See the Memorandum from Brandon Farlander to the File, “
On November 27, 2000, and December 4, 2000, petitioners requested the Department to initiate a sales below cost investigation on Samwon and DMC, respectively. On February 2, 2001 and March 7, 2001, the Department initiated the sales below cost investigation on Samwon and DMC, respectively.
Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit. On January 5, 2001, the Department extended the time limit for the preliminary results in this review to July 2, 2001.
The Department is conducting this administrative review in accordance with section 751 of the Act.
For purposes of this administrative review, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other
The merchandise subject to this review is classified in the
Excluded from the scope of this review are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
In response to comments by interested parties, the Department has determined that certain specialty stainless steel products are also excluded from the scope of this review. These excluded products are described below.
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this review. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this review. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this review. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (“ASTM”) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this review. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (“UNS”) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this review. These include stainless steel strip in coils used in the production of textile cutting tools (
Sammi reported, and the Department confirmed through independent U.S. Customs Service data, that it had no shipments of subject merchandise during the POR. Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with the Department's practice, we are preliminarily rescinding our review with respect to Sammi. (
Since Sammi did not report any shipments during the POR, we have no basis for determining a margin. Therefore, since Sammi did not participate in the original investigation, its cash deposit rate will remain at 12.12 percent, which is the all others rate established in the less than fair value (“LTFV”) investigation.
As provided in section 782(i) of the Act, we verified sales and cost information, provided by POSCO, from February 2, 2001, to February 14, 2001, and February 19, 2001, to February 23, 2001, respectively, using standard verification procedures, including an examination of relevant sales, cost, and financial records, and selection of original documentation containing relevant information. In addition, we conducted a cost verification of Samwon from June 11, 2001, to June 15, 2001. Our verification results are outlined in the public version of the verification report and are on file in the Central Records Unit (“CRU”) located in room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW., Washington, DC.
To determine whether POSCO's sales of subject merchandise from Korea to the United States were made at less than fair value, we compared the constructed export price (“CEP”) to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual CEP transactions. We made corrections to reported U.S. and home market sales data based on the Department's findings at verification, as appropriate.
For POSCO, Samwon and DMC, we compared the aggregate volume of home market sales of the foreign like product and U.S. sales of the subject merchandise to determine whether the volume of the foreign like product sold in Korea was sufficient, pursuant to section 773(a)(1)(C) of the Act, to form a basis for NV. Because the volume of home market sales of the foreign like product was greater than five percent of the U.S. sales of subject merchandise for all three companies, in accordance with section 773(a)(1)(B)(i) of the Act, we have based the determination of NV upon the home market sales of the foreign like product. Thus, we based NV on the prices at which the foreign like product was first sold for consumption in Korea, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same level of trade (“LOT”) as the CEP or NV sales, as appropriate.
In accordance with section 771(16) of the Act, we considered all products covered by the “Scope of the Review” section above, which were produced and sold by POSCO, Samwon and DMC in the home market during the POR, to be foreign like products for purposes of determining appropriate comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire.
Section 776(a)(2) of the Act provides that if any interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested; (C) significantly impedes an antidumping investigation; or (D) provides such information but the information cannot be verified, the Department shall use facts otherwise available in making its determination.
On November 27, 2000, petitioners submitted an allegation of sales below cost by Samwon. On January 4, 2001, the Department found reasonable grounds to believe or suspect that Samwon made home market sales at prices below COP, as set forth in 773(b) of the Act and initiated a cost-of-production investigation. Samwon's reported COP is based in part on an allocation methodology which does not reconcile to the company's own production records. Samwon has stated in its responses that the company's allocation methodology is based on the professional judgement of company engineers. At verification, the Department discovered that the allocation methodology does not reflect the company's own production
Although the reported CONNUM-specific costs are unusable, we found that the overall costs reported by Samwon were consistent with the data kept by the company in the normal course of business. Also, in the aggregate, we did not find any reason to suggest that the total reported costs did not accurately reflect the costs associated with all subject merchandise in its entirety. Therefore, in accordance with section 782(e)(3) of the Act, we have not “declined to use information submitted on the record by an interested party and is necessary to the determination but does not meet all of the applicable requirements established by the administering authority.” Consequently, as partial facts available, we have calculated one weighted-average COP and compared all home-market prices to the single COP for the purposes of determining sales below cost.
Notwithstanding the Department's decision to use Samwon's reported COP in this manner, this decision does not represent an endorsement by the Department of Samwon's methodology for reporting COP. As noted in the verification report and the explanation above, there are flaws in Samwon's methodology which render ineffective the Department's established methodology of calculating dumping margins. In particular, the Department is advising Samwon that the reporting methodology used in this review will be unacceptable for future segments of this proceeding. In future segments, Samwon risks the application of adverse facts available in the event that it fails to report COP data that is allocated sufficiently to unique CONNUMs in a manner that is verifiable.
Because the data used by the Department as the basis of facts available is the respondent's own data, it is not secondary information within the meaning of section 776(c) of the Act. Consequently, the statute does not require the Department to corroborate this information.
In accordance with section 772(a) of the Act, export price is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c). In accordance with section 772(b) of the Act, constructed export price is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections (c) and (d).
For purposes of this review, POSCO has classified its sales as export price (“EP”) sales. However, after an analysis of POSCO's information on the record, we preliminarily determine that all of POSCO's sales to the United States should be classified as constructed export price sales.
POSCO identified the following two channels of distribution for U.S. sales: (1) POSCO sales through Pohang Steel America Corp. (“POSAM”), POSCO's wholly owned U.S. subsidiary, to an unaffiliated customer in the United States, and (2) POSCO sales through POSCO Steel Sales & Services Co., Ltd. (“POSTEEL”), POSCO's affiliated trading company in Korea, to POSAM, and finally, to an unaffiliated customer in the United States. We based our calculation on CEP, in accordance with subsections 772(b), (c), and (d) of the Act, for those sales to the first unaffiliated purchaser that took place prior to importation into the United States.
As noted above, POSCO has indicated that all of its U.S. sales made through POSAM should be treated as EP sales. POSAM takes title to the subject merchandise and, when it sold the subject merchandise to the unaffiliated U.S. customer, POSAM issued an invoice to the U.S. customer.
We calculated CEP based on packed prices to unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight from the plant to the port of export, foreign brokerage and Korean customs clearance fees, international freight, marine insurance, U.S. customs duty, and U.S. brokerage and wharfage expenses (classified as other U.S. transportation expenses). Also, in accordance with section 772(c)(2)(A) of the Act, we deducted packing expenses because packing expenses are included in the constructed export price. In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (imputed credit expenses, postage and term credit expenses, and letter of credit and remittance expenses) and indirect selling expenses, including inventory carrying costs, For POSAM's indirect selling expenses, we adjusted POSCO's claimed imputed credit offset to include only the sum of imputed credit expenses reported for U.S. sales of subject merchandise. For CEP sales, we also made an adjustment for profit in accordance with section 772(d)(3) of the Act. Additionally, we added to the U.S. price an amount for duty drawback pursuant to section 772(c)(1)(B) of the Act.
DMC reported that it made all sales to the United States through its wholly-owned subsidiary in the United States, Ocean Metal Corporation (“OMC”). Consequently, it classified all of its U.S. sales as CEP sales. We calculated CEP based on packed prices to unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight from the plant to the port of export, foreign inland freight from the plant to the unaffiliated customer, foreign brokerage and Korean customs clearance fees, international freight, marine insurance, U.S. customs duty, and U.S. brokerage and wharfage expenses. Also, in accordance with section 772(c)(2)(A) of the Act, we deducted packing expenses because packing expenses are included in the constructed export price. In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses and indirect selling expenses, including inventory carrying costs. For CEP sales, we also made an adjustment for profit in accordance with section 772(d)(3) of the Act. Additionally, we added to the U.S. price an amount for duty drawback pursuant to section 772(c)(1)(B) of the Act.
For purposes of this review, Samwon has classified its sales as export price (“EP”) sales. Based on the information on the record, we are using export price as defined in section 772(a) of the Act because the merchandise was sold, prior to importation, by Samwon to an unaffiliated purchaser for exportation to the United States, and constructed export price (CEP) methodology was not otherwise warranted based on the facts on the record. Samwon identified two channels of distribution for U.S. sales (sales to the U.S. through unaffiliated resellers and sales directly to unaffiliated U.S. customers) for its U.S. sales during the POR. We based EP on packed prices for export to the United States. We made deductions for inland freight (from Samwon's plant to the port of export), international freight, marine insurance, container handling fees, certification handling fees, and foreign brokerage and handling in accordance with section 772(c) of the Act. Additionally, we added to the U.S. price an amount for duty drawback pursuant to section 772(c)(1)(B) of the Act.
After testing home market viability and whether home market sales were at below-cost prices, we calculated NV as noted in the “Price-to-Price Comparisons” and “Price-to-Constructed Value (“CV”) Comparison” sections of this notice.
Because the Department determined that POSCO made sales in the home market at prices below the cost of producing the subject merchandise in the investigation and therefore excluded such sales from normal value (
Based on our examination of petitioners' allegation of sales below cost and our subsequent initiation of a sales below cost investigation, the Department required Samwon and DMC to submit Section D cost data to determine whether they made home market sales during the POR at prices below their respective COPs within the meaning of section 773(b) of the Act.
We conducted the COP analysis described below.
In accordance with section 773(b)(3) of the Act, we calculated COP for POSCO, Samwon and DMC, based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), interest expenses, and packing costs. We used home market sales and COP information provided by each company in its questionnaire responses, with the following exceptions, detailed in the proprietary version of the July 31, 2001 memorandum to Neal Halper, Director, Office of Accounting,
1. POSCO purchased a major input from an affiliate and used the input's transfer prices in its calculation of COP and CV. For the preliminary results, we have increased the transfer price of these purchases to a market price in accordance with section 773(f)(2) and (3) of the Act.
2. In 1999, POSCO wrote off all of its deferred foreign exchange losses through retained earnings. POSCO originally capitalized these losses with the intention of recognizing the loss over time on its income statement. Subsequently, POSCO expensed these deferred losses directly to equity in 1999. Therefore, we adjusted POSCO's reported COP to include the entire
3. We adjusted POSCO's reported foreign exchange ratio to include gains and losses associated with cash and “other” accounts in the numerator.
In accordance with section 773(b)(3) of the Act, as facts available, we calculated COP on a factory-wide basis on the sum of Samwon's cost of material and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), including interest expenses, and packing costs. We used home market sales and COP information provided by Samwon in its questionnaire responses, with the following exceptions, detailed in the proprietary version of the memorandum from Stephen Shin to the file,
1. Samwon misclassified foreign exchange gain/loss, donation, foreign exchange valuation gain/loss, miscellaneous loss, service income, and gain on disposal of fixed assets as interest expenses which the Department normally considers G&A expenses. For the preliminary results, we have reclassified these expenses and recalculated Samwon's G&A and interest expense ratios.
2. We adjusted Samwon's reported G&A expense to include only foreign exchange gain/loss associated with the cost of materials used in the production of subject merchandise and to exclude all other types of foreign exchange gain/loss.
3. Since Samwon was unable to provide support for its claim of short-term interest income, we have adjusted Samwon's interest expense ratio to exclude interest income.
We made no changes to the submitted data for this administrative review.
We compared the weighted-average COP from January 4, 1999, through June 30, 2000 (“cost reporting period”) for POSCO, Samwon and DMC, adjusted where appropriate (see above), to its home market sales of the foreign like product as required under section 773(b) of the Act. In determining whether to disregard home market sales made at prices less than the COP, we examined whether: (1) within an extended period of time, such sales were made in substantial quantities; and (2) such sales were made at prices which permitted the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given product within an extended period of time are at prices less than the COP, we do not disregard any below-cost sales of that product because the below-cost sales are not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the extended period are at prices less than the COP, we determine such sales to have been made in “substantial quantities.”
In accordance with section 773(e)(1) of the Act, we calculated CV for POSCO, Samwon and DMC based on the sum of each company's cost of materials, fabrication, SG&A, including interest expenses, and profit. We calculated the COPs included in the calculation of CV as noted above in the “Calculation of COP” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based SG&A and profit on the amounts incurred and realized by each company in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in the foreign country.
We based NV on the home market prices to unaffiliated purchasers and those affiliated customer sales which passed the arm's length test. We made adjustments, where applicable, for movement expenses (i.e., inland freight from plant to distribution warehouse, warehousing expense, and inland freight from either plant/distribution warehouse to customer) in accordance with section 773(a)(6)(B) of the Act. We made circumstance-of-sale adjustments for credit, warranty expense and interest revenue, where appropriate. In accordance with section 773(a)(6), we deducted home market packing costs and added U.S. packing costs. Also, on certain sales, we added to NV an amount for duty drawback. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act.
We based NV on the home market prices to unaffiliated purchasers and those affiliated customers which passed the arm's length test. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. We made circumstance-of-sale adjustments or deductions for credit, warranty expense, and interest revenue, where appropriate. In accordance with section 773(a)(6), we deducted home market packing costs and added U.S. packing costs.
We based NV on the home market prices to unaffiliated purchasers and those affiliated customer sales which passed the arm's-length test. DMC reported that it incurred no freight expenses in the home market. Therefore, we made no adjustment for movement expenses in accordance with section 773(a)(6)(B) of the Act. We made a circumstance-of-sale adjustment for credit. In accordance with section 773(a)(6), we deducted home market packing costs and added U.S. packing costs. Also, on certain sales, we added to NV an amount for duty drawback. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act.
In accordance with section 773(a)(4) of the Act, we base NV on CV if we are unable to find contemporaneous home market sales of the foreign like product. Where applicable, we make adjustments to CV in accordance with section 773(a)(8) of the Act. We did not base NV upon CV for POSCO or Samwon for these preliminary results of review. However, for DMC, we based NV on CV when we were unable to find contemporaneous home market sales of the foreign like product.
In accordance with section 773(a)(1)(B) of the Act, to the extent
To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the differences in the levels between NV and CEP sales affect price comparability, we adjust NV under section 773(A)(7)(B) of the Act (the CEP offset provision).
In the present review, POSCO requested a LOT adjustment or a CEP offset if the Department determines that POSCO's sales through POSAM are CEP sales. (As noted above, we have preliminarily determined that all of POSCO's U.S. sales through POSAM are CEP sales.) To determine whether an adjustment was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Korean markets, including the selling functions, classes of customer, and selling expenses.
In both the U.S and home markets, POSCO reported one level of trade.
For sales in home market channel one, POSCO performed all sales-related activities, including arranging for freight and delivery; providing computerized accounting and sales systems; market research; warranty; sales negotiation; after-sales service; quality control; and extending credit. The same selling functions were performed in home market channel two; however, it was POSTEEL, not POSCO, which performed all the major selling functions. Because these selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the home market.
For U.S. sales through either channel one or two, POSCO or POSTEEL performed many of the same major selling functions, such as freight and delivery; market research; warranty; sales negotiation; after-sales service; and quality control. Because these selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the U.S. market.
Based on our analysis of the selling functions performed for sales in the home market and CEP sales in the U.S. market, we preliminarily determine that there is not a significant difference in the selling functions performed in the home market and U.S. market and that these sales are made at the same LOT. Therefore, we preliminarily determine that a LOT adjustment or CEP offset is not warranted in this case.
In the present review, Samwon stated that a LOT adjustment was not applicable. (As noted above, we have preliminarily determined that all of Samwon's U.S. sales are EP sales.) To determine whether an adjustment is necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and United States markets, including the selling functions, classes of customer, and selling expenses.
In both the home and U.S. market, Samwon reported two levels of trade.
For sales in the home market to either end-users or resellers/traders, Samwon arranged inland freight. Samwon reported that the company provided technical support through on-site visitation upon customer request regardless of channel of distribution. Samwon reported no other sales or warranty services. Because these selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the home market.
For U.S. sales, Samwon arranged inland freight, ocean freight, and insurance upon customer request. Samwon reported no other sales services or a warranty service. Because the selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the U.S. market.
Based on our analysis of the selling functions performed for sales in the home market and EP sales in the U.S. market, we preliminarily determine that, despite the additional selling function (
In the present review, DMC made no claims that a LOT adjustment was appropriate. (As noted above, we have preliminarily determined that all of DMC's U.S. sales CEP are sales.) To determine whether an adjustment is necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and home markets, including the selling functions, classes of customer, and selling expenses.
For sales in the home market to either end-users or distributors, DMC's selling activities in the home market consisted of receiving and processing customers' orders, arranging freight and delivery for small customers, delivery services for customers purchasing large quantities, inventory maintenance for small distributors, and warranty services. Because DMC's selling activities did not vary by channels of distribution, we preliminarily determine that there is one LOT in the home market.
In the U.S. market, DMC sold all of its merchandise through its's U.S. subsidiary, OMC. Consequently, DMC claimed that OMC performed the requisite selling activities and that it did
We attempted to examine whether the difference in LOTs affects price comparability. However, we were unable to quantify the LOT adjustment in accordance with section 773(a)(7)(A) of the Act, as we found that there is only one LOT in the home market. Because of this, we were unable to calculate a LOT adjustment. Therefore, because the NV is established at a more advanced level of trade than the LOT of the CEP transactions, we adjusted NV under section 773(a)(7)(B) of the Act (the CEP offset provision).
For purposes of the preliminary results, we made currency conversions in accordance with section 773A of the Act, based on the official exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank of New York. Section 773A(a) of the Act directs the Department to use the daily exchange rate in effect on the date of sale in order to convert foreign currencies into U.S. dollars, unless the daily rate involves a “fluctuation.” In accordance with the Department's practice, we have determined as a general matter that a fluctuation exists when the daily exchange rate differs from a benchmark by 2.25 percent.
As a result of our review, we preliminarily determine that the following weighted-average dumping margin exists for the period January 4, 1999 through June 30, 2000:
The Department will disclose calculations performed within five days of the date of publication of this notice to the parties to this proceeding in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results.
Upon issuance of the final results of this review, the Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific assessment rates. We divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct the U.S. Customs Service to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's entries under the relevant order during the review period. Upon completion of this review, the Department will issue appraisement instructions directly to the Customs Service.
The following cash deposit requirements will be effective upon publication of these final results for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed company will be the rate listed above (except that if the rate for a particular product is
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, that continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the 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.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, U.S. Department of Commerce.
Notice of preliminary results in the antidumping duty administrative review of stainless steel sheet and strip in coils from France.
In response to a request from Ugine S.A. (“Ugine”), the U.S. Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on stainless steel sheet and strip (“SSSS”) from France for the period January 4, 1999 through June 30, 2000. The Department preliminarily determines that a dumping margin exists for Ugine's sales of SSSS in the United States. If these preliminary results are adopted in our final results of this administrative review, we will instruct the U.S. Customs Service to assess antidumping duties on entries of Ugine's merchandise during the period of review. The preliminary results are listed in the section titled “Preliminary Results of Review,” infra.
August 8, 2001.
Robert Bolling or James Doyle, Enforcement Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, N.W., Washington, DC 20230; telephone: 202-482-3434, or 202-482-0159, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (2001).
On July 27, 1999, the Department published in the
On October 16, 2000, Ugine reported that it made sales of subject merchandise to the United States during the period of review in its response to Section A of the Department's questionnaire. On November 7, 2000, Ugine submitted its responses to Sections B, C, D, and E of the Department's questionnaire. On December 21, 2000, the Department issued a supplemental questionnaire for Sections A and B of Ugine's questionnaire response. On January 5, 2001, the Department issued a supplemental questionnaire for Section C of Ugine's questionnaire response. On January 25, 2001, the Department published an extension of time limit for the preliminary results of the antidumping duty administrative review.
For purposes of this administrative review, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (e.g., cold-rolled, polished, aluminized, coated, etc.) provided that it maintains the specific dimensions of sheet and strip following such processing.
The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (“HTS”) at subheadings: 7219.13.0031, 7219.13.0051, 7219.13.0071, 7219.1300.81,
Excluded from the review of this order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (i.e., flat-rolled stainless steel products of a thickness of 4.75 mm or more), (4) flat wire (i.e., cold-rolled sections, with a prepared edge, rectangular in shape, of a width of not more than 9.5 mm), and (5) razor blade steel. Razor blade steel is a flat-rolled product of stainless steel, not further worked than cold-rolled (cold-reduced), in coils, of a width of not more than 23 mm and a thickness of 0.266 mm or less, containing, by weight, 12.5 to 14.5 percent chromium, and certified at the time of entry to be used in the manufacture of razor blades.
Flapper valve steel is also excluded from the scope of the order. This product is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (e.g., carpet knives).
As provided in section 782(i) of the Act, we verified the information submitted by Ugine for use in our preliminary results. We used standard verification procedures, including examination of relevant accounting and production records and original source documents provided by Ugine. We verified sales and cost information provided by Ugine from May 2, 2001 to May 11, 2001. Additionally, we verified Ugine's U.S. subsidiary, Uginox Steel Corporation (“Uginox”), from May 30, 2001 through June 1, 2001. Further, we verified Ugine and Uginox's U.S. subsidiary, Hague Steel Corp. (“Hague”), from June 19, 2001 through June 22, 2001. Our verification results are outlined in the public version of the verification report and are on file in the Central Records Unit (“CRU”) located in room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW., Washington, DC.
In accordance with section 771(16) of the Act, we considered all SSSS products produced by Ugine, covered by the description in the “Scope of Review” section of this notice, supra, and sold in the home market during the POR to be foreign like products for the purpose of determining appropriate product comparisons to SSSS products sold in the United States. We have relied on nine characteristics to match U.S. sales of subject merchandise to comparison sales of the foreign like product (listed in order of preference): grade, hot/cold rolled, gauge, finish, metallic coating, non-metallic coating, width, tempered/tensile strength, and edge trim. The Department's questionnaire authorized respondents to make distinctions (sub-codes) within some of these characteristics, but not within others. For certain product characteristics (
We calculated CEP in accordance with section 772(b) of the Act because the first sales to an unaffiliated purchaser took place after the subject merchandise was imported into the United States.
We based CEP on the packed ex-warehouse or delivered prices to unaffiliated purchasers in the United States. Where appropriate, we made deductions from the starting price for discounts, credit, warranty expenses, and commissions. We also made deductions for the following movement expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act: inland freight from plant to distribution warehouse, international freight, marine insurance, U.S. inland freight from port to warehouse, U.S. inland freight from warehouse/plant to the unaffiliated customer, U.S. warehouse expenses, other U.S. transportation expense, and U.S. Customs duties. In accordance with section 772(d)(1) of the Act, we deducted selling expenses associated with economic activities occurring in the United States, including direct selling expenses, inventory carrying costs, and other indirect selling expenses. We recalculated credit expenses for those Uginox sales with missing payment dates because payment has not yet been made. For sales with missing payment dates, the Department set the date of payment as the projected preliminary results date. For a further explanation, see
For products that were further manufactured after importation, we adjusted for all costs of further manufacturing in the United States in accordance with section 772(d)(2) of the Act. We deducted the profit allocated to expenses deducted under section 772(d)(1) and (d)(2) in accordance with sections 772(d)(3) and 772(f) of the Act. In accordance with section 772(f) of the Act, we computed profit based on total revenues realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit to expenses incurred with respect to U.S. economic activity (including further manufacturing costs), based on the ratio of total U.S. expenses to total expenses for both the U.S. and home market.
In our U.S. CEP calculation, we included all downstream sales from Edgcomb Metals Company (“Edgcomb”), International Specialty Tube Corporation (“ISTC”), Hague, and J&L Specialty Steel, Inc., reported in respondent's November 7, 2000 submission.
Additionally, on March 29, 2001, the Department requested that Ugine report all U.S. sales of subject merchandise of its home market affiliated producer, IUP, during the POR. IUP sold subject merchandise to the United States through Ugine's affiliated super-distributor Uginox and through Rahns Specialty Metal, Inc. (“Rahns”), an unaffiliated distributor. For the preliminary results, we have included all of IUP's U.S. sales of subject merchandise that went through both Uginox and Rahns during the POR.
After testing home market viability, as discussed below, we calculated normal value (“NV”) as noted in the “Price-to-CV Comparisons” and “Price-to-Price Comparisons” sections of this notice.
In accordance with section 773(a)(1)(C) of the Act, to determine whether there was sufficient volume of sales in the home market to serve as a viable basis for calculating NV (i.e., the aggregate volume of home market sales of the foreign like product is greater than or equal to five percent of the aggregate volume of U.S. sales), we
For those product comparisons for which there were sales at prices above the cost of production (“COP”), we based NV on prices to home market customers. We calculated NV based on prices to unaffiliated home market customers. Where appropriate, we deducted discounts, rebates, credit expenses, warranty expenses, inland freight, inland insurance, and warehousing expense. We also adjusted the starting price for billing adjustments and freight revenue. We also made adjustments, where applicable, for home market indirect selling expenses to offset U.S. commissions in CEP comparisons.
We recalculated credit expenses for those sales with missing payment dates. For sales with missing payment dates, the Department set the date of payment to the projected preliminary results date.
We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. Additionally, in accordance with section 773(a)(6), we deducted home market packing costs and added U.S. packing costs. In accordance with the Department's practice, where all contemporaneous matches to a U.S. sale observation resulted in difference-in-merchandise adjustments exceeding 20 percent of the cost of manufacturing (“COM”) of the U.S. product, we based NV on CV.
For reasons discussed below in the “Level of Trade” section, we allowed a CEP offset for comparisons made at different levels of trade. To calculate the CEP offset, we deducted the home market indirect selling expenses from normal value for home market sales that were compared to U.S. CEP sales. We limited the home market indirect selling expense deduction by the amount of the indirect selling expenses deducted in calculating the CEP as required under section 772(d)(1)(D) of the Act.
Ugine reported that it made sales in the home market to affiliated end users. Sales to affiliated customers in the home market not made at arm's length were excluded from our analysis. To test whether these sales were made at arm's length, we compared the starting prices of sales to affiliated and unaffiliated customers net of all movement charges, direct selling expenses, discounts and packing. Where prices to the affiliated party were on average 99.5 percent or more of the price to the unrelated party, we determined that sales made to the related party were at arm's length. Where no affiliated customer ratio could be calculated because identical merchandise was not sold to unaffiliated customers, we were unable to determine that these sales were made at arm's length and, therefore, excluded them from our analysis.
In accordance with section 773(a)(4) of the Act, we based NV on CV if we were unable to find a home market match of identical or similar merchandise. We calculated CV based on the costs of materials and fabrication employed in producing the subject merchandise, selling, general and administrative expenses (“SG&A”), and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expense and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in France. For selling expenses, we used the weighted-average home market selling expenses. Where appropriate, we made adjustments to CV in accordance with section 773(a)(8) of the Act. We deducted from CV the weighted-average home market direct selling expenses.
Because we disregarded sales below the cost of production from the Less-Than-Fair-Value (“LTFV”) investigation, the most-recently completed segment of these proceedings, we have reasonable grounds to believe or suspect that sales by Ugine in its home market were made at prices below the COP, pursuant to section 773(b)(1) of the Act.
In accordance with section 773(b)(3) of the Act, we calculated a weighted-average COP based on the sum of Ugine's cost of materials and fabrication for the foreign like product, plus amounts for general and administrative expenses (“G&A”), including interest expenses, and packing costs. We relied on the COP data submitted by Ugine in its original and supplemental cost questionnaire responses. For these preliminary results, we did not make any adjustments to Ugine's submitted costs.
We compared the weighted-average COP for Ugine to home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard home market sales made at prices below the COP, we examined whether such sales were made (1) within an extended period of time in substantial quantities, and (2) at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade, in accordance with section 773(b)(1)(A) and (B) of the Act. On a product-specific basis, we compared the COP to home market prices, less any applicable billing adjustments, movement charges, discounts, and direct and indirect selling expenses.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of Ugine's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of Ugine's sales of a given product during the POR were at prices less than the COP, we determined that such sales have been made in
In accordance with section 773(e)(1) of the Act, we calculated CV based on the sum of Ugine's cost of materials, fabrication, G&A (including interest expenses), U.S. packing costs, direct and indirect selling expenses, and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A and profit on the amounts incurred and realized by Ugine in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in the foreign country. For selling expenses, we used the actual weighted-average home market direct and indirect selling expenses.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP or CEP transaction. The NV LOT is that of the starting-price sales in the comparison market, or when NV is based on constructed value (CV), that of the sales from which we derive selling, general and administrative (SG&A) expenses and profit. For EP, the U.S. LOT is also the level of the starting-price sale, which is usually from exporter to importer. For CEP, it is the level of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP or CEP, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP offset provision).
In reviewing the selling functions reported by the respondents, we examined all types of selling functions and activities reported in respondent's questionnaire response on LOT and during verification. In analyzing whether separate LOTs existed in this review, we found that no single selling function was sufficient to warrant a separate LOT in the home market.
We determined that Ugine sold merchandise at two LOTs in the home market during the POR. One level of trade involved sales made through two channels: Sales by Ugine directly to unaffiliated service centers or end users (Channel 1) and sales made by Ugine with the assistance of Ugine France Service in its capacity as sales agent, to unaffiliated end users (Channel 2). Additionally, the second level of trade involved sales made through two channels: Sales from Ugine to its affiliate, IUP, with subsequent resales by IUP to unaffiliated end users and service centers (Channel 3) and sales from Ugine to its affiliate, IUP, and then, with the assistance of Ugine France Service in its capacity as sales agent, to unaffiliated end users (Channel 4). From our analysis of the marketing process for these sales, we have determined that there are significant distinctions in selling activities between Ugine's sales to its affiliate in Channels 3 and 4 and its sales through channel 1 or 2.
In order to determine the LOTs of the U.S. market, we reviewed the selling activities associated with each channel of distribution. Ugine only reported CEP sales in the U.S. market. Because all of Ugine's CEP sales in the U.S. market were made through either Uginox or Rahns, where Ugine has characterized both as super-distributors that perform the same selling functions, there was only one level of trade. For these CEP sales, we determined that fewer and different selling functions were performed for CEP sales to Uginox and Rahns than for sales at either of the home market LOTs. In addition, we found that sales at both home market LOTs were at a more advanced stage of distribution (to end-users) compared to the CEP sales.
We examined whether a LOT adjustment was appropriate. The Department makes this adjustment when it is demonstrated that a difference in LOTs affects price comparability. However, where the available data do not provide an appropriate basis upon which to determine a LOT adjustment, and where the NV is established at a LOT that is at a more advanced stage of distribution than the LOT of the CEP transactions, we adjust NV under section 773(a)(7)(B) of the Act (the CEP offset provision). We were unable to quantify the LOT adjustment in accordance with section 773(a)(7)(A) of the Act, as we found that neither of the LOTs in the home market matched the LOT of the CEP transactions. Because of this, we did not calculate a LOT adjustment. Instead, a CEP offset was applied to the NV-CEP comparisons.
For purposes of the preliminary results, we made currency conversions in accordance with section 773A of the Act, based on the official exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank of New York. Section 773A(a) of the Act directs the Department to use the daily exchange rate in effect on the date of sale in order to convert foreign currencies into U.S. dollars, unless the daily rate involves a “fluctuation.” In accordance with the Department's practice, we have determined as a general matter that a fluctuation exists when the daily exchange rate differs from a benchmark by 2.25 percent.
As a result of this review, we preliminarily determine that the
Pursuant to 19 CFR 351.224, the Department will disclose to any party to the proceeding, within ten days of publication of this notice, the calculations performed. Any interested party may request a hearing within 30 days of publication. Any hearing, if requested, will be held 37 days after the date of publication, or the first working day thereafter. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication. Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than 35 days after the date of publication. The Department will publish the final results of this administrative review, which will include the results of its analysis of issues raised in any such written comments or at a hearing, within 120 days after the publication of this notice.
Upon issuance of the final results of review, the Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to Customs. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the results and for future deposits of estimated duties. For duty assessment purposes, we calculated an importer-specific assessment rate by dividing the total dumping margins calculated for the U.S. sales to the importer by the total entered value of these sales. This rate will be used for the assessment of antidumping duties on all entries of the subject merchandise by that importer during the POR.
Furthermore, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided in section 751(a)(1) of the Act: (1) The cash deposit rate for Ugine, the only reviewed company, will be that established in the final results of this review; (2) For previously reviewed or investigated companies not covered in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) If the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established in the most recent period for the manufacturer of the merchandise; and (4) If neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will continue to be the “all other” rate established in the LTFV investigation, which was 9.38 percent.
This notice serves as a preliminary reminder to importers of their responsibility under regulation 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results in the antidumping duty administrative review of stainless steel sheet and strip in coils from Japan.
In response to a request from a respondent in the original investigation, Kawasaki Steel Corporation (“Kawasaki”), the Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on stainless steel sheet and strip in coils (“SSSS”) from Japan. This review covers imports of subject merchandise from Kawasaki. The period of review is January 4, 1999 through June 30, 2000.
The Department preliminarily determines that SSSS from Japan has been sold in the United States at less than normal value during the period of review. If these preliminary results are adopted in our final results of this administrative review, we will instruct the U.S. Customs Service to assess antidumping duties equal to the difference between export price and normal value.
Interested parties are invited to comment on these preliminary results. See “Preliminary Results of the Review” section, infra.
August 8, 2001.
Juanita H. Chen or James C. Doyle, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, N.W., Washington, DC 20230; telephone: 202-482-0409 or 202-482-0159, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR part 351 (2000). See Antidumping Duties; Countervailing Duties; Final rule, 62 FR 27295 (May 19, 1997).
On July 20, 2000, the Department published in the
On September 20, 2001, Kawasaki submitted a request that the Department permit it to limit its reporting: (1) of home market sales to merchandise identical to or similar to the subject merchandise sold in the U.S. market through the first three product-matching characteristics (grade, hot/cold rolled, and gauge), or to only prime merchandise, and (2) of costs to Kawasaki's fiscal year 1999 (April 1999 through March 2000), or to Kawasaki's fiscal year 1999 plus the second semester of its fiscal year 1998 (October 1998 through March 2000). On September 28, 2001, petitioners filed an objection to Kawasaki's request, arguing that a complete database is necessary for the Department to properly compare home market and U.S. sales, that Kawasaki should not be allowed to select the home market sales it submits, and that the Department's established practice is to require a respondent to submit costs that coincide with the POR. On October 4, 2000, Kawasaki submitted a response to petitioners' objection, asserting that it is not selecting the home market sales, but rather seeking to limit reporting sales under the Department's own matching criteria at the most basic level, and that it is not able to report its costs based on the POR. On October 13, 2000, the Department granted Kawasaki's request to limit its reporting of home market sales to all identical and similar home market sales of subject merchandise according to the first three matching criteria, and denied Kawasaki's request to report costs for a period different from the POR. On October 19, 2000, petitioners filed a submission again arguing that Kawasaki should be required to submit its complete home market sales database. On October 26, 2000 Kawasaki responded to petitioners' submission, arguing that the Department properly allowed limited home market sales reporting.
On September 29, 2000, the Department received Kawasaki's Section A response to the questionnaire. On November 3, 2000, Kawasaki filed its Section B and C responses to the questionnaire. On November 13, 2000, Kawasaki filed its Section D response. On November 20, 2001, the Department issued a Section D supplemental questionnaire. On December 11, 2000, Kawasaki filed its Section D supplemental response. On December 18, 2000, Kawasaki filed revised home market and cost files. On February 9, 2001, the Department issued a Section A supplemental questionnaire. On February 23, 2001, Kawasaki filed its Section A supplemental response. On March 2, 2001, the Department issued a Sections B-C supplemental questionnaire. On March 30, 2001, Kawasaki filed its Sections B-supplemental response. On June 15, 2001, the Department issued a Sections A-D second supplemental questionnaire. On July 2 and 6, 2001, Kawasaki filed its Sections A-D second supplemental response.
Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit. On May 29, 2001, the Department extended the time limit for the preliminary results in this review to July 31, 2001. See Notice of Extension of Time Limit for the Preliminary Results of the Antidumping Duty Administrative Review: Stainless Steel Sheet and Strip in Coils From Japan, 66 FR 29086 (May 29, 2001).
The Department is conducting this administrative review in accordance with section 751 of the Act.
The POR is January 4, 1999 through June 30, 2000.
Upon completion of four changed circumstances reviews pursuant to section 751(b) of the Act and section 351.216 of the Department's regulations, we have excluded certain products from the scope of the order. These four excluded products are identified in the scope, infra.
For purposes of this review, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (“HTS”) at subheadings: 7219130031, 7219130051, 7219130071, 7219130081,
Excluded from the scope of this order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (i.e., flat-rolled stainless steel products of a thickness of 4.75 mm or more), (4) flat wire (i.e., cold-rolled sections, with a prepared edge, rectangular in shape, of a width of not more than 9.5 mm), and (5) razor blade steel. Razor blade steel is a flat-rolled product of stainless steel, not further worked than cold-rolled (cold-reduced), in coils, of a width of not more than 23 mm and a thickness of 0.266 mm or less, containing, by weight, 12.5 to 14.5 percent chromium, and certified at the time of entry to be used in the manufacture of razor blades. See Chapter 72 of the HTS, “Additional U.S. Note” 1(d).
Flapper valve steel is also excluded from the scope of the order. This product is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (“ASTM”) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (“UNS”) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Also excluded are three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments. These include stainless steel strip in coils used in the production of textile cutting tools (
Also excluded are stainless steel welding electrode strips that are manufactured in accordance with American Welding Society (“AWS”) specification ANSI/AWS A5.9-93.
Also excluded are certain stainless steel used for razor blades, medical surgical blades, and industrial blades, and sold under proprietary names such as DSRIK7, DSRIK8, and DSRIK9.
Also excluded are certain stainless steel lithographic sheet.
Also excluded is nickel clad stainless steel sheet and strip in coils from Japan.
To determine whether sales of subject merchandise from Japan to the United States were made at less than fair value (“LTFV”), we compared the export price (“EP”) to the normal value (“NV”), as described in the “Export Price” and “Normal Value” sections of this notice, supra. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual EP transactions.
In its questionnaire response, Kawasaki reported that Kawasho Corporation (“Kawasho”) is an affiliated reseller that made sales of subject merchandise during the POR. While Kawasaki made sales in both the U.S. and home markets during the POR, Kawasho did not make sales in the U.S. during the POR. Kawasaki did not report its home market sales to Kawasho, but rather its sales through Kawasho, except for certain sales. In general, for its home market sales, Kawasaki reported that its sales to unaffiliated parties include Kawasaki's sales to unaffiliated customers, and Kawasaki's sales through affiliated reseller Kawasho to unaffiliated customers. Kawasaki's home market sales to affiliated parties include sales to end users, and sales to resellers. Kawasaki explained that the exceptions to this reporting were that: (1) It could not report the sales of another affiliated reseller to end users, as that reseller could not trace its final sales to purchasers of Kawasaki subject merchandise, and thus Kawasaki reported its sales to that affiliated reseller instead; (2) it could not report a portion of downstream sales made by affiliated processors and resellers that purchase subject merchandise from Kawasho, as these parties do not trace back to the original product, so Kawasaki reported its sales to Kawasho instead; and (3) it could not report most downstream sales of Kawasho's “buy-back” transactions, where Kawasho sells to affiliates who process the material and sell it back to Kawasho, as all but one affiliated processor do not trace back to the original product, and therefore Kawasho reported its sales to the processors instead. We have used Kawasaki's reported sales for purposes of these preliminary results.
We compared the aggregate volume of Kawasaki's home market sales of the foreign like product and U.S. sales of the subject merchandise to determine whether the volume of the foreign like product Kawasaki sold in Japan was sufficient, pursuant to section 773(a)(1) of the Act, to form a basis for NV. Because Kawasaki's volume of home market sales of the foreign like product was greater than five percent of its U.S. sales of subject merchandise, in accordance with section 773(a)(1)(B)(i) of the Act, we have based the determination of NV upon Kawasaki's home market sales of the foreign like product. Thus, we based NV on the prices at which the foreign like product was first sold for consumption in Japan (or as far as Kawasaki could trace the downstream sale in Japan,
In accordance with section 771(16) of the Act, we considered all products covered by the “Scope of the Review” section, supra, which were produced and sold by Kawasaki in the home market during the POR, to be foreign like products for the purpose of determining appropriate comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire.
In accordance with section 772(a) of the Act, export price (“EP”) is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States. In accordance with section 772(b) of the Act, constructed export price (“CEP”) is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. For purposes of this review, Kawasaki has classified its sales as EP sales. Kawasaki identified one channel of distribution (sales to unaffiliated Japanese trading companies in Japan) for its U.S. sales during the POR. Kawasaki stated that “(b)ecause the date of sale, i.e., the invoice date, for these sales took place before the date of importation into the United States, Kawasaki has coded such sales as EP sales in the U.S. sales file.” See Kawasaki's November 3, 2000 Section C response (“Section C response”), at C-12. Based on the information on the record, we preliminarily determine that such sales were EP sales. We calculated EP in accordance with section 772(a) of the Tariff Act of 1930, as amended (“Act”). We based EP on packed prices to unaffiliated Japanese trading companies for export to the United States. We made deductions for foreign inland freight, foreign brokerage and handling, foreign inland insurance, rebates, and credit expenses in accordance with section 772(c) of the Act.
Kawasaki also reported that its mills are located in free trade zones (“FTZ”), and that it pays no duty on imported alloys used in producing subject merchandise for U.S. sales. Since the FTZ does not constitute the customs area of Japan, duties were not imposed on the imports into the FTZ unless and until they were withdrawn for consumption and entered into the customs territory of Japan. Therefore, the duties attributable to raw materials imported into the FTZ and re-exported to the United States constitute uncollected duties within the meaning of section 772(c)(1)(B) of the Act. See Certain Welded Stainless Steel Pipe from Taiwan: Final Results of Administrative Review, 63 FR 38382 (July 16, 1998). Kawasaki provided a worksheet establishing a linkage between the imported alloys and the subject merchandise. See Kawasaki's March 30, 2001 Supplemental Section B and C response, at Exhibit 15. In addition, Kawasaki stated that it imported sufficient amounts of the elements under bond that were then consumed in the production of subject merchandise. Accordingly, for these preliminary results, we also made an upward adjustment to the U.S. price for duty drawback pursuant to section 772(c)(1)(B) of the Act.
After testing home market viability, as discussed in the “Transactions Reviewed” section, supra, and whether home market sales were at below-cost prices, in the “Cost of Production Analysis,” infra, we calculated NV as noted in the “Price-to-Price Comparisons” and “Price-to-Constructed Value (“CV”) Comparisons” sections of this notice.
Because the Department disregarded certain Kawasaki sales made in the home market at prices below the cost of producing the subject merchandise in the most recently completed segment of this proceeding (
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of Kawasaki's cost of materials and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), interest expenses, and packing costs. We used home market sales and COP information provided by Kawasaki in its questionnaire responses.
We compared the weighted-average COP for the POR to Kawasaki's home market sales of the foreign like product as required under section 773(b) of the Act. In determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales: (1) Were made within an extended period of time in substantial quantities; and (2) were not made at prices which permitted the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of Kawasaki's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of Kawasaki's sales of a given product were at prices less than the COP, we determined such sales to have been made in “substantial quantities.” The extended period of time for this analysis is the POR. See section 773(b)(2)(B) of the Act. Because each individual price was compared against the weighted average COP for the cost reporting period, any sales that were below cost were also at prices which did not permit cost recovery within a reasonable period of time.
In accordance with section 773(e)(1) of the Act, CV is calculated based on the sum of the respondent's cost of materials, fabrication and other processing expenses. Calculation of the COP included in the calculation of CV is as noted in the “Calculation of COP” section of this notice, supra. In accordance with section 773(e)(2)(A) of
For those product comparisons for which there were sales at prices above the COP, we based NV on the home market prices to unaffiliated purchasers and those affiliated customer sales which passed the arm's length test. We made adjustments, where appropriate, for differences in the merchandise in accordance with section 773(a)(6)(C) of the Act. We made adjustments, where applicable, for movement expenses (
In accordance with section 773(a)(4) of the Act, we base NV on CV if we are unable to find suitable home market sales of the foreign like product. We did not base NV on CV for Kawasaki for these preliminary results of review.
If any sales to affiliated customers in the home market were not made at arm's length prices, we excluded them from our analysis because we consider them to be outside the ordinary course of trade. To test whether sales were made at arm's length prices, we compared, on a model-specific basis, the starting prices of sales to affiliated and unaffiliated customers, net of all movement charges, direct selling expenses, and packing. Where prices to the affiliated party were on average 99.5 percent or more of the price to the unaffiliated parties, we determined that sales made to the affiliated party were at arms's length.
Kawasaki reported the original invoice date/shipment date as the date of sale, for both the home market and the U.S. market. Section 351.401(i) of the Department's regulations states that the Department will normally use the date of invoice, as recorded in the exporter's or producer's records kept in the ordinary course of business, as the date of sale. The preamble to these regulations provides an explanation of this policy, as well as examples of when the Department may choose to base the date of sale on a date other than the date of invoice.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP transaction. As noted in the “Export Price/Constructed Export Price” section, supra, we preliminarily determine that Kawasaki's U.S. sales were EP sales. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive SG&A expenses and profit (as noted in the “Price-to-CV Comparisons” section, supra, we did not base NV on CV for these preliminary results). For EP sales, the LOT is also the level of the starting-price sale, which is usually from the exporter to the unaffiliated U.S. customer.
To determine whether NV sales are at a different LOT than EP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act.
In the present review, Kawasaki stated that EP sales to unaffiliated trading companies are made at the same level of trade as the home market sales to unaffiliated trading companies. However, Kawasaki requested a LOT adjustment if the Department compares U.S. sales to home market sales occurring at a different level of trade. To determine whether an adjustment was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems and selling functions in both the United States and Japanese markets.
Kawasaki reported two levels of trade in the home market and one level of trade in the U.S. market. Kawasaki reported three channels of distribution in the home market: (1) Kawasaki sales to unaffiliated trading companies; (2) Kawasaki direct sales to end users; and (3) Kawasho's resales of Kawasaki-produced SSSS. Kawasaki reported one channel of distribution in the U.S. market: Kawasaki sales to unaffiliated trading companies.
For Kawasaki sales to unaffiliated trading companies in the home market, Kawasaki reported that it: maintains no inventory, provides technical advice, services warranty claims (with partial responsibility by the trading companies), advertises and markets its products for sale, primarily arranges warehousing, inputs data to the specification control system, arranges freight and delivery, handles sales processing (including invoicing and payment collection), administers rebates, and handles little demand forecasting. For Kawasaki direct sales to end users in the home market, Kawasaki reported that due to the nature of the sale, it was not as involved in day to day negotiations and customer contacts, or daily sales functions and services. For Kawasho's sales in the home market, Kawasaki reported that Kawasaki maintains no inventory (although Kawasho sometimes maintains inventory), provides technical advice, services warranty claims (with partial responsibility by Kawasho), advertises and markets its products for sale (as does Kawasho), arranges warehousing (although Kawasho primarily arranges warehousing), maintains and revises the specification control system (Kawasho inputs data to the specification control system), arranges freight and delivery (as does Kawasho), does not handle sales processing (Kawasho is responsible for sales processing), administers rebates, and handles little demand forecasting (Kawasho is responsible for demand forecasting). Based on our review of the selling
For Kawasaki sales to unaffiliated trading companies for the U.S. market, Kawasaki reported similar selling functions as for the home market. Specifically, Kawasaki stated that it: maintains no inventory, provides technical advice, services warranty claims (with partial responsibility by the trading companies), advertises and markets its products for sale, did not incur warehousing (as the customer picked up the merchandise at Kawasaki's works), inputs data to the specification control system, did not arrange freight and delivery (the trading companies were responsible for freight and delivery), handles sales processing (including invoicing and payment collection), administers rebates, and handles little demand forecasting.
Based on our analysis of the selling functions performed for sales in the home market and EP sales for the U.S. market, we preliminarily determine that, despite some slight differences in minor selling functions (
We made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank, in accordance with section 773A(a) of the Act.
As a result of our review, we preliminarily determine that the following weighted-average dumping margin exists for the period January 4, 1999 through June 30, 2000:
In accordance with 19 CFR 351.224(b), the Department will disclose to parties to this proceeding the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.309, interested parties may submit written comments on these preliminary results. Case briefs must be submitted no later than 30 days after the date of publication of this notice. Rebuttal briefs, which must be limited to issues raised in the case briefs, must be submitted no later than five days after the time limit for filing case briefs. Parties submitting arguments in this proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, within 30 days of the date of publication of this notice, an interested party may request a public hearing on arguments to be raised in the case and rebuttal briefs. See 19 CFR 351.310(c). Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs, or the first working day thereafter. The Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, within 120 days of publication of these preliminary results.
The Department shall determine, and the U.S. Customs Service (“Customs”) shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific assessment rates. We divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct Customs to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's entries under the relevant order during the review period.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed company will be the rate established in the final results of this administrative review (except that no deposit will be required if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 C.F.R. 351.305, that continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the 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.
This administrative review is issued and published in accordance with section 751(a)(1) of the Act, 19 CFR 351.213 and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
Amendment of final determination of sales at less than fair value pursuant to Court Decision.
On April 10, 2001, the United States Court of International Trade (CIT) affirmed the determination made by the Department of Commerce (the Department) pursuant to a remand of the final antidumping duty determination of sales at less than fair value on stainless steel wire rod from Korea.
August 7, 2001.
Alexander Amdur, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5346.
On July 29, 1998, the Department published in the
The Department filed its redetermination on remand on February 9, 2001. The Department, for purposes of the remand, reclassified Changwon's U.S. sales as CEP sales. On April 10, 2001, the CIT affirmed the Department's remand determination.
As a result of the remand determination, the final dumping margins are as follows:
The Department will direct the United States Customs Service to require, on or after the date of publication of this notice in the
Import Administration, International Trade Administration, U.S. Department of Commerce.
Preliminary Results of Changed Circumstances Review.
August 8, 2001.
We preliminarily determine that, because several interested parties are interested in the maintenance of the order with respect to the merchandise described below, there is no reasonable basis to believe that changed circumstances sufficient to warrant revocation exist. Therefore, we preliminarily determine that there is insufficient industry support for revoking the order with respect to that merchandise. Interested parties are invited to comment on these preliminary results (
Michael Ferrier or Steve Bezirganian, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1394 or (202) 482-1131, 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 the regulations at 19 CFR part 351 (2001).
On August 28, 2000, the Department published in the
Weirton Steel, a domestic producer of the subject merchandise, together with the Independent Steelworkers Union and the United Steelworkers of America, AFL-CIO, were the petitioners in the underlying sales at less-than-fair-value investigation. In their changed circumstances request, petitioners stated that they have no interest in maintaining the antidumping duty order on certain tin mill products from Japan with respect to the merchandise in question, and that they believe that none of the known producers of the subject merchandise have any interest in having the merchandise in question remain within the scope of the antidumping order. However, the Department had no information on the record that the other known domestic producers of tin mill products, Bethlehem Steel Corp., National Steel Corp. (“National Steel”) , Midwest Division, Ohio Coatings Co., U.S. Steel Group, a Unit of USX Corp., and USS-Posco Industries, Inc. (“UPI”), had no interest in maintaining the antidumping duty order with respect to the merchandise in question described in Weirton's request. Therefore, we did not combine the initiation with the preliminary results, which is our normal practice under section 351.221(c)(3)(ii).
On May 21, 2001, we initiated a changed circumstances review for the merchandise in question (Certain Tin Mill Products From Japan: Notice of Initiation of Changed Circumstances Review of the Antidumping Duty Order, 66 FR 29086 (May 29, 2001) (“Initiation of Changed Circumstances Review”). In the initiation notice, we indicated that interested parties could submit comments for consideration in the Department's preliminary results not later than 20 days after publication of the initiation of the review, and submit responses to those comments not later than 10 days following the submission of comments.
On June 15, 2001, we received comments from UPI. UPI is a domestic producer of subject merchandise and is an interested party pursuant to 771(9)(C) of the Act. UPI indicated that it can and has produced the merchandise in question, that it has an interest in maintaining the antidumping duty order with respect to that merchandise, and that it would object to the exclusion of the merchandise in question from the order.
On June 18, 2001, we received comments from National Steel, a domestic producer of subject merchandise and, therefore, an interested party pursuant to 771(9)(C) of the Act, indicating that it has an interest in maintaining the order with respect to the merchandise in question, and that it would object to the exclusion of that merchandise from the order. National Steel's comments also note that petitioners failed to show that producers accounting for at least 85 percent of the production of the domestic like product express a lack of interest in continuation of the order with respect to the merchandise in question. On June 21, 2001, National Steel indicated that it had inadvertently filed its June 18, 2001 response under an incorrect case number.
The products covered by this antidumping duty order include tin mill flat-rolled products that are coated or plated with tin, chromium or chromium oxides. Flat-rolled steel products coated with tin are known as tin plate. Flat-rolled steel products coated with chromium or chromium oxides are known as tin-free steel or electrolytic chromium-coated steel. The scope includes all the noted tin mill products regardless of thickness, width, form (in coils or cut sheets), coating type (electrolytic or otherwise), edge (trimmed, untrimmed or further processed, such and scroll cut), coating thickness, surface finish, temper, coating metal (tin, chromium, chromium oxide), reduction (single-or double-reduced), and whether or not coated with a plastic material.
All products that meet the written physical description are within the scope unless specifically excluded. The following products, by way of example, are outside and/or specifically excluded from the scope:
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (“HTSUS”), under HTSUS subheadings 7210.11.0000, 7210.12.0000, 7210.50.0000, 7212.10.0000, and 7212.50.0000 if of non-alloy steel and under HTSUS subheadings 7225.99.0090, and 7226.99.0000 if of alloy steel. Although the subheadings are provided for convenience and Customs purposes, our written description of the scope is dispositive.
The scope of the products covered by this changed circumstances review are as follows:
The merchandise subject to this order is classified in the HTSUS under subheading 7210.50.0000 if of non-alloy steel, and under HTSUS subheading
Pursuant to section 751(d) of the Act, the Department may partially revoke an antidumping duty order based on a review under section 751(b) of the Act. Section 782(h)(2) of the Act and section 351.222(g)(1)(i) of the Department's regulations provide that the Secretary may revoke an order, in whole or in part, based on changed circumstances if “(p)roducers accounting for substantially all of the production of the domestic like product to which the order (or the part of the order to be revoked) * * * have expressed a lack of interest in the order, in whole or in part * * *.” In this context, the Department has interpreted “substantially all” production normally to mean at least 85 percent of domestic production of the like product (
In order to determine whether “substantially all” of the domestic producers supported revocation of the order with respect to the merchandise in question, the Department solicited comments from all parties (
Based on the submissions by the producers, the Department has preliminarily determined that there are no grounds for assuming that producers supporting a partial revocation of the order account for at least 85 percent of domestic production of the like product. Under the definition given above, there are no grounds for assuming that partial revocation of the order with respect to the merchandise in question is supported by “substantially all” of the domestic producers of the like product. As a result, we preliminarily determine that changed circumstances sufficient to warrant partial revocation of the antidumping duty order on tin mill products from Japan with respect to the merchandise in question do not exist.
The current requirements for the cash deposit of estimated antidumping duties on the subject merchandise will remain in effect until the publication of the final results of the next administrative review.
Parties wishing to comment on these results must submit briefs to the Department within 30 days after the publication of this notice in the
In accordance with 19 CFR 351.216(e), the Department will issue its final results of review within 270 days after the date on which the changed circumstance review was initiated (
This notice is published in accordance with sections 751(b)(1) and (d) and 777(i) of the Act, and with 19 CFR 351.221(c)(3).
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of countervailing duty administrative review.
The Department of Commerce is conducting an administrative review of the countervailing duty order on certain pasta from Turkey for the period January 1, 1999 through December 31, 1999. We have preliminarily determined that certain producers/exporters have received net subsidies during the period of review. If the final results remain the same as these preliminary results, we will instruct the Customs Service to assess countervailing duties as detailed in the Preliminary Results of Review section of this notice. Interested parties are invited to comment on these preliminary results (
August 8, 2001.
Annika O'Hara or Melanie Brown, Office of AD/CVD Enforcement 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3798 and (202) 482-4987, 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”) regulations are to 19 CFR part 351 (April 2000).
On July 24, 1996, the Department published in the
On October 2, 2000, we issued countervailing duty questionnaires to the Government of Turkey (“GRT”) and the above-named companies under review. We received responses to our
Covered by the order are shipments of certain non-egg dry pasta in packages of five pounds (2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this order is typically sold in the retail market, in fiberboard or cardboard cartons or polyethylene or polypropylene bags, of varying dimensions.
Excluded from the order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white.
The merchandise under review is currently classifiable under subheading 1902.19.20 of the
To date, the Department has issued the following scope ruling:
On October 26, 1998, the Department self-initiated a scope inquiry to determine whether a package weighing over five pounds as a result of allowable industry tolerances may be within the scope of the countervailing duty order. On May 24, 1999, we issued a final scope ruling finding that, effective October 26, 1998, pasta in packages weighing or labeled up to (and including) five pounds four ounces is within the scope of the countervailing duty order. (
The period of review (“POR”) for which we are measuring subsidies is from January 1, 1999 through December 31, 1999.
Pursuant to the finding of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in
The first step under this new methodology is to determine whether the legal person (entity) to which the subsidies were given is, in fact, distinct from the legal person that produced the subject merchandise exported to the United States. If we determine the two persons are distinct, we then analyze whether a subsidy has been provided to the purchasing entity as a result of the change-in-ownership transaction. If we find, however, that the original subsidy recipient and the current producer/exporter are the same person, then that person benefits from the original subsidies, and its exports are subject to countervailing duties to offset those subsidies. In other words, we will determine that a “financial contribution” and a “benefit” have been received by the “person” under investigation. Assuming that the original subsidy has not been fully amortized under the Department's normal allocation methodology as of the period of investigation or review, the Department would then continue to countervail the remaining benefits of that subsidy.
Pastavilla underwent a change in ownership through a private-to-private transaction in 1995 when a Turkish business conglomerate, the Koç Group, bought the company from its founders. The ownership of Filiz changed in a 1996 private-to-private transaction in which Italian pasta manufacturer Barilla became the majority shareholder of Filiz. Regarding Beslen, the Turkish Grain Board (“TMO”), a government-owned enterprise, acquired 45 percent of the shares in Beslen in 1990. The remaining shares were—and still are—owned by Okan Holding, a privately owned holding company. In 1998, the TMO transferred its shares in Beslen to the Turkish Privatization Board, apparently in preparation for privatization of the shares.
We have not made a finding for the purpose of these preliminary results as to whether the pre-sale entities are distinct persons from the post-sale entities because the respondents have not reported receiving any subsidies prior to the changes in ownership (
On this basis, we find that application of the change-in-ownership methodology is not relevant in this review.
The Department uses company-specific interest rates as the benchmark rate, where possible, in accordance with 19 CFR 351.505. Because short-term interest rates in Turkey fluctuated significantly during the POR, we have used monthly benchmark rates,
Pastavilla did not obtain any comparable commercial short-term loans in the same months as it obtained its pre-shipment loans and we, therefore, lack company-specific benchmark interest rates for Pastavilla. 19 CFR 351.505(3)(ii) directs us to use a national average interest rate as the benchmark where there are no company-specific rates. The GRT does not maintain or publish data concerning the predominant national average short-term interest rates in Turkey. We have, therefore, calculated a monthly benchmark interest rate based on the short-term interest rates in Turkey for 1999 as reported weekly by The
With respect to pre-shipment loans denominated in foreign currencies, Maktas has provided the interest rates paid on comparable commercial short-term loans denominated in the same currencies. In accordance with 19 CFR 351.505, we have used these interest rates as the benchmark rates for the foreign currency pre-shipment loans.
On this basis and in accordance with 19 CFR 351.525(b)(6)(ii), the Department has attributed subsidies provided for the production of semolina and pasta to the sales by the corporate entities that received them.
In order to meet the financing needs of Turkish exporters, the Export Credit Bank of Turkey provides short-term pre-shipment loans to exporters through intermediary commercial banks. The term for TL-denominated loans is 120 days, whereas the term for loans denominated in foreign currencies is 180 days. Both types of loans may cover up to 100 percent of the FOB export value. The interest rate charged on the loans is established by the Export Credit Bank and is changed periodically. The intermediary commercial banks, which take the risk that the borrower may default, can require additional fees to offset this risk and may also charge a commission. Like all other export-related short-term loans, the pre-shipment export loans are exempted from the KKDF, BIST, and stamp taxes (
Maktas and Pastavilla had outstanding pre-shipment export loans in the POR.
The Department has previously found that these loans confer a countervailable subsidy within the meaning of section 771(5) of the Act because the interest rate paid on these loans is less than the amount the recipient would pay on a comparable commercial loan.
Pursuant to 19 CFR 351.505, we have calculated the benefit as the difference between the payments of interest and taxes that Maktas and Pastavilla made on their pre-shipment export loans during the POR and the payments the companies would have made on comparable commercial loans. We divided the resulting benefit by the value of each company's exports during the POR, adjusting for inflation as described in the Subsidies Valuation Information section above. On this basis, we preliminarily determine the countervailable subsidy from this program to be 5.45 percent
Pursuant to Article 4 of Resolution no. 94/5782 of June 13, 1994, Turkish companies are exempted from paying the KKDF, BIST, and stamp taxes on export-related short-term loans regardless of whether the loans are denominated in TL or foreign currencies. These exemptions are allowed both on loans at preferential interest rates (such as the pre-shipment export loans discussed above) and on loans at non-preferential interest rates.
Maktas reported receiving tax exemptions on short-term export-related loans provided at non-preferential interest rates. (Tax exemptions on preferential-rate pre-shipment export loans have been included in the calculation of the countervailable benefit for these loans, as described above.)
We have preliminarily determined that these tax exemptions confer a countervailable subsidy within the meaning of section 771(5) of the Act. They constitute revenue forgone by the GRT and provide a benefit in the amount of the tax exemptions.
We have preliminarily determined that the tax exemptions are specific in accordance with section 771(5A)(B) of the Act because their receipt is contingent upon exportation.
The Department typically treats tax exemptions as recurring grants in accordance with 19 CFR 351.524(c)(1). To calculate the countervailable subsidy, we divided the total amount of the tax exemptions received by Maktas on short-term export-related loans outstanding during the POR by the value of Maktas' exports during the POR, adjusting for inflation as described in the Subsidies Valuation Information section above. On this basis, we preliminarily determine the countervailable subsidy from this program to be 5.31 percent
Under the General Investment Encouragement Program (“GIEP”),
The Department has previously determined that some parts of the GIP/GIEP program are not countervailable (
In
In
However, in
Pastavilla received benefits under the old VAT Support Program during the POR. As noted above, the Department has previously determined that these rebates confer a countervailable subsidy within the meaning of section 771(5) of the Act. They are a direct transfer of funds from the GRT bestowing a benefit in the amount of the rebate. As noted above, this program has previously been found to be specific. In this review, no new information has been provided that would warrant reconsideration of this determination.
We have previously treated the VAT rebates on domestic machinery and equipment as recurring grants because once a company has received an Investment Incentive Certificate, it becomes eligible for the VAT Support Program.
Exporters can obtain short-term export credit insurance from the Export Credit Bank of Turkey. These are one-year blanket insurance policies which cover up to 90 percent of losses incurred due to political risks (
The premium rates differ depending on the following factors: (1) whether the buyer is a public or a private entity, (2) the risk classification of the buyer's country, (3) the payment terms, and (4) the length of the credit period. Previously, it was obligatory for companies taking pre-shipment export loans (
The export credit insurance program was not used in the investigation of this case (
The GRT has provided information for the time period 1995-1999 showing that, in each of these years, the premiums paid for the export credit insurance and other income generated by the program exceeded the insurance claims paid to participating companies. The 1999 annual report of the Export Credit Bank also shows that the bank's operating income (which includes the operating income for the export credit insurance program) exceeds its long-term operating costs. On this basis, in accordance with 19 CFR 351.520(a)(1), we preliminarily find the export credit insurance program to be not countervailable.
There are three main ways for Turkish pasta producers to obtain wheat for semolina: (1) from the TMO, (2) from local growers and traders, or (3) through imports. Prices on Turkish wheat are set above world market price as part of a price support scheme benefitting domestic wheat growers. However, companies holding an Inward Processing License may obtain cheaper wheat by either importing it under a duty-drawback program (
Under 19 CFR 351.516(a)(1), price preferences for inputs used in the production of goods for export confer a countervailable benefit if the inputs are provided at more favorable terms or
On this basis, we preliminarily determine that the provision of wheat under Decree 98/11033 is not countervailable.
As described above, Turkish companies holding an Inward Processing License may import wheat duty-free under a duty drawback program provided that they export the finished product. Maktas and Pastavilla imported wheat under an Inward Processing License in the POR.
According to 19 CFR 351.519, a benefit exists to the extent that the amount of the remission or drawback exceeds the amount of import charges on the imported input or to the extent that the exemption extends to inputs that are not consumed in the production of the exported products. Maktas and Pastavilla imported wheat (which is processed into semolina, the main input product in pasta) under the Inward Processing Licenses. There is no indication that either company received excessive remissions of the import duty, which normally is 50 percent on imported wheat. On this basis, we preliminarily determine that wheat imports under the Inward Processing Licenses are not countervailable. However, before issuing the final results of this review, the Department will request Maktas and Pastavilla to document that they did not receive excessive remissions of the import duty under this program.
In
In the POR, Filiz used certain GIEP benefits (Investment Allowance, which is a form of corporate income tax deduction, and Customs Duty Exemptions) under an Investment Incentive Certificate issued in 1994. In
Regarding the Investment Allowances portion of the GIP/GIEP program, none of the respondents in the investigation used this program. However, these allowances were used in
During the POR, Filiz also used an Investment Incentive Certificate issued in 1998. Pastavilla used certificates issued between 1996 and 1999, and Maktas used a certificate issued in 1996. The GIP/GIEP programs used by these companies included Investment Allowances and Customs Duty Exemptions. Beslen also held Investment Incentive Certificates issued during the same general time period (Beslen's data regarding its certificates is proprietary and, therefore, cannot be discussed in further detail in this notice). Beslen received Customs Duty Exemptions and Stamp Tax Exemptions under its certificates. (The VAT support reported by the respondents in the context of the GIEP program has been dealt with elsewhere in this notice.)
Consistent with
As discussed in section I.3 above, the VAT Support Program changed on August 1, 1998. From that date, the program, renamed “VAT Exemption on Imported and Locally Purchased Machinery and Equipment,” entitles holders of Investment Incentive Certificates issued on or after August 1, 1998, to claim full VAT exemption on all machinery and equipment acquired for the investment project, regardless of whether it is imported or domestically produced.
During the POR, Pastavilla used this new program under an Investment Incentive Certificate issued in 1999. Because benefits under the program are no longer tied to the purchase of domestically produced machinery and equipment and because the food and beverages industry did not receive a disproportionate number of Investment Incentive Certificates during the relevant time period (see section II.4 above), we preliminarily find the “VAT Exemption for Imported and Locally Purchased Machinery and Equipment” program to be not countervailable.
1. Pasta Export Grants.
2. Export Credit Through the Foreign Trade Corporate Companies' Rediscount Credit Facility.
3. Performance Foreign Currency Export Loans.
4. Corporate Tax Deferrals.
5. Subsidized Credits for a Proportion of Fixed Expenditures.
6. Subsidized Credits in Foreign Currencies.
7. Direct Payments to Exporters for Wheat Products to Compensate for High Domestic Input Prices.
8. GIP/GIEP Program:
a. Exemption from Certain Customs Duties and Fund Levies.
b. Exemption from Certain Taxes, Duties and Fees (Other Tax Exemptions).
c. Subsidized Turkish Lire Credit Facilities.
d. Land Allocation.
e. Energy Support.
f. Payment of Certain Obligations of Firms Undertaking Large Investments.
The GRT has stated that the following programs have been terminated. Before issuing the final results in this administrative review, we will seek confirmation through official government documents and other sources that these programs no longer exist.
1. Free Wheat Program.
2. Payments for Exports on Turkish Ships/State Aid for Exports Program.
3. Tax Exemption Based on Exports Earnings (Corporate Tax Law 3946).
4. Advance Refunds of Tax Savings.
5. Exemption from Mass Housing Fund Levy (Duty Exemptions).
6. GIP/GIEP Program:
a. Interest Spread Return Program.
b. Resource Utilization Support Fund.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for each producer/exporter subject to this administrative review. For the period January 1, 1999 through December 31, 1999, we preliminarily determine the net subsidy rates for producers/exporters under review to be those specified in the chart shown below. If the final results of this review remain the same as these preliminary results, the Department intends to instruct the Customs Service (“Customs”) to assess countervailing duties at these net subsidy rates. Because the rates for Beslen and Filiz are zero, we plan to instruct Customs to liquidate entries from these companies during the POR without regard to countervailing duties.
The Department also intends to instruct Customs to collect cash deposits of estimated countervailing duties at these rates on the FOB value of all shipments of the subject merchandise from the producers/exporters under review that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review.
The calculations will be disclosed to the interested parties in accordance with 19 CFR 351.224(b).
For companies that were not named in our notice initiating this administrative review, the Department has directed Customs to assess countervailing duties on all entries between January 1, 1999 and December 31, 1999 at the rates in effect at the time of entry.
For all non-reviewed firms, we will instruct Customs to collect cash deposits of estimated countervailing duties at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order are those established in the
Interested parties may submit written arguments in case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, limited to issues raised in case briefs, may be filed not later than five days after the date of filing the case briefs. Parties who submit briefs in this proceeding should provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Copies of case briefs and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f).
Interested parties may request a hearing within 30 days after the date of publication of this notice. Any hearing, if requested, will be held two days after the scheduled date for submission of rebuttal briefs.
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due.
The Department will publish a notice of the final results of this administrative review within 120 days from the publication of these preliminary results.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of meeting of the North Pacific Research Board Voting Members to nominate a new member.
The North Pacific Research Board (Board) will meet August 14, 2001, at 3 p.m. at the U.S. Department of Agriculture (USDA) Forest Conference Room, Room 541B, Federal Building, Juneau, AK in order to nominate a new Board member. The meeting is open to the public. Members of the public may address the Board or submit written comments.
August 14, 2001, 3 p.m., Alaska local time.
Inquiries related to the Board’s meeting should be submitted to Bill Hines, International Coordinator, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 99802, Attn: Lori Gravel, or delivered to Room 453 of the Federal Building, 709 West 9th Street, Juneau, AK.
Bill Hines, 907-586-7224 or email at William.Hines@noaa.gov.
Section 401(a) of Public Law (Pub.L.) 105-83, as amended by Pub.L. 106-113, established the Environmental Improvement and Restoration Fund. Twenty percent of the interest proceeds from this fund, which contains one half of the amount awarded to the United States in the case,
Recent changes to the Board’s original legislation detailed in Pub.L. 106-554, empower 5 members of the 20-member Board to make all decisions of the Board, including grant recommendations. The amendment also created a twentieth member, who shall represent fishing interests and shall be nominated by the Board and appointed by the Secretary of Commerce. The Board shall nominate this twentieth member at its upcoming meeting.
This meeting will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Bill Hines (see
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 Advisory Subpanel (HMSAS) will hold a work session, which is open to the public.
The HMSAS will meet on Sunday, August 26, 2001 from 1 p.m. to 5 p.m.; and Monday, August 27, 2001 from 8 a.m. until business for the day is completed.
The work session will be held in the large conference room at the California Department of Fish and Game, 4665 Lampson Avenue, Suite C, Los Alamitos, CA 90720; (562) 342-7100.
Dan Waldeck, Pacific Fishery Management Council, (503) 326-6352.
The primary purpose of the work session is to review draft highly migratory species (HMS) fishery management plan documents. The draft management plan was revised by the HMS Plan Development Team in response to Council guidance.
Although nonemergency issues not contained in the HMSAS meeting agenda may come before the HMSAS for discussion, those issues may not be the subject of formal HMSAS action during this meeting. HMSAS 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 HMSAS'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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Ad Hoc Allocation Committee will hold a meeting which is open to the public.
The meeting will begin on Monday, August 27, 2001, at 10 a.m. and will continue through Tuesday, August 28, 2001, as necessary.
The meeting will be held at the Pacific Fishery Management Council office, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384; (503) 326-6352.
John DeVore, Groundfish Management Coordinator; telephone: (503) 326-6352.
The purpose of the meeting is to develop preliminary options for allocations and other management measures for the 2002 Pacific Coast groundfish fishery. In addition, the committee will evaluate current catch levels of overfished groundfish species and may propose inseason adjustments. The committee will discuss the types of provisions that may be necessary to prevent further overfishing, to reduce bycatch of overfished species in the various groundfish fisheries, and to reduce bycatch in non-groundfish fisheries. The committee will prepare recommendations and contribute to draft rebuilding plans for canary rockfish, bocaccio, cowcod rockfish, coastwide lingcod stocks, Pacific ocean perch, widow rockfish, and darkblotched rockfish that will be presented to the Council at its September meeting. If available, the committee may also review new rebuilding analyses for Pacific ocean perch, coastwide lingcod stocks, and darkblotched rockfish and may propose revisions to the current rebuilding plans and management measures. No management actions will be decided by the Ad Hoc Allocation Committee. The committee’s role will be development of recommendations for consideration by the Council at its September meeting in Portland, OR.
Although nonemergency issues not contained in the Ad Hoc Allocation Committee meeting agenda may come before the committee for discussion, those issues may not be the subject of formal Ad Hoc Allocation Committee action during this meeting. Ad Hoc Allocation Committee 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 committee'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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Ad Hoc Groundfish Strategic Plan Implementation Oversight Committee (SPOC) will hold a telephone conference, which is open to the public.
The telephone conference will be held Thursday, August 30, 2001 from 9 a.m. until 12 p.m.
Listening stations will be available at sveral locations. See
Mr. Dan Waldeck, telephone: (503) 326-6352.
The purpose of the telephone conference is to discuss several strategic plan related issues (1) results of the license limitation in the open access fishery meeting, (2) composition of the Council’s marine reserves steering group, and (3) results of the Council’s Ad Hoc Allocation Committee meeting.
Although nonemergency issues not contained in the meeting agenda may come before the SPOC for discussion, those issues may not be the subject of formal SPOC action during this meeting. 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 SPOC's intent to take final action to address the emergency.
1. NMFS Northwest Region, Director's Conference Room, 7600 Sand Point Way NE, Building 1, Seattle, WA 98115; Contact: Mr. Bill Robinson; (206) 526-6267.
2. Pacific Fishery Management Council, West Conference Room, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384; Contact: Mr. Dan Waldeck; (503) 326-6352
3. California Fish and Game Commission, Conference Room, Room 1320, 1416 Ninth Street, Sacramento, CA 95814; Contact: Mr. LB Boydstun; (916) 653-6281.
4. Natural Resource Building, oom 677, 111 Washington Street, E Olympia, WA 98501; Contact: Mr. Phil Anderson; (360) 902-2819.
5. National Marine Fisheries Service, Northwest Fisheries Science Center, 2030 S. Marine Drive, Newport, OR 97365; Contact: Ms. Cyreis Schmitt; (541) 867-0127.
6. Coos Bay Trawlers Association, 63422 Kingfisher Road, Charleston, OR 97420; Contact: Mr. Steve Bodnar; (541) 888-8012.
7. Pacific Marine Conservation Council, 340 Industry Road, Astoria, OR 97103; Contact: Mr. Bob Eaton; (503) 325-8188.
This 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council will hold meetings of its Habitat Advisory Panel (AP), Coral Advisory Panel, Marine Protected Areas Advisory Panel, Snapper Grouper Advisory Panel, Law Enforcement Advisory Panel, Wreckfish Advisory Panel and a meeting of the Marine Protected Areas Committee in Charleston, South Carolina.
The meetings will be held on August 28, 2001 through August 31, 2001. See
These meetings will be held at the Town and Country Inn, 2008 Savannah Highway, Charleston, SC 29407; telephone: 843-571-1000.
Kim Iverson, Public Information Officer; telephone: (843) 571-4366; fax: (843) 769-4520; email: kim.iverson@noaa.gov.
The Habitat Advisory Panel will meet August 28, 2001 and on August 29, 2001, in conjunction with the Coral Advisory Panel. Issues to be discussed include but are not limited to: review and evaluation of a draft list of marine protected areas for the South Atlantic region, snapper grouper spawning locations, research efforts at offshore habitat areas “The Point” in North Carolina and “The Charleston Bump” in South Carolina, dredging, sand mining and beach renourishment activities and policy statement development (including state efforts), workshop process for review and updating designated Essential Fish Habitat (EFH) and Essential Fish Habitat-Habitat Areas of Particular Concern, EFH Assessment process, ecosystem management - process for development of an EcoPath Model for the South Atlantic Bight,
A joint meeting of the Marine Protected Areas Advisory Panel, Habitat AP, Coral AP, Snapper Grouper AP, Law Enforcement AP, Wreckfish AP, will be held August 29-30, 2001. Advisory panel members will hear a presentation on current data collection methods and analysis in regards to marine protected areas (MPAs). Following the presentation, AP members will discuss proposed MPAs in the south Atlantic based on location, species composition, habitat composition, enforcement issues, and social and economic importance. Based on these discussions, the AP members will develop recommendations on which sites will be forwarded to the Marine Protected Areas Committee.
The Council's Marine Protected Areas Committee will meet August 31, 2001, to review recommendations regarding MPA sites from the joint AP meeting and develop Committee recommendations to forward to the South Atlantic Fishery Management Council.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council’s intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
Commodity Futures Trading Commission.
11 a.m., Friday, August 10, 2001.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, August 17, 2001.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, August 24, 2001.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, August 31, 2001.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Department of Defense (DoD).
Request for public comments.
The Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics) is seeking information that will assist it in evaluating a proposed public interest exception to the Buy American Act (BAA) in procurements subject to the Trade Agreements Act (TAA) for commercial U.S.-made end products, substantially transformed in the United States, that do not qualify as domestic end products under the BAA. A similar exception was issued for U.S.-made information technology products on May 16, 1997. Interested parties are invited to submit written comments or recommendations relative to this proposed public interest exception.
Comments must be received no later than September 24, 2001.
Send all comments to Domenico C. Cipicchio, Deputy Director, Defense Procurement, Contract
Susan M. Hildner, Procurement Analyst, Defense Procurement, Defense Systems Procurement Strategies, OUSD (AT&L), 3060 Defense Pentagon, Washington, DC 20301-3060, (703) 695-4258, or e-mail to Susan.Hildner@osd.mil.
The BAA requires the Government to purchase for public use only domestic end products. For a manufactured end product, this means a product that has been manufactured in the United States substantially all from articles, materials, or supplies in mind, produced, or manufactured in the United States. DoD considers a product to be “substantially all from articles, materials, or supplies mined, produced, manufactured in the United States” if the cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Under the TAA, the BAA is waived for eligible products from certain designated countries. The country of origin for eligible products is the country in which the articles/components (wherever the origin) have been substantially transformed into an article of commerce with a name, character, or use distinct from that of the articles from which it was transformed. Since the TAA applies only to products of foreign countries, the BAA is not waived for products substantially transformed in the United States from mostly foreign components,
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Pub. L. 104-164 dated 21 July 1996.
Ms. J. Hurd, DSCA/COMPT/RM, (703) 604-6575.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 01-19 with attached transmittal, policy justification, and Sensitivity of Technology.
Department of Defense.
Notice.
In accordance with the National Environmental Policy Act and the policies of the Department of Defense, implementing the regulations of the Council on Environmental Quality (40 CFR 1500-1508), I find that the project described in the Supplemental Environmental Assessment dated July 1999, is not a major Federal action significantly affecting the quality of the human environment. Therefore, no Environmental Impact Statement will be prepared.
This action supplements the Finding of No Significant Impact (FONSI) for the Pentagon Renovation Master Plan dated November 1, 1991. That finding was based on an Environmental Assessment dated May 28, 1991.
This finding is based on the Supplemental Environmental Assessment dated July 1999 on the Condenser Line Outfall associated with the Heating and Refrigeration Plant (H&RP). The Supplemental Environmental Assessment dated July 1999 is incorporated herein.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance (9000-0001).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning Standard Form 28, Affidavit of Individual Surety. A request for public comments was published at 66 FR 32606, June 15, 2001. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before September 7, 2001.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat, 1800 F Street, NW, Room 4035, Washington, DC 20405. Please cite OMB Control No. 9000-0001, Standard Form 28, Affidavit of Individual Surety, in all correspondence.
Beverly Cromer, Acquisition Policy Division, GSA (202) 208-6750.
The Affidavit of Individual Surety (Standard Form (SF) 28) is used by all executive agencies, including the Department of Defense, to obtain information from individuals wishing to serve as sureties to Government bonds. To qualify as a surety on a Government bond, the individual must show a net worth not less than the penal amount of the bond on the SF 28. It is an elective decision on the part of the maker to use individual sureties instead of other available sources of surety or sureties for Government bonds. We are not aware if other formats exist for the collection of this information.
The information on SF 28 is used to assist the contracting officer in determining the acceptability of individuals proposed as sureties.
The annual reporting burden is estimated as follows:
Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0001, Standard Form 28, Affidavit of Individual Surety, in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance (9000-0029).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning extraordinary contractual action requests. A request for public comments was published at 66 FR
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before September 7, 2001.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Beverly Cromer, Acquisition Policy Division, GSA (202) 208-6750.
This request covers the collection of information as a first step under Public Law 85-804, as amended by Public Law 93-155 and Executive Order 10789 dated November 14, 1958, that allows contracts to be entered into, amended, or modified in order to facilitate national defense. In order for a firm to be granted relief under the Act, specific evidence must be submitted which supports the firm's assertion that relief is appropriate and that the matter cannot be disposed of under the terms of the contract.
The information is used by the Government to determine if relief can be granted under the Act and to determine the appropriate type and amount of relief.
The annual reporting burden is estimated as follows:
Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVP), Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0029, Extraordinary Contractual Action Requests, in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance (9000-0037).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning Presolicitation Notice and Response, Standard Form 1417. A request for public comments was published at 66 FR 30718, June 7, 2001. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before September 7, 2001.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Ralph DeStefano, Acquisition Policy Division, GSA (202) 501-1758.
Presolicitation notices are used by the Government for several reasons, one of which is to aid prospective contractors in submitting proposals without undue expenditure of effort, time, and money. The Government also uses the presolicitation notices to control printing and mailing costs. The presolicitation notice response is used to determine the number of solicitation documents needed and to assure that interested offerors receive the solicitation documents. The responses are placed in the contract file and referred to when solicitation documents are ready for mailing. After mailing, the responses remain in the contract file and become a matter of record.
The annual reporting burden is estimated as follows:
Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVP), Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0037, Presolicitation Notice and Response, Standard Form 1417, in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance (9000-0078).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning the make-or-buy program. A request for public comments was published at 66 FR 30893, June 8, 2001. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before September 7, 2001.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405.
Jerry Olson, Acquisition Policy Division, GSA (202) 501-3221.
Price, performance, and/or implementation of socio-economic policies may be affected by make-or-buy decisions under certain Government prime contracts. Accordingly, Section 15.407-2, Make-or-Buy Programs, of the FAR—
(i) Sets forth circumstances under which a Government contractor must submit for approval by the contracting officer a make-or-buy program, i.e., a written plan identifying major items to be produced or work efforts to be performed in the prime contractor's facilities and those to be subcontracted;
(ii) Provides guidance to contracting officers concerning the review and approval of the make-or-buy programs; and
(iii) Prescribes the contract clause at FAR 52.215-9, Changes or Additions to Make-or-Buy Programs, which specifies the circumstances under which the contractor is required to submit for the contracting officer's advance approval a notification and justification of any proposed change in the approved make-or-buy program.
The information is used to assure the lowest overall cost to the Government for required supplies and services.
The annual reporting burden is estimated as follows:
Respondents:
Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVP), Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0078, Make-or-Buy Program, in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance (9000-0033).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat has submitted to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning contractor's signature authority. A request for public comments was published at 66 FR 33668, June 25, 2001. No comments were received.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before September 7, 2001.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405.
Laura Smith, Acquisition Policy Division, GSA, (202) 208-7279.
Entities doing business with the Government must identify those persons who have the authority to bind the principal. This information is needed to ensure that Government contracts are legal and binding. The information is used by the contracting officer to ensure that authorized persons sign contracts.
The annual reporting burden is estimated as follows:
Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0033, Contractor's Signature Authority, in all correspondence.
National Reconnaissance Office, DoD.
Notice to add a system of records.
The National Reconnaissance Office is adding a system of records notice to its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on September 7, 2001 unless comments are received which result in a contrary determination.
National Reconnaissance Office, 14675 Lee Road Chantilly, VA 20151-1715.
Ms. Barbara Freimann at (703) 808-5029.
The National Reconnaissance Office systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 19, 2001, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Inspector General Investigative Records.
Office of the Inspector General, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Persons who are interviewed by or provide information to the National Reconnaissance Office (NRO) Office of Inspector General, and persons involved with or who have knowledge about a matter being investigated or reviewed by the Office of the Inspector General. These persons include NRO civilian and military personnel assigned or detailed to the NRO, persons with a contractual relationship with the NRO or who perform work under NRO contracts.
Reports of investigations, reports of interviews, signed statements, correspondence, government forms, internal NRO memoranda.
National Security Act of 1947, as amended, 50 U.S.C. 401
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To appropriate officials within the Intelligence Community (Central Intelligence Agency, other Federal departments, agencies, inspectors generals and elements thereof) to the extent that the records concern NRO funds, personnel, property programs, operations, or contracts or when relevant to the official responsibilities of those organizations and entities; regarding personnel matters; and to evaluate current and proposed programs policies and activities, selected assignments and requests for awards or promotions.
To Federal, state, local, foreign or international agencies, or to an individual or organization, when necessary to elicit information relevant to an NRO Inspector General investigation, inquiry, decision or recommendation.
To the Department of Justice or any other agency responsible for representing NRO interests in connection with a judicial, administrative, or other proceeding.
To the Department of Justice or other Intelligence Community Inspector General or agency to the extent necessary to obtain information or advice on any matter relevant to an Office of Inspector General investigation;
To the President's Foreign Intelligence Advisory Board, and the Intelligence Oversight Board, and any successor organizations, when requested by those entities, or when the Inspector General determines that disclosure will assist in the performance of their oversight functions; and
The DoD “Blanket Routines Uses” published at the beginning of the NRO compilation of systems of records notices apply to this system.
Paper files and automated information system, maintained in computers and computer output products
Name or Social Security Number.
Records are stored in a secure, gated facility, guard, badge, and password access protected. Access to and use of these records are limited to the Inspector General staff whose official duties require such access.
Records are permanently maintained by NRO.
Inspector General, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include the individual's full name and any aliases or nicknames, address, Social Security Number, current citizenship status, date and place of birth, and other information identifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)’.
If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)’.
Individuals seeking to access information about themselves contained in this system should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include the individual's full name, and any aliases or nicknames, address, Social Security Number, current citizenship status, date and place of birth, and other information identifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)’.
If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)’.
The NRO rules for accessing records, for contesting contents and appealing initial agency determinations are published in NRO Directive 110-3A and NRO Instruction 110-5A; 32 CFR part 326; or may be obtained from the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Information is supplied by the individual, parties other than the individual, as well as by personal records and documentation; subjects and suspects of NRO investigations; interview of witnesses, victims, and confidential sources. All types of records and information maintained by all levels of government, private industry, and non-profit organizations reviewed during the course of the investigation or furnished the NRO; and any other type of record deemed necessary to complete the NRO investigation.
Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws.
Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
An exemption rule for this record system has been promulgated in accordance with the requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 326. For additional information contact the system manager.
Department of the Air Force, DoD.
Notice to Add a Record System.
The Department of the Air Force proposes to add a system of records notice to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The actions will be effective on September 7, 2001 unless comments are received that would result in a contrary determination.
Send comments to the Air Force Access Programs Manager, Headquarters, Air Force Communications and Information Center/INC, 1250 Air Force Pentagon, Washington, DC 20330-1250.
Mrs. Anne P. Rollins at (703) 588-6187.
The Department of the Air Force's record system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 522a(r) of the Privacy Act of 1974, as amended, was submitted on July 19, 2001, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Leave Request and Approval System (LeaveWeb)
Base Financial Services Offices (FSO) at Air Force installations and units.
All Air Force active duty personnel.
Name, Social Security Number, home address and phone, unit, leave address and emergency telephone number, leave days requested, leave days taken, leave balance, grade, and approving official's name.
10 U.S.C. 8013, Secretary of the Air Force; implemented by Air Force Instruction 36-3003, Military Leave Program; and E.O. 9397 (SSN).
To document the request and authorization of military leave, and the administration of leave, to document the start and stop of such leave; record address and telephone number where the member may be contacted while on leave; and certify leave days chargeable to the member.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records, or information contained therein, may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the American Red Cross for emergency assistance to members or dependents and relatives in emergency conditions.
The DoD “Blanket Routine Uses” set forth at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Maintained on computer and computer output products.
Retrieved by name and Social Security Number.
Records are accessed by custodians of the record system and by person(s) responsible for servicing the record system in performance of their official duties who are properly authorized. When under direct physical control by authorized individuals, records will be electronically stored in computer storage devices protected by computer system software. Computer terminals are located in supervised areas with terminal access controlled by password or other user code systems.
Disposition pending (until NARA disposition is approved, treat as permanent).
Chief, Programs and Analysis Division, Financial Management Directorate Headquarters Air Mobility Command, (HQ AMC/FMP), 402 Scott Drive, Unit 1K1, Scott Air Force Base, IL 62225-5300.
Individuals seeking to determine whether this system of records contains information on themselves should address inquiries to their unit administrator, or the base financial services office customer service desk.
Written requests must contain the full name, Social Security Number, signature of the requester and duty phone.
Individuals seeking to access records about themselves contained in this system should address written requests to their unit administrator, or the base financial services office customer service desk.
Written requests must contain the full name, Social Security Number, signature of the requester and duty phone.
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Fore Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Records in this system are obtained from the Defense Joint Military Pay System and from the individual.
None.
Department of the Air Force, DoD.
Notice to add a record system
The Department of the Air Force proposes to add a system of records notice to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The actions will be effective on September 7, 2001 unless comments are received that would result in a contrary determination.
Send comments to the Air Force FOIA and Privacy Manager, Policy and Plans Directorate, Principal Deputy Assistant Secretary of the Air Force for Business and Information Management, CIO-BIM/P, 1250 Air Force Pentagon, Washington, DC 20330-1250.
Mrs. Anne P. Rollins at (703) 588-6187.
The Department of the Air Force's record system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 522a(r) of the Privacy Act of 1974, as amended, was submitted on July 19, 2001, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Civil Aircraft Landing Permit Case Files.
Associate Directorate for Civil Aviation, Directorate of Operations and Training, Deputy Chief of Staff for Air and Space Operations, 1480 Air Force Pentagon, Washington, DC 20330-1480.
Civil aircraft owners and/or operators.
A revocable license for use of Air Force real property consisting of a Civil Aircraft Certificate of Insurance, a Civil Aircraft Landing Permit, and a Civil Aircraft Hold Harmless Agreement.
49 U.S.C. 44502, General facilities and personnel authority, as implemented by Air Force Instruction 10-1001, Civil Aircraft Landing Permits.
To maintain a directory on those individuals who are authorized to operate civil aircraft at Air Force airfields.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DOD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Maintained in file folders.
Retrieved by name.
Records are accessed by persons responsible for processing applications to operate civil aircraft on Air Force airfields in performance of official duties and by other authorized personnel who are properly screened and cleared for need-to-know. Records are stored in cabinets in a vaulted office.
Expired records are destroyed by tearing into pieces and burning.
Chief, Permits and Agreements, Civil Aviation Office, Directorate for Civil Aviation, Directorate of Operations and Training, Deputy Chief of Staff for Air and Space Operations, 1480 Air Force Pentagon, Washington, DC 20330-1480.
Individuals seeking to determine whether information about themselves should address inquiries to the Directorate for Civil Aviation, Directorate of Operations and Training, Deputy Chief of Staff for Air and Space Operations, 1480 Air Force Pentagon, Washington, DC 20330-1480.
Individuals seeking to determine whether information about themselves should address inquiries to the Directorate for Civil Aviation, Directorate of Operations and Training, Deputy Chief of Staff for Air and Space Operations, 1480 Air Force Pentagon, Washington, DC 20330-1480.
The Air Force rules for accessing records and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Information is provided by the applicant and insurance company.
None.
Department of the Army, DoD.
Notice of availability.
This announces the availability of the FEIS that assesses the effects of future development and operations at Fort Meade on the natural and human environment.
The Proposed Action is the preferred alternative of the FEIS, and includes future development and operations of Fort Meade's Real Property Master Plan expected to occur on the installation between 2001 and 2005. The Proposed Action identifies 11 projects as being representative of the expected build out during this time. These consist of constructing new facilities that would consolidate tenants from dilapidated World War II structures and off-post leased facilities into more cost efficient and effective facilities; and demolition and construction of barracks and associated dining, headquarters and operations facilities. Other alternatives considered by the FEIS include the No Action Alternative and Alternative A. The No Action Alternative is defined as the normal daily operations at Fort Meade and adjacent areas as of 1999. Alternative A consists of constructing 9 of 11 projects purposed by the Proposed Action, and excludes the 2 out-year projects least likely to occur.
Written comments received within 30 days of the publication of this Notice of Availability by the Environmental Protection Agency in the
To obtain a copy of the FEIS, write to Commander, Fort George G. Meade, ATTN: ANME-PWE (Mr. Jim Gebhardt), Bldg. 239, 2
Mr. Jim Gebhardt, Environmental Engineer, Fort Meade Directorate of Public Works, Environmental Management Office at (301) 677-9365.
The FEIS concluded that the cumulative impacts of all past, present and reasonably foreseeable future actions would have a significant impact on traffic and air quality in the study area. Whereas the population in the area immediately surrounding Fort Meade is expected to continue its historical growth rate, this rate is minimal compared to the growth in population and activity in the Region of Influence (Anne Arundel and Howard Counties), which is expected to exceed the average annual rate in Maryland of 0.6 percent. The Government concludes that the contribution of Fort Meade is small relative to the regional air quality and traffic problems. The Government further concludes that it is reasonable to proceed with the Proposed Action given Fort Meade's commitment to intensify efforts to work in partnership with the state and others to address the larger traffic and air quality issues in the region.
Fort Meade is currently undertaking four initiatives that will help mitigate the adverse air quality impacts in the region: (1) Conversion of existing oil-fired heating systems to natural gas, (2) use of vehicles powered by natural gas, (3) installation of more energy—efficient devices, and (4) fostering an extensive tree planting and reforestation program. To address traffic impacts, Fort Meade is considering encouraging the use of alternative transportation (e.g. carpooling and flextime), although major rail or bus lines do not currently service the installation. In addition, the construction of the State Route 198 by-pass onto Fort Meade via the former
Other resources that would be measurably affected by the Proposed Action or Alternative A are water quality (by stormwater runoff), utility systems infrastructure, and noise. Considering the best management practices planned by Fort Meade to address these effects, no significant impacts to these resources from the Proposed Action, Alternative A or cumulative effects of other actions are expected to occur. The completion of the 11 projects under the Proposed Action would increase Fort Meade's annual economic contribution to the Region of influence.
Department of the Army, DoD.
Notice of intent.
The Department of Army announces its intent to prepare a site-specific EIS on the potential impacts of the destruction of the non-stockpile chemical warfare materiel (CWM) stored at Pine Bluff Arsenal and to initiate the public scoping process for the EIS. The EIS will examine potential environmental impacts of the alternatives of various destruction options. The destruction activities proposed for Pine Bluff Arsenal will have the following functions: (1) Munitions Accessing: Various accessing technologies will be assessed to include Drill and Drain, Sawing, Shearing and Reverse Assembly; (2) Chemical Agent Treatment: Technologies under consideration for agent destruction include Chemical Neutralization and Incineration; (3) Non-Agent Treatment: Industrial chemicals and binary agent precursors may be treated with the same technologies as the agents or neutralized agent waste, or may be shipped without processing to a Treatment, Storage, and Disposal Facility; (4) Munition Body Component and Explosives Treatment: Munition body decontamination and destruction technologies under consideration include Detonation, Shredding, Cutting (Saws and Fluid Jet), Plasma Arc, and Demilitarization in a Deactivation Furnace; (5) Post-treatment/Disposal of Liquid Waste: Technologies under consideration for post-treatment and disposal of liquid waste include Bio-Treatment, Plasma Arc, Gas Phase Chemical Reduction, Supercritical Water Oxidation, Incineration, Solidification and Stabilization, and Processing at a Treatment, Storage, and Disposal Facility; (6) Treatment/Disposal of Solid Waste: Technology under consideration for treatment/disposal of solid wastes include Plasma Arc, Gas Phase Chemical Reduction, and Landfilling.
The alternatives to be analyzed in the EIS are: (1) Building one or more new facilities, (2) using the Pine bluff Chemical Agent Destruction Facility currently under construction, (3) bringing the mobil treatment systems currently under development by the Product Manager for Non-Stockpile Chemical Materiel to Pine Bluff Arsenal and using them, (4) using non-developmental items, and (5) no-action (continued storage of the non-stockpile chemical warfare materiel at the Arsenal).
Written comments may be forwarded to the Program Manager for Chemical Demilitarization, Public Outreach and Information Office (ATTN: Mr. Jeff Lindblad), Aberdeen Proving Ground, MD 21010-4005.
Mr. Jeff Lindblad at 410-436-4555, by fax at 410-436-5122, or by email at jeffrey.lindblad@pmcd.apgea.army.mil.
In compliance with the National Environmental Policy Act (Title 40, CFR Parts 1500-1508), the Army will prepare an EIS to assess the environmental impacts of the destruction of the non-stockpile chemical warfare materiel stored at the Pine Bluff Arsenal. Public Law and international treaty mandate the destruction of most of the non-stockpile chemical warfare materiel. This EIS will analyze the potential impacts of the various methods of destroying the items that are not part of the unitary stockpile. This site-specific EIS continues the process that began when Congress established the Chemical Demilitarization Program in Public Law 99-145 (1985).
The specific purpose of the current analysis is to determine the environmental impacts of the alternatives that could accomplish the destruction of the non-stockpile chemical warfare materiel currently stored at the Arsenal, including the alternatives of using the technologies successfully demonstrated by the Chemical Stockpile Disposal Project, the Alternative Technologies and Approaches Project, the Assembled Chemical Weapons Assessment program, and any non-developmental items.
The Army will hold scoping meetings to aid in determining the significant issues related to the proposed action which will be addressed in the EIS. The scoping process will incorporate public participation, including Federal, State of Arkansas, and local agencies, as well as residents within the affected environment. The dates, times, and locations of scoping meetings will be announced in appropriate news media at least 15 prior to these meetings.
Department of the Army, DOD.
Notice to alter a system of records.
The Department of the Army is proposing to alter three system of records notice to its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. The alterations expand the categories of individuals covered.
This proposed action will be effective without further notice on September 7, 2001 unless comments are received which result in a contrary determination.
Records Management Division, U.S. Army Records Management and Declassification Agency, Attn: TAPC-PDD-RP, Stop 5603, 6000 6th Street, Ft. Belvoir, VA 22060-5603.
Ms. Janice Thornton at (703) 806-4390 or DSN 656-4390 or Ms. Christie King at (703) 806-3711 or DSN 656-3711.
The Department of the Army systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, were submitted on July 19, 2001, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Legal Assistance Files (August 3, 1993, 58 FR 41253).
Delete entry and replace with ‘Active duty, retired and reserve (on active duty) components of the Armed Forces and their family members. Department of Defense civilian employees outside the United States or who are serving with or accompanying United States Armed Forces outside the United States in a combat zone, contingency operation, deployed by designation as “mission essential” or “emergency essential”, legal assistance is limited, as determined by the supervising attorney, to matters that related to processing for employment.’
Delete entry and replace with ‘10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 1044, Legal Assistance; Army Regulation 27-1, The Army Legal Assistance Program; and E.O. 9397 (SSN).”
Delete entry and replace with ‘Paper records in file folders and electronic storage media.’
Delete entry and replace with ‘By Social Security Number and client's surname.’
Delete entry and replace with ‘Legal assistance records maintained for 5 years then destroy.’
Legal Assistance Files.
Army Legal Assistance Policy Division, Office of the Judge Advocate General, Headquarters, Department of the Army, Washington, DC 20310-2200; Staff Judge Advocate offices at Army commands, installations, and activities. Official mailing addresses are published as an appendix to the Army’s compilation of record system notices.
Active duty or retired military personnel and/or their dependents.
Individual's name, grade/rank, Social Security Number, organization, and details of problem/incident/matter on which legal assistance is sought. Records may be in the form of correspondence, memoranda, opinions of legal assistance officers, and may include interviews, summary of problems considered, advice rendered, referrals made, and documents created as a result of assistance provided.
10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 1044, Legal Assistance; Army Regulation 27-1, The Army Legal Assistance Program; and E.O. 9397 (SSN).
To respond to inquiries and settle issues; for management and statistical reports.
Routine uses of records maintained in the system, including categories of users and the purposes of such uses:
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
Information from this system of records may be disclosed to law students participating in a volunteer legal support program approved by the Judge Advocate General of the Army.
The DoD ‘Blanket Routine Uses’ published at the beginning of the Army's compilation of systems of records notices also apply to this system.
Paper records in file folders and electronic storage media.
By Social Security Number and client's surname.
Records are maintained in secured buildings, accessible only to designated authorized personnel who are properly instructed in the permissible use of the information.
Legal assistance records maintained for 5 years then destroy.
Chief, Army Legal Assistance Policy Division, Office of the Judge Advocate General, 1777 North Kent, Arlington, VA 22209-2194; and the Staff Judge Advocates of organizations listed in the address directory published as an appendix to the Army's compilation of record system notices.
Individuals seeking to determine if information about themselves is contained in this record system may inquire of the Staff Judge Advocate of the installation or command where legal assistance was sought.
Individual should provide full name, Social Security Number, and any details that will assist in locating the record.
Individuals seeking access to records about themselves contained in this record system may inquire of the Staff Judge Advocate of the installation or command where legal assistance was sought.
Individual should provide full name, Social Security Number, and any details that will assist in locating the record.
The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21; 32 CFR part 505; or may be obtained from the system manager.
From the individual, his/her attorney, Army records and reports.
None.
Non-appropriated Fund Employee Insurance and Retirement Files (February 22, 1993, 58 FR 10002).
Delete entry and replace with ‘Army non-appropriated fund (NAF) and appropriated fund employees who participate in the NAF Group Insurance, retirement and 401k plans.
Delete entry and replace with ‘Monthly and cumulative insurance and retirement enrollment, dis-enrollment, changes and deductions for each employee; name and Social Security Number.’
Delete entry and replace with ‘10 U.S.C. 3013, Secretary of the Army; Pub. L. 101-508, Portability of Benefits for NAF Employees Act of 1990; Pub. L. 104-106, Defense Authorization Act of 1996; 26 U.S.C. 401, Qualified Pension, Profit-sharing, and Stock Bonus Plans; Army Regulation 215-3, Non-appropriated Funds and Related Activities Personnel Policies and Procedures; and E.O. 9397 (SSN).”
Delete entry and replace with ‘Electronic storage media, paper records and computer discs.’
Delete entry and replace with ‘Authorized timekeeper lists records are maintained until super-session, then destroyed. Employee benefits and insurance files maintained by office with Army-wide responsibility are maintained for 65 years after employees’ final separation from Federal service.’
Non-appropriated Fund Employee Insurance and Retirement Files.
U.S. Army Community and Family Support Center, 4700 King Street, Alexandria, VA 22331-0500.
Army non-appropriated fund (NAF) employees who participate in the NAF Group Insurance and Retirement Plan.
Monthly and cumulative insurance and retirement enrollment, dis-enrollment, changes and deductions for each employee; name and Social Security Number.
10 U.S.C. 3013, Secretary of the Army; Pub. L. 101-508, Portability of Benefits for NAF Employees Act of 1990; Pub. L. 104-106, Defense Authorization Act of 1996; 26 U.S.C. 401, Qualified Pension, Profit-sharing, and Stock Bonus Plans; Army Regulation 215-3, Non-appropriated Funds and Related Activities Personnel Policies and Procedures; and E.O. 9397 (SSN).
To substantiate initial enrollment and subsequent change in the NAF Group Insurance and Retirement Plan; to verify monthly deductions and to compute annuities, refunds, and death benefits.
Routine uses of records maintained in the system, including categories of users and the purposes of such uses: In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ set forth at the beginning of the Army's compilation of systems of records notices also apply to this system.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to ‘consumer reporting agencies’ as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701 (A)(3)). The purpose of this disclosure is to aid in the collection of outstanding debts owed to the Federal government; typically to provide an incentive for debtors to repay delinquent Federal government debts by making these debts part of their credit records.
Disclosure of records is limited to the individual's name, address, Social Security Number, and other information necessary to establish the individual's identity; the amount, status, and history of the claim; and the agency program under which the claim arose. This disclosure will be made only after the procedural requirement of 31 U.S.C. 3711(f) has been followed.
Electronic storage media, paper records and computer discs.
By individual's surname and Social Security Number.
Records are located in controlled areas within building having security guards; information is accessed only by individuals who are properly cleared and trained and have need therefor in the performance of official duties.
Authorized timekeeper lists records are maintained until super-session, then destroyed. Employee benefits and insurance files maintained by office with Army-wide responsibility are maintained for 65 years after employees' final separation from Federal service.
Commander, U.S. Army Community and Family Support Center, 4700 King Street, Alexandria, VA 22331-0500.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Commander, U.S. Army Community and Family Support Center, 4700 King Street, Alexandria, VA 22331-0500.
Individual should provide the full name, Social Security Number, NAF activity where employed, and signature.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, U.S. Army Community and Family Support Center, 4700 King Street, Alexandria, VA 22331-0500
Individual should provide the full name, Social Security Number, NAF activity where employed, and signature.
The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-
From the individual and NAF personnel officers.
None.
Enlisted Personnel Management Information System (EPMIS) (July 31, 1998, 63 FR 40894).
Delete entry and replace with ‘Director, Enlisted Personnel Management Directorate, 2461 Eisenhower Avenue, Alexandria, VA 22332-0400.
Portions of the Enlisted Evaluation System is maintained at U.S. Army Enlisted Records and Evaluation Center, 8899 East 56th Street, Indianapolis, IN 46249-5301.’
Delete entry and replace with ‘Enlisted Active duty, Army National Guard, Army Reserve personnel on active duty. Initial Active duty training personnel undergoing basic training or advanced individual training; former military personnel who are applicants for enlistment in grade E-1 and E-9.’
Delete entry and replace with ‘The Personnel Data Base (PERD TAPDB-AE) contains name, Social Security Number, sex, race, citizenship, religion, marital status, dependents, date and place of birth, residence, assignments, enlistment commitments by military occupational specialty (MOS), civilian acquired skills, advance individual training start and graduation date, aptitude area score, physical profile, ethnic group, grade/date of rank, enlistment and service promotion qualifications, military occupational skill code, education and training, aptitude, separation, retirement, and mailing address.
Recruit Quota system (REQUEST) contains selected information from PERD TAPDB-AE, soldier’s education level and school subject, driver's license data, color vision test data, aptitude battery (ASVAB) scores, defense language aptitude battery score, and medical profile data (PULSHES). Other information contained within includes type, date, and term of enlistment, primary enlistment option, initial processing and training locations, and dates of training. Finally the system identifies the location military entrance processing station that created the accession record, recruiter identification and recruiting are credit code.
Enlisted Year Management File (RETAIN) contains select information from PERSDB TAPDB-AE, reenlistment reclassification/and Reserve component transfer action, basic active service data, estimated termination of service, reenlistment date, civilian education, career management field, primary military occupational specialty code and date of award, source of new Primary Occupational Specialty Code, training information, status of application, assignment code, date of last status change, current location, reservation control number, security investigation status and reenlistment term.’
Delete entry and replace with ‘Offices having Army-wide responsibility; cut off annually, retain for 1 year in current file area, then retire to Washington National Records Center, destroy 25 years after cut-off.
Military strength monitors at installations and major commands, destroy after 2 years.’
Delete entry and replace with ‘Director, Enlisted Personnel Management Directorate, 2461 Eisenhower Avenue, Alexandria, VA 22332-0400.’
Delete entry and replace with ‘From the individual, from Army automated systems, Military Entrance Processing Command and Army Education Centers.’
Enlisted Personnel Management Information System (EPMIS).
Director, Enlisted Personnel Management Directorate, 2461 Eisenhower Avenue, Alexandria, VA 22332-0400.
Portions of the Enlisted Evaluation System is maintained at U.S. Army Enlisted Records and Evaluation Center, 8899 East 56th Street, Indianapolis, IN 46249-5301.
Enlisted Active duty, Army National Guard, Army Reserve personnel on active duty. Initial Active duty training personnel undergoing basic training or advanced individual training; former military personnel who are applicants for enlistment in grade E-1 and E-9.
The Personnel Data Base (PERD TAPDB-AE) contains name, Social Security Number, sex, race, citizenship, religion, marital status, dependents, date and place of birth, residence, assignments, enlistment commitments by military occupational specialty (MOS), civilian acquired skills, advance individual training start and graduation date, aptitude area score, physical profile, ethnic group, grade/date of rank, enlistment and service promotion qualifications, military occupational skill code, education and training, aptitude, separation, retirement, and mailing address.
Recruit Quota system (REQUEST) contains selected information from PERD TAPDB-AE, soldier’s education level and school subject, driver's license data, color vision test data, aptitude battery (ASVAB) scores, defense language aptitude battery score, and medical profile data (PULHES). Other information contained within includes type, date, and term of enlistment, primary enlistment option, initial processing and training locations, and dates of training. Finally the system identifies the location military entrance processing station that created the accession record, recruiter identification and recruiting are credit code.
Enlisted Year Management File (RETAIN) contains select information from PERSDB TAPDB-AE, reenlistment reclassification/and Reserve component transfer action, basic active service data, estimated termination of service, reenlistment date, civilian education, career management field, primary military occupational specialty code and date of award, source of new Primary Occupational Specialty Code, training information, status of application, assignment code, date of last status change, current location, reservation control number, security investigation status and reenlistment term.
10 U.S.C. 3013, Secretary of the Army; Army Regulation 600-8-6, Personnel Accounting and Strength Reporting; and E.O. 9397 (SSN).
To accomplish personnel management, strength accounting, and manpower management actions.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
Information may be disclosed to the Social Security Administration to verify Social Security Numbers.
The DoD ‘Blanket Routine Uses’ set forth at the beginning of the Army's compilation of systems of records notices also apply to this system.
Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:
Computer magnetic tapes and discs; computer printouts.
By name of individual and Social Security Number.
Information is protected by physical security devices, guards, computer hardware and software safeguard features, personnel clearances and unique passwords to PERDB TAPDB-AE. A tiered security system for access to enlisted data provided via Interactive Voice Response Systems based on the sensitivity of the data items provided, encryption of data transmitted via networks, controlled access to operator rooms and controlled output distribution.
Offices having Army-wide responsibility; cut off annually, retain for 1 year in current file area, then retire to Washington National Records Center, destroy 25 years after cut-off. Military strength monitors at installations and major commands, destroy after 2 years.
Director, Enlisted Personnel Management Directorate, 2461 Eisenhower Avenue, Alexandria, VA 22332-0400.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Commander, U.S. Total Army Personnel Command, Enlisted Personnel Management Directorate, 2461 Eisenhower Avenue, Alexandria, VA 223332-0400.
Individual should provide the full name, Social Security Number, current address, and identify the specific category of record involved.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, U.S. Total Army Personnel Command, Enlisted Personnel Management Directorate, 2461 Eisenhower Avenue, Alexandria, VA 223332-0400.
Individual should provide the full name, Social Security Number, current address, and identify the specific category of record involved.
Blanket requests for information from this consolidated system will not be accepted. If awaiting active duty, specify the date thereof; if separated, individual must state date of separation.
Selected data from Personnel Data Base (PERDB-TAPDF-AE) is also accessible to record subjects through an Interactive Voice Response System (IVRS).
The Army's rules for accessing records, contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21; 32 CFR part 505; or may be obtained from the system manager.
From the individual, from Army automated systems, Military Entrance Processing Command and Army Education Centers.
None.
Department of the Navy, DOD.
Notice of record of decision.
The Department of the Navy proposes replacement of two existing World War II era piers at Naval Station, San Diego, California, in order to more efficiently meet berthing, logistic and maintenance requirements for ships homeported in San Diego. After carefully weighing the operation needs, environmental impacts, and cost implications of the proposed action, the Department of the Navy announces its decision to demolish existing piers 10 and 11 and construct a single-deck, pile-supported replacement pier.
Ms. Grace S. Penafuerte, Naval Facilities Engineering Command, Southwest Division, 2585 Callagan Highway, Building 99, San Diego, CA 92136-5198; telephone 619-556-7773; fax 619-556-8929; or e-mail.
The text of the entire Record of Decision (ROD) is provided as follows:
The Department of the Navy (DON), pursuant to Section 102(2)(c) of the National Environmental Policy Act of 1969 (42 U.S.C. 4331
After carefully weighing operational requirements, environmental impacts, and costs, I have selected Alternative 1 as the best way to achieve the DON's proposed action. In evaluating the alternatives for pier replacement and dredging at Naval Station San Diego, I considered the following: berthing,
Implementation of Alternative 1 will include the following: (1) demolition of existing piers 10 and 11; (2) construction of a single-deck, pile-supported replacement pier, 120 feet wide and 1,500 feet long; (3) dredging of the area under and surrounding the replacement pier to a depth of 37 feet below mean lower low water, with an estimated total dredge volume of 763,600 cubic yards; (4) disposal of approximately 715,600 cubic yards of dredged material suitable for ocean disposal at the LA-5 Ocean Dredged Material Disposal Site; and (5) disposal of approximately 48,000 cubic yards of unsuitable dredged material at one or more licensed upland disposal sites after the dredged material is dewatered at a Confined Disposal Facility at Naval Station San Diego.
Direct, indirect and cumulative impacts of the proposed action and alternatives on water resources, biological resources, topography/geology, air quality, health and safety, land use, noise, transportation, aesthetics, cultural resources, utilities, and the local economy were analyzed in the EIS. Environmental justice implications were analyzed as well. The DON determined that all potential environmental impacts from the proposed project would be less than significant, and that there would be no disproportionate adverse effects to minority or low income populations. The following paragraphs summarize impacts on environmental resources.
Minor, localized impacts on water quality will result from resuspension of bottom sediments during demolition and construction activities. In addition, minor, localized reduction in water circulation will result from installation of pier pilings. A storm water pollution prevention plan will minimize impacts associated with soil erosion or spillage of hazardous substances during the 24-month construction period. Implementation of Best Management Practices specific to pier activities and incorporation of measures such as filtration devices will minimize potential for adding pollutants to stormwater runoff. California Coastal Commission has concurred that the proposed project is consistent, to the maximum extent practicable, with enforceable policies of the California Coastal Program. The DON will obtain a dredging and disposal permit from the Corps of Engineers, and a Water Quality Certificate from the regional water quality board.
During construction, there will be a loss of less than two acres of foraging and resting habitat for marine birds. Disturbance and permanent loss of some marine plants and animals and their habitat will result from dredging and pier construction over the same localized area. Habitat characteristics, as well as limited context and intensity of potential effects result in less than significant impacts. While the analysis in the EIS concluded that there would be no significant impacts, the DON has agreed to implement two enhancement measures as part of the proposed action: (1) a study of California least tern foraging success around manmade, in-water structures in San Diego Bay and (2) creation of two fish habitat structures at the Naval Amphibious Base Enhancement Area using concrete from existing piers. Implementation of these enhancement measures is expected to advance ongoing efforts to protect the marine environment in San Diego Bay.
Dredge equipment is expected to produce the largest impact on ambient air quality, emitting 33.5 tons of nitrogen oxides, but will not trigger dispersion modeling analysis for major sources. Alternative 1 will not contribute to an exceedance of an ambient air quality standard, e.g. de minimis thresholds for nitrogen oxides, volatile organic compounds, and carbon monoxide.
Vehicular volume from Alternative 1 will be less than 6 percent of the traffic volume on 8th Street (to and from Naval Station San Diego's Gate 9) and less than 2 percent of the volume on Interstate 5. Implementation of the DON's Traffic Control Plan will preclude truck movements on 8th Street near Gate 9 during peak commuting hours, prohibit the use of oversized construction vehicles on public roads, and designate specific truck traffic routes.
Ongoing operational utility demands will be similar to those at existing piers and will not use a substantial portion of remaining capacity. The replacement pier will incorporate and connect to an existing oily wastewater treatment system used at adjacent piers. Stormwater runoff will be accommodated by the existing basewide system, will be covered by the existing basewide storm water pollution prevention plan, and will incorporate best management practices. Pier construction will include a stormwater filtration system.
The DON received no comments on the FEIS.
After carefully weighing all of the information and analysis presented during the EIS process, I have determined that Alternative 1 best minimizes environmental impacts while meeting operational requirements of modern ships homeported in the San Diego region in a cost-effective manner.
Department of the Navy, DOD.
Notice of open meeting.
The purpose of these meetings is to elicit the advice of the board on the Naval Service's Postgraduate Education Program. The board examines the effectiveness with which the Naval Postgraduate School is accomplishing its mission. To this end, the board will inquire into the curricula, instruction, physical equipment, administration, state of morale of the student body, faculty, and staff; fiscal affairs; and any other matters relating to the operation of the Naval Postgraduate School as the board considers pertinent. These meetings will be open to the public.
A meeting will be held on Monday, September 24, 2001, from 8:30 a.m. to 4 p.m. and on Tuesday, September 25, 2001, from 8 a.m. to 12 p.m.
These meetings will be held at the Naval Postgraduate School,
Mrs. Jaye Panza, Naval Postgraduate School, 1 University Circle, Monterey, CA, 93943-5000, telephone number (831) 656-2514.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before October 9, 2001.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Responses: 16,807,154
Burden Hours: 4,462,468
Requests for copies of the proposed information collection request may be accessed from
Take notice than on August 1, 2001, Corn Belt Energy Corp. (Corn Belt) tendered for filing with the Federal Energy Regulatory Commission (Commission) a complaint against Soyland Power Cooperative, Inc., pursuant to 18 CFR 385.206 of the Commission's Rules of Practice and Procedure.
Any person desiring to be heard or to protest this 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 must be filed on or before August 21, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Answers to the complaint shall also be due on or before August 21, 2001. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on July 27, 2001, Granite State Gas Transmission, Inc. (Granite State) tendered its filing in compliance with the Commission's June 27, 2001 Order on Compliance with Order Nos. 637, 587-G and 587-L.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on July 30, 2001, Kinder Morgan Interstate Gas Transmission LLC (KMIGT) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1-A, the following tariff sheet, proposed to be effective August 1, 2001:
KMIGT states that the above-referenced tariff sheet reflects a negotiated rate contract effective August 1, 2001 and removes a negotiated rate contract which was in effect for the month of July, 2001. This tariff sheet is being filed pursuant to Fourth Revised Volume No. 1-B, Section 36 of KMIGT's FERC Gas Tariff, and the procedures prescribed by the Commission in its December 31, 1996 “Order Accepting Tariff Filing Subject to Conditions”, in Docket No. RP97-81 (77 FERC ¶ 61,350) and the Commission's Letter Orders dated March 28, 1997 and November 30, 2000 in Docket Nos. RP97-81-001, and RP01-70-000, respectively.
KMIGT states that a copy of this filing has been served upon all parties to this proceeding, KMIGT's customers and affected state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on July 30, 2001, Mississippi River Transmission Corporation (MRT) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following tariff sheet to be effective October 1, 2001:
MRT states that the purpose of this filing is to comply with the Commission's order issued June 28, 2001 in Docket No. RP01-292-002.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at http://www.ferc.gov using the “RIMS” link, select “Docket#” and follow the instructions (call 202-208-2222 for assistance). 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 under the “e-Filing” link.
Take notice that an informal settlement conference in this proceeding
Any party, as defined by 18 CFR 385.102(c), or any participant as defined in 18 CFR 385.102(b), is invited to attend. Persons wishing to become a party must move to intervene and receive intervenor status pursuant to the Commission's regulations (18 CFR 385.214).
For additional information, contact Carmen Gastilo at 208-2182 or Dawn K. Martin at 208-0661.
Take notice than on August 1, 2001, Monroe County Electric Coop. (Monroe) tendered for filing with the Federal Energy Regulatory Commission (Commission) a complaint against Soyland Power Cooperative, Inc., pursuant to 18 CFR 385.206 of the Commission's Rules of Practice and Procedure.
Any person desiring to be heard or to protest this 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 must be filed on or before August 21, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Answers to the complaint shall also be due on or before August 21, 2001. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on July 31, 2001, Old Dominion Electric Cooperative (Old Dominion) filed a complaint against PJM Interconnection, L.L.C. (PJM). Old Dominion alleges that it is entitled to receive a credit to its transmission service charge from PJM for the facilities to be paid for and owned by Old Dominion related to the interconnection of Old Dominion's Rock Springs generation project. Old Dominion requests that the Commission direct PJM to provide Old Dominion such credits, and that the Commission direct PJM to modify its open access transmission tariff to provide that in circumstances where the transmission customer and the interconnection customer are the same entity, the transmission customer is entitled to a credit to its transmission service charge in order to recoup the costs paid for interconnection facilities.
Any person desiring to be heard or to protest this 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 must be filed on or before August 20, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Answers to the complaint shall also be due on or before August 20, 2001. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at http://www.ferc.gov using the “RIMS” link, select “Docket#” and follow the instructions (call 202-208-2222 for assistance). 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 under the “e-Filing” link.
Take notice that on July 30, 2001, Trunkline Gas Company (Trunkline) tendered for filing its Refund Report pursuant to Article III, Section 5 of the Stipulation and Agreement dated January 29, 2001.
Trunkline states that pursuant Article III, Section 5 of the Settlement it distributed refunds on June 29, 2001 for the period August 1, 1996 through April 30, 2001.
Trunkline further states that pursuant to Article III, Section 5(d) of the of the Settlement, it is submitting its a Refund Report which consists of the following:
Trunkline states that copies of the transmittal letter and Appendices A and B of the filing are being served on all affected customers, parties to the proceeding in Docket No. RP96-129-000 and applicable state regulatory agencies.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before August 9, 2001. Protests will be considered by the
Take notice that the following filings have been made with the Commission:
Take notice that on July 27, 2001 Florida Power & Light Company (FPL) tendered for filing with the Federal Energy Regulatory Commission (Commission) proposed service agreements with Calpine Energy Services, L.P. for Non-Firm transmission service and Firm transmission service under FPL's Open Access Transmission Tariff pursuant to Part 35 of the Commission's regulations, (18 CFR part 35).
FPL requests that the proposed service agreements become effective on July 12, 2001.
Take notice that on July 27, 2001, Puget Sound Energy, Inc., as Transmission Provider, tendered for filing a service agreement for Firm Point-To-Point Transmission Service and a service agreement for Non-Firm Point-To-Point Transmission Service with Calpine Energy Services, L.P. (CES), as Transmission Customer.
A copy of the filing was served upon CES.
Take notice that on July 27, 2001, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) tendered for filing an amendment to the Agreement of Transmission Facilities Owners to Organize the Midwest ISO to allow tax exempt-financed governmental entities to join the Midwest ISO.
The Midwest ISO requests that the amendments become effective September 26, 2001.
Copies of this filing were served on Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region.
Take notice that on July 27, 2001, Michigan Electric Transmission Company (Michigan Transco) tendered for filing a Second Revised Service Agreement No. 22 (Agreement) with Consumers Energy Company (Customer) under its Electric Tariff FERC No. 1 with a proposed effective date of April 1, 2001. The revisions are to make the underlying agreement more consistent with Michigan Transco's pro forma generator interconnection agreement.
The filing was served upon the Customer and the Michigan Public Service Commission.
Take notice that on July 27, 2001, UtiliCorp United Inc. (UtiliCorp), filed with the Federal Energy Regulatory Commission (Commission), pursuant to Section 205 of the Federal Power Act, 16 U.S.C. § 824d, and Part 35 of the Commission's regulations, 18 CFR Part 35, Amendatory Agreement No. 4 to the Agreement for Interchange of Power & Interconnected Operation between UtiliCorp United Inc. d/b/a Missouri Public Service and Associated Electric Cooperative, Inc. (UtiliCorp's Rate Schedule FERC No. 60). This amendment provides for additional delivery points near Rich Hill, Missouri and near Platte City, Missouri.
Take notice that on July 27, 2001, UtiliCorp United Inc. (UtiliCorp), filed with the Federal Energy Regulatory Commission (Commission), pursuant to section 205 of the Federal Power Act, 16 U.S.C. 824d, and part 35 of the Commission's regulations, 18 CFR Part 35, a revised rate schedule between UtiliCorp and the City of Rich Hill, Missouri.
Take notice that on July 27, 2001, American Transmission Company LLC (ATCLLC) tendered for filing a Generation-Transmission Interconnection Agreement between ATCLLC and Badger Generating Company, LLC.
ATCLLC requests an effective date of June 29, 2001.
Take notice that on July 27, 2001 New England Power Company (NEP) submitted:
(i) Second Revised Service Agreement No. 20 between NEP and Massachusetts Electric Company and Nantucket Electric Company (together, Mass. Electric) under NEP's FERC Electric Tariff, Original Volume No. 1 (Tariff No. 1); and
(ii)Second Revised Service Agreement No. 23 between NEP and The Narragansett Electric Company (Narragansett) under Tariff No. 1.
The service agreements have been revised to include settlement agreements between NEP, Mass. Electric, Narragansett and various retail stakeholders in Massachusetts and Rhode Island. The settlements do not change the rates, terms or conditions of the service agreements.
Take notice that on July 27, 2001, Arizona Public Service Company (the Company) tendered for filing an informational report on refunds of over billed amounts to certain wholesale customers through the Company's FERC Fuel Adjustment Clause.
Copies of this filing have been served upon the affected parties.
Take notice that on July 27, 2001, Idaho Power Company filed a Service Agreement for Firm Point-to-Point Transmission Service between Idaho Power Delivery and Idaho Power Marketing, under its open access transmission tariff in the above-captioned proceeding.
Idaho Power requests that the Service Agreement become effective on July 23, 2001.
Take notice that on July 27, 2001, Idaho Power Company filed a Service Agreement for Firm Point-to-Point Transmission Service between Idaho Power Company and The Cincinnati Gas & Electric Company, an Ohio corporation, PSI Energy Inc., an Indiana Corporation, (collectively, Cinergy Operating Companies) and Cinergy Services, Inc., a Delaware corporation, as agent for and on behalf of the Cinergy Operating Companies, under its open access transmission tariff in the above-captioned proceeding.
Idaho Power requests that the Service Agreement become effective on July 24, 2001.
Take notice that on July 27, 2001, Idaho Power Company filed a Service Agreement for Non-Firm Point-to-Point Transmission Service between Idaho Power Company and The Cincinnati Gas & Electric Company, an Ohio corporation, PSI Energy Inc., an Indiana Corporation, (collectively, Cinergy Operating Companies) and Cinergy Services, Inc., a Delaware corporation, as agent for and on behalf of the Cinergy Operating Companies, under its open access transmission tariff in the above-captioned proceeding.
Idaho Power requests that the service agreement become effective on July 24, 2001.
A copy of this filing has been served on the customer.
Take notice that on July 27, 2001, American Transmission Company LLC (ATCLLC) tendered for filing executed Network Integration Transmission Service and Network Operating Agreements between ATCLLC and Upper Peninsula Power Company.
ATCLLC requests an effective date of June 29, 2001.
Take notice that on July 27, 2001, UtiliCorp United Inc. (UtiliCorp), filed an application pursuant to Section 203 of the Federal Power Act, 16 U.S.C. § 824b, and Part 33 of the Commission's regulations, 18 CFR Part 33. UtiliCorp requests authorization and approval of the sale by UtiliCorp and the purchase by the City of Rich Hill, Missouri (Rich Hill) of certain limited transmission facilities within the city.
Take notice that on July 27, 2001, Arizona Public Service Company (APS) tendered for filing with the Federal Energy Regulatory Commission (Commission) its Compliance filing pursuant to the Commission's July 2, 2001 Order on Compliance Filing in Docket Nos. ER01-463-003 and ER01-463-004 (Not Consolidated).
A copy of this filing has been served on all parties on the official service list.
Take notice that on July 27, 2001, Public Service Company of New Mexico (PNM) tendered for filing a Compliance Filing in association with PNM's earlier filing (dated April 23, 2001, as amended May 11, 2001) of its proposed revisions to the pricing methodology for energy provided by PNM for Schedule 4—Energy Imbalance Service under PNM's Open Access Transmission Tariff. PNM's Compliance Filing incorporates certain modifications to the proposed pricing change identified in the Commission's Order Accepting Revisions, as Modified, to Open Access Transmission Tariff, issued on June 29, 2001,
Copies of the filing have been sent to all PNM Tariff customers, all entities that have pending interconnection requests with PNM and the New Mexico Public Regulation Commission.
Take notice that on July 27, 2001, FPL Energy MH50, L.P. (MH50) tendered for filing with the Federal Energy Regulatory Commission (Commission) a revised Rate Schedule FERC No. 2 to comply with the Commission's Order in the above-referenced proceeding issued on July 11, 2001.
Take notice that on July 27, 2001, Ameren Services Company (Ameren Services), as agent for Union Electric Company (d/b/a AmerenUE) and Central Illinois Public Service Company (d/b/a AmerenCIPS), submitted the compliance filing required by the Federal Energy Regulatory Commission's Order of July 2, 2001 in the above-referenced proceeding.
Ameren Services requests an effective date of July 1, 2001 for the changes reflected in this filing.
Copies of this filing were served all parties on the Commission's official service list in this proceeding, on all customers under the Ameren OATT and on all affected state commissions.
Take notice that on July 27, 2001, PJM Interconnection, L.L.C. (PJM) tendered
Copies of this filing have been served on all parties, as well as on all PJM Members and the state electric regulatory commissions in the PJM control area.
Take notice that on July 27, 2001, Ameren Energy Marketing Company (AEM) tendered for filing with the Federal Energy Regulatory Commission (Commission) a compliance filing required by the Commission's June 27, 2001 order in this proceeding.
AEM requests an effective date of May 3, 2001 for the changes reflected in this filing.
A copy of this filing was served on all parties on the Docket No. ER01-1945 service list, and on all affected state commissions.
Take notice that on July 27, 2001, Entergy Services, Inc., on behalf of Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New Orleans, Inc. (collectively, the Entergy Operating Companies), tendered for filing with the Federal Energy Regulatory Commission (Commission) compliance Interconnection and Operating Agreements with Washington Parish Energy Center, L.L.C. and, separately, with GenPower Keo, LLC, in response to the Commission's order in Entergy Services, Inc., 95 FERC ¶ 61,437 (2001) (the June 27 Order). Also, Entergy submitted Attachment O to its Open-Access Transmission Tariff (Tariff), with revised sheets per the modifications directed by the June 27 Order, such Attachment being filed for the first time to comply with the requirements of the Commission's Order No. 614, Designation of Electric Rate Schedule Sheets, 90 FERC ¶ 61,352 (2000). In addition, Entergy submitted Attachment N to its Tariff, also filed to comply with Order No. 614.
Take notice that on July 27, 2001, GWF Energy LLC (GWF) tendered for filing a revision to its market-based rate tariff in compliance with the Federal Energy Regulatory Commission's July 18, 2001 order in the above-referenced proceeding accepting the tariff for filing.
Take notice that on July 27, 2001, Jersey Central Power & Light Company, Metropolitan Edison Company and Pennsylvania Electric Company (d/b/a GPU Energy), filed an executed Service Agreement between GPU Energy and Exelon Generation Company, LLC (ExeGen), dated July 11, 2001. This Service Agreement specifies that ExeGen has agreed to the rates, terms and conditions of GPU Energy's Market-Based Sales Tariff (Sales Tariff) designated as FERC Electric Rate Schedule, Second Revised Volume No. 5. The Sales Tariff allows GPU Energy and ExeGen to enter into separately scheduled transactions under which GPU Energy will make available for sale, surplus capacity and/or energy.
GPU Energy requests an effective date of July 11, 2001 for the Service Agreement.
GPU Energy has served copies of the filing on regulatory agencies in New Jersey and Pennsylvania.
Take notice that on July 27, 2001 Florida Power & Light Company (FPL) tendered for filing proposed service agreements with Duke Energy Trading and Marketing for Long-Term Firm transmission service under FPL's Open Access Transmission Tariff, pursuant to Part 35 of the Federal Energy Regulatory Commission's regulations, 18 CFR Part 35.
FPL requests that the proposed service agreements become effective on July 3, 2001.
Take notice that on July 27, 2001 Florida Power & Light Company (FPL) tendered for filing with the Federal Energy Regulatory Commission (Commission) proposed service agreements with AMEREN Energy, Inc. for Non-Firm transmission service and Firm transmission service under FPL's Open Access Transmission Tariff pursuant to Part 35 of the Commission's regulations, 18 CFR Part 35.
FPL requests that the proposed service agreements become effective on July 20, 2001.
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 this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a Draft Environmental Impact Statement (DEIS) on the natural gas pipeline facilities proposed by Iroquois Gas Transmission System, L.P. (Iroquois) in the above referenced docket.
The DEIS was prepared to satisfy the requirements of the National Environmental Policy Act. The staff concludes that approval of the proposed project, with the mitigation measures recommended in the DEIS (including a route variation to Hunts Point), would have limited adverse environmental impact.
The DEIS addresses the potential environmental effects of the project proposed by Iroquois to convey natural gas from Northport, Long Island, to the Bronx, New York. The pipeline would be constructed across Long Island Sound and be comprised of the following facilities:
The purpose of the proposed facilities would be to provide natural gas for electric generation and to serve residential, industrial, and commercial customers in New York City. The proposed project would serve:
This DEIS is provided to the U.S. Fish and Wildlife Service (USFWS) and to the National Marine Fisheries Service (NMFS) as our biological assessment under the Endangered Species Act (ESA). Sections 4.7, 5, and 6 of the DEIS specifically discuss listed species and measures to mitigate any project related impacts to those species and any critical habitat in the project vicinity. Staff concludes, the project, with the proposed mitigation in the DEIS, would not likely adversely affect listed species or their critical habitat. We request written concurrence from the USFWS and the NMFS on this conclusion. Absent the requested concurrence, we request initiation of formal consultation under section 7(a)(2) of the ESA.
Pursuant to section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act, federal agencies are required to consult with the NMFS on any action that may result in adverse effects to essential fish habitat (EFH). Sections 4.6.2 through 4.6.2.2, 5, and 6 and Appendix E assess the impacts of the proposed project on EFH, and propose specific mitigation measures to minimize those impacts. We request NMFS provide any EFH Conservation Recommendations during the comment period for the DEIS.
Any person wishing to comment on the DEIS may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments before the date specified below. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded.
• Send an original and two copies of your comments to: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of GHG, PJ11.3;
• Reference Docket Nos. CP00-232-000 and 001; and
• Mail your comments so that they will be received in Washington DC on or before September 24, 2001.
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 under the “e-Filing” link.
After comments are reviewed, any significant new issues are investigated, and modifications are made in the DEIS, a Final Environmental Impact Statement (FEIS) will be published and distributed by the staff. The FEIS will contain the staff's responses to timely comments on the DEIS.
All appropriately filed comments will be considered by the Commission. Anyone with an interest in the outcome of this proceeding may wish to become an intervenor. An intervenor has certain legal rights and responsibilities, notably the right to contest any action the Commission may take in this proceeding. Commenting on the DEIS will not make you an intervenor. Any person seeking to intervene and become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Interventions may also be filed electronically via the Internet.
The DEIS has been placed in the public files of the FERC and is available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference and Files Maintenance Branch, 888 First Street, NE, Room 2A, Washington, DC 20426.
A limited number of copies are available from the Public Reference and Files Maintenance Branch identified above. In addition, copies of the DEIS have been mailed to federal, state and local agencies, public interest groups, individuals who have requested the DEIS, newspapers, and parties to this proceeding. It has also been distributed to the commentors and libraries listed in Appendix A of the DEIS.
Additional information about the proposed project is available from the Commission's Office of External Affairs, at (202) 208-1088 or on the FERC Internet website (
Similarly, the “CIPS” link on the FERC Internet website provides access to the text of formal documents issued by the Commission, such as orders, notices, and rulemakings. From the FERC Internet website, click on the “CIPS” link, select “Docket #” from the CIPS menu, and follow the instructions. For assistance with access to CIPS, the CIPS helpline can be reached at (202) 208-2474.
On July 18 and 19, 2001, a technical conference was held in the above-captioned proceeding. It was agreed at the conference that El Paso would provide the parties and the Commission staff with additional analysis of the use of capacity on its system and with written answers to several questions raised at the conference. It was also agreed that after submission of this information, a second technical conference would be held.
Take notice that a technical conference will be held in this proceeding on Tuesday, August 28, 2001 at 10 am, in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The conference will continue through Wednesday, August 29, 2001, if necessary.
All interested parties and staff are permitted to attend.
On April 14, 2000, the Federal Energy Regulatory Commission (Commission) issued a notice for the St. Lawrence-FDR Power Project (FERC No. 2000-010) proposing to establish a restricted service list for the purpose of developing and executing a Programmatic Agreement (PA) for managing properties included in or eligible for inclusion in the National Register of Historic Places. On June 5, 2000, the restricted service list was modified to include the Department of the Interior (Interior). The St. Lawrence-FDR Power Project is located on the St. Lawrence River, in St. Lawrence County, New York. The New York Power Authority is the licensee.
Rule 2010 of the Commission's Rules of Practice and Procedure provides that, to eliminate unnecessary expense or improve administrative efficiency, the Secretary may establish a restricted service list for a particular phase or issue in a proceeding.
The address for Mr. Thomas Tatham has changed. Delete “1633 Broadway, 22C, New York, NY 10019-6756” and replace with “123 Main Street, White Plains, NY 10601”.
The contact for the Saint Regis Mohawk Tribe has changed. Delete “Francis Jock” and replace with “Francis Boots”.
The contact for Interior has changed. Delete “Lydia T. Grimm” and replace with “Kimberly Owens”.
Delete “Robert Dean, Dean & Barbour, P.O. Box 176, Old Route 17, Steamburg, NY, 14783”.
As a result of these changes, the revised final restricted service list, for the purpose of commenting on the PA for the St. Lawrence-FDR Power Project, is as follows:
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of risk assessments that were developed as part of EPA's process for making pesticide Reregistration Eligibility Decisions (REDs) and tolerance reassessments consistent with the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). These risk assessments are the human health and ecological risk assessments and related documents for thiophanate-methyl. This notice also starts a 60-day public comment period for the risk assessments. By allowing access and opportunity for comment on the risk assessments, EPA is seeking to strengthen stakeholder involvement and help ensure decisions made under FQPA are transparent and based on the best available information. The tolerance reassessment process will ensure that the United States continues to have the safest and most abundant food supply.
Comments, identified by the docket control number OPP-34243 for thiophanate-methyl, must be received on or before October 9, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit II. of the
Deanna Scher, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-7043; e-mail address: scher.deanna@epa.gov.
This action is directed to the public in general, nevertheless, a wide range of stakeholders will be interested in obtaining the risk assessments for thiophanate-methyl, including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the use of pesticides on food. Since other entities also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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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 for the specific chemical of interest 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
EPA is making available to the public the risk assessments that have been developed as part of the Agency's interim public participation process for tolerance reassessment and reregistration. During the next 60 days, EPA will accept comments on the human health and ecological risk assessments and other related documents for thiophanate-methyl, available in the individual pesticide docket. Like other REDs for pesticides developed under the interim process, the Thiophanate-methyl RED will be made available for public comment.
EPA and USDA have been using a pilot public participation process for the assessment of organophosphate pesticides since August 1998. In considering how to accomplish the movement from the current pilot being used for the organophosphate pesticides to the public participation process that will be used in the future for non-organophosphates, such as thiophanate-methyl, EPA and USDA have adopted an interim public participation process. EPA is using this interim process in reviewing the non-organophosphate pesticides scheduled to complete tolerance reassessment and reregistration in 2001 and early 2002. The interim public participation process ensures public access to the Agency's risk assessments while also allowing EPA to meet its reregistration commitments. It takes into account that the risk assessment development work
Included in the public version of the official record are the Agency's risk assessments and related documents for thiophanate-methyl. As additional comments, reviews, and risk assessment modifications become available, these will also be docketed. The thiophanate-methyl risk assessments reflect only the work and analysis conducted as of the time they were produced and it is appropriate that, as new information becomes available and/or additional analyses are performed, the conclusions they contain may change.
Environmental protection, Chemicals, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces a cancellation order for product cancellations requested by E.I. du Pont de Nemours & Company (DuPont) for its registrations of pesticide products containing methyl 1-(butylcarbamoyl)-2-benzimidazole carbamate, or benomyl, and accepted by EPA, pursuant to section 6(f) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This order follows up a May 23, 2001, notice of receipt of requests for registration cancellations. In that notice, EPA requested comments on the proposed cancellations and indicated that it would issue an order confirming the voluntary registration cancellations. Any distribution, sale, or use of canceled benomyl products is only permitted in accordance with the terms of the existing stocks provisions of this cancellation order.
The cancellations are effective August 8, 2001.
By mail: Demson Fuller, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone number: (703) 308-8062; fax number: (703) 308-7042; e-mail address: fuller.demson@epamail.epa.gov.
This action is directed to the public in general. You may be potentially affected by this action if you manufacture, sell, distribute, or use benomyl products. The Congressional Review Act, 5 U.S.C. 801
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Benomyl is a benzimidazole carbamate and systemic foliar fungicide registered for use on almonds, apples, anise, apricots, asparagus, avocado, banana, barley, bean vine, blueberries, brassica (broccoli, Brussels sprouts, cabbage, chicory, chinese cabbage, cauliflower, collards, kale, kohlrabi, mustard greens, rutabagas, and turnips), caneberries (raspberries, blackberries, boysenberries, loganberries, and dewberries), cardoon, carrots, celery, cherries, citrus, conifers, corn, cucurbits (cucumber, melons, pumpkins, and squash), currants, dandelions, dill, figs, grapes, macadamia nuts, mangoes, mushrooms, nectarines, onions, oats, papayas, peaches, peanuts, pears, peas, pecans, peppers, pineapple, pistachio, plums, prunes, rape, rice, rye, soybeans, spinach, strawberry, sugar beets, tomatoes, wheat, and yams.
Dupont met with the Agency on April 18, 2001, and requested a voluntary cancellation of all their registrations for
Pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA announced receipt of this request from Dupont in a
Public comments were received from seven interested parties:
The American Mushroom Institute is concerned with the loss of benomyl due to its effectiveness controlling diseases such as green mold. They would like for the Agency to assist them in registering effective alternatives.
The Arizona Department of Agriculture would like for Dupont to dispose of any benomyl products that dealers have in stock after the proposed December 31, 2002, termination of sales date for products in the channels of trade. They also have concerns for users who may have excess benomyl and would like Dupont to dispose of their products as well.
The California Pistachio Commission is concerned with the timing for tolerance revocation. They fear that growers may purchase excess stocks of benomyl and not have adequate time to exhaust their benomyl supplies and allow for treated pistachios to clear the channels of trade before tolerances are revoked. They ask EPA to delay tolerance revocation until 2007.
A blueberry grower in Michigan, as well as the Michigan Blueberry Growers Association, commented on the need for effective materials to control diseases such as canker, botrytis, anthracnose, and alternaria on blueberries. The Michigan Blueberry Growers Association is also concerned over the timing for tolerance revocation.
The U.S. Apple Association commented that growers of both apples and pears will need new products to control various diseases currently controlled by benomyl. They are concerned with the high costs associated with certain benomyl alternatives, and that increased use of less-expensive alternatives may lead to resistance problems. The U.S. Apple Association also asks that EPA delay tolerance revocation for 4 years after cancellation to ensure apple products clear the channels of trade.
Finally, a consulting firm objected to Dupont's request to waive the 180-day comment period because the unexpected request for cancellation has the potential to cause financial loss to other registrants working with, or preparing to work with benomyl. Because “me-too” applications for registrations of a generic off-patent product require the active registration of a substantially similar product, this firm holds that Dupont has eliminated the opportunity for other registrants to apply for and obtain benomyl product “me-too” registrations. The effect of this, they say, is that generic registrants will lose investments they may have made in pursuing such registrations.
In response to this last comment, EPA notes that FIFRA allows applicants who have submitted their applications before the voluntary cancellation has occurred to use the data submitted by the original data submitter as long as data compensation requirements are fulfilled. EPA acknowledges that Dupont's decision may affect the business opportunities of other pesticide manufacturers who wish to register new benomyl products, and that waiving the 180-day comment period reduces the window of opportunity for submission of “me-too” applications for registration. At the time Dupont requested the voluntary cancellations, it had already ceased production of benomyl. FIFRA section 6(f)(1)(C) states that EPA may waive the 180-day comment period upon the request of the registrant. The Agency believes, that this provision was intended to give ample time for EPA to hear from growers the potential impact of the requested cancellations on agriculture. EPA, in coordination with the U.S. Department of Agriculture, has communicated with representatives of commodity groups for the crops on which benomyl is registered to: Inform them of the requested cancellation, summarize the
In response to comments on the timing for tolerance revocation, EPA is concerned with growers purchasing excess amounts of benomyl. Because this action is not due to risk issues, EPA is not setting a last legal use date, but, EPA believes that use of existing stocks of these products will likely end in 2003, given that the registrant ceased production of technical product around April 2001, and that no sale or distribution of product may occur after December 31, 2002. EPA will determine how long treated food containing residues of benomyl could remain in the channels of trade assuming that treatment last occurs on December 31, 2003, and will set the tolerance revocation dates accordingly.
In response to the comments on the need for reasonable disposal of benomyl, EPA recommends that distributors purchase reasonable supplies to avoid excess stocks. EPA notes that Dupont, in a letter dated July 6, 2001, has offered to receive product for the purpose of disposal from dealers and distributors following December 31, 2002, and from users following December 31, 2003. Dupont will dispose of these products at no cost to anyone willing to ship the products to a designated Dupont facility.
In response to comments on the need for alternative materials to replace benomyl, EPA is aware of the importance of benomyl to growers. The Agency is committed to working with industry to identify and make available suitable alternatives to control diseases on mushrooms, blueberries, apples, pears, and other crops. Also, EPA continues to expedite new fungicides through its reduced risk initiative which shortens the time required to register new chemicals and uses.
Pursuant to FIFRA section 6(f)(1)(A), Dupont has submitted requests for voluntary cancellation of registrations for their products containing benomyl. The registrations for which cancellations were requested are identified in the following Table 1:
Pursuant to section 6(f)(1)(A) of FIFRA, EPA is approving the requested registration cancellations. Accordingly, the Agency orders that the registrations identified in Table 1, are hereby canceled. Any distribution, sale, or use of existing stocks of the products identified in Table 1, in a manner inconsistent with the terms of this Order or the Existing Stock Provisions in Unit IV of this
For purposes of this Order, the term “existing stocks” is defined, pursuant to EPA's existing stocks policy June 26, 1991 (56 FR 29362) (FRL-3846-4), as those stocks of a registered pesticide product which are currently in the United States and which have been packaged, labeled, and released for shipment prior to the effective date of cancellation.
The distribution or sale of existing stocks by registrants will not be lawful under FIFRA after August 8, 2001, except for the purposes of returns and relabeling, shipping such stocks for export consistent with the requirements of section 17 of FIFRA, or for proper disposal.
Sale or distribution by any person of existing stocks of any products identified in Table 1, will not be lawful under FIFRA after December 31, 2002.
This notice also serves as an advance notification that the Agency intends to revoke the related tolerances, for the cancelled registrations listed in this notice, unless there is a request from the public to support the tolerances for import purposes. EPA believes that the end use of any remaining existing stocks of these products will likely end in 2003 given that production of technical product by the registrant ceased around April 2001 and that sale and distribution of benomyl products will end on December 31, 2002. EPA will determine how long treated food containing residues of benomyl could remain in the channels of trade assuming that the last treatment occurred on December 31, 2003, and will set the expiration date accordingly.
It is EPA's general practice to propose revocation of tolerances for residues of pesticide active ingredients for which FIFRA registrations no longer exist, to protect the food supply of the U.S. and to discourage the misuse of pesticides within the United States. In many cases the cancellation of a food use in the U.S. indicates that there are insufficient domestic residue data or other information to support the continuation of the tolerance and an uncertain amount of relevant data concerning residues on imported food. In the absence of relevant data, EPA is unable to make a safety finding regarding the treated food entering the U.S. Upon request, EPA will provide interested parties with its import tolerance policy and data requirements, explaining how an interested party should go about seeking to retain a tolerance for import purposes.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of request for amendment by registrants to delete uses in certain pesticide registrations.
Unless a request is withdrawn, the Agency will approve these use deletions and the deletions will become effective on February 4, 2002 unless indicated otherwise.
By mail: James A. Hollins, Office of Pesticide Programs (7502C), Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, DC 20460. Office location for commercial courier delivery, telephone number and e-mail address: Rm. 266A, Crystal Mall No. 2, 1921 Jefferson Davis Highway, Arlington, VA
This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, 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 information in this notice, consult the person listed in the
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This notice announces receipt by the Agency of applications from registrants to delete uses in four pesticide registrations. These registrations are listed in the following Table 1 by registration number, product name, active ingredient and specific uses deleted.
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant before February 4, 2002 unless indicated otherwise, to discuss withdrawal of the application for amendment. This 180-day period will also permit interested members of the public to intercede with registrants prior to the Agency's approval of the deletion.
The following Table 2 includes, the names and addresses of record for all registrants of the products in Table 1, in sequence by EPA company number.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. The Act further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
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The Agency has authorized the registrants to sell or distribute product under the previously approved labeling for a period of 18 months after approval of the revision, unless other restrictions have been imposed, as in special review actions.
Environmental protection, Pesticides and pests, Product registrations.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition 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-1036, must be received on or before September 7, 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: Shaja R. Brothers, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 803-3194; e-mail address: brothers.shaja@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-1036 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.
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 Cosmetic 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.
The petitioner summary of the pesticide petition is printed below as required by section 408(d)(3) of the FFDCA. The summary of the petition was prepared by the petitioner and represents the view of the petitioner. EPA is publishing the petition summary verbatim without editing it 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 [0E6214] from the Interregional Research Project #4 (IR-4), 681 US Highway #1 South, North Brunswick, NJ 08902 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR part 180.492 by establishing a tolerance for residues of triflusulfuron methyl in or on the raw agricultural commodity chicory (root) at 0.05 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 support granting of the petition. Additional data may be needed before EPA rules on the petition. This notice includes a summary of the petition prepared by Dupont, E.I. du Pont Nemours and Company, Agricultural Products, Wilmington, DE 19898.
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Two 90-day studies were conducted in the rat. In one study, rats were fed dosages of 6.2, 127, 646, or 965 mg/kg/day (males) or 7.54, 150, 774, or 1,070 mg/kg/day (females). Triflusulfuron methyl exhibited subchronic toxicity at dietary concentrations of 2,000 ppm (127 and 150 mg/kg/day for males and females) or greater in the form of decreased body weights, decreased body weight gains, decreased food efficiency, increased mean relative liver weights, and regenerative anemia. The NOAEL was 6.2 mg/kg/day (males) and 7.54 mg/kg/day (females).
In another study, rats were fed dosages of 6.56, 133, 658, or 1,036 mg/kg/day (males) or 7.71, 153, 783, or 1,124 mg/kg/day (females). Triflusulfuron methyl showed subchronic toxicity at dietary concentrations of 2,000 ppm (133 and 153 mg/kg/day for males and females) or greater in the form of decreased body weight, decreased body weight gain, decreased food efficiency, and increased mean liver weights. The NOAEL was 6.56 mg/kg/day (males) and 7.71 mg/kg/day (females).
A subchronic neurotoxicity study with rats fed dosages of 0, 6.1, 46.1, 92.7, or 186.2 mg/kg/day (males) or 7.1, 51.6, 104.1, or 205.2 mg/kg/day (females), resulted in a NOAEL of 92.7 (males) and 7.1 mg/kg/ day (females). This was based on decreased body weight/body weight gain at the LOAEL of 186.2 mg/kg/day (males) and 51.6 mg/kg/day (females).
In another 90-day subchronic study, dogs were fed dosages of 3.87, 146.1, or 267.6 mg/kg/day (males) or 3.72, 159.9, or 250.7 mg/kg/day (females). Triflusulfuron methyl was found to be hepatotoxic at 4,000 ppm (146.1 mg/kg/day males and 159.9 mg/kg/day females), and greater elevated hepatic enzyme levels and postmortem evidence, including elevation in liver weights and microscopic evidence of bile stasis. Other microscopic findings considered to be treatment related were testicular atrophy and decreased testicular weights and hypercellularity of the sternal and femoral bone marrow, with a corresponding increase in reticulocyte and leukocyte counts seen in the high-dose males and females. Based on the microscopic findings in the liver and testes of the 4,000 ppm and greater treated animals, the NOAEL was 3.87 mg/kg/day (males) and 3.72 mg/kg/day (females).
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In an 18-month carcinogenicity study, mice were fed dosages of 1.37, 20.9, 349, and 1,024 mg/kg/day (males) and 1.86, 27.7, 488, and 1,360 mg/kg/day (females). Male mice had statistically significant positive trends for hepatocellular adenomas and for combined adenoma/carcinoma (driven entirely by adenomas) at 349 and 1,024 mg/kg/day. These increases were not significant in pair-wise comparisons with control groups and were determined not to be carcinogenic effects by the Carcinogenicity Peer Review Committee (CPRC). The NOAEL was based on body and organ weight effects and was 20.9 mg/kg/day (males) and 27.7 mg/kg/day (females). In the combined chronic toxicity/carcinogenicity study, rats were fed dosages of 0, 0.406, 4.06, 30.6, and 64.5 mg/kg/day (males) and 0, 0.546, 5.47, 41.5, and 87.7 mg/kg/day (females). Male rats have a significant increasing trend and significant differences in pair-wise comparisons of the 30.6 and 64.5 mg/kg/day dose groups with controls for interstitial cell adenomas. This effect was determined to be a carcinogenic effect by the CPRC. No carcinogenic effects were noted in females up to and including 87.7 mg/kg/day HDT. The LOAEL for chronic toxicity is 30.6 mg/kg/day (males) and 41.5 (females) based on decreased body weight and body weight gain, alternations in the hematology parameters (males predominately) and an increased incidence of interstitial cell hyperplasia in males. The NOAEL for chronic toxicity is 4.06 mg/kg/day (males) and 5.47 mg/kg/day (females). This value is adjusted to the lowest concentration level of the chemical at this dosage (60%), resulting in NOAELs of 2.44 mg/kg/day (males) and 3.28 mg/kg/day (females).
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The chronic dietary exposure was estimated for triflusulfuron methyl using the DEEM (version 6.74) for a number of subpopulation groups. A chronic Tier I dietary analysis was based upon residues for sugar beet (root) at 0.05 ppm and sugar beet (top) at 0.05 ppm. The chronic Reference dose (RfD) is 0.024 mg/kg bwt/day (based upon a NOAEL of 2.44 mg/kg bwt/day and a safety factor of 100). The estimated exposure for the U.S. population was 0.000146 mg/kg bwt/day (0.6% of the RfD). For the subpopulation with the highest level of exposure (non-nursing infants), the exposure was 0.000433 mg/kg bwt/day (<1.8% of the chronic reference dose (cRfD)). Because the predicted exposures, expressed as percentages of the cRfD, are well below 100%, there is reasonable certainty that no chronic effects would result from dietary exposure to triflusulfuron methyl. Even though very conservative assumptions were made in predicting acute and chronic exposures to triflusulfuron methyl, the predicted exposures expressed as percentages of the cRfD and aRfD values were found to be well within the acceptable range.
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Triflusulfuron methyl belongs to the sulfonylurea class of crop protection chemicals. Other structurally similar compounds in this class are registered herbicides. However, the herbicidal activity of sulfonylureas is due to the inhibition of acetolacate synthase (ALS), an enzyme found only in plants. This enzyme is part of the biosynthesis pathway leading to the formation of branched chain amino acids. Animals lack ALS and this biosynthetic pathway. This lack of ALS contributes to the relatively low toxicity of sulfonylurea herbicides in animals. There is no reliable information that would indicate or suggest that triflusulfuron methyl has any toxic effects on mammals that would be cumulative with those of any other chemical.
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FFDCA section 408 provides that EPA may apply an additional uncertainty factor for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base. Based on current toxicological data requirements, the data base for triflusulfuron methyl relative to prenatal and postnatal effects for children is complete. In addition, the NOAEL of 2.44 mg/kg/day in the chronic rat study (and upon which the cRfD is based) is much lower than the
There are no Codex Maximum Residue Levels established for triflusulfuron methyl.
Federal Communications Commission.
Notice.
On August 1, 2001, the Enforcement Bureau of the Federal Communications Commission (“Commission”) released a consolidated Hearing Designation Order (“HDO”) initiating hearings to adjudicate the damages claims of two interexchange carriers (“Complainants”) against U S WEST Communications, Inc., now known as Qwest (“U S WEST” or “Defendant”). To avail themselves of the opportunity to participate in this hearing, the parties are required to file a written Notice of Appearance with the Office of the Commission Secretary, stating an intention to appear on the date fixed for the hearing and present evidence on the issues specified in the HDO, within 20 days of the mailing of the HDO to the parties.
The HDO was mailed to the parties on August 1, 2001. The parties are required to file their Notice of Appearance by August 21, 2001.
Submit the Notice of Appearance to the Office of the Commission Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-204B, Washington DC 20554.
Christopher N. Olsen, 202-418-7332
The Commission has previously ruled that the Defendants violated section 271 of the Communications Act of 1934, as amended, by providing certain long distance services without authorization.
Federal Communications Commission.
Notice of meetings.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons of the fifth and sixth meetings of the Network Reliability and Interoperability Council (Council) under its charter renewed as of January 6, 2000.
Tuesday, October 30, 2001 at 10:00 a.m. to 12:00 p.m. and Friday, January 4, 2002 at 10:00 a.m. to 12:00 p.m.
Federal Communications Commission, 445 12th St. SW. Room TW-C305, Washington, DC.
Kent R. Nilsson at 202-418-0845 or TTY 202-418-2989.
The Council was established by the Federal Communications Commission to bring together leaders of the telecommunications industry and telecommunications experts from academic, consumer and other organizations to identify and recommend measures that would enhance network reliability.
At the October 4, 2001 meeting, the Council will receive reports on, and discuss, the progress of its focus groups: Network Reliability, Wireline Spectrum Management and Integrity, and Interoperability. At the January 4, 2002 meeting, the Council will determine what if any final recommendations on topics within these focus areas to present to the Commission. The Council may also discuss such other matters as come before it at these meetings. Members of the general public may attend the meetings. The Federal Communications Commission will attempt to accommodate as many people as possible. Admittance, however, will be limited to the seating available. The public may submit written comments before the meetings to Kent Nilsson, the Commission's Designated Federal Officer for the Network Reliability and Interoperability Council, by email (
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, N.W., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By order of the Federal Maritime Commission.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for licenses as Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
Non-Vessel-Operating Common Carrier Ocean Transportation Intermediary Applicants:
Non-Vessel Operating Common Carrier and Ocean Freight Forwarder Transportation Intermediary Applicant:
Ocean Freight Forwarder—Ocean Transportation Intermediary Applicants:
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 September 4, 2001.
Board of Governors of the Federal Reserve System, August 2, 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 September 4, 2001.
Board of Governors of the Federal Reserve System, August 3, 2001.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments 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 collection of information; (c) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301)-443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The HEAL refinancing loan application/promissory note is being used by lenders to refinance borrower's original HEAL loans into one new refinanced loan. Due to the success of this form and desire to reduce application processing time many lenders have automated this form by taking pertinent application information over the telephone and sending the completed form to the borrower for their review and signature.
The estimate of burden for the refinancing loan application/promissory note form per year is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Morrall, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
Department of the Interior.
Notice and request for comment.
To comply with the requirements of the Paper Reduction Act (PRA) of 1995, we are inviting comments on an information collection request (ICR) that we will submit to the Office of Management and Budget (OMB) for review and approval. The ICR is entitled “DOI Programmatic Clearance for Customer Satisfaction Surveys.” The Department of the Interior (DOI) is soliciting comments on this ICR concerning the development and use of voluntary customer satisfaction surveys to gather input and feedback from the public.
Please submit written comments by October 9, 2001.
Mail or hand carry comments to the Department of the Interior; Office of Policy, Management and Budget; Office of Planning and Performance Management; Attention: Alan Turco; Mail Stop 5258; 1849 C Street, NW., Washington, DC 20240. If you wish to email comments, the email address is: Alan_Turco@os.doi.gov. Reference “DOI Programmatic Clearance for Customer Satisfaction Surveys” in your email subject line. Include your name and return address in your email message and mark your message for return receipt.
Alan Turco, Office of Planning and Performance Management, telephone (202) 219-2257. You may also contact Alan Turco to obtain a copy at no cost of the collection of information that will be submitted to the Office of Management and Budget.
In the spirit of the PRA, DOI is consolidating its ICRs related to customer surveys for DOI offices and bureaus into one programmatic ICR. This single ICR will ease the public
The Government Performance and Results Act (GPRA) of 1993 (Pub. L. No. 103-62) sets out to “improve Federal program effectiveness and public accountability by promoting a new focus on results, service quality, and customer satisfaction” (Section 2. b. 3). In order to fulfill this responsibility, DOI's bureaus and offices must collect data from their respective user groups to (1) better understand the needs and desires of the public and (2) respond to those needs and desires accordingly.
This course of action is fortified by Executive Order (E.O.) 12862 (September 11, 1993) aimed at “ensuring the Federal Government provides the highest quality service possible to the American people.” The E.O. discusses surveys as a means for determining the kinds and qualities of service desired by the Federal Government's customers and for determining satisfaction levels for existing service. These voluntary customer surveys will be used to ascertain customer satisfaction with DOI's bureaus and offices in terms of services and products. Previous customer surveys have provided useful information to DOI's bureaus and offices for assessing how well we deliver our services and products, making improvements, and reporting on annual performance goals as set out in GPRA-related documents. The results are used internally, and summaries are provided to OMB on an annual basis and are used to satisfy the requirements and spirit of E.O. 12862.
Furthermore, E.O. 12862 requires agencies to provide a “means to address customer complaints.” To that end, bureaus and offices may use customer comment cards as an opportunity for customers to provide feedback to the agencies on the service they have received. Other methodologies discussed below also can meet this need.
In addition to GPRA and E.O. 12862, the statutes, regulations, and Secretarial Orders that created each of the bureaus and offices further enhance the need to engage the public and deliver quality products and services to our customers. Agency policies and procedures seek to promote quality customer service.
DOI's bureaus and offices anticipate performing their customer surveys under one ICR. In this proposal, DOI would request that OMB review the procedures and question areas for these surveys as a program, rather than reviewing each survey individually. Each bureau and office will then develop a survey instrument from the topic areas discussed below. Under the procedures proposed here, DOI would conduct the necessary quality control, including assurances that the individual survey comports with the guidelines in this proposed programmatic ICR, and submit the particular survey instruments and methodologies for expedited review to OMB.
The proposed ICR covers most of the organizational agencies in DOI. However, the National Park Service, which has one of the most mature social science programs in the Federal Government, will continue under its own separate clearance given the complexity and specificity of their program. DOI's bureaus and offices covered under the proposed ICR include:
• Bureau of Indian Affairs
• Bureau of Land Management (BLM)
• Bureau of Reclamation
• US Fish & Wildlife Service
• Office of Insular Affairs
• Minerals Management Service
• Office of the Secretary
• Office of Surface Mining
• US Geological Survey (USGS)
The request to OMB will be for a 3-year clearance to conduct customer satisfaction surveys by DOI's bureaus and offices. USGS and BLM, who have developed customer research programs, are currently operating under 3-year programmatic clearances. Other participating bureaus and offices have handled their ICRs on a case-by-case basis.
For example, under existing approvals, USGS in 2000 surveyed users of the on-line National Atlas, State and Federal land managing and natural resource agencies, customers of Eros Data Center (digital data and maps), and customers of Earth Science Information Centers (topographic maps, USGS publications). Over the last 3 years, BLM has surveyed users of recreation areas, grazing permittees, oil and gas permittees, stakeholders and partners, and public room users, as well as conducted focus groups with various customer groups. These collections occur through one of six methodologies: (1) Intercept (a customer interacting in person with one conducting the survey); (2) telephone interviews; (3) mail surveys; (4) web-based surveys; (5) focus groups; and (6) voluntary use of comment cards.
Examples of previously conducted customer surveys are available upon request. Our planned activities in the next 3 fiscal years reflect our increased emphasis on and expansion of these activities throughout DOI.
Different user and stakeholder groups function and interact with the respective bureaus and offices in different ways. In order to meet the response rate goal, six different methodologies will be available for use. The methodology will be chosen based on achieving statistical accuracy while keeping the cost as low as possible. The six methodologies that DOI's bureaus and offices will employ are: (1) Intercept, (2) telephone interviews, (3) mail surveys, (4) web-based surveys, (5) focus groups, and (6) comment cards. In all cases, the goal is to achieve a 95 percent confidence level for a specified degree of statistical accuracy. The total number of respondents sought for each survey will be based on achieving this level. In most cases, the respondent base will be pulled from a randomized sample of the user population, and where necessary, a stratified sample will be used to achieve accurate statistical measures at the appropriate National, State, or regional level. In some cases where the user population is small, the entire population will need to be surveyed.
Using the best in focus group research practices, groups will be constructed to include a cross-section of a given customer group. The questions and additional probes used during the focus groups will be consistent with the “guideline menu” discussed below.
Electronic users may be offered the opportunity to complete a comment card via a “pop-up” window (or other web-enable means that may be available). The “pop-up” window will not appear for every user; rather, the users will be randomly selected to receive the survey. This practice is widely used in private industry. In other instances, the electronic user may be offered the option to self-select in answering the electronic comment card.
Whether using paper or electronic comment cards, the intent is to provide a timely feedback mechanism. The data are not intended to be statistically significant. Although questions may include numeric scales, those data should be considered only in an anecdotal fashion and not reported as a significant measure.
• Authorized public land users (rights-of-way, land management transactions, mining, recreation, oil and gas, grazing, wildlife photographers, hunters, fishers, etc.)
• Coal operators
• Contractors/venders
• Disabled persons and groups representing disabled persons
• Educators/researchers
• Environmental groups
• Government representatives (State, local, and foreign)
• Grant recipients
• Indian Tribes/Alaskan Natives/Native Americans
• Industry groups (i.e., mining, oil and gas)
• Insular governments
• Interested publics/special interest groups
• Law enforcement authorities, customs brokers, and brokers' associations
• Local communities
• Public information center users
• Scientific data users and technical assistance recipients
• State wildlife agencies' representatives
• Trade organizations
• Utilities' representatives
• Visitors/Recreation
• Volunteers (past, present, prospective)
There are 11 topic areas that DOI's bureaus and offices are proposing to voluntarily obtain information from its customers and stakeholders. No one survey will cover all the topic areas;
With the exception of the general demographic questions, the questions will be answered on a Lichert Scale (i.e., choose one of the following: strongly agree, agree, not sure, disagree, strongly disagree; on a scale of 1 to 5, 1 being very poor and 5 being excellent, etc.), from a preset list of options (i.e., yes, no, not applicable), or as an open-ended question. For questions that use the Lichert scale and a preset list of options, the data will be reported in a numeric fashion, including average response and percent favorable. Open-ended questions will be subjected to a content analysis and be reported on accordingly.
1. Communication/information/education:
a. Providing consistent and timely information to the public.
b. Where did you obtain your information about this site?
c. Making it easy for people to find out about proposed changes.
d. Educating people about particular processes.
e. Providing accurate, detailed and affordable maps and brochures.
f. Providing useful web site, signs, publications, and exhibits
g. Charging an appropriate fee for the information/material provided.
h. The information provided was effective and helpful.
i. Providing quality web-based information.
j. Engaging the public in the planning process.
2. Disability accessibility:
a. Do you or does someone in your party have a disability?
b. If yes, how well does the agency make buildings, facilities, and trails accessible to people with disabilities?
c. Accessibility to the programs and activities that address my needs.
3. Facilities:
a. Maintaining roads and trails.
b. Maintaining a clean recreation site.
c. Providing entrance/directional signs to sites and facilities.
d. Providing a facility that is conducive to meeting specific user needs.
4. Management practices:
a. Responding to issues and problems in a timely manner.
b. Providing access to a supervisor to resolve the problem.
c. Understanding my needs.
d. If you could make one improvement to XXX service, what would it be?
5. Resource protection and use:
a. The extent to which the natural resources are used and cultural resources are protected.
b. Getting public input when identifying critical areas for preservation and use.
c. Preserving water resources and habitat for fish, wildlife, plants, and other uses.
6. Rules, regulations, policies:
a. Ensuring public awareness of rules and regulations.
b. Ensure fair and consistent policies for all users.
c. The rules, regulations, and policies are clear and in plain language.
d. Providing adequate protest and appeal policies to resolve issues and disputes.
7. Service delivery:
a. Provided a single point of contact.
b. The staff I interacted with are courteous and friendly.
c. The staff I interacted with are knowledgeable about the rules and regulations.
d. The staff I interacted with are able to answer my questions about natural, historic, and cultural resources.
e. The staff listened to and considered my ideas.
f. The training I received provided the information I needed.
g. The response was timely.
8. Technical assistance:
a. Provides unbiased scientific and technical support products and services.
b. Reflects reasonable pricing.
c. Quality of the execution of the analysis and interpretation.
d. Considered alternative interpretations.
e. Provides useful information.
9. Program-specific: (These questions will reflect the specific details of the program that pertain to the customer respondents. The questions will be developed to address very specific and/or technical issues related to the program. The questions will be geared toward gaining a better understanding about how to provide specific products and services as well as the priority the public would give to specific program objectives; they will not ask the respondents for their opinions about policies.)
10. Overall satisfaction:
a. Everything considered, how would you rate your overall satisfaction with the delivery of XXX program or service?
b. Values my relationship as a customer.
c. Is an agency I will contact or visit again for information and services.
d. Is an agency I trust to do a good job performing XXX mission.
11. General demographics:
a. What is your zip code?
b. How many times have you used this service in the previous 12 months?
c. How many people are in your group?
d. What activities did you participate in?
e. What was your total household income (before taxes) in 2000 (less than $20,000; $20,000 to $39,999; $40,000 to $59,999; $60,000 to $79,999; $80,000 to $99,999; $100,000 to $119,999; $120,000 or more)?
f. What is the highest level of education you have completed (some high school or less; high school graduate or GED; business school, trade school, or some college; college graduate; some graduate school; masters, Ph.D., or professional degree)?
g. What is the primary language spoken at home? (i.e., English, Spanish)
h. In what ethnic group would you place yourself (Hispanic/Latino or non-Hispanic/Latino)?
i. In what race would you place yourself (American Indian, Eskimo, Aleut; Asian or Pacific Islander; Black or African America; White; Native Hawaiian)? Select one or more.
• Service needs and priorities of customers
• Strengths and weaknesses of services
• Ideas or suggestions for improvement of services from our customers
• Barriers to achieving customer service standards
• Changes to customer service standards
• Establishing baselines to measure change in improving service delivery over time
• Improving public trust in government
They also use this information to support all aspects of planning, from buildings, roads, and interpretive exhibits, to technical systems. In conducting their management, planning, and monitoring activities, managers also use the information to effectively allocate their limited personnel and financial resources to the highest priority elements.
While the information will not be used for budgetary development, DOI anticipates that the information obtained could lead to reallocation of
In fulfilling the requirements of GPRA, DOI and all of its bureaus and offices have created a Strategic Plan in coordination with their respective publics. GPRA requires DOI and its bureaus to annually report on their progress toward achieving the goals outlined in the Annual Performance Plan. Some of the data collected may be used as the basis or in support of specific performance measures.
Agencies must estimate both the “hour” burden and “non-hour cost” burden to respondents or recordkeepers resulting from the collection of information. We have not identified any non-hour cost burdens for the information collection aspects of the programmatic customer satisfaction survey. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period of which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. Generally, your estimates should not include equipment or services purchased: (1) Before October 1, 1995; (2) to comply with requirements not associated with the information collection; (3) for reasons other than to provide information or keep records for the Government; or (4) as part of customary and usual business or private practices.
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. There may be circumstances in which we would withhold from the record a respondent's identity, as allowable by law. If you, as a commenter, wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or business, and from individuals identifying themselves as representatives of organizations or businesses, available for public inspection in their entirety.
U.S. Fish and Wildlife Service, Department of the Interior.
Notice of availability.
The U.S. Fish and Wildlife Service (Service), on behalf of the Department of the Interior (DOI), as a Natural Resource Trustee (Trustee), announces the release of the Final Restoration Plan and Environmental Assessment (RP/EA) for Operable Unit 3 (OU-3) of the Asbestos Dump Superfund Site, Morris County, New Jersey. The Final RP/EA describes the DOI's selected action to restore natural resources injured as a result of chemical contamination at the Asbestos Dump Superfund Site.
Requests for copies of the Final RP/EA may be made to: U.S. Fish and Wildlife Service, New Jersey Field Office, 927 North Main Street, Pleasantville, New Jersey, 08232.
Clay Stern, Environmental Contaminants Branch, U.S. Fish and Wildlife Service, New Jersey Field Office, 927 North Main Street, Pleasantville, New Jersey, 08232. Interested parties may also call 609-646-9310, x27 or send electronic mail to clay—stern@fws.gov.
Under the authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 as amended, commonly known as Superfund, (42 U.S.C. 9601
As part of a Consent Decree requiring remedial actions at OU-3, DOI settled with NGC for natural resource damages. The settlement of approximately $3.6 million was designated for restoration, replacement, or acquisition of the equivalent natural resources injured by the release of contaminants at the site.
The Final RP/EA is being released in accordance with the Natural Resource Damage Assessment Regulations found at Title 43 of the Code of Federal Regulation Part 11. The Final RP/EA describes several natural resource restoration, acquisition, and protection alternatives identified by the DOI, and evaluates each of the possible alternatives based on all relevant considerations. The DOI's Preferred Alternative is to use the settlement funds in a combination of projects aimed to restore, enhance, and protect in perpetuity, fish and wildlife habitat within the Great Swamp Watershed. Details regarding the proposed projects are contained in the Final RP/EA.
The Final Revised Procedures for the DOI in implementing the National Environmental Policy Act were published in the
The primary author of this notice is Clay Stern, U.S. Fish and Wildlife Service, New Jersey Field Office, 927 North Main Street, Pleasantville, New Jersey, 08232.
The authority for this action is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 as amended, commonly known as Superfund, (42 U.S.C. 9601
Notice is hereby given, in accord with provisions of the National Environmental Policy Act (42 U.S.C. 4321
The last revision of the FMP was based upon completion of an Environmental Assessment process, which culminated in a Finding Of No Significant Impact approval of the program in 1993. However, since that time a broad range of new issues, improved information and technology, and unforeseeable limitations have emerged which have the potential to affect the future direction of the fire management program within the park. Some of these issues include but are not limited to: a continued decline in ecosystem health due to fire suppression; increased hazardous fuels buildup; expanding uses and development at the wildland-urban interface; increased risks and costs
During the scoping period a public meeting will held to: present information developed to date; to answer questions about the existing FMP, pending update, and planning process; and to solicit and accept comments from the public. This meeting will be held in the Redding area in a public hall. The location, date and time of this meeting will be announced on the above website, and via local and regional media. All interested individuals, organizations, and agencies are invited to attend this meeting or
All scoping comments should be submitted in writing, and must be postmarked or transmitted not later than September 15, 2001. Please send all comments to: Superintendent, Whiskeytown National Recreation Area, P. O. Box 188, Whiskeytown, CA 96095 (Attn: Fire Management Plan). Electronic comments may be transmitted to
If individuals submitting comments request that their name or
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has terminated the above-captioned investigation and issued a limited exclusion order.
Jean Jackson,
The Commission instituted this investigation, which concerns allegations of unfair acts in violation of section 337 of the Tariff Act of 1930, 19 CFR part 1337, in the importation and sale of certain 4-androstenediol (a nutritional supplement used by body-builders) on December 19, 2000. 65 FR 79424. On April 19, 2001, complainant LPJ, Inc. of Seymour, Illinois (LPJ) moved pursuant to 19 U.S.C. 1337(a)(1) and 19 CFR 210.16 for an order directing the only respondent, Changzhou Huabang Pharmaceutical Group, Ltd. (Changzhou), to show cause why it should not be found in default for failure to respond to LPJ's complaint. The Commission investigative attorney (IA) supported LPJ's motion. The presiding administrative law judge (ALJ)(Judge Luckern) issued Order No. 8 on April 30, 2001, directing Changzhou to show cause why it should not be found in default. Changzhou did not respond to that order.
On May 24, 2001, the ALJ issued an ID finding Changzhou in default pursuant to 19 CFR 210.16, and ruling that Changzhou had waived its rights to appear, to be served with documents, and to contest the allegations at issue in the investigation. No petitions for review of the ID were filed. The Commission decided not to review the ID on June 8, 2001, thereby allowing it to become the Commission's final determination under 19 CFR 210.42. 66 FR 32374 (June 14, 2001). On June 25, 2001, pursuant to 19 U.S.C. 1337(g)(1) and 19 CFR 210.16(c)(1), complainant LPJ filed a declaration seeking limited relief against the defaulting respondent. In its declaration, LPJ requested that the Commission issue a limited exclusion order against Changzhou.
The Commission solicited comments from the parties, interested government agencies, and other persons concerning the issues of remedy, the public interest, and bonding. 66 FR 95809 (July 9, 2001). Complainant and the IA filed proposed remedial orders and addressed
Section 337(g)(1) of the Tariff Act of 1930 provides that the Commission shall presume the facts alleged in a complaint to be true, and upon request issue a limited exclusion order and/or cease and desist order if: (1) A complaint is filed against a person under section 337, (2) the complaint and a notice of investigation are served on the person, (3) the person fails to respond to the complaint and notice or otherwise fails to appear to answer the complaint and notice, (4) the person fails to show good cause why it should not be found in default, and (5) the complainant seeks relief limited to that person. Such an order shall be issued unless, after considering the effect of such exclusion, the Commission finds that such exclusion should not be issued.
The Commission found that each of the statutory requirements for the issuance of a limited exclusion order was met with respect to defaulting respondent Changzhou. The Commission further determined that the public interest factors enumerated in section 337(g)(1) did not preclude the issuance of such relief. Finally, the Commission determined that bond under the limited exclusion order during the Presidential review period shall be in the amount of twenty-nine (29) percent of the entered value of the imported articles.
This action is taken under the authority of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, and section 210.16 (c) of the Commission's Rules of Practice and Procedure, 19 CFR 210.16.
By order of the Commission.
Notice of information collection under review; aircraft/vessel report.
The Department of Justice, Immigration and Naturalization Service has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until October 9, 2001.
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 agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and 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 other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional connects, 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, Policy Directives 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. Ricahrd 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, 1331 Pennsylvania Avenue, NW., Suite 1220, Washington, DC 20536.
Notice of information collection under review; application for waiver of grounds of excludability.
The Department of Justice, Immigration and Naturalization Service has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until October 9, 2001.
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 agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and 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 other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(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, Policy Directives 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, 1331 Pennsylvania Avenue, NW., Suite 1220, Washington, DC 20530.
Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, 29 U.S.C. 1142, provides for the establishment of an “Advisory Council on Employee Welfare and Pension Benefit Plans” (the Council), which is to consist of 15 members to be appointed by the Secretary of Labor (the Secretary) as follows: Three representatives of employee organizations (at least one of whom shall be representative of an organization whose members are participants in a multi employer plan); three representations of employers (at least one of whom shall be representative of employers maintaining or contributing to multi employer plans); one representative each from the fields of insurance, corporate trust, actuarial counseling, investment counseling, investment management and accounting; and three representatives from the general public (one of whom shall be a person representing those receiving benefits from a pension plan). No more than eight members of the Council shall be members of the same political party.
Members shall be persons qualified to appraise the programs institute under ERISA. Appointments are for terms of three years. The prescribed duties of the Council are to advise the Secretary with respect to the carrying out of his or her function under ERISA, and to submit to the Secretary, or his or her designee, recommendations with respect thereto. The Council will meet at least four times each year, and recommendations of the Council to the Secretary will be included in the Secretary's annual report to the Congress ERISA.
The terms of five members of the Council expire on November 14, 2001. The groups or fields they represented are as follows: employee organizations, insurance, accounting, employers and the general public. The Department of Labor is committed to equal opportunity in the workplace and seeks a board-based and diverse ERISA Advisory Council membership.
Accordingly, notice is hereby given that any person or organization desiring to recommend one or more individuals for appointment to the ERISA Advisory Council on Employee Welfare and Pension Benefit Plans to represent any of the groups or fields specified in the preceding paragraph, may submit recommendations to Sharon Morrissey, Executive Secretary, ERISA Advisory Council, Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, NW., Suite N-5677, Washington, DC 20210. Recommendations must be delivered or mailed on or before October 1, 2001. Recommendations may be in the form of a letter, resolution or petition, signed by the person making the recommendation or, in the case of a recommendation by an organization, by an authorized representative of the organization.
Pursuant to Public Law 97-415, the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. Public Law 97-415 revised section 189 of the Atomic Energy Act of 1954, as amended (the Act), to require the Commission to publish notice of any amendments issued, or proposed to be issued, under a new provision of section 189 of the Act. This provision grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from July 16, 2001 through July 27, 2001. The last biweekly notice was published on July 25, 2001 (66 FR 38756).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) Involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received before action is taken. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
By September 7, 2001, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.714 which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available records will be accessible and electronically from the ADAMS Public Library component on the NRC Web site, http://www.nrc.gov (the Electronic Reading Room). If a request for a hearing or petition for leave to intervene is filed by the above date, the Commission or an Atomic Safety and Licensing Board, designated by the Commission or by the Chairman of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the designated Atomic Safety and Licensing Board will issue a notice of a hearing or an appropriate order.
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission,
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment which is available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Assess and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
The proposed amendment does not:
(1) Involve a significant increase in the probability or consequences of an accident previously evaluated.
The accident of concern is a fuel bundle drop onto the top of a storage rack as described in DPR-16 License Amendment No. 76 dated September 17, 1984 and DPR-16 License Amendment No. 121. This accident was previously considered in an analysis that calculated the reactivity of two unpoisoned fuel assemblies separated only by water. The analysis shows a separation of 2.5 inches results in a reactivity k
The SAR identifies that k
(2) Create the possibility of a new or different kind of accident from any accident previously evaluated.
The change does not involve any plant systems associated with plant operation so safe plant operation will not be affected. This analysis does include a new consideration (dissolution of the Boraflex in the fuel racks) that had not been previously considered.
Nuclear safety is not effected [affected] since the required margin to criticality is maintained with consideration of Boraflex degradation. The current analysis uses the conservative assumption of coplanar gaps (i.e., all gaps occurring at the same axial plane). This is a very conservative assumption given gap measurement data at Oyster Creek and in the industry that shows an axial distribution of gaps.
The proposed criticality analysis utilizes an axial distribution of gaps. The analysis is based on the same fuel design and enrichment as the previous analysis, a GE7 8x8 fuel design having 4.0% enrichment and seven rods containing 3.0% Gd
The analysis, which includes the effect of Boraflex degradation, demonstrates that k
(3) Involve a significant reduction in a margin of safety.
As stated in Oyster Creek Technical Specification Section 5.3.1, the fuel pool k
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated.
The PASS was originally designed to perform many sampling and analysis functions. These functions were designed and intended to be used in post accident situations and were put into place as a result of the TMI-2 accident. The specific intent of the PASS was to provide a system that has the capability to obtain and analyze samples of plant fluids containing potentially high levels of radioactivity, without exceeding plant personnel radiation exposure limits. Analytical results of these samples would be used largely for verification purposes in aiding the plant staff in assessing the extent of core damage and subsequent offsite radiological dose projections. The system was not intended to and does not serve a function for preventing accidents and its elimination would not affect the probability of accidents previously evaluated.
In the 20 years since the TMI-2 accident and the consequential promulgation of post accident sampling requirements, operating experience has demonstrated that a PASS provides little actual benefit to post accident mitigation. Past experience has indicated that there exists in-plant instrumentation and methodologies available in lieu of a PASS for collecting and assimilating information needed to assess core damage following an accident. Furthermore, the implementation of Severe Accident Management Guidance (SAMG) emphasizes accident management strategies based on in-plant instruments. These strategies provide guidance to the plant staff for mitigation and recovery from a severe accident. Based on current severe accident management strategies and guidelines, it is determined that the PASS provides little benefit to the plant staff in coping with an accident.
The regulatory requirements for the PASS can be eliminated without degrading the plant emergency response. The emergency response, in this sense, refers to the methodologies used in ascertaining the condition of the reactor core, mitigating the consequences of an accident, assessing and projecting offsite releases of radioactivity, and establishing protective action recommendations to be communicated to offsite authorities. The elimination of the PASS will not prevent an accident management strategy that meets the initial intent of the post-TMI-2 accident guidance through the use of the SAMGs, the emergency plan (EP), the emergency operating procedures (EOP), and site survey monitoring that support modification of emergency plan protective action recommendations (PARs).
Therefore, the elimination of PASS requirements from Technical Specifications (TS) (and other elements of the licensing bases) does not involve a significant increase in the consequences of any accident previously evaluated.
Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident From Any Previously Evaluated.
The elimination of PASS related requirements will not result in any failure mode not previously analyzed. The PASS was intended to allow for verification of the extent of reactor core damage and also to provide an input to offsite dose projection calculations. The PASS is not considered an accident precursor, nor does its existence or elimination have any adverse impact on the pre-accident state of the reactor core or post accident confinement of radionuclides within the containment building.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety.
The elimination of the PASS, in light of existing plant equipment, instrumentation, procedures, and programs that provide effective mitigation of and recovery from reactor accidents, results in a neutral impact to the margin of safety. Methodologies that are not reliant on PASS are designed to provide rapid assessment of current reactor core conditions and the direction of degradation while effectively responding to the event in order to mitigate the consequences of the accident. The use of a PASS is redundant and does not provide quick recognition of core events or rapid response to events in progress. The intent of the requirements established as a result of the TMI-2 accident can be adequately met without reliance on a PASS.
Therefore, this change does not involve a significant reduction in the margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
An alternative source term calculation has been performed for HNP which demonstrates that dose consequences remain below limits specified in NRC Regulatory Guide 1.183 and 10 CFR 50.67. The proposed change does not modify the design or operation of the plant.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not affect plant structures, systems, or components. The operation of plant systems and equipment will not be affected by this proposed change.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed amendment does not involve a significant reduction in the margin of safety.
The proposed change is the implementation of the alternate source term methodology consistent with NRC Regulatory Guide 1.183. The proposed change does not significantly affect any of the parameters that relate to the margin of safety as described in the Bases of the TS or FSAR. Accordingly, NRC Acceptance Limits are not significantly affected by this change.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Operation of the facility in accordance with the proposed amendment would not involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated.
The proposed TS changes do not involve a significant increase in the probability or consequences of an accident previously evaluated. There are no physical changes to the plant being introduced by the proposed changes to the heatup and cooldown limitation curves. The proposed changes do not modify the RCS pressure boundary. That is, there are no changes in operating pressure, materials, or seismic loading. The proposed changes do not adversely affect the integrity of the RCS pressure boundary such that its function in the control of radiological consequences is affected. The proposed heatup and cooldown limitation curves were generated in accordance with the fracture toughness requirements of 10CFR50 Appendix G, and ASME B&PV Code [American Society of Mechanical Engineers Boiler and Pressure Vessel Code], Section XI, Appendix G in conjunction with ASME Code Cases N-640 and N-588. The proposed heatup and cooldown limitation curves were established in compliance with the methodology used to calculate and predict effects of radiation on embrittlement of RPV [reactor pressure vessel] beltline materials. Use of this methodology provides compliance with the intent of 10CFR50 Appendix G and provides margins of safety that ensure non-ductile failure of the RPV will not occur.
The proposed heatup and cooldown limitation curves prohibit operation in regions where it is possible for non-ductile failure of carbon and low alloy RCS materials to occur. Hence, the primary coolant pressure boundary integrity will be maintained throughout the limit of applicability of the curves, 25 EFPY. Operation within the proposed OPS [overpressure protection system] limits ensures that overpressurization of the RCS at low temperatures will not result in component stresses in excess of those allowed by the ASME B&PV Code Section XI Appendix G.
Consequently, the proposed changes do not involve a significant increase in the probability or the consequences of an accident previously evaluated.
2. Operation of the facility in accordance with the proposed amendment would not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed TS changes do not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed changes to the heatup and cooldown limitation curves were generated in accordance with the fracture toughness requirements of 10CFR50 Appendix G and ASME B&PV Code, Section XI, Appendix G in conjunction with ASME Code Cases N-588 and N-640. Compliance with the heatup and cooldown limitation curves will ensure that conditions in which non-ductile failure of the RCS pressure boundary materials is possible will be avoided. Compliance with the proposed OPS limits will ensure that the RCS will be physically protected against overpressurization events during low temperature operation when the fracture toughness properties of the carbon and low alloy components are at their lowest.
No new modes of operation are introduced by the proposed changes. The proposed changes will not create any failure mode not bounded by previously evaluated accidents. Further, the proposed changes to the heatup and cooldown limitation curves and the OPS limits do not affect any activities or equipment other than the RCS pressure boundary and are not assumed in any analysis to initiate or mitigate any accident sequence. Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Operation of the facility in accordance with the proposed amendment would not involve a significant reduction in the margin of safety.
The proposed TS changes do not involve a significant reduction in the margin of safety.
The revised heatup and cooldown limitation curves and OPS limits provide more operating flexibility than the current heatup and cooldown limitation curves. Industry experience since the inception of pressure-temperature limits in the 1970s confirms that some of the original methodologies used to develop the heatup and cooldown limitation curves are overly conservative. Accordingly, ASME Code Cases N-588 and N-640 take advantage of the acquired knowledge by establishing more realistic methodologies for development of the heatup and cooldown limitation curves. Therefore, operational flexibility is gained and an acceptable margin of safety to reactor pressure vessel non-ductile type fracture is maintained.
The revised heatup and cooldown limitation curves and OPS limits are established in accordance with current regulations and the ASME B&PV Code 1996 version. These proposed changes are acceptable because the ASME B&PV Code maintains the margin of safety required by
The proposed changes to the allowable operation of charging and safety injection pumps when OPS is required to be operable is consistent with the IP2 [Indian Point 2] licensing bases but implements the licensing bases in a more conservative manner than the current TS. The change in OPS surveillance frequency has been previously evaluated by the NRC to involve an insignificant increase in risk. That insignificant increase in risk is offset by the adverse effects of the alternatives of either 1.) delaying forced cooldowns until OPS testing is complete; 2.) complicating cooldown operations by imposition of limits required when OPS is inoperable; or 3.) conducting OPS testing periodically while at power.
Therefore, Con Edison has concluded that the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed Technical Specification change to increase the EDG AOT from 72 hours to 14 days will not cause an accident to occur and will not result in any change in the operation of the associated accident mitigation equipment. The EDGs are not accident initiators, and extending the EDG AOT will not impact the frequency of any previously evaluated accidents. The design basis accidents will remain the same postulated events described in the Millstone Unit No. 2 Final Safety Analysis Report (FSAR). In addition, extending the EDG AOT will not impact the consequences of an accident previously evaluated. The consequences of previously evaluated accidents will remain the same during the proposed 14 day AOT as during the current 72 hour AOT. The ability of the remaining EDG to mitigate the consequences of an accident will not be affected since no additional failures are postulated while equipment is inoperable within the Technical Specification AOT. The remaining EDG is sufficient to mitigate the consequences of any design basis accident. Therefore, the proposed change will not increase the probability or consequences of an accident previously evaluated.
The proposed Technical Specification change to allow verification of offsite circuit(s) within 1 hour prior to or after entering the condition of either an inoperable offsite source or inoperable EDG will not cause an accident to occur and will not result in any change in the operation of the associated accident mitigation equipment. Performing a verification of the offsite circuits does not require any equipment manipulations or operator actions that could cause a previously evaluated accident to occur. Providing the flexibility to verify offsite circuit availability before removing equipment from service will reduce the potential to establish an adverse plant configuration. The design basis accidents will remain the same postulated events described in the Millstone Unit No. 2 FSAR. In addition, allowing an early verification of offsite circuit(s) will not impact the consequences of an accident previously evaluated. The consequences of previously evaluated accidents will remain the same whether the verification is performed immediately after, or just before, an EDG or offsite circuit is removed from service. The ability of the remaining power sources to mitigate the consequences of an accident will not be affected since no additional failures are postulated while equipment is inoperable within the Technical Specification AOT. The remaining power sources are sufficient to mitigate the consequences of any design basis accident. Therefore, the proposed change will not increase the probability or consequences of an accident previously evaluated.
The proposed Technical Specification changes associated with the requirements for the pressurizer heaters to be supplied by emergency power will not result in any change in plant design. These components will continue to be powered from Class 1E power sources. As a result, the operation and reliability of the pressurizer heaters will not be affected by the proposed changes. In addition, operation of the pressurizer heaters is not assumed to mitigate any design basis accident. The proposed changes will not cause an accident to occur and will not result in a change in the operation of any accident mitigation equipment. The design basis accidents remain the same postulated events described in the Millstone Unit No. 2 FSAR. Therefore, the proposed changes will not increase the probability or consequences of an accident previously evaluated.
The additional change to add the requirement to verify that the steam driven auxiliary feedwater (SDAFW) pump is operable when one EDG is inoperable will ensure sufficient auxiliary feedwater capability is available if a loss of offsite power were to occur. Operation of the SDAFW pump will not be affected by the proposed change, and the SDAFW pump is not an accident initiator. Verifying operability of the SDAFW pump will not impact the frequency of any previously evaluated accidents. The design basis accidents will remain the same postulated events described in the Millstone Unit No. 2 FSAR. The ability of the SDAFW pump to mitigate the consequences of an accident will not be affected. Therefore, the proposed change will not increase the probability or consequences of an accident previously evaluated.
The additional proposed changes to renumber action requirements and remove a footnote that is no longer valid will not result in any technical changes to the current requirements. Therefore, these additional proposed change[s] will not increase the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes to the Technical Specifications do not impact any system or component in a manner that could cause an accident. The proposed changes will not alter the plant configuration (no new or different type of equipment will be installed) or require any unusual operator actions. The proposed changes will not alter the way any structure, system, or component functions, and will not significantly alter the manner in which the plant is operated. There will be no adverse effect on plant operation or accident mitigation equipment. The response of the plant and the operators following an accident will not be significantly different. In addition, the proposed changes do not introduce any new failure modes. Therefore, the proposed changes will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Involve a significant reduction in a margin of safety.
The proposed Technical Specification change to increase the EDG AOT from 72 hours to 14 days and allow verification of offsite circuit(s) within 1 hour prior to or after entering the condition of an inoperable offsite source or inoperable EDG does not adversely affect equipment design or operation, and there are no changes being made to the Technical Specification required safety limits or safety system settings that would adversely affect plant safety. The proposed Technical Specification change, in conjunction with the administrative controls, provides adequate assurance of the capability to supply power to the safety related Class 1E electrical loads thereby ensuring the accident mitigation functions will be
The proposed Technical Specification changes associated with the requirements for the pressurizer heaters to be supplied by emergency power do not adversely affect equipment design or operation, and there are no changes being made to the Technical Specification required safety limits or safety system settings that would adversely affect plant safety. The emergency power requirement for the pressurizer heaters, which came from the Three Mile Island (TMI) action item requirement item ll.E.3.1, Emergency Power Requirements for Pressurizer Heaters,” of NUREG-0737, “A Clarification of TMI Action Plan Requirements,” will continue to be met. The pressurizer heaters are permanently connected to Class 1E power supplies as described in the Millstone Unit No. 2 FSAR. Therefore, these changes will not result in a significant reduction in a margin of safety.
The additional more restrictive change to add the requirement to verify that the SDAFW pump is operable when one EDG is inoperable will not adversely affect equipment design or operation, and there are no changes being made to the Technical Specification required safety limits or safety system settings that would adversely affect plant safety. Operation of the SDAFW pump will not be affected by the proposed change. Therefore, this change will not result in a significant reduction in a margin of safety.
The additional proposed changes to renumber action requirements and remove a footnote that is no longer valid will not result in any technical changes to the current requirements. Therefore, these additional changes will not result in a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated.
The PASS was originally designed to perform many sampling and analysis functions. These functions were designed and intended to be used in post accident situations and were put into place as a result of the TMI-2 accident. The specific intent of the PASS was to provide a system that has the capability to obtain and analyze samples of plant fluids containing potentially high levels of radioactivity, without exceeding plant personnel radiation exposure limits. Analytical results of these samples would be used largely for verification purposes in aiding the plant staff in assessing the extent of core damage and subsequent offsite radiological dose projections. The system was not intended to and does not serve a function for preventing accidents and its elimination would not affect the probability of accidents previously evaluated.
In the 20 years since the TMI-2 accident and the consequential promulgation of post accident sampling requirements, operating experience has demonstrated that a PASS provides little actual benefit to post accident mitigation. Past experience has indicated that there exists in-plant instrumentation and methodologies available in lieu of a PASS for collecting and assimilating information needed to assess core damage following an accident. Furthermore, the implementation of Severe Accident Management Guidance (SAMG) emphasizes accident management strategies based on in-plant instruments. These strategies provide guidance to the plant staff for mitigation and recovery from a severe accident. Based on current severe accident management strategies and guidelines, it is determined that the PASS provides little benefit to the plant staff in coping with an accident.
The regulatory requirements for the PASS can be eliminated without degrading the plant emergency response. The emergency response, in this sense, refers to the methodologies used in ascertaining the condition of the reactor core, mitigating the consequences of an accident, assessing and projecting offsite releases of radioactivity, and establishing protective action recommendations to be communicated to offsite authorities. The elimination of the PASS will not prevent an accident management strategy that meets the initial intent of the post-TMI-2 accident guidance through the use of the SAMGs, the emergency plan (EP), the emergency operating procedures (EOP), and site survey monitoring that support modification of emergency plan protective action recommendations (PARs).
Therefore, the elimination of PASS requirements from Technical Specifications (TS) (and other elements of the licensing bases) does not involve a significant increase in the consequences of any accident previously evaluated.
Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident from any Previously Evaluated.
The elimination of PASS related requirements will not result in any failure mode not previously analyzed. The PASS was intended to allow for verification of the extent of reactor core damage and also to provide an input to offsite dose projection calculations. The PASS is not considered an accident precursor, nor does its existence or elimination have any adverse impact on the pre-accident state of the reactor core or post accident confinement of radionuclides within the containment building.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety.
The elimination of the PASS, in light of existing plant equipment, instrumentation, procedures, and programs that provide effective mitigation of and recovery from reactor accidents, results in a neutral impact to the margin of safety. Methodologies that are not reliant on PASS are designed to provide rapid assessment of current reactor core conditions and the direction of degradation while effectively responding to the event in order to mitigate the consequences of the accident. The use of a PASS is redundant and does not provide quick recognition of core events or rapid response to events in progress. The intent of the requirements established as a result of the TMI-2 accident can be adequately met without reliance on a PASS.
Therefore, this change does not involve a significant reduction in the margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated.
The PASS was originally designed to perform many sampling and analysis functions. These functions were designed and intended to be used in post accident situations and were put into place as a result of the TMI-2 accident. The specific intent of the PASS was to provide a system that has the capability to obtain and analyze samples of plant fluids containing potentially high levels of radioactivity, without exceeding plant personnel radiation exposure limits. Analytical results of these samples would be used largely for verification purposes in aiding the plant staff in assessing the extent of core damage and subsequent offsite radiological dose projections. The system was not intended to and does not serve a function for preventing accidents and its elimination would not affect the probability of accidents previously evaluated.
In the 20 years since the TMI-2 accident and the consequential promulgation of post accident sampling requirements, operating experience has demonstrated that a PASS provides little actual benefit to post accident mitigation. Past experience has indicated that there exists in-plant instrumentation and methodologies available in lieu of a PASS for collecting and assimilating information needed to assess core damage following an accident. Furthermore, the implementation of Severe Accident Management Guidance (SAMG) emphasizes accident management strategies based on in-plant instruments. These strategies provide guidance to the plant staff for mitigation and recovery from a severe accident. Based on current severe accident management strategies and guidelines, it is determined that the PASS provides little benefit to the plant staff in coping with an accident.
The regulatory requirements for the PASS can be eliminated without degrading the plant emergency response. The emergency response, in this sense, refers to the methodologies used in ascertaining the condition of the reactor core, mitigating the consequences of an accident, assessing and projecting offsite releases of radioactivity, and establishing protective action recommendations to be communicated to offsite authorities. The elimination of the PASS will not prevent an accident management strategy that meets the initial intent of the post-TMI-2 accident guidance through the use of the SAMGs, the emergency plan (EP), the emergency operating procedures (EOP), and site survey monitoring that support modification of emergency plan protective action recommendations (PARs).
Therefore, the elimination of PASS requirements from Technical Specifications (TS) (and other elements of the licensing bases) does not involve a significant increase in the consequences of any accident previously evaluated.
Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident from any Previously Evaluated.
The elimination of PASS related requirements will not result in any failure mode not previously analyzed. The PASS was intended to allow for verification of the extent of reactor core damage and also to provide an input to offsite dose projection calculations. The PASS is not considered an accident precursor, nor does its existence or elimination have any adverse impact on the pre-accident state of the reactor core or post accident confinement of radionuclides within the containment building.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety.
The elimination of the PASS, in light of existing plant equipment, instrumentation,
Therefore, this change does not involve a significant reduction in the margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Will operation of the facility in accordance with this proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes are administrative in nature and maintain the conservative restrictions on the operation of the CEAs. Chapter 15 of the Waterford 3 [Waterford Steam Electric Station, Unit 3] Safety Analysis Report identifies the analyses associated with the CEAs. These analyses are evaluated in the development of the Reload Analysis for each fuel cycle, and the appropriate limitations to insure acceptable analysis results are incorporated in the Core Operating Limits Report (COLR) for the fuel cycle. The modifications replacing the part-length CEAs with full-length CEAs and removing the four-element CEAs will be evaluated under the 10 CFR 50.59 process prior to implementation. The Reload Analysis and changes to the COLR are also evaluated under the 10 CFR 50.59 process prior to incorporating the identified changes.
Therefore, this change does not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Will operation of the facility in accordance with this proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes introduce no new mode of plant operation and are considered to be administrative in nature. Operating experience has shown that the full-length CEAs are capable of controlling the axial power distribution function intended for the part-length CEAs. The part-length CEAs will be replaced with the same type of full-length CEAs used in the shutdown and regulating CEA groups. Removal of the four-element CEAs provides no mechanism for creating a new or different kind of accident.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Will operation of the facility in accordance with this proposed change involve a significant reduction in a margin of safety?
The proposed changes may improve overall safety margins. Replacements of the part-length CEAs with full-length CEAs will allow Entergy [Operations, Inc.,] to credit these CEAs in the shutdown margins calculations. The worth of the four-element CEAs being removed from the core is relatively small in the modern low-leakage core design used at Waterford 3. Therefore, the removal of the four-element CEAs in combination with the replacement of the part-length CEAs with full-length CEAs will result in an overall increase in the net CEA worth. This will result in an increase in the available shutdown margin during reactor operation.
Therefore, this change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to the operating license to extend the limitations on the use of the [Pressure-Temperature] P-T limits does not affect the operations or configuration of any plant equipment. Thus, no new accident initiators are created by this change.
The proposed change extends the use of the pressure-temperature (P-T) limits for an additional cycle of operation on each unit. The P-T limits are based on the projected reactor pressure vessel (RPV) neutron fluence at 32 effective full power years (EFPYs) of operation. At the end of the next cycle of operation, the Dresden Nuclear Power Station (DNPS) units will have attained a maximum of 67.5% of the 32 EFPY operating times. Separately, we submitted a license amendment request to permit operation with an extended power uprate (EPU). Even with an approximately 17% increase in reactor power for one cycle due to the EPU, this provides significant margin to ensure that the current 32 EFPY fluence projection of 5.1 × 10
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the operating license to extend the limitations on the use of the P-T limits does not affect the operation or configuration of any plant equipment. The current P-T limits will remain valid and conservative during the proposed extension. Thus, no new or different accidents are created by this proposed change.
Therefore, the proposed change does not create the possibility of a new or different
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change extends the use of the P-T limits for an additional cycle of operation on each unit. The P-T limits are based on the projected RPV neutron fluence at 32 EFPYs of operation. At the end of the next cycle of operation, the DNPS units will have attained a maximum of 67.5% of the 32 EFPY operating times. In a separate license amendment request, ComEd submitted a license amendment request to permit operation with an extended power uprate (EPU). Even with an approximately 17% increase in reactor power for one cycle due to the EPU, this provides sufficient margin to ensure that the current 32 EFPY fluence projection of 5.1 × 10
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes to LaSalle County Station, Unit 1 and Unit 2 Technical specification (TS), add the fuel analytical methods to TS Section 5.6.5, “Core Operating Limits Report (COLR),” that support insertion of Framatome Advanced Nuclear Fuel, Inc. (i.e., Framatome) ATRIUM 10 fuel.
LaSalle County Station Unit 1, is scheduled to load ATRIUM 10 fuel during its upcoming outage in November 2001. The proposed changes to TS Section 5.6.5 will add the fuel analytical methods that support the initial insertion of ATRIUM 10 fuel tot he list of methods used to determine the core operating limits. The addition of approved methods to TS Section 5.6.5 has no effect on any accident initiator or precursor previously evaluated and does not change the manner in which the core is operated. The NRC approved methods have been reviewed to ensure that the output accurately models predicted core behavior, have no affect on the type or amount of radiation released, and have no affect on predicted offsite doses in the event of an accident.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes to TS Section 5.6.5 do not affect the performance of any LaSalle County Station structure, system, or component credited with mitigating any accident previously evaluated. The insertion of a new generation of fuel which has been analyzed with NRC approved methodologies will not affect the control parameters governing unit operation or the response plant equipment to transient conditions. The proposed changes do not introduce any new modes of system operation or failure mechanisms.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
Does the change involve a significant reduction in a margin of safety?
The proposed changes to TS Section 5.6.5 will add the ATRIUM 10 fuel analytical methods to the list of methods used to determine the core operating limits. The additional methods have been previously approved by the NRC for use by licensees. The proposed changes do modify the safety limits or setpoints at which protective actions are initiated, and do not change the requirements governing operation or availability of safety equipment assumed to operate to preserve the margin of safety.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes modify Technical Specifications (TS) Section 3.5.1, “ECCS—Operating,” Surveillance Requirement (SR) 3.5.1.8. The proposed changes will eliminate the TS requirement that the Automatic Depressurization System (ADS) designated Safety/Relief Valves (S/RVs) open during the manual actuation of the ADS and rewords the SR frequency to require the testing of all required ADS manual actuation solenoids during the performance of SR 3.5.1.8 in place of testing on a staggered basis. The performance of ADS valve testing is not a precursor to any accident previously evaluated and does not change the manner in which the ADS is operated. Thus, the proposed changes to the performance of SR 3.5.1.8 do not have any affect on the probability of an accident previously evaluated.
The testing provides assurance that the ADS will functions as designed when actuated to depressurize the Primary Coolant System (PCS). The proposed changes to the surveillance requirement provide the same level of assurance regarding ADS reliability as the previous surveillance requirements. Accordingly, the consequences of an accident previously evaluated where the ADS was credited with mitigation is unchanged.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes to SR 3.5.1.8 do not affect the performance of any LaSalle County Station structure, system, or component credited with mitigating any accident
Therefore, the proposed changes do not create the possiblility of a new or different kind of accident from any previously evaluated.
Does the change involve a significant reduction in a margin of safety?
The proposed changes to SR 3.5.1.8 will allow the uncoupling of the ADS valve lever from the other components associated with the manual actuation of the ADS valve. The proposed changes will allow the testing of the manual actuation electrical circuitry, manual actuation solenoid and air control valve, and the actuator without causing the ADS valve to open. The ADS valves will continue to be manually actuated by the bench-test valve control system of the setpoint testing program. The proposed changes do not affect the valve setpoint or the operational criteria that directs the ADS valves to be manually opened during plant transients.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. The proposed TS changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
This Technical Specification (TS) Change Request will delete the Loose Parts Monitoring System and the associated Technical Specifications and Bases currently contained in the Limerick Generating Station (LGS), Units 1 and 2, Technical Specifications. The Loose Parts Monitoring System (LPMS) is not an accident initiating system. The LPMS was designed in conformance with Regulatory Guide 1.133 (“Loose-Parts Detection Program for the Primary System of Light-Water-Cooled Reactors,” Revision 1, May 1981), to detect and alarm for loose parts in the reactor coolant system. A secondary function of the system is to assist the operators in locating the detected loose parts. The LPMS is used for information purposes only and is not a safety-related system. The operators do not rely solely on this system or information provided by this system for the performance of any safety-related action. Review of the Updated Final Safety Analysis (UFSAR) indicates that this system is not relied upon by other systems for input or data. This is a monitoring system that does not perform any automatic or control functions, and is not relied upon for any accident or transient evaluation. The removal of the LPMS from operation will not increase the need for operator intervention or increase operator burden to support any system used to mitigate an accident under normal or off normal conditions. Therefore, the proposed changes will not significantly increase the probability of an accident previously evaluated.
The removal of the LPMS will not change or degrade the physical barriers or systems designed to contain radiation, and will have no affect on the on-site or off-site radiological conditions. Therefore, the proposed TS changes do not involve a significant increase in the consequences of an accident previously evaluated.
2. The proposed TS changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
This TS Change Request will delete the Loose Parts Monitoring System and the associated Technical Specifications and Bases currently contained in the LGS, Units 1 and 2, Technical Specifications. Removal of this system will not create a new mode of operation of the plant. The LPMS is a nonsafety-related monitoring system. The proposed changes do not create a system-level failure mode different than those that already exist. In addition, there are no operation or failure modes of the LPMS that are accident initiators. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed TS changes do not involve a significant reduction in a margin of safety.
This TS Change Request does not affect any safety limits or analytical limits. Also there are no changes to accident or transient core thermal hydraulic conditions, or fuel or reactor coolant boundary design limits, as a result of these proposed changes. Therefore, the proposed changes do not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed TS change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The increase in the allowable drywell average air temperature does not make any physical changes to the plant; it only permits the plant to operate at a higher drywell average air temperature, and therefore, does not increase the probability of an accident previously evaluated.
The LGS Mark II containment design was evaluated during Power Rerate using an initial temperature of 150 degrees Fahrenheit for the Loss-of-Coolant Accident (LOCA) due to an instantaneous double-ended rupture of a recirculation suction line. The results of this evaluation showed that the drywell air temperature does not exceed the limit of 340 degrees Fahrenheit post-accident and that the peak drywell pressure does not exceed the design
Since the proposed change allows a drywell air temperature that remains within the design analysis value, this proposed change does not increase the consequences of an accident previously evaluated in the Safety Analysis Report (SAR). This proposed change does not adversely affect mitigating systems, structures or components (SSC), and does not adversely affect the initial conditions of any accidents. Redundancy and diversity of mitigating systems are unchanged as a result of this proposed change. This proposed change does not affect onsite or offsite radiological consequences of any accident previously evaluated in the SAR.
Based on the above discussion, this proposed TS change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed TS change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The increase in the drywell average air temperature proposed by this TS change does not change any SSC of the plant. This TS change does not create new operating or failure modes.
Based on the above discussion, this proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed TS change does not involve a significant reduction in the margin of safety.
This proposed change will allow the plant to operate at a higher drywell average temperature during normal operation. This change does not create additional heat loads or change the way any of the equipment is operated. The equipment will remain within the limitations of the equipment qualification (EQ) program, which is qualified/maintained based on operation at an average annual temperature of 145 degrees Fahrenheit.
Therefore, this proposed change does not involve a significant reduction in a margin of safety.
Based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Basis for proposed no significant hazards consideration determination: As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
Because of the Boraflex deterioration that has been observed, the spent fuel racks have been reanalyzed neglecting the presence of Boraflex to allow storage of Westinghouse 17 x 17 fuel assemblies with nominal enrichments up to 5.0 weight percent (w/o) using credit for checkerboarding, burnup and soluble boron. The proposed changes will not have a significant impact on the safety of the plant or on the spent fuel storage pool and are consistent with the NRC approved changes identified for other plants (i.e., Prairie Island Units 1 and 2, Vogtle Units 1 and 2). Criteria set forth in Table 3.9-1 provide qualification requirements for fuel assembly storage to ensure the NRC acceptance criteria and accident analysis assumptions are satisfied. Increasing the enrichment from 4.85 w/o up to and including 5.0 w/o U-235 [uranium 235] has minor effects on the radiological source terms and subsequently the potential releases, both normal and accidental, are not significantly affected.
The proposed Technical Specification changes credit the use of soluble boron in the spent fuel pool criticality analyses. These criticality analyses were performed using the NRC approved methodology developed by the Westinghouse Owners Group (WOG) and described in WCAP-14416-NP-A, Revision 1, “Westinghouse Spent Fuel Rack Criticality Analysis Methodology,” November 1996. The analysis includes evaluations that factor in the axial burnup bias correction and utilizing identified conservatisms in the analysis demonstrate that K
The proposed changes do not involve a change to plant equipment and do not affect the performance of plant equipment used to mitigate an accident. They do not affect the operation of the spent fuel pool cooling system or any other system and are consistent with applicable analyses including [those associated with postulated] fuel handling accidents. They will not affect the ability of any system to perform its design function; therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
There are no hardware changes associated with this license amendment nor are there any changes in the method by which any safety-related plant system performs its safety function. No new accident scenarios, transient precursors, failure mechanisms or limiting single failures are introduced as a result of the proposed changes. The proposed changes do not introduce any adverse effects or challenges to any safety-related systems.
The potential criticality accidents have been reanalyzed to demonstrate that the pool remains subcritical. Soluble boron has been maintained in the fuel storage pool water since its initial operation. The possibility of a fuel storage pool dilution is not affected by the proposed changes to the Technical Specifications. Therefore, implementation of Technical Specification controls for the soluble boron will not create the possibility of a new or different kind of accidental pool dilution.
With credit for soluble boron now a major factor in controlling subcriticality, an evaluation of fuel storage pool dilution events was completed. This evaluation concluded that no credible events would result in a reduction of the criticality margin below the 5% margin recommended by the NRC. In addition, the No Soluble Boron 95/95 probability/confidence level criticality analysis assures that dilution to 0 ppm [parts per million] will not result in criticality.
The proposed Technical Specification changes ensure the maintenance of the fuel pool boron concentration and storage configuration. Therefore, the proposed changes will not create the possibility of any new or different kind of accident from any accident previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
The proposed changes do not affect the acceptance criteria for any analyzed event
The proposed changes to the fuel storage pool boron concentration and storage requirements will provide adequate margin to assure that the fuel storage array will always remain subcritical by the 5% margin recommended by the NRC. These limits are based on a criticality analysis performed in accordance with NRC approved Westinghouse fuel storage rack criticality analysis methodology.
While criticality analysis utilized credit for soluble boron, the storage configurations have been defined using K
The spent fuel pool boron dilution analysis concludes that an unplanned or inadvertent event which would result in dilution of the spent fuel pool boron concentration from 2000 ppm to 450 ppm is not a credible event. This conclusion is based on the substantial volume of unborated water required to dilute the pool and the fact that a large dilution event would be readily detected by plant personnel via alarms, flooding in the fuel handling building or detected during normal operator rounds through the spent fuel pool area.
The margin of safety depends upon maintenance of specific operating parameters within design limits. The Technical Specifications continue to require that these limits be maintained and provide appropriate remedial actions if a limit is exceeded. The maintenance of these limits continues to be assured through performance of surveillances. Therefore, the plant will be maintained within the analyzed limits and the proposed changes will not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1a. Not involve a significant increase in the probability of an accident previously evaluated because testing and analysis have shown the once-through steam generator (OTSG) tube repair roll process under the proposed revised Technical specification (TS) Surveillance Requirement (SR) 4.4.5.4 ensures the new pressure boundary joint created by the repair roll process provides adequate structural and leakage integrity for all normal operating and accident conditions. In addition, the removal of the name “Babcock & Wilcox” is an administrative change to reflect that Framatome ANP has succeeded the Babcock & Wilcox Company. Therefore, the proposed changes to SR 4.4.5.4 will not increase the probability of a previously evaluated accident.
The proposed change to TS Bases 3/4.4.5 reflects the changes proposed to its associated SR, and does not involve an increase in the probability of an accident previously evaluated.
1b. Not involve a significant increase in the consequences of an accident previously evaluated because the repair roll process under the proposed revised SR 4.4.5.4 ensures the new pressure boundary joint created by the repair roll process provides adequate structural and leakage integrity under all accident conditions. Any leakage resulting from repair roll joint slippage under accident conditions will be accounted for to ensure that the post-accident OTSG leakage will not exceed that assumed in the accident analyses. Should a repaired tube fail, the radiological consequences would be bounded by the existing Steam Generator Tube Rupture analysis.
The proposed change to Bases 3/4.4.5 reflects the changes proposed to its associated SR, and does not involve an increase to the consequences of an accident previously evaluated.
2. Not create the possibility of a new or different kind of accident from any accident previously evaluated because there will be no change in the operation of the steam generators or connecting systems as a result of the repair roll process added by the proposed changes to SR 4.4.5.4. The physical changes in the steam generators associated with the repair roll process have been evaluated and do not create the possibility for a new or different kind of accident from any accident previously evaluated, i.e., the physical change in the steam generators is limited to the location and accident slip behavior of the primary to secondary boundary within the tubesheet. Accordingly, these changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change to Bases 3/4.4.5 reflects the changes proposed to its associated SR, and does not create the possibility of any new or different kind of accident.
3. Not involve a significant reduction in a margin of safety because tubes with primary system to secondary system boundary joints created by the repair roll process have been shown by testing and analysis to satisfy all structural, leakage, and heat transfer requirements. The additional testing of tubes repaired by the repair roll process under existing SR 4.4.5.9 provides continuing inservice monitoring of these tubes such that inservice degradation of tubes repaired by the repair roll process will be detected. Therefore, the changes to SR 4.4.5.4 to modify the repair process do not reduce and margin of safety.
The proposed change to Bases 3/4.4.5 reflects the changes proposed to its associated SR, and does not reduce the margin of safety.
On the basis of the above, the Davis-Besse Nuclear Power Station has determined that the License Amendment Request does not involve a significant hazards consideration. As this License Amendment Request concerns a proposed change to the Technical Specifications that must be reviewed by the Nuclear Regulatory Commission, this License Amendment Request does not constitute an unreviewed safety question.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Operation of the facility in accordance with the proposed amendments would not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed changes to TS 3.9.4 would allow the containment equipment door and both doors of each containment airlock to be open during fuel movement or core alterations. Currently, the equipment door is closed with four (4) bolts during fuel movement or core alterations to prevent the escape of radioactive material in the event of an in-containment fuel handling accident. The containment equipment door is not an initiator of an accident. Whether the containment equipment door is open or closed during fuel movement and core alterations has no effect on the probability of any accident previously evaluated.
Allowing the containment equipment door to be open during fuel movement or core alterations does not significantly increase the consequences from a fuel handling accident. The calculated offsite doses are well within the limits of 10 CFR Part 50.67 and RG 1.183. In addition, the calculated doses are larger than the expected doses because the calculation does not incorporate the closing of the containment equipment door after the containment is evacuated, which would occur in much less than the two hours assumed in the analysis.
The changes being proposed do not affect assumptions contained in other plant safety analyses or the physical design of the plant, nor do they affect other Technical Specifications that preserve safety analysis assumptions. Therefore, operation of the facility in accordance with the proposed amendments would not involve a significant increase in the probability or consequences of an accident previously analyzed.
2. Operation of the facility in accordance with the proposed amendments would not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes to Technical Specification 3.9.4, “Containment Building Penetrations,” affect a previously evaluated fuel handling accident. Both the current and the revised fuel handling accident analyses assume that all of the iodine and noble gases that become airborne, escape and reach the site boundary and low population zone with no credit taken for filtration, for the containment building barrier, or for decay or deposition. Since the proposed changes do not involve the addition or modification of equipment nor alter the design of plant systems, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Operation of the facility in accordance with the proposed amendments would not involve a significant reduction in a margin of safety.
The margin of safety has not been significantly reduced. The calculated dose is well within the limits given in 10 CFR Part 50.67 and RG 1.183. The proposed changes do not alter the bases for assurance that safety-related activities are performed correctly or the basis for any Technical Specification that is related to the establishment of or maintenance of a safety margin. Therefore, operation of the facility in accordance with the proposed amendments would not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
(1) Operation of the facility in accordance with the proposed amendments would not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed amendments are administrative in nature, changing the title of the corporate executive responsible for overall plant nuclear safety, and would not involve a significant increase in the probability or consequences of an accident previously evaluated. These amendments will not involve a significant increase in the probability or consequences of an accident previously evaluated because they do not affect assumptions contained in plant safety analyses, the physical design and/or operation of the plant, nor do they affect TS that preserve safety analysis assumptions. Therefore, the proposed changes do not affect the probability or consequences of accidents previously analyzed.
(2) Operation of the facility in accordance with the proposed amendments would not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes to the TS are administrative in nature, changing the title of the corporate executive responsible for overall plant nuclear safety in the Turkey Point Units 3 and 4 TS, and would not create the possibility of a new or different kind of accident from any previously evaluated. The proposed amendments will not change the physical plant or the modes of plant operation defined in the facility operating license. No new failure mode is introduced due to the administrative changes since the proposed changes do not involve the addition or modification of equipment, nor do they alter the design or operation of affected plant systems, structures, or components.
(3) Operation of the facility in accordance with the proposed amendments would not involve a significant reduction in a margin of safety.
The proposed changes are administrative in nature, changing the title of the corporate executive responsible for overall plant nuclear safety in the Turkey Point Units 3 and 4 TS, and would not reduce any of the margins of safety. The operating limits and functional capabilities of the affected systems, structures, and components remain unchanged by the proposed amendments.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request
The proposed change does not:
1. Involve a significant increase in the probability or consequence of an accident previously evaluated.
The requested license amendment involves addition of applicability statements to the design features for fuel storage and the program requirements for the spent fuel pool water chemistry program. These applicability statements will make the respective design features and program requirements applicable whenever irradiated fuel is stored in the fuel storage pool. Once irradiated fuel has been completely removed from the fuel storage pool and transferred to certified dry storage containers under a general [10 CFR] Part 72 license, these design features and program requirements for the fuel storage pool are no longer necessary. These design features include: the maximum allowable Uranium-235 enrichment in fuel assemblies stored in racks; minimum acceptable margin to criticality allowed in the design of the spent fuel racks; the nominal fuel cell spacing in the spent fuel rack design; the minimum allowable drainage prevention design elevation; the fuel assembly loading capacity of the fuel storage pool and the specified storage locations within the fuel storage pool for different fuel enrichments and burnup periods; and the maximum allowable number of standard fuel assemblies in consolidated form. The program requirements consist of the establishment, implementation and maintenance of a water chemistry program for the fuel storage pool to minimize the potential effects of corrosion.
The corresponding design features and program requirements for fuel storage in dry storage containers are specified in the container's certificate of conformance and safety analysis report. The corresponding design features currently include: fuel loading positions; fuel assembly limits including consolidated fuel and minimum cooling times versus burnup/initial enrichments. Descriptions of other design features of the UMS [Universal Multipurpose System] Storage System are found in the NAC [Nuclear Assurance Corporation]—UMS ® SAR [Safety Analysis Report]. The corresponding program requirements currently include specifications for canister vacuum drying pressure and helium backfill pressure which ensure that a sufficiently inert environment is produced within the canister to preclude or inhibit corrosion.
Since the design features and program requirements associated with fuel storage in the fuel storage pool do not significantly contribute to accident prevention or mitigation following the complete removal of irradiated fuel and since the corresponding design features and program requirements for fuel storage in dry storage containers are specified and controlled under other applicable license documents, these changes do not significantly increase the probability or the consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
The requested amendment involves the addition of applicability statements which will have the effect of making certain design features and program requirement associated with the fuel storage pool inapplicable when the fuel storage pool is no longer used for fuel storage. The corresponding design features and program requirements for fuel storage in dry storage containers are adequately specified in applicable license documents. The elimination of these design features and program requirements following complete removal of irradiated fuel from the fuel storage pool does not result in any new or different accident initiators from those already assumed in accidents previously evaluated, nor does it exacerbate any such accidents. Therefore, these changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Involve a significant reduction in a margin of safety.
The safety margins produced as a result of the specification of design features and program requirements for fuel storage in the fuel storage pool are adequately maintained in corresponding design features and program requirements associated with fuel storage in dry storage containers. These corresponding design features and program requirements are specified in the dry storage container's certificate of conformance and safety analysis report. Therefore, these changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendment involves no significant hazards consideration.
(1) The proposed amendment will not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change deletes the reference to unreviewed safety question as defined in 10 CFR 50.59. Deletion of the definition of unreviewed safety question was approved by the NRC with the revision of 10 CFR 50.59. Consequently, the probability of an accident previously evaluated is not significantly increased. Changes to the TS Bases are still evaluated in accordance with 10 CFR 50.59. As a result, the consequences of any accident previously evaluated are not significantly affected. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
(2) The proposed amendment will not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
(3) The proposed amendment will not involve a significant reduction in a margin of safety.
The proposed change will not reduce a margin of safety because it has no direct effect on any safety analyses assumptions. Changes to the TS Bases that result in meeting the criteria in paragraph 10 CFR 50.59 (c)(2) will still require NRC approval pursuant to 10 CFR 50.59. This change is administrative in nature based on the revision to 10 CFR 50.59. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed changes do not involve a significant increase in the probability or consequences of any accident previously evaluated.
Changing the pressurizer and main steam safety relief valve lift setpoint tolerance from ±1% to ±3% does not significantly increase the probability of any accident previously evaluated. The only events initiated by the opening of these safety valves are the accidental depressurization of the Reactor Coolant System and accidental depressurization of the Main Steam System. These events are a result of an inadvertent lifting of these valves and do not depend on the safety valve lift setpoint or tolerance. Therefore, the likelihood that either of these events will occur has not been increased.
Analyses associated with the limiting overpressurization transients (Loss of External Electrical Load and/or Turbine Trip, and Single Reactor Coolant Pump Locked Rotor) have been performed that demonstrate that increasing the Pressurizer Safety Valve and Main Steam Safety valve lift setpoint tolerance to ±3% would result in primary and secondary side pressure responses less than the acceptance criteria of 110% of the design pressure. Therefore, since the proposed setpoint tolerance increase would not adversely impact current accident analysis assumptions, the proposed change would not result in an increase in consequences of an accident previously evaluated.
For operation with one or two inoperable main steam safety valves in one or more steam generators, changing the required action from a reduction of the power range high neutron flux trip setpoint to a reduction of the allowable reactor power level will not increase the consequences of any accident. With one or two inoperable Main Steam Safety Valves, the Loss of External Electrical Load and/or Turbine Trip event becomes limiting in terms of secondary side pressurization. The high flux trip does not provide any mitigation for this event. Other events limiting at power, that require the power range trip for mitigation, assume a safety analysis trip setpoint of 118% (based on a nominal trip setpoint of 109%) regardless of the initial power level. Therefore, the proposed change does not impact any of the accident analysis assumptions.
During an RCCA (Reactor Cluster Control Assembly) Bank Withdrawal at Power event, the Main Steam Safety Valves may lift to ensure secondary side pressure remains below the allowable limit. This is especially true for events initiated from partial power conditions and slow reactivity insertion rates, where the reactor trip is from Overtemperature ΔT (OTDT). Protection for this event is provided by a reactor trip on OTDT, not by the power range—high neutron flux trip. Thus, the proposed change does not affect the mitigative actions for this accident. Therefore, the consequences of an RCCA are unaffected.
For three inoperable main steam safety valves in one or more steam generators, the addition of a requirement for a lower Power Range Neutron Flux High trip setpoint ensures the proposed change does not increase the consequences of this postulated accident.
The current Salem licensing basis for the Spurious Activation of the Safety Injection System credits operator action to unblock a pressurizer Power Operated Relief Valve prior to the water solid pressurizer reaching the safety valve lift setpoint. The analyses that determined the time at which the safety valve would reach its pressure setpoint covered the −3% tolerance. Since this would conservatively result in the earliest opening time, there was no need to consider the positive side of the tolerance. The results of the analyses indicate that the allowable operator action time has not changed, such that water relief continues to occur through the Power Operated Relief Valves and not through the PSVs. As such the consequences of this event have not changed as a result of the proposed change.
Increasing the MSSV lift setting tolerance may result in increased secondary side backpressure for the Auxiliary Feedwater Pumps. However, analyses have demonstrated that with the elevated backpressures that could result from increasing the MSSV setpoint upper tolerance to +3%, the Auxiliary Feedwater Pumps would still provide greater than the minimum flow required to mitigate events in which normal feedwater is not available, a Loss of Normal Feedwater and a Loss of Offsite Power to Station Auxiliaries.
In terms of radiological consequences, the current design and licensing basis analyses that include steaming through the MSSV bound the proposed lift setpoint tolerance change.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposal will result in a change in the allowed Pressurizer Safety Valve and Main Steam Safety Valve lift setpoint tolerance range. No physical changes to these valves or to their nominal lift setpoint is required. These valves are assumed to malfunction only as the initiator for the accidental depressurization of the existing Reactor Coolant System or Main Steam System accident analyses. An increased lift setpoint tolerance range does not change the assumption of these depressurization events nor create a new type of event.
Requiring a reduction in reactor thermal power or a reduction in reactor thermal power in conjunction with a reduction in Power Range Neutron Flux High Trip setpoint in the event of inoperable MSSV is consistent with the existing analysis assumptions. Initiation of any Salem Updated Final Safety Analysis Report (UFSAR) analyzed event at a power level less than full power is bounded by those events analyzed at full power, or specifically analyzed at the limiting power level, and does not constitute a new or different kind of accident. Also, no changes are being made to the power range high flux trip setpoint that will make it inconsistent with any analytical assumption.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed changes do not involve a significant reduction in the margin of safety.
Analyses performed demonstrate that the proposed increase in the Pressurizer Safety Valve and MSSV lift pressure setpoint tolerance from ±1% to ±3% will provide primary and secondary side pressure responses to the anticipated operational occurrences and design basis accidents that are within the existing margins of safety. The limiting overpressurization transients, Loss of External Electrical Load and/or Turbine Trip, and Single Reactor Coolant Pump Locked Rotor, stay well within the acceptance criteria of 110% of the design pressure.
For operation with one or two inoperable MSSVs in one or more steam generators, the proposed reduction in reactor thermal power will ensure that current margins are maintained. The current requirement to reduce the power range high neutron flux trip setpoint does not affect the margin of safety since this trip does not provide any mitigation for the limiting secondary system pressurization event, Loss of External Electrical Load and/or Turbine Trip with one or two inoperable MSSVs.
Specific accident analyses for RCCA Bank Withdrawal at Power scenarios demonstrate that a reactor trip on OTDT, in conjunction with the available relief capacity that exists with up to two inoperable safety relief valves on each steam generator, results in a secondary side pressurization within existing margins.
For three inoperable MSSVs in one or more steam generators, thermal reactor power must be reduced in conjunction with a reduction in the Power Range Neutron Flux High trip setpoint to ensure pressurization of the main steam system remains within current analysis margins.
The current licensing basis for the Spurious Activation of the Safety Injection System credits operator action to unblock a pressurizer Power Operated Relief Valve prior to the water solid pressurizer reaching the Pressurizer Safety Valve lift setpoint. As the PSVs are not designed for water relief, failure to unblock a Power Operated Relief Valve before reaching the Pressurizer Safety Valve lift setpoint would result in water relief and likely failure of the Pressurizer Safety Valve to reseat. This condition would escalate the Spurious Activation of the Safety Injection System (Condition II event) into a small break Loss Of Coolant Accident (Condition III event). The analyses that determined the time at which primary system pressure would reach the Pressurizer Safety Valve setpoint bound the −3% tolerance. Since the Pressurizer Safety Valve would not fail due to water relief, there is no reduction in the margin of safety for this event.
Increasing the Main Steam Safety Valve lift setpoint tolerance may result in increased secondary side backpressure for the Auxiliary Feedwater System. However, analyses have demonstrated that under degraded Auxiliary Feedwater Pump performance, and with secondary side backpressure corresponding to 103% of the lowest MSSV setpoint, the Auxiliary Feedwater System can provide greater than the minimum flow required to mitigate those events where normal feedwater is not available, a Loss of Normal Feedwater and a Loss of Offsite Power to Station Auxiliaries.
Therefore the proposed changes to the Technical Specifications do not involve a significant reduction in a margin of safety.
Based on the NRC staff's analysis, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change addresses necessary changes to the VCSNS Technical Specification[s] (TS) 4.7.1.2.b and 4.7.1.2.c.2 associated with the installation of six new automatic isolation valves in the EF [emergency feedwater] system. The TS [need] to be changed to assure the same level of operability for the EF system as exists with the present day configuration.
The only Final Safety Analysis Report (FSAR) analyzed accident for which the EF system could contribute as an initiator would be minor secondary line break, as described in Section 15.3.2. The addition of isolation valves in the EF piping to the steam generators will not increase the likelihood of a pipe break, since the addition will be in accordance with the same codes and standards as the corresponding, existing portions of the system. Piping stress analyses have demonstrated the addition of these valves does not result in the need to postulate any additional pipe breaks.
The accidents analyzed in the FSAR, which rely on EF to mitigate consequences, are loss of normal feedwater, loss of off-site power, and major secondary system pipe ruptures. The addition of these automatic isolation valves will eliminate the need for operator action to manually close a flow control valve in response to a major secondary system line break. The elimination of operator manual action is accomplished by the addition of a new pneumatically operated isolation valve in series with each of the six existing flow control valves. Therefore, the change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
This proposed change does not result in changes to actual operating pressures, flow rates, flow paths, or system interfaces. There are no alterations to system operability requirements. The existing system alarm setpoints are not affected, as is the information available to the operators. The addition of six new isolation valves will not change system design criteria and the surveillance testing will be the same as for the existing flow control valves.
This change does not introduce any new or different kind of failure mechanisms or limiting single failures. Piping analysis has concluded that no new pipe break locations or break sizes will result from this change. Equipment protection features are not impacted, the frequency of pump and valve operation remains the same. Independence and redundancy are actually improved. Therefore, this proposed change would not create the possibility of an accident of a different type.
3. Does this change involve a significant reduction in margin of safety?
The design basis for the EF system is to assure the required flow and pressure to remove decay heat from the core under the worst postulated conditions. An additional function of the system is to isolate flow to a faulted SG [steam generator] within the time assumed in the safety analysis. The proposed change eliminates the need for operators to take actions to manually close the flow control valves in the event of a single failure.
The proposed change will create a surveillance requirement for the new isolation valves that is the same as the existing flow control valves. The acceptance criteria will assure the operability of these valves. The design and installation of these isolation valves will maintain the requirements for independence, redundancy, separation and testability. The margins assumed in the safety analysis will be enhanced by this proposed change. Due to the automatic isolation capability, additional water will be available for the intact SGs and a reduced mass will be available to be released into the containment building. No credible single failure will be capable of preventing isolation of a faulted SG upon a high flow signal.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. This proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
This proposed change provides a more appropriate Pressure Isolation Valve (PIV) allowable leakage criteria in consideration of the safety significance and design capabilities of the plant as determined by the improved standard technical specification industry effort.
The TS leakage limit for PIVs is 0.5 gallon per minute per nominal inch of valve size with a maximum limit of 5 gallons per minute. The previous criteria of 1 gallon per minute for all valve sizes imposed an unjustified penalty on the larger valves without providing information on potential valve degradation and can result in higher personnel radiation exposures due to unwarranted rework and retesting. An NRC sponsored study concluded a leakage rate limit based on the valve size was superior to a single allowable value.
The revision to a leakage criterion related to valve size is acceptable because associated systems that have larger valves also have greater pressure relief capability. The new criteria allows for leakage above 1 gallon per minute, although limited to a maximum of 5 gallons per minute, because the isolated low pressure system will not be overpressurized based on [its] relief capacity being greater than [its] allowed leakage limit. Therefore, the proposed change to the Limiting Condition for Operation will result in lower radiation exposures to personnel and a superior leak rate limit based on valve size as compared to a single allowable value.
Since this proposed revision would continue to support the required safety functions, without modification to the plant features, neither the probability nor the consequences of an accident are increased.
2. This proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed revision is not a result of changes to plant equipment, system design, testing methods, or operating practices. The modified LCO [limiting condition for operation] requirement will allow some relaxation of the current operability criteria for the PIVs, consistent with NUREG-1431. This change provides a more appropriate requirement in consideration of the safety significance and design capabilities of the plant as determined by the improved standard technical specification industry effort. Since the functions of the associated systems will continue to perform without change, the proposed change will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. This proposed change does not involve a significant reduction in a margin [of] safety.
The proposed revision to the PIV leakage acceptance criteria will not result in changes to system design or setpoints that are intended to ensure timely identification of plant conditions that could be precursors to accidents or potential degradation of accident mitigation systems. These systems will continue to operate without change and only the associated allowable leakage criteria has been altered.
Since the setpoints and design features that support the margin of safety are unchanged and actions for inoperable systems continue to provide appropriate time limits and compensatory measures, the proposed changes will not significantly reduce the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
A. The proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The OPRM function is not considered as an initiator of any previously analyzed accident. Therefore, this proposed change does not significantly increase the probability of such accidents. This proposed change would allow the use of existing well-established alternate methods to detect and suppress thermal hydraulic instability oscillations. Considering that multiple Boiling Water Reactors plants, including BFN, have satisfactorily operated using alternate stability monitoring methods for extended periods of operation prior to the installation of OPRM systems, it is concluded these measures are adequate. Therefore, the consequences of a previously analyzed accident would not be significantly increased.
B. The proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not involve a physical alteration of the plant, add any new equipment, or require any existing equipment to be operated in a manner different from the present design. Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
C. The proposed amendment does not involve a significant reduction in a margin of safety.
This proposed change would allow the use of existing alternate methods to detect and suppress thermal hydraulic instability oscillations to continue to operate the reactor in the event of the inoperability of the OPRM system. Considering that multiple Boiling Water Reactors plants, including BFN, have satisfactorily operated using alternate stability monitoring methods for extended periods of operation, it is concluded these measures are adequate, and that the proposed change does not significantly reduce the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) The applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC web site,
Effective date: 7/17/01 and shall be implemented within 30 days of issuance.
The June 27, 2001, letter provided “camera-ready” TS pages and did not change the initial proposed no significant hazards consideration determination.
The Commission's related evaluation of this amendment is contained in a Safety Evaluation dated July 17, 2001.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 18, 2001.
No significant hazards consideration comments received: No.
The March 28, April 12, June 9, June 13, and June 29 (3), 2001, letters provided clarifying information that did not change the initial proposed no significant hazards consideration determination and did not expand the scope of the original
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 20, 2001.
No significant hazards consideration comments received: No.
The March 12, 2001, supplemental letter superseded certain aspects of the January 4, 2001, amendment request, as described in the original
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 25, 2001.
No significant hazards consideration comments received: No.
The April 19, 2001, letter provided clarifying information that did not change the initial proposed no significant hazards consideration determination.
The staff's related evaluation of the amendment is contained in a Safety Evaluation dated July 12, 2001.
No significant hazards consideration comments received: No.
Date of initial notice in
The June 28, 2001, supplement provided corrected TS pages to reflect the inclusion of amendments approved subsequent to the December 5, 2000, application, to correct a typographical error on one TS page, and to make a terminology change from “site” to “unit” on one TS page. The supplemental information did not change the initial no significant hazards consideration determination and did not expand the scope of the original
No significant hazards consideration comments received: No.
The supplemental information did not change the initial no significant hazards consideration determination and did not expand the scope of the original
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 13, 2001.
No significant hazards consideration comments received: No.
The January 11 and April 16, 2001, supplemental letters provided additional clarifying information, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 13, 2001.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 18, 2001.
No significant hazards consideration comments received: No.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual 30-day Notice of Consideration of Issuance of Amendment, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the application for amendment, (2) the amendment to Facility Operating License, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Assess and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. By September 7, 2001, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714 which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, and electronically from the ADAMS Public Library component on the NRC Web site,
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses. Since the Commission has made a final determination that the amendment involves no significant hazards consideration, if a hearing is requested, it will not stay the effectiveness of the amendment. Any hearing held would take place while the amendment is in effect.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington,
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of issuance.
The Nuclear Regulatory Commission (NRC) has issued Bulletin (BL) 2001-01 to all holders of operating licenses for pressurized-water nuclear power reactors, except those who have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel. BL 2001-01 addresses the recent discoveries of cracked and leaking reactor pressure vessel head (VHP) nozzles at several pressurized water reactors (PWRs) and the concerns raised about the structural integrity of VHP nozzles throughout the PWR industry. The purpose of the bulletin is to (1) request PWR licensees to provide information related to the structural integrity of the VHP nozzles for their respective facilities, including the extent of VHP nozzle leakage and cracking that has been found to date, the inspections and repairs that have been undertaken to satisfy applicable regulatory requirements, and the basis for concluding that their plans for future inspections will ensure compliance with applicable regulatory requirements, and (2) require PWR licensees to provide to the NRC a written response in accordance with the provisions of 10 CFR 50.54(f). This information request is necessary to permit the assessment of plant-specific compliance with NRC regulations. The information will also be used by the NRC staff to determine the need for and to guide the development of additional regulatory actions to address cracking in VHP nozzles.
The bulletin was issued on August 3, 2001.
Not applicable.
Allen L. Hiser, Jr., at 301-415-1034 or by e-mail to
Bulletin 2001-01 may be examined and/or copied for a fee at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and is accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC web site,
If you do not have access to ADAMS or if there are problems in accessing documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 301-415-4737 or 1-800-397-4209, or by e-mail to
For the Nuclear Regulatory Commission.
Dia Met Minerals Ltd., a British Columbia, Canada Corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to Section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Issuer stated in its application that it has met the requirements of Amex Rule 18 by complying with all applicable laws in effect in the province of British Columbia, Canada, in which it is organized, and with the Amex's rules governing an issuer's voluntary withdrawal of a security from listing and registration.
In making the decision to withdraw the Securities from listing and registration on the Amex, the Issuer considered the cost associated with continued Amex listing and registration and decided that it is in the best interest of the shareholders to terminate its listing on the Amex. In addition, the Issuer represents that it has recently
The Issuer's application relates solely to the Securities' withdrawal from listing and registration on the Amex and shall not affect its obligation to be registered under Section 12(g) the Act.
Any interested person may, on or before August 23, 2001 submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the Amex and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Nevada Gold & Casinos, Inc., a Nevada corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to Section 12(d) of the Securities Exchange Act of 1934
The Issuer stated in its application that the Security has been quoted on the OTC Bulletin Board since 1994. In making the decision to withdraw the Security from listing and registration on the BSE, the Issuer considered the liquidity provided by the BSE and the cost associated with maintaining such listing. The Issuer believes that market makers will continue to quote the Security on the OTC Bulletin Board so that holders of the Security are provided with accessible and liquid markets. The Issuer's application relates solely to the Security's withdrawal from listing and registration on the BSE and shall not affect its obligation to be registered under Section 12(g) of the Act.
Any interested person may, on or before August 23, 2001 submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the BSE and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Amex Rules 153, 180, and 220: (i) To require the use of handheld computers by floor brokers and Registered Options Traders (“ROTs”); (ii) to require the immediate systemization, upon receipt on the floor, of orders that are eligible for input into Amex's electronic order processing facilities (“CMS-eligible orders”) and that are not already systematized; and (iii) to update the Exchange's rules regarding records of orders.
The text of the proposed rule change is set forth below. New text is in italics; deleted text is in brackets:
Rule 153. (a) Every member or member organization shall maintain a record of every order
(b) Every member
(c)
(d) Every member
(e) Every member
(f) [Whenever a cancellation is entered with respect to an order, commitment or obligation covered by paragraph (a), (b), (c), (d) or (e) of this rule, or a]
(g) Before any order, commitment or obligation covered by paragraph (a),(c), [(c),] (d) or (e) of this rule is executed, there shall be placed upon the order slip or other record the name or designation of the account for which such order, commitment or obligation is to be executed; no change in such account name or designation shall be made unless the change has been authorized by any member or officer in the member organization or authorized representative thereof who shall, prior to giving his approval of such change, be personally informed of the essential facts relative thereto and shall indicate his approval of such change in writing on the order.
(h) All records required to be maintained under this rule shall include such information and shall be preserved for such period as required by the Securities Exchange Act of 1934 and the rules thereunder relating to the requirements for the retention of orders.
Rule 180.
Rule 220. No change.
.01 through .03. No change.
.04
The Exchange for many years has had rules and policies governing communications to and
[
[
[
There have been significant developments in data transmission technology since the Exchange formalized its communications policies.
[The Exchange has contracted with Symbol Technologies, Inc. (“Symbol”), an experienced vendor of wireless equipment, to design (in accordance with specifications provided by the Exchange), build, test and service the Infrastructure. The Infrastructure consists of two systems: (1) the Base Station System which will consist of the base stations and antennas that establish communications with the hand held terminals “HHTs”) on the Floor, and (2) the Wireless Network Management System which will allow the staff of the Exchange to monitor radio frequency (“RF”) capacity usage. The two systems will be connected by a wired network (the “LAN”).]
[The Exchange will require] All members using
The Exchange will require members to conform their proprietary technologies at their cost the requirements of any enhancements to, or replacements of, the Infrastructure
•
•
•
•
•
•
•
[The Amex intends to develop its own HHT applications for its members that are unable or unwilling either to develop their own or acquire them from another source. The Exchange, however, has not yet determined when it will proceed with such an initiative. The Exchange also intends to develop HHT applications for its Trading Floor personnel.]
The Exchange will not require any member that develops a proprietary [wireless] data communications system to make its technology available to other members. The Exchange believes that the enforced sharing of proprietary
[The Infrastructure will be able to support the simultaneous operation of 600 HHTs on the Trading Floor.
[Whenever an HHT is turned on, the unit will transmit its own identity code to the Wireless Network Management System. This will limit the possibility of unauthorized access to the Infrastructure. In addition, the Exchange will require members to assign passwords to their HHT users. This will provide another means of restricting unauthorized access to the Infrastructure. The Infrastructure also will have firewalls to protect the integrity of the Exchange's other systems.]
The Exchange will use the 2.4 GHz “unlicensed” radio frequency for the Infrastructure[ and will require members currently using 902 MHz radios to replace these units with Symbol's 2.4 GHz radio cards to conform with the requirements of the Infrasture]. Currently, the Exchange intends to permit persons that have approved wireless capabilities to use up to 1/30 of the available capacity of the 2.4 GHz frequency. [As of September 1997, the Exchange has approved 12 separate wireless applications from 10 unaffiliated firms covering a total of 217 HHTs.] Each unaffiliated applicant that has been approved to use wireless technology currently may use up to 1/30 of the available capacity of the 2.4 GHz frequency. Persons and firms that are affiliated are required to aggregate their frequency usage to determine if they are using a disproportionate amount of RF capacity. Thus, for example, if Firm A and Firm B are under common ownership, they currently only will be permitted to use 1/30 of the available RF capacity. (The term “affiliate” means, with respect to any person, any other person who or which controls, is controlled by or is under common control with such person.) In the event that more than 30 separate persons or firms (including the Exchange's Trading Floor personnel) use wireless technology, the Exchange will develop alternative methods for the equitable allocation of RF capacity.
Persons approved to use wireless technology do not acquire any property rights with respect to their use of the 2.4 GHz frequency or any other frequency that the Exchange may approve for wireless communications on the Floor. The Exchange's staff will be able to monitor the level of [wireless] message traffic[ through the Wireless Network Management System and will have the following information available on a real-time basis: status of each HHT, users that are currently logged on, the “traffic” (i.e., radio frequency use) that each HHT is generating, the traffic that each firm is generating, total radio frequency load, and warning messages in case unauthorized access is attempted]. If the Exchange determines that a firm has exceeded the amount of message traffic that it is permitted to use, it will require that firm to reduce its message traffic immediately. In addition, if the Exchange determines that wireless
[The Exchange intends to monitor total radio frequency load on an ongoing basis to determine whether steps should be taken to reduce traffic on the 2.4 GHz wavelength to ensure the efficient operation of the system. Among other measures, the Exchange might permit users of wireless data transmission technology to use other frequencies or technologies for certain classes of data transmission. (E.g., the Exchange might permit wireless technology users to transmit options analytics on the 902 MHz radio frequency.) The Exchange may conclude that other radio frequencies are preferable to the 2.4 GHz frequency, or it might decide to implement a multiple frequency approach should this appear advantageous in terms of increasing message capacity, avoiding interference, etc.]
As noted above, the Exchange will permit proprietary
Potential users of a proprietary
Without limiting the scope of the Exchange's review or the factors it may consider in determining whether to approve a proposed
[For example,] The Exchange will require persons that have developed HHTs that may be used to initiate orders or enter quotes for financial instruments traded in other markets (e.g., the NYSE, Nasdaq or Instinet) to maintain a log of such orders or quotes. This record would, at the minimum, include the following information: (1) Date, (2) the time the order or quote is sent to the other market (the clocking mechanism must be in tenths of a second measurement), (3) the identity of the person initiating the order or quote, (4) security symbol, (5) buy, sell, sell short, short exempt, (6) order type (e.g., market, limit), (7) order or quote size, (8) order or quote price, (9) execution quantity, (10) execution price, (11) market where the order or quote is routed (e.g., NYSE, Nasdaq,
The Exchange will permit members to encrypt options analytics and position information only. No other messages may be encrypted without the permission of the Exchange. In addition, members that choose to encrypt options analytics and/or position information must maintain the key to the code for a three-year period and provide the key to the Exchange on request.
[The Exchange will impose a fee or fees upon users of wireless technology in order to recover all or part of the cost of building and/or operating the Infrastructure or for other purposes. Thus, the Exchange will introduce a fee for each HHT used on the Floor. The specifics of this fee have not yet been determined, but it will not exceed $250 per month per HHT. (When the Exchange deploys its own HHTs for members, there will be a separate fee for those that use the Exchange-deployed HHTs.)]
[Pursuant to Article IV, Section 1(e) of the Exchange Constitution, “The Exchange shall not be liable for any damages sustained by a member or member organization growing out of the use or enjoyment by such member or member organization of the facilities afforded by the Exchange to members for the conduct of their business. . .” The Exchange, accordingly, shall not be liable for any damages sustained by a member or member organization growing out of the use or enjoyment by such member or member organization of the Infrastructure. In addition, the Exchange has approved new Commentary .03 to Rule 60 and will extend the current protection that the Exchange has from liability to members and member firms with respect to their use of the Infrastructure to the vendor and its subcontractors developing the Infrastructure for the Exchange, and will require that members and member firms indemnify the Exchange and the vendor and its subcontractors with regard to any third-party claims relating to member and member firm use of the Infrastructure.]
Violations of any aspect of the foregoing
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.
In the mid-1990s, ROTs began to make extensive use of proprietary handheld computer terminals (“HHTs”) that were linked to their home offices by wireless data transmission technologies. Recently, some members have begun using wired, as opposed to wireless, HHTs. Amex believes that HHTs have enhanced the ability to ROTs to conduct their business. The rapid proliferation of these devices, however, raised concerns with broadcast interference, systems disruption, antenna location, exhaustion of system capacity, and appropriate regulatory oversight of data communications. As a result of these considerations and in light of similar developments on other exchanges, Amex determined to build a Data Communications Infrastructure and adopt a Handheld Terminal Policy to regulate the use of these devices.
Amex permitted members to employ custom-designed HHTs, subject to Exchange review and approval of any new handheld technology or application. Amex also required members to use its Data Communications Infrastructure (
Amex began the introduction of its Booth Automated Routing System (“BARS”) in late 2000 and anticipates that BARS will be fully deployed by the end of 2001. In conjunction with the implementation of BARS, Amex in the first week of August 2001 introduced a wireless retail application system for brokers (“BRS/HHT”) that the Exchange expects will be fully deployed by the end of the second quarter of 2002.
According to Amex, BARS would allow member firms to manage their order flow more efficiently by giving member firms a choice of either sending orders and instructions electronically to their booths for further action or using existing order routing systems to send orders directly to the specialist post. BARS/HHT would provide wireless communications between member firm booth personnel and floor brokers using HHTs via an interface to BARS.
Amex believes that the introduction of HHTs devices on the floor: (1) Has significantly improved the ability of ROTs to make markets,
• HHTs used by ROTs must be able to receive execution reports during a trading session with respect to trades executed against their accounts automatically (
• ROTs must be able to report their trades to their clearing agents within time limits prescribed by the Exchange by means of their HHTs.
• HHTs used by ROTs must be able to make a record of text transmissions to or from other persons. This record must include the date and time of the transmission, the person initiating the transmission, all persons receiving the transmission, and the text of the message.
• ROTs must be able to capture the following audit trail data on their HHTs with respect to all trades they execute on the Exchange: (1) Time of trade (the clocking mechanism must be in seconds), (2) executing broker badge number, (3) contra broker badge number, (4) open or closing transaction, (5) clearing member, and (6) contra clearing member. ROTs must be able to report his audit trail information to their clearing agents during a trading session within time limits prescribed by the Exchange.
• HHRs used by ROTs must be able to make a record of the following information with respect to orders or quotes initiated by ROTs for securities or futures traded in other markets: (1) Date; (2) the time the order or quote is send to the other market (the clocking mechanism must be in tenths of a second measurement); (3) the identity of the person initiating the order or quote; (4) security symbol; (5) buy, sell, sell short, or short exempt; (6) order type (
• All clocking must be done electronically. All clocking mechanisms must be synchronized at least once per business day to the National Time Service or as specified by the Exchange from time to time.
• All required records must be maintained for at least three years and available to the staff of the Exchange upon request in no more than three business days.
The Exchange proposes to amend its HHT Policy to accomplish the foregoing objectives. In addition. Amex proposes to incorporate the text of the HHT Policy into the Exchange's Rules as Commentary .04 to Amex Rule 220 to make it more accessible to members and member organizations.
Amex is proposing a number of changes to its rules regarding records of orders (Amex Rules 153 and 180) to enhance the Exchange's audit trail and self-regulatory capabilities.
• Paragraph (a) of Amex Rule 153 would be amended to explicitly require members and member organizations located off the floor to maintain a record of order modifications and cancellations.
• Paragraph (b) of Amex Rule 153 would be amended to require all members and member organizations to maintain a record of all orders, modifications, and cancellations received by them on the floor. Members and member organizations would be required to systematize any order, modification, or cancellation that is CMS-eligible immediately upon receipt on the floor, if it were not already systematized.
• Paragraph (c) of Amex Rule 153 would be rescinded. Amex believes that this rule is archaic since it concerns orders “carried” to the Exchange floor, and the substance of the rule would be covered by Paragraph (b) of Amex Rule 153.
• Paragraph (d) of Amex Rule 153 concerns records of ITS commitments. It would be amended to extend recordkeeping obligations to member organizations and the cancellation of ITS commitments. The rule also would be amended to extend the obligation to maintain these records to three years.
• Paragraph (e) of Amex Rule 153 concerns records of orders in the Exchange's After Hours Trading (“AHT”) Facility. The proposed changes would consolidate AHT facility recordkeeping obligations in one place and would conform this provision to the other paragraphs of Amex Rule 153.
• Paragraph (f) of Amex Rule 153 concerns cancellations and reports. Recordkeeping responsibilities with respect to order cancellations would be transferred to the other sections of Amex Rule 153. Paragraph (f) also would be modified to require members and member organizations to keep records of reports for three years instead of 12 months.
• Amex Rule 180 concerns the recordkeeping obligations of specialists. This rule would be deleted as the revisions to Amex Rule 153 would include recordkeeping by specialists as well as other members.
Amex believes that the proposed rule change is consistent with Section 6(b) of the Act
Amex believes that the proposed rule change will further the National Market System objective of Section 11A of, “fair competition among brokers and dealers, among exchange markets, and between exchange markets and markets other than exchange markets,” by automating pre-trade order processing on the Exchange. This will strengthen the Exchange's competitive position relative to other markets and benefit investors. Amex believes that the use of Exchange-standard HHT technology for order processing also will allow the Exchange to significantly enhance its order audit trail for both equities and options by allowing the Exchange to electronically track and time stamp all orders, modifications, and cancellations sent to the Exchange.
BARS/HHT has a “Market Look” functionality that will allow brokers to electronically transmit information developed as a result of a market probe to the person that requested the information. Amex believes that this capability will “enhance the availability to brokers, dealers, and investors of information with respect to quotations for * * * securities.” BARS/HHT also has a functionality that allows brokers to electronically report executions to customers. Amex believes that this capability will “enhance the availability to brokers, dealers, and investors of information with respect to * * * transactions in securities.” Amex further believes that BARS/HHT will increase the automation of pre-trade order processing on the Exchange. This will speed and make order processing on the Exchange more efficient and thereby “enhance the practicality of brokers executing investors' orders in the best market,” when the best market is provided by the Exchange.
Amex believes that the proposed rule change would impose no burden on competition not necessary or appropriate in furtherance of the purpose of the Act.
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, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filings will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-Amex-00-60 and should be submitted by August 29, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to exempt certain spread transactions from its marketing fee. The text of the proposed rule change is available at the CBOE and at the commission.
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
In August 2000, the CBOE imposed a $0.40 per contract marketing fee to collect funds to be used by the appropriate Designated Primary Market Maker (“DPM”) to attract order flow to the CBOE.
In May 2001, the CBOE waived imposition of the marketing fee for spread transactions involving a total of at least 400 contracts of “deep in the money” options, as well as “buy write” and “synthetic” transactions involving at least 200 contracts of “deep in the money” options bought or sold in a 1-to-1 ratio versus stock.
Furthermore, the CBOE proposes to exempt from the marketing fee “deep in the money” put versus stock spread orders of 200 or more contracts. In the CBOE's view, these transactions, like reversals, conversions, and spread transactions, contribute to market liquidity but they too must be done at a smaller profit margin than other types of trades. The CBOE believes that
Finally, the CBOE proposes to amend the definition of “deep in the money” options to include “spreads traded at maximum value,” which are spreads that trade at a price equal to or greater than the difference between the two strike prices of the affected option series. Currently, the CBOE defines “deep in the money” options as those options that are in the money by a minimum of both $10 and 20% of the closing value of the underlying security on either the trade date or the date immediately prior to the trade date. According to the CBOE, if the options series involved in the spread have strike prices that are less than $10 apart, it would be impossible for these positions to be considered “deep in the money” under the current definition. Nevertheless, because these positions do trade at maximum value, the CBOE believes that it is appropriate that they be classified as “deep in the money.”
For purposes of uniformity, the CBOE proposes that all of the fee waivers contained in the footnote 10 of its Fee Schedule would become effective July 1, 2001. Therefore, effective July 1, 2001, the CBOE proposes to waive the 40-cent marketing fee for the following options transactions: (a) Spread transactions involving a total of at least 400 contracts of “deep in the money” options; (b) “buy write” and “synthetic” transactions involving at least 200 contracts of “deep in the money” options bought or sold in a 1-to-1 ratio versus stock; and (c) “deep in the money” put versus stock spread orders of 200 or more contracts.
The CBOE believes the proposed rule change is consistent with Section 6(b) of the Act,
The CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The CBOE neither solicited nor received written comments 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, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to the File No. SR-CBOE-2001-36 and should be submitted by August 29, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to correct rule text that was used as the basis for marking the changes to the CHX's clearing the post rule. Those changes were approved in File No. SR-CHX-2001-09.
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for its proposal and discussed any comments it received
On June 20, 2001, the Commission approved the Exchange's proposal to amend its rules to allow floor brokers to clear the post by telephone.
The CHX believes the proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b).
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not:
(i) significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission accelerate the operative date. The Commission finds good cause to designate the proposal to become operative immediately because such designation is consistent with the protection of investors and the public interest. Acceleration of the operative date will ensure that this correction is made as soon as possible. For these reasons, the Commission finds good cause to designate that the proposal is both effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CHX. All submissions should refer to file number SR-CHX-2001-18 and should be submitted by August 29, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CHX proposes to amend its membership dues and fees schedule effective through December 31, 2001, to provide for assessment of a marketing fee in instances where transactions in a subject issue meet certain criteria described below. The text of the proposed rule change is available at the principal offices of the CHX and at the Commission.
In its filing with the Commission, the CHX included statements concerning
The CHX proposes to change its fee scheduled to include a marketing fee of $.01 per share applicable to transactions occurring on or before December 31, 2001. The marketing fee would apply only to “Subject Transactions”
The CHX states that, by imposing the marketing fee, it intends to allocate equitably the financial burden of seeking order flow for Subject Issues. Currently, according to the CHX, the CHX specialist trading a Subject issue is the sole bearer of the often substantial costs associated with attracting order flow to the CHX, as well as licensing fees assessed by the licensor of the product.
The CHX believes that its proposed marketing fee, and the purposes thereof, closely mirror those of the various options exchanges that have implemented assessment of a marketing fee in the last year. The CHX believes that, like its marketing fee, the marketing fee programs of the options exchanges have sought to establish equitable means to allocate fairly the burdens of attracting order flow in certain issues. In the CHX's view, the Commission's rationale for approval of a marketing fee in the options market context is equally applicable to the CHX's current submission.
The CHX states that it would calculate, bill, and collect the marketing fee and then remit the proceeds to the specialist firm that trades the Subject Issue. The specialist firm would then distribute the funds to order-sending firms in accordance with its payment for order flow arrangements or, in certain instances described below, to market makers who contribute to market share growth. Under the proposal, the CHX would refund unspent marketing fee proceeds every calendar quarter. The CHX proposes to issue the refunds on a
The CHX notes that the proposed rule change provides for assessment of the marketing fee on a temporary basis only through December 31, 2001. The CHX believes that a careful analysis of the marketing fee assessment and distribution process during this temporary measuring period will permit it to assess the impact of the marketing fee and to ensure that it meets its stated goals in a fair, equitable, and non-discriminatory manner.
Significantly, the CHX believes that its assessment and collection of the marketing fee may be complemented by independent contractual undertakings between CHX specialist firms and market makers. The CHX believes that, in instances where total market share in the Subject Issue exceeds a threshold percentage upon which the specialist and market makers have agreed, a specialist firm could credit to the market makers an amount equal to the market makers' pro rata portion of the percentage by which market share exceeded the threshold percentage.
The CHX believes that the proposed rule change is consistent with Section 6(b)(4) of the Act
The CHX does not believe that the proposed rule change will impose any inappropriate burden on competition.
On May 17, 2001, the CHX received written comment regarding the proposed rule change from Susquehanna Partners, GP, a CHX market maker firm. In its comment letter, Susquehanna raised three principal bases for objecting to the marketing fee and made collateral reference to one possible adverse consequence of the marketing fee.
Two of Susquehanna's objections focus on the issue of revenue and the financial impact of the marketing fee on market makers. Specifically, Susquehanna argues that imposition of the marketing fee is not appropriate because CHX specialists currently receive a portion of the tape revenue generated by transactions on the CHX, whereas market makers do not share in this revenue. As set forth above, the CHX believes that this issue would be resolved to the parties' mutual benefit by agreements between specialists and market makers that provide for a rebate of the marketing fee to market makers who contribute to market share growth.
Susquehanna also argues that because the marketing fee is structured on a pershare basis as opposed to a per-trade basis, providers of large liquidity like Susquehanna will pay a disproportionate amount of the marketing fee. In the CHX's view, this argument ignores that the marketing fee will not be assessed in instances where the order is not the result of payment for order flow. According to the CHX, market makers who participate in large share transactions that arrive at the CHX independently of payment for order flow will not be forced to pay a marketing fee with respect to such trades. The CHX believes that per-share assessment of the marketing fee is appropriate because payment for order flow generally is made on a per share basis, permitting a virtual “pass through” of the marketing fee to order-sending firms.
Finally, Susquehanna argues that the CHX would be harmed if Susquehanna departs from the floor, removing a source of liquidity for large-sized orders. The CHX believes that it has adequate sources of liquidity without Susquehanna, should Susquehanna decline to bear its proportionate share of order flow costs by ceasing operations on the CHX floor in order to avoid assessment of the marketing fee.
The foregoing rule change proposal has become immediately effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the forgoing, including whether the proposed rule change in consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington D.C. 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-CHX-2001-10 and should be submitted by August 29, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change was published for comment in the
The Exchange is proposing to amend Supplementary Material .01 to Rule 713 to adopt the Exchange's current allocation algorithm pilot program on a permanent basis. The Exchange's allocation algorithm pilot was approved by the Commission on May 22, 2000,
ISE Rule 713 provides that customer orders have priority, based on the time priority of such orders. ISE Rule 713(e) provides that if there are two or more non-customer orders or market maker quotations at the Exchange's inside market, after filling all customers at that
The allocation procedure is a trading algorithm programmed in the ISE's electronic auction market system (the “System”) that determines how to split the execution of incoming orders among professional trading interests at the same price. All public customer orders at a given price are always executed fully before the trading algorithm is applied. Moreover, because the algorithm is applied automatically by the System upon the receipt of an executable order, only those non-customer orders and market maker quotes at the best price that are in the System participate in the algorithm. Thus, there is no opportunity for a market participant to receive an allocation unless it had an order or quote in the System at the execution price at the time the incoming order was received by the System.
Subject to the PMM's participation rights discussed below, allocation of executions to non-customer orders and market maker quotes is based on the size associated with the order or quote relative to the total size available at the execution price. According to the Exchange, because PMMs have unique obligations tot he ISE market,
The allocation procedure further provides that the PMM has precedence to execute orders of five contracts or fewer. This means that such orders will be executed first by the primary market maker if it is quoting at the best price. This aspect of the allocation procedure was approved by the Commission on a one-year pilot basis.
The Commission has reviewed the ISE's proposed rule change and finds, for the reasons set forth below, that the proposal is consistent with the requirements of section 6 of the Act
In its original approval order for the ISE's allocation algorithm, the Commission, responding to various issues raised by commenters, stated that it intended to use the one-year pilot period to monitor the rule's impact on competition by reviewing the four types of specific data that ISE provided to the Commission on a quarterly basis.
The Commission does not believe that the small order participation right for PMMs (
The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of filing thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The PCX proposes to allow PCX Floor Brokers and qualified Floor Clerks of Floor Brokers to accept offers from“Professional Customers”(as defined) for execution on the Exchange's trading floor. The text of the proposed rule change is below. Additions are in italics.
Rule 6.43(
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 proposes to adopt the requirement that qualified Floor Brokers and Floor Clerks located on the floor of the PCX who wish to accept orders directly from professional investors for execution on the trading floor must take and pass either the Series 7 or Series
The Exchange believes the proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
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 proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 52, 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 number SR-PCX-2001-26, and should be submitted by August 29, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 5, 2001, the Stock Clearing Corporation of Philadelphia (“SCCP”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change (File No. SR-SCCP-2001-02) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The purpose of the filing is to delete SCCP Rule 20. Rule 20 requires SCCP to provide a daily bookkeeping form to margin members that utilize SCCP's omnibus account. SCCP participants must verify the statement upon receipt and promptly report any exceptions or corrections. Additionally, Rule 20 provides that as of the last Friday of each month SCCP requests each participant to respond in writing as to whether their monthly account statement issued by SCCP is accurate for each type of account. If a statement is incorrect, any differences should be reported on research requests and enclosed with the written reply. The reply must be signed by the participant and returned to SCCP by the twentieth day of the month following the date of the statement. Pursuant to the rule, penalties may be imposed on a participant who fails to respond to confirmation requests in a timely manner. The rule provides for a hearing process for such participants.
SCCP believes that Rule 20 is unnecessary because the information provided to participants on a monthly basis is essentially duplicative of information provided daily pursuant to SCCP Rule 6. Moreover, SCCP believes that the participant certification requirement in Rule 20 is unnecessary, burdensome, and inconsistent with general practices in the financial services industry. SCCP Rule 6 provides that all transactions executed on the Philadelphia Stock Exchange, Inc., and all other transactions submitted by a participant to SCCP are subject to SCCP trade recording and confirmation. All transactions are recorded and confirmed to SCCP participants daily. SCCP considers each transaction complete and accurate unless notified by the participant of any inaccuracy prior to settlement date. Participants are liable for any loss resulting from their failure to notify SCCP of any discrepancies. Accordingly, the requirements of SCCP Rule 20 are unnecessary in light of the requirements of SCCP Rule 6.
Section 17A(b)(3)(F)
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular Section 17A of the Act and the rules and regulations thereunder.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change (File No. SR-SCCP-2001-02) be and hereby is approved.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
This document replaces and supercedes “Line of Succession Designation No. 1-A, Revision 24.”.
Effective immediately, the Administrator's Line of Succession Designation is as follows:
(a) If I am absent from the office, I hereby designate the officials in listed order below to serve as Acting Administrator with full authority to perform all acts and functions which the Administrator is authorized to perform:
(b) An individual serving in acting capacity in any of the positions listed in paragraph (a) but not acting by designation of the Administrator is not also included in this Line of Succession. Instead, the next official on the list shall serve as Acting Administrator.
(c) This designation shall remain in full force and effect until revoked or superceded in writing by the Administrator.
(d) Serving as Acting Administrator has no effect on the officials listed in paragraph (a), above, with respect to their current authorities, duties and responsibilities (except that such official cannot both recommend and approve an action).
Social Security Administration (SSA).
Announcement of meeting.
August 22, 2001 1 p.m.—4 p.m.
The Grand Ballroom, Loews L'Enfant Plaza Hotel, 480 L'Enfant Plaza, SW, Washington, DC 20024, (202)484-1000
Records are being kept of all Commission proceedings that are subject to public release under the Federal Advisory Committee Act and are available for public inspection at the Commission's office at the address below. Documents such as meeting announcements, agendas, minutes, and Commission reports will be available on the Commission's web page. Anyone requiring information regarding the Commission should contact Commission staff by:
• Internet at
• Mail addressed to President's Commission to Strengthen Social Security, 734 Jackson Place, NW, Washington, DC, 20503;
• Telephone at (202) 343-1255;
• Email to Comments@CSSS.gov.
Social Security Administration (SSA).
Notice; comments requested.
The President's Commission to Strengthen Social Security is seeking ideas from the public about how to address the financing problems facing Social Security in preparation for its September 2001 public hearings.
Submissions required by August 15, 2001.
Purpose: At its September 6 and September 21 hearings, the Commission would like to hear from the American people about their ideas for how to address the financial problems facing Social Security. The Commission seeks a broad range of ideas that will help the members craft recommendations to modernize and restore fiscal soundness to the Social Security system, as required by Presidential Executive Order 13210.
The commissioners welcome comment from any individual or organization regarding how best to preserve and strengthen Social Security. Areas of particular interest are:
• How to financially sustain the Social Security system.
• How personal accounts, if they are part of your Social Security solution, should be financed, structured and administered.
Send comments to the Commission:
• Internet at
• Mail to President's Commission to Strengthen Social Security, 734 Jackson Place, NW, Washington, DC, 20503.
Office of the United States Trade Representative.
Notice.
The United States Trade Representative has determined that Ethiopia has adopted an effective visa system and related procedures to prevent unlawful transshipment and the use of counterfeit documents in connection with shipments of textile and apparel articles and has implemented and follows, or is making substantial progress toward implementing and following, the customs procedures required by the African Growth and Opportunity Act. Therefore, imports of eligible products from Ethiopia qualify for the textile and apparel benefits provided under the AGOA.
August 2, 2001.
James Roth, Deputy Director for African Affairs, Office of the United States Trade Representative, (202) 395-9514.
The African Growth and Opportunity Act (Title I of the Trade Development Act of 2000, Pub. L. No. 106-200) (AGOA) provides preferential tariff treatment for imports of certain textile and apparel products of beneficiary sub-Saharan African countries. The textile and apparel trade benefits under the AGOA are available to imports of eligible products from countries that the President designates as “beneficiary sub-Saharan African countries,” provided that these countries (1) have adopted an effective visa system and related procedures to prevent unlawful transshipment and the use of counterfeit documents, and (2) have implemented and follow, or are making substantial progress toward implementing and following, certain customs procedures that assist the Customs Service in verifying the origin of the products.
In Proclamation 7350 (Oct. 2, 2000), the President designated Ethiopia as a “beneficiary sub-Saharan African country.” Proclamation 7350 delegated to the United States Trade Representative (USTR) the authority to determine whether designated countries have met the two requirements described above. The President directed the USTR to announce any such determinations in the
Accordingly, pursuant to the authority vested in the USTR by Proclamation 7350, U.S. note 7(a) to subchapter II of chapter 98 of the HTS and U.S. note 1 to subchapter XIX of chapter 98 of the HTS are each modified by inserting “Ethiopia” in alphabetical sequence in the list of countries. The foregoing modifications to the HTS are effective with respect to articles entered, or withdrawn from warehouse for consumption, on or after the effective date of this notice. Importers claiming preferential tariff treatment under the AGOA for entries of textile and apparel articles should ensure that those entries meet the applicable visa requirements.
Office of the United States Trade Representative.
Notice.
The United States Trade Representative has determined that Swaziland has adopted an effective visa system and related procedures to prevent unlawful transshipment and the use of counterfeit documents in connection with shipments of textile and apparel articles and has implemented and follows, or is making substantial progress toward implementing and following, the customs procedures required by the African Growth and Opportunity Act. Therefore, imports of eligible products from Swaziland qualify for the enhanced trade benefits provided under the AGOA.
July 26, 2001.
Chris Moore, Director for African Affairs, Office of the United States Trade Representative, (202) 395-9514.
The African Growth and Opportunity Act (Title I of the Trade and Development Act of 2000, Pub. L. No. 106-200) (AGOA) provides preferential tariff treatment for imports of certain textile and apparel products of beneficiary sub-Saharan African countries. The textile and apparel trade benefits under the AGOA are available to imports of eligible products from countries that the President designates as “beneficiary sub-Saharan African countries,” provided that these countries (1) have adopted an effective visa system and related procedures to prevent unlawful transshipment and the use of counterfeit documents, and (2) have implemented and follow, or are making substantial progress toward implementing and following, certain customs procedures that assist the Customs Service in verifying the origin of the products.
In Proclamation 7400 (Jan. 17, 2001), the President designated Swaziland as a “beneficiary sub-Saharan African country.” Proclamation 7350 (Oct. 2, 2000) delegated to the United States Trade Representative (USTR) the authority to determine whether designated countries have met the two requirements described above. The President directed the USTR to announce any such determinations in the
Accordingly, pursuant to the authority vested in the USTR by Proclamation 7350, U.S. note 7(a) to subchapter II of chapter 98 of the HTS and U.S. note 1 to subchapter XIX of chapter 98 of the HTS are each modified by inserting “Swaziland” in alphabetical sequence in the list of countries. The foregoing modifications to the HTS are effective with respect to articles entered, or withdrawn from warehouse, for consumption on or after the effective date of this notice. Importers claiming preferential tariff treatment under the AGOA for entries of textile and apparel articles should ensure that those entries meet the applicable visa requirements.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (USTR) is providing notice that on July 12, 2001, Canada requested the establishment of a WTO dispute settlement panel to examine Section 129(c)(1) of the Uruguay Round Agreements Act. USTR invites written comments from the public concerning the issues raised in this dispute.
Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before September 15, 2001 to be assured of timely consideration by USTR.
Submit comments to Sandy McKinzy, Monitoring and Enforcement Unit, Office of the General Counsel, Room 122, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, Attn: Section 129(c)(1) dispute. Telephone: (202) 395-3592.
David J. Ross, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC (202) 395-3581.
Section 127(b) of the Uruguay Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires that notice and opportunity for comment be provided after the United States submits or receives a request for the establishment of a WTO dispute settlement panel. If a dispute settlement panel is established pursuant to the WTO Dispute Settlement Understanding (DSU), such panel, which would hold its meetings in Geneva, Switzerland, would be expected to issue a report on its findings and recommendations within six to nine months after it is established.
Section 129(c)(1) of the URAA (19 U.S.C. 3538(c)(1)) is provision of U.S. law that addresses the treatment of unliquidated entries of subject merchandise in situations where the United States responds to a WTO panel decision by revoking a U.S. antidumping or countervailing duty order. In its panel request, Canada describes its claims against Section 129(c)(1) in the following manner:
The measure at issue is Section 129(c)(1) of the URAA (19 U.S.C. 3538(c)(1)). In situations in which the DSB has ruled that an antidumping or countervailing duty determination is inconsistent with the obligations of the United States under the AD Agreement or the SCM Agreement and the United States Trade Representative directs the U.S. Department of Commerce to implement a new determination, section 129(c)(1) of the URAA requires that the new determination shall apply only to entries of imports that are entered or withdrawn from warehouse for consumption on or after the date on which the United States Trade Representative directs the Department of Commerce to implement the new determination. Pursuant to section 129(c)(1), and as confirmed by the Statement of Administrative Action accompanying the URAA (H.R. Doc. No. 103-316. at page 1026 (1994)), unliquidated entries of imports that entered or were withdrawn from warehouse for consumption prior to that date (“prior unliquidated entries”) remain subject to assessment of duties pursuant to the original antidumping or countervailing duty determination, notwithstanding the adverse DSB ruling and notwithstanding that a final determination assessing those duties will be made after the date fixed for compliance in accordance with the DSU.
Accordingly, section 129(c)(1) of the URAA requires that the Department of Commerce make determinations in future administrative reviews to assess duties on prior unliquidated entries pursuant to the original antidumping or countervailing duty determination notwithstanding that such determination has been found to be not in conformity with the AD Agreement or the SCM Agreement. Section 129(c)(1) requires that the United States make duty assessments in a manner that the DSB has ruled to be inconsistent with the requirements of Article VI of the GATT 1994 or the AD Agreement and the SCM Agreement.
Canada asserts on these grounds that Section 129(c)(1) is inconsistent with Articles VI:2, VI:3 and VI:6(a) of the GATT 1994; Articles 10, 19.4, 21.1, 32.1 and 32.5 of the SCM Agreement; and Articles 1, 9.3, 11.1, 18.1 and 18.4 of the AD Agreement. Canada further claims that:
Article 18.4 of the AD Agreement, Article 32.5 of the SCM Agreement and Article XVI:4 of the Marrakesh Agreement Establishing the World Trade Organization (“WTO Agreement”) require a Member to bring its laws, regulations and administrative procedures into conformity with its WTO obligations. The DSU . . . provides that a Member found in breach of its WTO obligations is to comply immediately or, where that is not practicable, within the reasonable period of time as determined under Article 21.3. With respect to determinations made after the date fixed for compliance and insofar as such determinations affect entries prior to that date, section 129(c)(1) precludes the United States from complying with a DSB ruling. This prevents rather than ensures compliance by the United States with its WTO obligations.
On these grounds, Canada asserts that Section 129(c)(1) is consistent with Article 18.4 of the AD Agreement; Article 32.5 of the SCM Agreement, Article XVI:4 of the WTO Agreement; and DSU Articles 3.2, 3.7, 19.1, 21.1, and 213.
Interested persons are invited to submit written comments concerning the issues raised in the dispute. Comments must be in English and provided in fifteen copies. 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 commenter. 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 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 submitter believes that information or advice may qualify as such, the submitter—
(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)), USTR will maintain a file on this dispute settlement proceeding, accessible to the public, in the USTR Reading Room, which is located at 1724 “F” St., N.W., Washington, DC 20508. The public file will include a listing of any comments received by USTR from the public with respect to the dispute; if a dispute settlement panel is convened, the U.S. submissions to that panel, the submissions, or non-confidential summaries of submissions, to the panel received from other participants in the dispute, as well as the report of the panel; and, if applicable, the report of the Appellate Body. An appointment to review the public file (Docket WTO/DS-221, Section 129(c)(1) dispute) 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.
Federal Aviation Administration, DOT.
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to change a portion of airport land from aeronautical use to non-aeronautical use and to authorize the sale of the airport property. The proposal consists of fourteen parcels of land totaling approximately 58.64 acres for industrial land use. Current use and present condition is vacant grassland. There are no impacts to the airport by allowing the airport to dispose of this property. The land was acquired under FAA Project No(s). AIP-3-39-0077-1190, AIP-3-39-0077-1692, AIP-3-39-0077-2293, AIP-3-39-0077-2594, and AIP-3-39-0077-2794. Approval does not constitute a commitment by the FAA to financially assist in the sale of the subject airport property nor a determination that all measures covered by the program are eligible for Airport Improvement Program funding from the FAA. The disposition of proceeds from the sale of the airport property will be in accordance with the FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the
The proceeds from the sale of the land will be used for airport improvements and operation expenses at Toledo Express Airport.
Comments must be received on or before September 7, 2001.
Mr. Lawrence C. King, Federal Aviation Administration, Great Lakes Region, Detroit Airports District Office, DET ADO-670.2, Willow Run Airport, East, 8820 Beck Road, Belleville, Michigan 48111, (734) 487-7293. Documents reflecting this FAA action may be reviewed at this same location or at Toledo Express Airport, Toledo, Ohio.
Following is a legal description of the property located in Lucas County, Ohio and described as follows:
A parcel of land being part of the Southeast quarter of the Southwest quarter of Section 9, also being all of Rosonowski Addition Plat 1 (Plat Volume 94, Page 76), all of Original Lot 3 and part of Original Lots 6 and 7, in Section 16, all in Town 7 North, Range 9 East, Swanton Township, Lucas County, Ohio, and being more particularly described as follows:
Commencing at a found iron bolt at the Northwest corner of said Original Lot 3 also being the intersection of the centerline of Sager Road (right-of-way varies) and Wilkins Road (60 foot right-of-way), said point also being the TRUE POINT OF BEGINNING of the parcel herein described;
Thence North 00° 05′ 55″ East on the centerline of Wilkins Road, also being the West line of the Southeast quarter of the Southwest quarter of Section 9, a distance of 300.00 feet to the intersection with a line drawn 300.00 feet Northerly of and parallel to the
Thence South 89° 44′ 06″ East, on said line being 300.00 feet Northerly of and parallel to the South line of the Southeast quarter of the Southwest quarter of Section 9, a distance of 275.00 feet to the intersection with a line drawn 275.00 feet Easterly of and parallel to the West line of the Southeast quarter of the Southwest quarter of Section 9, also being the centerline of Wilkins Road;
Thence North 00° 05′ 55″ East, on said line 275.00 feet Easterly of and parallel to the West line of the Southeast quarter of the Southwest quarter of Section 9, a distance of 194.01 feet to the intersection with the Southwesterly right-of-way line of the U.S. 20A (right-of-way varies);
Thence on the Southwesterly right-of-way line of U.S. 20A the following six calls:
On an arc to the left, a distance of 829.46 feet to a point, said arc having a radius of 1487.40 feet, a central angle of 31° 57′ 05″, and a chord bearing of South 54° 47′ 13″ East, 818.76 feet;
South 00° 15′ 54″ West, a distance of 25.00 feet to a point;
South 89° 44′ 06″ East, a distance of 147.82 feet to a point;
South 00° 15′ 54″ West, a distance of 30.00 feet to a point;
South 84° 17′ 41″ East, a distance of 158.21 feet to a point;
North 86° 01′ 58″ East, a distance of 67.81 feet to the intersection with the East line of said Original Lot 3;
Thence South 00° 51′ 16″ West, on the East line of Original Lot 3, a distance of 1289.57 feet to a Northeast corner of Original Lot 7;
Thence South 00° 51′ 16″ West, on the East line of Original Lot 7, a distance of 443.19 feet to the intersection with the South line of the North one-third of Original Lot 7;
Thence North 89° 45′ 41″ West, on said South line of the North one-third of Original Lot 6, and Original Lot 7, Section 16, a distance of 1319.70 feet to the intersection of the West line of Original Lot 6, also being the center line of Wilkins Road;
Thence North 00° 54′ 28″ East, on the West line of Original Lot 6 and the centerline of Wilkins Road, a distance of 443.35 feet to the Southwest corner of Original Lot 3;
Thence North 00° 54′ 28″ East, on the West line of Original Lot 3, and the centerline of Wilkins Road, a distance of 1330.04 feet to the TRUE POINT OF BEGINNING of the parcel herein described, said parcel containing 58.640 acres of land, more or less, subject to all easements, zoning restrictions of record and legal highways.
The bearings used herein are for the purpose of describing angles only and are not referenced to true or magnetic North.
Federal Aviation Administration, DOT.
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to change a portion of the airport land from aeronautical use to non-aeronautical use. The proposal consists of two parcels of land; one 1.412 acre parcel designated as building Parcel and one parcel designated as Grazing Parcel, together totaling approximately 7.539 acres. Current use and present condition is vacant grassland. There are no impacts to the airport by allowing the airport to lease the property. The land was acquired as part of transferred surplus property formerly known as the Naval Air Station, Grosse Ile; Quitclaim Deed dated December 3, 1970. Approval does not constitute a commitment by the FAA to financially assist in the lease of the subject airport property nor a determination that all measures covered by the program are eligible for Airport Improvement Program funding from the FAA. The disposition of proceeds from the lease of the airport property will be in accordance with the FAA Policy and Procedures Concerning the Use of Airport Revenue, published in the Federal Register on February 16, 1999. This proposal is for approximately 7.539 acres in total.
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the
Comments must be received on or before September 7, 2001.
Mr. Gary Migut, Federal Aviation Administration, Great Lakes Region, Detroit Airports District Office, DET ADO-650.2, Willow Run Airport, East, 8820 Beck Road, Belleville, Michigan 48111, (734) 487-7278. Documents reflecting this FAA action may be reviewed at this same location or at Grosse Ile Municipal Airport, Grosse Ile, Michigan.
Following are legal descriptions of the property:
Federal Aviation Administration, DOT.
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to change a portion of the airport land from aeronautical use to non-aeronautical use. The proposal consists of one parcel of land, totaling approximately 15.8 acres. Current use and present condition is vacant grassland. There are no impacts to the airport by allowing the airport to lease the property. The land was acquired through a warranty deed to Jackson County Airport from the Michigan Department of Highways on January 12, 1978; then conveyed to the County of Jackson when the City of Jackson sold the airport to the County on March 24, 1983. Approval does not constitute a commitment by the FAA to financially assist in the lease of the subject airport property nor a determination that all measures covered by the program are eligible for Airport Improvement Program funding from the FAA. The disposition of proceeds from the lease of the airport property will be in accordance with the FAA Policy and Procedures Concerning the Use of Airport Revenue, published in the
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the
Comments must be received on or before September 7, 2001.
Mr. Gary Migut, Federal Aviation Administration, Great Lakes Region, Detroit Airports District Office, DET ADO-650.2, Willow Run Airport, East, 8820 Beck Road, Belleville, Michigan 48111, (734) 487-7278. Documents reflecting this FAA action may be reviewed at this same location or at Jackson County-Reynolds Airport, Jackson, Michigan.
Following are legal descriptions of the property:
LAND IN SECTION 28, TOWN 2 SOUTH, RANGE 1 WEST, BLACKMAN TOWNSHIP, JACKSON COUNTY, MICHIGAN, described as follows:to-wit: That part of the following described land lying East of a line which is 200.0′ West of the Southeast corner of the Recorded Plat of BERTON WOODS SUBDIVISION NO. 2 and parallel with the North & South
Federal Aviation Administration (FAA) DOT.
Notice.
The FAA is issuing this notice to advise the public of the third meeting of the FAA Aircraft Repair and Maintenance Advisory Committee. The purpose of the meeting is for the Committee to continue working towards accomplishing the goals and objectives pursuant to its congressional mandate.
The meeting will be held Tuesday, August 21, 2001, 9 a.m. to 4 p.m.
The meeting will be held at the Federal Aviation Administration, 800 Independence Ave., SW., Bessie Coleman Conference Center, Washington, DC 20591.
Ellen Bowie, Federal Aviation Administration (AFS-300), 800 Independence Avenue, SW., Washington, DC 20591; phone (202) 267-9952; fax (202) 267-5115; e-mail Ellen
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. II), notice is hereby given of a meeting of the FAA Aircraft Repair and Maintenance Advisory Committee to be held on August 21, at the Federal Aviation Administration, 800 Independence Avenue, SW., Bessie Coleman Conference Center, Washington, DC 20591.
The agenda will include:
Attendance is open to the public but will be limited to the availability of meeting room space. Persons desiring to
Individuals making verbal presentations at the meeting should bring 25 copies to give to the Committee's Executive Director. These copies may be provided to the audience at the discretion of the submitter.
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 Oxnard Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before September 7, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Airports Division, 15000 Aviation Blvd., Room 3024, Lawndale, CA 90261. In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Scott Smith, Director of Airports of the county of Ventura at the following address: 555 Airport Way, Camarillo, CA 93010. Air carriers and foreign air carriers may submit copies of written comments previously provided to the county of Ventura under § 158.23 of Part 158.
Mr. David Delshad, Airports Program Engineer, Standards Section, Airports Division, 15000 Aviation Blvd., Room 3024, Lawndale, CA 90261, Telephone: (310) 725-3627. 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 Oxnard Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101—508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158). On July 20, 2001, the FAA determined that the application to impose and use the revenue from a PFC submitted by the county of Ventura was substantially complete within the requirements of § 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than October 20, 2001. The following is a brief overview of the impose and use application No. 01-01-C-00-OXR.
Master Plan and Part 150 Noise Study, Rehabilitate Airport Pavement, Runway 7/25 and Exit Taxiways, Rehabilitate Terminal Loop Road Class or classes of air carriers which the public agency has requested not be required to collect PFCs: Unscheduled Part 135 Air Taxi/Commercial Operators filing FAA Form 1800-31.
Any person may inspect the application in person at the FAA office listed above under
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared in accordance with the National Environmental Policy Act for proposed transportation improvement along the I-15 corridor in Helena, Lewis and Clark & Jefferson Counties, Montana. The FHWA, in cooperation with the Montana Department of Transportation (MDT), invites public comment and will be holding public scoping meetings prior to commencing work on the environmental impact statement.
Mail, fax or e-mail written comments to: Mr. Joel Marshik, P.E., Montana Department of Transportation, Environmental Services Manager, 2701 Prospect Avenue, Helena, Montana 59620-1001, Fax: 406-444-7245, e-mail:jmarshik@state.mt.us.
Mr. Dale Paulson, Program Development Engineer, FHWA Montana Division, 2880 Skyway Drive, Helena, Montana 59602; Telephone (406) 449-5302, extension 239; or Mr. Joel Marshik, Manager, Environmental Services, Montana Department of Transportation, 2701 Prospect Avenue, Helena, Montana 59620-1001; Telephone (406) 444-7632.
The FHWA, in cooperation with Montana Department of Transportation (MDT), hereby give notice that they intend to prepare an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA), Public Law 910190, 83 Stat. 85291969), as amended, for corridor improvements to I-15 through Helena, in Lewis and Clark & Jefferson Counties, Montana. This EIS will evaluate the No Build and other Build Alternatives for proposed improvements to I-15 in Lewis and Clark & Jefferson Counties and determine the estimated costs and potential impacts associated with each. The project study area is approximately 13 miles along I-15 between the Montana City and Lincoln Road interchanges. The project includes public involvement, agency coordination, technical analysis, and preparation of the environmental document to record the decision.
Interstate 15 is the only North-South interstate highway in Montana. It is part of the National Highway System and has become critically important in regional, interstate, and international travel and commerce.
Increases in population and changes in land use patterns in the Helena area have resulted in increased traffic volumes on Interstate 15 and on East-West roadways since its construction in 1962. This increased traffic has decreased the operating efficiency of the interchanges on I-15 and on the East-West roadways crossing the highway corridor. I-15 has become a barrier to East-West travel, including pedestrians, bicyclists, and emergency access.
The purpose of the project is to accommodate anticipated traffic volumes safely and efficiently, while similarly considering the movement of east-west traffic crossing the I-15 corridor. The project will address safety and operating efficiencies at I-15 interchange and east-west roadways crossing I-15 between Lincoln Road and Montana City. The crossing roadways will be studied to the extent necessary to ensure their ability to collect and distribute anticipated traffic to and from I-15.
The public involvement program will include the following:
• Public Workshops and Meetings
• Meetings and Presentations to Neighborhood Groups and Business Organizations
• Formation of an Advisory Committee of Local Citizens and Agencies
• Project Web Site (www.I-15helenaeis.com)
• Telephone Information ‘Hotline’ (406-458-4789)
• Project Newsletter
• Public Opinion Survey
The FHWA and MDT invite interested individuals, organizations, Federal, State, and local agencies to participate in defining the alternatives to be evaluated in the EIS and identifying any significant social, economic, and environmental issues relating to the alternatives. An information packet describing the purpose and need for the project, the areas and issues to be evaluated, the citizen and agency involvement program, and the preliminary project schedule will be available at the public scoping meeting. These scoping materials may be requested by contacting Mr. Joel Marshik at the address and phone number above. Scoping comments may be made verbally at the public scoping meeting or in writing. The public will receive notices on the location and time of the scoping meeting through newspaper advertisements and/or individual correspondence.
To ensure that a full range of issues related to this proposed action are addressed and all significant issues are identified, comments and suggestions are invited from all interested parties. If you wish to be placed on the mailing list to receive further information as the project develops, contact Mr. Joel Marshik as previously described.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
The FMCSA announces its decision to exempt 22 individuals from the vision requirement in 49 CFR 391.41(b)(10).
August 8, 2001.
For information about the vision exemptions in this notice, Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, (202) 366-2987; for information about legal issues related to this notice, Mr. Joseph Solomey, Office of the Chief Counsel, (202) 366-1374, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
You may see all the comments online through the Document Management System (DMS) at:
Twenty-two individuals petitioned the FMCSA for an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of commercial motor vehicles (CMVs) in interstate commerce. They are: Roger D. Anderson, Joey E. Buice, Ronald D. Danberry, Paul W. Dawson, Lois E. DeSouza, Richard L. Gandee, Steven A. Garrity, Chester L. Gray, Waylon E. Hall, Jeffery M. Kimsey, Gerald L. Phelps, Doyle E. Ramsey, Michael J. Risch, Tim M. Seavy, Kim L. Seibel, Edd J. Stabler, Randy D. Stanley, Lee T. Taylor, James Melvin Tayman, Sr., Wesley E. Turner, Edward W. Yeates, Jr., and John C. Young.
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption for a renewable 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” Accordingly, the FMCSA has evaluated the 22 petitions on their merits and made a determination to grant the exemptions to all of them. On June 6, 2001, the agency published notice of its receipt of applications from these 22 individuals, and requested comments from the public (66 FR 30502). The comment period closed on July 6, 2001. One comment was received, and its content was carefully considered by the FMCSA in reaching the final decision to grant the petitions.
The vision requirement provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber. 49 CFR 391.41(b)(10)
Since 1992, the Federal Highway Administration (FHWA) has undertaken studies to determine if this vision standard should be amended. The final report from our medical panel recommends changing the field of vision standard from 70° to 120°, while leaving the visual acuity standard unchanged. (See Frank C. Berson, M.D., Mark C. Kuperwaser, M.D., Lloyd Paul Aiello, M.D., and James W. Rosenberg, M.D., “Visual Requirements and Commercial Drivers,” October 16, 1998, filed in the docket, FHWA-98-4334.)
The 22 applicants fall into this category. They are unable to meet the vision standard in one eye for various reasons, including amblyopia, retinal detachment, and loss of an eye due to trauma. In most cases, their eye conditions were not recently developed. All but 5 of the applicants were either born with their vision impairments or have had them since childhood. The 5 individuals who sustained their vision conditions as adults have had them for periods ranging from 4 to 40 years.
Although each applicant has one eye which does not meet the vision standard in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye and, in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. The doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and performance tests designed to evaluate their qualifications to operate a CMV. All these applicants satisfied the testing standards for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a commercial vehicle, with their limited vision, to the satisfaction of the State. The Federal interstate qualification standards, however, require more.
While possessing a valid CDL or non-CDL, these 22 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualifies them from driving in interstate commerce. They have driven CMVs with their limited vision for careers ranging from 3 to 45 years. In the past 3 years, the 22 drivers had 4 convictions for traffic violations among them. Three of these convictions were for speeding. The other conviction was for stopping on the highway in a CMV. Two drivers were involved in an accident in a CMV, but did not receive a citation.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in a June 6, 2001, notice (66 FR 30502). Since the docket comment did not focus on the specific merits or qualifications of any applicant, we have not repeated the individual profiles here. Our summary analysis of the applicants as a group is supported, with one exception, by the information published at 66 FR 30502. After the FMCSA published its notice of receipt of applications, the agency received additional information from its check of these applicants' motor vehicle records that Mr. Westley E. Turner had an accident in a CMV, but did not receive a citation. According to the police report for the accident, the other driver was cited for “Changed Lanes Within 100 Feet of Intersection.”
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption from the vision standard in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting these drivers to drive in interstate commerce as opposed to restricting them to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, the FMCSA considered not only the medical reports about the applicants' vision, but also their driving records and experience with the vision deficiency. To qualify for an exemption from the vision standard, the FMCSA requires a person to present verifiable evidence that he or she has driven a commercial vehicle safely with the vision deficiency for 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of accidents and traffic violations. Copies of the studies have been added to the docket. (FHWA-98-3637)
We believe we can properly apply the principle to monocular drivers, because data from the vision waiver program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively. (See 61 FR 13338, 13345, March 26, 1996.) The fact that experienced monocular drivers with good driving records in the waiver program demonstrated their ability to drive safely supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that accident rates for the same individual exposed to certain risks for two different time periods vary only slightly. (See Bates and Neyman, University of California Publications in Statistics, April 1952.) Other studies demonstrated theories of predicting accident proneness from accident history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future accidents. (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971.) A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall accident predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of the 22 applicants receiving an exemption, we note that cumulatively the applicants have had only two accidents and four traffic violations in the last 3 years. The two accidents did not result in the issuance of citations against the applicants. The applicants achieved this record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, the FMCSA concludes their ability to drive safely can be projected into the future.
We believe the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas
We recognize that the vision of an applicant may change and affect his/her ability to operate a commercial vehicle as safely as in the past. As a condition of the exemption, therefore, the FMCSA will impose requirements on the 22 individuals consistent with the grandfathering provisions applied to drivers who participated in the agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) that each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
The FMCSA received one comment in this proceeding. The comment was considered and is discussed below. The Louisiana Department of Public Safety and Corrections wrote the FMCSA regarding the status of Mr. Waylon E. Hall's CDL. Louisiana commented that on August 29, 2000, it downgraded Mr. Hall's Class A CDL to a non-CDL license because he did not meet the minimum physical qualification requirements in 49 CFR 391.41(b)(10). The Class A Louisiana CDL issued to Mr. Hall on January 9, 1997, was issued in error. However, Louisiana indicated that it will reissue the CDL to Mr. Hall if the FMCSA grants him an exemption from the Federal vision requirements.
After considering the comment to the docket and based upon its evaluation of the 22 exemption applications in accordance with the Rauenhorst decision, the FMCSA exempts Roger D. Anderson, Joey E. Buice, Ronald D. Danberry, Paul W. Dawson, Lois E. DeSouza, Richard L. Gandee, Steven A. Garrity, Chester L. Gray, Waylon E. Hall, Jeffery M. Kimsey, Gerald L. Phelps, Doyle E. Ramsey, Michael J. Risch, Tim M. Seavy, Kim L. Seibel, Edd J. Stabler, Randy D. Stanley, Lee T. Taylor, James Melvin Tayman, Sr., Wesley E. Turner, Edward W. Yeates, Jr., and John C. Young from the vision requirement in 49 CFR 391.41(b)(10), subject to the following conditions: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, so it may be presented to a duly authorized Federal, State, or local enforcement official.
In accordance with 49 U.S.C. 31315 and 31136(e), each exemption will be valid for 2 years unless revoked earlier by the FMCSA. The exemption will be revoked if: (1) the person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31315 and 31136. If the exemption is still effective at the end of the 2-year period, the person may apply to the FMCSA for a renewal under procedures in effect at that time.
49 U.S.C. 322, 31315 and 31136; 49 CFR 1.73.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemption; request for comments.
This notice announces the FMCSA's decision to renew the exemptions from the vision requirement in 49 CFR 391.41(b)(10) for six individuals.
This decision is effective August 8, 2001. Comments from interested persons should be submitted by September 7, 2001.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or you may print the acknowledgment page that appears after submitting comments electronically.
For information about the vision exemptions in this notice, Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, (202) 366-2987; for information about legal issues related to this notice, Mr. Joseph Solomey, Office of the Chief Counsel, (202) 366-1374, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
You may see all comments online through the Document Management System (DMS) at: http://dmses.dot.gov/submit.
Six individuals have requested renewal of their exemptions from the vision requirement in 49 CFR 391.41(b)(10) which applies to drivers of commercial motor vehicles (CMVs) in interstate commerce. They are Tomie L. Estes, Jay E. Finney, Britt D. Hazelwood, Jerome R. Jessen, Marvin L. Swillie, and Larry J. Waldner. Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption for a renewable 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” Accordingly, the FMCSA has evaluated the six petitions for renewal on their merits and decided to extend each exemption for a renewable 2-year period.
On April 5, 1999, the agency published a notice of final disposition announcing its decision to exempt 23 individuals, including these six applicants for renewal, from the vision requirement in 49 CFR 391.41(b)(10) (64 FR 16517). The qualifications, experience, and medical condition of each applicant were stated and discussed in detail at 63 FR 66226 (December 1, 1998). One comment was received, and its contents were carefully considered by the agency in reaching its final decision to grant the petitions (64 FR 16517). The agency determined that exempting the individuals from 49 CFR 391.41(b)(10) was likely to achieve a level of safety equal to, or greater than, the level that would be achieved without the exemption as long as the vision in each applicant's better eye continued to meet the standard specified in 391.41(b)(10). As a condition of the exemption, therefore, the agency imposed requirements on the individuals similar to the grandfathering provisions in 49 CFR 391.64(b) applied to drivers who participated in the agency's former vision waiver program.
These requirements are as follows: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that vision in the better eye meets the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than 2 years from its approval date and may be renewed upon application for an additional 2-year period. In accordance with 49 U.S.C. 31315 and 31136(e), each of the six applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (63 FR 30285; 63 FR 54519; 63 FR 66226; 64 FR 16517), and each has requested timely renewal of the exemption. These six applicants have submitted evidence showing that the vision in their better eye continues to meet the standard specified at 49 CFR 391.41(b)(10), and that the vision impairment is stable. In addition, a review of their records of safety while driving with their respective vision deficiencies over the past 2 years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, the FMCSA concludes that extending the exemption for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption for each renewal applicant.
The Advocates for Highway and Auto Safety (AHAS) expresses continued opposition to the FMCSA's procedures for renewing exemptions from the vision requirement in 49 CFR 391.41(b)(10). Specifically, the AHAS objects to the agency's extension of the exemptions without any opportunity for public comment prior to the decision to renew and reliance on a summary statement of evidence to make its decision to extend the exemption of each driver.
The issues raised by the AHAS were addressed at length in 66 FR 17994 (April 4, 2001). We will not address these points again here, but refer interested parties to that earlier discussion.
In accordance with 49 U.S.C. 31315 and 31136(e), the FMCSA extends the exemptions from the vision requirement in 49 CFR 391.41(b)(10) granted to Tomie L. Estes, Jay E. Finney, Britt D. Hazelwood, Jerome R. Jessen, Marvin L. Swillie, and Larry J. Waldner, subject to the following conditions: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for 2 years unless rescinded earlier by the FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31315 and 31136(e).
The FMCSA has evaluated the qualifications and driving performance of the six applicants here and extends their exemptions based on the evidence introduced. The agency will review any comments received concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31315 and 31136(e). While comments of this nature will be entertained at any time, the FMCSA requests that interested parties with information concerning the safety records of these drivers submit comments by September 7, 2001. All comments will be considered and will be available for examination in the docket room at the above address. The FMCSA will also continue to file in the docket relevant information which becomes available. Interested persons should continue to examine the docket for new material.
49 U.S.C. 322, 31136 and 31315; and 49 CFR 1.73.
National Highway Traffic Safety Administration (NHTSA) Department of Transportation (DOT).
Grant of a petition for modification of a previously approved antitheft device.
On May 13, 1993, this agency granted in full Volkswagen of America's (Volkswagen) petition for exemption from the parts-marking requirements of the vehicle theft prevention standard for the Volkswagen Jetta and Cabrio car lines. Additionally, on April 10, 1995 and December 22, 1995, the agency granted in full Volkswagen's petition for exemption for the Golf and Passat car lines, respectively. On March 12, 2001, Volkswagen petitioned the agency for modification of a previously approved antitheft device for the Jetta, Cabrio, Golf and Passat car lines beginning with the 2002 model year. The agency grants Volkswagen's petition for modification because it has determined, based on substantial evidence, that the modified antitheft device described in Volkswagen's petition to be placed on the car lines as standard equipment, is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard.
The exemption granted by this notice is effective beginning with model year (MY) 2002.
Ms. Rosalind Proctor, Office of Planning and Consumer Programs, NHTSA, 400 Seventh Street, SW., Washington, DC 20590. Ms. Proctor's telephone number is (202) 366-0846. Her fax number is (202) 493-2290.
In May 1993, NHTSA published in the Federal Register a notice granting the petition from Volkswagen of America, Inc. (Volkswagen) for an exemption from the parts-marking requirement of the Theft Prevention Standard for the Volkswagen Jetta and Cabrio car lines beginning with model year (MY) 1994 (see 58 FR 28434, May 13, 1993). In April 1995, NHTSA published in the
By letter dated March 12, 2001 Volkswagen submitted a petition for modification of its previously approved antitheft systems for the Volkswagen Cabrio, Jetta, Golf and Passat car lines, beginning with MY 2001.
On July 11, 2001, the agency contacted Volkswagen by telephone and obtained additional information which clarified the nature of the changes to the antitheft systems for its Cabrio, Jetta, Golf and Passat car lines. The information Volkswagen supplied to NHTSA by letter and telephone is considered a complete petition, as required by 49 CFR 543.9(d), in that it meets the general requirements contained in 49 CFR 543.5 and the specific content requirements of 49 CFR 543.6.
Volkswagen stated that it has modified its system by adding an electronic engine immobilizer feature to its standard antitheft system as described in its original petitions for exemption for the Jetta, Cabrio, Golf and Pasat car lines. Additionally, Volkswagen proposes to delete the starter-interrupt feature of its current system because the electronic engine immobilizer will perform the same intended functions. Volkswagen acknowledged that it had not notified the agency in advance of this added feature because it believed that there was no change to the basic system for which the exemptions had been granted. The agency notes Volkswagen's neglect to inform it of the changes it contemplated in making to its original antitheft device. In accordance with § 543.9(c)(2)(ii) the manufacturer must request permission to use an antitheft device similar to, but different from the standard equipment antitheft device which it installed under the exemption. For future exemption modifications, the agency fully expects Volkswagen to notify the agency of its intention to modify or change its antitheft system from that installed under the original exemption.
Volkswagen's electronic engine immobilizer has a three generation phase-in and its components include an immobilizer control unit, a warning lamp in the dash panel insert, a reading coil on the ignition key and an engine control unit. Volkswagen stated that the advancement between its Generation I and Generation II engine immobilizer systems used in the Golf and Jetta car lines consisted of integration of the immobilizer control unit in the dash panel insert and the addition of a coding feature. The Generation II system used in the Cabrio differs from that used in the Golf and Jetta car lines in that the immobilizer control unit is not integrated into the dash panel, but is separate. Volkswagen stated that it equipped the Passat car line with the Generation III system in MY 2001. Additionally, the optional alarm currently offered on the Passat line will be included as a standard feature of the modified system.
In MY 2002, all four car lines will be installed with the Generation III system. Volkswagen stated that the Generation III system modifies the mode of communication between the engine control module and the immobilizer control unit, so that the engine control unit also actively participates with the immobilizer control unit for calculating and verifying the correct key code for starting the engine.
Activation and deactivation of the modified system for all four car lines will remain the same as it is in the current systems. Specifically, automatic activation of the system occurs when the driver/operator removes the key from the ignition and normally locks the doors.
The modified system will require use of a correctly coded-key to start and unlock the vehicle. Volkswagen stated that the key looks like a normal coded-key with internal milling, but has a small read/write transponder built into the body or head, of the key. A data read coil has also been added to the ignition lock cylinder. The reading coil energizes the transponder in the key, reads its code and sends the key's code to the
Volkswagen stated that the modified device will also continue to monitor the vehicle's doors, hood and trunk. If the system is armed and unauthorized entry is subsequently attempted from any of the protected areas, the antitheft device will be triggered, causing activation of a visual and audible alarm.
Volkswagen also provided a detailed description of the identity, design and location of the components of the antitheft system including diagrams of the components and their location in the vehicle beginning with the 2002 MY. To prevent defeat of the antitheft system, Volkswagen stated that all system components are inaccessibly located.
In order to ensure the reliability and durability of the device, Volkswagen stated that it conducted tests of the modified antitheft device, including electrical and mechanical durability, and certifies that it passed all of the performance requirements of the tests conducted.
The agency believes that there is substantial evidence indicating that the modified antitheft device to be installed as standard equipment on the MY 2002 Volkswagen Cabrio, Golf, Jetta and Passat car lines will likely be as effective in reducing and deterring motor vehicle theft as compliance with the requirements of the Theft Prevention Standard (49 CFR Part 541). This determination is based on the information that Volkswagen submitted with its petition and other available information. The agency believes that the modified device will continue to provide five types of performance listed in 543.6(a)(3): promoting activation; attracting attention to unauthorized entries; preventing defeat or circumventing of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
As required by 49 CFR 543.6(a)(4), the agency also finds that Volkswagen has provided adequate reasons for its belief that the modified antitheft device will reduce and deter theft. This conclusion is based on the information Volkswagen provided on its antitheft system. This information included a description of reliability and functional tests conducted by Volkswagen for its antitheft device and its components.
The agency has evaluated Volkswagen's MY 2002 petition for modification of the previous exemptions granted for the Cabrio, Golf, Jetta and Passat car lines from the parts-marking requirements of 49 CFR Part 541. The agency has determined that the modified device to be installed on the Volkswagen Cabrio, Golf, Jetta and Passat car lines are likely to be as effective as parts marking in preventing and deterring theft of these vehicles, and therefore qualifies for a full exemption under 49 CFR Part 543.
For the foregoing reasons, the agency hereby grants Volkswagen's petition for modification of the exemptions previously granted to the Jetta, Cabrio, Golf and Passat car lines beginning with the 2002 model year.
If, in the future, Volkswagen decides not to use the exemption for the car lines that are the subject of this notice, it should formally notify the agency. If such a decision is made, the car line(s) must be fully marked according to the requirements under 49 CFR 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Volkswagen wishes in the future to modify the device on which this exemption is based, it may have to submit a petition to modify the exemption. Part 543.7(d) states that a Part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, 543.9(c)(2) provides for the submission of petitions “(t)o modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption.”
The agency wishes to minimize the administrative burden which 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting Part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be de minimis.
Therefore, NHTSA suggests that if the manufacturer contemplates making any changes the effects of which might be characterized as de minimis, it should consult the agency before preparing and submitting a petition to modify.
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50
On July 19, 2001, Duluth, Missabe and Iron Range Railway Company (DMIR) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon a 1.3-mile line of railroad known as the Hull Rust Line, extending from milepost 14.8 to milepost 16.1, in the city of Hibbing, St. Louis County, MN. The line traverses U.S. Postal Service Zip Code 55746. There are no stations on the line.
The line does not contain federally granted rights-of-way. Any documentation in DMIR's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by November 6, 2001.
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each OFA must be accompanied by a $1,000 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than August 28, 2001. Each trail use request must be accompanied
All filings in response to this notice must refer to STB Docket No. AB-101 (Sub-No. 16X) and must be sent to: (1) Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001; and (2) DMIR's attorney, Thomas R. Ogoreuc, 135 Jamison Lane, Monroeville, PA 15146. Replies are due on August 28, 2001.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Services at (202) 565-1592 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 565-1545. [TDD for the hearing impaired is available at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA will generally be within 30 days of its service.
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
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 3911, Taxpayer Statement Regarding Refund.
Written comments should be received on or before October 9, 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 Carol Savage, (202) 622-3945, Internal Revenue Service, room 5242, 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 an existing final regulation, INTL-399-88 (TD 8434), Treatment of Dual Consolidated Losses (§ 1.1503-2).
Written comments should be received on or before October 9, 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 regulation should be directed to Carol Savage, (202) 622-
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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes revisions to several sections of regulations that pertain to permits, recordkeeping, and reporting requirements for crab and groundfish fisheries off Alaska. The proposed changes are necessary to remove obsolete text, clarify and simplify existing text, facilitate management of the fisheries, promote compliance with the regulations, and facilitate enforcement efforts. This action is intended to further the goals and objectives of the fishery management programs for crab and groundfish fisheries off Alaska.
Comments must be received by September 7, 2001.
Comments must be sent to Sue Salveson, Assistant Administrator, Sustainable Fisheries Division, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802 (Attn: Lori Gravel), or delivered to Federal Building, Fourth Floor, 709 West 9th Street, Juneau, AK, and marked Attn: Lori Gravel. Copies of the Regulatory Impact Review (RIR) prepared for this action may be obtained from the same address or by calling the Alaska Region, NMFS, at 907-586-7228. Send comments on collection-of-information requirements to the same address and to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), Washington, DC 20503 (Attn: NOAA Desk Officer).
Patsy A. Bearden, 907-586-7228.
NMFS manages the groundfish fisheries in the Exclusive Economic Zone (EEZ) off Alaska and the crab fisheries in the EEZ of the Bering Sea and Aleutian Islands area according to fishery management plans (FMPs) prepared by the North Pacific Fishery Management Council (Council) under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
This action proposes revisions to several sections of the implementing regulations for these FMPs that pertain to permits, recordkeeping and reporting. Most of the proposed revisions are technical edits and clarifications to existing recordkeeping and reporting (R&R) requirements and are described under the section-by-section analysis. The balance of the proposed revisions are more substantial and are highlighted in this document. They would alter current R&R procedures.
Several terms would be standardized in this proposed rule and others would be corrected for uniformity wherever they appear. “Central GOA regulatory area” would replace in regulatory text: “Central area of the GOA”, “Central Gulf”, “Central regulatory area of the GOA”, and “GOA central area”. “Western GOA regulatory area” would replace: “Western area of the GOA”, “Western Gulf”, “Western regulatory area of the GOA”, and “GOA western area”. “Eastern GOA regulatory area” would replace: “Eastern area of the GOA”, “Eastern Gulf”, “Eastern regulatory area of the GOA”, and “GOA eastern area”. “Stationary floating processor” would replace “Vessel of the United States operating solely as a mothership in Alaska State waters”. “BSAI” would replace “Bering Sea and Aleutian Islands management area”. “GOA” would replace “Gulf of Alaska management area”. “Maximum retainable amount” would replace “Maximum retainable bycatch amount”. “Exempted fishery” would replace “Experimental fishery”. The term “Bycatch” would be replaced with “Incidental catch” when the meaning is fish caught while targeting on some other fish, but does not include discard of fish that were released or returned to the sea, regardless of whether such fish are brought fully on board a fishing vessel.
The term “ADF&G Number” would be replaced by “ADF&G vessel registration number”. The term “ADF&G processor number” would be replaced by “ADF&G processor code”. In certain logbooks, the term “ADF&G vessel No.” would be replaced by “ADF&G processor code.”
The term “CDQ delivery number” would be replaced by “Date fishing began” wherever it appears in regulatory text, logbooks, and forms. The term “CDQ observer” would be replaced in appropriate regulatory text by “Level 2 observer” to comply with changes in the American Fisheries Act (AFA) program and observer requirements. The gear type “jig/troll” would be separated into two separate gear types, “jig” and “troll.”
Cross references and parenthetical notes would be added for clarity and to point the reader to other sections for additional information.
Relevant to the Individual Fishing Quota (IFQ) Program, the introductory paragraph under IFQ codes would be revised to explain that only two product codes would be authorized for IFQ or CDQ Pacific halibut and that all of the product codes on Table 1 are authorized for IFQ or non-IFQ sablefish.
To accomplish a more accurate accounting of IFQ species weight, effective January 1, 2002, the IFQ landing reporting system (includes automated terminals (ATMs) and manual landings) would require an additional question about whether the fish species weight includes ice and slime, “YES” or “NO.” If YES, the program would calculate a 2-percent deduction from the weight debited from the IFQ permit account. Those fish which have been washed prior to weighing would not be eligible for a positive ice-and-slime response or 2-percent deduction. It is anticipated that any future ice-and-slime products could be easily calculated using the 2-percent approach, without causing disruption to persons submitting reports or to the database.
Also effective January 1, 2002, the following ice-and-slime codes would be removed: 51—Whole fish/food fish with ice & slime; 54—Gutted, head on, with ice & slime; 55—Gutted, head off, with ice & slime; 57—Headed and gutted, Western cut, with ice & slime; 58—Headed and gutted, Eastern cut, with ice
Product code 02 would be revised by removing two words—“processed for”—from the description of “Whole fish/bait. Processed for bait. Sold” to read “Whole fish/bait. Bait. Sold”. The existing definition mentions processing, which is not appropriate, because no processing takes place.
Product code 11 would be revised from “kirimi” to read “kirimi (steaks)” to further align with ADF&G descriptions.
Product codes 41 and 42, which currently appear on Table 1, would be moved from the discard/disposition section into the general use code section.
Code 88 would be added to mean “Whole fish, discard, infested. Flea-infested fish, parasite-infested fish.”
Code 89 would be added to mean “Whole fish, discard, decomposed. Decomposed or previously discarded fish.”
Code 96 would be removed and replaced by codes 88 and 89. Code 96 meant “discard, decomposed. Flea-infested fish, parasite-infested fish, decomposed, or previously discarded fish”.
Because five major systems use the same product codes, it is necessary that the product codes be uncomplicated, simple, and consistent: (1) When IFQ products are entered through the IFQ reporting system; (2) when groundfish products are reported electronically, either through the shoreside processor electronic logbook report (SPELR) (with the SPELR, the computer keeps track of balances based on the product code itself and does not require separate sections for summary as is the case for the logbooks) or the electronic weekly production report (WPR); (3) when groundfish products are reported in logbooks and WPRs to NMFS; (4) when groundfish products are reported on ADF&G fish tickets; and (5) when groundfish products are reported on the State of Alaska (State) Commercial Operator's Annual Report (COAR). These revisions to Table 1 would place all of the required codes together in one location.
An explanatory footnote (1) and appropriate codes marked with the footnote (1) would be added to use whole fish codes to record round weight of a fish, even if the whole fish is not used (
The regulatory descriptions of product designations would be removed from the Definitions section, § 679.2 and added to Table 1. Regulatory text discussing use of codes at § 679.5(a)(6)(iii)(F)(
A footnote would be added to Table 2 to revise the code categories formerly called “federally managed” and “State code” to read “FMP species” and “non-FMP species”. This revision would allow a finer description of species that have complex management. For example, black and blue rockfish were removed from the Gulf of Alaska (GOA) FMP but are still part of the Bering Sea and Aleutian Islands Management Area (BSAI) FMP, and come under the “other rockfish” Total Allowable Catch (TAC). Codes 142 (black rockfish, BSAI) and 167 (blue rockfish, BSAI) are added as FMP species. Codes 142 (black rockfish, GOA) and 167 (blue rockfish, GOA) are added as non-FMP species. Jellyfish presents another problem, since it is not federally managed; yet it is not represented by a State code. Another problem is that some species are federally managed at times, and State managed at other times (e.g., Pacific cod). Regulations at § 679.5 require that FMP species be recorded and reported in logbooks and forms. Non-FMP species may be recorded and reported at the discretion of the participant. A note would be added to the table title to explain which species codes are defined as FMP species (Federal groundfish and Federal prohibited species).
The code for Pacific herring would be changed from 230 to 235. Code 230 is the code for a directed fishery; code 235 is the code for prohibited species.
Code 260*, a non-FMP species code, would be revised from “Codling, Pacific flatnose” to read “Pacific flatnose” to agree with the State species description.
Code 701* would be changed to an FMP species code and would read “701—skate, longnose”.
Code 888, a species code used only with the product transfer report (PTR) meaning “mixed species tote”, would be removed because use of this code is in opposition to requiring individual species identification as products. This code was created to assist small processors with small shipments. However, NMFS discovered that the code causes confusion for shipments of species in any quantities from both small and large processors, because shipment weights of individual species are unknown and these species and weights are not deducted from the logbooks.
The forage fish codes and descriptions would be removed from § 679.2 (Definitions) and added to Table 2 as FMP species codes.
The following non-FMP codes would be removed because they are too general in description and not useful for management: 190* Greenling, general; 510 Smelt, general; 880* Oysters; and 896* Sea urchin.
Code 951 would be changed from “multispine” to read “multispina.”
The following non-FMP species codes would be indicated by “*” and would be added to Table 2: 215* Prowfish; 216* Lumpsucker; 515* Smelt, surf; 625* Jellyfish; 680* Sturgeon, general; 714* Ratfish; 715* Skilfish; 720* Albacore; 890* Snails; 892* Sea urchin, red; 893* Sea urchin, green; 951* Multispina crab; and 953* Crab, Verrilli.
Effective January 1, 2002, Table 3 would be revised by removing the IFQ ice-and-slime codes (see Table 1) and corresponding values in conjunction with changes in the IFQ landing reporting requirements. The row entry for “IFQ sablefish” would be removed causing the PRR values to be the same as “sablefish” once the ice-and-slime codes are removed.
Various types of pollock kirimi products have been developed over the years. No PRR has been assigned for these products as a group although industry reports indicate a range of yields from about 18 percent to about 42 percent depending on product form, fish size and buyer specifications. An average PRR for these products is estimated at 25 percent. Pollock kirimi is not an approved product for the purpose of roe retention so producers of pollock kirimi during pollock roe season must discard pollock roe. In response to an industry recommendation, the PRR for pollock kirimi would be established at 0.25 in Table 3.
The term “discard/donation” would be replaced by “discard/disposition” to better describe products that are utilized but not necessarily landed. An additional sheet would be added to each logbook, a goldenrod logsheet, for use by the observer. The distribution list on each logsheet would be corrected on all logsheets to represent the correct distribution sequence. “Jig/troll” would be separated into two separate gear types: “jig” and “troll.” The field entitled “target species” would be replaced by “target species code”. The date on the logsheets would be changed from “2000” to read “2001”.
The “Management Program” block would replace the “CDQ” block, and would be added to the catcher vessel longline and pot gear daily fishing logbook (DFL). The management block lists separate programs under which fish accounting is required (i.e., CDQ, IFQ, Research Program, and Exempted Fishery Program). An operator or manager may use any number of these programs, and if so, must enter the identifying number for the program. A new logsheet must be maintained for each program. A new logsheet must be maintained if more than one identifying number is used within each program.
“CDQ delivery number” would be removed; the program computer will create an identifying code based on the date fishing started.
“Agent” would be added to identify a person who may act on behalf of the owner, operator, or manager of a catcher vessel, catcher/processor, mothership, shoreside processor, stationary floating processor, buying station or IFQ Registered Buyer to apply for permits or benefits on behalf of applicants.
“Associated processor” would be added to identify the legal connection between a buying station and a federally permitted mothership, shoreside processor, or stationary floating processor.
“Endorsement” would be added to present cross references to “area endorsement” for the groundfish LLP permits; “area/species endorsement” for the crab LLP permits; and “area endorsements” for the scallop LLP permit.
“Experimental fishery” would be added as a cross reference to § 679.6 and to comply with a national change in use from “experimental fishery” to “exempted fishery.”
“Gear” would be added to create a cross reference to the definition of “authorized fishing gear.”
“Harvest zone codes” would be added as a cross reference to Table 8 to this part.
“Incidental catch or incidental species” would be added to mean fish caught while targeting on some other species, but does not include discard of fish that were released or returned to the sea, whether or not such fish are brought fully on board a fishing vessel. An incidental catch is any species or species group for which a maximum retainable amount is calculated and is expressed as a percentage of the weight of the total fish on board (see Tables 10 and 11 to this part).”
“Product transfer report (PTR)” would be added as a cross reference to § 679.5(g).
“Representative” would be added as a cross reference to § 679.5(b).
“Seabird avoidance gear” would be added to read “(see § 679.24(e), § 679.42(b)(2), and Table 19 to this part).”
“Shoreside processor electronic logbook report (SPELR)” would be added as a cross reference to § 679.5(d).
“Tagged halibut or sablefish” would be added as a cross reference to § 679.40(g).
“Weekly production report (WPR)” would be added as a cross reference to § 679.5(i).
“Active/inactive periods” would be revised to become a cross reference to § 679.5(a)(7)(i).
“Ancillary product” would be revised to become a cross reference to Table 1 to this part, and the definition text would be added to Table 1.
“Bycatch species” would be revised to read “bycatch or bycatch species” to mean fish caught and released while
Paragraph (1)(v) of “fishing trip” would be revised to exclude catcher vessels which do not operate on a weekly reporting period.
“Forage fish” would be revised to become a cross reference to Table 2 to this part.
“Gear deployment” would be revised to read “gear deployment (or to set gear)” and to describe both position and time.
Paragraph (1)
Under paragraph (2) “
“Gear retrieval” would be revised to read “gear retrieval (or to haul gear)” and to create two elements within gear retrieval: position and time where previously “gear retrieval” was defined only in terms of position. Also, the requirement to record time would be revised from “Alaska local time (A.l.t.), to the nearest hour” to read “Alaska local time” without specifying to the nearest hour. Many fishermen have commented that sometimes only minutes separate activities and to round to the nearest hour results in confusing entries.
Paragraph (1)
Paragraph (2),
“Groundfish” would be revised by adding cross references to the definitions for license limitation program groundfish, CDQ species, and IR/IU species; and as a cross reference to § 679.20 and to FMP species presented in Table 2 to this part.
“Logbook” would be revised by removing the buying station daily cumulative logbook.
“Person” would be revised to include non-citizens. The term “person” is intended to apply to any person—U.S. citizen and non-U.S. citizen alike (e.g., the prohibitions section).
“Primary product” would be revised to create a cross reference to Table 1, and the definition text added to Table 1.
“Prohibited species” would be added, unchanged from § 679.21(b)(1) to make it easier to find.
“Reprocessed or rehandled product” would be revised to create a cross reference to Table 1 to this part, and the definition text added to Table 1.
“Sablefish (black cod)” would be revised by adding cross references to IFQ sablefish; fixed gear sablefish at § 679.31(b); and sablefish as a prohibited species at § 679.24(c)(2)(ii).”
“Set” would be revised to improve consistency of recording and reporting of pot gear information and to more precisely define gear deployment and retrieval when the fishermen are using pot gear.
Paragraph (a) would be added to summarize who is qualified for and who must obtain a permit. Paragraph (a)(1) would be added as a table presentation showing program/permit types available, effective dates, and other information. Paragraph (a)(2) would be added as a table presentation showing permit and logbook requirements by type of participant and fishery. Former paragraphs (a)(1) through (6) would be redesignated as paragraphs (a)(3) through (a)(8) respectively. The heading of paragraph (a)(3) would be revised to a Question and Answer (Q&A) format. Newly redesignated paragraph (a)(3)(iii) would be revised to remove the words “buying station”, because only vessel buying stations are required to obtain a permit and vessels are already mentioned in the paragraph. Paragraph (a)(3)(v) would be added to state that permits are issued free-of-charge; this statement originally was found at paragraphs (b)(1) and (f)(1), but all permits are issued free-of-charge.
Section 679.4(b)(3)(ii) would be divided into paragraphs (b)(3)(ii) and (iii) to present equally these two requirements. Paragraph (b)(3)(iv) would be added; this information was formerly found only on the permit application and needs to be included in the regulations.
The heading for paragraph (b)(5) would be revised to the Q&A format. Paragraph (b)(5) would be reorganized. Paragraph (b)(5)(iii) would be revised to ask whether the vessel is used as a stationary floating processor. A stationary floating processor, even if it is a vessel, would take on the identity of a shore facility and would be issued a Federal processor permit.
The heading for paragraph (d) would be revised to include the word “permits.” Paragraph (d)(2) would be revised to list all of the persons who NMFS requires to have a Registered Buyer permit listed in one place. The heading for paragraph (d)(3) would be revised to a Q&A format and paragraph (d)(3)(i)(A) would be revised to include all persons who may need renewal of IFQ permits and cards.
The heading for paragraph (f)(2) would be revised to the Q&A format. Paragraph (f)(2) would be reorganized. Paragraph (f)(2)(iii) would be added to incorporate the stationary floating processor. A stationary floating processor, even if it is a vessel, would take on the identity of a shore facility and would be issued a Federal processor permit. Questions would be added to paragraph (f)(2)(iv) as to whether the shoreside processor is replacing a previous processor at this facility; if yes, name of previous processor; and whether there are multiple processors at this facility.
Section 679.5 would be reorganized by removing duplication within sections, shortening descriptions of mundane tasks, and presenting options in tabular form so that specific requirements may be quickly located. The logbooks with similar time limits would be listed in one reference table in paragraph (a). Requirements for the mothership daily cumulative production logbook (DCPLo) (formerly § 679.5(e)) and the shoreside processor DCPL (formerly § 679.5(f)) would be integrated into general sections at § 679.5(a). In several instances, headings in the Q&A format would replace existing headings. In-text tables would be used to display complex relationships to sort out multiple options, steps, conditions, and choices.
The heading for paragraph (a)(1) would be revised to the Q&A format. Paragraph (a)(1)(i) would be revised to add that the owner, operator, or manager of the listed participants is responsible for compliance with R&R. Paragraph (a)(1)(i)(D) would be added; this paragraph was moved from former paragraph(a)(2) and adds that the shoreside processor and stationary floating processor also are participants. Paragraph (a)(1)(i)(E) would be added to explain the meaning of operator and manager. The headings for paragraphs (a)(1)(ii) and (iii) would be revised to the Q&A format. Paragraph (a)(1)(iii) would be redesignated as paragraph (a)(1)(iii)(A). The heading for paragraph (a)(1)(iv) would be removed and paragraph (a)(1)(iv) would be redesignated as paragraph (a)(1)(iii)(B). Paragraphs (a)(1)(iv)(A) through (C) would be redesignated and revised as paragraphs (a)(1)(iii)(B)(
Paragraph (a)(3)(iv) would be redesignated as paragraph (a)(4) and would be revised by: Removing the expiration date from the heading; adding the words “or receiving pollock harvested in a directed pollock fishery” that are newly required under the AFA; changing references from paragraph (f)(3) to paragraph (d) and from paragraph (f)(4) to paragraph (e); and removing the last sentence because it duplicates newly redesignated paragraph (a)(2)(i).
Section 679.5(a) would be revised to present common descriptions in one section, to eliminate duplication, and to ensure uniformity in R&R requirements. Paragraph (a)(5)(i) would be revised to include the name and signature of the operator or manager. Paragraph (a)(5)(ii) would be revised to present catcher vessel identification; name of catcher vessel was formerly at paragraph (a)(5)(i). Paragraph (a)(5)(iii) would be revised to present shoreside processor or stationary floating processor identification; name of shoreside processor was formerly at paragraph (a)(5)(i). In addition, the geographic location of plant would be requested, because some processors have more than one plant. Paragraph (a)(5)(vi) would be redesignated as paragraph (a)(5)(iv) to present mothership or catcher/processor identification; name of mothership or catcher/processor was formerly at paragraph (a)(5)(i). Paragraph (a)(5)(iv) would be redesignated as paragraph (a)(5)(v) and would be revised to present buying station identification; name of buying station was formerly at paragraph (a)(5)(i) and the remainder of the information was at paragraph (a)(5)(iv). In addition, the vehicle registration number of the buying station would be requested, in the event that the buying station is a truck. Paragraph (a)(5)(v) would be removed and incorporated into § 679.5(b); this would be done to keep all of the representative information together. Paragraph (a)(5)(vi) would be removed because the signature information would be included at paragraph (a)(5)(i).
Paragraph (a)(6) would be revised by adding introductory text. Paragraph (a)(6)(i) would be revised to account for removal of the introductory text. Paragraph (a)(6)(ii) would be revised to incorporate use of the “inactive” boxes on the logbook from paragraph (a)(7)(i). Paragraph (a)(6)(ii)(C) would be added to instruct user on completion of inactive box due to surrendered permit. Paragraph (a)(6)(iii)(B) would be redesignated as paragraphs (a)(6)(iii)(A), and a table would be added presenting description of dates to be recorded in the logbook and buying station report (BSR) by participant. Paragraphs (a)(6)(iii)(B)(
Paragraph (a)(6)(iii)(F) would be removed. This paragraph described product codes, whole fish codes, discard product codes, and product designations. All of the information contained formerly in this section would be added to Table 1 to this part. Paragraph (a)(6)(iii)(G) would be removed. This paragraph described species codes. All of the information contained formerly in this section would be added to Table 2 to this part.
The heading for paragraph (a)(7) would be revised. Paragraph (a)(7)(i) would be added to paragraph (a)(6)(ii). A new paragraph (a)(7)(i) would be added to describe fishing activity, active period and inactive period by participant formerly found in paragraphs (a)(7)(ii), (iii) and (iv). A new paragraph (a)(7)(ii) would be added to describe recording of non-activity formerly found in paragraphs (a)(7)(ii), (iii) and (iv), (a)(8), (a)(9), and (a)(10). A new paragraph (a)(7)(iii) would be added to describe recording of fishing activity formerly found in paragraphs (a)(7)(ii), (iii) and (iv). A new paragraph (a)(7)(iii)(E) would be added to describe recording of participant information when not active.
A new paragraph (a)(7)(iv) would be added to describe weight, formerly found in paragraphs (a)(8), (a)(9), and (a)(10). A new paragraph (a)(7)(v) in tabular format would be added to describe recording of weight, formerly found in paragraphs (a)(8), (a)(9), and (a)(10). Three new paragraphs (a)(7)(vi), (vii), and (viii) would be added as cross references to Tables 1 and 2.
Paragraph (a)(7)(v)(A) would be redesignated as paragraph (a)(7)(ix) and revised. New paragraph (a)(7)(x) would be added to present all of the occasions that would trigger a separate logsheet, WPR, or check-in/check-out report. Paragraph (a)(7)(v)(B) would be redesignated as paragraph (a)(7)(xi) and revised. New paragraph (a)(7)(xii) would be added to present areas with a reporting area that need to be reported if harvest was with trawl gear, formerly found in paragraphs (a)(8), (a)(9), and (a)(10). Paragraph (a)(7)(v)(C) would be redesignated as paragraph (a)(7)(xiii) and revised. A new requirement for shoreside processor or stationary floating processor would be added to record the dates each observer was present.
Paragraph (a)(7)(v)(D) would be redesignated as paragraph (a)(7)(xiv) to describe crew size and would be revised. Former paragraph (a)(7)(v)(E) would be redesignated as paragraph (a)(7)(xv) and revised. This revision in tabular form adds other special programs to record, similar to the CDQ program and instructs how to record them.
Paragraph (a)(8) and paragraph (a)(8)(i) would be revised. A new requirement would be added as paragraph (a)(8)(ii) to describe how to record landings as product under certain conditions. Paragraph (a)(9), the heading for paragraph (a)(9)(i) and the text of paragraph (a)(9)(i) would be revised. Former paragraph (a)(11) would be redesignated as paragraph (a)(9)(ii) and revised because this paragraph refers to production. Paragraph (a)(10) would be revised. This paragraph would present requirements by participant type. Paragraph (a)(10)(vii) would be added to present time limit requirements for all participants in tabular form for recording discards and disposition.
A new paragraph (a)(11) would be added to present delivery information, formerly found at paragraphs (a)(15) and (a)(16), by participant type.
Paragraph (a)(13)(ii)(A) would be revised to describe what “on-site” means. Paragraph (a)(13)(ii)(B) would be revised to remove mention of the buying station. Paragraphs (a)(13)(ii)(C) through (F) would be removed because some of the instructions are duplicative of regulations found at other locations. Also the buying station logbook would be removed; therefore, the detailed instructions on handling the DCL would not be necessary.
Paragraph (a)(14) introductory text would be removed as duplicative text. Paragraph (a)(14)(i) would be revised. Paragraphs (a)(14)(ii) and (iii) would be revised to remove the buying station DCL and to add the goldenrod logsheet to all logbooks. Former paragraphs (a)(15) and (a)(16) would be removed and incorporated into new paragraph (a)(11).
New paragraph (a)(11) would add a comparison of different transfer forms in the regulations (VAR, PTR, IFQ shipment report, IFQ transshipment authorization, IFQ vessel clearance, IFQ departure report, and IFQ dockside sale receipt).
Section 679.5(b) would be revised to incorporate former paragraph (a)(5)(v), representative’s identification. This revision would bring all of the requirements for the representative to one location.
Section 679.5(a)(7)(xiv) and (c)(1) would be removed and incorporated into paragraph (a)(6)(iii)(E)(
Paragraph (c)(1) would add a new requirement in the longline and pot gear DFL and DCPL to record bird avoidance gear code when using longline gear. A check-box would be added to allow the operator, after completing all information regarding gear on one logsheet, to check the box on each subsequent logsheet if all gear information remains the same instead of re-entering that information on subsequent logsheets. The column entitled “All other species” would be changed from “pounds” to read ”(lb or mt).” The column entitled “Landing date” in the DFL delivery block would be replaced with “Date.” The title of the delivery block in the DCPL would be changed from “IFQ landings” to “Delivery,” because this logsheet is used by both IFQ and non-IFQ participants. The term “haul” would be removed from the DFL and DCPL in order to establish a standard method for recording pot gear information. Records would be defined in terms of “set” and the option to record “haul” would be removed. “Haul or set No.” would be removed and replaced with “set No.” “Begin position of haul or set” would be removed and replaced with “begin position of set.” “End position of haul or set” would be removed and replaced with “end position of set.”
In the trawl gear DFL and DCPL, the requirement to record “haul or set number” would be revised to “haul number.”
Section 679.5(d) describing the buying station daily cumulative logbook (DCL) would be removed and in its place a new requirement, the BSR, would be added. The information required by the BSR would be the same as required by the multi-copy DCL. The BSR would allow the public a more flexible method of recording catcher vessel deliveries, by using an 8
Paragraph (e), mothership DCPL requirements, would be removed because the text incorporated into general requirements at paragraph (a) for those items that have common description and all duplicative text would be removed. In the mothership DCPL, the field requesting information on crew size would be changed from: “number of processing crew, number of other crew, and total number of crew” to read “crew size.” This change would make the mothership DCPL consistent with the other processor logbooks.
Section 679.5(f), shoreside processor DCPL requirements, would be removed because the text would be incorporated into general requirements at paragraph (a) for those items that have common description and all duplicative text would be removed.
In the shoreside processor DCPL, the field “date” would be replaced by “week-ending date”, because each page may be used for 1 week.
Paragraph (f)(3) would be removed and redesignated as paragraph (e) and the heading for paragraph (e) would be revised. A new requirement at paragraph (e)(1)(i)(B) would extend the required use of the SPELR to shoreside processors or stationary floating processors that receive pollock harvested in a directed pollock fishery. All SPELR records must be available for inspection and must be retained for 3 years after the end of the fishing year.
Requirements for the SPELR printed reports (formerly § 679.4(f)(4)) would be added at new paragraph (f), and the expiration date for the paragraph on SPELR printed reports would be removed. All SPELR printed reports must be available for inspection and must be retained for 3 years after the end of the fishing year. The owner or manager would be required to sign and enter date of signature onto each SPELR printed report.
Section 679.5(g) would be revised by consolidating the two existing PTR formats (one for processor vessels, one for shoreside processors) into one, and the text that describes the information required would be clarified and simplified. A box to identify type of processor, a box to identify whether sender is the shipper or receiver, and a column entitled “species weight” to accommodate information on mixed species transfers would all be added. This column would be used to enter information for specific species products that are packaged together in one box and shipped to one destination. The weight of each product by species and product code would be recorded in addition to number of units, unit weight, and total weight.
The U.S. Coast Guard (USCG) document number of vessel processors, the page number along with the requirement to maintain a continuous numbering of the PTRs, the use of the term “offload,” and use of the harvest zones and the requirement to record them would be removed. The use of product code 888 of the PTR would be prohibited.
The current requirement for a PTR is to obtain the total fish product weight for each species/product transferred, which includes recording the number of production units and average fish product weight of one production unit. Because all shoreside processors and many catcher/processors and motherships now have at-sea scales on board, an option would be added to allow actual scale weights for the total fish product weight and for each species/product. The intention of these revisions would be to allow a standard, straightforward form with options under a variety of conditions.
Submittal requirements would be changed to include electronic submittal as well as FAX submittal of the PTRs to NMFS.
Section 679.5(h) would be reorganized and revised for clarity. Submittal requirements would be changed to include electronic submittal as well as FAX submittal of the reports to NMFS.
In the mothership and catcher/processor check-in and check-out report, replace the existing management block and add “species” after “target” in the fields requesting target species codes.
In the shoreside processor check-in and check-out report, replace the existing management block and add “or process” after the words “ceased to receive”.
Section 679.5(i) would be reorganized and revised for clarity. Submittal requirements would be changed to include electronic submittal as well as FAX submittal of the reports to NMFS.
In the mothership and catcher/processor WPR and shoreside processor WPR, the existing management block would be replaced with the new version. The gear type “jig/troll” would be separated into “jig” and “troll”. The word “code” would be added after “target species.”
In the DPR, the existing management block would be replaced with the new version. The gear type “jig/troll” would be separated into “jig” and “troll.” The word “code” would be added after “target species.”
Section 679.5(k) would be reorganized and revised for clarity. A new question would be added to ask the type of vessel (catcher vessel, catcher/processor or mothership). Two new harvest zone codes would be added to describe the EEZ of the BSAI and the GOA. Submittal requirements would be changed to include electronic submittal as well as FAX submittal of the reports to NMFS.
The manner in which Registered Buyers indicate the presence of ice and slime in reported weights of IFQ fish products in IFQ landing reports would be changed. In the current system, Registered Buyers indicate the presence of ice and slime by selecting a product code in the “50” number series, all of which indicate that the reported weight includes ice and slime and for which the stored system product recovery rate (PRR) or conversion factor (CF) includes a correction to account for the non-flesh weight. The proposal would eliminate the “50” series product codes, and their PRRs and CFs.
The current PRRs and CFs result in too small an IFQ equivalent weight deduction, and a
For example, if eastern cut sablefish (product 08) is reported with ice and slime, the system would multiply the reported weight by 0.98 and multiply the resulting flesh weight by 1 ÷ 0.63 to derive the IFQ equivalent weight for which the account is debited. If reported as being without ice and slime, the flesh weight would be converted by simply multiplying the reported product weight by 1 ÷ 0.63.
The following tables illustrate IFQ equivalent weight differences between the current calculation method (using the “50” series product codes and their PRRs and CFs) and the proposed method (which would deduct the 2
Section 679.5(l) would be reorganized and revised for clarity.
Paragraph 679.5(l)(7) would be changed to allow electronic submittal of the annual register buyer/shoreside processor IFQ Buyer Report and of the IFQ Permit Holder Fee Submission Form and fees from permit holders.
Section 679.5(m) would be revised to clarify the Federal requirement for motherships to complete ADF&G fish tickets, detailing information requirements for each delivering catcher vessel as well as for the mothership. The deadline for operators of motherships to submit completed fish tickets to ADF&G would be revised from 30 days to 45 days.
Section 679.5(n)(1)(i) would be revised to add a heading in the Q&A format, insert “stationary floating processor” and to add a sentence indicating that if using the SPELR to report to NMFS, a CDQ delivery report is not required. Section 679.5(n)(1)(ii)
Section 679.5(n)(2)(i) would be revised to add a heading in the Q&A format and to insert “stationary floating processor”.
Section 679.5(n)(2)(ii) would be revised to reformat the text for clarity. Section 679.5(n)(2)(iii), (iv), and (v) would be revised to conform to the format and content of the revised CDQ catch report.
The heading for § 679.5(o) would be revised to remove the expiration date.
Section 679.7(a)(10) would be amended to add prohibitions against mutilation of permits and cards, inaccurate information, and false information. Paragraph (a)(11)(i) would be added to prohibit the use of a catcher vessel or catcher/processor as a tender vessel before offloading all groundfish harvested or processed by that vessel. Paragraph (a)(11)(ii) would be amended to add a prohibition against operating a vessel or land-based buying station without an associated processor.
In § 679.21(b)(1), the definition for “prohibited species” would be removed and placed in the definitions section (§ 679.2) in alphabetical order.
Section 679.22(a)(11)(iv)(B) would be revised to add a cross reference to Figure 20-Steller Sea Lion Conservation Area. Paragraph (b)(3)(iii)(B) would be revised to add a cross reference to Figure 19-Shelikof Conservation Area.
Section 679.24(a)(1) currently refers to marking of longline marker buoys. This section would be revised to extend the requirement to include hook-and-line, longline pot, and pot-and-line gear. In paragraph (a)(1)(iii), “vessel's registration” number' would be replaced with “vessel's ADF&G registration number”.
Section 679.24(b)(2) refers to net-sounder devices on pelagic trawl gear. This requirement is obsolete and would be removed. Modern net-sounders do not print recordings but rather provide real-time video images of much improved quality.
Section 679.24(e)(1) would be amended to add a requirement that the operator record the appropriate bird avoidance gear code (see Table 19 to this part) in the catcher vessel longline and pot DFL or catcher/processor longline and pot DCPL.
In § 679.31, paragraph (d)(2) would be removed (the paragraph expired on December 31, 1999). Paragraph (d)(1) would be added to paragraph (d).
Section 679.32(a)(2) would be removed due to an expired date. Paragraph (a)(1) would be redesignated as paragraph (a).
New paragraphs (a)(2)(i)(C) and (D) would be added to the definition of “Qualified person” to mean a citizen of the United States at the time of application for QS and a corporation, partnership, association, or other entity that would have qualified to document a fishing vessel as a vessel of the United States during the QS qualifying years of 1988, 1989, and 1990.
Section 679.41(i)(2), which deals with IFQ category redesignation for IFQ transfer, would be removed because the date of effectiveness expired February 24, 1997. Paragraph (i)(3) would be redesignated as paragraph (i)(2).
In § 679.42, paragraph (c)(2) would be revised. Paragraphs (c)(2)(i) and (c)(2)(ii) would be added to include halibut or sablefish landings offshore and made into product prior to offload. Paragraph (c)(3) would be added to require that all IFQ catch onboard a vessel be debited from the IFQ permit holder's account under which the catch was harvested.
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 PRA unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.
This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA).
The following requirements and estimated response times have been approved by OMB and are organized by their OMB control number:
0648-0206: 5 hours for an exempted fishery progress report; 5 hours for an exempted fishery permit application; and 30 minutes for a High Seas Power Troller Salmon Permit.
0648-0213: 35 minutes for Weekly Cumulative Mothership ADF&G Fish Tickets; 14 minutes for U.S. Vessel Activity Report.
0648-0269: 1 hour for CDQ Delivery Report; and 15 minutes for CDQ catch report.
0648-0316: 40 hours for an application; 40 hours for documentation by a distributor; 6 minutes for labeling and product tracking of a shipment by a vessel or processor; and 15 minutes to provide documentation on a vessel or processor).
0648-0401: 30 minutes for daily completion of the SPELR and the estimated time to electronically submit the SPELR (30 min./day); and 5 minutes for estimated time to print the SPELR reports.
0648-0428: 8 hours to complete and submit the COAR.
The following requirements are new or revised and have been submitted to OMB for approval:
0648-0206: 20 minutes for the Federal Fisheries Permit/Federal Processor Permit Application.
0648-0213: 17 minutes for Catcher Vessel trawl gear DFL; 28 minutes for Catcher Vessel longline and pot gear DFL; 31 minutes for Catcher/processor trawl gear DCPL; 41 minutes for Catcher/processor longline and pot gear DCPL; 31 minutes for Shoreside processor DCPL; 31 minutes for Mothership DCPL; 8 minutes for Shoreside Processor Check-in/Check-out Report; 7 minutes for Mothership or Catcher/processor Check-in/Check-out Report; 11 minutes for Product transfer report; 17 minutes for Weekly Production Report; 11 minutes for Daily Production Report; estimated time to electronically submit the weekly production report (5 min./report); 5 minutes to electronically submit the check-in/check-out report; 23 minutes for buying station report.
0648-0272: 12 minutes for IFQ Prior notice of landing; 12 minutes for IFQ Landing report; 18 minutes for IFQ Shipment report; 12 minutes for IFQ Transshipment authorization; 12 minutes for IFQ Vessel clearance; 6 minutes for IFQ Departure report; 6 minutes for IFQ Dockside sale; 6 minutes for Administrative waiver.
0648-0353: 15 minutes to paint each buoy with the vessel name and Federal
The estimated response times shown include the time to review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information.
Public comment is sought regarding whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS and OMB (see
The NMFS Alaska Region prepared an Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) that describes the impact this proposed rule, if adopted, would have on small entities. The number of small entities to which the proposed rule will apply are identified as: 1,254 catcher vessels; 47 catcher processors; 32 onshore processors, 6 CDQ groups; 268 buying stations; 1,613 halibut fishing operations; and 92 Registered Buyers.
This RIR/IRFA analyzes proposed amendments to regulations at 50 CFR part 679 that would revise R&R regulations for the Alaska groundfish fisheries and for the IFQ halibut and sablefish fisheries off of Alaska. The objectives of the proposed actions are: to clarify and simplify the regulations pertaining to the management of the groundfish fisheries and the IFQ halibut and sablefish fisheries in the waters of the BSAI and the GOA; to ease certain regulatory burdens to reduce the cost of operation for fishermen and increase compliance with regulations; to reduce the costs of enforcing fisheries regulations; to enhance the value of the pollock fisheries managed under the AFA; to reduce the costs of compliance with pollock reasonable and prudent alternatives (RPAs) for Steller sea lion protection; and to reduce the costs and increase the effectiveness of regulations protecting migratory birds identified as endangered or threatened under the Endangered Species Act (ESA). It provides the analyses required under Executive Order 12866 and the RFA.
Eight groups of regulatory changes are identified in the analysis, each being independent of the other. Any one of them may be adopted in combination with any possible grouping of the others. Because of this, the RIR and the accompanying IRFA evaluate each of the eight proposals independently. Each of the proposals is evaluated against a “no action” alternative and the costs and benefits relative to the “no action” alternative are identified.
1.
2.
Substitution of the BSR for the DCL should benefit operators of buying stations by reducing their paperwork costs. It will benefit processors to the extent that the buying stations are their subsidiaries and they share in the reduced paperwork costs. NMFS estimates a reduction in public and private costs (a benefit) of about $8,700 per year. This estimate assumes all tender permits are active and in complete compliance with the program and does not take in to account the unknown number of land-based buying stations. There are no apparent costs to implement this proposal.
3.
The SPELR brings three classes of benefits: (a) Reduced annual R&R costs for NMFS and for firms adopting the SPELR, (b) enhanced value from the AFA statute, and (c) reduced costs of compliance with pollock RPAs for Steller sea lion protection. The annual R&R costs for firms and NMFS can be estimated. Each firm that adopts the SPELR will have annual SPELR expenses, but will no longer have to file or maintain the WPR or DCPL. The SPELR is expected to cost $941 per year while the savings on the WPR and DCPL is expected to be $2,508. NMFS will incur an additional $133 to receive SPELR reports from a new firm, but will save $627 per year on WPR and DCPL paperwork. The net overall paperwork savings should be about $2,194 per year for each firm that adopts the SPELR. Since two firms are expected to adopt, the total cost is $4,388 per year.
The cost of adopting the SPELR system is the cost to each firm of acquiring a computer and converting to the data processing system and software used by the SPELR. These costs are estimated to be $4,000 per firm. Four firms not using the SPELR would have to begin using it under this regulation, and three of these firms are known to have already made significant progress toward adopting the SPELR. As noted, 19 firms are currently required to use the SPELR because they buy groundfish from AFA catcher vessels. Another two firms would be required to begin using the SPELR under the provisions of the proposed rule requiring that firms accepting deliveries of pollock from fisheries targeting pollock use the SPELR. On the basis of anecdotal information, 13 of these firms are believed to be large firms, employing or affiliated with firms that employ more than 500 persons. The sizes of another eight of these firms are not known. For the purpose of this analysis, these have been treated as small firms, although this may overestimate the numbers of small firms. Six CDQ groups will also be impacted. CDQ groups are considered to be small non-profit entities.
4.
The benefits from these proposed changes would be increased flexibility and consequent reduced operating costs for dinglebar lingcod fishermen who hold halibut QS, and in addition, an improved ability by NMFS to target its enforcement assets. The cost to registered buyers of collecting and reporting the additional information would be small.
Registered buyers complete landings reports using automated terminals. These terminals lead the buyers through a series of question prompts. The change would require the addition to prompts for the gear type used in the landing and for information on whether or not salmon or lingcod taken with dinglebar gear was landed concurrently with the IFQ fish. This information should be known to or readily available to the registered buyer. In 2000, about 10,057 landings reports were submitted. At 1 minute for the two additional questions, the total additional time required would have been about 168 hours. At $20 per hour (the pay for a Federal GS-7 in Alaska, including COLA), the total cost would have valued at about $3,400.
5.
This change would provide processors more flexibility in adapting their responses to their working procedures and may result in some private sector time savings. If the regulation change reduces the time taken to fill out the PTRs by 10 percent, it would produce a private sector cost savings of about $1,568 per year. There are no implementation or other costs.
NMFS estimates that 171 processors (110 catcher/processors, 3 motherships, and 58 shoreside processors or stationary floating processors) must currently file a PTR for each transfer of product an average of 25 times a year generating 4,275 PTRs per year. The estimated time requirement for a PTR is 11 minutes. Total time devoted to PTRs is estimated to be 784 hours a year. NMFS estimates that the total cost of PTR preparation is $15,675 (this does not include costs of submittal to NMFS by FAX).
Forty-seven catcher/processors and 32 shoreside processors are assumed to be small entities. The remaining operations are assumed to be large entities. Six CDQ groups would also be impacted. CDQ groups are considered to be small non-profit entities. The new PTR format would reduce the costs to NOAA and USCG enforcement efforts and would allow for more effective enforcement of product transfer rules.
6.
7.
A copy of this analysis is available from NMFS (see
This proposed rule has been determined to be significant for purposes of Executive Order 12866.
Alaska, Fisheries, Recordkeeping and reporting requirements.
For the reasons set forth in the preamble, 50 CFR part 679 is proposed to be amended as follows:
1. The authority citation for 50 CFR part 679 continues to read as follows:
16 U.S.C. 773
2. In § 679.2 the definitions for “Bycatch species,” “CDQ delivery number,” “Gear deployment,” “Gear retrieval,” and “Sablefish” are removed; the definitions for “Active/inactive periods,” “Ancillary product,” the introductory text of “Area/species endorsement,” “paragraph (1)(v) of Fishing trip,” “Forage fish,” “Groundfish,” “Logbook,” “Person,” “Primary product,” “Reprocessed or rehandled product,” and “Set,” are revised; the definitions for “Agent,” “Associated processor,” “Bycatch or bycatch species,” “Endorsement,” “Experimental fishery,” “Gear,” “Gear deployment (or to set gear),” “Gear retrieval (or to haul gear),” “Harvest zone codes,” “Incidental catch or incidental species,” “Product transfer report (PTR),” “Prohibited species,” “Representative,” “Sablefish (black cod),” “Seabird avoidance gear,” “Shoreside processor electronic logbook report (SPELR),” “Tagged halibut or sablefish,” and “Weekly production report (WPR)” are added to read as follows:
(2)
(3)
(2) (See
(3) (See § 679.4(g)(3)(ii)
(1) * * *
(v) The end of a weekly reporting period (except a catcher vessel), whichever comes first.
(1)
(i)
(ii)
(iii)
(iv)
(2)
(i)
(ii)
(iii)
(iv)
(i)
(ii)
(iii)
(iv)
(2)
(i)
(ii)
(iii)
(iv)
(2) Target species and the “other species” category, specified annually pursuant to § 679.20(a)(2) (See also the definitions for:
3. In § 679.4 paragraphs (a)(1) through (a)(6) are redesignated as paragraphs (a)(3) through (a)(8) respectively; paragraph (a) introductory text, paragraphs (a)(1), (a)(2), (a)(3)(v), (b)(3)(iii), and (b)(3)(iv) are added; and paragraph (a) heading, newly redesignated (a)(3) heading, newly redesignated paragraph (a)(3)(iii), paragraphs (b)(3)(ii), (b)(4)(ii), (b)(5), (d) heading, (d)(2), the heading of paragraph (d)(3), and paragraphs (d)(3)(i)(A), (f)(2), and (f)(4)(ii) are revised to read as follows:
(a)
(1)
(2)
(3)
(iii) Complete a separate application for each vessel or processor, and retain a copy of each completed application.
(v) All permits are issued free of charge.
(b) * * *
(3) * * *
(ii) A Federal fisheries permit is issued to a vessel to function as a support vessel or as any combination of the other four categories (catcher vessel, catcher/processor, mothership, tender vessel).
(iii) A vessel permitted as a catcher/processor, catcher vessel, mothership, or tender vessel also may conduct all operations authorized for a support vessel.
(iv) A vessel permitted as a support vessel may not conduct activities as a catcher vessel, catcher/processor, mothership, and/or tender vessel.
(4) * * *
(ii) A Federal fisheries permit is surrendered when the original permit is submitted to and received by the Program Administrator, RAM Program, Juneau, AK.
(5)
(i)
(ii)
(iii)
(iv)
(d)
(2)
(i) Any person who receives IFQ halibut, CDQ halibut or IFQ sablefish from the person(s) who harvested the fish;
(ii) Any person who harvests IFQ halibut or IFQ sablefish and transfers such fish:
(A) In a dockside sale;
(B) Outside of an IFQ regulatory area; or
(C) Outside the State of Alaska.
(iii) A vessel operator who obtains a vessel clearance (see § 679.5(l)(5)(iv)).
(3)
(f) * * *
(2)
(i)
(ii)
(iii)
(iv)
(v)
(4) * * *
(ii) A Federal processor permit is surrendered when the original permit is submitted to and received by the Program Administrator, RAM Program, Juneau, AK.
4. Section 679.5 is amended by revising paragraph (a) through (k), (l)(1) through (6), (l)(7)(i)(D) introductory text, (m) through (o), and adding paragraph (p) to read as follows:
(a)
(A) Any catcher vessel, mothership, catcher/processor, or tender vessel, 5 net tons or larger, that is required to have a Federal fisheries permit under § 679.4.
(B) Any shoreside processor, stationary floating processor, mothership, or buying station that receives groundfish from vessels issued a Federal fisheries permit under § 679.4.
(C) Any buying station that receives or delivers groundfish in association with a mothership issued a Federal fisheries permit under § 679.4(b) or with a shoreside processor or stationary floating processor issued a Federal processor permit under § 679.4(f).
(D) Any shoreside processor or stationary floating processor that is required to have a Federal processor permit under § 679.4.
(E) For purposes of this section, “operator or manager” means “the operator of a catcher/processor or mothership, the manager of a shoreside processor or stationary floating processor, or the operator or manager of a buying station.”
(ii)
(A) Fish received from vessels not required to have a federal fisheries permit.
(B) Fish received under contract for handling or processing for another processor.
(iii)
(B)
(
(
(
(iv)
(A) Any catcher vessel 60 ft (18.3 m) or greater LOA or catcher/processor, that participates in an IFQ sablefish fishery, IFQ halibut fishery, or CDQ halibut fishery and that retains any groundfish from the GOA or BSAI, must use a combined groundfish/IFQ logbook (catcher vessel or catcher/processor longline and pot gear logbook) to record all IFQ, CDQ halibut and groundfish.
(B) Any catcher vessel 60 ft (18.3 m) or greater LOA or catcher/processor that is using longline or pot gear in the groundfish fisheries of the GOA or BSAI must use a combined groundfish/IFQ logbook (catcher vessel or catcher/processor longline and pot gear logbook) to record all IFQ, CDQ halibut and groundfish.
(2)
(A) Is responsible for complying with the applicable recordkeeping and reporting requirements of this section.
(B) Must ensure that the operator, manager, or representative (see paragraph (b) of this section) complies with the applicable recordkeeping and reporting requirements of this section.
(ii) The signature of the owner, operator, or manager on the DFL or DCPL is verification of acceptance of the responsibility required in paragraph (a)(2)(i) of this section.
(iii) The operator or manager of a buying station must operate with an associated mothership, shoreside processor, or stationary floating processor before receiving groundfish.
(3)
(ii) The operator or manager must use the current edition of the logbooks and forms or obtain approval from the Regional Administrator to use current electronic versions of the logbooks and forms.
(4)
(5)
(i)
(ii)
(iii)
(iv)
(v)
(6)
(i) Maintain in English all records, reports, and logbooks in a legible, timely, and accurate manner; if handwritten, in indelible ink; if computer-generated, in a printed paper copy; and based on A.l.t.
(ii) Account for each day of the fishing year, January 1 through December 31, in the DFL or DCPL. Unless the appropriate box is checked to indicate an active period-no fishing or inactive period, records are assumed to be for an active period. Record the first day of the fishing year, January 1, on the first page of the DFL or DCPL. Record time periods consecutively in the logbook.
(A) If a vessel owner or operator is granted reinstatement of a Federal fisheries permit after having surrendered it within the same fishing year, recordkeeping and reporting requirements as defined in this section must be continuous throughout that year, without interruption of records.
(B) If a shoreside processor owner or manager is granted reinstatement of a Federal processor permit after having surrendered it within the same fishing year, recordkeeping and reporting requirements as defined in this section must be continuous throughout that year, without interruption of records.
(C) If inactive due to surrender of a Federal fisheries or processor permit, the operator or manager must mark the inactive box, write “surrender of permit,” and follow complete instructions for recording an inactive period.
(iii) Record in the appropriate report, form, and logbook, when applicable, the date of activity and type of participant as presented in the following table:
(A)
(B)
(C)
(D)
(
(E)
(
(
(F)
(G)
(7)
(ii)
(iii)
(A)
(B)
(
(
(
(
(C)
(
(
(
(
(D)
(E)
(iv)
(A) Indicate whether records of weight are in pounds or metric tons.
(
(
(B) Record the weight of groundfish landings, groundfish product, and groundfish or prohibited species Pacific herring discard or disposition weight by species codes as defined in Table 2 to this part and product codes and product designations as defined in Table 1 to this part. Except for product information provided by shoreside processors or stationary floating processors [which is the sum of product weight separately by BSAI or GOA management area], the operator or manager must summarize groundfish weights separately by reporting area, management program information, gear type, and if trawl gear used, whether harvest was caught in the CVOA or the COBLZ.
(C) Daily catch weight. The operator or manager must enter daily catch weight per the following table:
(D) Daily landings weight. The operator or manager must enter daily landings weight per the following table:
(E)
(F)
(G)
(H)
(I)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(A) For each day of an active period, except shoreside processor or stationary floating processors may use one logsheet for each day of an active period or use one logsheet for up to 7 days.
(B) If harvest from more than one reporting area.
(C) If harvest from COBLZ or RKCSA within a reporting area. Use two separate logsheets, the first to record the information from the reporting area that includes COBLZ or RKCSA, and the second to record the information from the reporting area that does not include COBLZ or RKCSA.
(D) If harvest with more than one gear type.
(E) If harvest under a separate management program. If harvest from more than one program of the same management type, use a separate logsheet for each identifying program number.
(xi)
(xii)
(xiii)
(xiv)
(xv)
(8)
(A) If recording in DCPL, or DPR, enter date of landing and daily weight and weekly cumulative weight by species code and product code.
(B) If recording in WPR, enter weekly cumulative weight by species code and product code.
(ii)
(9)
(A) If recording in DCPL or DPR, enter date of production (shoreside processor or stationary floating processor only); daily weight, balance forward (except shoreside processor or stationary floating processor), and weekly cumulative weight by species code, product code, and product designation.
(B) If recording in WPR, enter weekly cumulative weight by species code, product code, and product designation.
(ii)
(A)
(B)
(10)
(
(B)
(ii)
(
(B)
(iii)
(iv)
(v)
(vi)
(vii)
(11)
(ii)
(B) In addition, a catcher vessel operator by prior arrangement with a processor may function as a buying station for his own catch by: Shipping his groundfish catch with a copy of the BSR directly to that processor via truck or airline in the event that the processor is not located where the harvest is offloaded; or by driving a truck that contains his catch and a copy of the BSR to the processor. When the shipment arrives at the processor, the information from the BSR would be incorporated by
(iii)
(B)
(
(
(C)
(D)
(E)
(F)
(G)
(
(H)
(I)
(iv)
(v)
(12)
(ii) No person except an authorized officer may remove any original page of any logbook.
(13)
(ii)
(A)
(B)
(14)
(A) Faxing the NMFS printed form to the FAX number on the form; or
(B) Telexing a data file to the telex number on the form.
(C) Transmitting a data file with required information and forms to NMFS by e-mail, modem, or satellite (specifically INMARSAT standards A, B, or C).
(D) With the approval of the Regional Administrator, using the voluntary electronic reporting format for the check-in report, check-out report, WPR, and shoreside processor electronic logbook delivery report.
(ii)
(B) [Reserved]
(iii)
(iv)
(15)
(b)
(2) Except for a DFL, BSR, PTR, or DCPL, the operator or manager must provide the following representative identification information: The representative's name; daytime business telephone number (including area code); and FAX or telex number. In addition, if completing a DPR, a VAR, or a mothership or catcher/processor check-in/check-out report, the representative's COMSAT number.
(c)
(i) Gear type;
(ii) IFQ permit number of the operator, if any, and of each IFQ holder aboard the vessel;
(iii) Groundfish CDQ group number;
(iv) Halibut CDQ permit number;
(v) The set number, sequentially by year;
(vi) Date, time, and begin position coordinates of gear deployment;
(vii) Begin and end buoy or bag numbers (optional, but may be required by IPHC regulations);
(viii) Date, time, and end position coordinates of gear retrieval;
(ix) Begin and end gear depths, recorded to the nearest fathom (optional, but may be required by IPHC regulations);
(x) Number of skates or pots set;
(xi) Number of skates or pots lost (optional, but may be required by IPHC regulations);
(xii) Target species code;
(xiii) Estimated catch weight of IFQ halibut and CDQ halibut to the nearest pound, indicate “CDQ” above the amount of CDQ halibut;
(xiv) Estimated weight of IFQ sablefish to the nearest pound;
(xv) Indicate whether IFQ sablefish product is Western cut, Eastern cut, or round weight;
(xvi) Number of sablefish;
(xvii) The bird avoidance gear code;
(xviii) If a catcher/processor, enter separately the round catch weight of pollock and Pacific cod to the nearest pound or metric ton and the estimated total round catch weight of all retained species combined, except sablefish, halibut, pollock and Pacific cod to at least the nearest 0.001 mt;
(xix) If a catcher vessel, the estimated total round catch weight of all species combined, except sablefish and halibut.
(2)
(i) Whether nonpelagic trawl or pelagic trawl;
(ii) Haul number, sequentially by year;
(iii) Time and begin position coordinates of gear deployment;
(iv) Date, time, and end position coordinates of gear retrieval;
(v) Average sea depth and average gear depth, recorded to the nearest meter or fathom and whether depth recorded in meters or fathoms;
(vi) Target species code;
(vii) If a catcher/processor, enter separately the round catch weight of pollock, Pacific cod, and the estimated total round catch weight of all retained species except Pacific cod and pollock, and indicate whether weight is recorded to the nearest pound or metric ton;
(viii) If a catcher vessel, enter the estimated total round catch weight of all retained species.
(d)
(i) Enter on each BSR the name, ADF&G processor code, and Federal fisheries or processor permit number of its associated processor;
(ii) Record each delivery of unprocessed groundfish or donated prohibited species to an associated processor on a separate BSR.
(iii) Ensure that a BSR, along with any blue discard logsheets received from a catcher vessel, accompanies each groundfish delivery from the landing site to the associated processor.
(iv) Retain a copy of each BSR.
(2)
(e)
(1) The owner or manager must use SPELR or NMFS-approved software for the duration of the fishing year to report every delivery from all catcher vessels and maintain the SPELR and printed reports as described at paragraph (f) of this section, if a shoreside processor or stationary floating processor:
(i) Receives groundfish from AFA catcher vessels;
(ii) Receives pollock harvested in a directed pollock fishery.
(2) The owner or manager of a shoreside processor or stationary floating processor that is not required to use SPELR under paragraph (e)(1) of this section may use, upon approval by the Regional Administrator, SPELR or NMFS-approved software in lieu of the shoreside processor DCPL and shoreside processor WPR. Processors using the SPELR must maintain the SPELR and printed reports as described in this paragraph (e) and at paragraph (f) of this section.
(3)
(i) Maintain shoreside processor DCPL.
(ii) Submit quarterly DCPL logsheets to NOFE, Juneau, as described at paragraph (a)(14)(iii) of this section.
(iii) Maintain and submit WPRs to the Regional Administrator as described at paragraph (i) of this section.
(iv) If receiving deliveries of fish under a CDQ program, submit CDQ delivery reports to the Regional Administrator as described at paragraph (n)(1) of this section.
(4)
(ii) Daily information described at paragraph (e)(6) of this section must be entered into the SPELR each day on the day they occur.
(iii) Information for each delivery described at paragraph (e)(7) of this section must be submitted to the Regional Administrator by noon of the following day for each delivery of groundfish.
(5)
(i) Shoreside processor or stationary floating processor name, ADF&G processor code, Federal processor permit number, and processor e-mail address;
(ii) State port code as described in Table 14 to this part;
(iii) Name, telephone and FAX numbers of representative.
(6)
(i) Whether no deliveries or no production;
(ii) Number of observers on site;
(iii) Whether harvested in BSAI or GOA;
(iv) Product by species code, product code, and product designation;
(v) Product weight (in lb or mt).
(7)
(i) Date fishing began; delivery date; vessel name and ADF&G vessel registration number; ADF&G fish ticket number of delivery; management program name and identifying number (if any); gear type of harvester; landed species of each delivery by species code, product code, and weight (in pounds or mt); ADF&G statistical area(s) where fishing occurred and estimated percentage of total delivered weight corresponding to each area; and whether delivery is from a buying station.
(ii) If delivery received from a buying station, indicate name and type of buying station (vessel, vehicle, or other); date harvest received by buying station; if a vessel, ADF&G vessel registration number; if a vehicle, license plate number; if other than a vessel or vehicle, description.
(iii) Whether a blue discard logsheet was received from catcher vessel; if not received, reason given; discard or disposition species; if groundfish or PSC herring, enter species code, product code, and weight (in pounds or mt); if PSC halibut, salmon, or crab, enter species code, product code, and count (in numbers of animals).
(iv) If a CDQ delivery, enter species code, product code, weight (in pounds or mt) and count of PSQ halibut.
(f)
(ii)
(iii)
(iv)
(2)
(i)
(ii)
(3)
(g)
(i)
(ii)
(iii)
(iv)
(2)
(i) Record all product transfer information on a PTR within 2 hours of the completion of the transfer.
(ii) Submit by FAX or electronic file a copy of each PTR to NOFE, Juneau, by 1200 hours, A.l.t., on the Tuesday following the end of the applicable weekly reporting period in which the transfer occurred.
(iii) A PTR is not required to accompany a shipment or offload.
(3)
(i) Whether original or revised PTR;
(ii) Whether receipt or shipment. “RECEIPT” if product is received; “SHIPMENT” if transferring product off your site or transferring product off your vessel;
(iii) Your processor type;
(iv) Whether you are the shipper or the receiver.
(4)
(B) Enter information about the other company: If you are receiving groundfish or groundfish product from another company, enter name of the other company and ADF&G processor code (if applicable).
(ii)
(B) Enter information about the other company: If you are shipping groundfish or groundfish product to another company on land, enter name of the receiver and ADF&G processor code (if applicable).
(C) If you are the shipper, enter appropriate information about the other company as provided in the following table:
(5)
(i) The species code and product code for each product transferred (Tables 1 and 2 to this part).
(ii) The number of cartons or production units transferred.
(iii) The average weight of one carton or production unit for each species and product code in kilograms or pounds (indicate which).
(iv) The total net weight (to the nearest 0.001 mt) of the products transferred.
(v) In addition to paragraphs (g)(5)(i) through (iv) of this section, if recording two or more species with one or more product types of fish in the same carton, enter the actual scale weight of each product of each species to the nearest 0.001 mt. If not applicable, enter “n/a” in the species weight column. If you use more than one line to record species in one carton, use a bracket } to tie the carton information together.
(6)
(ii) If a partial offload, for the products remaining on board, enter: species code, product code, and total product weight to the nearest 0.001 mt for each product.
(h)
(i)
(ii)
(iii)
(A) A check-in report to the first area prior to entering the first reporting area, and
(B) A check-in report to the second area prior to entering the second reporting area.
(C) If the catcher/processor remains within 10 nautical miles (18.5 km) of the boundary between the two areas and crosses back and forth between the first and second reporting areas one or more times, a check-out report from either reporting area is not required.
(D) If the catcher/processor proceeds in the second reporting area beyond 10 nautical miles (18.5 km) of the boundary between the two areas, the operator must submit a check-out report from the first reporting area.
(2)
(3)
(i)
(B) Participant identification information (see paragraph (a)(5) of this section);
(C) Representative information (see paragraph (b)(2) of this section);
(D) Management program name and identifying number (if any);
(E) If a mothership or catcher/processor, processor type and gear type.
(ii)
(B) Position coordinates where groundfish receipt begins;
(C) Reporting area code where gear deployment begins;
(D) Primary and secondary target species expected to be received the following week. A change in intended target species within the same reporting area does not require a new BEGIN message.
(iii)
(B) Position coordinates where gear is deployed;
(C) Reporting area code of groundfish harvest;
(D) Primary and secondary target species expected to be harvested the following week. A change in intended target species within the same reporting area does not require a new BEGIN message.
(iv)
(B) Date facility will begin to receive groundfish;
(C) Whether checking in for the first time this fishing year or checking in to restart receipt and processing of groundfish after filing a check-out report;
(D) The product weight of all fish or fish products (including non-groundfish) remaining at the facility (other than public cold storage) by species code and product code;
(E) Whether pounds or 0.001 mt.
(v)
(vi)
(vii)
(B) Date facility ceased to receive or process groundfish;
(C) The product weight of all fish or fish products (including non-groundfish) remaining at the facility (other than public cold storage) by species code and product code;
(D) Whether pounds or 0.001 mt.
(i)
(ii) If a vessel is operating simultaneously during a weekly reporting period as both a catcher/processor and a mothership, the operator must submit two separate WPRs for that week, one for catcher/processor fishing activity and one for mothership fishing activity.
(iii)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(A) To complete the year at midnight, December 31, if still conducting fishing activity regardless of where this date falls within the weekly reporting period.
(B) To start the year on January 1, if still conducting fishing activity regardless of where this date falls within the weekly reporting period.
(4)
(i) Whether original or revised WPR;
(ii) Week-ending date;
(iii) Participant identification information (see paragraph (a)(5) of this section);
(iv) Representative information (see paragraph (b)(2) of this section);
(v) Date (month-day-year) WPR completed;
(vi) Management program name and identifying number (if any);
(vii) Gear type of harvester;
(viii) If a mothership or catcher/processor, processor type and crew size;
(ix) Reporting area of harvest;
(x) If a shoreside processor or stationary floating processor, landings scale weights of groundfish by species and product codes and product designations; scale weights or fish product weights of groundfish by species and product codes and product designations;
(xi) Discard or disposition weights or numbers by species and product codes;
(xii) ADF&G fish ticket numbers issued to catcher vessels at delivery (except catcher/processors).
(j)
(2)
(ii) If a shoreside processor or stationary floating processor is receiving, processing, or discarding the specified species or is receiving reports from a catcher vessel of discard at sea of the specified species, the manager must submit a DPR.
(iii) The operator of a catcher/processor or mothership or the manager of a shoreside processor or stationary floating processor must use a separate DPR for each gear type, processor type, and CDQ number.
(3)
(4)
(k)
(i)
(ii)
(iii)
(iv)
(2)
(i)
(A) Intended Alaska port of landing (see Table 14 to this part);
(B) Estimated date and time (hour and minute, Greenwich mean time) the vessel will cross;
(C) The estimated position coordinates the vessel will cross.
(ii)
(A) The intended U.S. port of landing or country other than the United States;
(B) Estimated date and time (hour and minute, Greenwich mean time) the vessel will cross;
(C) The estimated position coordinates in latitude and longitude the vessel will cross.
(iii)
(iv)
(l)
(1)
(ii)
(iii)
(A) Vessel name and ADF&G vessel registration number;
(B) Name and permit number of the Registered Buyer who will be responsible for completion and submittal of the IFQ Landing Report(s);
(C) The location of the landing (port name or code);
(D) The date and time (A.l.t.) that the landing will take place;
(E) Landing directions;
(F) Species and estimated weight (in pounds) of the IFQ halibut or IFQ sablefish that will be landed;
(G) IFQ regulatory area(s) in which the IFQ halibut or IFQ sablefish were harvested;
(H) IFQ permit number(s) that will be used to land the IFQ halibut or IFQ sablefish.
(iv)
(v)
(2)
(B) All IFQ catch retained onboard a vessel must be debited from the IFQ permit holder's account under which the catch was harvested.
(C) The weight of any halibut or sablefish offshore landings made by a catcher/processor into product (frozen) prior to offload at the landing site must be properly debited from the IFQ permit holder's account under which the catch was harvested.
(ii)
(B) The IFQ cardholder must initiate a landing report by using his or her own magnetic card and personal identification number (PIN).
(C) Once landing operations have commenced, the IFQ cardholder and the harvesting vessel may not leave the landing site until the IFQ account is properly debited. The offloaded IFQ species may not be moved from the landing site until the IFQ landing report is received by NOFE, Juneau, and the IFQ cardholder's account is properly debited. A properly concluded transaction terminal receipt or manual landing report receipt received by FAX from NOFE, Juneau, constitutes confirmation that NOFE received the landing report and that the cardholder's account was properly debited. After the Registered Buyer enters the landing data in the transaction terminal and a receipt is printed, the IFQ cardholder must sign the receipt. Legible copies of the receipt must be retained by both the Registered
(iii)
(B) The manual landing report must be signed by the Registered Buyer or his/her representative, the IFQ cardholder, and the NOFE representative to show that the IFQ cardholder's account was properly debited.
(iv)
(
(
(B) An IFQ landing report must be completed and the IFQ account(s) properly debited, as defined in paragraph (l)(2)(ii)(C) of this section, within 6 hours after the completion of the IFQ landing.
(v)
(vi)
(A) Date and time (A.l.t.) of the IFQ landing;
(B) Location of the IFQ landing (port code or if at sea, lat. and long.);
(C) Name and permit number of the IFQ card holder;
(D) Name and permit number of Registered Buyer receiving the IFQ species;
(E) The harvesting vessel's name and ADF&G vessel registration number;
(F) Gear type used to harvest IFQ species;
(G) Alaska State fish ticket number(s) for the landing;
(H) ADF&G statistical area of harvest reported by the IFQ cardholder;
(I) If ADF&G statistical area is bisected by a line dividing two IFQ regulatory areas, the IFQ regulatory area of harvest reported by the IFQ cardholder;
(J)(
(
(K) (Effective January 1, 2002) Whether ice and slime is present on the fish as offloaded from the vessel (YES or NO). Fish which have been washed prior to weighing or which have been offloaded from refrigerated salt water are not eligible for a 2 percent deduction for ice and slime and must indicate NO SLIME & ICE.
(L) If IFQ halibut is incidental catch concurrent with legal landing of salmon or concurrent with legal landing of lingcod harvested using dinglebar gear;
(M) Signature of Registered Buyer representative;
(N) Signature of IFQ/CDQ card holder.
(vii)
(A) Whether the manual landing report is an original or revised;
(B) Name, telephone number, and FAX number of individual submitting the manual landing report.
(3)
(A) Except as provided in paragraph (l)(3)(i)(D) of this section, complete a written shipment report for each shipment or transfer of IFQ halibut and IFQ sablefish from that Registered Buyer before the fish leave the landing site.
(B) Assure that a shipment report is submitted to, and received by, NOFE, Juneau, by FAX to (907) 586-7313 or mail to P.O. Box 21767, Juneau, AK 99802-1767, within 7 days of the date shipment commenced.
(C) Ensure that a copy of the shipment report or a bill of lading containing the same information accompanies the shipment of IFQ species from the landing site to the first destination beyond the location of the IFQ landing.
(D) A shipment report is not required for transportation of IFQ species directly from the landing site to a processing facility owned by the Registered Buyer submitting the IFQ landing report. When transporting the fish in this manner, the landing report receipt from the IFQ terminal documenting the IFQ landing must accompany the offloaded IFQ species. For IFQ species transported in this manner, the Registered Buyer must complete a shipment report for each shipment or transfer of IFQ halibut and IFQ sablefish from the Registered Buyer's processing facility.
(ii)
(A) Whether revised or original report;
(B) Shipment date;
(C) Registered Buyer name, address, FAX number, and permit number;
(D) Signature of Registered Buyer or Registered Buyer's representative;
(E) Receiver name (this is the first receiver; the purchaser, wholesaler, or retailer who will receive the shipment from the Registered Buyer) and address;
(F) Mode of transportation and intended route;
(G) Name of the shipping company or entity that is transporting the shipment.
(
(
(
(
(H) Species codes and product codes of IFQ species;
(I) Total number of production units (blocks, trays, pans, individual fish, boxes, or cartons; if iced, enter number of totes or containers);
(J) Unit weight (weight of single production unit as listed in “No. of Units”); indicate whether metric tons or pounds;
(K) Total fish product weight of shipment less packing materials; indicate whether metric tons or pounds.
(iii)
(iv)
(4)
(ii)
(A) Date and time (A.l.t.) of transshipment;
(B) Location of transshipment;
(C) Name and ADF&G vessel registration number of vessel offloading transshipment;
(D) Name of vessel receiving the transshipment;
(E) Product destination;
(F) Species and product type codes;
(G) Total product weight;
(H) Time (A.l.t.) and date of the request;
(I) Name, telephone number, FAX number (if any) for the person making the request.
(5)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(A) Date, time (A.l.t.), and location of requested IFQ vessel clearance;
(B) Vessel name and ADF&G vessel registration number;
(C) Name and permit numbers of IFQ permits used to harvest IFQ species on board;
(D) Vessel operator's IFQ Registered Buyer permit number;
(E) Estimated total weight of IFQ halibut on board (lb/kg/mt);
(F) Estimated total weight of IFQ sablefish on board;
(G) IFQ areas of harvest;
(H) Intended date, time (A.l.t.) and location of landing;
(I) Signature of vessel operator.
(x)
(xi)
(xii)
(B) Vessel name and ADF&G registration number;
(C) Name of vessel operator submitting the IFQ departure report;
(D) Total weight on board of IFQ halibut and total weight of IFQ sablefish;
(E) Intended date, time (A.l.t.), and location for obtaining an IFQ vessel clearance.
(6)
(7) * * *
(i) * * *
(D) The registered buyer must complete an IFQ buyer report and submit it by mail, fax, or electronic submittal to the following address: Administrator, Alaska Region, NMFS, Attn: RAM Program, P.O. Box 21668, Juneau, AK 99802-1668, FAX: (907) 586-7354.
(m)
(ii) The operator of a mothership must ensure that the information listed in paragraph (m)(2)(iii) of this section is written legibly or imprinted from the catcher vessel operator's State of Alaska, Commercial Fisheries Entry Commission (CFEC) permit card on the consolidated weekly ADF&G fish ticket.
(2)
(ii) If there is a change in the operator of the same catcher vessel during the same weekly reporting period, complete a fish ticket for each operator.
(iii)
(B) Name, signature and CFEC permit number of CFEC permit holder aboard the catcher vessel;
(C) The six-digit ADF&G groundfish statistical area denoting the actual area of catch;
(D) Write in gear type used by the catcher vessel, whether hook and line, pot, nonpelagic trawl, pelagic trawl, jig, troll, or other.
(3)
(i) Mothership name and ADF&G processor code;
(ii) Enter “FLD” for port of landing or vessel transshipped to;
(iii) Signature of the mothership operator;
(iv) The week-ending date of the weekly reporting period during which the mothership received the groundfish from the catcher vessel;
(v) Species code for each species from Table 2 to this part, except species codes 120, 144, 168, 169, or 171;
(vi) The product code from Table 1 to this part (in most cases, this will be product code 01, whole fish);
(vii) ADF&G 6-digit statistical area in which groundfish were harvested. If there are more than eight statistical areas for a fish ticket in a weekly reporting period, complete a second fish ticket. These statistical areas are defined in a set of charts obtained at no charge from Alaska Commercial Fisheries Management & Development Division, Department of Fish and Game, 211 Mission Road, Kodiak, AK, 99615-6399;
(viii) The landed weight of each species to the nearest pound. If working in metric tons, convert to pounds using 2204.6 lb = 1 mt before recording on fish ticket.
(4)
(ii) The operator of a mothership must ensure copy distribution within the indicated time limit or retention of the multiple copies of each consolidated weekly ADF&G groundfish fish ticket (G series) as follows:
(n)
(ii)
(iii)
(A)
(B)
(
(C)
(
(D)
(E)
(F)
(
(
(2)
(ii)
(A) Within 7 days of the date CDQ catch was delivered by a catcher vessel to a shoreside processor, stationary floating processor, or mothership.
(B) Within 7 days of the date gear used to catch CDQ was retrieved by a catcher/processor.
(iii)
(A)
(B)
(
(
(C)
(iv)
(A)
(B)
(C)
(D)
(E)
(v)
(A)
(
(
(B)
(C)
(D)
(E)
(o)
(2)
(A) An electronic data file in a format approved by NMFS; or
(B) By FAX.
(ii) The cooperative pollock catch report must be received by the Regional Administrator by 1200 hours, A.l.t. 1 week after the date of completion of delivery.
(3)
(i) Cooperative account number;
(ii) Catcher vessel ADF&G number;
(iii) Inshore processor Federal processor permit number;
(iv) Delivery date;
(v) Amount of pollock (in lb) delivered plus weight of at-sea pollock discards;
(vi) ADF&G fish ticket number.
(p)
(2)
(3)
(i) Enter the company name and address, including street, city, state, and zip code; also seasonal mailing address, if applicable.
(ii) Enter the vessel name and ADF&G processor code.
(iii) Check YES or NO to indicate whether fishing activity occurred conducted during the appropriate year.
(iv) If response to paragraph (p)(3)(iii) of this section is YES, complete the applicable forms of the COAR (see table 18 to this part) and complete and sign the certification page.
(v) If response to paragraph (p)(3)(iii) of this section is NO, complete and sign only the certification page.
(vi) Sign and enter printed or typed name, e-mail address, title, telephone number, and FAX number of owner.
(vii) Enter printed or typed name, e-mail address, and telephone number of alternate contact.
(4)
(ii)
(A) Species name and code (see table 2 to this part).
(B) Area purchased (see table 16 to this part).
(C) Gear code (see table 15 to this part).
(D) Delivery code (form G only) (see table 1 to this part).
(E) Total weight (to the nearest lb) purchased from fishermen.
(F) Total amount paid to fishermen, including all post-season adjustments and/or bonuses and any credit received by fishermen for gas expenses, ice, delivery premiums, and other miscellaneous expenses.
(G) Price per pound. If additional adjustments are made after this report has been filed, the owner must check the “$ not final” box, and submit Form M when these adjustments are paid. Do not include fish purchased from another processor.
(5)
(i)
(
(
(B)
(ii)
(A) Enter area of processing (see table 16 to this part). List production of Canadian-harvested fish separately.
(B) Processed product. Processed product must be described by entering three codes:
(
(
(
(C) Total net weight. Enter total weight in pounds of the finished product.
(D) Total value($). Enter the total wholesale value of the finished product.
(E) Enter price per pound of the finished product.
(iii)
(A) Enter area of processing (see table 16 to this part).
(B) Process 51 or 52. Enter conventional canned code (51) or smoked, conventional canned code (52).
(C) Total value($). Enter the total wholesale value of the finished product.
(D) Enter can size in ounces, to the hundredth of an ounce.
(E) Enter number of cans per case.
(F) Enter number of cases.
(6)
(ii)
(iii)
(A)
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(
(
(
(7)
(ii)
(B) Enter area purchased (see Table 16 to this part).
(C) Enter gear code (see Table 16 to this part).
(D) Enter total pounds purchased from fisherman.
(E) Enter total amount paid to fishermen (base + adjustment).
5. In § 679.7, paragraphs (a)(10) and (a)(11) are revised to read as follows:
(a) * * *
(10)
(ii) Alter, erase, or mutilate any permit, card or document issued under § 679.4 or § 679.5.
(iii) Fail to submit or submit inaccurate information on, any report, application, or statement required under this part.
(iv) Intentionally submit false information on any report, application, or statement required under this part.
(11)
(ii)
6. In § 679.21, paragraphs (b)(1), (e)(1)(ii), and (e)(1)(iii) are revised to read as follows:
(b)
(e) . . .
(1) . . .
(ii)
(iii)
(A) The following table refers to the PSC limits for
(B) This table refers to the PSC limits for
7. In § 679.22, paragraph (a)(11)(iv)(A) is added and reserved, and paragraph (a)(11)(iv)(B) is added; and paragraph
(b)(3)(iii)(A) is added and reserved, and paragraph (b)(3)(iii)(B) is added to read as follows:
(a) . . .
(11) . . .
(iv) . . .
(A) [Reserved]
(B) The SCA is described in Figure 20 to this part.
(b) * * *
(3) * * *
(iii) * * *
(A) [Reserved]
(B) The SSCA is described in Figure 19 to this part.
8. In § 679.24, paragraph (b)(2) is removed and reserved; paragraph (a) heading and paragraphs (a)(1) and (e)(1) are revised to read as follows:
(a)
(i) The vessel's name; and
(ii) The vessel's Federal fisheries permit number; or
(iii) The vessel's ADF&G vessel registration number
(e) * * *
(1)
9. In § 679.31, paragraph (d) is revised to read as follows:
(d)
10. In § 679.32, paragraph (a)(2) is removed and the designation for paragraph (a)(1) is removed.
11. In § 679.40, paragraphs (a)(2)(i)(C) and (D) are added to read as follows:
(a) * * *
(2) * * *
(i) * * *
(C) Who is a citizen of the United States at the time of application for QS.
(D) Who is a corporation, partnership, association, or other entity that would have qualified to document a fishing vessel as a vessel of the United States during the QS qualifying years of 1988, 1989, and 1990.
12. In § 679.41, paragraph (i)(2) is removed; and paragraph (i)(3) is redesignated as paragraph (i)(2).
13. In § 679.42, paragraph (c)(2) is revised and paragraph (c)(3) is added to read as follows:
(c)
(2) NMFS shall use the following sources of information to debit a CDQ or IFQ account. A CDQ or IFQ account will be debited as indicated in Table 3 to this part.
(i) Except as provided in § 679.5(l)(2)(vi)(J)(
(ii) If offload of processed IFQ & CDQ halibut or IFQ sablefish from a vessel, the scale weight of the halibut or sablefish processed product actually measured at or before the time of offload. If the product scale weights are taken before the time of offload, then the species and actual product weight of each box or container must be visibly marked on the outside of each container to facilitate enforcement inspection.
(3) All IFQ catch onboard a vessel must be debited from the IFQ permit holder's account under which the catch was harvested.
14. In part 679, Figure 3b, “Coordinates,” is revised, and Figures 19 and 20 are added to read as follows:
15. In part 679, Tables 1, 2, 3, 7, 8, 9, 10, and 11 are revised, Tables 16 through 18 are added and reserved, and Table 19 is added to read as follows:
16. At each of the locations shown in the “Location” column, remove the phrase indicated in the “Remove” column and replace it with the phrase indicated in the “Add” column.
Environmental Protection Agency (EPA).
Proposed rule.
This action proposes national emission standards for hazardous air pollutants (NESHAP) for flexible polyurethane foam fabrication operations. The EPA has identified flexible polyurethane foam fabrication facilities as potential major sources of hazardous air pollutants (HAP) emissions such as methylene chloride, hydrochloric acid (HCl), 2,4-toluene diisocyanate (TDI), and hydrogen cyanide (HCN). Exposure to these substances has been demonstrated to cause adverse health effects such as irritation of the lung, eye, and mucous membranes, effects on the central nervous system, and cancer.
These proposed NESHAP will implement section 112(d) of the Clean Air Act (CAA) by requiring flexible polyurethane foam fabrication facilities that are major sources to meet HAP emission standards reflecting the application of the maximum achievable control technology (MACT). The EPA estimates that these proposed NESHAP will reduce nationwide emissions of HAP from flexible polyurethane foam fabrication operations by approximately 6.5 tons per year (tpy) for each new or reconstructed affected source. The emissions reductions achieved by these proposed NESHAP, when combined with the emissions reductions achieved by other similar standards, will provide protection to the public and achieve a primary goal of the CAA.
For information about the proposed NESHAP, contact Ms. Maria Noell, Organic Chemicals Group, Emission Standards Division (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number (919) 541-5607; facsimile number (919) 541-3470; electronic mail address
Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Ms. Maria Noell, c/o OAQPS Document Control Officer (Room 740B), U.S. Environmental Protection Agency, 411 W. Chapel Hill Street, Durham, NC 27701. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by the EPA, the information may be made available to the public without further notice to the commenter.
This table is not intended to be exhaustive, but rather a guide regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in § 63.8782 of the proposed NESHAP. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. On June 4, 1996 (61 FR 28197), we added the flexible polyurethane foam fabrication operation source category to our initial list of major source categories published in the
Section 112 of the CAA requires that we establish NESHAP for the control of HAP from both new and existing major sources. The CAA requires the NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as the MACT.
The MACT floor is the minimum level allowed for NESHAP and is defined under section 112(d)(3) of the CAA. In essence, the MACT floor ensures that the standard is set at a level that assures that all major sources achieve the level of control at least as stringent as that already achieved by the better-controlled and lower-emitting sources in each source category or subcategory. For new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing 5 sources for categories or subcategories with fewer than 30 sources).
In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy impacts.
The primary HAP emitted from the use of adhesives to glue pieces of foam together or to other substrates is methylene chloride. The primary HAP emitted from flame lamination of foam is HCl; HCN and TDI also are present in small quantities.
The HAP that would be controlled with these proposed NESHAP are associated with a variety of adverse health effects. These adverse health effects include acute and chronic health disorders that include irritation of the lung, eye, and mucous membranes and effects on the central nervous system. We have classified methylene chloride as a probable human carcinogen, and the International Agency for Research on Cancer (IARC) has classified TDI as a possible human carcinogen.
We do not have the type of current detailed data on each of the facilities covered by the emissions standards for this source category, or on the people living around the facilities, that would be necessary to conduct an analysis to determine the actual population exposures to the HAP emitted from these facilities and potential for resultant health effects. Therefore, we
We present a discussion of the HAP-specific health effects in the following paragraphs.
Acute (short-term) exposure to methylene chloride by inhalation affects the nervous system, causing decreased visual, auditory, and motor functions. These effects are reversible once exposure ceases. The effects of chronic (long-term) exposure to methylene chloride suggest that the central nervous system is a potential target in both humans and animals. Limited animal studies have reported developmental effects. Human data are inconclusive regarding methylene chloride and cancer. Animal studies have shown increases in liver and lung cancer and benign mammary gland tumors following the inhalation of methylene chloride. We have classified methylene chloride as a Group B2, probable human carcinogen.
Hydrochloric acid is corrosive to the eyes, skin, and mucous membranes. Acute inhalation exposure may cause eye, nose, and respiratory tract irritation and inflammation and pulmonary edema in humans. Chronic occupational exposure to HCl has been reported to cause gastritis, bronchitis, and dermatitis in workers. Prolonged exposure to low concentrations may also cause dental discoloration and erosion. No information is available on the reproductive or developmental effects of HCl in humans. In rats exposed to HCl by inhalation, altered estrus cycles have been reported in females and increased fetal mortality and decreased fetal weight have been reported in offspring. We have not classified HCl for carcinogenicity.
Acute exposure to high levels of TDI in humans by inhalation results in severe irritation of the skin and eyes and affects the respiratory, gastrointestinal, and central nervous systems. Chronic inhalation exposure to TDI in humans has resulted in significant decreases in lung function in workers, an asthma-like reaction characterized by wheezing, dyspnea, and bronchial constriction, and effects on the liver, blood, and kidneys. No information is available on the carcinogenic effects of TDI in humans, but animal studies have reported increased incidences of tumors of the pancreas, liver, and mammary glands from oral exposure to TDI. We have not classified TDI for carcinogenicity. The IARC has classified TDI as a Group 2B, possible human carcinogen.
Acute inhalation exposure to high levels of HCN can result in death. Chronic inhalation exposure of humans to HCN results primarily in effects on the central nervous system. Other effects in humans include cardiovascular and respiratory effects, an enlarged thyroid gland, and irritation to the eyes and skin. No data are available on the developmental effects of cyanide in humans via inhalation, but animal studies have suggested that oral exposure to cassava (a cyanide-containing vegetable) may be associated with malformations in the fetus and low fetal body weights. No studies are available on the carcinogenic effects of cyanide in humans or animals. We have classified cyanide as a Group D, not classifiable as to human carcinogenicity.
Today's proposed NESHAP apply to the Flexible Polyurethane Foam Fabrication Operations source category. This source category includes operations engaged in cutting, gluing, and/or laminating pieces of flexible polyurethane foam. This includes fabrication operations that are located at foam production plants, as well as those that are located off-site from foam production plants.
We have identified two subcategories under the Flexible Polyurethane Foam Fabrication Operations source category. These subcategories are loop slitter HAP-based adhesive use and flame lamination. Loop slitters are equipment at foam fabrication operations that are used to slice large foam blocks into thin sheets. Flame lamination refers to the bonding of foam to other substrates (i.e., cloth, foam, plastic, and other materials), where the bonding agent is scorched or melted foam.
This section describes the primary sources of potential HAP emissions from loop slitter adhesive use and flame lamination.
A loop slitter is a large machine used to create thin sheets of foam from the large blocks of foam or “buns” created at a foam production plant. Because of the difficulty of transporting the buns, loop slitters are generally located at foam production plants. A slitter consists of a large, vertical, oval conveyor belt, and a cutting mechanism. The buns are mounted on the conveyor and glued end-to-end, forming a loop. The conveyor spins the looped bun rapidly past a blade, which shaves off a sheet of foam in the desired thickness. The foam buns are very large (10 feet wide by 10 feet high by 200 feet long). As a result, the slitters typically operate for several hours before they must be reloaded with new buns of foam.
The only portion of the loop slitter process that uses adhesives is when attaching the buns end-to-end to form a loop. However, because of the nature of the process and the product produced, the adhesives used have different requirements than other typical foam fabrication adhesives. The rapidly spinning buns are subjected to great stress as soon as the machine is turned on, so the adhesive used must bond rapidly. Also, the seam where the buns are joined is a potential defect in the foam sheets that are the product of the process. Some adhesives (particularly water-based adhesives) produce a hard seam which is considered a product defect and can dull the knife-blades of the slitter. In order to comply with Occupational Health and Safety Administration (OSHA) regulations, loop slitters have converted from a reliance on methylene chloride-based adhesives to other non-HAP alternatives since the mid-1990's. As a result of the OSHA regulations, we believe that the foam fabrication industry has effectively discontinued use of methylene chloride-based adhesives, resulting in zero estimated baseline HAP emissions from loop slitter adhesive use.
In the flame lamination process, foam is scorched to adhere it to various substrates. This process releases particulates and HAP. We have identified HCN, TDI, and HCl as HAP emitted as a result of flame lamination. These HAP are a product of the combustion of unreacted diisocyanates from the foam production process (HCN and TDI) and the chlorinated fire retardant additives that are present in some polyurethane foams (HCl). Specific HAP released are dependant on the contents of the foam being laminated at a given time. With the
The baseline emission estimates are generated from data obtained from individual facilities, as well as from State agencies to which facilities reported their annual emissions. Where reported emissions are not available, we calculated emission estimates using a HAP emission factor, the laminator's operating schedule, the number of flame lamination lines, and the percent of the operating time that fire retardant foam is laminated (used only when calculating HCl emissions). We estimated total nationwide baseline HAP emissions from flame lamination as 58.8 tpy HCl, 10.3 tpy HCN, and 3.0 tpy TDI, which amounts to a total of 72.1 tpy HAP.
The proposed NESHAP define two affected sources related to each of the proposed subcategories. The loop slitter adhesive use affected source is the collection of loop slitters and associated adhesive application equipment used to apply HAP-based adhesives to bond foam to foam at a flexible polyurethane foam fabrication plant site. Loop slitter affected sources, located at plant sites that are major sources of HAP, that are using HAP-based adhesives on or after [Date of publication of the final rule in the
For existing, new, or reconstructed loop slitter adhesive use affected sources, we are proposing an emission limit of zero HAP emissions from adhesives use. This can be achieved through the use of non-HAP-based adhesives. Existing affected sources must be in compliance by [Date 1 year after date of publication of the final rule in the
We are defining HAP-based adhesives as adhesives containing detectable HAP, where the concentration of HAP may be determined using EPA Method 311 (Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection Into a Gas Chromatograph). Method 311 is an established method that is appropriate for measuring the types of HAP used in these materials. The affected source may use approved alternative methods for measuring HAP content, or other reasonable means of HAP content determinations.
We are not proposing any emission limitations for existing flame lamination affected sources. Therefore, existing flame lamination affected sources would not be subject to the proposed NESHAP, except for a requirement to submit an initial notification within 120 days after [Date of publication of the final rule in the
We present the proposed testing, initial compliance, and continuous compliance requirements for the flexible polyurethane foam fabrication loop slitter adhesive use and flame lamination affected sources in the following paragraphs.
We are proposing that loop slitter affected sources demonstrate initial and continuous compliance by certifying that no HAP-based adhesives are or will be used. The initial certification must be submitted within 60 days of the compliance date. The certification would be accompanied by documentation stating what the facility will use for adhesives, along with supporting information to document the HAP content of adhesives used at the facility, such as Method 311 results or other approved information. Thereafter, on a yearly basis, the source would recertify compliance, including HAP content information on any new adhesives used at the source.
While sources may use EPA Method 311, an approved alternative method, or any other reasonable means for determining the HAP content of adhesives, if the results of an analysis by EPA Method 311 are different from the HAP content determined by another means, the EPA Method 311 results will govern compliance determinations. Other reasonable means include a material safety data sheet (MSDS), provided it contains appropriate information; a certified product data sheet (CPDS); or a manufacturer's hazardous air pollutant data sheet. Sources are not required to test the materials used, but the Administrator may require a test using EPA Method 311 (or an approved alternative method) to confirm the reported HAP content.
For new or reconstructed flame lamination affected sources, we are proposing that initial compliance be demonstrated by conducting a performance test within 180 days after the compliance date that demonstrates that HAP emissions are being reduced by 90 percent. In order to demonstrate continuous compliance with this emissions limit, we are proposing to require continuous monitoring of control device parameters. Specifically for venturi scrubbers, which we believe will be the control device of choice in most situations, the proposed NESHAP would require that the pH of the scrubber effluent, the scrubber liquid flow rate, and the pressure drop across the venturi be monitored continuously. Continuous compliance would be demonstrated by these monitored parameters staying within the operating limits. Operating limits would be established for each parameter based on monitoring conducted during the initial performance test and reported in the facility's Notification of Compliance Status Report.
The proposed NESHAP would require owners or operators of foam fabrication operations at major sources to submit several notifications and reports, which are listed and then briefly described in this section. First, we are proposing to require all owners or operators of affected sources to submit an Initial Notification. In addition, owners or operators of all flexible polyurethane loop slitter adhesive use affected sources and new or reconstructed flame lamination affected sources must also submit the following notification and reports:
• Notification of Intent to conduct a performance test (new or reconstructed flame laminators only)
• Notification of Compliance Status (NOCS) Reports
• Periodic Compliance Reports
• Startup, Shutdown, and Malfunction Reports (new or reconstructed flame laminators only).
For the Initial Notification, we are proposing to require that each owner or operator notify us that their facility is subject to the flexible polyurethane foam fabrication operations NESHAP, and that they provide specified basic information about their facility. This notification would be required to be submitted within 120 days after [Date of publication of the final rule in the
For the Notification of Intent Report, we are proposing that each new or reconstructed flame lamination affected source owner or operator notify us in writing of the intent to conduct a performance test at least 60 days before the performance test is scheduled to begin. The NOCS Report would be submitted within 60 days of completion of the performance test. A certified notification of compliance that states the compliance status of the facility, along with supporting information (e.g., performance test results and operating parameter values and ranges) would be submitted as part of the NOCS.
For sources complying with the standards for loop slitter adhesive use, the NOCS would be due within 60 days of the compliance date. These NOCS must list each adhesive used at the affected source, the manufacturer or supplier of each, and the individual HAP content (percent by mass) of each adhesive that is used.
For the Periodic Compliance Report, we are proposing that facilities subject to control requirements under the proposed NESHAP report on continued compliance with the flame lamination new source emission limit semiannually, and report on continued compliance with the loop slitter adhesive use HAP-based usage limit annually.
Finally, for the Startup, Shutdown, and Malfunction Report, we are proposing that each owner or operator of a new or reconstructed flame lamination affected source report any startup, shutdown, or malfunction during the reporting period that is not in the facility's startup, shutdown, and malfunction plan.
We also would require that each owner or operator maintain records of reported information and other information necessary to document compliance (e.g., records related to malfunction, records that show continuous compliance with emission limits) for 5 years.
On June 4, 1996 (61 FR 28197), we added the Flexible Polyurethane Foam Fabrication Operations source category to our initial list of major source categories published in the
In our analysis, we discovered that there are three distinct processes used in the gluing together of polyurethane foam pieces (i.e., use of adhesives on a loop slitter, use of adhesives in other foam fabrication operations, and use of flame lamination). We considered whether non-slitter and loop slitter adhesive use pose a potential to emit HAP, given the impact of the OSHA permissible exposure limit (PEL), which has resulted in foam fabricators moving to non-methylene chloride-based adhesives. Depending on the emission source, we believe companies potentially have different options to comply with the OSHA work place limits on methylene chloride. For example, loop slitter adhesive use is brief and intermittent, typically not occurring more than once during a single shift, and it is possible that some facilities could meet a time weighted average exposure if use were infrequent enough. Additionally, the adhesive could be applied by workers wearing respiration equipment, or a hood or other ventilation equipment could be added to the adhesive application station. All of these application methods have the potential to meet the exposure limits set by OSHA, but still result in methylene chloride emissions. In fact, we believe that most loop slitters have converted to non-HAP adhesives, but the potential for using ventilation-based compliance methods exists.
In contrast, non-slitter adhesive use generally occurs at numerous work stations, with multiple workers applying adhesive to foam parts throughout the work period. These conditions do not lend themselves easily to workers wearing respiration equipment or the air flow requirements to ventilate the working areas well enough to meet OSHA's PEL. Therefore, we believe these sources must convert to non-methylene chloride-based adhesives to meet the OSHA PEL, which eliminates methylene chloride emissions from the source.
In order to further evaluate current trends regarding the use of adhesives in foam fabrication, we contacted adhesive suppliers and foam fabricators. We found that acceptable alternatives to HAP-based adhesives are available and commonly used for many applications. Information available from owners or operators of 99 foam fabrication facilities indicates that they do not use any methylene chloride adhesives for their non-loop-slitter foam fabrication operations. The alternatives most frequently mentioned include water-based adhesives and non-HAP solvent-based adhesives using n-propyl bromide or acetone.
We do not believe that any non-slitter adhesive sources are using HAP-based adhesives, unless they are failing to comply with the OSHA PEL for methylene chloride. This is because the nature of the foam fabrication process at these facilities makes the use of individual respiration equipment or workplace ventilation infeasible. Based on available information and current conditions, we do not believe that additional controls from the NESHAP, such as a prohibition against the use of HAP-based adhesives, would result in any additional emissions reductions either now or in the future. In fact, the only impact would be the imposition of additional monitoring, reporting, and recordkeeping burden on the part of the industry that is thought to contain many small businesses.
As a result of this analysis, we are proposing to revise the source category definition to exclude non-slitter adhesive use. We are requesting comment and supporting information on this revision to the source category definition. Should we learn through the comment period on these proposed NESHAP that there are non-slitter adhesive sources using HAP-based adhesives that are located on the site of a major source, we would retain them in the source category and treat them as a third subcategory. A preliminary analysis indicates that a ban on HAP-
For the purposes of implementing a NESHAP, an affected source is defined to mean the stationary source, or portion of a stationary source, that is regulated by a relevant standard or other requirement established under section 112 of the CAA. In other words, the affected source is composed of the group of unit operations, equipment, and emission points that are subject to the NESHAP. Under each relevant standard, we must designate the “affected source” for the purpose of implementing that standard. We do this for each source category (or subcategory) by deciding which HAP emission sources (i.e., emission points or groupings of emission points) are most appropriate for establishing separate emission standards or work practices in the context of the CAA statutory requirements and the industry operating practices for the particular source category.
We can define the affected source as narrowly as a single item of equipment or as broadly as all equipment at the plant site that is used to produce the product that defines the source category. The affected source also identifies the collection of equipment that would be evaluated to determine whether replacement of components at an existing affected source would qualify as reconstruction. Defining the affected source narrowly could affect whether some parts of a process unit would be subject to new source requirements and other parts of the process unit would be subject to existing source requirements.
We propose to separate the Flexible Polyurethane Foam Fabrication Operations source category into two subcategories: loop slitter adhesive use and flame lamination. We also propose to treat each subcategory as a separate affected source, because the HAP emissions, processes, and controls are significantly different between the two subcategories. Flame lamination emissions result from combustion products based on the composition of the foam rather than from evaporation of HAP-based adhesives. Add-on controls are feasible for flame lamination, whereas loop slitter adhesive use emissions reductions have resulted from pollution-prevention measures such as changing the type of adhesive to a water-based or other non-HAP based material.
We also considered how broadly to define each affected source. In both cases, HAP emissions are tied to a collection of specific equipment. Therefore, the loop slitter adhesive use affected source is the collection of loop slitters and associated adhesive application equipment used to apply HAP-based adhesives to bond foam to foam at a flexible polyurethane foam fabrication plant site. The flame lamination affected source is all flame lamination lines (flame laminators and associated rollers) at a flexible polyurethane foam fabrication plant site associated with the flame lamination of foam to any substrate.
Section 112(d) of the CAA requires that standards be specified as a numerical emission standard, whenever possible. However, if we determine that “it is not feasible to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollutants,” section 112(h) indicates that a design, equipment, work practice, or operational standard may be specified.
For the proposed standards, we selected an emission limit of zero HAP emissions from use of adhesives at loop slitter adhesive use affected sources. This format is consistent with current practices, because sources have converted to the use of non-HAP-based adhesives to comply with the OSHA PEL. In order to recognize the industry trend, we are proposing that sources that are not using HAP-based adhesives before the effective date of the NESHAP would not face any requirements under the NESHAP.
We selected a numerical emission limit combined with parametric operating limits for new and reconstructed flame lamination affected sources. Specifically, we are proposing requiring a 90 percent emission reduction of HAP at new and reconstructed flame lamination affected sources. The sources would then establish operating limits using performance test results and control device operating parameters.
For source categories/subcategories with greater than 30 sources, MACT for existing sources cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources. Further, MACT for source categories/subcategories with fewer than 30 sources cannot be less stringent than the average emission limitation achieved by the best-performing 5 sources. We have determined that “average” means any measure of central tendency, whether it be the arithmetic mean, median, or mode, or some other measure based on the best measure decided on for determining the central tendency of a data set (59 FR 29196, June 6, 1994).
We estimate that there are 40 facilities nationwide with loop slitters. Information available from owners and operators of 30 facilities where loop slitters are located indicates that 22 facilities (55 percent of the total estimated number of facilities) use non-HAP adhesives. However, some facilities report that they may continue to use methylene chloride adhesives, at least in small quantities. We believe that it is feasible that loop slitters could continue to use these adhesives and still meet the OSHA exposure limits through technological means. Since non-HAP use represents greater than 12 percent of the loop slitter facilities, we concluded that the MACT floor for existing, new, and reconstructed loop slitters is the prohibition on the use of HAP-based adhesives.
Of 21 known flame lamination facilities, we estimate that there are eight flame lamination facilities in the United States that are major sources of HAP (based on actual or potential HCl emissions). Because there are fewer than 30 sources, we evaluated the performance of the best performing five facilities to determine the MACT floor. Of the top five major sources, three facilities are uncontrolled and two facilities use scrubbers, which were installed to control particulate emissions and also reduce HCl and HCN emissions. Based on the mode of this data set, we concluded that the existing source MACT floor is no control.
After determining the MACT floor for flame lamination existing sources, we evaluated whether a level of control beyond the floor is justified. We considered requiring the use of a scrubber to reduce HCl and HCN emissions. However, the HAP emissions reductions that would be achieved by requiring a scrubber do not warrant the cost without further evaluation of risk. We determined the average incremental cost per ton of HAP emissions reduced to be approximately $18,000.
We also considered whether the use of incineration would be a reasonable beyond-the-floor option to control HCN and TDI emissions from the flame lamination affected source. Two existing area source facilities presently control TDI and HCN emissions from these sources by using an incinerator, but do
However, because we lack information on every operation in this industry, we are proposing to require existing major sources to submit an initial notification. This will ensure that if other information becomes available that would indicate a need for an emission limitation, we can readily identify potential major sources in this subcategory.
Since at least one facility uses a venturi scrubber that controls HCl and HCN emissions, we concluded that the new source MACT floor is based on manufacturer's claims that 90 percent reduction of HCl and HCN emissions is achievable using a venturi scrubber. Therefore, we selected a 90 percent HAP (measured as either HCl or HCN) emission reduction as MACT for new and reconstructed flame lamination affected sources.
It is possible that another control technology could achieve a larger emission reduction of the gaseous emissions. Venturi scrubbers, which are designed primarily to control particulate matter via impaction, interception and diffusion mechanisms, cannot achieve larger gaseous reductions because the high gas velocity does not permit sufficient contact time between the liquid and gas to allow more than 90 percent of the pollutant gas to be absorbed into the scrubber liquid. In contrast, scrubbers designed primarily for gas absorption (i.e., packed-tower scrubbers) can achieve a 99 percent gaseous pollutant removal efficiency when properly designed. However, gas absorbers are not recommended for use with gas streams containing particulate matter because they can become plugged with particulate matter, which would decrease their efficiency. Therefore, we concluded that it is not practical to use a gas absorber on a gas stream containing particulate matter.
We also considered whether controlling TDI and the residual HCN emissions from new sources was a reasonable beyond-the-floor option. However, reducing these additional HAP emissions would cost the same as for existing sources (approximately $70,300 per ton of HAP reduced for a representative source); therefore, we are not proposing to control these emissions at this time.
Finally, we considered whether banning the flame lamination of foam containing chlorinated compounds was a feasible beyond-the-floor option for existing, new, or reconstructed sources. We considered this option because we believe that HCl is emitted from flame laminators only when the foam being laminated contains chlorinated fire retardant. Therefore, banning the flame lamination of chlorinated fire retardant foams would effectively eliminate HCl emissions from flame lamination. This option does not achieve any control of HCN or TDI. However, no alternative fire retardant has been identified that would be adequate and appropriate for all flame lamination applications in which fire retardant foams are required, and we determined that this option is not feasible. We request comment and data on this issue.
We selected the proposed testing, initial, and continuous compliance requirements based on requirements specified in the NESHAP General Provisions (40 CFR part 63, subpart A). These requirements were adopted for flexible polyurethane foam fabrication facilities to be consistent with other part 63 NESHAP. These requirements will ensure that we obtain or have access to sufficient information to determine whether an affected source is complying with the standards specified in the proposed NESHAP.
We determined that certifying use of complying adhesives and submitting supporting documentation on the HAP content of the adhesives used is the best method of assuring initial and continued compliance with a zero HAP emission limit for loop slitters. Therefore, we propose to require that initial and continued compliance with the zero HAP emission limit be demonstrated by having the owner or operator submit a certification in the Notification of Compliance Status Report stating that they are compliant, and will continue to be compliant, with the prohibition. We chose to require that this certification be supported with documentation that states what the facility uses for adhesives (i.e., materials and quantity) and that no HAP-based adhesives are used.
We determined that it would be an unnecessary burden for a facility to submit semiannual certifications if a facility does not use HAP-based adhesives and certifies with their initial certification that they will not use HAP-based adhesives in the future. Therefore, we only require annual certifications.
If after a facility submits the Notification of Compliance Status, it uses an adhesive for which it has not previously verified percent HAP mass using the methods in 40 CFR 63.8802, the facility must verify that each adhesive used in the affected source meets the emission limit, using any of the methods in § 63.8802. The facility must then update the list of all the adhesives used at the affected source and include this information in the next compliance report. If a HAP-based adhesive was used during this time, or if the facility added HAP-containing solvents to the adhesive as purchased, the facility would report a violation of the emission limit.
The proposed NESHAP would require a compliance test to determine initial compliance with the control efficiency requirement proposed for flame lamination operations at new or reconstructed sources. As proposed, sources that use chlorinated fire retardants and emit HCl would use EPA Method 26A (HCl) to determine the percent reduction of HCl emissions from the control device. Because HCN is at least as soluble in aqueous solutions, especially caustic solutions, as HCl, we believe testing for a single HAP (HCl) will demonstrate compliance with the requirement to reduce 90 percent of the HAP entering the control device.
However, some sources do not use chlorinated fire retardants in their foam. These sources would only emit HCN. Unfortunately, an EPA test method for HCN does not exist at this time. Therefore, the proposed rule would require sources to submit a proposed test method for the Administrator's approval prior to conducting the test. While we plan to develop an HCN method for inclusion in the final rule, we request your comments on potential test methods.
The General Provisions (at § 63.7(e)(3)) require that each test consist of at least three separate test runs. The proposed NESHAP adopt this requirement. Further, the proposed NESHAP require that each test run be at least 1 hour long.
In order to assure continuous compliance with the new source emissions limit for flame lamination operations, we are proposing to require the use of continuous parameter monitoring systems to monitor the pH of the scrubber effluent, the scrubber liquid flow rate, and, if a venturi scrubber is used, pressure drop. Continuous compliance would be demonstrated by these monitored parameters staying within the operating
We considered requiring the use of HCl and HCN continuous emission monitoring systems (CEMS), but rejected that option. We were unable to identify any CEMS for HCN, which leaves parametric monitoring of the scrubber to demonstrate compliance as the only option. While there are readily available HCl CEMS, the cost of these compared to the cost of the control device is unreasonable. We calculated the capital cost for a venturi scrubber on a new or reconstructed flame lamination source to be approximately $58,000, with an annualized capital cost of $8,300. In contrast, the total cost to install and operate an extractive-based CEMS to monitor the efficiency of the scrubber is at least $215,600, with annualized costs of nearly $61,000 to monitor HCl. Use of Fourier Transform Infrared Spectroscopy (FTIS) is even more expensive (i.e., up to $271,900 capital cost and $104,600 annualized costs.) In contrast, the capital costs for parametric monitoring devices and a data recording device would be less than $10,000 per facility.
We selected the proposed notification, recordkeeping, and reporting requirements based on requirements specified in the NESHAP General Provisions (40 CFR part 63, subpart A). As with the proposed initial and continuous compliance requirements, these requirements were adopted for flexible polyurethane foam fabrication plants to be consistent with other part 63 NESHAP.
We estimate that current HAP emissions from loop slitter adhesive users are essentially zero because of changes in adhesive composition as a result of the OSHA PEL for methylene chloride. Therefore, we do not expect any decreases from this subcategory resulting from the proposed NESHAP.
Nationwide baseline emissions from the flame lamination subcategory are 58.8 tpy HCl, 10.3 tpy HCN, and 3.0 tpy TDI, for a total of 72.1 tpy HAP. We have not proposed any emissions limitations for existing flame lamination sources; therefore, we do not expect any emissions reductions from the baseline. However, the proposed NESHAP should result in a 90 percent reduction in HCl and HCN emissions from any new or reconstructed major sources. We calculate that a typical flame lamination operation emits 7.3 tpy of combined HCl and HCN, which would be reduced by 90 percent, for a total HAP emission reduction of 6.5 tpy from each new or reconstructed affected source. In addition, particulate matter emissions from flame lamination would also be reduced by any scrubber used to reduce the HAP emissions.
Based on our analysis, we calculate that 64,700 gallons per year of wastewater will be generated by a new or reconstructed flame lamination source. The annual cost to treat this wastewater is less than $250 per year. We do not expect that there will be any significant adverse non-air health, environmental, or energy impacts associated with the proposed NESHAP for flexible polyurethane foam fabrication plants.
We have calculated no capital costs for loop slitter adhesive users and existing flame laminators because we are proposing that these sources only be subject to reporting and recordkeeping costs. We estimate that up to three new flame laminators may be built in the next 3 years, but only one of these would be a major source subject to the proposed NESHAP. This source would face capital costs associated with installation of a control device (e.g., scrubber) and monitoring equipment. The control and monitoring device capital cost is approximately $65,000, and the annualized capital cost is approximately $9,300. The average annual costs include labor costs associated with monitoring, reporting, and recordkeeping requirements and the operation, and maintenance of the required control equipment is approximately $63,000 per year. In contrast, total industry revenues in 1997 (based on a North American Industry Classification System code of 32615) were approximately $6.7 billion. Given that only one source will be affected and the cost of control is a very small portion of industry revenues, the economic impacts associated with this proposed rule are considered to be negligible.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB). The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligation of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that this rule is not a “significant regulatory action” because none of the listed criteria apply to this action. Consequently, this action was not submitted to OMB for review under Executive Order 12866.
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 rule.
If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the Agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the Agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.
This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This is because the proposed rule applies to affected sources in the flexible polyurethane foam fabrication industry, not to States or local governments. Nor will State law be preempted or any mandates be imposed on States or local governments. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule. The EPA notes, however, that although not required to do so by this Executive Order (or otherwise), it did consult with State governments during development of this proposed rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175, because we are not aware of any Indian tribal governments or communities affected by the proposed rule. Thus, Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits additional comment on this proposed rule from tribal officials.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it is based solely on technology performance. No children's risk analysis was performed because no alternative technologies exist that would provide greater stringency at a reasonable cost. Additionally, this proposed rule is not “economically significant” as defined under Executive Order 12866.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, we must generally prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
We have determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The total annual cost of this proposed rule for any 1 year has been estimated at $60,000 per year. Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, we have determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, today's proposed rule is not subject to the requirements of section 203 of the UMRA.
The RFA generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.
For the purposes of assessing the impacts of today's proposed NESHAP on small entities, a small entity is defined based on definitions provided by the Small Business Administration (SBA). Based on the SBA definitions, there are no small entities affected by the proposed NESHAP. Pursuant to the provisions of 5 U.S.C. 605(b), we hereby certify that the proposed NESHAP, if promulgated, will not have a significant economic impact on a substantial number of small entities.
The information collection requirements in this proposed rule will be submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
The information requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to EPA policies set forth in 40 CFR part 2, subpart B.
According to the ICR, the total 3-year monitoring, reporting, and recordkeeping burden for this collection is 3,634 labor hours, and the annual average burden is 1,211 labor hours. The labor cost over the 3-year period is $154,399 or $51,466 per year. The annualized capital cost for monitoring equipment is $997. Annual operation and maintenance costs are $4,982 over 3 years, averaging $1,661 per year. This estimate includes a one-time plan for demonstrating compliance, annual compliance certificate reports, notifications, and recordkeeping.
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.
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.
Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW, Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR number in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after August 8, 2001, a comment to OMB is best assured of having its full effect if OMB receives it by September 7, 2001. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement 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, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.
This proposed rulemaking involves technical standards. The EPA proposes in this rule to use EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 4, 26A, 311, and a method to measure HCN (section 63.7(c)(2)(i)). Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 1A, 2A, 2D, 2F, 2G, nor a method to measure HCN. The search and review results have been documented and are placed in the docket (A-2000-43) for this proposed rule.
Five voluntary consensus standards: ASTM D1979-91, ASTM D3432-89, ASTM D4747-87, ASTM D4827-93, and ASTM PS 9-94 are incorporated by reference in EPA Method 311. One additional voluntary consensus standard was found in the search that is acceptable as an alternative to EPA Method 311. The voluntary consensus standard ISO 11890-2 Part 2, “Paints and Varnishes—Determination of Volatile Organic Compound (VOC) Content—Gas Chromatographic Method” is acceptable as an alternative for the measurement of HAP content of adhesives for the purposes of this proposed rule.
The search for emission measurement procedures identified eight other voluntary consensus standards applicable to this proposed rule. The EPA determined that six of these eight standards were impractical alternatives to EPA test methods for the purposes of this proposed rule. Therefore, EPA does not propose to adopt these standards today. The reasons for this determination for the six methods are discussed below.
The standard ISO 10780:1994, “Stationary Source Emissions—Measurement of Velocity and Volume Flowrate of Gas Streams in Ducts,” is impractical as an alternative to EPA Method 2 in this proposed rule. This standard recommends the use of L-shaped pitots, which historically have not been recommended by EPA because the S-type design has large openings which are less likely to plug up with dust.
The standard ASTM D3464-2001, “Standard Test Method Average Velocity in a Duct Using a Thermal Anemometer,” is impractical as an alternative to EPA Method 2 for the purposes of this proposed rule primarily because applicability specifications are not clearly defined, e.g., range of gas composition, temperature limits. Also, the lack of supporting quality assurance data for the calibration procedures and specifications, and certain variability issues that are not adequately addressed by the standard, limit EPA's ability to make a definitive comparison of the method in these areas.
The European standard EN 1911-1,2,3 (1998), “Stationary Source Emissions—Manual Method of Determination of HCl—Part 1: Sampling of Gases Ratified European Text—Part 2: Gaseous Compounds Absorption Ratified European Text—Part 3: Adsorption Solutions Analysis and Calculation Ratified European Text,” is impractical as an alternative to EPA Method 26A. Part 3 of this standard cannot be considered equivalent to EPA Method 26 or 26A because the sample absorbing solution (water) would be expected to capture both HCl and chlorine gas, if present, without the ability to distinguish between the two. The EPA Methods 26 and 26A use an acidified absorbing solution to first separate HCl and chlorine gas so that they can be selectively absorbed, analyzed, and reported separately. In addition, in EN 1911 the absorption efficiency for chlorine gas would be expected to vary as the pH of the water changed during sampling.
The remaining two of the six voluntary consensus standards are impractical alternatives to EPA test methods for the purposes of this proposed rule because they are too general, too broad, or not sufficiently detailed to assure compliance with EPA regulatory requirements: ASTM D3796-90 (Reapproved 1996), “Standard Practice for Calibration of Type S Pitot Tubes,” for EPA Method 2; and ASTM E337-84 (Reapproved 1996), “Standard Test Method for Measuring Humidity with a Psychrometer (the Measurement of Wet- and Dry-Bulb Temperatures),” for EPA Method 4; and ASTM D3154-91 “Standard Method for Average Velocity in a Duct (Pilot Tube Method),” for EPA Methods 1, 2 2C, and 4.
The following two of the eight voluntary consensus standards identified in this search were not available at the time the review was conducted for the purposes of this proposed rule because they are under development by a voluntary consensus body: ASME/BSR MFC 13M, “Flow Measurement by Velocity Traverse,” for EPA Method 1 (and possibly 2); and ASME/BSR MFC 12M, “Flow in Closed Conduits Using Multiport Averaging Pitot Primary Flowmeters,” for EPA Method 2. While we are not proposing to include these two voluntary consensus standards in today's action, the EPA will consider the standards when finalizing the rule.
The EPA takes comment on the compliance demonstration requirements in this proposed rule and specifically invites the public to identify potentially-applicable voluntary consensus standards. Commentors should also explain why this proposed rule should adopt these voluntary consensus standards in lieu of or in addition to EPA's standards. Emission test methods and performance specifications submitted for evaluation should be accompanied with a basis for the recommendation, including method validation data and the procedure used to validate the candidate method (if a method other than Method 301, 40 CFR part 63, Appendix A, was used).
Sections 63.8800 and 63.8802 of the proposed standard list the EPA testing methods included in the proposed rule. Under § 63.8 of subpart A of the General Provisions, a source may apply to EPA for permission to use alternative monitoring in place of any of the EPA testing methods.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Environmental protection, Administrative practice and procedure, Air pollution control, Flexible polyurethane foam fabrication operations, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, chapter I, part 63, of the Code of the Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 63 continues to read as follows:
42 U.S.C. 7401,
2. Part 63 is amended by adding subpart MMMMM to read as follows:
This subpart establishes national emission standards for hazardous air pollutants (NESHAP) emitted from flexible polyurethane foam fabrication operations. This subpart also establishes requirements to demonstrate initial and continuous compliance with the emission standards.
(a) You are subject to this subpart if you own or operate a flexible polyurethane foam fabrication plant site that operates a flame lamination affected source, as defined at § 63.8784 (b)(2), and that is located at, or is part of a major emission source of hazardous air pollutants (HAP) or that operates a loop slitter affected source, as defined at § 63.8784 (b)(1), that meets the criteria in paragraphs (a)(1) and (2) of this section.
(1) The loop slitter affected source uses one or more HAP-based adhesives at any time on or after [Date of publication of the final rule in the
(2) The loop slitter affected source is located at or is part of a major source of HAP.
(b) A flexible polyurethane foam fabrication plant site is a plant site where pieces of flexible polyurethane foam are bonded together or to other substrates using HAP-based adhesives or flame lamination.
(c) A major source of HAP is a plant site that emits or has the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year.
(d) This subpart does not apply to the following processes in paragraphs (d)(1) and (2) of this section:
(1) Processes that produce flexible polyurethane or rebond foam as defined in subpart III of this part.
(2) A research and development process.
(a) This subpart applies to each existing, new, or reconstructed affected source at facilities engaged in flexible polyurethane foam fabrication.
(b) The affected sources are defined in this section in paragraph (b)(1), loop slitter adhesive use, and paragraph (b)(2), flame lamination, of this section.
(1) The loop slitter adhesive use affected source is the collection of all loop slitters and associated adhesive application equipment used to apply HAP-based adhesives to bond foam to foam at a flexible polyurethane foam fabrication plant site.
(2) The flame lamination affected source is the collection of all flame lamination lines associated with the flame lamination of foam to any substrate at a flexible polyurethane foam fabrication plant site.
(c)(1) A new affected source is one that commences construction after August 8, 2001 and meets the applicability criteria of § 63.8782 at the time construction commences.
(2) If you add one or more flame lamination lines at a plant site where flame lamination lines already exist, the added line(s) shall be a new affected source and meet new source requirements if the added line(s) has the potential to emit 10 tons per year or more of any HAP or 25 tons or more per year of any combination of HAP.
(d) A reconstructed affected source is one that commences reconstruction after August 8, 2001 and meets the criteria for reconstruction as defined in § 63.2.
(e) An affected source is existing if it is not new or reconstructed.
(a) If you have a new or reconstructed affected source, you must comply with this subpart according to paragraphs (a)(1) and (2) of this section.
(1) If you start up your new or reconstructed affected source before [Date of publication of the final rule in the
(2) If you start up your new or reconstructed affected source after [Date of publication of the final rule in the
(b) If you have an existing loop slitter affected source, you must comply with the emission standards for existing sources no later than 1 year after [Date of publication of the final rule in the
(c) If you have an area source that increases its emissions or its potential to emit such that it becomes a major source of HAP and an affected source subject to this subpart, the provisions in paragraphs (c)(1) and (2) of this section apply.
(1) A new affected source as specified at § 63.8784(c) or a reconstructed affected source as specified at § 63.8784(d) must be in compliance with this subpart upon startup.
(2) An existing affected source as specified at § 63.8784(e) must be in compliance with this subpart no later than 1 year after the date on which the area source became a major source.
(d) You must meet the notification requirements in § 63.8816 according to the schedule in § 63.8816 and in subpart A of this part. Some of the notifications must be submitted before you are required to comply with the emission standards in this subpart.
(e) If you have a loop slitter affected source, you must begin collecting data prior to the compliance date specified in paragraph (b) of this section as necessary to demonstrate that your adhesives contain no HAP. The types of data necessary are described in §§ 63.8802 and 63.8810.
(a) You must meet each emission limit in Table 1 to this subpart that applies to you.
(b) You must meet each operating limit in Table 2 to this subpart that applies to you.
(a) For each loop slitter adhesive use affected source, you must be in compliance with the requirements in this subpart at all times.
(b) For each new or reconstructed flame lamination affected source, you
(c) You must always operate and maintain your affected source, including air pollution control and monitoring equipment, according to the provisions in § 63.6(e)(1)(i).
(d) During the period between the compliance date specified for your new or reconstructed flame lamination affected source in § 63.8786, and the date upon which continuous compliance monitoring systems have been installed and verified and any applicable operating limits have been set, you must maintain a log detailing the operation and maintenance of the process and emissions control equipment.
(e) For each new or reconstructed flame lamination affected source, you must develop and implement a written startup, shutdown, and malfunction plan according to the provisions in § 63.6(e)(3).
(f) For each monitoring system required in this section for new or reconstructed flame lamination sources, you must develop and submit for approval a site-specific monitoring plan that addresses the requirements in paragraphs (f)(1) through (3) of this section.
(1) Installation of the continuous monitoring system (CMS) sampling probe or other interface at a measurement location relative to each affected process unit such that the measurement is representative of control of the exhaust emissions (e.g., on or downstream of the last control device);
(2) Performance and equipment specifications for the sample interface, the pollutant concentration or parametric signal analyzer, and the data collection and reduction system; and
(3) Performance evaluation procedures and acceptance criteria (e.g., calibrations).
(g) In your site-specific monitoring plan, you must also address the ongoing procedures specified in paragraphs (g)(1) through (3) of this section.
(1) Ongoing operation and maintenance procedures in accordance with the general requirements of §§ 63.8(c)(1), (3), (4)(ii), (7), and (8), and 63.8804;
(2) Ongoing data quality assurance procedures in accordance with the general requirements of § 63.8(d); and
(3) Ongoing recordkeeping and reporting procedures in accordance with the general requirements of § 63.10(c),(e)(1), and (e)(2)(i).
(a) For each loop slitter affected source, you must conduct the initial compliance demonstration by the compliance date that is specified for your source in § 63.8786.
(b) For each new or reconstructed flame lamination affected source, you must conduct performance tests within 180 calendar days after the compliance date that is specified for your source in § 63.8786 and according to the provisions in § 63.7(a)(2).
(a) You must conduct each performance test in Table 3 to this subpart that applies to you.
(b) Each performance test must be conducted according to the requirements in § 63.7(e)(1) and under the specific conditions in Table 3 of this subpart.
(c) You may not conduct performance tests during periods of startup, shutdown, or malfunction, as specified in § 63.7(e)(1).
(d) You must conduct at least three separate test runs for each performance test required in this section, as specified in § 63.7(e)(3). Each test run must last at least 1 hour.
(e) You must determine the percent reduction of HAP emissions during the performance test according to paragraphs (e)(1) through (3) of this section.
(1) If you use chlorinated fire retardant foams, determine the percent reduction of hydrochloric acid (HCl) to represent HAP emissions from the source. If you do not use chlorinated fire retardant foams, determine the percent reduction of hydrogen cyanide (HCN) to represent HAP emissions from the source.
(2) Calculate the concentration of HAP at the control device inlet and at the control device outlet using the procedures in the specified test method.
(3) Compare the calculated HAP concentration at the control device inlet to the calculated HAP concentration at the control device outlet to determine the percent reduction over the period of the performance test, using equation 1 of this section:
(f) You must also meet the requirements in paragraphs (f)(1) and (2) of this section.
(1) Conduct the performance tests using foams that are representative of foams typically used at your flame lamination affected source. If you use foams containing chlorinated fire retardants, you must conduct the performance tests using these foams.
(2) Establish all applicable operating limits that correspond to the control system efficiency as described in Table 3 to this subpart.
To determine the HAP content in the adhesive used at your loop slitter affected source, use EPA Method 311 of appendix A of 40 CFR part 63, an approved alternative method, or any other reasonable means for determining the HAP content of your adhesives. Other reasonable means include, but are not limited to, a material safety data sheet (MSDS), provided it contains
(a) For each operating parameter that you are required by § 63.8800(f)(2) to monitor, you must install, operate, and maintain each continuous parameter monitoring system (CPMS) according to the requirements in § 63.8794(f) and (g) and in paragraphs (a)(1) through (6) of this section.
(1) You must operate your CPMS at all times that the process is operating.
(2) You must collect data from at least four equally spaced periods each hour.
(3) For at least 75 percent of the hours in a 24-hour period, you must have valid data (as defined in your site-specific monitoring plan) for at least four equally spaced periods each hour.
(4) For each hour that you have valid data from at least four equally spaced periods, you must calculate the hourly average value using all valid data.
(5) You must calculate the daily average using all of the hourly averages calculated according to paragraph (a)(3) of this section for the 24-hour period.
(6) You must record the results for each inspection, calibration, and validation check as specified in your site-specific monitoring plan.
(b) For liquid flow monitoring devices such as various types of flow meters, including magnetic, mass, thermal, fluidic oscillating, vortex formation, turbine, and positive displacement, you must meet the requirements in paragraphs (a) and (b)(1) through (4) of this section.
(1) You must locate the flow sensor and other necessary equipment in or as close to a position that provides a representative flow;
(2) You must use a flow sensor with a minimum measurement uncertainty of 2 percent of the flow rate;
(3) You must conduct at least semiannually a flow sensor calibration check; and
(4) You must perform at least monthly inspections of all components for integrity, of all electrical connections for continuity, and of all mechanical connections for leakage.
(c) For pH monitoring devices, you must meet the requirements in paragraphs (a) and (c)(1) through (4) of this section.
(1) You must locate the pH sensor so that a representative pH is provided;
(2) You must ensure the sample is properly mixed and representative of the fluid to be measured;
(3) You must check the pH meter's calibration on at least two points every 8 hours of process operation; and
(4) You must perform at least monthly inspections of all components for integrity and of all electrical connections for continuity.
(d) For pressure monitoring using devices such as manometers, gauges, and transducers (including strain gauges), you must meet the requirements in paragraphs (a) and (d)(1) through (5) of this section.
(1) You must locate the pressure sensor(s) so that a representative pressure is provided;
(2) You must use a means to minimize or eliminate pulsating pressure, vibration, and internal and external corrosion;
(3) You must use a gauge with a minimum measurement uncertainty of one-half inch of water or a transducer with a minimum measurement uncertainty of 1 percent of the pressure range;
(4) You must conduct daily pressure tap pluggage checks and quarterly calibration checks with manometers for gauges or monthly calibration checks with manometers for transducers; and
(5) You must conduct calibrations more frequently after prolonged excursions above the sensor's maximum rated operating pressure range.
(e) If you install a control device that requires monitoring parameters other than those listed in paragraphs (b) through (d) of this section, you must install a CPMS in accordance with paragraph (a) of this section, and you must include the information in paragraphs (e)(1) through (3) of this section in your site-specific monitoring plan, which is required at § 63.8794(f).
(1) Identify the operating parameter to be monitored to ensure that the control or capture efficiency measured during the initial compliance test is maintained.
(2) Discuss why this parameter is appropriate for demonstrating ongoing compliance.
(3) Identify the specific monitoring procedures.
(a) You must demonstrate initial compliance with each emission limit that applies to you according to Table 4 to this subpart.
(b) You must establish each site-specific operating limit in Table 2 to this subpart that applies to you according to the requirements in § 63.8800 and Table 3 to this subpart.
(c) You must submit the Notification of Compliance Status containing the results of the initial compliance demonstration according to the requirements in § 63.8816(e) through (h).
(a) If you own or operate a loop slitter adhesive use affected source, you must meet the requirements in paragraphs (a)(1) and (2) of this section.
(1) Maintain a list of each adhesive and the manufacturer or supplier of each.
(2) Maintain a record of EPA Method 311, approved alternative method, or other reasonable means of HAP content determinations indicating the mass percent of each HAP for each adhesive.
(b) If you own or operate a new or reconstructed flame lamination affected source, you must meet the requirements in paragraphs (b)(1) through (3) of this section if you use a scrubber, or paragraph (b)(4) of this section if you use any other control device.
(1) Keep records of the daily average scrubber inlet liquid flow rate.
(2) Keep records of the daily average scrubber effluent pH.
(3) If you use a venturi scrubber, keep records of daily average pressure drop across the venturi.
(4) Keep records of operating parameter values for each operating parameter that applies to you.
(c) If you own or operate a new or reconstructed flame lamination affected source, you must meet the requirements in paragraphs (c)(1) through (4) of this section.
(1) Except for periods of monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments), you must monitor continuously (or collect data at all required intervals) at all times that the affected source is operating. This includes periods of startup, shutdown, and malfunction when the affected source is operating. A monitoring malfunction includes, but is not limited to, any sudden, infrequent, not reasonably preventable failure of the monitoring device to provide valid data. Monitoring failures that are caused by
(2) In data average calculations and calculations used to report emission or operating levels, you may not use data recorded during monitoring malfunctions, associated repairs, or recorded during required quality assurance or control activities. Nor may such data be used in fulfilling any applicable minimum data availability requirement. You must use all the data collected during all other periods in assessing the operation of the control device and associated control system.
(3) You must conduct a performance evaluation of each CMS in accordance with your site-specific monitoring plan.
(4) You must operate and maintain the CMS in continuous operation according to the site-specific monitoring plan.
(a) You must demonstrate continuous compliance with each emission limit and operating limit in Tables 1 and 2 to this subpart that applies to you according to the methods specified in Table 5 to this subpart.
(b) You must report each instance in which you did not meet each emission limit and each operating limit in Tables 1 and 2 to this subpart that apply to you. For new or reconstructed flame lamination affected sources, this includes periods of startup, shutdown, and malfunction. These instances are deviations from the operating limits in this subpart. These deviations must be reported according to the requirements in § 63.8818.
(c) For each new or reconstructed flame lamination affected source, you must operate in accordance with the startup, shutdown, and malfunction plan during periods of startup, shutdown, and malfunction.
(d) Consistent with §§ 63.6(e) and 63.7(e)(1), deviations that occur at a new or reconstructed flame lamination affected source during a period of startup, shutdown, or malfunction are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with the startup, shutdown, and malfunction plan. The Administrator will determine whether deviations that occur at a new or reconstructed flame lamination affected source during a period of startup, shutdown, or malfunction are violations, according to the provisions in § 63.6(e).
(e) You also must meet the following requirements if you are complying with the adhesive use ban for loop slitter adhesive use described in § 63.8790(a).
(1) If, after you submit the Notification of Compliance Status, you use an adhesive for which you have not previously verified percent HAP mass using the methods in § 63.8802, you must verify that each adhesive used in the affected source meets the emission limit, using any of the methods in § 63.8802.
(2) You must update the list of all the adhesives used at the affected source.
(3) With the compliance report for the reporting period during which you used the new adhesive, you must submit the updated list of all adhesives and a statement certifying that, as purchased, each adhesive used at the affected source during the reporting period met the emission limit in Table 1 to this subpart.
(a) You must submit all of the notifications in §§ 63.7(b) and (c), 63.8(f), and 63.9(b) through (h) that apply to you.
(b) If you own or operate an existing loop slitter or flame lamination affected source, submit an initial notification no later than 120 days after [Date of publication of the final rule in the
(c) If you own or operate a new or reconstructed loop slitter or flame lamination affected source, submit the application for construction or reconstruction required by § 63.9(b)(1)(iii) in lieu of the initial notification.
(d) If you own or operate a new or reconstructed flame lamination affected source, submit a notification of intent to conduct a performance test at least 60 calendar days before the performance test is scheduled to begin, as required in § 63.7(b)(1).
(e) If you own or operate a loop slitter affected source, submit a Notification of Compliance Status according to § 63.9(h)(2)(ii) within 60 days of the compliance date specified in § 63.8786.
(f) If you own or operate a new or reconstructed flame lamination affected source, submit a Notification of Compliance Status according to § 63.9(h)(2)(ii) that includes the results of the performance test conducted according to the requirements in Table 3 to this subpart. You must submit the notification before the close of business on the 60th calendar day following the completion of the performance test according to § 63.10(d)(2).
(g) For each new or reconstructed flame lamination affected source, the Notification of Compliance Status must also include the information in paragraphs (g)(1) and (2) that applies to you.
(1) The operating parameter value averaged over the full period of the performance test (for example, average pH).
(2) The operating parameter range within which HAP emissions are reduced to the level corresponding to meeting the applicable emission limits in Table 1 to this subpart.
(h) For each loop slitter adhesive use affected source, the Notification of Compliance Status must also include the information listed in paragraphs (h)(1) and (2) of this section.
(1) A list of each adhesive used at the affected source, its HAP content (percent by mass), and the manufacturer or supplier of each.
(2) A statement certifying that each adhesive that was used at the affected source during the reporting period met the emission limit in Table 1 to this subpart.
(a) You must submit each report in Table 6 to this subpart that applies to you.
(b) Unless the Administrator has approved a different schedule for submission of reports under § 63.10(a), you must submit each compliance report for new or reconstructed flame lamination affected sources semiannually according to paragraphs (b)(1) through (4) of this section.
(1) The first compliance report must cover the period beginning on the compliance date that is specified for your affected source in § 63.8786 and ending on June 30 or December 31, whichever date is the first date following the end of the first calendar half after the compliance date that is specified for your source in § 63.8786.
(2) The first compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date follows the end of the first calendar half after the compliance date that is specified for your affected source in § 63.8786.
(3) Each subsequent compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(4) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date is the first date following the end of the semiannual reporting period.
(c) For each loop slitter adhesive use affected source, you may submit annual compliance reports in place of semiannual reports.
(d) For each affected source that is subject to permitting regulations pursuant to 40 CFR part 70 or 40 CFR part 71, and if the permitting authority has established dates for submitting semiannual reports pursuant to 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), you may submit the first and subsequent compliance reports according to the dates the permitting authority has established instead of according to the dates in paragraph (b)(1) through (4) of this section.
(e) The compliance report must contain the information in paragraphs (e)(1) through (5) of this section.
(1) Company name and address.
(2) Statement by a responsible official with that official's name, title, and signature, certifying the truth, accuracy and completeness of the content of the report.
(3) Date of report and beginning and ending dates of the reporting period.
(4) If there are no deviations from any emission limitations (emission limit or operating limit) that applies to you, a statement that there were no deviations from the emission limitations during the reporting period.
(5) For each deviation from an emission limitation that occurs, the compliance report must contain the information specified in paragraphs (e)(5)(i) through (iii) of this section.
(i) The total operating time of each affected source during the reporting period.
(ii) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken.
(iii) Information on the number, duration, and cause for CPMS downtime incidents, if applicable, other than downtime associated with zero and span and other daily calibration checks.
(f) The compliance report for a new or reconstructed flame lamination affected source must also contain the following information in paragraphs (f)(1) through (3) of this section.
(1) If you had a startup, shutdown or malfunction at your new or reconstructed flame lamination affected source during the reporting period and you took actions consistent with your startup, shutdown, and malfunction plan, the compliance report must include the information in § 63.10(d)(5)(i).
(2) If there were no periods during which the CPMS was out-of-control in accordance with the monitoring plan, a statement that there were no periods during which the CPMS was out-of-control during the reporting period.
(3) If there were periods during which the CPMS was out-of-control in accordance with the monitoring plan, the date, time, and duration of each out-of-control period.
(g) The compliance report for a loop slitter adhesive use affected source must also contain the following information in paragraphs (g)(1) and (2) of this section.
(1) For each annual reporting period during which you use an adhesive that was not included in the list submitted with the Notification of Compliance Status in § 63.8816(h)(1), an updated list of all adhesives used at the affected source.
(2) A statement certifying that each adhesive that was used at the affected source during the reporting period met the emission limit in Table 1 to this subpart.
(h) Each affected source that has obtained a title V operating permit pursuant to 40 CFR part 70 or 40 CFR part 71 must report all deviations as defined in this subpart in the semiannual monitoring report required by 40 CFR 70.6(3)(iii)(A) or 40 CFR 71.6(3)(iii)(A). If an affected source submits a compliance report pursuant to Table 6 to this subpart along with, or as part of, the semiannual monitoring report required by 40 CFR 70.6(3)(iii)(A) or 40 CFR 71.6(3)(iii)(A), and the compliance report includes all required information concerning deviations from any emission limitation (including any operating limit) in this subpart, submission of the compliance report shall be deemed to satisfy any obligation to report the same deviations in the semiannual monitoring report. However, submission of a compliance report shall not otherwise affect any obligation the affected source may have to report deviations from permit requirements to the permit authority.
(i) For each startup, shutdown, or malfunction during the reporting period that occurs at a new or reconstructed flame lamination affected source and that is not consistent with your startup, shutdown, and malfunction plan, you must submit an immediate startup, shutdown and malfunction report.
(1) An initial report containing a description of the actions taken for the event must be submitted by fax or telephone within 2 working days after starting actions inconsistent with the plan.
(2) A followup report containing the information listed in § 63.10(d)(5)(ii) must be submitted within 7 working days after the end of the event unless you have made alternative reporting arrangements with the permitting authority.
(a) You must keep a copy of each notification and report that you submit to comply with this subpart, including all documentation supporting any Initial Notification or Notification of Compliance Status that you submitted, according to the requirements in § 63.10(b)(2)(xiv).
(b) For each new or reconstructed flame lamination affected source, you must also keep the following records specified in paragraphs (b)(1) through (4) of this section.
(1) The records in § 63.6(e)(3)(iii) through (v) related to startup, shutdown, and malfunction.
(2) Records of performance tests, as required in § 63.10(b)(2)(viii).
(3) Records of operating parameter values.
(4) Records of the date and time that each deviation started and stopped and whether the deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(c) For each loop slitter adhesive use affected source, you must keep the following records specified in paragraphs (c)(1) and (2) of this section.
(1) A list of each adhesive and the manufacturer or supplier of each.
(2) A record of EPA Method 311, approved alternative method, or other reasonable means of determining the mass percent of total HAP for each adhesive used at the affected source.
(a) Your records must be in a form suitable and readily available for expeditious review, according to § 63.10(b)(1).
(b) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(c) You must keep each record on site for at least 2 years after the date of each occurrence, measurement, maintenance, corrective action, report, or record, according to § 63.10(b)(1). You can keep the records offsite for the remaining 3 years.
Table 7 to this subpart shows which parts of the General Provisions in §§ 63.1 through 63.15 apply to you.
(a) This subpart can be implemented and enforced by us, the U.S. EPA, or a delegated authority such as your State, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to your State, local, or tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. You should contact your U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to your State, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under 40 CFR part 63, subpart E, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and are not transferred to the State, local, or tribal agency.
(c) The authorities in paragraphs (c)(1) through (4) that cannot be delegated to State, local, or tribal agencies are as follows:
(1) Approval of alternatives to requirements in §§ 63.8780, 63.8782, 63.8784, 63.8786, and 63.8790.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f) and as defined in § 63.90.
(3) Approval of major alternatives to monitoring under § 63.8(f) and as defined in § 63.90.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f) and as defined in § 63.90.
Terms used in this subpart are defined in the Clean Air Act (CAA), in 40 CFR 63.2, the General Provisions of this part, and in this section as follows:
(1) Fails to meet any requirement or obligation established by this subpart, including but not limited to any emission limitation (including any operating limit); or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Fails to meet any emission limitation (including any operating limit) in this subpart during startup, shutdown, or malfunction, regardless of whether or not such failure is permitted by this subpart.
Cooperative State Research, Education, and Extension Service, USDA and the National Center for Environmental Research, USEPA.
Notice of request for proposals and request for input.
As a collaborative, interagency effort, the Cooperative State Research, Education, and Extension Service (CSREES) of the U.S. Department of Agriculture (USDA) and the National Center for Environmental Research (NCER) of the U.S. Environmental Protection Agency (USEPA) are soliciting proposals for the Nutrient Science for Improved Watershed Management Program. It is anticipated that the amount available for support of this program in fiscal year (FY) 2002 will be approximately $7,000,000 ($4,000,000 from NCER and $3,000,000 from CSREES). This joint request for proposals (RFP) is soliciting proposals that integrate research and extension activities aimed at addressing nutrient management issues at the watershed scale.
This notice sets out the objectives for the Nutrient Science for Improved Watershed Management Program projects, the eligibility criteria for projects and applicants, the application procedures, and the set of instructions needed to apply for a grant under this RFP.
By this notice, CSREES and NCER additionally solicit stakeholder input from any interested party regarding the FY 2002 Nutrient Science for Improved Watershed Management Program for use in the development of any future RFP's for this program.
Proposals must be received by close of business (COB) on November 6, 2001 (5 p.m. Eastern Time). Proposals received after this date will not be considered for funding. Comments regarding this RFP are requested within six months from the issuance of this notice. Comments received after that date will be considered to the extent practicable.
The address for hand-delivered proposals or proposals submitted using an express mail or overnight courier service is: Nutrient Science for Improved Watershed Management; c/o Proposal Services Unit; Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; Waterfront Centre, Room 1307; 800 9th Street, SW., Washington, DCY 20024; Telephone: (202) 401-5048.
Proposals sent via the U.S. Postal Service must be sent to the following address: Nutrient Science for Improved Watershed Management Program; c/o Proposal Services Unit; Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; STOP 2245; 1400 Independence Avenue, SW, Washington, DC 20250-2245.
Written user comments should be submitted by mail to: Policy and Program Liaison Staff; Office of Extramural Programs; USDA-CSREES; STOP 2299; 1400 Independence Avenue, SW., Washington, DC 20250-2299; or via e-mail to: RFP-OEP@reeusda.gov. In your comments, please include the name of the program and the fiscal year of the RFP to which you are responding.
Applicants and other interested parties are encouraged to contact Dr. Michael P. O'Neill; National Program Leader for Water Quality; Natural Resources and Environment Unit; Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; STOP 2210; 1400 Independence Avenue, SW., Washington, DC 20250-2210; Telephone: (202) 205-5952; Fax: (202) 401-1706; email: moneill@reeusda.gov; or Ms. Barbara Levinson; National Center for Environmental Research (NCER); U.S. Environmental Protection Agency; 1200 Pennsylvania Avenue, NW., Washington, DC 20460; Telephone: (202) 564-6911; Fax: (202) 565-2448; e-mail:
CSREES and NCER are soliciting comments regarding this RFP from any interested party. These comments will be considered in the development of any future RFP for the program. Such comments will be used to meet the requirements of section 103(c)(2) of the Agricultural Research, Extension, and Education Reform Act of 1998 (AREERA), Pub. L. No. 105-185, as amended (7 U.S.C. 7613(c)(2)). This section requires the Secretary to solicit and consider input on a current RFP from persons who conduct or use agricultural research, education and extension for use in formulating future RFP's for competitive programs. Comments should be submitted as provided for in the
This program is listed in the Catalog of Federal Domestic Assistance (CFDA) for CSREES under CFDA No. 10.303, Integrated Research, Education, and Extension Competitive Grants Program and for NCER under CFDA No. 66.500, Environmental Protection Consolidated Research.
The funding provided by CSREES for this program is governed by section 406 of AREERA (7 U.S.C. 7626). That section authorized the Secretary of Agriculture to establish an integrated research, education, and extension competitive grants program to provide funding for integrated, multifunctional agricultural research, extension, and education activities. Subject to the availability of appropriations to carry out this program, the Secretary may award grants to colleges and universities (as
CSREES administers the Integrated Research, Education, and Extension Competitive Grants Program by determining priorities in United States agriculture through Agency stakeholder input processes and in consultation with the National Agricultural Research, Extension, Education, and Economics Advisory Board. See 7 U.S.C. 7601(4) and 7626(c). Each RFP for the different program areas (e.g., Water Quality) is developed each fiscal year based on these established priorities and the resulting approaches to solving these critical agricultural issues. Although this overall grant program seeks to solve critical agricultural issues through an integration of research, education, and extension activities, a component of a RFP, depending on the priority being addressed and/or the stage at which the priority is being addressed, may request proposals that are research, education, or extension only, or a combination thereof. However, the overall, overarching approach to solving the critical agricultural issue, priority, or problem will be through an integration of research, education, and extension activities within each individual program area.
For FY 2001, Congress appropriated funds pursuant to section 406 of AREERA to CSREES for an integrated research, education, and extension competitive grants program in seven areas: Water Quality, Food Safety, National Agriculture Pesticide Impact Assessment, Food Quality Protection Act Risk Mitigation for Major Food Crop Systems, Food Quality Protection Act Implementation, Methyl Bromide Transition, and Organic Transition. H.R. Conf. Rep. No. 106-948, at 10-11 (2000). It is anticipated that the same level of funding will be available in FY 2002 for the Water Quality area. The goal of the CSREES Water Quality Program under this authority is to fund appropriate research, extension, and education efforts at the national, regional, state, and local levels necessary to protect or improve the quality of water resources in the United States and its territories, particularly in agriculturally managed watersheds to address the impacts of agricultural activities on those resources. Projects funded by CSREES should contribute to this goal through an integration of research and extension programs in natural or managed agricultural watersheds. The FY 2002 RFP's for the other program areas funded under the AREERA section 406 authority will be published in the
The funding provided by NCER is governed by separate statutory provisions. The Clean Water Act (CWA) of 1972, Pub. L. No. 92-240, as amended, was passed to restore and maintain the chemical, physical, and biological integrity of the Nations' waters. The Clean Air Act (CAA), Pub. L. No. 88-206, as amended, mandates USEPA to investigate, monitor, assess, and control nitrogen in its various forms. The CAA amendments of 1990, Pub. L. No. 104-316, mandate USEPA to reduce year-round nitrogen loadings to curb effects of acid deposition on aquatic and terrestrial ecosystems. Both Acts authorize research to meet their legislative mandates.
Grants by USEPA in this program will be awarded under the authority of section 104 of CWA.
Excessive nutrients have been linked to a wide variety of human health and environmental problems. These include lake acidification, soil degradation, hazardous algal blooms, dissolved oxygen problems in coastal waters, and forest declines, among others. If these complex problems are to be addressed, new integrative approaches that consider the management of multiple sources across multiple spatial and temporal scales must be developed and implemented. In order to pro-actively mitigate the nutrient over-enrichment problem, NCER and CSREES have come together to sponsor this solicitation. The outcome of this research will provide the scientific foundation for improved tools for managing and controlling nutrients by enhancing our understanding of the fate of nutrients from sources (i.e., atmospheric and terrestrial) through biogeochemical cycling in ecosystems to their effects on biological communities.
An extensive body of literature exists regarding nutrient pollution in the Nation's water bodies. There remains, however, a need to conduct basic research to identify substantial nutrient sources and processes in the Nation's watersheds at a variety of spatial and temporal scales and across a broad spectrum of geographic locations. Much of the past research focused on the examination of nutrient loads in specific water bodies, such as streams, rivers, lakes, groundwater and estuaries. However, much of this research has been conducted without detailed documentation of the interactions among terrestrial, atmospheric, and hydrologic components of the nutrient cycle. Moreover, these sources and processes that act to remove nutrients from the watershed system require investigation across entire watersheds at a variety of spatial and temporal scales. Unlike most previous research, new efforts must focus on the integration of nutrient dynamics across a watershed and the evaluation of linkages among sources, processes for removal of nutrients, and the overall quality of water resources in these watersheds.
Similarly, much of the past research focused on the utility of specific management practices to reduce nutrient inputs to streams, lakes, rivers, and groundwater. This work traditionally has been conducted on specific plots or stream reaches. Impacts of different management activities within the sub-basin need to be considered within the context of an entire watershed. Thus, research is needed to establish how land management strategies work to complement or counteract one another within a specific watershed.
Equally important to resolving watershed nutrient pollution is enhancing the community's understanding of environmental issues, building the capacity for communities to address these problems, developing tools, information and data to assist communities in addressing environmental problems, and ensuring communities have access to the most creditable available scientific information. For this competition, the proposals will demonstrate involvement of local governments and/or community groups from inception (developing the research questions and designing the project) to completion of the research project (analyzing and disseminating the results of research). Because nutrient management is fundamentally related to activities that occur in time and space, communication efforts (dissemination of results) that make use of Geographic Information Systems (GIS) or other graphical approaches to convey research findings are especially sought. All research projects funded through this solicitation must include innovative efforts to establish effective communication of scientific results to the appropriate audiences through outreach and extension efforts.
CSREES’ highest priority is to fund research in agricultural watersheds.
There is no commitment by CSREES or NCER to fund any particular proposal or to make a specific number of awards. It is anticipated that the participating agencies will have a total of approximately $7 million available for this Program in FY 2002 ($4 million from NCER and $3 million from CSREES). CSREES and NCER will fund awards separately.
Academic institutions and non-profit organizations are eligible to receive awards through this joint program. Details regarding specific eligibility for the two agencies are presented below.
The source of CSREES funds for the Nutrient Science for Improved Watershed Management Program is the Integrated Research, Education, and Extension Competitive Grants Program established pursuant to section 406 of AREERA. Under this program, proposals may be submitted by colleges and universities as defined in section 1404 of NARETPA. The terms “college” and “university” mean an educational institution in any State which (1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, (2) is legally authorized within such State to provide a program of education beyond secondary education, (3) provides an educational program for which a bachelor's degree or any other higher degree is awarded, (4) is a public or other nonprofit institution, and (5) is accredited by a nationally recognized accrediting agency or association. Although an applicant may be eligible based on its status as one of these entities, there are factors which may exclude an applicant from receiving Federal financial and nonfinancial assistance and benefits under this program (e.g., debarment or suspension of an individual involved or a determination that an applicant is not responsible based on submitted organizational management information). Eligible applicants may subcontract to organizations not eligible under these requirements. Please note that a research foundation maintained by a college or university is not eligible to receive an award under this program. Proposals received from research foundations will not be considered for CSREES funding.
Academic and not-for-profit institutions located in the United States and state or local governments are eligible for NCER funds under all existing authorizations. Profit-making firms and Federal agencies and national laboratories funded by Federal agencies (
Federal employees are not eligible to serve in a principal leadership role on a grant. FFRDC employees may cooperate or collaborate with eligible applicants within the limits imposed by applicable legislation and regulations (40 CFR 30.20
Federal employees may not receive salaries or in other ways augment their agency's appropriations through grants made by this program. However, Federal employees may interact with grantees so long as their involvement is not essential to achieving the basic goals of the grant. NCER encourages interaction between its own laboratory scientists and grant principal investigators for the sole purpose of exchanging information in research areas of common interest that may add value to their respective research activities. However, this interaction must be incidental to achieving the goals of the research under a grant. Interaction that is “incidental” is not reflected in a research proposal and involves no resource commitments.
The principal investigator's institution may also enter into an agreement with a Federal agency to purchase or utilize unique supplies or services unavailable in the private sector. Examples are the purchase of satellite data, census data tapes, chemical reference standards, analyses, or use of instrumentation or other facilities not available elsewhere, etc. A written justification of Federal involvement must be included in the application, along with an assurance statement from the Federal agency involved which commits it to supply the specified service.
In FY 2002, it is anticipated that most projects under the Nutrient Science for Improved Watershed Management Program will be submitted as new proposals. However, applicants who applied previously to the Integrated Research, Education, and Extension Competitive Grants Program—Water Quality and were not awarded grants may choose to submit a proposal to the Nutrient Science for Improved Watershed Management Program as a resubmission. Therefore, two types of proposals may be submitted:
If a grant awarded with CSREES funds provides a particular benefit to a specific agricultural commodity, the grant recipient is required to provide funds or in-kind support to match the amount of the grant funds provided (7 U.S.C. 7626(d)(1)). See section 13.c. on “Matching Funds” under Part III, B, “Content of Proposals” for more details.
CSREES may waive the matching funds requirement specified in the above paragraph for a grant if CSREES determines that (a) the results of the
NCER does not require matching funds.
CSREES and NCER have determined that grant funds awarded under these authorities may not be used for the renovation or refurbishment of research, education, or extension space; the purchase or installation of fixed equipment in such space; or the planning, repair, rehabilitation, acquisition, or construction of buildings or facilities.
Approximately $7,000,000 will be available for Nutrient Science for Improved Watershed Management Program proposals. The maximum total award is $750,000, with an annual funding limitation of $250,000. The project period may be one to three years in duration.
CSREES and NCER seek proposals for research that will provide scientifically defensible methods for integrated management of nutrients within a watershed. The nutrients of interest for this solicitation are nitrogen and phosphorus. The intent of this solicitation is to develop methods suitable for managing watershed nutrients throughout the United States. However, proposals of more limited scope are anticipated. Such proposals are acceptable if they demonstrate “proof of concept” over large watershed areas and if the study design is able to address nutrient issues in disparate ecological settings.
The focus of this research should be on methods to identify and integrate all significant sources and sinks of nutrients within air-sheds and watersheds, across a variety of land cover types and land management activities. Methods are sought that will permit evaluation of linkages among nutrient sources, processes for nutrient removal, and the overall quality of water resources within watersheds. In addition, the research should result in methods for determining how air, water, and land management strategies for managing nutrients complement or negate one another within a specific watershed with respect to meeting water quality objectives. The research must also provide the basis for, and be integrated with, approaches for communicating results to land managers and the public through outreach and extension efforts. The ultimate focus and application of this research is the management of nutrients across a spectrum of spatial (nested watersheds: small to eco-regional) and temporal (daily, seasonal, inter-annual) scales. Consequently, proposals for research that enable estimation and visualization of the spatial and temporal dynamics of alternative nutrient management options are especially desired.
It is expected that projects will address at least two of the following questions and clearly identify their relationship to a management objective. For example, if the management objective were to calculate the total loading of nutrients into the Everglades from agricultural lands, but instead elucidated the denitrification processes in isolation, the proposal would be non-responsive. The questions are:
(1) What are the sources and magnitudes of nutrients (particularly nitrogen and phosphorous) entering watersheds and how do these sources and magnitudes vary with watershed size (small watershed to ecoregion), geographic location, and position within a watershed?
(2) What processes (ground and surface waters, terrestrial) control the biogeochemical cycling of nutrients to and through an ecosystem and how do these processes vary over space and through time?
(3) How do terrestrial, freshwater, and estuarine communities respond to changes in nutrient loads?
(4) What land management activities are responsible for measureable fluxes of nutrients into and out of watersheds and how can these activities be altered to improve the quality of water resources within a watershed?
(5) How do interactions between management practices with competing objectives affect the delivery of nutrients to streams, rivers, lakes, groundwater and estuaries and how can management practices be adapted to better control nutrient delivery across an entire watershed?
In addition to addressing two of the five questions presented above, all projects must include a description of how results will be communicated to land managers and the public through appropriate outreach and extension efforts. Projects also should address how the impacts of these outreach and extension efforts will be assessed in the project.
In research projects in which models are developed or applied, the grantee must provide, as part of the Quality Assurance Statement described in the Standard Instructions, information on how the quality of the data used for or produced by the models will be assured. Special attention to this need should be applied to the six points for consideration in the Quality Assurance Statement. Of particular importance will be the aspects of model development, such as software verification and validation, the need for quality control of data used for modeling, and assurance that information obtained by GIS and/or remote sensing is accurate and verifiable. Reviewers will be asked to critically evaluate this aspect of the application.
The participating agencies have agreed to use the CSREES guidelines for proposal format (see below) and application kit. Other material may be required at the time of funding to facilitate the implementation of the award. Proposals that are funded by NCER must meet additional submission and reporting requirements at the time of award.
Program application materials are available at the Integrated Research, Education, and Extension Competitive Grants Program website
The proposal should follow these guidelines, enabling reviewers to more easily evaluate the merits of each
(a) The proposal should be prepared on only one side of the page using standard size (8
(b) Each page of the proposal, beginning with the Project Description and including the budget pages, required forms, and any appendices, should be numbered sequentially.
(c) The proposal should be stapled in the upper left-hand corner. Do not bind. An original and 14 copies (15 total) must be submitted in one package, along with 10 copies of the “Project Summary” as a separate attachment.
(d) If applicable, proposals should include original illustrations (photographs, color prints, etc.) in all copies of the proposal to prevent loss of meaning through poor quality reproduction.
Each copy of each grant proposal must contain an “Application for Funding”, Form CSREES-661. One copy of the application, preferably the original, must contain the pen-and-ink signature(s) of the proposing principal investigator(s)/project director(s)(PI/PD) and the authorized organizational representative who possesses the necessary authority to commit the organization's time and other relevant resources to the project. Any proposed PI/PD or co-PI/PD whose signature does not appear on Form CSREES-661 will not be listed on any resulting grant award. Complete both signature blocks located at the bottom of the “Application for Funding” form.
Form CSREES-661 serves as a source document for the CSREES grant database; it is therefore important that it be completed accurately. The following items are highlighted as having a high potential for errors or misinterpretations:
(a) Title of Project (Block 6). The title of the project must be brief (140-character maximum), yet represent the major thrust of the effort being proposed. Project titles are read by a variety of nonscientific people; therefore, highly technical words or phraseology should be avoided where possible. In addition, introductory phrases such as “investigation of,” “research on,” “education for,” or “outreach that” should not be used.
(b) Program to Which You Are Applying (Block 7). “Nutrient Science for Improved Watershed Management Program.”
(c) Type of Award Request (Block 13). Check the block for “new” or “resubmission.”
(d) Principal Investigator(s)/Project Director(s) (PI/PD) (Block 15). The designation of excessive numbers of co-PI/PD's creates problems during final review and award processing. Listing multiple co-PI/PD's, beyond those required for genuine collaboration, is therefore discouraged. Note that providing a Social Security Number is voluntary, but is an integral part of the CSREES information system and will assist in the processing of the proposal.
(e) Type of Performing Organization (Block 18). A check should be placed in the box beside the type of organization which actually will carry out the effort. For example, if the proposal is being submitted by an 1862 Land-Grant Institution but the work will be performed in a department, laboratory, or other organizational unit of an agricultural experiment station, box “03” should be checked. If portions of the effort are to be performed in several departments, check the box that applies to the individual listed as PI/PD #1 in Block 15.a.
(f) Other Possible Sponsors (Block 22). List the names or acronyms of all other public or private sponsors including other agencies within USDA or USEPA and other programs funded by CSREES or NCER to whom your application has been or might be sent. In the event you decide to send your application to another organization or agency at a later date, you must inform the identified CSREES Program Director as soon as practicable. Submitting your proposal to other potential sponsors will not prejudice its review by CSREES or NCER; however, duplicate support for the same project will not be provided. Complete the “Application for Funding,” Form CSREES-661, in its entirety.
(g) One copy of the “Application for Funding” form must contain the signatures of the PI/PD(s) and authorized organizational representative for the applicant organization.
For consistency and ease in locating information, each proposal must contain a detailed Table of Contents just after the cover page. The Table of Contents should contain page numbers for each component of the proposal. Page numbers should begin with the first page of the Project Description.
The proposal must contain a Project Summary of 250 words or less on a separate page which should be placed immediately after the Table of Contents and should not be numbered. The names and affiliated organizations of all PI/PD's and co-PI/PD's should be listed on this form, in addition to the title of the project. The summary should be a self-contained, specific description of the activity to be undertaken and should focus on: overall project goal(s) and supporting objectives; plans to accomplish project goal(s); and relevance of the project to regional, State, or local water quality efforts aimed at addressing nutrient management issues at the watershed. The importance of a concise, informative Project Summary cannot be overemphasized.
This requirement only applies to “Resubmitted Proposals” as described under Part I, D, “Types of Proposals.” For these proposals, the investigator(s) must respond to the previous panel summary on no more than one page, titled “RESPONSE TO PREVIOUS REVIEW,” which is to be placed directly after the Project Summary. If desired, additional comments and responses to the previous panel summary may be included in the text of the Project Description, subject to the page limitation.
The project description may not exceed 15 single-or double-spaced pages of written text and may not exceed a total of 20 pages after inclusion of figures and tables.
The Project Description must include all of the following:
(1) Estimates of the magnitude of the issues and their relevance to stakeholders, land managers, and the public;
(2) Role of the stakeholders in problem identification, planning, and
(3) Reasons for having the work performed at the proposing institution.
Projects should address at least two of the six questions identified in Part II, B, “Program Area Description” and clearly identify their relationship to the stated management objectives.
(1) A description of stakeholder involvement in problem identification, planning, implementation and evaluation;
(2) A description of the proposed project activities in the sequence in which it is planned to carry them out;
(3) Techniques to be employed, including their feasibility and rationale for their use in this project;
(4) Kinds of results expected;
(5) Means by which extension and outreach activities will be evaluated;
(6) Means by which data will be analyzed or interpreted;
(7) Details of plans to communicate results to stakeholders, land managers and the public;
(8) Pitfalls that might be encountered; and
(9) Limitations to proposed procedures.
All references cited should be complete, including titles and all co-authors, and should conform to an accepted journal format.
Appendices to the Project Description are allowed if they are directly germane to the proposed project and are limited to a total of two of the following: reprints (papers that have been published in peer reviewed journals) and preprints (manuscripts in press for a peer reviewed journal; these must be accompanied by a letter of acceptance from the publishing journal).
For any project involving data collection or processing, conducting surveys, environmental measurements, and/or modeling, or the development of environmental technology (whether hardware-based or via new techniques) for pollution control and waste treatment, provide a statement on quality processes that will be used to assure that results of the research satisfy the intended project objectives. The statement must describe a quality system that complies with the requirements of ANSI/ASQC E4, Specifications and Guidelines for Quality Systems for Environmental Data Collection and Environmental Technology Programs, and must not exceed two consecutively numbered, 8.5x11-inch pages of single-spaced standard 12-point type with 1-inch margins. This Statement should, for each item listed below, present the required information, reference the specific page and paragraph number of the Research Plan containing the information, or provide a justification as to why the item does not apply to the proposed research:
a. Discuss the activities to be performed or hypothesis to be tested and criteria for determining acceptable data quality.
Such criteria may be expressed in terms of precision, accuracy, representativeness, completeness, and comparability or in terms of data quality objectives or acceptance criteria. Furthermore, these criteria must also be applied to determine the acceptability of existing or secondary data to be used in the project. In this context secondary data may be defined as data previously collected for other purposes or from other sources, including the literature, compilations from computerized data bases, or results from models of environmental processes and conditions.
b. Describe the study design, including sample type and location requirements, all statistical analyses that were or will be used to estimate the types and numbers of physical samples required, or equivalent information for studies using survey and interview techniques.
c. Describe the procedures for the handling and custody of samples, including sample collection, identification, preservation, transportation, and storage.
d. Describe the procedures that will be used in the calibration and performance evaluation of all analytical instrumentation and all methods of analysis to be used during the project. Explain how the effectiveness of any new technology will be measured and how it will be benchmarked to improve existing processes, such as those used by industry.
e. Discuss the procedures for data reduction and reporting, including a description of all statistical methods, with reference to any statistical software to be used, to make inferences and conclusions; discuss any computer models to be designed or utilized with associated verification and validation techniques.
f. Describe the quantitative and/or qualitative procedures that will be used to evaluate the success of the project, including any plans for peer or other reviews of the study design or analytical methods prior to data collection.
ANSI/ASQC E4, “
The following should be included, as applicable:
(a) The roles and responsibilities of each PI/PD and/or collaborator should be clearly described;
(b) An estimate of the time commitment involved for each PI/PD and/or collaborator, including current and pending projects; and
(c) Vitae of each PI/PD, senior associate, and other professional personnel. This section should include vitae of all key persons who are expected to work on the project, whether or not Federal grant funds are
A Conflict-of-Interest List must be provided for all individuals involved in the project (i.e., each individual submitting a vitae in response to item 10.(c) of this part). Each list should be on a separate page and include alphabetically the full names of the individuals in the following categories: (a) All collaborators on projects within the past four years, including current and planned collaborations; (b) all co-authors on publications within the past four years, including pending publications and submissions; (c) all persons in your field with whom you have had a consulting or financial arrangement within the past four years, who stand to gain by seeing the project funded; and (d) all thesis or postdoctoral advisees/advisors within the past four years (some may wish to call these life-time conflicts). This form is necessary to assist program staff in excluding from proposal review those individuals who have conflicts-of-interest with the personnel in the grant proposal. The Program Director must be informed of any additional conflicts-of-interest that arise after the proposal is submitted.
If it will be necessary to enter into formal consulting or collaborative arrangements with others, such arrangements should be fully explained and justified. In addition, evidence should be provided that the collaborators involved have agreed to render these services. If the need for consultant services is anticipated, the proposal narrative should provide a justification for the use of such services, a statement of work to be performed, a resume or curriculum vita for each consultant, and rate of pay for each consultant. For purposes of proposal development, informal day-to-day contacts between key project personnel and outside experts are not considered to be collaborative arrangements and thus do not need to be detailed.
All anticipated subcontractual arrangements also should be explained and justified in this section. A proposed statement of work and a budget for each arrangement involving the transfer of substantive programmatic work or the providing of financial assistance to a third party must be provided. Agreements between departments or other units of your own institution and minor arrangements with entities outside of your institution (e.g., requests for outside laboratory analyses) are excluded from this requirement.
If you expect to enter into subcontractual arrangements, please note that the provisions contained in 7 CFR Part 3019, USDA Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations, and the general provisions contained in 7 CFR 3015.205, part of the USDA Uniform Federal Assistance Regulations, flow down to subrecipients. In addition, required clauses from Sections 3019.40-.48 (“Procurement Standards”) and Appendix A (“Contract Provisions”) of 7 CFR Part 3019 should be included in final contractual documents, and it is necessary for the subawardee to make a certification relating to debarment/suspension.
Prepare the budget, Form CSREES-55, in accordance with instructions provided. A budget form is required for each year of requested support. In addition, a cumulative budget is required detailing the requested total support for the overall project period. The budget form may be reproduced as needed by applicants. Funds may be requested under any of the categories listed on the form, provided that the item or service for which support is requested is allowable under the authorizing legislation, the applicable Federal cost principles, and these program guidelines, and can be justified as necessary for the successful conduct of the proposed project. Applicants must also include a budget narrative to justify their budgets (see section b below.)
The following guidelines should be used in developing your proposal budget(s):
All budget categories, excluding Indirect Costs, for which support is requested, must be individually listed (with costs) in the same order as the budget and justified on a separate sheet of paper which should be placed immediately behind the Budget Form. For grants awarded with CSREES funds, explanations of matching funds or the lack thereof on commodity-specific projects also are to be included in this section.
If a grant awarded with CSREES funds provides a particular benefit to a specific agricultural commodity, the grant recipient is required to provide funds or in-kind support to match the amount of grant funds provided.
If an applicant for CSREES funds concludes that matching funds are not required as specified under Part I, E, “Matching Requirements,” a justification should be included in the budget narrative. CSREES will consider this justification when ascertaining final matching requirements or in determining if required matching can be waived. See Section E1(b) of Part I—General Information. CSREES retains the right to make final determinations regarding matching requirements.
For those grants requiring matching funds as specified under Part I, E, proposals should include written verification of commitments of matching support (including both cash and in-kind contributions) from third parties. Written verification means:
(a) For any third party cash contributions, a separate pledge agreement for each donation, signed by the authorized organizational representatives of the donor organization and the applicant organization, which must include: (1) The name, address, and telephone number of the donor; (2) the name of the applicant organization; (3) the title of the project for which the donation is made; (4) the dollar amount of the cash donation; and (5) a statement that the donor will pay the cash contribution during the grant period; and
(b) For any third party in-kind contributions, a separate pledge agreement for each contribution, signed by the authorized organizational representatives of the donor organization and the applicant organization, which must include: (1) The name, address, and telephone number of the donor; (2) the name of the applicant organization; (3) the title of the project for which the donation is made; (4) a good faith estimate of the current fair market value of the third party in-kind contribution; and (5) a statement that the donor will make the contribution during the grant period.
The sources and amount of all matching support from outside the applicant institution should be summarized on a separate page and placed in the proposal immediately following the budget narrative. All pledge agreements must be placed in the proposal immediately following the summary of matching support.
The value of applicant contributions to the project shall be established in accordance with applicable cost principles. Applicants should refer to OMB Circular A-21, Cost Principles for Educational Institutions, for further guidance and other requirements relating to matching and allowable costs.
Although NCER does not require matching funds, proposed budgets should provide matching funds (when applicable) so that awards will not be delayed should CSREES be the Funding Agency.
All proposals must contain Form CSREES-663 listing other current public or private support (including in-house support) to which personnel (i.e., individuals submitting a vitae in response to 10.(c) of this subpart) identified in the proposal have committed portions of their time, whether or not salary support for person(s) involved is included in the budget. Analogous information must be provided for any pending proposals that are being considered by, or that will be submitted in the near future to, other possible sponsors, including other USDA and USEPA Programs or agencies. Concurrent submission of identical or similar proposals to possible sponsors will not prejudice proposal review or evaluation by CSREES and NCER for this purpose. However, a proposal that duplicates or overlaps substantially with a proposal already reviewed and funded (or to be funded) by another organization or agency will not be funded under this program. Note that the project being proposed should be included in the pending section of the form.
A number of situations encountered in the conduct of projects require special assurances, supporting documentation, etc., before funding can be approved for the project. In addition to any other situation that may exist with regard to a particular project, it is expected that some applications submitted in response to these guidelines will involve the following:
As stated in 7 CFR 3015.205 (b)(3), all key personnel identified in the proposal and all endorsing officials of the proposing organization are required to comply with the guidelines established by the National Institutes of Health entitled, “Guidelines for Research Involving Recombinant DNA Molecules,” as revised. If your project proposes to use recombinant DNA or RNA techniques, you must so indicate by checking the “yes” box in Block 19 of Form CSREES-661 (the Cover Page) and by completing Section A of Form CSREES-662. For applicable proposals recommended for funding, Institutional Biosafety Committee approval is required before CSREES or NCER funds will be released.
Responsibility for the humane care and treatment of live vertebrate animals used in any grant project supported with funds provided by CSREES or NCER rests with the performing organization. Where a project involves the use of living vertebrate animals for experimental purposes, all key project personnel identified in a proposal and all endorsing officials of the proposing organization are required to comply with the applicable provisions of the Animal Welfare Act of 1966, Pub. L. No. 89-544, as amended (7 U.S.C. 2131
Responsibility for safeguarding the rights and welfare of human subjects used in any grant project supported with funds provided by CSREES or NCER rests with the performing organization. Guidance on this issue is contained in the National Research Act, Pub. L. No. 93-348, as amended, and implementing regulations promulgated by the Department under 7 CFR part 1c. If you propose to use human subjects for experimental purposes in your project, you should check the “yes” box in Block 21 of Form CSREES-661 and complete Section C of Form CSREES-662. In the event a project involving human subjects results in a grant award, funds will be released only after the appropriate Institutional Review Board has approved the project.
Note that by signing Form CSREES-661 the applicant is providing the certifications required by 7 CFR part 3017, as amended, regarding Debarment and Suspension and Drug-Free Workplaces, and 7 CFR part 3018, regarding Lobbying. The certification forms are included in the application package for informational purposes only. These forms should not be submitted with the proposal since by signing Form CSREES-661 your organization is providing the required certifications. If the project will involve a subcontractor or consultant, the subcontractor/consultant should submit a Form AD-1048 to the grantee organization for retention in their records. This form should not be submitted with the application.
As outlined in 7 CFR Part 3407 (
In order for CSREES to determine whether any further action is needed with respect to NEPA, pertinent information regarding the possible environmental impacts of a particular project is necessary; therefore, Form CSREES-1234, “NEPA Exclusions Form,” must be included in the proposal indicating whether the applicant is of the opinion that the project falls within a categorical exclusion and the reasons therefore. If it is the applicant's opinion that the proposed project falls within the categorical exclusions, the specific exclusion must be identified. Form CSREES-1234 and supporting documentation should be included as the last page of this proposal.
Even though a project may fall within the categorical exclusions, the agencies may determine that an Environmental Assessment or an Environmental Impact Statement is necessary for an activity, if substantial controversy on environmental grounds exists or if other extraordinary conditions or circumstances are present which may cause such activity to have a significant environmental effect.
The USEPA regulations implementing NEPA are found in 40 CFR part 6, Subpart G.
Proposals must be received by COB on November 6, 2001 (5:00 p.m. Eastern Time). Proposals received after this date will not be considered for funding.
An original and 14 copies must be submitted. In addition submit 10 copies of the proposal's Project Summary. All copies of the proposals and the Project Summaries must be submitted in one package.
Applicants are strongly encouraged to submit completed proposals via overnight mail or delivery service to ensure timely receipt by CSREES. The address for hand-delivered proposals or proposals submitted using an express mail or overnight courier service is: Nutrient Science for Improved Watershed Management Program; c/o Proposal Services Unit; Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; Waterfront Center, Room 1307; 800 9th Street, SW.; Washington, DC 20024; Telephone: (202) 401-5048.
Proposals sent via the U.S. Postal Service must be sent to the following address: Nutrient Science for Improved Watershed Management Program; c/o Proposal Services Unit; Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; STOP 2245; 1400 Independence Avenue, SW.; Washington, DC 20250-2245.
The receipt of all proposals will be acknowledged by e-mail. Therefore, applicants are strongly encouraged to provide e-mail addresses, where designated, on the Form CSREES-661. If the applicant's e-mail address is not indicated, CSREES will acknowledge receipt of proposal by letter.
Once the proposal has been assigned an identification number, please cite that number on all future correspondence. If the applicant does not receive an acknowledgment within 60 days of the submission deadline, please contact the Program Director.
Each proposal will be evaluated in a multi-part process. First, each proposal will be screened to ensure that it meets the administrative requirements as set forth in this request for proposals. Second, proposals that meet these requirements will be technically evaluated by a peer review panel.
Peer review panel members will be selected based upon their training and experience in relevant scientific, education or extension fields taking into account the following factors: (a) The level of formal scientific, technical education, and extension experience of the individual, as well as the extent to which an individual is engaged in relevant research, education and/or extension activities; (b) the need to include as peer reviewers experts from various areas of specialization within relevant scientific, education, and extension fields; (c) the need to include as reviewers other experts (e.g., producers, range or forest managers/operators, and consumers) who can assess the relevance of the proposals to targeted audiences and to program needs; (d) the need to include as peer reviewers experts from a variety of organizational types (e.g., colleges, universities, industry, state and Federal agencies, private profit and non-profit organizations), and geographic locations; (e) the need to maintain a balanced composition of peer review groups with regard to minority and female representation and an equitable age distribution; and (f) the need to include members that can judge the effective usefulness to producers and the general public of each proposal.
Proposals rated highly by the peer reviewers are subjected to a programmatic review within the agencies to assure a balanced research portfolio. Proposals are selected for award on the basis of agency goals, technical merit, relevancy to agency research priorities, program balance, and budget.
Technical merit and relevance to program goals and potential impact will be evaluated for each proposal. Proposals must show evidence of strength in each of these areas to be rated highly for funding. Specific criteria for these proposal attributes are listed below.
(a) Conceptual adequacy of overall approach;
(b) Extent to which proposed work addresses identified stakeholder needs;
(c) Conceptual adequacy of hypothesis or hypotheses on which plan is based;
(d) Suitability and feasibility of the methodology for conducting the work;
(e) Time allocated for attainment of objectives;
(f) Qualifications of project personnel;
(g) Institutional experience and competence in the identified area of work;
(h) Adequacy of available support personnel, equipment, and facilities;
(i) Extent to which proposed work integrates research with extension and outreach programs;
(j) Suitability and feasibility of the methodology for evaluating the effectiveness of extension and outreach activities; and
(k) Appropriateness of the Quality Assurance Plan outlined above (III.B.9).
(a) Relationship of project objectives to national issues and objectives;
(b) Regional or national magnitude of problem addressed;
(c) Applicability to other watersheds or regions;
(d) Evidence of partnerships with other disciplines and institutions;
(e) Extent to which end users are involved in problem identification, planning, implementation and evaluation;
(f) Probability of success of the project; and
(g) Extent to which potential impact can be documented.
During the peer evaluation process, extreme care will be taken to prevent any actual or perceived conflicts-of-interest that may impact review or evaluation. For the purpose of determining conflicts-of-interest, the academic and administrative autonomy of an institution shall be determined by reference to the 2000 Higher Education Directory, published by Higher Education Publications, Inc., 6400 Arlington Boulevard, Suite 648, Falls Church, Virginia 22042. Phone: (703) 532-2305.
Names of submitting institutions and individuals, as well as proposal content and peer evaluations, will be kept confidential, except to those involved in the review process, to the extent permitted by law. In addition, the identities of peer reviewers will remain confidential throughout the entire review process. Therefore, the names of the reviewers will not be released to applicants. At the end of the fiscal year, names of panelists will be made available in such a way that the panelists cannot be identified with the review of any particular proposal.
The Nutrient Science for Improved Watershed Management Program will be administered and managed as an interagency program involving both participating agencies throughout the entire process from development of the program announcement to the review, selection, and monitoring of awards. The interagency program managers will coordinate program administration activities such as review of periodic reporting of project evaluations and annual investigator team meetings.
CSREES and NCER will fund awards separately. The amount of each award will be determined jointly by CSREES and NCER and their representatives after the panel review process has been completed. Other material may be required prior to funding to facilitate the implementation of the award from participating agencies.
Within the limit of funds available for such purpose, the awarding official shall make grants to those responsible, eligible applicants whose proposals are judged most meritorious under the procedures set forth in this RFP. The date specified by the awarding official as the effective date of the grant shall be no later than September 30 of the Federal fiscal year in which the project is approved for support and funds are appropriated for such purpose, unless otherwise permitted by law. It should be noted that the project need not be initiated on the grant effective date, but as soon thereafter as practical so that project goals may be attained within the funded project period. All funds granted under this RFP shall be expended solely for the purpose for which the funds are granted in accordance with the approved application and budget, the regulations, the terms and conditions of the award, the applicable Federal cost principles, and the applicable participating agency assistance regulations.
The two mechanisms by which grants may be awarded are as follows:
Specific management information relating to an applicant shall be submitted on a one-time basis as part of the responsibility determination prior to the award of a grant identified under this RFP, if such information has not been provided previously under this or another program for which the sponsoring agency is responsible. Copies of forms recommended for use in fulfilling the requirements contained in this section will be provided by the awarding agency as part of the preaward process.
The grant award document shall include at a minimum the following:
(1) Legal name and address of performing organization or institution to whom the Agency has awarded a grant under the terms of this request for proposals;
(2) Title of project;
(3) Name(s) and address(es) of PI/PD's chosen to direct and control approved activities;
(4) Identifying grant number assigned by the Funding Agency;
(5) Project period, specifying the amount of time the Funding Agency intends to support the project without requiring recompetition for funds;
(6) Total amount of financial assistance approved by the Agency during the project period;
(7) Legal authority(ies) under which the grant is awarded;
(8) Approved budget plan for categorizing allocable project funds to accomplish the stated purpose of the grant award; and
(9) Other information or provisions deemed necessary by the granting agency to carry out its respective granting activities or to accomplish the purpose of a particular grant.
The notice of grant award, in the form of a letter, will provide pertinent instructions or information to the grantee that is not included in the grant award document.
Copies of summary reviews, not including the identity of reviewers, will be sent to the applicant PI/PD after the review process has been completed.
Unless the terms and conditions of the grant state otherwise, the grantee may not in whole or in part delegate or transfer to another person, institution, or organization the responsibility for use or expenditure of grant funds.
(a) The permissible changes by the grantee, PI/PD(s), or other key project personnel in the approved project grant shall be limited to changes in methodology, techniques, or other aspects of the project to expedite achievement of the project's approved goals. If the grantee and/or the PI/PD(s) are uncertain as to whether a change complies with this provision, the question must be referred to the CSREES Authorized Departmental Officer (ADO) or NCER Grants Officer for a final determination.
(b) Changes in approved goals or objectives shall be requested by the grantee and approved in writing by the ADO or the grants officer prior to effecting such changes. In no event shall requests for such changes be approved which are outside the scope of the original approved project.
(c) Changes in approved project leadership or the replacement or reassignment of other key project personnel shall be requested by the grantee and approved in writing by the awarding agency official prior to effecting such changes.
(d) Transfers of actual performance of the substantive programmatic work in whole or in part and provisions for payment of funds, whether or not Federal funds are involved, shall be requested by the grantee and approved in writing by the ADO or the grants officer prior to effecting such transfers, unless prescribed otherwise in the terms and conditions of the grant.
(e) Changes in Project Period: The project period may be extended by the sponsoring agency without additional financial support, for such additional period(s) as the ADO or the Grants Officer determines may be necessary to complete or fulfill the purposes of an approved project, but in no case shall the total project period exceed five years. Any extension of time shall be conditioned upon a prior request by the grantee and approval in writing by the ADO or Grants Officer, unless prescribed otherwise in the terms and conditions of a grant.
(f) Changes in Approved Budget: Changes in an approved budget must be requested by the grantee and approved in writing by the ADO or the Grants Officer prior to instituting such changes if the revision will involve transfers or expenditures of amounts requiring prior approval as set forth in the applicable Federal cost principles, Departmental regulations, or in the grant award.
It is expected that outputs from successful projects will include: the development of watershed management partnerships, increased involvement of community and business sectors in watershed restoration and management, enhanced understanding of regionally-appropriate watershed management practices, increased coordination and partnership between universities and other Federal research and management agencies, and the establishment and maintenance of monitoring and
Successful projects should describe how implementation of the project will lead to overall improvements in the quality of water resources. Additionally, projects should describe all measureable outcomes and results and where appropriate, how they will evaluate the effectiveness of extension and outreach programs.
All projects selected for award will be required to deliver metadata and annual reports, a final summary report, a bibliography of publications and training materials resulting from support, and an impacts analysis. All reports will be geo-referenced to the watersheds where activities were performed. The final summary report must include total funding (Federal, matching and other) and a listing of students who worked on the project (report graduate degrees awarded and undergraduates trained).
The grantee must prepare an annual report that details all significant activities towards achieving the goals and objectives of the project. The narrative should be succinct and be no longer than 10 pages, using 12-point, single-spaced type. A budget summary should be attached to this report, which will provide an overview of all monies spent during the reporting period.
All projects funded by CSREES under this program will be required to submit copies of the above reports and materials to the appropriate Regional Water Quality Coordination Project funded under the Integrated Research, Education, and Extension Competitive Grants Program pursuant to AREERA, section 406.
Several other Federal statutes and regulations apply to grant proposals considered for review and to project grants awarded under this program. For CSREES awards, applicable regulations are those cited in Part VI. D. of the FY 2001 Integrated Research, Education, and Extension Competitive Grants Program—Water Quality RFP published in the
When a proposal results in a grant, it becomes a part of the record of the Agency's transactions, available to the public upon specific request. Information that the Agency determines to be of a confidential, privileged, or proprietary nature will be held in confidence to the extent permitted by law. Therefore, any information that the applicant wishes to have considered as confidential, privileged, or proprietary should be clearly marked within the proposal. The original copy of a proposal that does not result in a grant will be retained by the Agency for a period of one year. Other copies will be destroyed. Such a proposal will be released only with the consent of the applicant or to the extent required by law. A proposal may be withdrawn at any time prior to the final action thereon.
For the reasons set forth in the final Rule-related Notice to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of the Executive Order 12372 which requires intergovernmental consultation with State and local officials. Under the provisions of the Paperwork Reduction Act of 1995, Pub. L. No. 104-13, as amended (44 U.S.C. chapter 35), the collection of information requirements contained in this Notice have been approved under OMB Document No. 0524-0022.