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Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the fruits and vegetables regulations to list a number of fruits and vegetables from certain parts of the world as eligible, under specified conditions, for importation into the United States. All of the fruits and vegetables, as a condition of entry, will be inspected and subject to disinfection at the port of first arrival as may be required by a U.S. Department of Agriculture inspector. In addition, some of the fruits and vegetables will be required to be treated or meet other special conditions. This action will provide the United States with additional kinds and sources of fruits and vegetables while continuing to provide protection against the introduction of injurious plant pests by imported fruits and vegetables.
We are also recognizing the Department of Petén in Guatemala and all Districts in Belize as areas free of the Mediterranean fruit fly. This action will relieve import restrictions while continuing to prevent the introduction of plant pests into the United States.
This regulation is effective August 28, 2001. The incorporation by reference of the material described in the rule is approved by the Director of the Federal Register as of August 28, 2001.
Donna L. West, Import Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.
The regulations in 7 CFR 319.56 through 319.56-8 (referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of fruit flies and other injurious plant pests that are new to or not widely distributed within the United States.
On August 21, 2000, we published in the
Since the publication of the proposed rule, the Government of Mexico has reported infestations of the West Indian fruit fly (
Also, on March 14, 2001, a single female Medfly was found in a Jackson trap in the village of Placencia in the Stann Creek District of Belize. Since March 14, the Belize Agriculture Health Authority (BAHA) has increased trapping around the area where the Medfly was detected. Further, BAHA has removed available Medfly host material (including guavas and cashews) from trees in Placencia. No additional Medflies have been trapped to date. Based on the lack of further detections, BAHA and APHIS believe that there is not a reproducing Medfly population in the Placencia area. Therefore, we are making no changes to our proposal to list all of Belize as Medfly-free under the regulations in § 319.56-2(j).
We solicited comments concerning our proposal for 60 days ending October 20, 2000. We received 82 comments by that date. They were from producers, exporters, researchers, and representatives of State and foreign governments. Seventy-five commenters generally supported the rule. Seven commenters expressed concerns about some aspect of the proposed rule. Their concerns are discussed below by topic.
We proposed to amend the regulations in § 319.56-2w (referred to below as the papaya systems approach) by adding several areas in Central America to the list of locations eligible to export papayas to the United States in accordance with the papaya systems approach.
In field tests in Costa Rica, papayas were purposely left on trees so that all stages of ripeness were represented at all times, and fields growing papayas for survey were not treated with pesticides. Approximately 100,000 papayas were examined over the course of 3 years. No
In forced tests in Costa Rica, no Medfly or
Further, in a study conducted in Brazil, more than 100,000 papayas of all ripeness degrees, green to fully ripe (entirely yellow), were collected in commercial groves in Espirito Santo. Under these natural conditions, none of the papayas, not even fully ripe papayas, contained fruit fly larvae. Under forced conditions (e.g., cage tests, where Medfly and South American fruit fly are confined in cages with ripening papayas), Medfly and South American fruit fly only attacked fully ripe papayas. Therefore, we are confident that papayas that are less than one-half ripe present a negligible risk of introducing Medfly or South American fruit fly into the United States.
The systems approach identifies trapping thresholds that will trigger action if the Medfly population in a papaya production area is too large. Specifically, in order to monitor the Medfly levels in commercial papaya production areas, we require that if the average Jackson trap catch is greater than seven Medflies per trap per week, measures, which may include Malathion bait sprays or other chemical sprays, must be taken to control the Medfly population in the production area. If the average Jackson trap catch exceeds 14 Medflies per trap per week, importations of papayas from that production area will be halted until the rate of capture drops to an average of 7 or fewer Medflies per trap per week.
These thresholds for Medfly trapping help detect increasing populations of these fruit flies in growing areas and help ensure that these fruit flies are not associated with imports of papayas.
Further, as a precautionary measure, in order to ensure that growers who export papayas to the United States under the systems approach are treating fruits properly, APHIS monitors the treatment of papayas through examination of fruit at the port of arrival in the United States. To date, these efforts have proven effective, as there have been no reported interceptions of fruit fly-infested papayas imported under the systems approach from Costa Rica or Brazil.
We agree that trapping results cannot definitely prove with absolute certainty that a given area is fruit fly-free, even if no fruit flies are trapped within the area. However, trapping is the preferred method used to by most countries to determine if there are fruit fly populations present in a given area.
As stated earlier in this document, since the publication of the proposed rule, there have been several trap catches of the West Indian fruit fly (
• Within the past 12 months, the plant protection service of the country of origin has established the absence of infestations of fruit flies in the definite area or district based on surveys performed in accordance with requirements approved by the Administrator as adequate to detect such infestations;
• The country of origin has adopted and is enforcing requirements to prevent the introduction of fruit flies into the definite area or district of the country of origin that are deemed by the Administrator to be at least equivalent to those requirements imposed under APHIS' regulations to prevent the introduction into the United States and interstate spread of fruit flies; and
• The plant protection service of the country of origin has submitted to the Administrator written detailed procedures for the conduct of surveys and the enforcement of the requirements in § 319.56-2 to prevent the introduction of fruit flies.
In accordance with these requirements, vehicles entering fruit fly-free areas in Mexico, Belize, or Guatemala are stopped and inspected for fruit fly host material. Any fruit fly host material that is brought into free areas must be treated for fruit flies. Further, the governments of Mexico, Belize, and Guatemala conduct trapping surveys in and around fruit fly-free areas to monitor for the presence of fruit fly or Medfly populations in those areas. APHIS closely monitors the trapping data to verify that these areas do not contain active fruit fly populations.
An ARS report completed in February 2001 states that hydrocooling immediately after hot water treatment does indeed compromise treatment efficacy. The report also states that treatment efficacy can be maintained by requiring cooling of fruits in air for 30 minutes after the completion of hot water treatment, after which the fruit could be hydrocooled. Based on the ARS report, we are planning to publish a proposed rule that would amend the existing hot water treatment schedule for mangoes from certain areas, including Mexico. Copies of the ARS report are available by contacting the person listed under
In addition to the review of the treatment for mangoes, APHIS also evaluated additional facets of the mango production process that we had not previously monitored. In our evaluation, we found additional factors that may have contributed to the infestations of mangoes offered for entry into the United States, including inadequate trapping surveys, improper fruit selection, and deficiencies in fruit-cutting examinations conducted prior to the treatment of mangoes at various production and processing areas in Mexico. In response to these issues, APHIS will be monitoring these activities throughout Mexico to ensure against further introductions of fruit flies into the United States.
Further, treatment facilities that treat carambolas under the regulations are required to be certified by, and must operate under a compliance agreement with, APHIS. Shipments of carambolas that are treated at facilities that do not meet the requirements will be refused entry into the United States.
1. Representatives from APHIS have publicly stated that many pests are extremely difficult to detect in a high-volume setting such as a port of entry.
2. APHIS examines only a tiny volume of products imported into the United States.
In conducting a risk assessment for each of these fruits, APHIS identified the pests of concern that could be associated with each particular imported commodity. APHIS then considered the damage each pest could cause and the likelihood of each pest being introduced into the United States via the imported commodity and assigned each pest a risk level of high, medium, or low. APHIS then determined what, if any, mitigating measures (e.g., treatments) are available to address the risks presented by the identified pests of concern. APHIS does not typically require additional mitigation measures other than inspection at the port of arrival for pests that are identified as low risk according to risk assessment.
The commenter is correct that APHIS inspects only a portion of imported products. However, APHIS does inspect at least a small portion of every documented shipment of plant products that is imported into the United States, and randomly selects fruits and vegetables from each shipment for inspection.
In order to verify that these conditions are being met in New Zealand, we are requiring peppers from New Zealand to be accompanied by a phytosanitary certificate of inspection stating that the peppers were grown in greenhouses in accordance with the above conditions.
We believe that these conditions, as well as all other applicable requirements in § 319.56-6, will be adequate to prevent the introduction of plant pests into the United States with peppers imported from New Zealand.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.
This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the
This rule relieves restrictions on the importation of certain fruits and vegetables from certain countries while continuing to protect against the introduction of plant pests into the United States. Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. Making this rule effective immediately will allow interested producers, importers, shippers, and others to benefit immediately from the relieved restrictions. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the
This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is set out below, regarding the economic effects of this rule on small entities.
This final rule amends the fruits and vegetables regulations to list a number of fruits and vegetables from certain parts of the world as eligible, under specified conditions, for importation into the United States. All of the fruits and vegetables, as a condition of entry, will be inspected and subject to such disinfection at the port of first arrival as may be required by a USDA inspector. In addition, some of the fruits and vegetables will be required to meet other special conditions. This action will provide the United States with additional kinds and sources of fruits and vegetables while continuing to provide protection against the introduction and dissemination of injurious plant pests by imported fruits and vegetables. This final rule will also recognize the Department of Pete
We have used all available data to estimate the potential economic effects of allowing these fruits and vegetables to be imported into the United States. However, some of the data we believe would be helpful in making this determination have not been available. Specifically, data are not available on: (1) The quantity of specific fruits and vegetables produced domestically; (2) the quantity of potential imports; and (3) the degree to which imported fruits and vegetables will displace existing imported or domestic products. In our proposed rule, we invited commenters to provide such data. However, we did not receive any comments providing the kinds of data we requested. We did, however, receive one comment related to our analysis of the effects of importing carambolas from Mexico. That comment is discussed earlier in this document under the heading
Data on the number and size of U.S. producers of the various commodities that may be imported into the United States under this final rule are not available. However, since most fruit and vegetable farms are small by Small Business Administration (SBA) standards, it is likely that the majority of U.S. farms producing the commodities examined below are small entities. The potential economic effects of this final rule are discussed below by commodity and country of origin.
There are no data available regarding production of oregano and marjoram in the United States. Argentina claims to produce approximately 800 tons of oregano per year, but only exports 20 to 60 tons of that amount. It is likely that some of those exports could be diverted to the United States. However, it is unlikely that Argentina will increase its production of oregano, so any exports to the United States will likely be minimal and will not have any significant economic effect on U.S. producers, whether small or large, or on consumers. Data on production of marjoram by Argentina are not available. We are, therefore, unable to determine the effect this final rule will have on U.S. producers or consumers of marjoram.
The United States produced 1.37 million tons of
There are no data available regarding production of marjoram in the United States or Peru. We are, therefore, unable to determine the effect this final rule will have on U.S. producers or consumers of marjoram.
The United States produced 36,900 tons of eggplant in 1997 and, in 1999, exported over 12,000 tons and imported 35,669 tons. Imports of eggplant from Spain resulting from this final rule could total 1,000 tons per year, equaling 2.7 percent of U.S. production in 1997 and representing 2.8 percent of U.S. imports in 1999. Therefore, imports of eggplant from Spain are unlikely to have a significant economic effect on U.S. consumers or producers.
The United States produced 3.4 million tons of lettuce in 1997, and, in 1999, exported over 196,000 tons and imported only 14,000 tons. The peak lettuce growing season in Spain roughly corresponds to U.S. production seasons. Imports of lettuce from Spain that could result from implementation of this final rule could total 2,500 tons, representing a 17 percent increase in imports (equal to 0.07 percent of U.S. production in 1997). Therefore, imports of lettuce from Spain that could result from this final rule are unlikely to have a significant economic effect on U.S. consumers or producers.
The United States produced 2.03 million tons of watermelon in 1997 and imported 240,302 tons of watermelon in 1999. The amount projected to be imported from Spain represents only 1.04 percent of U.S. imports in 1999 and equals 0.12 percent of U.S. production in 1997. Therefore, it is unlikely that imports of watermelon from Spain will have a significant economic effect on domestic producers or consumers.
The United States produced 39,400 tons of kiwi in 1997 and, in 1999, imported over 49,000 tons while exporting 14,792 tons. Data on potential kiwi imports from Argentina are not available. Data on potential kiwi imports from Spain are also not available, but the amount is expected to be small and should not have a significant economic effect on U.S. consumers or producers.
There are no data available regarding production of passion fruit by the United States or Chile. We are, therefore, unable to determine the effect this final rule will have on U.S. producers or consumers of passion fruit.
Carambola is grown in both Florida and Hawaii. Florida has approximately 10 producers, with a total of 250 acres of carambola. One firm accounts for approximately half of the total acres. Most of the other firms would meet SBA guidelines for small agricultural businesses (less than $750,000 in yearly receipts).
September through February is the major picking time for carambola. However, trees are productive throughout the year. April through June is the slowest season for picking. Trees can start producing in as little as 13 months under ideal conditions, and within 3 years under normal circumstances. Trees must be sheltered from the wind, and erecting and maintaining windbreaks is a major expense in carambola production. Production costs range from $1,500 per acre to a more typical cost of $2,700 per acre.
An acre of carambola trees can produce 30,000 to 40,000 pounds of fruit. The average packout, or amount of fruit that is suitable for the commercial market, is approximately 60 percent of the total production. With proper handling, the fruit can be stored up to 30 days. Prices for carambola have fluctuated from a low of 16 cents per pound up to $1.50 per pound. Forty-five cents per pound is a typical price. In 1995 to 1996, the estimated annual value of Florida carambola production was $17 million.
Hawaii had 25 producers in 1999 with a total of 20 acres of carambola. The total value of sales was $66,000. All of Hawaii's producers would likely meet SBA guidelines for small agricultural businesses. The table below provides details about Hawaii's carambola production.
Any projections of possible imports from Mexico are merely speculation at this point. It is not believed that there currently is any commercial production of carambola in Mexico. However, because carambola can come into production quickly, whether or not there is current commercial production in Mexico does not alter the potential economic effect of the rule. Carambola imports will directly compete with domestic production and domestic producers may lose market share. Domestic consumers will benefit if imports increase the availability of fruit and if increased competition results in lower prices.
The costs associated with increased imports will be borne by a small group of domestic producers, while the more diffuse group of consumers will enjoy the benefits. Because the costs are concentrated among a small group, they are more apparent. Benefits enjoyed by consumers, while real, will likely be too small to be measured or even noticed.
The United States produced 20,500 tons of papaya in 1997 and, in 1999, imported over 73,000 tons and exported 6,533 tons. The top exporters of papaya to the United States were Mexico with 61,619 tons, Belize with 4,188 tons, Jamaica with 2,094 tons, the Dominican Republic with 1,212 tons, and Costa Rica with 771 tons.
We estimate papaya imports of 330 tons from El Salvador, 660 tons from Guatemala, and up to 840 tons from Panama as a result of this final rule. These volumes of imports are insignificant when compared to domestic production and other papaya imports. Imports of papaya from El Salvador will equal 1.6 percent of U.S. domestic production and less than one-half of 1 percent of U.S. papaya imports. Imports of papaya from Guatemala will equal 3.2 percent of U.S. domestic production and less than 1 percent of U.S. papaya imports. Imports of papaya from Panama will equal 4 percent of domestic production and 1.1 percent of U.S. papaya imports. However, most papaya varieties now grown in Panama are not suitable for export, since they are large, with soft skin. Only four growers are currently planting Solo variety of papayas of exportable quality, and of those, only one is prepared to export fruit at this time.
Honduras currently produces 184 tons of papaya and exports 129 tons, but estimates that it could produce and export up to 2,200 tons of papayas (75 percent fresh, 25 percent processed) to the United States if a market for the papayas exists. To export such a volume of papayas to the United States, Honduras will have to increase production by almost 12 times the current level. It is unlikely that such export levels will be realized in the foreseeable future, and even if Honduras could export 2,200 tons of papayas to the United States, that amount represents only 3 percent of current papaya imports.
Data on potential imports of papayas from Nicaragua are not available.
Prior to this final rule, certain areas in Belize were already recognized as free of Medfly. Producers in those areas have been able to export papayas to the United States without treatment for Medfly. This final rule adds the remainder of Belize, except Stann Creek, as well as the Department of Pete
U.S. consumers could benefit from potentially lower prices for papayas that could result from adoption of this rule.
Prior to the effective date of this rule, mangoes from all areas in Mexico were required to be treated for fruit flies prior to importation into the United States. This final rule provides for mangoes from specified fruit fly-free areas in Mexico to be imported into the United States without treatment for fruit flies.
Mexico exported 13,800 tons of mangoes to the United States in 1998 and 11,800 tons in 1999. These exports accounted for 78 and 44 percent of U.S. mango imports for 1998 and 1999, respectively. It is unlikely that removing treatment requirements for mangoes imported from areas listed in § 319.56-2(h) as fruit fly-free areas will measurably reduce the costs of exporting mangoes to the United States or the cost of mangoes in the United States.
In 1999, Israel shipped 15.7 tons of peppers to the United States, accounting for only 0.046 percent of peppers imported by the United States in that year. Allowing peppers to be shipped through ports other than Tel Aviv is not expected to result in an increase in the volume of peppers exported by Israel and, therefore, should not have any measurable economic effect on U.S. producers or consumers.
The United States produced 970,000 and 1,021,000 tons of pears in 1998 and 1999, respectively. The United States is a net exporter of pears, as shown in the following table.
In 2000, most of the pears imported into the United States came from Argentina (52 percent), Chile (26.5 percent), New Zealand (5.6 percent), and China (5.6 percent). The main importers of U.S. pears are Mexico (50 percent) and Canada (28 percent), with the remaining quantities distributed among approximately 50 other destinations. According to the 1997 Census of Agriculture, there were approximately 4,897 farms producing pears in the United States in 1997, about 98 percent of which are considered small entities according to SBA guidelines.
When this rule is adopted, China expects to export a total of 1,250 to 1,850 tons of Ya pears to the United States from Hebei and Shadong Provinces. (Imports from Hebei province are already allowed under § 319.56-2ee.)
The proportion of China's exports of pears to the United States that were Ya pears is unknown. However, since Ya pears are a unique variety of pear produced only in China, Ya pears would not compete with domestically grown pears.
The United States produced 838,650 tons of peppers in 1997. New Zealand exported 1,600 tons of peppers for the year ending June 1999—a 28 percent increase over the previous year. The United States is potentially a major market for this commodity from New Zealand. However, the volume of any imports of peppers from New Zealand will be negligible in comparison to the amount of U.S. production and will have an insignificant economic effect on domestic producers and consumers, since New Zealand's exports of 1,600 tons represent less than 0.2 percent of U.S. production.
This rule contains various recordkeeping requirements, which were described in our proposed rule, and which have been approved by the Office of Management and Budget (see “
This final rule allows certain fruits and vegetables to be imported into the United States from certain parts of the world. State and local laws and regulations regarding the importation of fruits and vegetables will be preempted while the fruit is in foreign commerce. Fresh fruits and vegetables are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Incorporation by reference, Plant diseases and pests, Quarantine.
Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery Stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
(a)
7 U.S.C. 166, 450, 7711-7714, 7718, 7731, 7732, and 7751-7754; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
(h) The Administrator has determined that the following areas in Mexico meet the criteria of paragraph (e) and (f) of this section with regard to the plant pests
(j) The Administrator has determined that all Districts in Belize, all Provinces in Chile, and the Department of Pete
(b) * * *
(7) The peppers must be packed in insect-proof containers prior to movement from approved insect-proof screenhouses in the Arava Valley.
The Solo type of papaya may be imported into the continental United States, Alaska, Puerto Rico, and the U.S. Virgin Islands only under the following conditions:
(a) The papayas were grown and packed for shipment to the United States in one of the following locations:
(1) Brazil: State of Espirito Santo.
(2) Costa Rica: Provinces of Guanacaste, Puntarenas, San Jose.
(3) El Salvador: Departments of La Libertad, La Paz, and San Vicente.
(4) Guatemala: Departments of Escuintla, Retalhuleu, Santa Rosa, and Suchitepéquez.
(5) Honduras: Departments of Comayagua, Cortés, and Santa Bárbara.
(6) Nicaragua: Departments of Carazo, Granada, Managua, Masaya, and Rivas.
(7) Panama: Provinces of Cocle
Peppers from New Zealand may be imported into the United States only under the following conditions:
(a) The peppers must be grown in New Zealand in insect-proof greenhouses approved by the New Zealand Ministry of Agriculture and Forestry (MAF).
(b) The greenhouses must be equipped with double self-closing doors, and any vents or openings in the greenhouses (other than the double closing doors) must be covered with 0.6 mm screening in order to prevent the entry of pests into the greenhouse.
(c) The greenhouses must be examined periodically by MAF to ensure that the screens are intact.
(d) Each shipment of peppers must be accompanied by a phytosanitary certificate of inspection issued by MAF bearing the following declaration: “These peppers were grown in greenhouses in accordance with the conditions in § 319.56-2hh.”
Federal Aviation Administration (FAA) DOT.
Final rule.
This action modifies the Class E airspace area at the Pittsburgh International Airport, Pittsburgh, PA by deleting a portion of the designated airspace area. Closure of the Pittsburgh Metro Airport makes this action necessary. This area will be depicted on aeronautical charts for pilot reference.
0901 UTC, September 6, 2001.
Mr. Francis T. Jordan, Jr., Airspace Specialist, Airspace Branch, AEA-520-F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809; telephone: (718) 553-4521.
On May 4, 2001, the FAA proposed to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by modifying the Class E airspace at Pittsburgh International Airport, PA (66 FR 22489).
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments to the proposal were received. The rule is adopted as proposed.
The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas extending upward from 700 feet above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000 and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.
This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) modifies the Class E airspace area at Pittsburgh, PA by deleting a portion of the Class E airspace area extending upward from 700 feet or more above the surface of the earth.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p 389.
That airspace extending upward from 700 feet above the surface within a 7.9 mile radius of Greater Pittsburgh International Airport and within 3.1 miles each side of the Greater Pittsburgh Runway 10R localizer course extending from the 7.9-mile radius to 5.7 miles west of the STARG OM and within a 6.6-mile radius of Allegheny County Airport.
Social Security Administration.
Final rules.
We are clarifying section 201.00(h) of the medical-vocational guidelines in appendix 2 of subpart P of regulations part 404. This section provides guidance for evaluating disability in individuals under age 50 who have a severe impairment(s) that does not meet or equal in severity the criteria of any listed impairment in appendix 1 of subpart P, but who have a residual functional capacity for no more than the full range of sedentary work and cannot do any past relevant work. The revisions only clarify the current rules.
These rules will be effective September 27, 2001.
Georgia E. Myers, Regulations Officer, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 1-410-965-3632, or TTY 1-800-966-5609. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778.
The Social Security Act (the Act) provides, in title II, for the payment of disability benefits to workers insured under the Act. Title II also provides, under certain circumstances, child's insurance benefits for persons who become disabled before age 22 and widow's and widower's insurance benefits based on disability for widows, widowers, and surviving divorced spouses of insured individuals. In addition, the Act provides, in title XVI, for supplemental security income (SSI) payments to persons who are disabled and have limited income and resources.
For adults under both the title II and title XVI programs, including persons claiming child's insurance benefits based on disability under title II,
Based upon this statutory definition, our longstanding regulations at §§ 404.1520 and 416.920 provide for a five-step sequential evaluation process to determine whether an individual is disabled under the Act, which is as follows:
1. Is the individual engaging in substantial gainful activity? If the individual is working and the work is substantial gainful activity, we find that he or she is not disabled. Otherwise, we proceed to step 2 of the sequence.
2. Does the individual have an impairment or combination of impairments that is severe? If the individual does not have an impairment or combination of impairments that is severe, we find that he or she is not disabled. If the individual has an impairment or combination of impairments that is severe, we proceed to step 3 of the sequence.
3. Does the individual's severe impairment(s) meet or equal in severity the criteria of an impairment listed in appendix 1 of subpart P of part 404? If so, and if the duration requirement is met, we find that he or she is disabled. If not, we proceed to step 4 of the sequence.
4. Does the individual's severe impairment(s) prevent him or her from doing his or her past relevant work, considering his or her residual functional capacity? If not, we find that he or she is not disabled. If so, we proceed to step 5 of the sequence.
5. Does the individual's impairment(s) prevent him or her from performing other work that exists in the national economy, considering his or her residual functional capacity, age, education, and work experience? If so, and if the duration requirement is met, we find that he or she is disabled. If not, we find that he or she is not disabled.
As discussed in § 404.1569, at step 5 of the sequential evaluation process we provide medical-vocational rules in appendix 2 of subpart P of part 404. (By reference, § 416.969 of the regulations provides that appendix 2 is also applicable to adults claiming SSI payments based on disability.) These rules take administrative notice of the existence of numerous unskilled occupations at exertional levels defined in the regulations, such as “sedentary,” “light,” and “medium,” and, based upon a consideration of the individual's residual functional capacity, age, education, and work experience, either direct a decision or are used as a framework for making a decision at step 5.
The revisions we are making clarify one paragraph in appendix 2, section 201.00(h), which discusses the evaluation of the claims of “younger individuals” (i.e., individuals who have not attained age 50) who have a residual functional capacity limited to the full range of sedentary work administratively noticed by the rules in table No. 1 of appendix 2 or who can perform some sedentary work but not the full range of such work.
There is no exertional category below “sedentary.” Thus, there is no category for “less than sedentary work.” Individuals who cannot do any sedentary work are disabled under our rules. These final rules address individuals who are able to do some of the sedentary occupations of which we take administrative notice, but who cannot do substantially all of the occupations within the range.
For clarity, we refer below to the changes in this
We are making some structural changes from the proposed rules for clarity and to make the final rules easier to use. In the Notice of Proposed Rulemaking (NPRM) that was published on September 23, 1997, (62 FR 49636) we proposed to maintain section 201.00(h) as a single paragraph, as in the prior rules. Under that structure, the paragraph in the proposed rule contained 10 sentences. Several of these sentences included multiple clauses. We believe that this structure would have made the rules difficult to use, and would have made citation to the rules difficult. Therefore, in these final rules, we have divided proposed section 201.00(h) into four subparagraphs, designated as section 201.00(h)(1) through 201.00(h)(4). By this change in structure, we are not making any substantive changes from the proposed rules.
Final section 201.00(h)(1) contains the first three sentences of prior section 201.00(h). We are changing the second sentence of section 201.00(h) in appendix 2, which provided that for individuals who are age 45-49, “age is a less positive factor” than for individuals who are younger than age 45. The final rule more clearly explains that, for individuals who are age 45-49, “age is a less advantageous factor for making an adjustment to other work than for those who are age 18-44.” This clarifies what we have meant by the phrase “a less positive factor” and is consistent with our longstanding rule that, at step 5 of the sequential evaluation process, the issue is whether the individual is able to make an adjustment to work other than any past relevant work considering his or her residual functional capacity, age, education, and work experience.
We restructured the words in the third sentence of section 201.00(h)(1) to make the sentence easier to read and to make it easier to cite to the four numbered clauses in the sentence. In clause (iii) of this sentence (clause (3) of the third sentence of prior section 201.00(h)), we are changing the phrases “relevant past work” and “vocationally relevant past work,” to “past relevant work” to clarify our intended meaning and for consistency in our terminology. We are also clarifying in section 201.00(h)(1)(iv) (clause (4) of the third sentence of prior section 201.00(h)) that the term “illiterate” means that the individual is unable to read or write in English. This makes clearer our original intent that the fourth clause describes individuals who are either 1) unable to communicate in English or 2) able to speak and understand English but are unable to read or write in English. SSA intends to examine the use of the term “illiterate” throughout its regulations, and when appropriate, will clarify that it means the inability to read and write in English.
Final section 201.00(h)(2) contains the fourth sentence of prior section 201.00(h). Because the sentence was very long, we decided to break it up into two sentences in these final rules. We are also revising the language of final section 201.00(h)(2) to be consistent with the foregoing revisions in final
Final section 201.00(h)(3) contains the fifth sentence of prior section 201.00(h) and the proposed rules, and the sixth and seventh sentences from the proposed rules. In response to public comments which we discuss in detail below, we revised section 201.00(h)(3) to clarify our intent.
Final section 201.00(h)(3) explains that a decision of “disabled” may be appropriate for some individuals under age 45, and individuals age 45-49 for whom rule 201.17 does not direct a decision of “disabled,” who do not have the ability to perform a full range of sedentary work. As in the proposed rules, the final rules have expanded this discussion to include individuals age 45-49; the prior provision (the fifth sentence of prior section 201.00(h)) addressed only individuals who were under age 45. In a minor editorial change, we changed the word “and” in the parenthetical statement that adds reference to individuals age 45-49 to the word “or.”
Final section 201.00(h)(3) further provides that whether an individual will be able to make an adjustment to other work requires an adjudicative assessment of the factors such as the type and extent of the individual's limitations or restrictions and the extent of the erosion of the occupational base. Under such an assessment, a finding that an individual is limited to less than the full range of sedentary work does not necessarily equate with a finding of either “disabled” or “not disabled.” Some younger individuals who are unable to perform the full range of sedentary work will be able to make an adjustment to other work and some will not. We require an individualized determination considering each individual's remaining occupational base, age, education, and work experience.
Final section 201.00(h)(4) includes the eighth, ninth, and tenth sentences from the proposed rules. As in the proposed rules, we added new language in final section 201.00(h)(4) to further explain the impact of a maximum sustained capability for no more than the full range of sedentary work on an individual's ability to do other work. The intent is to make clear that such capacity reflects very serious functional limitations and must be appropriately documented by the evidence in the record. As we will further explain below, in response to public comments that indicated that we seemed to be setting a higher evidentiary standard for individuals who are limited to less than the full range of sedentary work than for individuals with greater residual functional capacities, we revised the second sentence of final section 201.00(h)(4) (the ninth sentence of the proposed rules) by adding the phrase, “as with any case.” It was not our intent to set a higher standard in this provision.
We are also deleting, without replacement, the two case examples that were in prior section 201.00(h). The intent of those examples was to reinforce a concept already reflected in this paragraph; i.e., that, using the rules as a framework for decisionmaking, a conclusion of “disabled” may be, but is not necessarily, warranted for younger individuals who do not have the residual functional capacity to do a full range of sedentary work.
We are deleting the examples because they are no longer needed and our adjudicative experience has shown that they can be unclear and have been misinterpreted. For example, we have received questions about whether example 2 applied only to cases involving mental impairments or whether it could apply to other types of impairments. Although our intent had always been that the case examples were applicable to all types of impairments, their removal will avoid possible confusion and help ensure consistency in decisionmaking. We explain our reasons further in the
Finally, we made a number of minor editorial changes to improve the consistency of terminology in appendix 2. We do not intend these changes to have a substantive effect on the meaning of the rules.
We published these regulatory provisions in the
Because many comments were detailed, we have condensed, summarized, or paraphrased them below. We have, however, tried to summarize each commenter's views accurately and to respond to all of the significant issues raised by the commenters that are within the scope of these rules.
There was one comment that was outside the scope of the proposed rules that we do not address below. The commenter questioned the validity of the sedentary occupational base. We addressed the issue raised by the commenter in a
Two commenters said that we were attempting to “rush” these regulations through without having the new Commissioner carefully review them. Another indicated that we were trying to “get away with” this regulation because of a political climate that was sympathetic to our alleged desire to find individuals “not disabled.” Another commenter said that the new rules were an attempt to lower the number of claims approved at the hearing level.
Two commenters opposed adoption of the proposed rules. One did so without stating a reason. The other said we were being “unfair and inhumane,” and that the proposal provided a means to deny people Social Security Disability Insurance benefits.
We are not changing the substance of our rules, only clarifying them. This clarification of our rules is part of our Process Unification effort, an important Social Security Administration Disability Redesign initiative in which we have been engaged since 1996. The improvements in these final rules will help to ensure that the disability program is administered uniformly and equitably.
This clarification of the rules is not related to any “political climate,” as one commenter asserted. These final rules have been under development for almost 3 years, and have not been rushed. The commenter who thought we were being “unfair and inhumane” did not tell us why, but that is certainly not our intent. The revisions are intended only to clarify our rules and to ensure that all adjudicators at all levels of the administrative review process understand and apply our rules consistently.
However, in response to these and other comments, we have revised the final rules to more clearly reflect our intent, to show that a residual functional capacity for less than the full range of sedentary work does not, in itself, mean that an individual is disabled or not disabled. The final rules do not direct the outcome of the assessment, but remind adjudicators that some younger individuals who have a residual functional capacity for less than the full range of sedentary work are disabled and some are not, and that it is necessary to make an individualized assessment of the remaining occupational base. We revised the first sentence in final section 201.00(h)(3) (the fifth sentence in the prior rules) to shorten it and to state more clearly and straightforwardly that it may be appropriate to find a younger individual disabled if the individual is unable to perform the full range of sedentary work. We deleted the phrase, “who do not meet all of the criteria of a specific rule,” from the sentence in the prior rules because it was unclear and unnecessary. We then added language to explain in general terms the kinds of factors we want adjudicators to consider when they decide whether a younger individual who is limited to less than the full range of sedentary work is disabled. The language also provides some explanation about what we mean by “erosion of the occupational base.”
The final rules also retain the sentence from the proposed rules that reminds adjudicators that we require them to make individualized assessments considering all the relevant facts.
However, we agree with the commenter that it would be helpful to include some more information in our regulations about what we intend when we refer to erosion of the occupational base for individuals who are unable to do the full range of sedentary work. Therefore, we have added language that provides some additional explanation about the issue. A new sentence explains briefly what we mean by the extent of the erosion of the occupational base; i.e., “the impact of the [individual's] limitations or restrictions on the number of sedentary unskilled occupations or the total number of jobs to which the individual may be able to adjust, considering his or her age, education, and work experience, including any transferable skills or education providing for direct entry into skilled work.” Of course, our adjudicators will continue to refer to SSRs 83-10 and 96-9p, and other appropriate SSRs, for more detailed guidance.
We did not adopt the second comment because “residual functional capacity” and “occupational base” are not synonymous and serve different purposes in the application of the medical-vocational rules. We have already explained what we mean by “occupational base.” In §§ 404.1545 and 416.945 of our regulations, and in our SSRs, such as SSR 96-9p, we explain that residual functional capacity is what an individual can still do despite his or her limitations. Residual functional capacity is an administrative assessment of the extent to which an individual's medically determinable impairment(s) including any symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical or mental activities. These terms reflect two different concepts and are not interchangeable.
* * * a finding that an individual is limited to less than the full range of sedentary work will be based on a careful consideration of the evidence of an individual's medical impairment(s) and the limitations and restrictions attributable thereto. Such evidence must support the finding that an individual's residual functional capacity is limited to less than the full range of sedentary work.
They believed that our intent was to impose a more exacting standard of review of the medical evidence to support a finding that the residual functional capacity is for less than a full range of sedentary work than for other exertional levels. These commenters indicated that the same standard of review should apply to support findings at all levels of exertion.
Several of these commenters expressed skepticism about our position that the examples were unclear and had the potential for causing confusion and inconsistency in decisionmaking. The commenters also indicated that removal of the examples would eliminate the only authority to find disabled an individual who is unable to perform the full range of sedentary work. One commenter believed that, until there is consistency of adjudication at all levels, examples are necessary. Another commenter believed that elimination of the examples would increase administrative costs because a vocational expert would be necessary in all situations in which the residual functional capacity is for less than the full range of sedentary work.
For individuals who are able to do some of the sedentary occupations of which we take administrative notice, but who cannot do substantially all of these occupations, adjudicators must consider the unique characteristics of the physical and mental limitations described in the residual functional capacity assessment of each case. Rather than serving as illustrations of proper application of the rules, the examples have led to overly broad generalizations in this most difficult area of adjudication, and we believe have undermined our longstanding requirement for individualized determinations.
In considering these comments, we did consider whether we could modify the examples and retain them in some form. However, we concluded that the concepts that the examples were intended to explain are better described in SSRs, particularly SSR 96-9p, which are binding on all of our adjudicators. We issued SSR 96-9p as part of our Process Unification initiative to explain in detail disability evaluation when an individual has a residual functional capacity for less than a full range of sedentary work. We believe that, as with that SSR, the revisions we are making in these final rules will further help our adjudicators and the public to understand our intent and provide more uniform and equitable decisions.
We do not agree that deleting the examples will increase administrative costs. These final rules do not change our rules and instructions governing the use of vocational experts or for using the rules in appendix 2 as a framework for decisionmaking. A vocational expert will not be needed in every case involving a residual functional capacity for less than a full range of sedentary work. For example, many such individuals may still be found disabled using the rules in appendix 2 as a framework, as set out in these final rules and in SSR 96-9p.
We have consulted with the Office of Management and Budget (OMB) and determined that these rules meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were subject to OMB review. There are no program or administrative costs or savings associated with these final rules. Therefore, no assessment of costs and benefits is required. We have determined that these final rules meet the plain language requirement of Executive Order 12866 and the President's memorandum of June 1, 1998 (63 FR 31885).
We certify that these regulations will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Therefore, a regulatory flexibility analysis, as provided in the Regulatory Flexibility Act, as amended, is not required.
These regulations impose no new reporting or recordkeeping requirements subject to OMB clearance.
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors, and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189.
(h)(1) The term
(i) Are restricted to sedentary work,
(ii) Are unskilled or have no transferable skills,
(iii) Have no past relevant work or can no longer perform past relevant work, and
(iv) Are unable to communicate in English, or are able to speak and understand English but are unable to read or write in English.
(2) For individuals who are under age 45, age is a more advantageous factor for making an adjustment to other work. It is usually not a significant factor in limiting such individuals' ability to make an adjustment to other work, including an adjustment to unskilled sedentary work, even when the individuals are unable to communicate in English or are illiterate in English.
(3) Nevertheless, a decision of “disabled” may be appropriate for some individuals under age 45 (or individuals age 45-49 for whom rule 201.17 does not direct a decision of disabled) who do not have the ability to perform a full range of sedentary work. However, the inability to perform a full range of sedentary work does not necessarily equate with a finding of “disabled.” Whether an individual will be able to make an adjustment to other work requires an adjudicative assessment of factors such as the type and extent of the individual's limitations or restrictions and the extent of the erosion of the occupational base. It requires an individualized determination that considers the impact of the limitations or restrictions on the number of sedentary, unskilled occupations or the total number of jobs to which the individual may be able to adjust, considering his or her age, education and work experience, including any transferable skills or education providing for direct entry into skilled work.
(4) “Sedentary work” represents a significantly restricted range of work, and individuals with a maximum sustained work capability limited to sedentary work have very serious functional limitations. Therefore, as with any case, a finding that an individual is limited to less than the full range of sedentary work will be based on careful consideration of the evidence of the individual's medical impairment(s) and the limitations and restrictions attributable to it. Such evidence must support the finding that the individual's residual functional capacity is limited to less than the full range of sedentary work.
Food and Drug Administration, HHS.
Final rule; technical amendment.
The Food and Drug Administration (FDA) is amending the animal drug regulations that reflect approval of two new animal drug applications (NADAs) for combination drug Type C feeds containing nequinate. In a notice published in the
This rule is effective August 28, 2001.
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 301-827-4567, e-mail: ghaibel@cvm.fda.gov.
In the
Publication of this document constitutes final action on these changes under the Administrative Procedure Act (5 U.S.C. 553). Notice and public procedure are unnecessary because FDA is merely making nonsubstantive changes.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
1. The authority citation for 21 CFR part 558 continues to read as follows:
21 U.S.C. 360b, 371.
Mine Safety and Health Administration (MSHA), Labor.
Interim final rule; delay of effective date; re-opening of record; notice of public hearings; close of record.
MSHA is delaying the effective date, re-opening the record, and holding additional public hearings on the interim final rule for hazard communication (HazCom). We are re-opening the record on our interim final rule to provide interested persons an additional opportunity to comment on any issue relevant to the rulemaking. Several commenters expressed concern that they had not had sufficient time to fully analyze the interim final rule and to develop and submit meaningful comments. This action also will assure that operators have sufficient time to
The effective date of the interim final rule published on October 3, 2000 (65 FR 59048) is delayed from October 3, 2001 until June 30, 2002.
Comment Deadline and Close of Record: October 17, 2001.
Public Hearings: September 25, 27, October 2, 4, 10, 2001.
You may use mail, electronic mail, or facsimile to send your comments to MSHA.
Electronic mail (e-mail):
Facsimile (FAX): MSHA, Office of Standards, Regulations, and Variances, 703-235-5551.
Mail: David L. Meyer, Director, Office of Standards, Regulations, and Variances; MSHA, 4015 Wilson Boulevard, Room 631; Arlington, VA 22203-1984.
Hearings: See
David L. Meyer, Director, Office of Standards, Regulations, and Variances, MSHA, 4015 Wilson Boulevard, Arlington, VA 22203-1984. Mr. Meyer can be reached at
If you wish to make an oral presentation for the record, we encourage you to contact Ms. Yvonne Quinn at the address or phone number above at least 5 days before the hearing date to inform us of your intent to speak and the length of your presentation. Attendees also may make same-day requests to speak.
All public hearings will begin at 9:00 a.m. and continue until all those who had requested in advance to speak have had an opportunity to do so. Any remaining time will be made available for those making same-day requests.
The public hearings will be held as follows:
MSHA published the HazCom interim final rule on October 3, 2000 (65 FR 59048), with an effective date of October 3, 2001. The HazCom interim final rule has been challenged by a number of mine operators and trade associations [U.S. Court of Appeals for the District of Columbia, Nos. 00-1507, 01-1068 (consolidated)]. The United Mine Workers of America and the United Steelworkers of America have intervened in the litigation. We are asking the court to hold the briefing schedule in abeyance pending the outcome of this reopening of the rulemaking record. We hope that the issues in the litigation can either be narrowed or rendered moot by this delay of the effective date and reopening of the record.
In its October 3, 2000 notice, MSHA gave commenters until November 17, 2000, to submit comments on the interim final rule, on their experience under the Occupational Safety and Health Administration's Hazard Communication Standard, and on any changes in the mining industry since the publication of the proposed rule. On December 7, 2000, we notified all commenters and other interested persons of our decision to hold a public hearing in Washington, DC on December 14, 2000. The public notice of the hearing appeared in the
MSHA received 22 written comments on the interim final rule and heard testimony from six persons at the public hearing. Commenters objected to what they considered to be an inadequate comment period and an inadequate notice of the hearing. These commenters stated that they did not have sufficient time to fully analyze the impact of the interim final rule which affected their ability to develop and submit meaningful comments. They also stated that many operators were unable to testify at the hearing because they did not have enough time to prepare testimony and make plans to attend the hearing. Although MSHA believes that the comment period and the notice of the public hearing were legally sufficient, we are providing further opportunity for public comment on the interim final rule.
Members of the mining community have also stated that, because this is the first time MSHA promulgated an interim final rule, there is some confusion about their compliance obligations. The National Mining Association and the National Stone, Sand and Gravel Association have asked for a delay in the effective date of the interim final rule until we respond to their previous comments on it.
A delay in the effective date would provide MSHA with an opportunity to—
• Receive any new information that is available from the mining community;
• Promulgate a final rule that would respond to the concerns and comments of the mining community;
• Inform the industry and train inspectors about the final rule requirements to achieve the best possible compliance;
• Prepare training materials and compliance aids, such as model HazCom programs, particularly for small mines; and
• Help industry incorporate HazCom's final rule requirements into their existing health and safety programs.
Between now and October 3, 2001 (the interim final rule's effective date), there is not enough time to re-open the record, hold hearings, promulgate a final rule, and give industry time to comply.
Accordingly, MSHA finds that good cause exists to delay the effective date of the interim final rule to June 30, 2002, without notice and comment. MSHA believes that, under the circumstances described, notice and comment on the delay would be impracticable and contrary to the public interest. Opening the record on the interim final rule for additional public hearings and comment will enhance the Agency's ability to promulgate a final rule that reflects the fullest consideration of the mining community's concerns and promotes the public interest.
Department of Defense.
Final rule.
This part establishes a uniform approach for the execution of military testamentary instruments (including wills), powers of attorney, and advance medical directives. It seeks public comment on specific aspects of the activity.
This rule is effective June 12, 2001. Comments must be received by October 29, 2001.
Written comments and recommendations should be sent to the Office of the Under Secretary of Defense for Personnel & Readiness, Program Integration, Legal Policy, ATTN: Lt. Col. Patrick Lindemann, 4000 Defense Pentagon, Washington, DC 20301-4000.
Lt. Col. K. Kinlin, (703) 697-3387.
It has been determined that 32 CFR part 153 is not a significant regulatory action. The rule does not:
(1) Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
It has been certified that this rule is not subject to the “Regulatory Flexibility Act” (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule is being published to give notice to state attorneys and paralegals of 10 U.S.C. § 1044d. The Directive establishes a uniform approach for the execution of military testamentary instruments. Military testamentary instruments have the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate. Thus, it is exempt from any requirement of form, formality, or recording before probate that is provided for testamentary instruments under the laws of a State.
It has been certified that this part does not impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995.
It has been certified that this rules does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been certified that this for does not have federalism implications. The rule does 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.
Military law, Military personnel.
Accordingly, 32 CFR part 153 is added to subchapter D to read as follows:
10 U.S.C. 301.
This part implements 10 U.S.C. 301 for persons eligible for military legal assistance by establishing a uniform approach for the execution of military testamentary instruments.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps, and the Coast Guard when it is operating as a service in the Department of the Navy.
(a) Is executed in accordance with this part (§ 153.4 (b)) by (or on behalf of) a person, as a testator/testatrix, who is eligible for military legal assistance.
(b) Makes a disposition of property of the testator/testatrix, and takes effect upon the death of the testator/testatrix. It has the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate. However, it is exempt from any requirement of form, formality, or recording before probate that is provided for testamentary instruments under the laws of a State.
It is DoD policy that:
(a)
(2) The Military Departments, within the limits of available resources and expertise, shall inform and educate persons eligible for legal assistance on estate planning generally, and the advisability of preparing a will or military testamentary instrument. It is especially important that military personnel be educated with respect to these matters before mobilization, deployment, or similar actions.
(3) All commanding officers shall urge military personnel to seek legal counsel regarding an estate plan well before mobilization, deployment, or similar activities. However, any testamentary instrument, to be legally effective, must be the free and voluntary act of the person making it.
(b)
(1) Be executed by the testator/testatrix (or, if the testator/testatrix is unable to execute the instrument personally, executed in the presence of, by the direction of, and on behalf of the testator/testatrix).
(2) Be executed in the presence of a military legal assistance counsel acting as presiding attorney.
(3) Be executed in the presence of at least two disinterested witnesses (in addition to the presiding attorney), each of whom attests to witnessing the testator/testatrix execution of the instrument by signing it.
(4) Include a statement or preamble in form and content, substantially as outlined at appendix A to this part.
(5) Include (or have attached to it), a self-proving affidavit, in a form and content, substantially as outlined at appendix B to this part
(c)
(d)
(e)
(a) The Under Secretary of Defense (Personnel and Readiness) shall manage implementation of this part.
(b) The Secretaries of the Military Departments shall insure compliance with this part and establish policies and procedures to implement this part.
This is a MILITARY TESTAMENTARY INSTRUMENT prepared pursuant to section 1044d of title 10, United States Code, and executed by a person authorized to receive legal assistance from the Military Services. Federal law exempts this document from any requirement of form, formality, or recording that is provided for testamentary instruments under the laws of a State, the District of Columbia, or a commonwealth, territory, or possession of the United States. Federal law specifies that this document shall receive the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate. It shall remain valid unless and until the testator revokes it.
We, the testator/testatrix and the witnesses, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that in the presence of a military legal assistance counsel and the witnesses the testator/testatrix signed and executed the instrument as the testator/testatrix military testamentary instrument and that [he][she] had signed willingly (or willingly directed another to sign for [him][her], and that [he][she] executed it as [his][her] free and voluntary act for the purposes therein expressed. It is further declared that each of the witnesses, in the presence and hearing of the testator/testatrix and a military legal assistance counsel, signed the military testamentary instrument as witness and that to the best of [his][her] knowledge the testator/testatrix was at that time eighteen years of age or older or emancipated, of sound mind, and under no constraint or undue influence.
Subscribed, sworn to and acknowledged before me by the testator/testatrix, and subscribed and sworn to before me by the witnesses, this date ___.
This is a military Power of Attorney prepared pursuant to section 1044b of title 10, United States Code, and executed by a person authorized to receive legal assistance from the Military Service. Federal law exempts this power of attorney from any requirement of form, substance, formality, or recording that is prescribed for powers of attorney by the laws of a State, the District of Columbia, or a commonwealth, territory, or possession of the United States. Federal law specifies that this power of attorney shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the jurisdiction where it is presented.
This is a military advance medical directive prepared pursuant to section 1044c of title 10, United States Code. It was prepared by an attorney authorized to provide legal assistance for an individual eligible to receive legal assistance under section 1044 of title 10, United States Code. Federal law exempts this advance medical directive from any requirement of form, substance, formality, or recording that is provided for advance medical directives under the laws of a State. Federal law specifies that this advance medical directive shall be given the same legal effect as an advance medical directive prepared and executed in accordance with the laws of the State concerned.
Office of the Secretary, DOD.
Final rule.
This final rule implements 10 U.S.C. 1097b(a), as added by section 716 of the National Defense Authorization Act for Fiscal Year 2000 which allows higher provider reimbursement rates than normally allowable, with certain limitations, when necessary to ensure an adequate TRICARE Prime network of qualified providers. This final rule also implements 10 U.S.c. 1079(h)(5), as added by section 747 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, to remedy circumstances in which TRICARE beneficiaries face very severe limitations on access to needed health care services.
September 27, 2001.
TRICARE Management Activity (TMA), Program Operations Directorate, 5111 Leesburg Pike, Suite 810, Falls Church, VA 22041-3206.
Mr. Mike Talisnik, Office of the Assistant Secretary of Defense (Health Affairs)/TRICARE Management Activity, telephone (703) 681-0064 or Mr. Stan Regensberg, telephone (303) 676-3742.
Questions regarding payment of specific claims under the CHAMPUS allowable charge method should be addressed to the appropriate TRICARE/CHAMPUS contractor.
The relationship of DoD payment levels to Medicare's for institutional and professional health care services is central to the ongoing success of TRICARE. Payment levels have significant effects on DoD's ability to implement managed care programs, to assure beneficiary access to the full spectrum of health services, and to do this in a cost-effective manner.
Legislative initiatives have linked DoD's payment rates for health care to Medicare, beginning in the early 1980s, with the initial focus on institutional services. Similar initiatives in the late 1980s linked DoD's payment levels for professional services to Medicare.
A key principle of DoD's efforts in the linkage of reimbursement rates to Medicare has been the protection of access to services. In a 1996 report to Congress, it was found that 86 percent of the time providers accepted the TRICARE payment limits called CMACs (CHAMPUS Maximum Allowable Charges) as payment in full. Most recently, that percentage has increased to over 94 percent acceptance. However, the very high rate of acceptance overall may hide the access problems in certain localities.
When the CMAC payment approach was implemented in 1992, national payment levels were adjusted to reflect local economic conditions in over 200 localities, the same as those used by Medicare. Since that time, the number of localities has been reduced to fewer than 100, with the introduction of more and more statewide payment localities.
In 1999, DoD undertook revisions to one statewide locality, Alaska, in recognition of the differences in acceptability of TRICARE payments in Anchorage compared to the rest of the state. Overall, CMAC's are accepted as full payment over 90 percent of the time in Alaska; however, the vast majority of services are provided in Anchorage, so that severe access problems elsewhere in the state are hidden. In an effort to increase acceptability of TRICARE payment rates outside of Anchorage, DoD created a new locality, including all of Alaska except Anchorage. While this action addressed one locality, DoD's current regulatory authority may not be sufficient in some other localities. Accordingly, this final rule provides for the mechanism to increase access to health care providers for TRICARE beneficiaries where access to health care services is severely impaired or where there is an inadequate number of qualified network providers.
This final rule would add a new § 199.14(h)(1)(iv)(D) authorizing the establishing of higher payment rates for specific services than would otherwise be allowable, if it is determined that access to health care services is severely impaired. Payment rates could be established through addition of a percentage factor to an otherwise applicable payment amount, or by calculating a prevailing charge, or by using another governmental payment rate. Higher payment rates could be applied to all similar services performed in a locality, or a new locality could be defined for application of the higher payment rates.
Other factors in determining the authority to establish a higher payment shall be based on the number of providers in a locality, the number of providers who are TRICARE participating providers, the number of eligible beneficiaries in the locality, and the availability of Military Treatment Facility providers.
The final rule would also add a new § 199.14(h)(1)(iv)(E) allowing the reimbursement of higher payment rates for health care services for services that would otherwise be allowable, if it is determined necessary to ensure adequate Preferred Provider networks. The amount of reimbursement for health care services would be limited to the lesser of: (1) An amount equal to the local fee for service charge in the area where the service is provided; or (2) 115 percent of the otherwise allowable TRICARE rate for the service. The higher rate will be authorized only if all reasonable efforts have been exhausted
We have also added to the final rule a new definition of “Director” to clear up any confusion associated with continued use in the CHAMPUS/TRICARE regulation to “Director, OCHAMPUS.” The TRICARE Management Activity (TMA) has replaced the old Office of CHAMPUS, and the Director of TMA exercises the authorities previously exercised by the Director, OCHAMPUS.
The proposed rule was published in the
Section 801 of title 5, United States Code, and Executive Order 12866 requires certain regulatory assessments and procedures for any major rule or significant regulatory action, defined as one which would result in an annual effect on the economy of $100 million or more, or have other substantial impacts.
The Regulatory Flexibility Act (RFA) requires that each Federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities.
This is not a major rule under 5 U.S.C. 801. It is a significant regulatory action but not economically significant under E. O. 12866, and it would not have a significant impact on a substantial number of small entities. In addition, the final rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 55).
This rule is being issued as a final rule.
Claims, Fraud, Health care, Health insurance, Individuals with disabilities, Military personnel.
5 U.S.C. 301; 10 U.S.C. chapter 55.
(h) * * *
(1) * * *
(iv) * * *
(D)
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule implements fee schedules for payment of parenteral and enteral nutrition (PEN) items and services furnished under the prosthetic device benefit, defined in section 1861(s)(8) of the Social Security Act. The authority for establishing these fee schedules is provided by the Balanced Budget Act of 1997, which amended the Social Security Act at section 1842(s). Section 1842(s) of the Social Security Act specifies that statewide or other areawide fee schedules may be implemented for the following items and services still subject to the reasonable charge payment methodology: medical supplies; home dialysis supplies and equipment; therapeutic shoes; parenteral and enteral nutrients, equipment, and supplies; electromyogram devices; salivation devices; blood products; and transfusion medicine. This final rule describes changes made to the proposed fee schedule payment methodology for these items and services and provides that the fee schedules for PEN items and services are effective for all covered items and services furnished on or after January 1, 2002. Fee schedules will not be implemented for electromyogram devices and salivation devices at this time since these items are not covered by Medicare. In addition, fee schedules will not be implemented for medical supplies, home dialysis supplies and equipment, therapeutic shoes, blood products, and transfusion medicine at this time since the data required to establish these fee schedules are inadequate.
These final regulations are effective January 1, 2002.
Joel Kaiser, (410) 786-4499.
This
The provisions of sections 1833 and 1842 of the Social Security Act (the Act) set forth the general payment authority for most physician and other medical and health services furnished under Part B of the Medicare program. Section 1842(s) of the Act, added by section 4315 of the Balanced Budget Act of 1997 (BBA), (Pub. L. 105-33) provides authority for implementing statewide or other areawide fee schedules to be used for payment of the following items and services that are paid on a reasonable charge basis when covered:
• Medical supplies.
• Home dialysis supplies and equipment.
• Therapeutic shoes.
• Parenteral and enteral nutrients, equipment, and supplies.
• Electromyogram devices.
• Salivation devices.
• Blood products.
• Transfusion medicine.
Section 1842(s)(1) of the Act provides that if fee schedules are established for any of the covered items and services listed above, the fee schedules are to be updated on an annual basis by the percentage increase in the consumer price index for all urban consumers (CPI-U) for the 12-month period ending
We published a proposed rule on July 27, 1999 (64 FR 40534) that described the methods proposed for computing fee schedules for the covered items and services listed above. The proposed rule stated that the fee schedules would apply to items and services furnished on or after January 1, 1999 and would be calculated using base reasonable charges updated by an update factor as mandated by the BBA. The proposed rule provided that statewide fee schedule amounts would be calculated for all items and services except PEN items and services, which would have nationwide fee schedule amounts. In accordance with section 4551(b) of the BBA, the nationwide fee schedule amounts for PEN items and services would be equal to the lesser of: (1) The 1995 reasonable charges; or (2) the 1998 reasonable charges, increased by the inflation adjustment factor that would have otherwise been used in calculating the 1999 inflation-indexed charges (in effect, the 1999 reasonable charges). The proposed rule also called for national fee schedule ceiling and floor limits for medical supplies, electromyogram devices, salivation devices, blood products, and transfusion medicine furnished within the continental United States.
Medicare currently does not cover electromyogram devices or salivation devices; therefore, we do not plan to establish fee schedules for these items at this time. Also, fee schedules will not be established at this time for medical supplies, home dialysis supplies and equipment, therapeutic shoes, blood products, and transfusion medicine. The data needed to establish these fee schedule amounts so that they meet the budget-neutrality requirement of section 4315(d) of the BBA are currently not available. We are establishing fee schedules only for PEN items and services in this final rule. In the event that it becomes possible to establish budget-neutral fee schedules in the future for the other items and services addressed in the proposed rule, we will establish these fee schedules in one or more separate final rules.
We received comments from five groups representing the industry, two individual suppliers, and one member of the Congress who wrote on behalf of a constituent hospital. We have summarized the comments pertaining to the fee schedules for PEN items and services and present them below along with our responses. We have not included the comments pertaining to those items and services for which we have decided not to implement fee schedules at this time.
Moreover, it is important to note that the statute requires that the fee schedule amounts established by this final rule must be budget-neutral. Additional payment for professional services provided by suppliers furnishing PEN nutrients, equipment, and supplies, would duplicate payment already included in the fee schedule rate and payments for all other PEN items and services would have to be reduced to maintain budget-neutrality. The total payment for PEN items and services would therefore remain the same.
The provisions of this final rule are the same as the provisions of the July 27, 1999, proposed rule except as noted below. The following changes have been made:
• Fee schedules will only be implemented for PEN items and services. Fee schedules will not be implemented at this time for electromyogram devices, salivation devices, medical supplies, home dialysis supplies and equipment, therapeutic shoes, blood products, and transfusion medicine.
• The initial year that the fee schedules will be in effect will be calendar year 2002 rather than calendar year 1999.
• For PEN items and services, the fee schedule amounts will be based on the reasonable charges that would have been used in determining payment for these items and services in 2002.
• The section regarding payment for PEN items and services has been revised to reflect that payment for these items and services will be on either a rental basis for the equipment or in a lump sum amount for the purchase of the nutrient or supply.
The 2002 fee schedule amounts for all HCPCS codes for PEN items and services are listed below. Section 4551(b) of the BBA specifies that the reasonable charges for PEN items and services for 2002 may not exceed the reasonable charges for these items and services from 1995. Therefore, the fee schedule amounts for PEN items and services, other than codes B4176 and
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have examined the impact of this final rule as required by Executive Order (EO) 12866, the Unfunded Mandates Reform Act (UMRA) (Pub. L. 104-4), the Regulatory Flexibility Act (RFA) of 1995 (Pub. L. 96-354), and the Federalism Executive Order (EO) 13132. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects ($100 million or more annually). This rule will not result in a change in expenditures of $100 million or more annually, and is therefore not a major rule as defined in Title 5, United States Code, section 804(2) and is not an economically significant rule under Executive Order 12866.
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, non-profit organizations and government agencies. Most hospitals and most other providers and suppliers are small entities, either by non-profit status or by having revenues of $5 million to $25 million annually. Individuals and states are not included in the definition of a small entity. Based on data from the Small Business Administration (SBA), we estimate that 98 percent of suppliers of the items and services affected by this rule would be defined as small entities for purposes of the RFA. Due to the fact that the statewide fee schedule amounts will be calculated using the average of the payment amounts made in each State under the reasonable charge payment methodology, we expect that the overall impact of this rule on small businesses will be minimal.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds.
In the proposed rule we certified that this rule would not have a significant impact on a substantial number of small entities and on small rural hospitals. Since we did not receive any comment on our initial regulatory impact statements, we are conforming our initial determination and certifying that this rule will not have a significant impact on a substantial number of small entities including small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in an expenditure in any year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule would not have an effect on the governments mentioned, and private sector costs would be less than the $110 million threshold.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
We have reviewed this proposed rule under the threshold criteria of Executive Order 13132, Federalism. We have determined that it does not significantly affect the rights, roles, and responsibilities of State or local governments.
42 CFR part 414 is amended as set forth below:
Secs. 1102, 1871, and 1881(b)(1) of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(1)).
This subpart implements fee schedules for PEN items and services as authorized by section 1842(s) of the Act.
(a) General rule. For items and services furnished on or after January 1, 2002, Medicare pays for the items and services as described in paragraph (b) of this section on the basis of 80 percent of the lesser of——
(1) The actual charge for the item or service; or
(2) The fee schedule amount for the item or service, as determined in accordance with §§ 414.104.
(b) Payment classification. (1) HCFA or the carrier determines fee schedules for Parenteral and enteral nutrition (PEN) nutrients, equipment, and supplies, as specified in § 414.104.
(2) HCFA designates the specific items and services in each category through program instructions.
(c) Updating the fee schedule amounts. For each year subsequent to 2002, the fee schedule amounts of the preceding year are updated by the percentage increase in the CPI-U for the 12-month period ending with June of the preceding year.
(a) Payment Rules. Payment for PEN items and services is made in a lump sum for nutrients and supplies that are purchased and on a monthly basis for equipment that is rented.
(b) Fee schedule amount. The fee schedule amount for payment for an item or service furnished in 2002 is the lesser of—
(i) The reasonable charge from 1995; or
(ii) The reasonable charge that would have been used in determining payment for 2002.
Federal Communications Commission.
Final rule; announcement of effective date.
This document announces the effective date of the rules published on September 5, 2000. Those rules amended the Commission's cable television rules pertaining to the public file, notice and recordkeeping requirements. These rules contained information collection requirements that required the approval of the Office of Management and Budget (“OMB”) before they could become effective. These rule sections have been approved by OMB and become effective on August 28, 2001.
Sections 76.1622, 76.1713, and 76.1800 published at 65 FR 53610 (September 5, 2000) are effective on August 28, 2001.
Sonia Greenaway of the Consumer Protection and Competition Division, Cable Services Bureau at (202) 418-7200 TTY (202) 418-7172.
A summary of the public file, notice, and recordkeeping requirements set forth in Part 76 of the Commission's cable television rules in CS Docket No. 98-132,
Multichannel video and cable television service.
Research and Special Programs Administration (RSPA), DOT.
Final rule.
This final rule corrects editorial errors, makes minor regulatory changes, and, in response to requests for clarification, improves the clarity of certain provisions in the Hazardous Materials Regulations (HMR). The intended effect of this rule is to enhance the accuracy and reduce misunderstandings of the HMR. The amendments contained in this rule are minor editorial changes and do not impose new requirements.
October 1, 2001.
Michael G. Stevens, Office of Hazardous Materials Standards, (202) 366-8553, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
RSPA (we) annually reviews the HMR to identify and correct errors. Inaccuracies corrected in this final rule include typographical and printing errors, incorrect references to other rules and regulations in the CFR, inconsistent use of terminology, and misstatements of certain regulatory requirements. In response to inquiries RSPA received concerning the clarity of particular requirements specified in the HMR, certain other changes are made to reduce uncertainties.
Because these amendments do not impose new requirements, notice and public procedure are unnecessary. In addition, making these amendments effective without the customary 30-day delay following publication will allow the changes to appear in the next revision of 49 CFR.
The following is a section-by-section summary of the amendments made under this final rule. It does not discuss all minor editorial corrections (
This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not subject to review by the Office of Management and Budget. This rule is not significant according to the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Because of the minimal economic impact of this rule, preparation of a regulatory impact analysis or a regulatory evaluation is not warranted.
This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). Federal hazardous material transportation law, (49 U.S.C. 5101-5127) contains express preemption provisions at 49 U.S.C. 5125.
RSPA is not aware of any State, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment.
This 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 rule would not significantly or uniquely affect the communities of the Indian tribal governments, the funding and consultation requirements of this Executive Order do not apply.
I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor editorial changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses or other organizations.
This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.
Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid OMB control number. There are no new information collection requirements in this final rule.
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.
Administrative practice and procedure, Hazardous materials transportation, Packaging and containers, Penalties, Reporting and recordkeeping requirements.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Reporting and recordkeeping requirements.
Education, Hazardous materials transportation, Hazardous waste, Labeling, Markings, Packaging and
Hazardous materials transportation, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.
Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Motor carriers, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Railroad safety, Reporting and recordkeeping requirements.
Hazardous materials transportation, Motor carriers, Motor vehicle safety, Packaging and containers, Railroad safety, Reporting and recordkeeping requirements.
49 U.S.C. 5101-5127, 44701; Sec. 212-213, Pub. L. 104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
(c) * * *
(1) * * *
44 The formulation must be prepared so that it remains homogenous and does not separate during transport. Formulations with low nitrocellulose contents and neither showing dangerous properties when tested for their ability to detonate, deflagrate or explode when heated under defined confinement by the appropriate test methods and criteria in the UN Recommendations, Tests and Criteria, nor classed as a Division 4.1 (flammable solid) when tested in accordance with the procedures specified in § 173.124 of this subchapter (chips, if necessary, crushed and sieved to a particle size of less than 1.25 mm) are not subject to the requirements of this subchapter.
(3) * * *
B13 * * *
a. Packagings equivalent to MC 306 cargo tanks are excepted from the certification, venting, and emergency flow requirements of the MC 306 specification.
a. In paragraph (a)(3) introductory text, the wording “specified in the §§ 172.332 or 172.336,” is removed and the wording “specified in § 172.332 or § 172.336,” is added in its place.
b. In paragraph (b) heading, the word “
(c) * * *
(2) * * *
Vehicle, flammable gas powered
Vehicle, flammable liquid powered
49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
(b) * * *
(c) * * *
25. In § 173.166, in paragraph (a), in the last sentence, the wording “seat-belt pre-tensioner” is removed and the italicized wording “
26. In § 173.181, in paragraph (a)(2), in the parenthetical at the end of the paragraph, the wording “(See §§ 173.34(d)(7) and 177.838(h) of this subchapter.)” is removed and the wording “(See §§ 173.34(d)(6) and 177.838(h) of this subchapter.)” is added in its place.
27. In § 173.194, in paragraph (b)(1), in the second sentence, the wording “130 mm” is removed and the wording “0.30 mm” is added in its place.
49 U.S.C. 5101-5127; 49 CFR 1.53.
(d) * * *
(1) An ORM-D material packed in a freight container and offered for transportation by one consignor; or
(2) Dry ice (carbon dioxide, solid).
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
Issued in Washington, DC, on August 15, 2001, under authority delegated in 49 CFR part 1.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correction.
The final rule to implement Framework Adjustment 1 for the summer flounder, scup, black sea bass,
Effective August 10, 2001.
William D. Chappell, Fishery Management Specialist, 301-713-2341 or e-mail at William.Chappell@noaa.gov.
The final rule to implement Framework Adjustment 1 for the summer flounder, scup, black sea bass,
Accordingly, the publication on August 10, 2001, of Framework Adjustment 1 for the summer flounder, scup, black sea bass,
On page 42156, third column, the RIN is corrected to read as follows:
On page 42157, first column, the
On page 42160, third column, amendatory instruction 4 is corrected to read as follows:
4. In § 648.100, paragraphs (a), (b), and the introductory text of (d) are revised, and paragraph (f) is added to read as follows:
On page 42161, second and third columns, amendatory instruction 5 and the text to paragraph (b)(6) are corrected to read as follows:
5. In § 648.120, paragraphs (a), (b) introductory text, (b)(1), (b)(6), and (c) are revised, and paragraph (e) is added to read as follows:
(b) * * *-
(6) Recreational possession limit set from a range of 0 to 50 scup to achieve the specified exploitation rate, set after the reduction for research quota.
16 U.S. C. 1801
Agricultural Marketing Service, USDA.
Extension of the comment periods.
Notice is hereby given that the 45-day comment periods on the proposed Hass Avocado Promotion, Research, and Information Order and referendum procedures for the program are being extended for an additional 15 days.
Comments must be received by September 12, 2001.
Interested persons are invited to submit written comments concerning this proposed rule to the Docket Clerk, Research and Promotion Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, USDA, Stop 0244, Room 2535 South Building, 1400 Independence Avenue, SW., Washington, DC 20250-0244. Comments should be submitted in triplicate and will be made available for public inspection at the above address during regular business hours. Comments may also be submitted electronically to: malinda.farmer@usda.gov. All comments should reference the docket number and the date and page number of this issue of the
Julie A. Morin, Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244, 1400 Independence Avenue, SW., Room 2535 South Building, Washington, DC 20250-0244; telephone (202) 720-9915 or fax (202) 205-2800.
On July 13, 2001, a proposed rule containing proposals for the Hass Avocado Promotion, Research, and Information Order (Order) (66 FR 36870) and a proposed rule containing referendum procedures for the program (66 FR 36886) were published in the
Under the proposed Order, producers and importers would pay an assessment to the proposed Hass Avocado Board (Board). Assessments collected under the program, at the initial rate of 2.5 cents a pound, are expected to generate $10 million annually. The Board would use the assessments collected to conduct a promotion, research, and information program to maintain, develop, and expand markets for Hass avocados in the United States. The proposed referendum procedures would be used for a referendum to determine whether producers and importers favor implementation of the Order. The comment periods on both proposed rules end on August 27, 2001.
Requests that additional time be provided for interested persons to comment were received from Ambassador James Bolger of New Zealand on August 3, 2001; Ambassador Andres Bianchi of Chile on August 8, 2001; Senators Joseph R. Biden, Jr., and Thomas R. Carper and Congressman Michael N. Castle on August 8, 2001; Senator Richard G. Lugar on August 15, 2001, and Congressmen Rob Andrews and Robert Menendez on August 15, 2001. The New Zealand Ambassador requested the extension due to the complexity of the rule. The other parties requested the extension due to the complexity of the rule and the recent Supreme Court decision on the mushroom program (
After reviewing the situation, the Department is extending the comment periods for 15 additional days. This will provide interested persons a total of 60 days to review the proposed rules, perform a more complete analysis, and submit any written comments.
This delay should not substantially add to the time required to complete this rulemaking action. Accordingly, comments will be accepted until September 12, 2001. This notice is issued under the Hass Avocado Promotion, Research, and Consumer Information Act, (7 U.S.C. 7801-7813), enacted on October 23, 2000.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meeting.
The Department of Energy (DOE or Department) will hold an informal public meeting to discuss the priorities of the existing program and any possible expansion of the scope of the program to include additional consumer products and commercial and industrial equipment. The Department is interested in receiving suggestions on the criteria it should use to reach decisions on these issues and on the factors, data and analysis methods that might be used by DOE in its decision making process.
The public meeting will be held on Tuesday, September 11, 2001, from 9 a.m. to noon. Written comments should be submitted by October 11, 2001.
The meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue, SW, Washington, DC 20585. (Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. If you are a foreign national and wish to participate in the meeting, please inform DOE of this fact as soon as possible by contacting Ms. Brenda Edwards-Jones at (202) 586-2945 so that the necessary procedures can be completed.)
A list identifying the proposed priority for standards rulemakings that are currently mandated by statute and a list of possible new products that have been identified by various stakeholders were placed on the DOE website at:
Written comments are welcome, especially following the meeting. Please submit written comments to: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Energy Conservation Program for Consumer Products, EE-41, 1000 Independence Avenue, SW, Washington, DC 20585-0121. Telephone: (202) 586-2945; Telefax: (202) 586-4617. You should label comments both on the envelope and on the documents and submit them for DOE receipt by October 11, 2001. Please submit one signed copy and a computer diskette (WordPerfect 8) or 10 copies (no telefacsimiles). The Department will also accept electronically-mailed comments, e-mailed to
Copies of the agenda and attendees of the public meeting, the public comments received, the list of current rulemakings and possible new products, and this notice may be read at the Freedom of Information Reading Room, U.S. Department of Energy, Forrestal Building, Room 1E-190, 1000 Independence Avenue, SW, Washington, DC 20585, (202) 586-3142, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Michael Raymond, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, EE-41, 1000 Independence Avenue, SW, Washington, DC 20585-0121, (202) 586-9611, email:
On May 2001, the National Energy Policy Development Group (NEPD Group) reported a National Energy Policy to the President. One of the recommendations called for the President to direct the Secretary of Energy to take steps to improve the energy efficiency of appliances. The recommendation included supporting the existing appliance standards program, setting higher standards where technologically feasible and economically justified, and expanding the scope of the program to include additional consumer products and commercial and industrial equipment.
The main focus of the meeting will be to discuss the process that DOE should use in setting priorities for the existing program and any possible expansion of the scope of the program to include additional products and equipment. The Department is interested in receiving comments on its proposed priorities for current standards rulemakings and suggestions on the criteria it should use to reach decisions on the possible expansion of the program. The Department is also interested in receiving comments on the factors, data and analysis methods that might be used by DOE in its decision making process. Additional products and equipment could be addressed through voluntary programs, consumer education, legislation and/or regulation. Indeed, there are bills being drafted and introduced in the Congress which would direct DOE to address additional products and equipment. Thus, the timing of this meeting would allow DOE to do some early planning in anticipation of a number of possible new activities.
Today's notice, the subject lists of current rulemakings and possible new products and equipment, and the planned meeting mark the next steps in seeking stakeholder input into the rulemaking process. The lists can be found on the following web-site:
The meeting will be conducted in an informal, conference style. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by the U.S. antitrust laws.
After the meeting and expiration of the period for submitting written statements, the Department will begin consideration of the comments received.
If you would like to participate in the meeting, receive meeting materials, or be added to the DOE mailing list to receive future notices and information regarding the energy conservation program for consumer products and commercial and industrial equipment, please contact Ms. Brenda Edwards-Jones at (202) 586-2945.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Supplemental proposed rule; correction.
This document corrects the preamble to a proposed rule published in the
Dr. Michael E. McCabe, (202) 586-0854, e-mail: michael.e.mccabe@ee.doe.gov.
In proposed rule document FR Doc. 01-18429, appearing on page 38822, in the issue of Wednesday, July 25, 2001, the following corrections are made:
(1) On page 38831 in the second column, third line, the first complete sentence is corrected to the following: “In 2020, the proposed standards would avoid the construction of three 400 megawatt coal-fired plants and twenty-four 400 megawatt gas-fired plants.”
(2) On page 38834 in the second column, in the first paragraph of Section V.B.2.a, the sixth sentence is corrected to the following: “Revising the standard for air conditioner and heat pump efficiency would contribute up to an additional $303 million, bringing the total cumulative regulatory burden to as high as $782 million.”
(3) On page 38835, in Table 4, in the row with the heading “Industry Impacts (million $): Cumulative Change in Industry NPV” and under the columns with the headings: “Trial std 1; Trial std 2; Trial std 3; and Trial std 4;” replace the numerical values with: “(30); (159); (171); and (303)”, respectively.
(4) On page 38835, in Table 4, in the row with the heading “Industry Impacts (million $): Cumulative Regulatory Burden on Industry” and under the columns with the headings: “Trial std 1; Trial std 2; Trial std 3; and Trial std 4;” replace the numerical values with: “(>509); (>638); (>650); and (>782)”, respectively.
(5) On page 38836 in the second column, in the third paragraph, the last sentence is corrected to the following: “Furthermore, the cumulative impact of all new Federal and State regulations would exceed $782 million.”
(6) On page 38837 in the second column, in the first paragraph, the last sentence is corrected to the following: “Furthermore, the cumulative impact of all new Federal and State regulations would exceed $650 million.”
(7) On page 38838 in the first column, in the second paragraph, the last sentence is corrected to the following: “Furthermore, the cumulative impact of all new Federal and State regulations would exceed $638 million.”
(8) On page 38841 in the second column, line seven, the last sentence is corrected to the following: “This would be the equivalent of three 400 megawatt coal-fired plants and twenty-four 400 megawatt gas-fired plants.”
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model MD-90-30 series airplanes. This proposal would require an inspection of the wiring in the left-hand tunnel area of the forward cargo compartment for evidence of chafing, and repair, if necessary. This action is necessary to prevent such chafing, which could result in subsequent shorting to structure, and consequent smoke and possible fire in the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by October 12, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-196-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
George Y. Mabuni, Aerospace Engineer, Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5341; fax (562) 627-5210.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-196-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-196-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports indicating that two operators reported two instances of wire chafing and subsequent shorting to structure in the left-hand tunnel area of the forward cargo compartment. In one instance, cabin pressure control circuit breakers tripped. A short time later, smoke was observed coming from the left side of the airplane. Investigation revealed that excess wire length and improper wire routing resulted in the wire chafing. Such chafing, if not corrected, could result in subsequent shorting to structure, and consequent smoke and possible fire in the airplane.
The FAA has reviewed and approved McDonnell Douglas Alert Service Bulletin MD90-24A003, Revision 01, dated January 11, 2000, which describes procedures for a one-time general visual inspection of the wiring in the left-hand tunnel area of the forward cargo compartment for evidence of chafing, and repair of any damaged wiring. The alert service bulletin also describes procedures for coiling and stowing any excess wire in the forward cargo compartment, left side, between stations Y=237.000 and Y=256.000. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously. The actions would be required to be accomplished in accordance with the alert service bulletin described previously.
There are approximately 12 Model MD-90-30 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 10 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 3 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,800, or $180 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent chafing of the wiring in the left-hand tunnel area of the forward cargo compartment, which could result in subsequent shorting to structure, and consequent smoke and possible fire in the airplane, accomplish the following:
(a) Within one year after the effective date of this AD, accomplish paragraphs (a)(1) and (a)(2) of this AD per McDonnell Douglas Alert Service Bulletin MD90-24A003, Revision 01, dated January 11, 2000.
(1) Do a one-time general visual inspection of the wiring in the left-hand tunnel area of the forward cargo compartment for evidence of chafing. Prior to further flight, repair any damaged wiring.
(2) Coil and stow any excess wire in the forward cargo compartment, left side, between stations Y=237.000 and Y=256.000.
For the purposes of this AD, a general visual inspection is defined as “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or drop-light, and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
Accomplishment of the actions required by this AD per McDonnell Douglas Service Bulletin MD90-24-003, dated October 27, 1995, prior to the effective date of this AD, is considered acceptable for compliance with the requirements of this AD.
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(c) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to all Airbus Model A300 B2 and B4 series airplanes. This proposal would require identifying the types and areas of repairs on the airplane between frame 10 and frame 80, and follow-on actions for certain repairs. This action is necessary to detect and correct fatigue cracking of certain repairs of the fuselage between frame 10 and frame 80, which could result in reduced structural integrity of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by September 27, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-247-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Tim Backman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2797; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-247-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket 2000-NM-247-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Direction Ge
Fatigue cracking of certain repairs of the fuselage between frame 10 and frame 80, if not detected and corrected, could result in reduced structural integrity of the airplane.
Airbus has issued Service Bulletin A300-53-0313, Revision 01, dated April 27, 1999. The service bulletin describes procedures for identifying the types and areas of repairs on the airplane between frame 10 and frame 80, and follow-on actions for certain repairs. The follow-on actions include repetitive inspections of specified areas to detect cracking, or replacement of the repair, if necessary. Such replacement would eliminate the need for the repetitive inspections. These actions are intended to adequately address the unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2000-261-312(B), dated June 28, 2000, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type-certificated for operation in the United States under the provisions of section
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.
Operators should note that, unlike the procedures described in Airbus Service Bulletin A300-53-0313, this proposed AD would not permit further flight if cracks are detected in specific areas identified in the service bulletin. The FAA has determined that, because of the safety implications and consequences associated with such cracking, any area specified in the service bulletin that is found to be cracked must be repaired prior to further flight.
Operators also should note that, although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposal would require the repair of those conditions to be accomplished in accordance with a method approved by either the FAA, or the DGAC (or its delegated agent). In light of the type of repair that would be required to address the identified unsafe condition, and in consonance with existing bilateral airworthiness agreements, the FAA has determined that, for this proposed AD, a repair approved by either the FAA or the DGAC would be acceptable for compliance with this proposed AD.
On April 19, 2000, the FAA issued amendments 91-264, 121-275, 125-33, and 129-28, which add new sections 91.410, 121.370, 125.248, and 129.32 (“Repair Assessment for Pressurized Fuselages”) to 14 CFR part 25 of the Federal Aviation Regulations. The final rule, which was published in the
The final rule specifies that certain airplanes cannot be operated beyond a certain flight-cycle implementation time unless operator specifications are issued to reference repair assessment guidelines for the fuselage pressure boundary (fuselage skin, door skin, and bulkhead webs) and those guidelines are incorporated into the operator's maintenance program. The final rule also specifies that these repair assessment guidelines must be approved by the FAA's Aircraft Certification Office or the office of the Transport Airplane Directorate having cognizance over the type certificate for the affected airplane.
For Airbus Model A300 B2 and B4 series airplanes, the implementation times specified in the final rule are as follows:
The service bulletin described previously recommends that certain repairs must be inspected for fatigue damage before the implementation times specified in the regulation described above. The initial implementation time recommended in the service bulletin and specified in French airworthiness directive 2000-261-312(B) is before accumulating 10,000 total flights or within 2,500 flights, whichever occurs later. An interval of 2,500 flights is specified for repetitive inspections of specified areas and corrective actions. The service bulletin was issued in response to a finding of a specific repair for which fatigue and damage tolerance is a concern. This specific repair involves a skin doubler with an average rivet spacing greater than or equal to 30 mm in the outer rivet row. The repair is located in the upper part of the fuselage in the pressurized shell.
Since the compliance time described above, as specified in the French airworthiness directive, for identification of this particular repair is earlier than the implementation times specified in the repair assessment guidelines, the FAA finds that issuance of this proposed AD is necessary to require the specified actions at the earlier time.
The FAA estimates that 13 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 2 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,560, or $120 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (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 detect and correct fatigue cracking of certain repairs of the fuselage between frame 10 and frame 80, which could result in reduced structural integrity of the airplane, accomplish the following:
(a) Before 10,000 total landings, or before 2,500 landings after the effective date of this AD, whichever occurs later: Identify the types and areas of repairs on the airplane between frame 10 and frame 80, as specified in Airbus Service Bulletin A300-53-0313, Revision 01, dated April 27, 1999. Do the actions per the Accomplishment Instructions of the service bulletin. If none of the repairs specified in the service bulletin are found, no additional action is needed under this AD.
(b) If, during the inspection, any repair is found that meets the criteria specified in Airbus Service Bulletin A300-53-0313, Revision 01, dated April 27, 1999: Do either an eddy current or ultrasonic inspection, depending on the type of repair found, to detect cracking of the applicable area identified in Flow Chart 1, Figure 1, Sheet 1, of the service bulletin. Do the inspection at the time and in the manner specified in the service bulletin. Based on the results of the inspection, take the actions shown in the following table:
(c) Replacement of a repair that is specified in Airbus Service Bulletin A300-53-0313, Revision 01, dated April 27, 1999, per a method approved by either the Manager, International Branch, ANM-116, or the DGAC (or its delegated agent), terminates 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. 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.
The subject of this AD is addressed in French airworthiness directive 2000-261-312(B), dated June 28, 2000.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This proposal would require inspection of landing gear parts and/or their records to see that parts have serial numbers and that each part's number of flight cycles has been tracked; assignment of serial numbers and flight cycle use numbers if necessary; and removal of individual landing gear components from service when they reach their life limit. This action is necessary to prevent failure of landing gear parts, which could lead to landing gear collapse. This action is intended to address the identified unsafe condition.
Comments must be received by October 12, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-343-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
James Blilie, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2131; fax (425) 227-1181.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-343-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-343-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports that a check by the manufacturer of the list of Model 737 series airplane main and nose landing gear life-limited parts revealed that some life-limited parts were not included on the list. Those life-limited parts have now been added to the 737 Main Landing Gear and Nose Landing Gear Components Interchangeability Lists (drawings). Failure to remove “safe life” parts at their life limit could result in failure of landing gear parts, which could lead to landing gear collapse.
The FAA has reviewed and approved Boeing Service Bulletin 737-32-1322, dated September 30, 1999, which describes procedures for examining records and/or landing gear parts to verify that parts identified in this service bulletin have serial numbers on them; for assigning and marking serial numbers on parts if necessary; for examining records to find out if flight cycles for the landing gear parts identified in this service bulletin have been tracked; for assigning a number of flight cycles to parts for tracking purposes, if necessary; and for removing landing gear parts from service when they reach their life limit. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.
Boeing Service Bulletin 737-32-1322, dated September 30, 1999, refers to Boeing Drawing 65C73761—737 Main Landing Gear Components Interchangeability List, and Boeing Drawing 65C73762—737 Nose Landing Gear Components Interchangeability List, as additional sources of service information for accomplishment of the removal of landing gear parts from service when they reach their life limit.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.
Operators should note that, although the service bulletin recommends that the serial numbers assigned to parts must be different for each part, it does not define a process to ensure that duplicate serial numbers will not be issued. This proposal would require that the serialization of those parts' numbers be accomplished per a method approved by the FAA.
There are approximately 3,132 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,099 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $65,940, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative,
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (g) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent failure of landing gear parts, which could lead to landing gear collapse, accomplish the following:
(a) During the next gear overhaul, or within 10 years from the effective date of this AD, whichever occurs later, examine records and/or landing gear parts in accordance with Boeing Service Bulletin 737-32-1322, dated September 30, 1999, to determine whether parts have serial numbers and whether the number of flight cycles for each part has been tracked. If landing gear parts have serial numbers in accordance with Boeing Service Bulletin 737-32-1322, dated September 30, 1999, and the number of flight cycles has been tracked, no further action is necessary for paragraphs (a), (b), or (c) of this AD.
(b) If any part examined as mandated in paragraph (a) of this AD does not have serial numbers, during the next gear overhaul, or within 10 years from the effective date of this AD, whichever occurs later, assign serial numbers to those parts using a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, and mark them on the parts in accordance with Boeing Service Bulletin 737-32-1322, dated September 30, 1999.
(c) If flight cycles for any part examined as mandated in paragraph (a) of this AD have not been tracked, during the next gear overhaul, or within 10 years from the effective date of this AD, whichever occurs later, assign a number of lifetime flight cycles to that part in accordance with Part 2. B. of the Accomplishment Instructions of Boeing Service Bulletin 737-32-1322, dated September 30, 1999.
(d) When any landing gear part has reached its life limit number of flight cycles, as described in Part 2. B. of the Accomplishment Instructions of Boeing Service Bulletin 737-32-1322, dated September 30, 1999, remove that part from service.
(e) As of the effective date of this AD, no person shall install on any airplane a landing gear part unless it has been assigned a serial number and a lifetime flight cycle number in accordance with the requirements of this AD.
(f) As of the effective date of this AD, no person shall install on any airplane a landing gear part that has reached its life limit of flight cycles, in accordance with Boeing Service Bulletin 737-32-1322, dated September 30, 1999.
(g) 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.
(h) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Short Brothers Model SD3 series airplanes. This proposal would require repetitive tests (checks) of the power lever movement of the fuel control unit (FCU) lever to ensure the lever is contacting the maximum stop, adjustment of the FCU rigging, if necessary; and an engine ground run for correct gas generator rotational speed. This proposal also would require a static reduced power check on each engine to ensure correct operation of the reserve takeoff power (RTOP) system; and follow-on actions, if necessary. This action is necessary to prevent failure of the engines to reach adequate RTOP boost during takeoff, which could result in reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by September 27, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-
The service information referenced in the proposed rule may be obtained from Short Brothers, Airworthiness & Engineering Quality, P.O. Box 241, Airport Road, Belfast BT3 9DZ, Northern Ireland. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-113-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-113-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified the FAA that an unsafe condition may exist on certain Short Brothers Model SD3 series airplanes. The CAA advises that during Certificate of Airworthiness Renewal Flight Tests on these airplanes, the engines failed to reach the Reserve Takeoff Power (RTOP) boost specified in the Airplane Flight Manual. The cause of this failure is unknown; however, a contributing factor could be reduced fuel flow to the engines. If the engines fail to reach adequate RTOP boost during takeoff, the flightcrew may experience problems maintaining control of the airplane in flight.
The manufacturer has issued Shorts Service Bulletins SD3 SHERPA-71-2, SD360 SHERPA-71-2, SD360-71-19, and SD330-71-24; all dated February 5, 2001. The service bulletins describe procedures for repetitive tests (checks) of the power lever movement of the fuel control unit (FCU) lever to ensure the lever is contacting the maximum stop, adjustment of the FCU rigging, if necessary, and an engine ground run to ensure correct gas generator rotational speed is achieved. The service bulletins also describe procedures for a static reduced power check on each engine to ensure correct operation of the reserve takeoff power (RTOP) system; and follow-on actions if the system fails to provide adequate boost. These actions include, but are not limited to, the following:
• A functional check of the RTOP solenoid,
• Replacement of any defective RTOP solenoid with a new solenoid,
• Adjustment of the RTOP system,
• Adjustment to the torque of the FCU Ng servo valve,
• Test for leakage or restrictions of the FCU pnuematic system, and/or
• Overhaul of the FCU.
Additionally, Shorts Service Bulletin SD330-71-24 describes procedures for repetitive tests (checks) of the FCU to ensure correct rigging, and adjustment, if necessary.
Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.
The CAA classified these service bulletins as mandatory and issued British airworthiness directives 002-02-2001, 003-02-2001, 004-02-2001, and 005-02-2001 in order to assure the continued airworthiness of these airplanes in the United Kingdom.
These airplane models are manufactured in the United Kingdom and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously.
The FAA estimates that 46 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 3 work hours per airplane to accomplish the proposed tests (checks), and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $8,280, or $180 per airplane.
The cost impact figure discussed above is based on assumptions that no
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent failure of the engines to reach adequate reserve takeoff power (RTOP) boost during takeoff, which could result in reduced controllability of the airplane, accomplish the following:
(a) Within 100 flight cycles or 90 days after the effective date of this AD, whichever comes later: Do a test (check) of the power lever movement of the fuel control unit (FCU) lever to ensure the lever is contacting the maximum stop, and adjustment of the FCU rigging if the lever is not contacting the stop; an engine ground run for correct gas generator rotational speed, and a static reduced power check on each engine to ensure correct operation of the RTOP system; per Shorts Service Bulletin SD3 SHERPA-71-2, SD360 SHERPA-71-2, SD360-71-19, or SD330-71-24; all dated February 5, 2001; as applicable. Before further flight, do any follow-on actions necessary (includes a functional check of the RTOP solenoid, replacement of any defective RTOP solenoid with a new solenoid, adjustment of the RTOP system if system fails to provide adequate boost, adjustment to the torque of the FCU Ng servo valve, test for leakage or restrictions of the FCU pneumatic system, or overhaul of the FCU), per the applicable service bulletin. Repeat the tests (checks) after that at intervals not to exceed 90 days.
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, 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.
(c) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in British airworthiness directives 002-02-2001, 003-02-2001, 004-02-2001, and 005-02-2001.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This action proposes to establish Class E airspace at Easton, MD. The development of a Standard Instrument Approach Procedure (SIAP) based on the Global Positioning System (GPS) Helicopter Point in Space approach at Easton Memorial Hospital Heliport, Easton, MD has made this proposal necessary. Sufficient controlled airspace extending upward from 700 feet Above Ground Level (AGL) is needed to contain aircraft executing an instrument approach. The area would be depicted on aeronautical charts for pilot reference.
Comments must be received on or before September 27, 2001.
Send comments on the proposal in triplicate to: Manager, Airspace Branch, AEA-520, Docket No. 01-AEA-22, Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809.
The official docket may be examined in the Office of the Regional Counsel, AEA-7, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809. An informal docket may be examined during normal business hours in the Airspace Branch, AEA-520, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809.
Mr. Francis T. Jordan, Jr., Airspace 11434-4809; telephone: (718) 553-4521.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 01-AEA-22.” The postcard will be date/time stamped and returned to the commenters. All communications received on or before the closing date for comments will be considered for taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket both before and after the closing date for comments. A report summarizing each substantive public contact with the FAA personnel concerned with this rulemaking will be filed in the docket.
Any person may obtain a copy of this Notice of Proposed Rulemaking (NPRM) by submitting a request to the Office of the Regional Counsel, AEA-7, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica, NY, 11434-4809. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRMs should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.
The FAA is considering an amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) to establish Class E airspace area at Easton Memorial Hospital Heliport. Class E airspace designations for airspace areas extending upward from 700 feet AGL are published in Paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally curernt. Therefore, this proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979) and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that would only affect air traffic procedures and air navigation, it is certified that this proposed rule would not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9H, Airspace Designations and Reporting Point, dated September 1, 2000, and effective September 16, 2000, is proposed to be amended as follows:
That airspace extending upward from 700 feet above the surface within a 6 mile radius of the point in space for the SIAP to the Easton Memorial Hospital Heliport, Easton, MD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This action proposed to establish Class E airspace at White Marsh, MD. The development of an Area Navigation (RNAV), Standard Instrument Approach Procedure (SIAP) Helicopter Point in Space approach at Peninsula Regional Medical Center Heliport, White Marsh, MD has made this proposal necessary. Sufficient controlled airspace extending upward from 700 feet Above Ground Level (AGL) is needed to contain aircraft executing an instrument approach. The area would be depicted on aeronautical charts for pilot reference.
Comments must be received on or before September 27, 2001.
Send comments on the proposal in triplicate to: Manager, Airspace Branch, AEA-520, Docket No. 01-AEA-23, Eastern Region, 1 Aviation Plaza, Jamaica NY 11434-4809.
The official docket may be examined in the Office of the Regional Counsel, AEA-7, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica NY 11434-4809. An informal docket may also be examined during normal business hours in the Airspace Branch, AEA-520, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica NY 11434-4809.
Mr. Francis T. Jordan, Jr., Airspace specialist, Airspace Branch, AEA-520, Eastern Region, 1 Aviation Plaza, Jamaica NY 11434-4809; telephone: (718—553-4521.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, economic, environmental and energy-related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 01-AEA-23”. The postcard will be date/time stamped and returned to the commenter. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposal contained in their action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket both before and after the closing date for comments. A report summarizing each substantive public contact with the FAA personnel concerned with this rulemaking will be filed in the docket.
Any person may obtain a copy of this Notice of Proposed Rulemaking (NPRM) by submitting a request to the Office of the Regional Counsel, AEA-7, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica NY 11434-4809. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRMs should also request a copy of Advisory Circular No. 11-2A which describes the application procedure.
The FAA is considering an amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) to establish Class E airspace area at Peninsula Regional Medical Center Heliport. Class E airspace designations for airspace areas extending upward from 700 feet AGL are published in Paragraphs 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979) and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that would only affect air traffic procedures and air navigation, it is certified that this proposed rule would not have significant economic impact on a substantial impact on a substantial number of small entities under the criter of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (aid).
In consideration of the foregoing, the Federal Aviation Administration proposed to amend 14 CFR Part 71 as follows:
1. The authority citation for 14 CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, is proposed to be amended as follows:
That airspace extending upward from 700 feet above the surface within a 6 mile radius of the point in space for the SIAP to the Peninsula Regional Medical Center Heliport, White March, MD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This action proposes to establish Class E airspace at Leonardtown, MD. The development of a Standard Instrument Approach Procedure (SIAP) based on the Global Positioning System (GPS) Helicopter Point in Space approach at St. Mary's Hospital Heliport, Leonardtown, MD has made this proposal necessary. Sufficient controlled airspace extending upward from 700 feet Above Ground Level (AGL) is needed to contain aircraft executing an instrument approach. The area would be depicted on aeronautical charts for pilot reference.
Comments must be revised on or before September 27, 2001.
Send comments on the proposal in triplicate to: Manager, Airspace Branch, AEA-520, Docket No. 01-AEA-21, Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809.
The official docket may be examined in the Office of the Regional Counsel, AEA-7, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809. An informal docket may also be examined during normal business hours in the Airspace Branch, AEA-520, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809.
Mr. Francis T. Jordan, Jr., Airspace Specialist, Airspace Branch, AEA-520 Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809; telephone: (718) 553-4521.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Comments wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 01-AEA-21”. The postcard will be date/time stamped and returned to the commenter. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket both before and after the closing date for comments. A report summarizing each substantive public contact with the FAA personnel concerned with this rulemaking will be filed in the docket.
Any person may obtain a copy of this Notice of Proposed Rulemaking (NPRM) by submitting a request to the Office of the Regional Counsel, AEA-7, F.A.A. Eastern Region, 1 Aviation Plaza, Jamaica, NY, 11434-4809. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRMs should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.
The FAA is considering an amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) to establish Class E airspace area at St. Mary's Hospital Heliport. Class E airspace designations for airspace areas extending upward from 700 feet AGL are published in Paragraph 6005 of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that would only effect air traffic procedures and air navigation, it is certified that this proposal rule would not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for 14 CFR Part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, is proposed to be amended as follows:
That airspace extending upward from 700 feet above the surface within a 6 mile radius of the point in space for the SIAP to the St. Mary's Hospital Heliport, Leonardtown, MD.
Office of Secretary, DOT.
Notice of proposed rulemaking.
The Department of Transportation is considering modifying the T-100/T-100(f) Traffic Reporting System. Joint-service operations would be reported by the operating carrier. Small certificated, commuter, and all-cargo air carriers would report their air traffic activity under the T-100 Traffic Reporting System instead of Form 298-C Schedules A-1, E-1, and T-1; and Form 291-A. The current T-100 Reporting System would be modified to require U.S. carriers to report the detailed market and segment information for all their military, domestic all-cargo, and domestic charter flights. The Form 41 Supplemental T-1, T-2, and T-3 schedules would be eliminated. Foreign air carriers would be required to report on the T-100(f) all flights to/from the United States thus, eliminating the small aircraft reporting exclusion. The Department would require U.S. carriers to submit total aircraft hours for each reported aircraft type, fuel consumed by aircraft type and aircraft days assigned to service. Currently, there is a lack of market and segment data for domestic all-cargo, domestic charter and small aircraft operations. The proposed changes are designed to fill the data gaps for these rapidly growing segments in the air transportation industry.
Comment Deadline: November 26, 2001.
Submit written, signed comments to the docket that appears in the heading of this document to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street SW., Washington DC 20590-0001. All comments received will be available for examination at the above address from
Bernard Stankus or Clay Moritz, Office of Airline Information, K-25, Bureau of Transportation Statistics, Department of Transportation, 400 Seventh Street, SW, Washington, DC, 20590-0001, (202) 366-4387 or 366-4385, respectively. They may also be contacted by e-mail at clay.moritz@bts.gov or bernard.stankus@bts.gov or by fax at (202) 366-3383.
An electronic copy of this document may be downloaded by using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Services at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at:
This notice of proposed rulemaking (NPRM) is part of a joint effort by the Bureau of Transportation Statistics (BTS) and the Office of the Secretary (OST) to conduct a broad-based review of the requirements for aviation data and to modernize the way BTS collects, processes, and disseminates aviation data. As a first step in this review, BTS and OST's Office of the Assistant Secretary for Aviation and International Affairs jointly issued an advance notice of proposed rulemaking (ANPRM) (July 15, 1998, 63 FR 28128). The Department solicited comments on the nature, scope, source, and means for collecting, processing, and distributing airline information. The ANPRM covered the Bureau's major data systems, including those providing traffic, fare, and financial data. The Department invited comments about whether existing aviation data collections should be amended, supplemented, or replaced; whether selected forms and reports should be retained, modified, or eliminated; whether aviation data should be filed electronically; and how the aviation data systems should be re-engineered to enhance efficiency and reduce costs for both the Department and airline industry. The Department has subsequently been conducting additional outreach and research activities to further assess data requirements and how the data reporting and processing systems can be improved.
The ANPRM and subsequent outreach and program analysis has taken a very broad approach, examining not only the types of traffic, fare, and financial information that should be collected, but also the sources of the data and how the data should be collected and processed. The BTS believes it will be more practical and manageable to proceed with this rulemaking to correct immediate deficiencies addressing a distinct aspect of the overall review.
This proposed rule deals with the types of market and segment data BTS should collect and from what sources. BTS believes this is an appropriate topic because the changes being proposed will meet several of the Department's immediate needs. Support for these changes has also been expressed by several commenters.
In response to the ANPRM, approximately 45 comments were received from various U.S. and foreign air carriers, airport operators, trade associations, labor organizations, and airline consultants. Many suggestions were made on how to improve aviation data by collecting more relevant data, and by using advanced information technologies. Specifically, the commenters identified immediate needs to collect market and segment data on domestic charter and all-cargo services from all U.S. air carriers, and market and segment data from foreign air carriers for operations conducted with small aircraft. Currently, large certificated air carriers do not provide either market or segment data for domestic charter and domestic all-cargo services. Small certificated and commuter air carriers report their traffic statistics under the less sophisticated Form 298-C reporting system. Part 291 all-cargo carriers do not report market or segment data. Foreign carriers do not report operations with small aircraft (60 seats or less or 18,000 pounds of payload capacity or less).
In the current Schedule T-100 reporting system, large U.S. certificated carriers report detailed nonstop segment and on-flight market data for scheduled domestic passenger/cargo service; international scheduled passenger/cargo service, international scheduled all-cargo service; and international charter service for passengers and/or cargo. Detailed data for military service and domestic charter service and domestic all-cargo services are not reported in the nonstop segment and on-flight market records.
The detailed nonstop segment data that are currently reported includes the following items:
The detailed on-flight market data that are currently reported include the following items:
If the Department collected detailed nonstop segment and on-flight market data for all types of flight operations, the Department would be able to calculate from the segment and market records the following data items for all reporting air carriers:
American Airlines, Airport Council International-North American (ACI-NA), Port of Portland; Metropolitan Washington Airports Authority; John F. Brown Company, Unisys; and the Allied Pilots Association recommended that carriers identify the marketing partner for joint-service operations. Comments from Air New Zealand, Britannia, Lufthansa, and Qantas indicated that foreign air carriers do not use data reported to the US Department of
The Department proposes that joint-service operations would be reported by the operating carrier. This is a change from the current practice that requires the carrier taking the economic risk for the operation to report the operation. This reporting system served the industry well in the past. Most joint-service arrangements were short-term wet-lease or substitution-of-service operations. A wet-lease operation is where one air carrier leases an aircraft with flight crew to another air carrier. The proliferation of various types of joint-service arrangements has, however, created confusion concerning the interpretation of which carrier is taking the economic risk. For example, there are at least three different types of code-share arrangements between major carriers and commuter air carriers: (1) An arrangement where the major carrier pays the commuter carrier based on block-hours flown; (2) the traditional arrangement where the major carrier pays the commuter carrier for each passenger or cargo unit transported; and (3) an arrangement that reflects some combination of the previous two arrangements. In example (1), the major carrier is taking the economic risk. In example (2), the commuter air carrier is taking the economic risk. In example (3), there is a joint risk between the commuter and the major air carrier. Although these three arrangements appear the same to the Federal Aviation Administration (FAA), the traveling public, and aviation analysts, they are reported differently. BTS would have to have knowledge of the underlying economic agreement to understand which air carrier should report the traffic and operating statistics. Moreover, there is not a consensus among the Federal Government, the carriers, and aviation analysts as to which carrier should report. The FAA and National Transportation Safety Board (NTSB) prefer reporting by the operating air carrier. NTSB needs exposure data from operating carriers. Exposure data are the rate of incidents, accidents, or deaths per departure, aircraft hours, or revenue passenger-miles for the various operating segments of the airline industry. These statistics assist NTSB in identifying problem areas and performing trend analyses. The FAA needs the departure and aircraft hours from the operating carrier for assigning safety inspectors.
While BTS recognizes that there is a burden placed on carriers in implementing a reporting change, it is also aware of the increasing diversity in the makeup of code-share agreements within the air transportation industry. Code-sharing has become more widespread in both interstate and foreign air transportation. Congress has urged the DOT to analyze more thoroughly the effects of international code-sharing on air transportation in general and U.S. air carriers in particular. The reporting changes proposed by this rulemaking would produce more consistent data on international and domestic code-share flights. In the United States, regional carrier service is growing as major carriers are handing over more service to their code-share partners. The level of service to small communities can be affected by code-sharing. This creates a need for DOT to monitor the impact of code sharing on the affected communities. Because of these factors, the Department, the FAA and NTSB require data on the air carriers actually operating the aircraft under joint-service agreements.
This need for international and purely domestic code-share data, coupled with the fact many international passengers interline on domestic code-share flights, adds an urgency to the Department's need to collect information on the operating carriers for both international and domestic operations. The new reporting scheme would simplify data analysis on both an industry-wide and individual air carrier basis.
The Department agrees with the comments that stated the data would have increased utility if both the operating and marketing carriers were identified in the Schedule T-100 reports. However, the Department believes that the added reporting burden, especially to small certificated and commuter air carriers, outweighs the data analysis benefits of dual carrier reporting. The lack of marketing carrier data in the T-100 data base is mitigated by the fact knowledgeable analysts can use T-100 data in conjunction with passenger origin-destination survey data to identify marketing carriers over various routes.
There was strong support among the comments submitted to expand T-100 reporting of detailed nonstop segment and on-flight market to include the reporting of domestic charter and all-cargo operations. The following parties recommended that U.S. carriers report segment and market data for either domestic all-cargo or charter operations:
BTS is proposing that the T-100 Reporting System be amended to require carriers to report nonstop segment and on-flight market information for domestic all-cargo, domestic charter, and domestic and international military operations. Historically, these data have not been reported in detail. Instead, the air carriers were required to submit, by geographic entity, supplemental Form 41 Schedules T-1, T-2, and T-3 for domestic all-cargo, domestic charter, and domestic and international military operations. The supplemental Schedule T-2 also contains some data elements for the carrier's overall or system operation.
BTS believes that the proposal to report nonstop segment and on-flight market data in detail for all domestic all-cargo, domestic charter, and domestic and international military operations will not significantly increase carrier reporting burden. In most instances, reporting burden would actually decrease because the supplemental Schedules T-1, T-2, and T-3 would be eliminated. The Department would be able to eliminate the supplemental schedules because it would be able to calculate most of the data elements currently reported on the supplemental schedules from the proposed air carriers' more detailed T-100 reports. BTS, however, would still require air carriers to report three data elements: Total aircraft hours by aircraft
Listed below are the data elements of Schedules T-1, T-2, and T-3, which the Department is proposing to eliminate. Schedule T-1 is a monthly summarization of the following service classes and data elements:
BTS would be able to calculate, using the detailed T-100 nonstop segment and on-flight market records, almost all the data elements that are reported on Schedules T-1, T-2, and T-3. By proposing to collect the data elements of total aircraft hours (revenue aircraft hours plus nonrevenue aircraft hours), aircraft days assigned to service—carrier routes, and aircraft fuels issued (gallons) by aircraft type to the quarterly Form 41 Schedule P-2, BTS would collect all the remaining data items that are currently reported on Schedules T-1, T-2, and T-3. Overall, this should result in a decrease in total U.S. air carrier reporting burden.
For the first time, the Department, the airlines, airports, travelers, and shippers would have traffic flow data for domestic all-cargo and charter operations. Currently, carriers report only enplanement data and operational statistical data for these operations. Because of this, you cannot determine the destination for domestic all-cargo and charter traffic. With the additional data, the FAA and airports would have access to traffic flow information that can be used to enhance the accuracy and reliability of traffic forecasting, asset management, and infrastructre planning.
The following parties suggested that BTS collect data from foreign air carrier services operated with regional jets or small aircraft:
While there were no specific objections raised by the submitted comments against foreign air carriers being required to report small aircraft operations, Air New Zealand, Britannia, Lufthansa, and Qantas all made general comments that the Department should not take any action to increase reporting burden on foreign air carriers. It should be noted that these four carriers do not operate small aircraft to the United States and thus would not be effected by the proposed change in reporting.
Given the proliferation of regional jet aircraft in trans-border Canada service, the current intense level of competition in the marketplace, the maturity of the industry, and the advances in information technology, the absence of data for this segment of the air transportation industry accounts for a significant adverse gap in the Department's ability to perform industry analyses. To close this gap, the Department is proposing to eliminate the provision that allows foreign air carriers to exclude segment and market data for aircraft operations conducted wholly with small aircraft. Currently, foreign air carriers are required to report only operations conducted with large aircraft, which are defined as aircraft with over 60 seats or over 18,000 pounds of payload capacity.
Foreign air carriers have increasingly replaced large aircraft with regional jet aircraft for many trans-border operations. Regional jets now account for a significant number of trans-border enplanements. Regional jets have also replaced large aircraft on some longer haul routes, such as Ottawa-Washington. When regional jets are substituted for large jet aircraft, operations that were once included on Schedule T-100(f) now go unreported further widening the data gap. As the use of the regional jet becomes even more prevalent, the absence of data will increase the volume of market traffic-flow information that is either incomplete or nonexistent.
Air Canada may conduct the highest number of small aircraft operations to the United States. The carrier has communicated to the Department that it is cumbersome to identify and then exclude statistics for small aircraft in their T-100(f) submissions.
The Federal Aviation Administration uses enplanement data for U.S. airports to distribute the annual Airport Improvement Program (AIP) entitlement funds to eligible primary airports. U.S. airports receiving significant service from foreign air carriers operating small aircraft could be receiving less than their fair share of AIP entitlement funds. Collecting Schedule T-100(f) data for small aircraft operations will enable the FAA to more fairly distribute these funds.
The growth of international marketing alliances has created a vital need for more accurate information in the international arena. Virtually all airports use Schedules T-100 and T-100(f) data for ongoing marketing initiatives, traffic forecasting, assessing infrastructure needs, and analyzing competition. Gaps in these data systems could undermine an airport's ability to effectively perform these functions.
Comments proposing that small certificated and commuter air carriers be placed under the T-100 Reporting System were received from the following parties:
While not specifically supporting T-100 reporting, the Department of Defense strongly recommended that small certificated and commuter air
The Regional Airline Association stated that it believes the current traffic reporting regulations for small certificated and commuter air carriers are out of step with the current operating environment for regional airlines. Form 298-C traffic reporting causes the under-reporting of passenger enplanements.
Because small certificated and commuter air carriers currently report only the points where passengers enter and exit their systems, meaningful enplanement and traffic flow data are lost. For instance, Comair has a hub-and-spoke system with the hub being Cincinnati. There were years when Comair would transport hundreds of thousands of passengers from outlying spoke cities through Cincinnati to other outlying spoke cities. The Form 298-C Schedule T-1 report would correctly show zero enplanements at Cincinnati for these spoke-to-spoke operations, even though the passengers changed flights at Cincinnati. The FAA was unable to use the “official” BTS passenger enplanements at Cincinnati for distributing AIP funds. Cincinnati is not the only airport where enplanements are undercounted. All airports, where small certificated and commuter air carriers have established hub operations, have been adversely affected by undercounted passenger enplanements. Undercounting passenger enplanements at hub airports also makes it difficult for airports to assess their infrastructure needs, and for the FAA and the airports to audit the Passenger Facility Charges that should be remitted to the airports. The non-reporting of intermediate points also makes it difficult to analyze traffic flows and forecast traffic trends.
Small certificated and commuter air carriers now submit Form 298-C Report of Financial and Operating Statistics. Form 298-C is comprised of the following five schedules:
• A-1 Report of Flight and Traffic Statistics in Scheduled Passengers Operations.
• E-1 Report of Nonscheduled Passenger Enplanements by Small Certificated Air Carriers.
• F-1 Report of Financial Data.
• F-2 Report of Aircraft Operating Expenses and Related Statistics.
• T-1 Report of Revenue Traffic by On-Line Origin and Destination.
Small certificated air carriers submit all five schedules. Commuter air carriers submit Schedules A-1, F-1, and T-1. Small certificated air carriers are carriers certificated under 49 U.S.C. § 41102 that operate “small aircraft” with 60 seats or less or 18,000 pounds of payload capacity or less. Commuter air carriers are air taxis that operate at least five round trips a week in scheduled passenger service on at least one route between two or more points using small aircraft.
The Department proposes to eliminate the Form 298-C, Schedules A-1, E-1 and T-1. The nine data elements of Schedule A-1 are:
Schedule E-1 is the source for nonscheduled passenger enplanements by airport. There is no information concerning the destination airport.
Schedule T-1 is the source for an air carrier's on-line origin and destination of its passengers. On-line origin is the airport where a passenger enters a carrier's system. On-line destination is the airport where a passenger exits that carrier's system. Intermediate points or connecting points are not reported under this system.
The Department proposes to replace Form 298-C traffic reporting with T-100 reporting. Under this proposal, the Department would provide small certificated and commuter air carriers with software for T-100 reporting. While carriers would not be required to use the BTS software, they would be required to submit the data in an electronic format that would enable BTS to download the data submission into its data base.
There are a number of advantages that would result from moving small certificated and commuter air carriers to the T-100 system. The proposed reporting changes would result in: (1) A unified traffic reporting system; (2) small certificated and commuter air carriers would report traffic movements for intermediate points; (3) the FAA would have the airport enplanement data it needs for distributing AIP funds, auditing the collection of Passenger Facilities Charges, and forecasting future traffic trends and movements; and (4) airports would have data for analyzing traffic flows and infrastructure needs.
On the downside, on-line origin-destination passenger data would not be available from small certificated and commuter air carriers. Schedule T-100 is designed to track aircraft movements. We would have information on where a passenger got on and off a particular flight rather than where the passenger got on and off a particular carrier's route network. The Passenger Origin-Destination Survey (Survey) compliments the T-100 System by tracking individual passenger itineraries. Form 298-C Schedule T-1 tracks where passengers enter and exit a carrier's route system. Under the proposed reporting, on-line origin-destination data would be lost when a passenger changes flights within a small certificated or a commuter air carriers' route networks. Small certificated and commuter air carriers do not submit Survey data; therefore, origin-destination data would only be available from those passengers that interline onto a carrier that is required to submit Survey data.
Outweighing this downside is the fact that a unified data base of all U.S. air carriers' traffic would be available for the first time. This would simplify traffic data research and analysis. The BTS publications Air Carrier Traffic Statistics Monthly and the annual Airport Activity Statistics of Certificated Air Carriers could easily be expanded to include traffic from small certificated and commuter air carriers. The lack of a combined traffic data base has historically inhibited traffic analyses. This is especially true at the nation's largest airports where small certificated and commuter air carriers provide important feed traffic to the nation's major air carriers.
Another gap in the Department's aviation data base is in the segment of operations conducted by domestic all-cargo carriers that operate under 49 U.S.C 41103. Currently, these carriers submit the annual Form 291-A, Statement of Operations and Statistics Summary for Section 41103 Operators, which has the following data elements:
Section 41103 carriers report no market, segment, or enplanement data
The Department also proposes to require domestic all-cargo carriers to report the monthly Schedule P-12(a) Fuel Consumption by Type of Service and Entity. The Environmental Protection Agency (EPA) has identified fuel consumption by domestic all-cargo carriers as a major data gap in its analysis of aviation fuel usage. The collection of Schedule P-12(a) is needed to improve the accuracy of governmental analyses of fuel consumption.
The Department has encouraged carriers to use advanced information technologies to submit their reports to BTS. To avoid a multitude of file formats that could lead to inefficiencies in processing, this NPRM proposes to adopt a standard length of fields for submission of personal computer (PC) generated reports. The field descriptions and field lengths will be identical to the fields currently prescribed for magnetic tape/cartridge submissions. Submitters would separate fields by using commas or tabs (comma delimited ASCII or tab delimited ASCII format). The Department would accept alternative formats after prior approval of the Bureau of Transportation Statistics Assistant Director—Airline Information.
The National Air Transportation Association (NATA) stated that there is a definite lack of data on the on-demand air charter industry. The National Transportation Safety Board (NTSB) requested that the Department collect airborne hours, departures, enplanements, and revenue passenger-miles for such operations. The Department agrees with NATA and NTSB that there is a need for data from on-demand operators; however, the Department believes Schedule T-100 is not the appropriate vehicle for collecting this type of information. The Office of Airline Information would not, on a monthly basis, be able to properly edit and process detailed traffic reports from thousands of on-demand operators. Rather, the Department believes there should be a separate rulemaking to address the issue of collecting data from on-demand air taxis.
American Airlines commented that the utility of Schedule T-100 data would increase if the data were reported by flight number. While the Department agrees with American, the Department is prohibited by 49 U.S.C. 329(b)(1) from collecting passenger data by flight number. If this law is changed in the future, the Department could revisit this issue.
There was no unanimity amongst parties on the issue of collecting citizenship data. Airport operators (ACI-NA, Los Angeles, Norfolk, Oakland, Portland and Wayne County), aviation consulting firms (J. F. Brown, Roberts & Roach, R.W. Mann, Unisys), American Airlines, Saab, and the Allied Pilots were all in favor of collecting citizenship data. Opposed to collecting and reporting citizenship data were Air New Zealand, Britannia, Continental, Lufthansa, Northwest, Qantas, United, and the City of Chicago. Delta and US Airways took a neutral position. Both carriers acknowledged that citizenship data are useful information, although US Airways stated that the data were not a critical need for air carriers. Both Delta and US Airways recommended a cost/benefit analysis before proceeding with a rule requiring submission of the data. The other carriers opposed to the submission of citizenship data were concerned with the cost burdens associated with a data base, which they believe would be of limited or no value to the reporting air carriers.
BTS agrees with US Airways' assessment that citizenship data are nice to have but not critical to the Department's needs. Some citizenship data are already collected by other Federal Agencies. Given the strong opposition by some carriers and the costs associated with the collection of citizenship data, BTS is proposing not to collect citizenship data at this time.
A regulatory evaluation was placed in the Docket OST 98-4043. We welcome comments on the evaluation.
The costs of this proposed rule are the expenses incurred in making the necessary changes to air carrier information gathering systems. These include: (1) The expense for small certificated, commuter, and all-cargo air carriers to report their air traffic activity under the T-100 Traffic Reporting System; (2) the expense to modify U.S. carriers' reporting systems to provide the detailed market and segment information for all their military, domestic all-cargo, and domestic charter flights; (3) the expense to all-cargo air carriers to report monthly traffic and fuel consumption data; and (4) the expense to foreign air carriers to include small aircraft operations to/from the United States in their monthly submissions.
BTS believes the costs mentioned above are minor costs because all the information requested should be readily available to the affected air carriers. Mitigating the cost of compliance to the air carriers is the fact the Department will supply the carriers with T-100 reporting software that carriers may use at their discretion. We request carriers to supply detailed estimates of their projected costs.
U.S. carriers would be relieved of the burden of submitting the supplemental Schedules T-1, T-2, and T-3. Small certificated and commuter air carriers would be relieved of the burden of reporting Form 298-C Schedules A-1 and T-1. Small certificated air carriers would be relieved of the burden of reporting Form 298-C Schedule E-1.
The Department, other federal agencies, state and local governments, the airline industry, academia, and the public would benefit from the collection of improved aviation data such as: (1) Detailed segment and market data for domestic all-cargo operations, (2) enplanement statistics for intermediate
This proposed rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, is not subject to review by the Office of Management and Budget.
This rule is not considered significant under the regulatory policies and procedures of the Department of Transportation (44 FR 11034). The rule will not result in any unfunded mandate to state, local or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. The purpose of the rule is to improve the accuracy and utility of reported traffic data. This objective is achieved by amending 14 CFR 217, 241, 291 and 298 to require market and segment data for all operations and the collection of traffic statistics from operating air carriers.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12612 (“Federalism”) and the BTS has determined the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
I certify this proposed rule will not have a significant economic impact on a substantial number of small entities. The Department has classified air carriers operating aircraft with 60 seats or less, or 18,000 pounds or less of payload capacity as small entities. Approximately 90 small air carriers would be impacted by this proposal.
Although the proposed rule amends the reporting requirements for small air carriers, any increase in reporting burden should be minimal. To reduce the impact on small businesses, the Bureau of Transportation Statistics will supply all affected carriers with software to facilitate their reporting of the required traffic data; and the Form 298-C traffic schedules will be eliminated. The Department recognizes that most changes in reporting formats generally cause an initial increase in reporting burden due to a need to familiarize staff with a revised reporting system. After carrier staff become proficient with the new software, carrier reporting burden may be less under the T-100 System than if carriers continued to file Form 298-C traffic reports.
The Regional Airline Association (RAA), which represents small airline companies, has commented that the current traffic reporting system for small operators is both inappropriate and inconsistent. We believe that this proposal addresses RAA's concerns. The Department welcomes RAA's comments, along with those of small operators, on the proposal.
The Bureau of Transportation Statistics has analyzed the proposed amendments for the purpose of the National Environmental Protection Act. The proposed amendments will not have any impact on the quality of human environment.
The reporting and recordkeeping requirements associated with this proposed rule are being sent to the Office of Management and Budget in accordance with 44 U.S.C. Chapter 35 under OMB No: 2138-0040.
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 2139-AA08 contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Air carriers, Reporting and recordkeeping requirements.
Air carriers, Reporting and recordkeeping requirements, Uniform System of Accounts.
Administrative practice and procedure, Air carriers, Freight, Reporting and recordkeeping requirements.
Air taxis, Reporting and recordkeeping requirements.
Accordingly, the Bureau of Transportation Statistics, under delegated authority pursuant to 49 CFR part 1, proposes to amend chapter H of 14 CFR, as follows:
1. The authority citation for Part 217 would continue to read as follows:
49 U.S.C. 329 and chapters 41301, 41310, 41708.
2. Section 217.1 would be amended by removing the definitions for
3. Section § 217.2 would be revised to read as follows:
This part applies to foreign air carriers that are authorized by the Department to provide civilian passenger and/or cargo service to or from the United States, whether performed pursuant to a permit or exemption authority.
4. Appendix to § 217.10 would be amended as follows:
a. Revise paragraph (a)(2);
b. Revise paragraph (f)(1)(i);
c. Revise paragraph (g)(1)(ii); and
d. Revise paragraph (i)(2).
The revisions read as follows:
Appendix to Section 217.10 of 14 CFR Part 217—Instructions to Foreign Air Carriers for Reporting Traffic Data on Form 41 Schedule T-100(F)
(a) * * *
(2)
(f) * * *
(1) * * *
(i) Reporting medium. ADP data submission must be on IBM compatible disks. Carriers using mainframe or minicomputers shall download (transcribe) to the required IBM compatible disk. Carriers wishing to use a different ADP procedure or e-mail must obtain written approval to do so from the BTS Assistant Director—Airline Information under the waiver provisions in 217.9. Request for approval to use alternative methods must disclose the proposed data transmission methodology.
(g) * * *
(1) * * *
(ii) Line A-2 Report date. This is the year and month to which the data are applicable. For example, 200009 indicates the year 2000, and the month of September.
(i) * * *
(2) Joint-service operations shall be reported on BTS Form 41 Schedules T-100 and T-100(f) by the air carrier in operational control of the flight, i.e., the air carrier that uses its flight crew to perform the operation. If there are questions about reporting a joint-service operation, contact the BTS Assistant Director—Airline Information at the address in paragraph (a)(3) of this appendix.
5. Section 217.11 would be amended by revising paragraph (a) to read as follows:
(a) Failure to file reports required by this part will subject an air carrier to civil and criminal penalties prescribed in Title 49 United States Code Section 46301.
6. The authority citation for part 241 would be revised to read as follows:
49 U.S.C. 329 and chapters 41101 and 41708.
7. Part 241, Section 03 would be amended by adding in alphabetical order the following definitions to read as follows:
8. Part 241, Section 19-1 would be amended by revising paragraphs (a) and (c) to read as follows:
(a)
(c) Each U.S. air carrier shall use magnetic computer tape or IBM compatible disk for transmitting the prescribed data to the Department. Upon good cause shown, OAI may approve the request of a U.S. air carrier, under section 1-2 of this part, to use hardcopy data input forms or submit data via e-mail.
9. Part 241, Section 19-3 would be amended by removing and reserving paragraph (b).
10. Part 241, Section 19-5 would be amended by revising paragraph (b) to read as follows:
11. In Part 241, Section 22:
a. The “List of Schedules in BTS Form 41 Report” would be amended by removing Schedules “T-1”, “T-2”, and “T-3” and by revising “(1)” to read “x” for Schedule “P-2” in column I of Applicability by carrier group.
b. The chart of DUE DATES OF SCHEDULES IN BTS FORM 41 REPORT would be amended by removing Schedules “T-1”, “T-2”, and “T-3”, wherever they appear.
12. In Part 241, Section 24, “Schedule P-2—Notes to BTS Form 41 Report” would be amended by revising paragraph (a) and adding paragraph (f) to read as follows:
(a) This schedule shall be filed quarterly by all Group I, II, and III air carriers.
(f) Each air carrier shall submit, by aircraft type, the total number of aircraft hours operated (revenue and nonrevenue), the total amount of aircraft fuels issued (U.S. gallons), and the number of aircraft days assigned to service-carrier's routes.
13. Part 241, Section 25 would be amended as follows:
a. By revising paragraph (b); and
b. By removing the subsections, “Schedule T-1 U.S. Air Carrier Traffic and Capacity Summary-By Service Class”, “Schedule T-2 U.S. Air Carrier Traffic and Capacity Statistics-By Aircraft Type”, and “Schedule T-3 U.S. Air Carrier Airport Activity Statistics”;
c. In subsection “Schedule T-100 U.S. Air Carrier Traffic and Capacity Data By Nonstop Segment and On-Flight Market”, paragraph (a) would be revised and paragraph (d) would be added.
The revisions and additions read as follows:
(b) Carriers submitting Schedule T-100 shall use magnetic computer tape or IBM compatible disk for transmitting the prescribed data to the Department. Upon good cause shown, OAI may approve the request of a U.S. air carrier, under section 1-2 of this part, to use hardcopy data input forms or submit data via e-mail.
(a) Schedule T-100 collects detailed on-flight market and nonstop segment data on all revenue flights flown by U.S. certificated air carriers. This schedule is filed monthly. Separate data shall be reported for each operating entity (Latin America, Atlantic, Pacific; International, or Domestic) of the air carrier in the five digit entity code prescribed under section 19-5(c) of this part.
(d) Joint-service operations. The air carrier in operational control of the aircraft (the carrier that uses its flight crews under its own FAA operating authority) must report joint-service operations.
14. The appendix to Section 241.25 of CFR Part 241, would be revised to read as follows:
(a) Applicability. Each large U.S. air carrier that holds a 49 U.S.C. 41102 certificate must file the monthly Schedule T-100.
(b) Schedules, frequency, and entity: Schedule T-100 collects summarized flight stage data by reporting entity for scheduled and nonscheduled passenger, and cargo operations. The term entity refers to the geographic location designator prescribed by the Department in § 241.19-5(c)(2). Thus, domestic entity operations are distinguished from international entity operations.
(c) Format of reports:
(1) Automatic Data Processing (ADP) magnetic tape. Refer to paragraph (f) of this appendix for instructions pertaining to mainframe and minicomputer reporting. The Department will issue “Accounting and Reporting Directives” to make necessary technical changes to these T-100 instructions, where no policy issues are involved that would require a new rulemaking, or where only a few air carriers are affected.
(2) Microcomputer diskette.
(i) Optional specification. If an air carrier desires to use its personal computers (PC's), rather than mainframe or minicomputers to prepare its data submissions, the following specifications for filing data on diskette media apply:
(ii) Reporting medium. Microcomputer ADP data submission of T-100 information must be on IBM compatible disks. Carriers wishing to use a different ADP procedure must obtain written approval to do so from the BTS Assistant Director—Airline Information. Requests for approval to use alternate methods must disclose the proposed data transmission methodology. Refer to paragraph (k) of this appendix for microcomputer record layouts.
(iii) Microcomputer file characteristics. The files will be created in ASCII delimited format, sometimes called Data Interchange Format (DIF). This form of recording data provides for variable length fields (data elements) which, in the case of alphabetic data, are enclosed by quotation marks (“) and separated by a comma (,) and numeric data elements that are recorded without editing symbols are also separated by a comma (,). The data are identified by its juxtaposition within a given record. Therefore, each record must contain the exact number of data elements, all of which must be juxtapositionally correct. Personal computer software including most spreadsheets, data base management programs, and BASIC are capable of producing files in this format.
(d) Filing date for reports. The reports must be received at BTS within 30 days following the end of each reporting period.
(e) Address for filing: Data Administration Division, K-25, Room 4125, Office of Airline Information, Bureau of Transportation Statistics, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590-0001.
(f) ADP format for magnetic tape: Magnetic tape specifications. IBM compatible 9-track
(1) Volume label.
(2) Header label.
(3) Data records.
(4) Trailer label.
(g) External tape label information.
(1) Carrier name.
(2) Report date.
(3) File identification.
(4) Carrier address for return of tape reel.
(h) Standards. It is the policy of the Department to be consistent with the American National Standards Institute and the Federal Standards activity in all data processing and telecommunications matters. It is our intention that all specifications in this application are in compliance with standards promulgated by these organizations.
(i) Volume, header, and trailer label formats: Use standard IBM label formats. The file identifier field of the header labels should be “T-100.SYSTEM”.
(j) Magnetic tape record layouts for T-100.
(1) Nonstop segment record layout:
(2) On-flight market record layout:
(k) Record layouts for microcomputer diskettes. The record layouts for diskettes are generally identical to those shown for magnetic tape, with the exception that delimiters (quotation marks and commas) are used to separate fields. It is necessary that the order of fields be maintained in all records.
(1) File characteristics. The files will be created in ASCII delimited format, sometimes called Data Interchange Format (DIF). This form of recording data provides for variable length fields (data elements) which, in the case of alphabetic data, are enclosed by quotation marks (“) and separated by a comma (,) and numeric data elements that are recorded without editing symbols are also separated by a comma (,). The data are identified by their juxtaposition within a given record. Therefore, it is critical that each record contain the exact number of data elements, all of which must be juxtapositionally correct. PC software including most spreadsheets, data base management programs, and BASIC produce minidisks files in this format.
(2) File naming conventions for diskettes. For microcomputer reports, each record type should be contained in a separate DOS file on the same physical diskette. The following DOS naming conventions should be followed:
(l) Discussion of reporting concept. Schedule T-100 collects summarized flight stage data and on-flight market data. All traffic statistics shall be compiled in terms of each revenue flight stage as actually performed. The detail T-100 data shall be maintained in such a manner as to permit monthly summarization and organization into two basic groupings. The first grouping, the nonstop segment information, is to be summarized by equipment type, within class of service, within pair-of-points, without regard to individual flight number. The second grouping requires that the enplanement/deplanement information be broken out into separate units called on-flight market records, which shall be summarized by class of service, within pair-of-points, without regard for equipment type or flight number.
(m) Joint Service: Joint-service operations. The Department may authorize joint-service operations between two direct air carriers. Examples of these joint service-operations are: blocked-space agreements; part-charter agreements; code-sharing agreements; wet-lease agreements, and other similar arrangements.
(1) Joint-service operations are reported by the carrier in operational control of the flight, i.e., the carrier that uses its flight crews under its own FAA operating authority. The traffic moving under these agreements is reported on Schedule T-100 the same way as any other traffic on the aircraft.
(2) If there are questions about reporting a joint-service operation, contact the BTS Assistant Director—Airline Information (fax no. 202 366-3383, telephone no. 202 366-4373). Joint-service operations are reported in Schedule T-100 within the following guidelines:
(3) Operational control. The air carrier in operational control of the aircraft (the carrier that uses its flight crews under its own FAA operating authority) must report joint-service operations.
(n) Glossary of data elements. § 241.19-5 and § 241.03.
15. The authority citation for Part 291 would be revised to read as follows:
49 U.S.C. 329 and chapters 41102, 41103 and 41708.
16. Section 291.2 would be amended by adding the following definitions in alphabetical order to read as follows:
17. Section 291.42 would be amended by revising the section heading and paragraph (a) to read as follows:
(a) General instructions. Carriers operating under section 41103 certificates that are not subject to part 241 of this chapter shall file Form 291-A, Statement of Operations for Section 41103 operations, Schedule T-100, U.S. Air Carrier Traffic and Capacity Data by Nonstop Segment and On-Flight Market, and Schedule P-12(a), Fuel Consumption by Type of Service and Entity with the Department's Bureau of Transportation Statistics (BTS).
(1) A single copy of the BTS Form 291-A report shall be filed annually with the Office of Airline Information (OAI) for the year ended December 31, to be received on or before February 10. A single copy of the monthly BTS Schedule P-12(a) is due at OAI within 20 days after the end of each month. An electronic filing of the monthly Schedule T-100 is due at OAI within 30 days after the end of each month. Due dates falling on a Saturday, Sunday or national holiday will become effective on the first following working day.
(2) Reports required by this section shall be filed at the Office Airline Information, K-25, Room 4125, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
18. A new § 291.43 would be added to subpart E to read as follows:
Form 291-A contains the following data elements:
(a) Total operating revenue, categorized as follows:
(1) Transport revenues from the carriage of property in scheduled and nonscheduled service;
(2) Transport revenue from the carriage of mail in scheduled and nonscheduled service; and
(3) Transport-related revenues;
(b) Total operating expenses;
(c) Operating profit or loss, computed by subtracting the total operating expenses from the total operating revenues; and
(d) Net income, computed by subtracting the total operating and nonoperating expenses, including interest expenses and income taxes, from the total operating and nonoperating revenues.
19. A new § 291.44 would be added to subpart E to read as follows:
(a) For the purposes of Schedule P-12(a), type of service shall be either scheduled service or nonscheduled service as those terms are defined in § 291.45(c)(2) and (3).
(b) For the purpose of Schedule P-12(a), scheduled service shall be reported separately for:
(1) Intra-Alaskan operations;
(2) Domestic operations, which shall include all operations within and between the 50 States of the United States (except Intra-Alaska), the District of Columbia, the Commonwealth of Puerto Rico and the United States Virgin Islands, or a U.S. territory or possession to a place in any State of the United States.
(c) For the purpose of Schedule P-12(a), nonscheduled service shall be reported separately for domestic operations and international operations as defined in paragraph (b) of this section, except that domestic and international Military Air Command (MAC) operations shall be reported on separate lines.
(d) The cost data reported on each line shall represent the average cost of fuel, as determined at the station level, consumed in that entity.
(e) The cost of fuel shall include shrinkage but exclude:
(i) “Throughput” and “in to plane” fees, i.e., service charges or gallonage levies assessed by or against the fuel vendor or concessionaire and passed on to the carrier in a separately identifiable form; and
(ii) Nonrefundable Federal and State excise taxes. However, “through-put” and “in to plane” charges that cannot be identified or segregated from the cost of fuel shall remain a part of the cost of fuel as reported on this schedule.
(f) Each air carrier shall maintain records for each station showing the computation of fuel inventories and consumption for each fuel type. The periodic average cost method shall be used in computing fuel inventories and consumption. Under this method, an average unit cost for each fuel type shall be computed by dividing the total cost of fuel available (Beginning Inventory plus Purchases) by the total gallons available. The resulting unit cost shall then be used to determine the ending inventory and the total consumption costs to be reported on this schedule.
(g) Where amounts reported for a specific entity include other than Jet A fuel, a footnote shall be added indicating the number of gallons and applicable costs of such other fuel included in amounts reported for that entity.
(h) Where any adjustment(s) recorded on the books of the carrier results in a material distortion of the current month's schedule, carriers shall file a revised Schedule P-12(a) for the month(s) affected.
20. A new § 291.45 would be added to subpart E to read as follows:
(a) Each section 41103 all-cargo air carrier shall file Schedule T-100, U.S. Air Carrier Traffic and Capacity Data by Nonstop Segment and On-Flight Market.
(b) Schedule T-100 shall be filed monthly.
(1) Schedule T-100 collects summarized flight stage data and on-flight market data for revenue flights. All traffic statistics shall be compiled in terms of each flight stage as actually performed. The detail T-100 data shall be maintained in such a manner as to permit monthly summarization and organization into two basic groupings. First, the nonstop segment information which is to be summarized by equipment type, within class of service, within pair-of-points, without regard to individual flight number. The second grouping requires that the enplanement/deplanement information be broken out into separate units called on-flight market records, which shall be summarized by class of service, within pair-of-points, without regard for equipment type or flight number.
(2) Joint-service operations. The Department may authorize joint-service operations between two direct air carriers. Examples of these joint-service operations are: blocked-space agreements; part-charter agreements; code-sharing agreements; wet-lease agreements; and similar arrangements.
(i) Joint-service operations are reported by the carrier in operational control of the flight, i.e., the carrier that uses its flight crews under its own FAA
(ii) If there are questions about reporting a joint-service operation, contact the BTS Assistant Director—Airline Information (fax no. 202 366-3383, telephone no. 202 366-4373). Joint-service operations are reported in Schedule T-100 within the following guidelines:
(iii) Operational control. The air carrier in operational control of the aircraft (the carrier that uses its flight crews under its own FAA operating authority) must report joint services.
(c) Service classes. (1) The statistical classifications are designed to reflect the operating characteristics attributable to each distinctive type of service offered. The combination of scheduled and nonscheduled operations with passenger, all-cargo, and military services are placed into service classes as follows:
(2) Scheduled services include traffic and capacity elements applicable to air transportation provided pursuant to published schedules and extra sections of scheduled flights. Scheduled Passenger/Cargo (Service Class F) is a composite of first class, coach, and mixed passenger/cargo service.
(3) Nonscheduled services include all traffic and capacity elements applicable to the performance of nonscheduled aircraft charters, and other air transportation services not constituting an integral part of services performed pursuant to published flight schedules.
(d) Air transport traffic and capacity elements.
(1) Within each of the service classifications, carriers shall report air transport traffic and capacity elements. The reported elements with a BTS numeric code are in the following chart. The elements are reported on segment or market records as follows:
(2) [Reserved]
(e) The reported elements are further described as follows:
(1) Reporting period date. The year and month to which the reported data are applicable.
(2) Carrier, Carrier entity code. Each air carrier shall report its name and entity code (a five digit code assigned by
(3) Service class code. The service class codes are prescribed in § 298.61(c) of this chapter. In general, classes are divided into two broad categories, either scheduled or nonscheduled, where scheduled = F + G and nonscheduled = L + N + P + R.
(4) Record type code. This code indicates whether the data pertain to non-stop segment (record type S) or on-flight market (record type M).
(5) Aircraft type code. This code represents the aircraft types, as described in the BTS' Accounting and Reporting Directives.
(6) Origin, Destination airport code(s). These codes represent the industry designators. An industry source of these industry designator codes is the Official Airline Guide (OAG). OAI assigns codes, upon request, if not listed in the OAG.
(7) 110 Revenue passengers enplaned. The total number of revenue passengers enplaned at the origin point of a flight, boarding the flight for the first time; an unduplicated count of passengers in a market. Under the T-100 system of reporting, these enplaned passengers are the sum of the passengers in the individual on-flight markets. In the domestic entity, report only the total revenue passengers enplaned in item 110. Nonscheduled revenue passengers enplaned are reported in item 110.
(8) 130 Revenue passengers transported. The total number of revenue passengers transported over a single flight stage, including those already on the aircraft from a previous flight stage. In the domestic entity, report only the total revenue passengers transported in item 130. Nonscheduled revenue passengers transported are reported in item 130.
(9) 140 Revenue passenger-miles. Computed by multiplying the inter-airport distance of each flight stage by the number of passengers transported on that flight stage.
(10) 210 Revenue cargo tons enplaned. The total number of cargo tons enplaned. This data element is a sum of the individual on-flight market figures for each of the following categories: 217 Freight and 219 Mail. This element represents an unduplicated count of the revenue traffic in a market.
(11) 230 Revenue tons transported. The number of tons of revenue traffic transported. This element is the sum of the following elements: 231 Passengers transported-total, 237 Freight, and 239 Mail.
(12) 240 Revenue ton-miles—total. Ton-miles are computed by multiplying the revenue aircraft miles flown (410) on each flight stage by the number of tons transported on that stage. This element is the sum of 241 through 249.
(13) 241 Revenue ton-miles—passenger. Equals the number of passengers times 200, times inter-airport distance, divided by 2000. A standard weight of 200 pounds per passenger, including baggage, is used for all operations and service classes.
(14) 247 Revenue ton-miles—freight. Equals the volume of freight in whole tons times the inter-airport distance.
(15) 249 Revenue ton-miles—mail. Equals the volume of mail in whole tons times the inter-airport distance.
(16) 270 Available capacity-payload. The available capacity is collected in pounds. This figure shall reflect the payload or total available capacity for passengers, mail and freight applicable to the aircraft with which each flight stage is performed.
(17) 280 Available ton-miles. The aircraft miles flown on each flight stage multiplied by the available capacity on the aircraft in tons.
(18) 310 Available seats. The number of seats available for sale. This figure reflects the actual number of seats available, excluding those blocked for safety or operational reasons. In the domestic entity, report the total available seats in item 130. Nonscheduled available seats are reported in item 130.
(19) 320 Available seat-miles. The aircraft miles flown on each flight stage multiplied by the seat capacity available for sale.
(20) 410 Revenue aircraft miles flown. Revenue aircraft miles flown are computed based on the airport pairs between which service is actually performed; miles are generated from the data for scheduled aircraft departures (Code 520) times the inter-airport distances (Code 501).
(21) 430 Revenue aircraft miles scheduled. The number of revenue aircraft miles scheduled. All such data shall be maintained in conformity with the airport pairs between which service is scheduled, whether or not in accordance with actual performance.
(22) 501 Inter-airport distance. The great circle distance, in official statute miles as prescribed in part 247 of this chapter, between airports served by each flight stage. Official inter-airport mileage may be obtained from the Office of Airline Information.
(23) 510 Revenue aircraft departures performed. The number of revenue aircraft departures performed.
(24) 520 Revenue aircraft departures scheduled. The number of revenue aircraft departures scheduled, whether or not actually performed.
(25) 610 Revenue aircraft hours (airborne). The elapsed time, computed from the moment the aircraft leaves the ground until its next landing.
(26) 630 Aircraft hours (ramp-to-ramp). The elapsed time, computed from the moment the aircraft first moves under its own power from the boarding ramp at one airport to the time it comes to rest at the ramp for the next point of landing. This data element is also referred to as “block” and “block-to-block” aircraft hours.
(27) 650 Total aircraft hours (airborne). The elapsed time, computed from the moment the aircraft leaves the ground until it touches down at the next landing. This includes flight training, testing, and ferry flights.
(f) Public availability of Schedule T-100 data. Detailed domestic on-flight market and nonstop segment data in Schedule T-100 shall be publicly available after processing. Domestic data are defined as data from air transportation operations from a place in any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands, or a U.S. territory or possession to a place in any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands, or a U.S. territory or possession.
21. A new appendix to § 291.45 would be added to read as follows:
(a) Format of reports:
(1) Automatic Data Processing (ADP) magnetic tape. Refer to paragraph (d) of this appendix for instructions pertaining to mainframe and minicomputer reporting. The Department will issue “Accounting and Reporting Directives” to make necessary technical changes to these T-100 instructions, where no policy issues are involved that would require a new rulemaking, or where only a few air carriers are affected.
(2) Microcomputer diskette.
(i) Optional specification. If an air carrier desires to use its personal computers (PC's), rather than mainframe or minicomputers to prepare its data submissions, the following specifications for filing data on diskette media apply.
(ii) Reporting medium. Microcomputer ADP data submission of T-100 information must be on IBM compatible disks. Carriers wishing to use a different ADP procedure
(iii) Microcomputer file characteristics. The files will be created in ASCII delimited format, sometimes called Data Interchange Format (DIF). This form of recording data provides for variable length fields (data elements) which, in the case of alphabetic data, are enclosed by quotation marks (“”) and separated by a comma (,) and numeric data elements that are recorded without editing symbols are also separated by a comma (,). The data are identified by their juxtaposition within a given record. Therefore, each record must contain the exact number of data elements, all of which must be juxtapositionally correct. Personal computer software including most spreadsheets, data base management programs, and BASIC are capable of producing files in this format.
(b) Filing date for reports. The reports must be received at BTS within 30 days following the end of each reporting period.
(c) Address for filing: Data Administration Division, K-25, Room 4125, Office of Airline Information, Bureau of Transportation Statistics, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590-0001.
(d) ADP format for magnetic tape: Magnetic tape specifications. IBM compatible 9-track EBCDIC recording. Recording density of 6250 or 1600 bpi. The order of recorded information is:
(1) Volume label.
(2) Header label.
(3) Data records.
(4) Trailer label.
(e) External tape label information.
(1) Carrier name.
(2) Report date.
(3) File identification.
(4) Carrier address for return of tape reel.
(f) Standards. It is the policy of the Department to be consistent with the American National Standards Institute and the Federal Standards activity in all data processing and telecommunications matters. It is our intention that all specifications in this application are in compliance with standards promulgated by these organizations.
(g) Volume, header, and trailer label formats: Use standard IBM label formats. The file identifier field of the header labels should be “T-100.SYSTEM”.
(h) Magnetic tape record layouts for T-100.
(1) Nonstop segment record layout:
(2) On-flight market record layout:
(i) Record layouts for microcomputer diskettes. The record layouts for diskette are generally identical to those shown for magnetic tape, with the exception that delimiters (quotation marks and commas) are used to separate fields. It is necessary that the order of fields be maintained in all records.
(1) File characteristics. The files will be created in ASCII delimited format, sometimes called Data Interchange Format (DIF). This form of recording data provides for variable length fields (data elements) which, in the case of alphabetic data, are enclosed by quotation marks (“”) and separated by a comma (,) and numeric data elements that are recorded without editing symbols are also separated by a comma (,). The data are identified by their juxtaposition within a given record. Therefore, it is critical that each record contain the exact number of data elements, all of which must be juxtapositionally correct. PC software including most spreadsheets, data base management programs, and BASIC produce minidisk files in this format.
(2) File naming conventions for diskettes. For microcomputer reports, each record type should be contained in a separate DOS file on the same physical diskette. The following DOS naming conventions should be followed:
22. The authority citation for Part 298 would be revised to read as follows:
49 U.S.C. 329 and chapters 41101 and 41708.
23. Section 298.2 would be amended by removing paragraph (m), by removing the alphabetic paragraph designations and placing the definitions in alphabetic order, and by adding the following new definitions in alphabetical order to read as follows:
24. Section 298.60 would be amended by revising paragraphs (a) and (b) to read as follows:
(a) Each commuter air carrier and each small certificated air carrier shall file with the Department's Bureau of Transportation Statistics (BTS) the applicable schedules of BTS Form 298-C, Report of Financial and Operating Statistics for Small Aircraft Operators and Schedule T-100, U.S. Air Carrier Traffic and Capacity Data by Nonstop Segment and On-Flight Market as required by this section.
(b) A single copy of the BTS Form 298-C report shall be filed quarterly with the Office of Airline Information (OAI) for the periods ended March 31, June 30, September 30 and December 31 of each year to be received on or before May 10, August 10, November 10, and February 10, respectively. An electronic filing of the monthly Schedule T-100 is due at OAI within 30 days after the end of each month. Due dates falling on a Saturday, Sunday or national holiday will become effective on the first following working day.
25. Section 298.61 would be revised to read as follows:
(a) Each commuter air carrier and small certificated air carrier shall file Schedule T-100, U.S. Air Carrier Traffic and Capacity Data by Nonstop Segment and On-Flight Market.
(b) Schedule T-100 shall be filed monthly as set forth in § 298.60.
(1) Schedule T-100 collects summarized flight stage data and on-flight market data from revenue flights. All traffic statistics shall be compiled in terms of each flight stage as actually performed. The detail T-100 data shall be maintained in such a manner as to permit monthly summarization and organization into two basic groupings. The first grouping, the nonstop segment information, is to be summarized by equipment type, within class of service, within pair-of-points, without regard to individual flight number. The second grouping requires that the enplanement/deplanement information be broken out into separate units called on-flight market records, which shall be summarized by class of service, within pair-of-points, without regard for equipment type or flight number.
(2)
(i) Joint-service operations are reported by the carrier in operational control of the flight, i.e., the carrier that uses its flight crews under its own FAA operating authority. The traffic moving under these agreements is reported on Schedule T-100 the same way as any other traffic on the aircraft.
(ii) If there are questions about reporting a joint-service operation, contact the BTS Assistant Director—Airline Information (fax no. 202 366-3383, telephone no. 202 366-4373). Joint-service operations are reported in Schedule T-100 within the following guidelines:
(iii)
(c)
(2) Scheduled services include traffic and capacity elements applicable to air transportation provided pursuant to published schedules and extra sections of scheduled flights. Scheduled Passenger/Cargo (Service Class F) is a composite of first class, coach, and mixed passenger/cargo service.
(3) Nonscheduled services include all traffic and capacity elements applicable to the performance of nonscheduled aircraft charters, and other air transportation services not constituting an integral part of services performed pursuant to published flight schedules.
(d)
(2) [Reserved]
(e) The reported elements are further described as follows:
(1) Reporting period date. The year and month to which the reported data are applicable.
(2) Carrier, Carrier entity code. Each air carrier shall report its name and entity code (a five digit code assigned by BTS that identifies both the carrier and its entity) for its particular operations. The Office of Airline Information (OAI) will assign or confirm codes upon request; OAI's address is Office of Airline Information, BTS, DOT Room 4125, K-25, 400 Seventh Street, SW., Washington, DC 20590-0001.
(3) Service class code. The service class codes are prescribed in section 298.61(c). In general, classes are divided into two broad categories, either scheduled or nonscheduled, where scheduled = F + G and nonscheduled = L + N + P + R.
(4) Record type code. This code indicates whether the data pertain to non-stop segment (record type S) or on-flight market (record type M).
(5) Aircraft type code. This code represents the aircraft types, as described in the BTS' Accounting and Reporting Directives.
(6) Origin, Destination airport code(s). These codes represent the industry designators. An industry source of these industry designator codes is the Official Airline Guide (OAG). OAI assigns codes upon request if not listed in the OAG.
(7) 110 Revenue passengers enplaned. The total number of revenue passengers enplaned at the origin point of a flight, boarding the flight for the first time; an unduplicated count of passengers in a market. Under the T-100 system of reporting, these enplaned passengers are the sum of the passengers in the individual on-flight markets. In the domestic entity, report only the total revenue passengers enplaned in item 110. Nonscheduled revenue passengers enplaned are reported in item 110.
(8) 130 Revenue passengers transported. The total number of revenue passengers transported over a single flight stage, including those already on the aircraft from a previous flight stage. In the domestic entity, report only the total revenue passengers transported in item 130. Non-scheduled revenue passengers transported are reported in item 130.
(9) 140 Revenue passenger-miles. Computed by multiplying the inter-airport distance of each flight stage by the number of passengers transported on that flight stage.
(10) 210 Revenue cargo tons enplaned. The total number of cargo tons enplaned. This data element is a sum of the individual on-flight market figures for each of the following categories: 217 Freight and 219 Mail. This element represents an unduplicated count of the revenue traffic in a market.
(11) 230 Revenue tons transported. The number of tons of revenue traffic transported. This element is the sum of the following elements: 231 Passengers transported—total, 237 Freight, and 239 Mail.
(12) 240 Revenue ton-miles—total. Ton-miles are computed by multiplying the revenue aircraft miles flown (410) on each flight stage by the number of tons transported on that stage. This element is the sum of 241 through 249.
(13) 241 Revenue ton-miles—passenger. Equals the number of passengers times 200, times inter-airport distance, divided by 2000. A standard weight of 200 pounds per passenger, including baggage, is used for all operations and service classes.
(14) 247 Revenue ton-miles—freight. Equals the volume of freight in whole tons times the inter-airport distance.
(15) 249 Revenue ton-miles—mail. Equals the volume of mail in whole tons times the inter-airport distance.
(16) 270 Available capacity-payload. The available capacity is collected in pounds. This figure shall reflect the payload or total available capacity for passengers, mail, and freight applicable to the aircraft with which each flight stage is performed.
(17) 280 Available ton-miles. The aircraft miles flown on each flight stage multiplied by the available capacity on the aircraft in tons.
(18) 310 Available seats. The number of seats available for sale. This figure reflects the actual number of seats available, excluding those blocked for safety or operational reasons. In the domestic entity, report the total available seats in item 130. Nonscheduled available seats are reported in item 130.
(19) 320 Available seat-miles. The aircraft miles flown on each flight stage multiplied by the seat capacity available for sale.
(20) 410 Revenue aircraft miles flown. Revenue aircraft miles flown are
(21) 430 Revenue aircraft miles scheduled. The number of revenue aircraft miles scheduled. All such data shall be maintained in conformity with the airport pairs between which service is scheduled, whether or not in accordance with actual performance.
(22) 501 Inter-airport distance. The great circle distance, in official statute miles as prescribed in part 247 of this chapter, between airports served by each flight stage. Official inter-airport mileage may be obtained from the Office of Airline Information.
(23) 510 Revenue aircraft departures performed. The number of revenue aircraft departures performed.
(24) 520 Revenue aircraft departures scheduled. The number of revenue aircraft departures scheduled, whether or not actually performed.
(25) 610 Revenue aircraft hours (airborne). The elapsed time, computed from the moment the aircraft leaves the ground until its next landing.
(26) 630 Aircraft hours (ramp-to-ramp). The elapsed time, computed from the moment the aircraft first moves under its own power from the boarding ramp at one airport to the time it comes to rest at the ramp for the next point of landing. This data element is also referred to as “block” and “block-to-block” aircraft hours.
(27) 650 Total aircraft hours (airborne). The elapsed time, computed from the moment the aircraft leaves the ground until it touches down at the next landing. This includes flight training, testing, and ferry flights.
(f) Public availability of Schedule T-100 data. Detailed domestic on-flight market and nonstop segment data in Schedule T-100 shall be publicly available after processing. Domestic data are defined as data from air transportation operations from a place in any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands, or a U.S. territory or possession to a place in any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands, or a U.S. territory or possession.
(a) Format of reports:
(1) Automatic Data Processing (ADP) magnetic tape. Refer to paragraph (f) of this appendix for instructions pertaining to mainframe and minicomputer reporting. The Department will issue “Accounting and Reporting Directives” to make necessary technical changes to these T-100 instructions, where no policy issues are involved that would require a new rulemaking, or where only a few air carriers are affected.
(2) Microcomputer diskette.
(i) Optional specification. If an air carrier desires to use its personal computers (PC's), rather than mainframe or minicomputers to prepare its data submissions, the following specifications for filing data on diskette media apply.
(ii) Reporting medium. Microcomputer ADP data submission of T-100 information must be on IBM compatible disks. Carriers wishing to use a different ADP procedure must obtain written approval to do so from the BTS Assistant Director—Airline Information. Requests for approval to use alternate methods must disclose the proposed data transmission methodology. Refer to paragraph (k) of this appendix for microcomputer record layouts.
(iii) Microcomputer file characteristics. The files will be created in ASCII delimited format, sometimes called Data Interchange Format (DIF). This form of recording data provides for variable length fields (data elements) which, in the case of alphabetic data, are enclosed by quotation marks (‘’) and separated by a comma (,) and numeric data elements that are recorded without editing symbols are also separated by a comma (,). The data are identified by their juxtaposition within a given record. Therefore, each record must contain the exact number of data elements, all of which must be juxtapositionally correct. Personal computer software including most spreadsheets, data base management programs, and BASIC are capable of producing files in this format.
(b) [Reserved]
(c) [Reserved]
(d) Filing date for reports. The reports must be received at BTS within 30 days following the end of each reporting period.
(e) Address for filing: Data Administration Division, K-25, Room 4125, Office of Airline Information, Bureau of Transportation Statistics, U.S. Department of Transportation, 400 Seventh Street S.W., Washington, DC 20590-0001.
(f) ADP format for magnetic tape: Magnetic tape specifications. IBM compatible 9-track EBCDIC recording. Recording density of 6250 or 1600 bpi. The order of recorded information is:
(1) Volume label.
(2) Header label.
(3) Data records.
(4) Trailer label.
(g) External tape label information.
(1) Carrier name.
(2) Report date.
(3) File identification.
(4) Carrier address for return of tape reel.
(h) Standards. It is the policy of the Department to be consistent with the American National Standards Institute and the Federal Standards activity in all data processing and telecommunications matters. It is our intention that all specifications in this application are in compliance with standards promulgated by these organizations.
(i) Volume, header, and trailer label formats: Use standard IBM label formats. The file identifier field of the header labels should be “T-100.SYSTEM”
(j) Magnetic tape record layouts for T-100.
(1) Nonstop segment record layout:
(2) On-flight market record layout:
(k) Record layouts for microcomputer diskettes. The record layouts for diskette are generally identical to those shown for magnetic tape, with the exception that delimiters (quotation marks and commas) are used to separate fields. It is necessary that the order of fields be maintained in all records.
(1) File characteristics. The files will be created in ASCII delimited format, sometimes called Data Interchange Format (DIF). This form of recording data provides for variable length fields (data elements) which, in the case of alphabetic data, are enclosed by quotation marks (‘’) and separated by a comma (,) and numeric data elements that are recorded without editing symbols are also separated by a comma (,). The data are identified by their juxtaposition within a given record. Therefore, it is critical that each record contain the exact number of data elements, all of which must be juxtapositionally correct. PC software including most spreadsheets, data base management programs, and BASIC produce minidisks files in this format.
(2) File naming conventions for diskettes. For microcomputer reports, each record type should be contained in a separate DOS file on the same physical diskette. The following DOS naming conventions should be followed:
26. Section 298.64 would be removed.
Bureau of Economic Analysis, Commerce.
Notice of proposed rulemaking.
This document sets forth proposed rules to amend the reporting requirements for the BE-20, Benchmark Survey of Selected Services Transactions with Unaffiliated Foreign Persons.
The BE-20 survey is conducted by the Bureau of Economic Analysis (BEA), U.S. Department of Commerce, under the International Investment and Trade in Services Survey Act. The data are needed to support U.S. trade policy initiatives; compile the U.S. international transactions, national income and product, and input-output accounts; assess U.S. competitiveness in international trade in services; and improve the ability of U.S. businesses to identify and evaluate market opportunities.
BEA proposes to raise the exemption level for the BE-20 survey to $1 million in covered sales or purchases transactions from $500,000 on the previous (1996) survey. Raising the exemption level will reduce respondent burden, particularly for small companies.
The proposed rule also: creates new categories for other trade-related services, auxiliary insurance services, and waste treatment and depollution services; adds coverage of transcription services to “other” private services; and amends several other service categories. These proposed changes will close some statistical gaps in the coverage of cross-border services transactions and bring the survey into better compliance with international standards for compilation of statistics on trade in services.
Comments on these proposed rules will receive consideration if submitted in writing on or before October 29, 2001.
Mail comments to the Office of the Chief, International Investment Division (BE-50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington DC 20230, or hand deliver them to room M-100, 1441 L Street, NW., Washington, DC 20005. Comments will be available for public inspection in room 7005, 1441 L Street, NW., between 8:30 a.m. and 4:30 p.m., Monday through Friday.
R. David Belli, Chief, International Investment Division (BE-50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; phone (202) 606-9800.
These proposed rules amend 15 CFR part 801 by revising Section 801.10 to set forth revised reporting requirements for the BE-20, Benchmark Survey of Selected Services Transactions with Unaffiliated Foreign Persons. The survey is conducted by the Bureau of Economic Analysis (BEA), U.S. Department of Commerce, under the International Investment and Trade in Services Survey Act (P.L. 94-472, 90 Stat. 2059, 22 U.S.C. 3101-3108, as amended). Section 3103(a) of the Act provides that “The President shall, to the extent he deems necessary and feasible—* * *(1) conduct a regular data collection program to secure current information * * * related to international investment and trade in services * * *”. In Section 3 of Executive Order 11961, as amended by Executive Order 12518, the President delegated the authority under the Act as concerns international trade in services to the Secretary of Commerce, who has redelegated it to BEA.
The BE-20 is a benchmark survey of selected services transactions with
Under the proposed rule, reporting in the BE-20 benchmark survey would be required from all U.S. persons whose covered services transactions (either sales or purchases) were in excess $1 million with unaffiliated foreign persons during the reporting year. The proposed exemption level is an increase from the current level of $500,000. The increase is intended to reduce respondent burden, particularly for small companies, but will not make the published results any less comprehensive. Respondents that fall below the proposed $1 million dollar exemption level account for a small share of transactions and will, nonetheless, be required to indicate their total receipts and payments for all services covered by the survey combined in claiming exemption, and to list the primary service provided. BEA will allocate these small amounts by country and by type of service, based on the distribution of reported transactions, for inclusion in the published totals. Thus, the estimates will cover the universe of transactions.
These proposed rules have been determined to be not significant for purposes of E.O. 12866.
These proposed rules do not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.
These proposed rules contain a collection of information requirement subject to the Paperwork Reduction Act. A request for review of the forms has been submitted to the Office of Management and Budget under section 3507 of the Paperwork Reduction Act.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid OMB Control Number.
Public reporting burden for this collection of information is estimated to vary from less than four hours to 500 hours, with an overall average burden of 12 hours. This includes time for reviewing the instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Comments are requested concerning: (a) whether the proposed collection of information is necessary for the proper performance of the agency, including whether the information will have practical utility; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230; and to the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project 0608-0058, Washington, DC 20503 (Attention PRA Desk Officer for BEA).
The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities.
While the survey does not collect data on total sales or other measures of the overall size of businesses that respond to the survey, historically the respondent universe has been comprised mainly of major U.S. corporations. With the proposed increase in the exemption level for the survey from $500,000 to $1 million in covered receipts or payments, even fewer small businesses can be expected to be subject to reporting than in the past. Of those smaller businesses that must report, most will tend to have specialized operations and activities and thus will be likely to report only one type of service transaction, often limited to transactions with a single partner country; therefore, the burden on them can be expected to be small.
Economic statistic, Balance of payments, Foreign trade, Penalties, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, BEA proposes to amend 15 CFR part 801, as follows:
1. The authority citation for 15 CFR Part 801 continues to read as follows:
5 U.S.C. 301, 15 U.S.C. 4908, 22 U.S.C. 3101-3108, and E.O. 11961 (3 CFR, 1977 Comp., p. 860 as amended by E.O. 12013 (3 CFR, 1977 Comp., p. 147), E.O. 12318 (3 CFR, 1981 Comp., p. 173), and E.O. 12518 (3 CFR, 1985 Comp., p. 348).
2. Section 801.10 is revised to read as follows:
The BE-20, Benchmark Survey of Selected Services Transactions with Unaffiliated Foreign Persons, will be conducted covering companies' 2001 fiscal year and every fifth year thereafter. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.9(a) are applicable to this survey. Additional rules and regulations for the BE-20 survey are given in this section. More detailed instructions and descriptions of the individual types of services covered are given on the report from itself.
(a) The BE-20 survey consists of two parts and seven schedules. Part I requests information needed to determine whether a report is required and which schedules apply. Part II requests information about the reporting entity. Each of the seven schedules covers one or more types of services and is to be completed only if the U.S. Reporter has transactions of the type(s) covered by the particular schedule.
(b) Who must report. (1) Mandatory reporting. A BE-20 report is required from each person who had transactions (either sales or purchases) in excess of $1 million with unaffiliated foreign persons in any of the services listed in paragraph (c) of this section during its fiscal year covered by the survey.
(i) The determination of whether a U.S. person is subject to this mandatory reporting requirement may be judgmental, that is, based on the judgment of knowledgeable persons in a company who can identify reportable
(ii) Reporters who file pursuant to this mandatory reporting requirement must complete Parts I and II of Form BE-20 and all applicable schedules. The total amounts of transactions applicable to a particular schedule are to be entered in the appropriate column(s) on line 1 of the schedule. In addition, except for sales of merchanting services, these amounts must be distributed below line 1 to the country(ies) involved in the transactions). For sales of merchanting services, the data by individual foreign country are not required to be reported, although these data may be reported voluntarily.
(iii) Application of the $1 million exemption level to each covered service is indicated on the schedule for that particular service. It should be noted that an item other than sales or purchases may be used as the measure of a given service for purposes of determining whether the threshold for mandatory reporting of the service is exceeded.
(2) Voluntary reporting. If, during the fiscal year covered, the U.S. person's total transaction (either sales or purchases) in any of the types of services listed in paragraph (c) of this section are $1 million or less, the U.S. person is requested to provide an estimate of the total for the each type of service.
(i) Provision of this information is voluntary. The estimates may be judgmental, that is, based on recall, without conducting a detailed manual records search. Because the $1 million threshold applies separately to sales and purchases, the voluntary reporting option may apply only to sales, only to purchases, or to both sales and purchases.
(ii) The amounts of transactions reportable on a particular schedule are to be entered in the appropriate column(s) in the voluntary reporting section of the schedule; they are not required to be disaggregated by country. Reporters filing voluntary information only should also complete Parts I and II of the form.
(3) Any U.S. person that receives the BE-20 survey form from BEA, but is not reporting data in either the mandatory or voluntary section of the form, must nevertheless complete and return the Exemption Claim included with the form to BEA. This requirement is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary followup contact.
(c) Covered types of services. Only the services listed in this paragraph are covered by the BE-20 survey. Other services, such as transportation and reinsurance, are not covered. Covered services are Agricultural services; research, development, and testing services; management, consulting, and public relations service; management of health care facilities; accounting, auditing, and bookkeeping services; legal services; educational and training services; mailing, reproduction, and commercial art; employment agencies and temporary help supply services; industrial engineering services; industrial-type maintenance, installation, alteration, and training services; performing arts, sports, and other live performances, presentations, and events; sale and purchase of rights to natural resources, and lease bonus payments; use or lease of rights to natural resources, excluding lease bonus payments; disbursements to fund news-gathering costs of broadcasters; disbursements to fund news-gathering costs of print media; disbursements to fund production costs of motion pictures; disbursements to fund production costs of broadcast program material other than news; disbursements to maintain government tourism and business promotion offices; disbursements for sales promotion and representation; disbursements to participate in foreign trade shows (purchases only); premiums paid on purchases of primary insurance; losses recovered on purchases of primary insurance; construction services (purchases only); engineering, architectural, and surveying services (purchases only); mining services (purchases only); merchanting services (sales only); financial services (purchases only, by companies or parts of companies that are not financial services providers); advertising services; computer and data processing services; data base and other information services; telecommunications services; operational leasing services; other trade-related services; auxiliary insurance services; waste treatment and depollution services; and “other” private services. “Other” private services covers transactions in the following types of services: Language translation services, salvage services, security services, collection services, satellite photography and remote sensing/satellite imagery services, transport (includes satellite launches, transport of goods and people for scientific experiments, and space passenger transport), and transcription services.
Commodity Futures Trading Commission.
Proposed rulemaking.
Following the enactment of the Commodity Futures Modernization Act of 2000 (CFMA) and the resulting revisions to the Commodity Exchange Act (CEA or Act), the Commodity Futures Trading Commission (CFTC or Commission) is proposing rules relating to intermediation of commodity futures and commodity options (commodity interest) transactions. These proposed new rules and rule amendments would provide greater flexibility in several areas, and address, among other things, the definition of the term “principal,” certified financial reports, ethics training, disclosure, account opening procedures, trading standards, reporting requirements, and offsetting positions. The Commission would also make additional changes to allow a registrant to notify the Commission when a new natural person is added as a principal promptly after the change occurs.
The proposed rules are consistent with the mandate of the CFMA to streamline regulation of entities registered under the Act. Most of the proposed new rules and rule amendments were part of the Commission's final rules relating to intermediaries that were adopted in December 2000, and subsequently withdrawn following the CFMA's enactment in order to determine their consistency with the CFMA (December Release). Upon reviewing the proposed rules in light of the CFMA, as described in greater detail below, the Commission has determined that the rules proposed herein are consistent with the CFMA. The Commission encourages interested persons to read the December Release and the proposals published in June 2000 for a discussion of the background and purpose of each of the rules and
Comments must be received by September 12, 2001.
Comments on the proposed rules should be sent to Jean A. Webb, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Comments may be sent by facsimile transmission to (202) 418-5521, or by e-mail to
Lawrence B. Patent, Associate Chief Counsel, or Michael A. Piracci, Attorney-Advisor, Division of Trading and Markets, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581. Telephone: (202) 418-5450.
Section 2 of the CFMA sets forth the purposes of the CFMA, which include streamlining and eliminating unnecessary regulation for the commodity futures exchanges and other entities regulated under the Act. Section 125 of the CFMA directs the Commission to complete a study of its rules, regulations and interpretations governing the conduct of persons registered under the Act by December 21, 2001. The proposed rules are designed to be an initial step in fulfilling the mandates of section 2 and section 125.
Most of the proposed new rules and rule amendments were part of the Commission's final rules relating to intermediaries that were adopted in December 2000, and subsequently withdrawn following the CFMA's enactment in order to determine their consistency with the CFMA (December Release).
As further discussed below, certain rules have been modified to conform to specific provisions of the CFMA. Thus, for example, section 111 of the CFMA permits a registered derivatives transaction execution facility (DTF) to allow by rule certain persons who are regulated by other federal financial regulatory agencies to act as intermediaries thereon in limited instances without first registering with the Commission. Accordingly, the Commission will not repropose the “passporting” registration procedure for certain otherwise regulated entities as previously contemplated.
The proposals discussed in this release are applicable generally to intermediaries transacting business on behalf of customers on designated contract markets and registered DTFs. To the extent that an existing rule is not addressed in this release, the Commission intends that the rule continues to apply to intermediaries transacting business on behalf of customers on designated contract markets and registered DTFs pending completion of the study mandated by Section 125, regardless of whether the contract market or DTF itself, or its operators, have been exempted from applicable provisions of the rule.
Certain of the Commission's proposed rule amendments, such as those concerning ethics training and the definition of the term “principal,” would affect all registered firms. The other new proposed rules and rule amendments would affect mainly FCMs and IBs, and are not applicable to commodity pool operators (CPOs) and commodity trading advisors (CTAs). The Commission intends to consider further rulemaking proposals at a subsequent date that will focus more directly upon Part 4 of the Commission's rules, which governs the operations and activities of CPOs and CTAs.
As examples of its ongoing reform efforts with regard to such persons, the Commission has adopted changes that simplify the regulatory framework for CPOs and CTAs dealing with certain highly accredited pool participants or clients, or “qualified eligible persons,”
Under Commission staff's prior interpretation of the definition of the term “principal” in Rules 3.1(a)(1) and 4.10(e)(1),
The reference in the proposed amendment to the “principal” definition to “any person in charge of a principal business unit subject to regulation by the Commission” would not include departments such as human resources or administration.
The principal definition would also include an individual who directly or indirectly, through agreement, holding company, nominee, trust or otherwise: (1) Is the owner of ten percent or more of any class of a firm's securities; (2) is entitled to vote ten percent or more of any class of a firm's voting securities; (3) has the power to sell or direct the sale of ten percent or more of any class of a firm's voting securities; (4) has contributed ten percent or more of a firm's capital; or (5) is entitled to receive ten percent or more of a firm's profits. Further, the principal definition would include an entity that is the direct owner of ten percent or more of any class of a firm's securities or that has directly contributed ten percent or more of a firm's capital. These proposed amendments would permit the deletion of Rule 3.10(a)(2)(ii), which has proved somewhat unwieldy in practice.
The Commission is also proposing conforming changes to Rules 4.24(f)(1)(v), 4.25(a)(8)(ii)(A) and 4.25(c)(2)(i)(B), applicable to CPOs, and 4.34(f)(1)(ii) and 4.35(a)(7)(ii)(A), applicable to CTAs, as incorporated by reference in amended Rule 4.10(e)(1). Accordingly, CPOs and CTAs would only be required to provide business backgrounds and proprietary trading results for those principals who participate in making trading or operational decisions, or supervise persons so engaged, and not for all officers.
Finally, in response to industry suggestions, the Commission is proposing to delete Rule 3.32, which specifies certain events or changes within a firm's management structure that require the firm to file a new registration form. In its place, a new paragraph (a)(2) would be added to Rule 3.31 to require the registrant to file a Form 8-R on behalf of each new natural person principal who was not listed on the registrant's Form 7-R promptly after the change occurs. Proposed Rule 3.31(a)(2) was drafted to closely parallel Rule 3.10(a)(2)(i),
The Commission is proposing that applicants for registration as IBs who raise their own capital to satisfy minimum financial requirements would be permitted to file an unaudited financial report indicating satisfaction of the minimum requirements, rather
Filing of financial statements or guarantee agreements would be unnecessary for any FCM or IB registered in accordance with Proposed Rule 3.10(a)(3), which applies to those securities brokers or dealers registering as FCMs or IBs because their only futures-related activities involve security futures products.
With respect to the six-month review that must be conducted should an IB choose not to file a certified financial statement with its registration application, the Commission believes that the six-month time period for the review of IBs should begin from the date the applicant is registered. The Commission has held consistently that once a registrant becomes registered in a certain capacity, the registrant is immediately assumed to be engaging in the activities permitted by such registration.
The Commission notes that the December Release contained a similar provision for FCM applicants. NFA commented that “[t]here is a significant difference in the role of FCMs and IBs in terms of safety of customer funds. The one-time filing requirement for FCMs is not unduly burdensome, especially in light of the potential exposure if the initial financial statement is incorrect.”
The December Release contained a “passporting” registration process for certain otherwise federally regulated FCMs or IBs who conduct business on futures exchanges solely for institutional customers.
Section 5a of the Act as amended further directs the Commission, in coordination with the SEC, the Secretary of the Treasury, and Federal banking regulatory agencies, to adopt rules and take any other appropriate action to facilitate the implementation of the passporting procedure by these otherwise federally regulated entities.
The Commission is separately considering updating and making more flexible its minimum net capital requirements for FCMs by adopting risk-based net capital requirements.
An essential component of maintaining fitness is continuing education concerning obligations under the Act and rules thereunder. In order to provide flexibility and ease compliance for all registrants, the Commission is proposing to delete Rule 3.34 and instead to implement Congressional intent regarding ethics training through a Statement of Acceptable Practices. Rule 3.34 currently specifies frequency and duration of ethics training, the suggested curriculum, qualifications of instructors, and the necessary proof of attendance at such classes. In proposing to replace the rule with a Statement of Acceptable Practices that would leave the format, frequency, and providers of ethics training up to the registrants themselves, the Commission believes that greater flexibility regarding ethics training and proficiency testing could be afforded to registrants than is now permitted under Rule 3.34. For registrants seeking guidance as to the maintenance of proper ethics training procedures, the Statement of Acceptable
Although the Commission notes the possibility that eliminating Rule 3.34 may lead firms to place an inadequate priority on ethics training, the Commission does not believe that the replacement of the rule with a Statement of Acceptable Practices would diminish a registrant's obligations to remain fit and to adequately supervise the handling of customer accounts. Instead, the Commission hopes that the Statement of Acceptable Practices, which would allow registrants to adopt ethics training programs that are better tailored to their individual needs, will help to imbue firms with a culture of ethics that is ongoing rather than episodic. The Commission believes that the essence of the ethics training or continuing education requirement is to remain current as to the legal requirements applicable to a person's role in the futures industry, which a registrant ignores at his or her peril.
The Commission is also proposing to publish its recent “guidance letters” issued to NFA concerning the treatment of SRO disciplinary actions in assessing the fitness of floor brokers (FBs) and floor traders (FTs). The guidance letters were issued to provide greater clarity in interpreting the “other good cause” ground for statutory disqualification from registration under section 8a(3)(M) of the Act. These letters would be added to the end of Appendix A to Part 3 as they relate to the issue of “other good cause,” which is discussed at the end of Appendix A.
Although access to DTFs is generally limited to institutional customers,
In the December Release, the Commission had determined to add a new Rule 4.32 that would also permit non-institutional customers to trade on a DTF through certain registered CTAs. The Commission is again proposing to adopt this rule to permit registered CTAs to enter trades on or subject to the rules of a DTF on behalf of a non-institutional customer, provided that the CTA: (1) Directs the client's commodity interest account;
As with a highly-capitalized FCM, a CTA meeting this asset test, in its capacity as a professional asset manager, would have the appropriate financial sophistication to handle the risk associated with trading for non-institutional customers on a DTF.
The June 2000 Release raised two sets of questions seeking comments about whether, and under what circumstances, the Commission should permit (1) customers to opt out of segregation, and (2) FCMs to maintain, in the same customer segregated account, various instruments, such as over-the-counter (OTC) derivatives, equity securities, and other cash market positions, as well as the funds used for the purpose of securing or margining such products and positions.
With respect to the opt-out issue, most parties commenting on the issue urged the Commission to consider thoroughly the potential implications with respect to the bankruptcy rules,
The Commission did not withdraw its final rules and rule amendments concerning the investment of customer funds, and those rules and rule amendments became effective on December 28, 2000. To facilitate the implementation of Rule 1.25 and its related amendments, new paragraph (a)(7) to Rule 140.91 is proposed to be added to delegate to the Director of the Division of Trading and Markets any functions reserved to the Commission in Rule 1.25 regarding permitted investments for customer funds. The Commission also wishes to note that it has determined not to rescind Division of Trading and Markets Financial and Segregation Interpretation No. 9 (Interp.
The disclosure of risks by intermediaries is an important customer protection. Over the years, however, certain persons have suggested that customers would be better protected by receiving risk disclosures more attuned to their relative level of sophistication and to the particular instruments they trade. Other commenters have suggested that disclosure obligations could be simplified and streamlined.
In keeping with these observations, the Commission proposes that non-institutional customers continue to receive the risk disclosures regarding futures and options trading that are currently required. Thus, intermediaries will continue to be required to obtain prior acknowledgement of their customers' receipt of the basic risk disclosure statements relating to futures and options in accordance with Rules 1.55 and 33.7. For institutional customers, as provided in proposed Rule 1.55(f), there would continue to be no general disclosure requirements.
The Commission recognizes that there are certain areas of the account opening process that may be streamlined. Accordingly, in proposed amendments to Rules 1.55(d)(1) and (2), the Commission would permit certain required disclosures, such as those concerning consent to (1) allow electronic transmission of statements under proposed new Rule 1.33(g),
The Commission is proposing that Rules 155.1, 155.3 and 155.4, which collectively require FCMs and IBs to establish and to maintain supervisory procedures to assure that neither they nor any affiliated persons use their knowledge of customer orders to the customer's disadvantage, would continue to apply to intermediation of trades on contract markets, with certain conforming changes to reflect the recent statutory changes to the Act. These requirements would be extended to trading by non-institutional customers on DTFs under proposed Rule 155.6(a). These rules over the years have helped the Commission deter such practices as “front-running,” “trading ahead,” “bucketing,” and improper disclosure of customer orders. However, for intermediation of trades by institutional customers at DTFs, the Commission is proposing a new Rule 155.6(b), which sets forth a general standard of practice in this area. The Commission believes that this overall approach with respect to trading standards strikes a reasonable balance in preserving rules that have worked successfully over the years in curbing abusive trading practices, while relaxing certain of the specific provisions of the existing rules in connection with the trading on DTFs by more sophisticated customers.
Although proposed new Rule 155.6 is intended to proscribe the same trade practice abuses as Rules 155.1, 155.3 and 155.4 the Commission encourages specific suggestions regarding how these rules might be streamlined.
In keeping with changes in technology and commercial practices, the Commission is proposing to codify its previous Advisory relating to the electronic transmission of account statements in a new Rule 1.33(g).
The Commission also proposes to revise Rule 1.46 to allow customers or account controllers to instruct the FCM (in writing or orally) if they wish to deviate from the current default rule that the FCM close out offsetting positions on a first-in, first-out basis, looking across all accounts it carries for the same customer.
In order to implement this revision of Rule 1.46, the Commission proposes to amend the rule by inserting, after the words “omnibus accounts” in paragraph (a), the phrase “or where the customer or account controller has instructed otherwise.” Rule 1.46 also would be amended by revising paragraph (e) to correspond to proposed new Rule 1.33(g) (the substance of the current paragraph (e) of Rule 1.46 would be deleted because it relates back to paragraph (d)(6), which is being removed and reserved) to read: “The statements required by paragraph (a) of this section may be furnished to the customer or the person described in § 1.33(d) by means of electronic transmission, in accordance with § 1.33(g).”
Certain of the rules and rule amendments discussed herein are being proposed under section 4(c) of the Act, which grants the Commission broad exemptive authority. Section 4(c) of the Act provides that, in order to promote responsible economic or financial innovation and fair competition, the Commission may, by rule, regulation or order, exempt any class of agreements, contracts or transactions, including any person or class of persons offering, entering into, rendering advice or rendering other services with respect to the agreement, contract, or transaction, from any of the provisions of the Act (except certain provisions governing a group or index of securities and security futures products). As relevant here, when granting an exemption pursuant to section 4(c), the Commission must find that the exemption would be consistent with the public interest.
As explained above, the proposed rules and rule amendments would provide greater flexibility for intermediaries and their customers in several areas. Specifically, the Commission is proposing rule amendments concerning the definition of the term “principal” that are narrower than the language of the second proviso of Section 8a(2) of the Act. These amendments recognize the evolution of management structures by reducing the number of officers that will be considered principals, while ensuring that appropriate personnel that perform significant roles within the firm remain listed as such. The Commission believes that, in light of the conditions and safeguards provided for under the rules and rule amendments, the exemptive relief will have no adverse effect on any of the regulatory or self-regulatory responsibilities imposed by the Act. Moreover, the Commission believes that the additional flexibility for intermediaries and their customers provided for by the rules and rule amendments proposed herein would be consistent with the public interest. The Commission invites public comment on this finding.
Section 15 of the Act, as amended by section 119 of the CFMA, requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, section 15 as amended does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, section 15 simply requires the Commission to “consider the costs and benefits” of its action.
The amended section 15 further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.
The proposed rulemaking constitutes a package of related rule provisions affecting market intermediaries. The proposed rules and rule amendments are intended to provide greater flexibility for intermediaries and their customers in their methods of doing business. The Commission is considering the costs and benefits of these rules in light of the specific provisions of section 15 of the Act:
1.
2.
3.
4.
5.
After considering these factors, the Commission has determined to propose the revisions to its rules discussed above. The Commission invites public comment on its application of the new cost-benefit provision. Commenters also are invited to submit any data that they may have quantifying the costs and benefits of the proposed rules with their comment letters.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
This proposed rulemaking contains information collection requirements. As required by the Paperwork Reduction Act of 1995, 44 U.S.C. § 3507(d), the Commission has submitted a copy of these proposed amendments to its rules to the Office of Management and Budget (OMB) for its review.
Rules Relating to the Operations and Activities of Commodity Pool Operators and Commodity Trading Advisors and to Monthly Reporting by Futures Commission Merchants, OMB Control Number 3038-0005.
Rules Pertaining to Contract Markets and Their Members, OMB Control Number 3038-0022.
Regulations and Forms Pertaining to the Financial Integrity of the Marketplace, OMB Control Number 3038-0024.
The proposed amendments would not affect the paperwork burdens associated with the above collections of information, which have previously been approved by OMB in connection with the Commission's previous submission of the proposed rules.
Rules, Regulations and Forms for Domestic and Foreign Futures and Options Relating to Registration with the Commission, OMB Control Number 3038-0023.
The proposed rules will reduce the collection of information burden previously approved by OMB by 2 hours because of the elimination of Rule 3.32:
The annual reporting burden of 7,337 hours represents a reduction of 2 hours as a result of the proposed new rules.
Copies of the information collection submission to OMB are available from the CFTC Clearance Officer, 1155 21st Street, NW., Washington, DC 20581, (202) 418-5160.
Persons wishing to comment on the information collection requirements that would be required by these proposed rules should contact the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attn: Desk Officer for the Commodity Futures Trading Commission.
The Commission considers comments by the public on this proposed collection of information in—
• Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• Evaluating the accuracy of the Commission's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhancing the quality, utility, and clarity of the information to be collected; and
• Minimizing the burden of the collection of the information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology,
OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
Copies of the information collection submission to OMB are available from the CFTC Clearance Officer, 1155 21st Street, NW., Washington, DC 20581 (202) 418-5160.
Brokers, Commodity futures, Consumer protection, Reporting and recordkeeping requirements.
Administrative practice and procedure, Brokers, Commodity futures, Principals, Registration, Reporting and recordkeeping requirements.
Advertising, Commodity futures, Commodity pool operators, Commodity trading advisors, Consumer protection, Disclosure, Principals, Reporting and recordkeeping requirements.
Authority delegations (Government agencies), Conflict of interests, Organization and functions (Government agencies).
Brokers, Commodity futures, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Commission hereby proposes to amend Chapter I of Title 17 of the Code of Federal Regulations as follows:
1. The authority citation for Part 1 is revised to read as follows:
7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23, and 24, as amended by Appendix E of Pub. L. No. 106-554, 114 Stat. 2763 (2000).
2. Section 1.3 is amended by adding new paragraph (g) to read as follows:
(g)
3. Section 1.10 is amended by revising paragraphs (a)(2) and (j)(8) to read as follows:
(a) * * *
(2)(i)(A) Except as provided in paragraphs (a)(3) and (h) of this section, each person who files an application for registration as a futures commission merchant and who is not so registered at the time of such filing, must, concurrently with the filing of such application file either:
(
(
(B) Each such person must include with such financial report a statement describing the source of his current assets and representing that his capital has been contributed for the purpose of operating his business and will continue to be used for such purpose.
(ii)(A) Except as provided in paragraphs (a)(3) and (h) of this section, each person who files an application for registration as an introducing broker and who is not so registered at the time of such filing, must, concurrently with the filing of such application file either:
(
(
(
(
(B) Each person filing in accordance with paragraphs (a)(2)(ii)(A) (
(j) * * *
(8)(i)(A) An introducing broker which is a party to a guarantee agreement which has been terminated in accordance with the provisions of paragraph (j)(5) of this section, or which is due to expire in accordance with the provisions of paragraph (j)(4)(ii) of this section, must cease doing business as an introducing broker on or before the effective date of such termination or expiration unless, on or before 10 days prior to the effective date of such termination or expiration or such other period of time as the Commission or the designated self-regulatory organization may allow for good cause shown, the introducing broker files with its designated self-regulatory organization either a new guarantee agreement effective as of the day following the date of termination of the existing agreement, or, in the case of a guarantee agreement which is due to expire in accordance with the provisions of paragraph (j)(4)(ii) of this section, a new guarantee agreement effective on or before such expiration, or either:
(
(
(B) Each person filing a Form 1-FR-IB in accordance with this section must include with the financial report a statement describing the source of his current assets and representing that his capital has been contributed for the purpose of operating his business and will continue to be used for such purpose.
(ii)(A) Notwithstanding the provisions of paragraph (j)(8)(i) of this section or of § 1.17(a), an introducing broker that is a party to a guarantee agreement that has been terminated in accordance with the provisions of paragraph (j)(5)(ii) of this section shall not be deemed to be in violation of the minimum adjusted net capital requirement of § 1.17(a)(1)(ii) or (a)(2) for 30 days following such termination. Such an introducing broker must cease doing business as an introducing broker on or after the effective date of such termination, and may not resume doing business as an introducing broker unless and until it files a new agreement or either:
(
(
(B) Each person filing a Form 1-FR-IB in accordance with this section must include with the financial report a statement describing the source of his current assets and representing that his capital has been contributed for the purpose of operating his business and will continue to be used for such purpose.
4. Section 1.17 is amended by redesignating paragraph (a)(1)(ii) as
(a) * * *
(1) * * *
(ii) Each person registered as a futures commission merchant engaged in soliciting or accepting orders and customer funds related thereto for the purchase or sale of any commodity for future delivery or any commodity option on or subject to the rules of a registered derivatives transaction execution facility from any customer who does not qualify as an “institutional customer” as defined in § 1.3(g) must:
(A) Be a clearing member of a derivatives clearing organization and maintain net capital in the amount of the greater of $20,000,000 or the amounts otherwise specified in paragraph (a)(1)(i) of this section; or
(B) Receive orders on behalf of the customer from a commodity trading advisor acting in accordance with § 4.32 of this chapter.
5. Section 1.33 is amended by adding a new paragraph (g) to read as follows:
(g)
(2) In the case of a customer who does not qualify as an “institutional customer” as defined in § 1.3(g), a futures commission merchant must obtain the customer's signed consent acknowledging disclosure of the information set forth in paragraph (g)(1) of this section prior to the transmission of any statement by means of electronic media.
(3) Any statement required to be furnished to a person other than a customer in accordance with paragraph (d) of this section may be furnished by electronic media.
(4) A futures commission merchant who furnishes statements to any customer by means of electronic media must retain a daily confirmation statement for such customer as of the end of the trading session, reflecting all transactions made during that session for the customer, in accordance with § 1.31.
6. Section 1.46 is amended as follows:
a. By revising paragraph (a) introductory text,
b. By removing and reserving paragraphs (d)(4) through (d)(7),
c. By removing paragraph (d)(9) and
d. By revising paragraph (e) to read as follows:
(a)
(e) The statements required by paragraph (a) of this section may be furnished to the customer or the person described in § 1.33(d) by means of electronic transmission, in accordance with § 1.33(g).
7. Section 1.55 is amended by revising paragraphs (d) and (f) to read as follows:
(d) Any futures commission merchant, or in the case of an introduced account any introducing broker, may open a commodity futures account for a customer without obtaining the separate acknowledgments of disclosure and elections required by this section and by § 1.33(g), and by §§ 33.7 and 190.06 of this chapter, provided that:
(1) Prior to the opening of such account, the futures commission merchant or introducing broker obtains an acknowledgment from the customer, which may consist of a single signature at the end of the futures commission merchant's or introducing broker's customer account agreement, or on a separate page, of the disclosure statements and elections specified in this section and § 1.33(g), and in §§ 33.7 and 190.06 of this chapter, and which may include authorization for the transfer of funds from a segregated customer account to another account of such customer, as listed directly above the signature line, provided the customer has acknowledged by check or other indication next to a description of each specified disclosure statement or election that the customer has received and understood such disclosure statement or made such election;
(2) The acknowledgment referred to in paragraph (d)(1) of this section must be accompanied by and executed contemporaneously with delivery of the disclosures and elective provisions required by this section and § 1.33(g), and by §§ 33.7 and 190.06 of this chapter.
(f) A futures commission merchant or, in the case of an introduced account an introducing broker, may open a commodity futures account for an “institutional customer” as defined in § 1.3(g) without furnishing such institutional customer the disclosure statements or obtaining the acknowledgements required under paragraph (a) of this section, §§ 1.33(g) and 1.65(a)(3), and §§ 30.6(a), 33.7(a) and 190.10(c) of this chapter.
8. The authority citation for Part 3 is revised to read as follows:
5 U.S.C. 522, 522b; 7 U.S.C. 1a, 2, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, 23.
9. Section 3.1 is amended by revising paragraphs (a)(1) and (a)(2) to read as follows:
(a) * * *
(1) If the entity is organized as a sole proprietorship, the proprietor; if a partnership, any general partner; if a corporation, any director, the president, chief executive officer, chief operating officer, chief financial officer, and any person in charge of a principal business unit, division or function subject to regulation by the Commission; if a limited liability company or limited liability partnership, any director, the president, chief executive officer, chief operating officer, chief financial officer, the manager, managing member or those members vested with the management authority for the entity, and any person in charge of a principal business unit, division or function subject to regulation by the Commission; and, in addition, any person occupying a similar status or performing similar functions, having the power, directly or indirectly, through agreement or
(2)(i) Any individual who directly or indirectly, through agreement, holding company, nominee, trust or otherwise, is the owner of ten percent or more of the outstanding shares of any class of stock, is entitled to vote or has the power to sell or direct the sale of ten percent or more of any class of voting securities, or is entitled to receive ten percent or more of the profits; or
(ii) Any person other than an individual that is the direct owner of ten percent or more of any class of securities; or
10. Section 3.10 is amended by removing paragraph (a)(2)(ii) and by redesignating paragraph (a)(2)(i) as paragraph (a)(2).
11. Section 3.21 is amended by revising paragraph (c) introductory text to read as follows:
(c)
12. Section 3.31 is amended by redesignating paragraph (a) as paragraph (a)(1), and by adding new paragraph (a)(2) to read as follows:
(a)(1) * * *
(2) Where the deficiency or inaccuracy is created by the addition of a new principal not listed on the registrant's application for registration (or amendment of such application prior to the granting of registration), each Form 3-R filed in accordance with the requirements of paragraph (a)(1) of this section must be accompanied by a Form 8-R, completed in accordance with the instructions thereto and executed by each natural person who is a principal of the registrant and who was not listed on the registrant's initial application for registration or any amendment thereto. The Form 8-R for each such principal must be accompanied by the fingerprints of that principal on a fingerprint card provided by the National Futures Association for that purpose, unless such principal is a director who qualifies for the exemption from the fingerprint requirement pursuant to § 3.21(c). The provisions of this paragraph do not apply to any principal who has a current Form 8-R on file with the Commission or the National Futures Association.
13. Section 3.32 is removed.
14. Section 3.34 is removed.
15. Appendix A to Part 3 is amended by adding to the end thereto the following:
The Commission has further addressed “other good cause” under section 8a(3)(M) of the Act in issuing guidance letters on assessing the fitness of floor brokers, floor traders or applicants in either category:
Dear Mr. Wilmouth:
As you know, the Commission on June 26, 1997, approved for publication in the
By this correspondence, the Commission is issuing guidance that provides NFA further direction on how it expects NFA to exercise its delegated power, based upon the experience of the Commission and the staff with the registration review process during the past three years. This guidance will help ensure that NFA exercises its delegated power in a manner consistent with Commission precedent.
In exercising its delegated authority, NFA, of course, needs to apply all of the provisions of Sections 8a(2) and (3) of the Commodity Exchange Act (“Act”).
One of the areas in which NFA appears to have had the most uncertainty is with regard to previous self-regulatory organization (“SRO”) disciplinary actions. Commission Rule 1.63
Rule 1.63(a)(6) provides that a “disciplinary offense” includes: (i) any violation of the rules of an SRO except those rules related to (A) decorum or attire, (B) financial requirements, or (C) reporting or record-keeping unless resulting in fines aggregating more than $5,000 within any calendar year; (ii) any rule violation described in subparagraphs (A) through (C) above that involves fraud, deceit or conversion or results in a suspension or expulsion; (iii) any violation of the Act or the regulations promulgated thereunder; or (iv) any failure to exercise supervisory responsibility with respect to an act described in paragraphs (i) through (iii) above when such failure is itself a violation of either the rules of an SRO, the Act or the regulations promulgated thereunder.
The Commission has treated the registration process and the SRO disciplinary process as separate matters involving separate considerations. The fact that the Commission has not pursued its own enforcement case in a particular situation does not necessarily mean that the Commission considers the situation to be a minor matter for which no registration sanctions are appropriate. Further, the Commission believes that it and NFA, entities with industry-wide perspective and responsibilities, are the appropriate bodies, rather than any individual exchange, to decide issues relating to registration status, which can affect a person's ability to function in the industry well beyond the jurisdiction of a particular exchange. Thus, NFA's role is in no way related to review of exchange sanctions for particular conduct, but rather it is the entirely separate task of determining whether an FB's or FT's conduct should impact his or her registration.
NFA also should look to Commission precedent in selecting conditions or restrictions to be imposed, such as a dual trading ban where a person has been involved in disciplinary offenses involving customer abuse. Where conditions or restrictions are imposed, or agreed upon, NFA also should follow Commission precedent, under which such conditions or restrictions generally have been imposed for a two-year period.
The Commission has required sponsorship for conditioned FBs and FTs when their disciplinary offenses have involved noncompetitive trading and fraud irrespective of the level of sanctions imposed by an SRO. Indeed, but for a sponsorship requirement there would be no one routinely watching and responsible for the activities of these registrants. Absent sponsorship, such FBs and FTs would only be subject to routine Commission and exchange surveillance. The Commission's rules are premised upon the judgment that requiring FTs and FBs to have sponsors to ensure their compliance with conditions is both appropriate and useful. See Rule 3.60(b)(2)(i).
A question has arisen whether, if NFA is required to prove up the underlying facts of an SRO disciplinary action, the exchanges can provide information on exchange disciplinary proceedings directly to NFA. Although Section 8c(a)(2) of the Act states that an exchange shall not disclose the evidence for a disciplinary action except to the person disciplined and to the Commission, Section 8a(10) of the Act allows the Commission to authorize any person to perform any portion of the registration functions under the Act, notwithstanding any other provision of law. The effective discharge of the delegated registration function requires NFA to have access to the exchange evidence. Thus, the Commission believes that Section 8a(10) may reasonably be interpreted to allow the disclosure of information from exchange disciplinary proceedings directly to NFA despite the provisions of Section 8c(a)(2).
Nothing in the Notice and Order affects the Commission's authority to review the granting of a registration application by NFA in the performance of Commission registration functions, including review of the sufficiency of conditions or restrictions imposed by NFA, to review the determination by NFA not to take action to affect an existing registration, or to take its own action to address a statutory disqualification. Moreover, the Commission Order contemplates that to allow for appropriate Commission oversight of NFA's exercise of this delegated authority, NFA will provide for the Commission's review quarterly schedules of all applicants cleared for registration and all registrants whose registrations are maintained without adverse action by NFA's Registration, Compliance, Legal Committee despite potential statutory disqualifications.
The Commission will continue to monitor NFA activities through periodic rule enforcement reviews, and NFA remains subject to the present requirement that it monitor compliance with the conditions and restrictions imposed on conditioned and restricted registrants.
Dear Mr. Wilmouth:
In July 1997, the Commission issued a Notice and Order authorizing the National Futures Association (“NFA”) to grant or to maintain, either with or without conditions or restrictions, floor broker (“FB”) or floor trader (“FT”) registration where NFA previously would have forwarded the case to the Commission for review of disciplinary history.
The Commission has determined to revise the Guidance Letter. Specifically, the Commission is revising the portion of the Guidance Letter that addresses the use of exchange disciplinary actions as “other good cause” to affect FB and FT registrations. The Commission has made this determination following its own reconsideration of the issue and at the urging of industry members.
The Guidance Letter pointed out that, in exercising its delegated authority, NFA must apply all of the provisions of Sections 8a(2) and (3) of the Commodity Exchange Act (“Act”).
The Guidance Letter recommended the application of the provisions of Commission
Rule 1.63(a)(6) defines a “disciplinary offense” to include:
(i) any violation of the rules of an SRO except those rules related to (A) decorum or attire, (B) financial requirements, or (C) reporting or record-keeping unless resulting in fines aggregating more than $5,000 within any calendar year; (ii) any rule violation described in subparagraphs (A) through (C) above that involves fraud, deceit or conversion or results in a suspension or expulsion; (iii) any violation of the Act or the regulations promulgated thereunder; or (iv) any failure to exercise supervisory responsibility with respect to an act described in paragraphs (i) through (iii) above when such failure is itself a violation of either the rules of an SRO, the Act or the regulations promulgated thereunder.
As stated above, the Commission has determined to revise the Guidance Letter. From this point forward, NFA should cease using Rule 1.63 as the basis to evaluate the impact of an FB or FT applicant's or registrant's disciplinary history on his or her fitness to be registered. Instead, as
NFA also should consider initiating proceedings to affect the registration of the FB or FT, even if there is only a single exchange action against the FB or FT, if the exchange action was based on allegations of particularly egregious misconduct or involved numerous instances of misconduct occurring over a long period of time. If, however, a proceeding is initiated based on a single exchange action that was disposed of by settlement, NFA may have to prove up the underlying misconduct. Furthermore, traditional principles of collateral estoppel apply to adjudicated actions, whether they are being considered individually or as part of a pattern.
As provided by the Guidance Letter, “exchange disciplinary actions” would continue to include disciplinary actions taken by both futures industry SROs and SROs as defined in Section 3(a)(26) of the 1934 Exchange Act. Furthermore, NFA should review an applicant's or registrant's disciplinary history for the past five years.
Congress, the courts and the Commission have indicated the importance of considering an applicant's history of exchange disciplinary actions in assessing that person's fitness to register.
The Commission also wants to clarify to the fullest extent possible that its power to delegate the authority to deny or condition the registration of an FB, FT, or an applicant for registration in either category permits exchanges to disclose to NFA all evidence underlying exchange disciplinary actions, notwithstanding the language of Section 8c(a)(2) of the Act.
This letter supersedes the Guidance Letter to the extent discussed above. In all other aspects, the Guidance Letter and other guidance provided by the Commission or its staff remain in effect. Therefore, NFA should continue to follow Commission precedent when selecting conditions or restrictions to be imposed. For example, NFA should impose a dual trading ban where customer abuse is involved and any conditions or restrictions imposed should be for a two-year period. Furthermore, NFA should require sponsorship for conditioned FBs or FTs when their disciplinary offenses involve noncompetitive trading and fraud.
Nothing in the Notice and Order or this letter affects the Commission's authority to review the granting of a registration application by NFA in the performance of Commission registration functions, including review of the sufficiency of conditions or restrictions imposed by NFA, to review the determination by NFA not to take action to affect an existing registration, or to take its own action to address a statutory disqualification. Moreover, the Commission Order contemplates that to allow for appropriate Commission oversight of NFA's exercise of this delegated authority, NFA will provide for the Commission's review quarterly schedules of all applicants cleared for registration and all registrants whose registrations are maintained without adverse action by NFA's Registration, Compliance, Legal Committee despite potential statutory disqualifications.
The Commission will continue to monitor NFA activities through periodic rule enforcement reviews, and NFA remains subject to the present requirement that it monitor compliance with the conditions and restrictions imposed on conditioned and restricted registrants.
16. Part 3 is amended by adding Appendix B to read as follows:
(a) The provisions of Section 4p(b) of the Act (7 U.S.C. 6p(b) (1994)) set forth requirements regarding training of registrants as to their responsibilities to the public. This section requires the Commission to issue regulations requiring new registrants to attend ethics training sessions within six months of registration, and all registrants to attend such training on a periodic basis. The awareness and maintenance of professional ethical standards are essential elements of a registrant's fitness. Further, the use of ethics training programs is relevant to a registrant's maintenance of adequate supervision, a requirement under Rule 166.3.
(b)(1) The Commission recognizes that technology has provided new, faster means of sharing and distributing information. In view of the foregoing, the Commission has chosen to allow registrants to develop their own ethics training programs. Nevertheless, futures industry professionals may want guidance as to the role of ethics training. Registrants may wish to consider what ethics training should be retained, its format, and how it might best be implemented. Therefore, the Commission finds it appropriate to issue this Statement of Acceptable Practices regarding appropriate training for registrants, as interpretative guidance for intermediaries on fitness and supervision. Commission registrants may look to this Statement of Acceptable Practices as a “safe harbor” concerning acceptable procedures in this area.
(2) The Commission believes that section 4p(b) of the Act reflects an intent by Congress that industry professionals be aware, and remain abreast, of their continuing obligations to the public under the Act and the regulations thereunder. The text of the Act provides guidance as to the nature of these responsibilities. As expressed in section 4p(b) of the Act, personnel in the industry have an obligation to the public to observe the Act, the rules of the Commission, the rules of any appropriate self-regulatory organizations or contract markets (which would also include registered derivatives transaction execution facilities), or other applicable federal or state laws or regulations. Further, section 4p(b) acknowledges that registrants have an obligation to the public to observe “just and equitable principles of trade.”
(3) Additionally, section 4p(b) reflects Congress' intent that registrants and their personnel retain an up-to-date knowledge of these requirements. The Act requires that registrants receive training on a periodic basis. Thus, it is the intent of Congress that Commission registrants remain current with regard to the ethical ramifications of new technology, commercial practices, regulations, or other changes.
(c) The Commission believes that training should be focused to some extent on a person's registration category, although there will obviously be certain principles and issues common to all registrants and certain general subjects that should be taught. Topics to be addressed include:
(1) An explanation of the applicable laws and regulations, and the rules of self-regulatory organizations or contract markets and registered derivatives transaction execution facilities;
(2) The registrant's obligation to the public to observe just and equitable principles of trade;
(3) How to act honestly and fairly and with due skill, care and diligence in the best interests of customers and the integrity of the market;
(4) How to establish effective supervisory systems and internal controls;
(5) Obtaining and assessing the financial situation and investment experience of customers;
(6) Disclosure of material information to customers; and
(7) Avoidance, proper disclosure and handling of conflicts of interest.
(d) An acceptable ethics training program would apply to all of a firm's associated persons and its principals to the extent they are required to register as associated persons. Additionally, personnel of firms that rely on their registration with other regulators, such as the Securities and Exchange Commission, should be provided with ethics training to the extent the Act and the Commission's regulations apply to their business.
(e) As to the providers of such training, the Commission believes that classes sponsored by independent persons, firms, or industry associations would be acceptable. It would also be permissible to conduct in-house training programs. Further, registrants should ascertain the credentials of any ethics training providers they retain. Thus, persons who provide ethics training should be required to provide proof of satisfactory completion of the proficiency testing requirements applicable to the registrant and evidence of three years of relevant industry or pedagogical experience in the field. This industry experience might include the practice of law in the fields of futures or securities, or employment as a trader or risk manager at a brokerage or end-user firm. Likewise, the Commission believes that registrants should employ as ethics training providers only those persons they reasonably believe in good faith are not subject to any investigations or to bars to registration or to service on a self-regulatory organization governing board or disciplinary panel.
(f)(1) With regard to the frequency and duration of ethics training, it is permissible for a firm to require training on whatever periodic basis and duration the registrant (and relevant self-regulatory organizations) deems appropriate. It may even be appropriate not to require any such specific requirements as, for example, where ethics training could be termed ongoing. For instance, a small entity, sole proprietorship, or even a small section in an otherwise large firm, might satisfy its obligation to remain current with regard to ethics obligations by distribution of periodicals, legal cases, or advisories. Use of the latest information technology, such as Internet websites, can be useful in this regard. In such a context, there would be no structured classes, but the goal should be a continuous awareness of changing industry standards. A corporate culture to maintain high ethical standards should be established on a continuing basis.
(2) On the other hand, larger firms which transact business with a larger segment of the public may wish to implement a training program that requires periodic classwork. In such a situation, the Commission believes it appropriate for registrants to maintain such records as evidence of attendance and of the materials used for training. In the case of a floor broker or floor trader, the applicable contract market or registered derivatives transaction execution facility should maintain such evidence on behalf of its member. This evidence of ethics training could be offered to demonstrate fitness and overall compliance during audits by self-regulatory organizations, and during reviews of contract market or registered derivatives transaction execution facility operations.
(g) The methodology of such training may also be flexible. Recent innovations in information technology have made possible new, fast, and cost-efficient ways for registrants to maintain their awareness of events and changes in the commodity interest markets. In this regard, the Commission recognizes that the needs of a firm will vary according to its size, personnel, and activities. No format of classes will be required. Rather, such training could be in the form of formal class lectures, video presentation, Internet transmission, or by simple distribution of written materials. These options should provide sufficiently flexible means for adherence to Congressional intent in this area.
(h) Finally, it should be noted that self-regulatory organizations and industry associations will have a significant role in this area. Such organizations may have separate ethics and proficiency standards, including ethics training and testing programs, for their own members.
17. The authority citation for Part 4 continues to read as follows:
7 U.S.C. 1a, 2, 6b, 6c, 6l, 6m, 6n, 6o, 12a, and 23.
18. Section 4.10 is amended by revising paragraph (e)(1) to read as follows:
(e)(1)
19. Section 4.24 is amended by revising paragraphs (f)(1)(v) and (h)(2) to read as follows:
(f) * * *
(1) * * *
(v) Each principal of the persons referred to in this paragraph (f)(1) who participates in making trading or operational decisions for the pool or who supervises persons so engaged.
(h) * * *
(2) A description of the trading and investment programs and policies that will be followed by the offered pool, including the method chosen by the pool operator concerning how futures commission merchants carrying the pool's accounts shall treat offsetting positions pursuant to § 1.46 of this chapter, if the method is other than to close out all offsetting positions or to close out offsetting positions on other than a first-in, first-out basis, and any material restrictions or limitations on trading required by the pool's organizational documents or otherwise. This description must include, if applicable, an explanation of the systems used to select commodity trading advisors, investee pools and types of investment activity to which pool assets will be committed;
20. Section 4.32 is added to read as follows:
(a) A registered commodity trading advisor may enter trades on or subject to the rules of a registered derivatives transaction execution facility on behalf of a client who does not qualify as an “institutional customer” as defined in § 1.3(g) of this chapter, provided that the trading advisor:
(1) Directs the client's commodity interest account;
(2) Directs accounts containing total assets of not less than $25,000,000 at the time the trade is entered; and
(3) Discloses to the client that the trading advisor may enter trades on or subject to the rules of a registered derivatives transaction execution facility on the client's behalf.
(b) The commodity interest account of a client described in paragraph (a) of this section must be carried by a registered futures commission merchant.
21. Section 4.34 is amended by revising paragraphs (f)(1)(ii) and (h) to read as follows:
(f) * * *
(1) * * *
(ii) Each principal of the trading advisor who participates in making trading or operational decisions for the trading advisor or supervises persons so engaged.
(h)
22. The authority citation for Part 140 continues to read as follows:
7 U.S.C. 2, 12a.
23. Section 140.91 is amended by adding paragraph (a)(7) to read as follows:
(a) * * *
(7) All functions reserved to the Commission in § 1.25 of this chapter.
24. The authority citation for Part 155 continues to read as follows:
7 U.S.C. 6b, 6c, 6g, 6j and 12a unless otherwise noted.
25. Section 155.6 is added to read as follows:
(a) A futures commission merchant, or affiliated person thereof, transacting business on behalf of a customer who does not qualify as an “institutional customer” as defined in § 1.3(g) on a registered derivatives transaction execution facility shall comply with the provisions of § 155.3.
(b) No futures commission merchant, introducing broker or affiliated person thereof shall misuse knowledge of any institutional customer's order for execution on a registered derivatives transaction execution facility.
U.S. Customs Service, Department of the Treasury.
Proposed rule; extension of comment period.
On July 17, 2001, Customs published in the
Comments on the proposed amendments must be received on or before October 17, 2001.
Written comments (preferably in triplicate) may be addressed to the Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC 20229. Comments submitted may be inspected at the Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service 1300 Pennsylvania Avenue, NW., 3rd Floor, Washington, DC.
John Elkins, Textiles Branch, Office of Regulations and Rulings (202-927-2380).
On July 17, 2001, Customs published in the
Customs has received a letter from an international trade association requesting a 60-day extension of the public comment period. The letter explained that an extension was necessary because of the difficulty in collecting the views of the association's extensive membership during the summer vacation season regarding a matter that is of critical importance for the international trade community.
Customs believes that the request for a 60-day extension of the comment period must be balanced against the need to move forward with this important regulatory project. Accordingly, while Customs is sympathetic with the arguments made in support of an extension of the comment period, Customs believes that a 30-day extension would be more appropriate and would still afford sufficient additional time for the submission of comments by all interested parties. After the close of the extended comment period, Customs will review the comments submitted and will determine whether those comments raise issues that are of sufficient magnitude as to warrant reopening the comment period, publishing revised proposed amendments and/or instituting another appropriate public procedure prior to taking final action on this matter.
Accordingly, the public comment period is extended 30 days, to October 17, 2001.
Minerals Management Service (MMS), Interior.
Proposed rule.
The proposed rule pertains to any pipeline modification or repair that involves cutting into a pipeline or opening a pipeline at a flange. It requires that all lessees, lease operators, and pipeline right-of-way holders submit in writing the measures they plan to take and the procedures they plan to follow to ensure the safety of offshore workers and to prevent pollution before beginning any repair. Eventually, all pipeline valves leak internally, and this poses a potential safety problem to offshore workers during pipeline modifications or repairs, because hydrocarbons and pressure differentials in pipelines can pose a significant hazard of fire and explosion.
MMS will consider all comments we receive by October 29, 2001. We will begin reviewing comments then and may not fully consider comments we receive after October 29, 2001.
Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Mail Stop 4020; 381 Elden Street; Herndon, Virginia 20170-4817; Attention: Rules Processing Team (RPT). If you wish to e-mail comments, the RPT's e-mail address is:
Mail or hand-carry comments with respect to the information collection burden of the proposed rule to the Office of Information and Regulatory Affairs; Office of Management and Budget; Attention: Desk Officer for the Department of the Interior (OMB control number 1010-NEW); 725 17th Street, NW., Washington, DC 20503.
Carl W. Anderson, Operations Analysis Branch, at (703) 787-1608 or e-mail at carl.anderson@mms.gov.
MMS is authorized to issue and enforce rules to promote safe operations, environmental protection, and resource conservation on the Outer Continental Shelf (OCS). (The OCS Lands Act (43 U.S.C. 1331
Cutting into or opening an existing pipeline for purposes of modifying or repairing it are among the most hazardous operations involving offshore oil and gas production and transportation. The pipeline first must be properly purged of significant collections of hydrocarbons, hydrogen sulfide (H
For example, a gas “bubble” in a pipeline on the seabed under 400 feet of water may be fairly confined by the pressure exerted by hydrocarbons or water in the pipeline at that depth. If, however, that relatively limited bubble is allowed to circulate to a surface opening and work area where the pressure is decreased to “one atmosphere,” the bubble may quickly expand into a gas cloud that could drive additional gas or liquid hydrocarbons into the area and either asphyxiate or burn platform workers. Such an occurrence resulted in seven fatalities and the loss of the entire production platform at South Pass 60, Platform B, in March 1989. MMS's investigation report for this accident concluded that two contributing causes to the accident were “the absence of detailed and coordinated planning for the project,” and “the absence of oversight over contractor activities.”
Other multiple fatalities have occurred offshore when workers attempted either to cut into a pipeline or open a pig trap when they believed that combustible hydrocarbons or high pressure had been eliminated from the system. Such accidents occurred at Galveston Block 189, Platform A in May 1970 (nine fatalities), and Main Pass 41, Platform B, in August 1995 (two fatalities).
In the Main Pass Block 41 accident, two workers died when they attempted to blow down a 16-inch pipeline through its pig trap. They were instantly killed when they erroneously opened the pig trap door while it was under 1,000 pounds of pressure. Three years earlier, the senior worker had received a commendation in his performance appraisal for substantially reducing the time it takes to blow down a pipeline by using a pig trap. In the subsequent accident investigation hearing conducted by MMS, company workers said it was “abnormal” to blow down a pipeline using a pig trap, and the company Operations Supervisor said that it was an unacceptable method for blowing down a pipeline. Although the pipeline blow-down operation had been discussed at the daily morning meeting, there had been no agreed-upon or written procedure for conducting the operation.
During late 2000, a diver was killed during a subsea pipeline repair because of negative pressure conditions in the pipeline engendered by attempts to de-pressurize the pipeline before repairs. Under sea-bottom conditions, the negative pressures created vacuum-like conditions in the pipeline relative to the outside environment. This accident emphasized that negative-pressure conditions in a pipeline can be as deadly as over-pressure conditions.
Early in 1998, the American Petroleum Institute (API) requested that MMS incorporate by reference into its regulations, at 30 CFR 250.198, Supplements 1 and 2 to API Specification 6D (API Spec 6D), “Specification for Pipeline Valves (Gate, Plug, Ball, and Check Valves),” Twenty-first Edition, March 31, 1994 . MMS regulations had incorporated API Spec 6D, but not its supplements.
The API Subcommittee on Valves and Wellhead Equipment issued Supplements 1 and 2 to API Spec 6D on December 1, 1996, and December 1, 1997, respectively. (Supplement 2 actually fully incorporates and expands upon Supplement 1.) For metal-to-metal seated valves, the Supplements changed from a “no visible leakage” standard to “allowable internal leakage rates” according to valve size. Prior to API's issuing the supplements, API Spec 6D allowed no visible leakage from any valves.
Valve leakage within pipelines poses a special safety concern. Once a pipeline system is purged of all contents and its valves closed, there is a danger that the system may become re-pressurized if the valves leak. Since all pipeline systems eventually are either cut into or opened at a flange for repair or modification purposes, internal valve leakage can have deadly consequences for unsuspecting workers. Also, acceptance of “allowable leakage rates” means that out-of-service pipelines isolated by block valves are never completely shut down.
MMS rejected Supplements 1 and 2 as documents incorporated by reference by issuing Notice to Lessees and Operators on the Outer Continental Shelf (NTL) No. 98-16N in October 1998. MMS needed more time to discuss the issues with API and to consider the ramifications of the “allowable internal leakage” standard for the OCS regulatory program. MMS reasoned:
“It may well be that the “no visible leakage” standard contained in the 21st and previous editions of API Spec 6D is an unreasonably high standard for metal-to-metal seats. Metal-to-metal seats are non-deforming compared to non-metal-to-metal seats; therefore, it may be reasonable to expect that some leakage would occur between facing metal surfaces. Nevertheless, there appears to be no data or agreed-upon formula for predicting an acceptable leakage rate.”
MMS made a concerted attempt with API to research this issue and held further discussions with industry. In February 1999, MMS proposed a research project on leakage rates to API. They surveyed their members on their perceptions of the “allowable leakage rates” and willingness to participate in the research project. Only 25 of 250 potential respondents replied. Their answers indicated that few valve suppliers believe that the “no visible leakage” standard is realistic, other than for special-purpose, non-off-the-shelf (i.e., expensive) valves. Support for new research was very limited.
Industry representatives maintained that there are little formal data on leakage rates. They explained, however, that most correspondence on this subject focuses on leakage rates contained in International Standards Organization Standard 5208, Rate D. These rates are incorporated into Supplements 1 and 2. The API Spec 6D workgroup generally agreed that these leakage rates are reasonable and in line with their experience.
Participants in the API Spec 6D workgroup almost unanimously agree that all pipeline valves leak significantly after they have been in service for a short time due to operational residue and abrasion. This indicates that initial leakage rates for new valves are usually irrelevant by the time a pipeline is in need of repair or placed out-of-service. Therefore, measures in addition to “closed valves” are needed to protect workers and to ensure “isolated pipelines” during pipeline repairs.
MMS's pipeline staff conferred on these issues in November 1999 and decided that rejecting the new allowable internal leakage rates would be unrealistic in light of what MMS had learned from its discussions with industry. Moreover, the maintenance of an unrealistic “no visible leakage” standard would not address the real regulatory dilemma that regardless of initial internal leakage rates, eventually all pipeline valves will leak internally.
Therefore, the MMS workgroup recommended canceling NTL 98-16N and adopting Supplement 2 as a document incorporated by reference. On May 1, 2000, MMS issued a technical amendment to its regulations adopting Supplement 2 to API Spec 6D as a document incorporated by reference. As of May 31, 2000, NTL No. 98-16N was cancelled.
The MMS workgroup further reasoned that since internal leakage occurs in pipeline valves regardless of initial leakage rates, MMS must address this concern in its inspection and maintenance procedures. Therefore, the MMS workgroup also recommended the amendments to subpart J that are the subject of this proposed rulemaking.
The proposed rule would require that all lessees, lease operators, and pipeline right-of-way holders consider and submit in writing the measures they plan to take and the procedures they plan to follow to ensure the safety of company or contract workers and to prevent pollution during pipeline modifications or repairs. These written measures and procedures would be required before beginning any pipeline modification or repair that involves cutting into a pipeline or opening a pipeline at a flange. Accidents involving pipeline modifications and repairs have the potential for fire or explosion resulting in fatalities, heavy equipment damage, and spills. This rulemaking is necessary to ensure the degree of safety necessary to protect pipeline workers and prevent pollution. The rule would amend 30 CFR Part 250, Subpart J—Pipelines and Pipeline Rights-of-Way by:
• Revising Section (§ ) 250.1000, paragraph (b);
• Adding a new definition to § 250.1001;
• Redesignating current paragraph (c) under § 250.1007 as paragraph (d);
• Adding a new paragraph (c) to § 250.1007;
• Revising § 250.1008, paragraph (e); and
• Revising § 250.1014.
If we can never be sure that a valve is holding its seal, then we have to assume that an “isolated” pipeline segment contains pressure, H
(1) Consider the operating history of the pipeline segment to be modified or repaired, including past modifications or repairs and operating conditions peculiar to that segment;
(2) Employ all reasonable measures to ensure that pressure in the pipeline segment is equal to the external pressure (internally, there should be neither over-pressure nor negative pressure relative to external pressure), and that they purge all combustibles from the segment immediately before conducting any work;
(3) Develop procedures, first, to inform all facility workers (both company and contract workers) in advance concerning the nature of any upcoming modification or repair, and then to alert all facility workers immediately before any attempts to de-pressurize a pipeline and immediately before cutting into or opening any pipeline to perform the modification or repair;
(4) Ensure that they maintain onsite supervision during the entire modification or repair; and
(5) Provide procedures and safeguards to ensure that the segment remains isolated during the entire modification or repair so that facility workers (both company and contract) are not endangered by pressure differentials, H
We originally intended to write a requirement for out-of-service pipelines in this proposed rulemaking, but decided against it. However, we are proposing a definition for out-of-service pipelines, since subpart J currently does not have a criterion for declaring a pipeline out of service.
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 rulemaking record, which we will honor to the extent allowable by law. There may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you 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 businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
This is not a significant rule under Executive Order 12866 and does not require review by the Office of Management and Budget (OMB).
a. The proposed rule will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The proposed rule will not create an adverse effect upon the ability of the United States offshore oil and gas industry to compete in the world marketplace, nor will the proposal adversely affect investment or employment factors locally. The economic effects of the rule would not be significant. They would add about $400 to the cost of each pipeline modification or repair. This is not a large cost compared to the overall cost of a modification or repair, and it may reduce significantly the possibility of a fatal or environmentally damaging accident during the course of a repair. Direct costs to industry for the entire proposed rule total $80,000 annually. This is based on the approximately 25 applications we receive annually for pipeline modifications in both the Gulf of Mexico and Pacific OCS Regions. We also receive notifications of about 175 pipeline repairs annually for both Regions. All modifications and repairs add up to a total of 200 written procedures at an average cost of $400 each (200 procedures × $400 per procedure = $80,000). This also constitutes the entire annual Paperwork Reduction Act burden costs for the proposed rule. The proposed rule will have a minor and perhaps indeterminate economic effect on the offshore oil and gas and transmission pipeline industries.
b. This rule will not create inconsistencies with other agencies' actions. This rule does not change the relationships of the OCS oil and gas leasing program with other agencies' actions. These relationships are all encompassed in agreements and memoranda of understanding that will not change with this proposed rule. This rulemaking is being coordinated with the Office of Pipeline Safety under the DOT, according to the 1996 Memorandum of Understanding on OCS pipelines between the DOI and DOT.
c. This rule will not affect entitlements, grants, loan programs, or the rights and obligations of their recipients. It is strictly a planning requirement to prevent accidents and environmental pollution on the OCS.
d. This rule will not raise novel legal or policy issues. There is a precedent for actions of this type under regulations dealing with the OCS Lands Act and the Oil Pollution Act of 1990.
DOI has determined that this rule will not have a significant economic effect on a substantial number of small entities. While this rule will affect a substantial number of small entities, the economic effects of the rule will not be significant.
The regulated community for this proposal consists of about 160 oil and gas producers and 88 pipeline companies. Of these operators, 80 producers and 18 pipeline companies are considered to be “small.” Of the small producers to be affected by the proposed rule, almost all are represented by the North American Industry Classification System (NAICS) code 211111 (crude petroleum and natural gas extraction). The small pipeline companies are represented primarily by NAICS codes 486110 (crude petroleum pipelines) and 486210 (natural gas transmission pipelines).
DOI's analysis of the economic impacts indicates that direct costs to both large and small companies for the entire rule total approximately $80,000 annually. The proposed rule will have a minor and perhaps indeterminate economic effect on any of the production or transportation pipeline operators on the OCS, regardless of
Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247.
This rule is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866. The rule does not have a significant effect on energy supply, distribution, or use because in the overwhelming majority of cases, operators choose to perform pipeline repairs or modifications on their own initiative, not because of an MMS safety inspection. The proposed rule would add about $400 to the cost of each pipeline modification or repair. This is not a large cost compared to the overall cost of a modification or repair, and it may reduce significantly the possibility of a fatal or environmentally damaging accident during the course of a repair. MMS' analysis of the economic impacts indicates that direct costs to both large and small companies for the entire rule total approximately $80,000 annually. All modifications and repairs add up to a total of 200 written procedures at an average cost of $400 each (200 procedures × $400 per procedure = $80,000). This will not significantly affect domestic energy supply, distribution, or use.
This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. The proposed rule would add about $400 to the cost of each pipeline modification or repair, but this is not a large cost compared to the overall cost of a modification or repair. Moreover, it may reduce significantly the possibility of a fatal or environmentally damaging accident during the course of a repair. Such an accident could be economically disastrous for a small entity. Thus, the proposed rule will have a minor and perhaps indeterminate economic effect on the small offshore oil and gas operators and transmission pipeline companies. Based on our economic analysis:
a. This rule does not have an annual effect on the economy of $100 million or more. As indicated in our cost analysis, direct costs to industry for the entire proposed rule total approximately $80,000 annually. The proposed rule will have a minor economic effect on the offshore oil and gas and transmission pipeline industries.
b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.
The proposed rule requires information collection, and an information collection request (form OMB 83-I) has been submitted to OMB for review and approval under section 3507(d) of the PRA. The title of this collection of information is “Proposed Rulemaking—30 CFR 250, Subpart J, Safety Measures and Procedures for Pipeline Modifications and Repairs.” Respondents include approximately 160 oil and gas producers and 88 pipeline companies. The frequency of reporting is on occasion. The information collection does not include questions of a sensitive nature or require proprietary information.
This proposed rule requires reporting of the following information and estimated burden hours to protect the marine, coastal, and human environment to ensure safety and compliance with the OCS Lands Act:
In § 250.1007, new paragraph (c), each lessee, lessee's operator, or pipeline right-of-way holder would be required, for any pipeline modification or repair that involves either cutting into a pipeline or opening a pipeline at a flange, to provide to the MMS Regional Supervisor a written work plan with their application to do the work that addresses the specific measures they plan to take and the procedures they plan to follow to ensure the safety of offshore personnel and to prevent pollution. We estimate that about 200 such work plans would be submitted each year, with an estimated burden of 4 hours per work plan, for a total annual burden of 800 hours.
The total public reporting burden for this information collection requirement is estimated to be 800 annual burden hours. This includes the time for reviewing instructions, searching existing data sources, and gathering the data. The proposed rule requires no recordkeeping burdens. At $100 per hour, the annual paperwork burden would be $80,000.
The requirement to respond is mandatory. The requirement is “performance-based” in that the operator determines the safest and most environmentally sound method to perform a pipeline modification or repair. MMS uses the information to ensure that the operator has taken the time to think through the work procedure so that it is performed in a safe and environmentally sound way.
All OCS lessees, lease operators, and pipeline rights-of-way holders under MMS jurisdiction are already subject to the regulatory and paperwork requirements in 30 CFR 250, subpart J, on Pipelines and Pipeline Rights-of-Way. The information collection requirements in this subpart are approved by OMB under OMB control number 1010-0050. The proposed rule revises several sections that require information collection currently approved under 1010-0050. However, the revisions only restate current requirements and do not affect the currently approved burdens.
As part of our continuing effort to reduce paperwork and respondent burdens, MMS invites the public and other Federal agencies to comment on any aspect of the reporting burden in the proposed rule. You may submit your comments directly to the Office of Information and Regulatory Affairs, OMB. Please send a copy of your comments to MMS so that we can summarize all written comments and address them in the final rule preamble. Refer to the
The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves the collection of information and assigns a control number, you are not required to respond. OMB is required to make its decision on the information collection aspects of this proposed rule between 30 to 60 days after publication in the
a. We specifically solicit comments on the following questions:
(1) Is the proposed collection of information necessary for MMS to properly perform its functions, and will it be useful?
(2) Are the estimates of the burden hours of the proposed collection reasonable?
(3) Do you have any suggestions that would enhance the quality, clarity, or usefulness of the information to be collected?
(4) Is there a way to minimize the information collection burden on those who are to respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology?
b. In addition, the PRA requires agencies to estimate the total annual reporting and recordkeeping “non-hour” cost burden resulting from the collection of information. We have not identified any and solicit your comments on this item. For reporting and recordkeeping only, your response should split the cost estimate into two components: (1) The total capital and startup cost component, and (2) annual operation, maintenance, and purchase of services component. Your estimates should consider the costs to generate, maintain, and disclose or provide the information. 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 over which you incur costs. Generally, your estimates should not include equipment or services purchased: before October 1, 1995; to comply with requirements not associated with the information collection; for reasons other than to provide information or keep records for the Government; or as part of customary and usual business or private practice.
According to Executive Order 13132, the rule does not have significant Federalism effects. The proposed rule does not change the role or responsibilities of Federal, State, and local governmental entities. The rule does not relate to the structure and role of States and will not have direct, substantive, or significant effects on States.
DOI certifies that this rule does not represent a governmental action capable of interference with constitutionally protected property rights.
DOI has certified to OMB that this regulation meets the applicable civil justice reform standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988.
This rule does not contain any unfunded mandates to State, local, or tribal governments, nor would it impose significant regulatory costs on the private sector. Anticipated costs to the private sector will be far below the $100 million threshold for any year that was established by UMRA.
We have analyzed this rule according to the criteria of NEPA and 516 Departmental Manual 6, Appendix 10.4C, “issuance and/or modification of regulations.” We completed a Categorical Exclusion Review (CER) for this action on April 25, 2000, and concluded: “The proposed rulemaking does not represent an exception to the established criteria for categorical exclusion, and its impacts are limited to administrative, economic, or technological effects. Therefore, preparation of an environmental document will not be required, and further documentation of this CER is not required.”
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that interfere with its clarity?
(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Is the description of the rule in the
Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov
Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Investigations, Mineral royalties, Oil and gas development and production, Oil and gas exploration, Oil and gas reserves, Penalties, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Sulphur development and production, Sulphur exploration, Surety bonds.
For the reasons stated in the preamble, the Minerals Management Service (MMS) proposes to amend 30 CFR part 250 as follows:
1. The authority citation for part 250 continues to read as follows:
43 U.S.C. 1331,
2. In § 250.1000, the following changes are made:
(A) Revise the title and paragraph (b) of the section to read as set forth below;
(B) Paragraphs (c) through (e) are redesignated as paragraphs (d) through (f);
(C) New paragraph (c) is added as set forth below.
(b) You—the lessee, lease operator, or pipeline right-of-way holder—must submit and obtain the Regional Supervisor's approval for an application before you may conduct any of the following operations:
(1) Install a pipeline;
(2) Modify a pipeline;
(3) Cut into a pipeline or open a pipeline at a flange for purposes of modifying or repairing a pipeline; or
(4) Decommission a pipeline.
(c) For right-of-way pipelines (see § 250.1001, Definitions) you must submit the applications required by paragraph (b) of this section and the requests required by this paragraph. You must obtain the Regional Supervisor's approval for each request. You must submit:
(1) A request for a pipeline right-of-way grant before you install a right-of-way pipeline;
(2) A request to modify an existing pipeline right-of-way grant before you conduct any operations that are not covered by the grant as approved; and
(3) A request to relinquish an existing pipeline right-of-way grant before you decommission a right-of-way pipeline.
3. In § 250.1001, a definition of the term “out-of-service pipeline” is added in alphabetical order as follows:
4. In § 250.1007, paragraph (c) is redesignated as paragraph (d); and a new paragraph (c) is added to read as follows:
(c) If you submit an application for a pipeline modification or repair that involves cutting into a pipeline or opening a pipeline at a flange, you must include a written work plan with your application. Your written work plan must include a description of the specific measures you intend to take and the procedures you plan to follow to ensure the safety of offshore workers and to prevent pollution during the modification or repair. If you intend to repair a pipeline by installing a full encirclement mechanical clamp on the pipeline and do not intend to either cut into or open the pipeline at a flange, you do not have to submit a written work plan with your application. In writing a work plan, you must:
(1) Consider the operating history of the pipeline segment you plan to modify or repair, including past modifications or repairs and operating conditions peculiar to the pipeline segment;
(2) Develop all reasonable measures to ensure that pressure in the pipeline segment is equal to the external pressure (internally, there should be neither over-pressure nor negative pressure relative to external pressure);
(3) Develop all reasonable measures to ensure that you purge all combustibles and hydrogen sulfide (H
(4) Develop procedures to inform all facility workers (both company and contract) in advance concerning significant aspects of the modification or repair;
(5) Develop procedures to alert all facility workers immediately before you attempt to de-pressurize the pipeline and immediately before you cut into or open the pipeline to perform the modification or repair;
(6) Maintain onsite supervision during the entire modification or repair; and
(7) Develop procedures and safeguards to ensure that the pipeline segment remains isolated during the entire modification or repair so that facility workers (both company and contract) are not endangered by pressure differentials, H
5. In § 250.1008, paragraph (e) is revised to read as follows:
(e) You must notify the Regional Supervisor within 24 hours after you decide that a pipeline repair is necessary, or immediately in cases of a pipeline failure. All such notifications must be made before you start the repair work. You must also submit a confirmation report of the repair of any pipeline or pipeline component to the Regional Supervisor within 30 days after you complete the work. Your confirmation report must include the following:
(1) Description of the repair;
(2) X-Y coordinates of the pipeline repair;
(3) Confirmation of the damage to or failure of the pipeline as originally reported;
(4) Confirmation that the repair was completed as approved by the Regional Supervisor; and
(5) Results of the hydrostatic pressure test.
6. Section 250.1014 is revised to read as follows:
You may surrender a right-of-way grant or a portion thereof by filing three copies of a written relinquishment with the Regional Supervisor. Your relinquishment must contain those items required by § 250.1007(d) of this subpart. Your relinquishment will take effect on the date you file it, provided that you have fulfilled all your obligations for outstanding debts, fees, or fines and the requirements in § 250.1009(c)(9) of this subpart.
Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The Copyright Office of the Library of Congress is seeking comment on proposed amendments to the regulations governing the content and service of certain notices on the copyright owner of a musical work. The notice is served or filed by a person who intends to use the work to make and distribute phonorecords, including by means of digital phonorecord deliveries, under a compulsory license.
Comments are due no later than September 27, 2001.
An original and ten copies of any comment shall be delivered to: Office of the General Counsel, Copyright Office, James Madison Building, Room LM-403, First and Independence Avenue, SE, Washington, DC; or mailed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
David O. Carson, General Counsel, or Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Telephone: (202) 707-8380. Telefax: (202) 252-3423.
Section 115 of the Copyright Act, 17 U.S.C., provides that “[w]hen phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person * * * may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.” 17 U.S.C. 115(a)(1). The compulsory license set forth in section 115 permits the use of a nondramatic musical work without the consent of the copyright owner if certain conditions are met and royalties are paid. It does not, however, allow for the reproduction and distribution of a sound recording. These are the exclusive rights of the copyright owner of the sound recording and must
On November 1, 1995, Congress enacted the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”), Public Law 104-39 (1995). Among other things, this law clarified that the compulsory license for making and distributing phonorecords includes the distribution of a phonorecord of a nondramatic musical work by means of a digital phonorecord delivery (“DPD”).
In addition, the person intending to use the section 115 license must provide notice to the copyright owner of a musical work of his or her intent to use the copyright owner's work under the statutory license. Pursuant to section 115(b), the Register of Copyrights has issued regulations prescribing the form, content, and manner of service of the Notice of Intention to obtain the license. Final regulations governing the content and service of the notice were adopted on November 28, 1980. 45 FR 79038 (November 28, 1980). These rules were amended to accommodate the making and distribution of phonorecords by means of a digital phonorecord delivery.
The current rules, however, make it difficult for new digital music services such as PressPlay and MusicNet, who intend to develop libraries of music with hundreds of thousands of titles and to offer these recordings to their subscribers for a fee, to use the compulsory license.
The first proposed change gives the potential licensee an option to refrain from searching or relying on the Copyright Office's records to determine the identity and/or address of the copyright owner and, instead, to serve the copyright owner at his or her current address when the person seeking the license knows the identity and the current address of the copyright owner of the reproduction and distribution rights. This alternative method of service will benefit those potential licensees who know the identity of the copyright owner and wish to avoid the time and expense associated with searching the registration and other public records in the Copyright Office, but it is not risk-free. In the event the person or entity seeking to obtain the license chooses this option and mistakenly sends the notice to a person or entity who is not the actual copyright owner or to an incorrect address, this person bears all risk associated with the misdirected filing, including the likelihood that the compulsory license will not cover any activity taken by this person or entity under a mistaken assumption that the notice was properly served. Moreover, the proposed change does not, nor can it, alter the statutory requirement that notice be served on the copyright owner “before or within thirty days after making, and before distributing any phonorecords of the work.” 17 U.S.C. 115(b)(1). If the actual copyright owner or the copyright owner's lawful agent has not been served within that time frame, digital phonorecord deliveries of the work identified in the notice cannot fall within the scope of the compulsory license.
Second, the Office is proposing amendments which would allow service of a Notice of Intention upon either the copyright owner or upon an agent authorized by the copyright owner to receive such notices. If a potential licensee chooses to serve a duly authorized agent of the copyright owner for purposes of complying with the notice requirements of this license, the agent must be specifically authorized to grant or administer the particular rights that are being licensed. In other words, an agent authorized to grant or administer the mechanical rights but not the DPD rights may accept notice on behalf of the copyright owner only from a licensee that intends to make and distribute physical phonorecords. Notice for the making of DPDs under the section 115 license would have to be served on a second agent who is authorized to grant or administer the DPD rights or, alternatively, on the copyright owner in accordance with the regulations governing proper notice.
The Office is also proposing similar changes to the rules governing the service and filing of the statements of account for the limited purpose of allowing service upon a duly authorized agent of the copyright owner. These changes are being proposed merely to harmonize the service requirements in § 201.19 with the proposed amendments to § 201.18. No further changes to § 201.19 are being considered at this time.
Of course, there is no requirement that a copyright owner authorize an agent to grant or administer rights subject to the section 115 compulsory license. Moreover, a person or entity who serves someone whom he or she believes to be an authorized agent bears the risk that he or she has not correctly identified the copyright owner's agent.
The Office is also proposing to add a requirement that, in the case where a person plans to file the Notice of Intention with the Copyright Office pursuant to § 201.18(e)(1), the notice include an affirmative statement that the registration records or other public records of the Copyright Office have been searched and that the name and address of the copyright owner is not listed in these records.
Currently, the Certificate of Filing states the date the Notice of Intention was filed, the name and address of the person or entity intending to obtain the compulsory license, and the title of the nondramatic musical work named in the Notice of Intention. However, under the proposed amendments to § 201.18, Notices of Intention may list multiple titles. Hypothetically, a Notice of Intention could list the titles of hundreds or even thousands of works, if the works have a common copyright owner. The current Certificate of Filing is ill-suited for such Notices of Intention.
Moreover, there is some question whether the Certificate of Filing serves any purpose, given that the Office routinely provides a written acknowledgment of receipt and filing. If a person wishes to obtain official certification of the filing of a Notice of Intention, perhaps a more appropriate means of certification would be for the Office to provide a certified copy of the Notice of Intention pursuant to the existing regulations governing certified copies of Copyright Office records.
Accordingly, the Office proposes to delete the provision in § 201.18(e)(1) that provides for a Certificate of Filing.
Comments on the proposed changes shall be filed with the Copyright Office no later than 30 days after publication of this notice in the
Copyright.
In consideration of the foregoing, the Copyright Office proposes amending part 201 of 37 CFR as follows:
1. The authority citation for part 201 continues to read as follows:
17 U.S.C. 702.
2. Section 201.18 is amended as follows:
a. by revising paragraph (a)(1);
b. by revising paragraph (a)(2);
c. by revising paragraph (a)(3);
d. by redesignating paragraph (a)(4) as paragraph (a)(5);
e. by adding a new paragraph (a)(4);
f. by revising paragaph (c)(1)(ii);
g. by revising paragraph (c)(1)(v);
h. by removing paragraphs (c)(1)(vi) through (c)(1)(x);
i. by adding a new paragraph (c)(1)(vi);
j. by revising paragraph (d);
k. by revising paragraph (e); and
l. by adding a new paragraph (f).
The revisions and additions to § 201.18 read as follows:
(a)
(2) A Notice of Intention shall be served or filed for nondramatic musical works embodied, or intended to be embodied, in phonorecords made under the compulsory license. A Notice of Intention may designate any number of nondramatic musical works, provided that the copyright owner of each designated work or, in the case of any work having more than one copyright owner, any one of the copyright owners is the same and that the information required under paragraphs (c)(1)(i)-(iv) of this section does not vary for any musical work listed on the Notice of Intention. For purposes of this section, a notice which lists multiple works shall be considered a composite filing of multiple notices and fees shall be paid accordingly if filed in the Copyright Office under paragraph (e) of this section.
(3) For the purposes of this section, the term copyright owner, in the case of any work having more than one copyright owner, means any one of the co-owners.
(4) For the purposes of this section, service of a Notice of Intention on a copyright owner shall include service of the Notice on either the copyright owner or a duly authorized agent of the copyright owner, provided that the agent is authorized to grant or administer the particular rights that are being licensed. In the case where the work has more than one copyright owner, the service of the Notice on any one of the co-owners of the nondramatic musical work or upon a duly authorized agent of one of the co-owners shall be sufficient with respect to all co-owners.
(c)
(1) * * *
(ii) The telephone number, the full address, including a specific number and street name or rural route, of the place of business, and an e-mail address, if available, of the person or entity intending to obtain the compulsory license. A post office box or similar designation will not be sufficient for this purpose except where it is the only address that can be used in that geographic location.
(v) For each nondramatic musical work embodied or intended to be embodied in phonorecords made under the compulsory license:
(A) The title of the nondramatic musical work;
(B) The name of the author or authors, if known;
(C) A copyright owner of the work, if known;
(D) The types of all phonorecord configurations already made (if any) and expected to be made under the compulsory license (for example: Single disk, long-playing disk, cassette, cartridge, reel-to-reel, a digital phonorecord delivery, or a combination of them);
(E) The expected date of initial distribution of phonorecords already made (if any) or expected to be made under the compulsory license;
(F) The name of the principal recording artist or group actually engaged or expected to be engaged in rendering the performances fixed on phonorecords already made (if any) or expected to be made under the compulsory license;
(G) The catalog number or numbers, and label name or names, used or expected to be used on phonorecords already made (if any) or expected to be made under the compulsory license; and
(H) In the case of phonorecords already made (if any) under the compulsory license, the date or dates of such manufacture.
(vi) In the case where the notice will be filed with the Copyright Office pursuant to paragraph (e)(1) of this section, an affirmative statement that with respect to the nondramatic musical work named in the Notice of Intention, the registration records or other public records of the Copyright Office have been searched and do not identify the name and address of the copyright owner of such work.
(d)
(1) If the person or entity intending to obtain the compulsory license is a corporation, the signature shall be that of a duly authorized officer or agent of the corporation.
(2) If the person or entity intending to obtain the compulsory license is a partnership, the signature shall be that of a partner or of a duly authorized agent of the partnership.
(3) If the Notice is signed by a duly authorized agent for the person or entity intending to obtain the compulsory license, the agent must be specifically authorized to execute the Notice of Intention on behalf of the licensee and the Notice must include a concise statement of authorization to that effect.
(e)
(1) If, with respect to the nondramatic musical works named in the Notice of Intention, the registration records or other public records of the Copyright Office do not identify the copyright owner of such work and include an address for such owner, the Notice may be filed in the Copyright Office. Notices of Intention submitted for filing shall be accompanied by the fee specified in § 201.3(e). A separate fee shall be assessed for each title listed in the Notice. Notices of Intention will be filed by being placed in the appropriate public records of the Licensing Division of the Copyright Office. The date of filing will be the date when the Notice and fee are both received in the Copyright Office. An acknowledgment of receipt and filing will be provided to the sender.
(2) If the registration records or other public records of the Copyright Office identify the copyright owner of the nondramatic musical works named in the Notice of Intention and include an address for such owner, the Notice may be served on such owner by certified mail or by registered mail sent to the last address for such owner shown by the records of the Office. It shall not be necessary to file a copy of the Notice in the Copyright Office in this case.
(3) If the Notice is sent by certified or registered mail to the last address for the copyright owner shown by the records of the Copyright Office and is returned to the sender because the copyright owner is no longer located at the address or has refused to accept delivery, the original Notice as sent shall be filed in the Copyright Office. Notices of Intention submitted for filing under this paragraph (e)(3) shall be submitted to the Licensing Division of the Copyright Office, and shall be accompanied by a brief statement that the Notice was sent to the last address for the copyright owner shown by the records of the Copyright Office but was returned, and by appropriate evidence that it was sent by certified or registered mail to that address. In these cases, the Copyright Office will specially mark its records to consider the date the original Notice was mailed, as shown by the evidence mentioned above, as the date
(4) Alternatively, if the person or entity intending to obtain the compulsory license knows the name and address of the lawful copyright owner of the nondramatic musical work, the Notice of Intention may be served on this person or entity by sending the Notice via certified or registered mail to the address of the copyright owner identified in the Notice. For purposes of section 115(b)(1) of title 17 of the United States Code, the notice will not be considered properly served if the notice is mistakenly sent to a person or entity who is not the lawful copyright owner or duly authorized agent, or to an incorrect address.
(f)
3. Section 201.19 is amended as follows:
a. by revising paragraph (a)(3);
b. by redesignating paragraphs (a)(4) through (11) as paragraph (a)(5) through (a)(12); and
c. by adding a new paragraph (a)(4).
The revisions and additions to § 201.19 read as follows:
(a) * * *
(3) For the purposes of this section, the term copyright owner, in the case of any work having more than one copyright owner means any one of the co-owners.
(4) For the purposes of this section, the service of a Statement of Account on a copyright owner under paragraph (e)(7) or (f)(7) of this section shall include service of the Statement of Account on an agent of the copyright owner who is duly authorized to grant or administer the particular rights being licensed. In the case where the work has more than one copyright owner, the service of the Statement of Account on one co-owner or upon a duly authorized agent of one of the co-owners shall be sufficient with respect to all co-owners.
Postal Service.
Proposed rule.
This proposed rule provides a new preparation option that will allow mailers to place flat-size automation rate First-Class Mail, Periodicals, or Standard Mail together in packages with corresponding flat-size Presorted rate First-Class Mail, Periodicals, or Standard Mail. This new option will be called “co-packaging.”
Comments must be received on or before September 27, 2001.
Send written comments to the Manager, Mail Preparation and Standards, U.S. Postal Service, 1735 North Lynn Street, Room 3025, Arlington VA 22209-6038. Written comments may be submitted via fax to 703-292-4058. Copies of all written comments will be available for inspection and photocopying between 9 a.m. and 4 p.m., Monday through Friday, in Room 3025 at the above address.
Jane Stefaniak, 703-292-3548; or Cheryl Beller, 202-268-5166.
On January 7, 2001, the Postal Service adopted new preparation standards in Domestic Mail Manual (DMM) M910 that required mailers of Periodicals nonletters, and permitted mailers of First-Class Mail and Standard Mail flats, to co-sack (Periodicals and Standard Mail) or co-tray (First-Class Mail) packages of automation rate mail with packages of Presorted rate mail. Under a separately published rule dated May 24, 2001 (66 FR 28659), the Postal Service will require co-traying for First-Class Mail flats and co-sacking for Standard Mail flats effective September 1, 2001.
At this time, the Postal Service is proposing to add a further preparation option, to be named co-packaging, that will allow the combining of flat-sized automation rate pieces and flat-sized Presorted rate pieces within the same package. Most of the same operational justifications for allowing packages of automation rate and Presorted rate flats to be combined in the same container (co-sacking and co-traying) also support allowing these flats to be combined within the same package (co-packaging). Currently, automation rate flats (ZIP+4 or delivery point barcoded) and Presorted rate flats (no barcode required) are usually processed within the same operation.
The Postal Service's prior need for segregating barcoded and nonbarcoded pieces no longer exists due to advances that include an optical character reader (OCR) on the flat sorting machine (FSM) 881 and the OCR/image lift capabilities of the new automated flat sorting machine (AFSM) 100. Beginning in 2002, the Postal Service plans to retrofit FSM 1000s with OCR capabilities. Therefore, continuing to require the separate preparation of automation rate and Presorted rate pieces results in more packages, which reduces the average depth of sort. This causes additional workhours for the Postal Service associated with sorting, opening, and prepping flats for processing.
As part of this notice, the Postal Service is proposing to allow co-packaging of flat-size automation rate pieces and Presorted rate pieces within a mailing job only if all Presorted rate pieces bear a 5-digit barcode. When mailers produce both automation rate and Presorted rate pieces, a vast majority of the pieces usually fall within the automation rate category for a mailing job. Pieces falling into the Presorted rate category are often the result of an unsuccessful address match. This generally results from either an incomplete address (e.g., no directional) or a new address that has yet to appear in the address database used by the mailer.
Requiring a 5-digit barcode on co-packaged Presorted rate pieces will serve two purposes. First, it will allow the Postal Service to differentiate between those Presorted rate pieces that a mailer attempted unsuccessfully to barcode to the ZIP+4 or delivery point level and those Presorted rate pieces on which an attempt was never made. The latter are much more likely to be matched by the Postal Service's address database; consequently, the 5-digit barcode would be useful from a quality control perspective. Second, the 5-digit barcode can be used by the Postal Service to sort the pieces in primary processing operations (5-digit sort). Postal statistics show that barcoded flats sort at a higher rate than nonbarcoded flats in primary processing operations, even when the sorting equipment has barcode reader and OCR capabilities, because the barcode can help the FSM locate the address block. As information, pieces without a 5-digit barcode must continue to be prepared as separate mailings, but they could be co-trayed or co-sacked under M910.
Under this proposal, the current minimum volume requirements for automation rate and Presorted rate mailings would continue to apply separately for First-Class Mail and Standard Mail (e.g., a minimum volume of 500 automation rate and 500 Presorted rate First-Class Mail pieces would be required). The total of all automation rate and Presorted rate pieces could be used to jointly meet package and container minimums. Mailers would be permitted to co-package Presorted rate pieces containing a 5-digit barcode with automation rate pieces containing a ZIP+4 or delivery point barcode for the same presort destination. However, the Postal Service is proposing that when more than one physical package is prepared for a “logical” presort destination, mailers combine Presorted rate pieces and automation rate pieces in no more than one physical package (see proposed DMM M950.1.1g, M950.2.1h, and M950.3.1h). (Note: A “logical” presort destination represents the total number of pieces that are eligible for a specific presort level based on the required sortation, but which might not necessarily be contained in a single container, such as a package, sack, or pallet due to the applicable preparation requirements.) As an example, if nine Presorted rate Periodicals pieces (each containing a 5-digit barcode) are sorted to the same 3-digit ZIP Code destination as 19 automation rate pieces (each containing a ZIP+4 barcode), the following physical packages might be prepared: one package containing eight Presorted rate pieces; one package containing one Presorted rate piece and seven automation rate pieces; and one package containing 12 automation rate pieces.
The proposal to limit the co-packaging of automation rate and Presorted rate pieces to one physical package for each “logical” presort destination is needed to assist the Postal Service during mail verification and acceptance processes. The Postal Service is seeking comments from mailers and presort software developers regarding the ability of software to sequence mailpieces for a package presort destination in such a manner that all of the automation rate pieces are grouped together and all of the Presorted rate pieces are grouped together, resulting in only one physical package that contains both automation rate and Presorted rate pieces.
For Periodicals, if a Presorted rate mailing includes firm packages, these packages must be accompanied by (but must be physically separate from) the automation rate and/or other Presorted rate pieces to the same presort destination to satisfy a six-piece package requirement when applicable for rate eligibility, regardless of the number of copies in the firm package.
For Periodicals or Standard Mail mailings that are co-packaged and prepared under the optional preparation methods for merged pallets in DMM M930 or M940, new standards are proposed to allow a portion of a logical package to be placed on a merged pallet under the 5 percent limit. Comments are also requested from software developers concerning the proposed method for determining how to select mail to be placed on merged pallets.
Documentation generated by Presort Accuracy, Validation, and Evaluation (PAVE)-certified software or standardized documentation (DMM P012) would be required for mailings prepared under this option. The documentation is required to indicate the total number of automation rate and Presorted rate pieces contained in each package. The proposed date that mailers may begin to use this preparation option is March 31, 2002. The Postal Service is considering mandatory use beginning on January 1, 2003, and is seeking comments regarding the required use of co-packaging. These dates should allow presort software vendors enough time to update, test, and distribute software to their clients. It also should afford the Postal Service sufficient time to develop PAVE certification criteria for this proposal and conduct PAVE certification testing. The Postal Service invites interested parties to comment on any or all parts of this proposed rule.
Although exempt from the notice and comment requirements of the Administrative Procedures Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites comments on the following proposed revisions of the DMM, incorporated by reference into the Code of Federal Regulations (see 39 CFR part 111).
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 purposes of preparing mail:
[Insert new 1.3ad and ae, as follows:]
ad. A “logical” presort destination represents the total number of pieces that are eligible for a specific presort level based on the required sortation, but which might not be contained in a single package or in a single container (i.e., sack, pallet) due to applicable preparation requirements or the size of the individual pieces. For example, there may be 42 mailpieces for ZIP Code 43112 forming a Standard Mail “logical” 5-digit package, and they are prepared in three physical 5-digit packages because of the applicable weight and height restrictions on packages. For pallets, 2,800 pounds of mail may be destined to an SCF destination, and these would form the “logical” SCF pallet, but the mail is placed on two physical SCF pallets, each weighing 1,400 pounds, because of the 2,200 pound maximum pallet weight requirement.
ae. Co-packaging is an alternate preparation option available under M900 for First-Class Mail, Periodicals, and Standard Mail that allows the combining of flat-size automation rate and Presorted rate pieces within the same package under a single minimum package size requirement. Pieces may not be combined in more than one physical package for each logical presort destination.
Mailings are defined as:
[Revise 1.4b, d, and e by adding references to the advanced preparation options for flat-sized mail in M910, M920, M930, M940, and M950 as follows (the remainder of 1.4 is unchanged):]
b. First-Class Mail. Except as provided by standard, the types of First-Class Mail listed below may not be part of the same mailing despite being in the same processing category. See M910 and M950 for advanced preparation options for flat-size mail. * * *
d. Periodicals. Mail qualifying for the In-County rates may be part of a mailing
e. Standard Mail. Except as provided in E620.1.2 and M900, the types of Standard Mail listed below may not be part of the same mailing. See M041, M045, M610, and M620 for copalletized, combined, and mixed rate mailings. See M910, M920, M930, M940, and M950 for advanced preparation options for flat-size mail. * * *
[Revise 2.2 by adding a sentence at the end to refer to the co-packaging option for Periodicals nonletters and Standard Mail flats, as follows (the remainder of 2.2 is unchanged):]
* * * If palletized mailing jobs of nonletter-size Periodicals or palletized mailing jobs of flat-size Standard Mail contain both automation rate and Presorted rate pieces, the automation rate and Presorted rate pieces may be co-packaged under the standards in M950.
[Revise the title of 1.6 and add a new sentence at the end to refer to the co-packaging option in M950, as follows (the remainder of 1.6 is unchanged):]
* * * Flat-size Presorted rate pieces may be co-packaged with flat-size automation rate pieces under the standards in M950.
[Revise the title and text of 1.2a and b to refer to the new co-packaging option in M950, as follows (the remainder of 1.2 is unchanged):]
The following standards apply:
a. Mailings prepared in sacks that are part of a mailing job that includes a carrier route mailing, an automation rate mailing, and a presorted rate mailing must be prepared under one of the following options: (1) the carrier route mailing must be prepared under E230 and M220 and the automation rate and Presorted rate mailing must be prepared under M910; or (2) all three mailings in the mailing job must be prepared under M920. Presorted rate pieces may be co-packaged with automation rate pieces under the standards in M950.
b. Mailings prepared in sacks that are part of a mailing job that includes an automation rate mailing under E240 and a Presorted rate mailing under E220 must be prepared under the co-sacking standards in M910. Presorted rate pieces may be co-packaged with automation rate pieces under the standards in M950.
[Revise 1.6 to show that merging is optional and to refer to the co-packaging option in M950, as follows:]
Under the optional preparation method in M920, Presorted rate firm and 5-digit packages prepared under 1.0 and under 2.2a and b must be co-sacked with firm and carrier route packages prepared under M220 and with automation rate 5-digit packages prepared under M820 in merged 5-digit and 5-digit scheme sacks. Under the optional preparation methods in M920, M930, or M940, Presorted rate firm and 5-digit packages prepared under 1.0 and under 2.2a and b must be copalletized with firm and carrier route packages prepared under M220 and with automation rate 5-digit packages prepared under M820 on merged 5-digit and 5-digit scheme pallets. See 1.2a for information on when preparation under M920 may be required. Presorted rate pieces may be co-packaged with automation rate pieces under M950.
[Revise 1.6 to show that merging is optional and to refer to the co-packaging option in M950, as follows:]
Under the optional preparation method in M920, firm and carrier route packages prepared under 1.0 and 2.4 must be co-sacked with Presorted rate 5-digit packages prepared under M210 and with automation rate 5-digit packages prepared under M820 in merged 5-digit and 5-digit scheme sacks. For sacked mailing jobs that contain an automation rate and a Presorted rate mailing as well as a carrier route mailing, the automation rate and the Presorted rate mailings must be prepared under M910 (see M210) and the carrier route mailing must be prepared under M220, unless the mailings are prepared under M920. Under the optional preparation methods in M920, M930, or M940, firm and carrier route packages prepared under 1.0 and 2.4 must be copalletized with Presorted rate 5-digit packages prepared under M210 and with automation rate 5-digit packages prepared under M820 on merged 5-digit and 5-digit scheme pallets. Presorted rate pieces may be co-packaged with automation rate pieces under M950.
[Revise the title of 1.5 and add a new sentence at the end to refer to the co-packaging option in M950, as follows (the remainder of 1.5 is unchanged):]
* * * Flat-size Presorted rate pieces may be co-packaged with flat-size automation rate pieces under the standards in M950.
[Revise the title and text of 1.6 to refer to the new co-packaging option in M950, as follows:]
When the conditions and preparation standards in M920 are met, Presorted rate 5-digit packages prepared under 4.3a may be co-sacked with carrier route rate packages prepared under M620 and with automation rate 5-digit packages prepared under M820 in merged 5-digit and 5-digit scheme sacks. When the conditions and preparation standards in M920, M930, or M940 are met, Presorted rate 5-digit packages prepared under 4.3a may be copalletized with carrier route rate packages prepared under M620 and with automation rate 5-digit packages prepared under M820 on merged 5-digit and 5-digit scheme pallets. Presorted rate pieces may be co-packaged with automation rate pieces under M950.
[Revise the title and text of 1.6 to refer to the co-packaging option in M950, as follows:]
When the conditions and preparation standards in M920 are met, carrier route rate packages prepared under 2.0 may be co-sacked with Presorted rate 5-digit packages prepared under M610 and with automation rate 5-digit packages prepared under M820 in merged 5-digit and 5-digit scheme sacks. When the conditions and preparation standards in M920, M930, or M940 are met, carrier route rate packages prepared under 2.0 may be copalletized with Presorted rate 5-digit packages prepared under M610 and with automation rate 5-digit packages prepared under M820 on merged 5-digit and 5-digit scheme pallets. Presorted rate pieces may be co-packaged with automation rate pieces under M950.
[Revise the title of 1.9 and add a new sentence at the end to refer to the co-packaging option in M950, as follows (the remainder of 1.9 is unchanged):]
* * * Automation rate pieces may be co-packaged with Presorted rate pieces under the standards in M950.
[Revise the title and text of 1.10 to be consistent with M210.1.6 and M610.1.6 to refer to the options for merged containerization and co-packaging, as follows:]
Under the optional preparation methods in M920, 5-digit packages of Periodicals or Standard Mail automation rate flats must be co-sacked with 5-digit packages of Periodicals Presorted rate nonletters or Standard Mail Presorted rate flats prepared under M210 or M610, as applicable, and with packages of Periodicals carrier route nonletters or Standard Mail carrier route flats in merged 5-digit and 5-digit scheme sacks. Under the optional preparation methods in M920, M930, or M940, 5-digit packages of Periodicals or Standard Mail automation rate flats must be copalletized with 5-digit packages of Periodicals Presorted rate nonletters or Standard Mail Presorted rate flats prepared under M210 or M610, as applicable, and with packages of Periodicals carrier route nonletters or Standard Mail carrier route flats on merged 5-digit and 5-digit scheme pallets. Presorted rate nonletter-size Periodicals pieces or Presorted rate flat-size Standard Mail pieces may be co-packaged with flat-size automation rate pieces under M950.
[Revise 1.1c, d, and g by changing the reference to tray preparation standards from “1.3” to “1.4” (the remainder of 1.1 is unchanged).]
[Revise 1.2 to refer to the co-packaging option in 1.3, as follows:]
Except for mail prepared under the co-packaging option in 1.3, the automation rate mailing must be packaged and labeled under M820 and the Presorted rate mailing must be packaged and labeled under M130.
[Renumber current 1.3 as 1.4 and insert new 1.3, as follows:]
As an option to the basic packaging requirements in 1.2, a mailer may choose to co-package (see M011) automation rate and Presorted rate flat-size pieces, subject to the conditions in M950.
[Revise the first sentence of the renumbered 1.4 to refer to the co-packaging option in 1.3, as follows (the remainder of 1.4 is unchanged):]
Presorted rate and automation rate packages prepared under 1.2 or 1.3 must be presorted together into trays (co-trayed) in the sequence listed below. * * *
[Revise 2.1c, d, and f by changing the reference to sack preparation standards from “2.4” to “2.5” (the remainder of 2.1 is unchanged).]
[Revise 2.2 to refer to the co-packaging option in 2.3, as follows:]
Except for mail prepared under the co-packaging option in 2.3, the automation rate mailing must be packaged and labeled under M820 (all package levels) and the Presorted rate mailing must be packaged and labeled under M210 (excluding carrier route level).
[Renumber current 2.3 and 2.4 as 2.4 and 2.5, respectively, and insert new 2.3 as follows:]
As an option to the basic packaging requirements in 2.2, a mailer may choose to co-package (see M011) automation rate and Presorted rate nonletter-size pieces, subject to the conditions in M950.
[Revise the renumbered 2.4 by adding references to packages prepared under the co-packaging option in 2.3, as follows:]
Periodicals 5-digit and 3-digit packages prepared under M210 and M820 or under 2.3 may contain fewer than six pieces when the publisher determines that such preparation improves service. These low-volume
[Revise the first sentence of the renumbered 2.5 to refer to the co-packaging option in 2.3, as follows (the remainder of 2.5 is unchanged):]
Presorted rate and automation rate packages prepared under 2.2 and 2.4 must be presorted together in sacks (co-sacked) in the sequence listed below. * * *
[Revise 3.1c, d, and g by changing the references to sack preparation standards from “3.3 and 3.4” to “3.4 and 3.5” (the remainder of 3.1 is unchanged).]
[Revise 3.2 to refer to the co-packaging option in 3.3, as follows:]
Except for mail prepared under the co-packaging option in 3.3, the automation rate mailing must be packaged and labeled under M820 and the Presorted rate mailing must be packaged and labeled under M610. Loose packing under M610 is not permitted.
[Renumber current 3.3 and 3.4 as 3.4 and 3.5, respectively, and insert new 3.3, as follows:]
As an option to the basic packaging requirements in 3.2, a mailer may choose to co-package (see M011) automation rate and Presorted rate flat-size pieces, subject to the conditions in M950.
[Revise the summary in M920 to refer to the co-packaging option in M950, as follows:]
[Revise the heading of 1.0, as follows:]
[Revise the first sentence in 1.1 to refer to the co-packaging option in M950, as follows:]
Carrier route packages in a carrier route rate mailing may be placed in the same sack or on the same pallet (in a merged 5-digit or 5-digit scheme sack or pallet) as 5-digit packages from an automation rate mailing and 5-digit packages from a Presorted rate mailing, including automation and Presorted rate pieces co-packaged as permitted in M950, under the following conditions:
[Revise the first sentence in 1.1e to refer to the co-packaging option in M950, as follows (the remainder of 1.1e is unchanged):]
e. Carrier route packages must be co-sacked or copalletized with automation rate 5-digit packages and Presorted rate 5-digit packages, including automation and Presorted rate pieces co-packaged under M950, only for those 5-digit ZIP Codes that have an “A” or “C” indicator in the Carrier Route Indicators field in the City State Product showing they are eligible for co-sacking or copalletization. * * *
Packages must be prepared as follows:
[Revise 1.2a to refer to the co-packaging option in M950, as follows:]
a. Sacked Mailings. The carrier route mailing must be packaged and labeled under M220. Except when prepared under the co-packaging option in M950, the automation rate mailing must be packaged and labeled under M820 and the Presorted rate mailing must be packaged and labeled under M210.
[Revise 1.3 to refer to the co-packaging option by adding “or M950” after the reference to M820 in the first sentence (the remainder of 1.3 is unchanged).]
[Revise the first sentence in 2.1 to refer to the co-packaging option in M950, as follows:]
Carrier route packages of flat-size pieces in a carrier route rate mailing may be placed in the same sack or on the same pallet (a merged 5-digit or 5-digit scheme sack or pallet) as 5-digit packages from an automation rate mailing and 5-digit packages from a Presorted rate mailing, including automation and Presorted rate pieces co-packaged as permitted in M950, under the following conditions:
[Revise the first sentence in 2.1e to refer to the co-packaging option in M950, as follows (the remainder of 2.1e is unchanged):]
e. Carrier route rate packages must be co-sacked or copalletized with automation rate 5-digit packages and Presorted rate 5-digit packages, including automation and Presorted rate pieces co-packaged under M950, only for those 5-digit ZIP Codes with an “A” or “C” indicator in the Carrier Route Indicators field in the City State Product indicating they are eligible for such co-sacking or copalletization. * * *
Packages must be prepared as follows:
[Revise 2.2a to refer to the co-packaging option in M95, as follows:]
a. Sacked Mailings. The carrier route mailing must be packaged and labeled under M620. Except when prepared under the co-packaging option in M950, the automation rate mailing must be packaged and labeled under M820 and the Presorted rate mailing must be packaged and labeled under M610.
[Revise the summary in M930 to refer to the co-packaging option in M950, as follows:]
[Revise the heading of 1.0, as follows:]
[Revise the heading and first sentence of 1.1 to refer to the co-packaging option in M950, as follows:]
5-digit packages from an automation rate mailing and 5-digit packages from a Presorted rate mailing, including automation and Presorted rate pieces co-packaged under M950, may be placed on the same pallet (a merged 5-digit or 5-digit scheme pallet) as carrier route rate packages from a carrier route mailing under the following conditions:
[Revise the first sentence of 1.1d to refer to the co-packaging option in M950, as follows (the remainder of 1.1d is unchanged):]
d. Automation rate 5-digit packages and Presorted rate 5-digit packages, including automation rate and Presorted rate pieces co-packaged under M950, must be copalletized with carrier route rate packages only when the pieces in the 5-digit packages do not exceed the 5% limit described in 1.4.* * *
[Revise 1.3 to refer to the co-packaging option by adding “or M950” after the reference to M820 in the first sentence (the remainder of 1.3 is unchanged).]
[Revise the first sentence of 1.4, as follows:]
5-digit packages and carrier route packages may be placed on the same merged 5-digit or 5-digit scheme pallet under 1.5 if all of the following conditions are met:
[Revise 1.4c by replacing the first sentence with the following new sentence; then delete the last four sentences beginning with the word “Example” (the remainder of 1.4c is unchanged):]
c. Except when packages are prepared under the co-packaging option in M950, all mail in a logical 5-digit package must be able to be placed on the logical pallet using the 5% limit.* * *
[Insert the following clause at the beginning of 1.4d (the remainder of 1.4d is unchanged):]
d. Except for packages prepared under the co-packaging option in M950,* * *
[Insert new 1.4e to permit mailers using the co-packaging option in M950 to place a portion of a “logical” 5-digit package on a merged 5-digit scheme or merged 5-digit pallet with carrier route mail; renumber current 1.4e and f as 1.4f and g, respectively; and change the references in renumbered 1.4f and g from “1.4a through 1.4d” to “1.4a through 1.4e,” as follows:]
e. For mailing jobs prepared using the co-packaging option in M950, if the total number of pieces prepared in a logical 5-digit package (containing automation rate and Presorted rate pieces) exceeds the 5% limit for a 5-digit ZIP Code in 1.4a, a mailer may, for each 5-digit ZIP Code, choose to place a portion of the pieces prepared in the logical 5-digit package on a merged 5-digit or 5-digit scheme pallet using one of the options below. Regardless of the option selected, a minimum of six pieces must be prepared in 5-digit package(s) placed on the merged pallet and a minimum of six remaining pieces prepared in 5-digit package(s) not placed on the merged pallet, with the total number of pieces not exceeding the 5% limit. The options are:
(1) Place either all automation rate pieces or all Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(2) Place a portion of either the automation rate pieces or the Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(3) Place either all the automation rate pieces plus a portion of the Presorted rate pieces or all the Presorted rate pieces plus a portion of the automation rate pieces for the 5-digit ZIP Code on the merged pallet.
[Revise the first sentence in 2.1 to refer to the co-packaging option in M950, as follows:]
5-digit packages from an automation rate mailing and 5-digit packages from a Presorted rate mailing, including automation rate and Presorted rate pieces co-packaged under M950, may be placed on the same pallet (a merged 5-digit or 5-digit scheme pallet) as carrier route rate packages from a carrier route rate mailing under the following conditions:
[Revise the first sentence in 2.1d to refer to the co-packaging option in M950, as follows (the remainder of 2.1d is unchanged):]
d. Automation rate 5-digit packages and Presorted rate 5-digit packages, including automation and Presorted rate pieces co-packaged under M950, must be copalletized with carrier route packages only when the pieces in the 5-digit packages do not exceed the 5% limit in 2.3 .* * *
[Revise the first sentence of 2.3, as follows:]
5-digit packages and carrier route packages may be placed on the same merged 5-digit pallet under 2.4 or on the same merged 5-digit or 5-digit scheme pallet under 2.5 if all of the following conditions are met:
[Revise the first sentence in 2.3c as follows; then delete the last four sentences beginning with the word “Example” (the remainder of 2.3c is unchanged):]
c. Except when packages are prepared under the co-packaging option in M950, all mail in a logical 5-digit package must be able to be placed on the logical pallet using the 5% limit. * * *
[Revise 2.3d by inserting the following clause at the beginning (the remainder of 2.3d is unchanged):]
d. Except for packages prepared under the co-packaging option in M950, * * *
[Insert new 2.3e to permit mailers using the co-packaging option in M950 to place a portion of a logical 5-digit package on a merged 5-digit scheme or merged 5-digit pallet with carrier route mail, as follows:]
e. For mailing jobs prepared using the co-packaging option in M950, if the total number of pieces prepared in a logical 5-digit package (containing automation rate and Presorted rate pieces) exceeds the 5% limit for a 5-digit ZIP Code in 2.3a, a mailer may, for each 5-digit ZIP Code, choose to place a portion of the pieces prepared in the logical 5-digit package on a merged 5-digit or 5-digit scheme pallet using one of the options below. Regardless of the option selected, a minimum of 10 pieces must be prepared in 5-digit package(s) placed on the merged pallet and a minimum of 10 remaining pieces prepared in 5-digit package(s) not placed on the merged pallet, with the total number of pieces not exceeding the 5% limit. The options are:
(1) Place either all automation rate pieces or all Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(2) Place a portion of either the automation rate pieces or the Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(3) Place either all the automation rate pieces plus a portion of the Presorted rate pieces or all the Presorted rate pieces plus a portion of the automation rate pieces for the 5-digit ZIP Code on the merged pallet.
[Revise the summary in M940 to refer to the co-packaging option in M950 and 3.3, as follows:]
[Revise the title of 1.0, as follows:]
[Revise the first sentence of 1.1 to refer to the co-packaging option in M950, as follows:]
5-digit packages from an automation rate mailing and 5-digit packages from a Presorted rate mailing, including automation rate and Presorted rate pieces co-packaged under M950, may be placed on the same pallet (a merged 5-digit or 5-digit scheme pallet) as carrier route packages from a carrier route rate mailing under the following conditions:
[Revise the first sentence in 1.1e to refer to the co-packaging option in M950, as follows (the remainder of 1.1e is unchanged):]
e. Automation rate 5-digit packages and Presorted rate 5-digit packages, including automation rate and Presorted rate pieces co-packaged under M950, must be copalletized with carrier route packages on merged 5-digit and 5-digit scheme pallets as follows:
[Revise 1.3 to refer to the co-packaging option by adding “or M950” after the reference to M820 in the first sentence (the remainder of 1.3 is unchanged).]
[Revise the first sentence of 1.4, as follows:]
5-digit packages and carrier route packages for 5-digit ZIP Codes with a “B” or “D” indicator in the City State Product may be placed on the same merged 5-digit or 5-digit scheme pallet under 1.5 if all of the following conditions are met:
[Revise the first sentence of 1.4c, as follows, then delete the last four sentences beginning with the word “Example” (the remainder of 1.4c is unchanged):]
c. Except when packages are prepared under the co-packaging option in M950, all mail in a logical 5-digit package for a 5-digit ZIP Code with a “B” or “D” indicator must be able to be placed on the logical pallet under the 5% limit. * * *
[Insert the following clause at the beginning of 1.4d (the remainder of 1.4d is unchanged):]
d. Except for packages prepared under the co-packaging option in M950, * * *
[Insert new 1.4e to permit mailers using the co-packaging option in M950 to place a portion of a logical 5-digit package on a merged 5-digit scheme or merged 5-digit pallet with carrier route mail; renumber current 1.4e and f as 1.4f and g, respectively; and change the references in renumbered 1.4f and g from “1.4a through 1.4d” to “1.4a through 1.4e,” as follows:]
e. For mailing jobs prepared using the co-packaging option in M950, if the total number of pieces prepared in a logical 5-digit package (containing automation rate and Presorted rate pieces) exceeds the 5% limit for a 5-digit ZIP Code in 1.4a, a mailer may, for each 5-digit ZIP Code, choose to place a portion of the pieces prepared in the logical 5-digit package on a merged 5-digit or 5-digit scheme pallet using one of the options below. Regardless of the option selected, a minimum of six pieces must be prepared in 5-digit package(s) placed on the merged pallet and a minimum of six remaining pieces prepared in 5-digit package(s) not placed on the merged pallet, with the total number of pieces not exceeding the 5% limit. The options are:
(1) Place either all automation rate pieces or all Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(2) Place a portion of either the automation rate pieces or the Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(3) Place either all the automation rate pieces plus a portion of the Presorted rate mail or all the Presorted rate pieces plus a portion of the automation rate pieces for the 5-digit ZIP Code on the merged pallet.
[Revise the first sentence in 2.1 to refer to the co-packaging option in M950, as follows:]
5-digit packages from an automation rate mailing and 5-digit packages from a Presorted rate mailing, including automation and Presorted rate pieces co-packaged under M950, may be placed on the same pallet (a merged 5-digit or 5-digit scheme pallet) as carrier route packages from a carrier route rate mailing under the following conditions:
[Revise the first sentence of 2.1e to refer to the co-packaging option in M950, as follows (the remainder of 2.1e is unchanged):]
e. Automation rate 5-digit packages and Presorted rate 5-digit packages, including automation rate and Presorted rate pieces co-packaged under M950, must be copalletized with carrier route packages on merged 5-digit scheme and merged 5-digit pallets as follows:
[Revise the first sentence of 2.3, as follows:]
5-digit packages and carrier route packages for 5-digit ZIP Codes with a “B” or “D” indicator in the City State Product may be placed on the same merged 5-digit pallet under 2.4 or on the same merged 5-digit or 5-digit scheme pallet under 2.5 if all of the following conditions are met:
[Revise the first sentence of 2.3c, as follows (the remainder of 2.3c is unchanged):]
c. Except when packages are prepared under the co-packaging option in M950, all mail in a logical 5-digit package must be able to be placed on the logical pallet using the 5% limit.* * *
[Insert the following clause at the beginning of 2.3d (the remainder of 2.3d is unchanged):]
d. Except for packages prepared under the co-packaging option in M950,* * *
[Insert new 2.3e to permit mailers using the co-packaging option in M950 to place a portion of a logical 5-digit package on a merged 5-digit scheme or merged 5-digit pallet with carrier route mail, as follows:]
e. For mailing jobs prepared using the co-packaging option in M950, if the total number of pieces prepared in a logical 5-digit package (containing automation rate and Presorted rate pieces) exceeds the 5% limit for a 5-digit ZIP Code in 2.3a, a mailer may, for each 5-digit ZIP Code, choose to place a portion of the pieces prepared in the logical 5-digit package on a merged 5-digit or 5-digit scheme pallet using one of the options below. Regardless of the option selected, a minimum of 10 pieces must be
(1)Place either all automation rate pieces or all Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(2)Place a portion of either the automation rate pieces or the Presorted rate pieces for the 5-digit ZIP Code on the merged pallet.
(3)Place either all the automation rate pieces plus a portion of the Presorted rate pieces or all the Presorted rate pieces plus a portion of the automation rate pieces for the 5-digit ZIP Code on the merged pallet.
[Add new section M950 to provide requirements for co-packaging of automation rate and Presorted rate First-Class Mail, Periodicals, and Standard Mail, to read as follows:]
M950 describes the eligibility and preparation requirements for co-packaging flat-size automation rate and Presorted rate First-Class Mail, nonletter-size automation and Presorted rate Periodicals, and flat-size automation rate and Presorted rate Standard Mail.
As an option to the basic packaging requirements in M910, a mailer may choose to co-package (see M011) automation rate and Presorted rate pieces, subject to the following conditions:
a. The pieces in the automation rate mailing and the Presorted rate mailing must be part of the same mailing job and must be reported on the appropriate postage statement(s).
b. The pieces in the mailing job must be flat size and meet any other size and mailpiece design requirements applicable to the rate category for which they are prepared.
c. The basic standards in M910 must be met.
d. A minimum of 500 automation rate pieces and 500 Presorted rate pieces are required. The total number of automation rate and Presorted rate pieces must be used to meet the minimum volume requirements for packages and containers to a presort destination.
e. Presorted rate pieces must contain a 5-digit barcode and be co-packaged with automation rate pieces for the same presort destination. If this optional preparation method is used, all automation rate and Presorted rate pieces in the same mailing job and reported on the same postage statement must be co-packaged.
f. Within a package, all pieces must meet the FSM 881 requirements or all pieces must meet the FSM 1000 requirements described in C820.
g. Mailers must sort automation rate pieces and Presorted rate pieces for each presort destination so that only one physical package for each logical presort destination (see M011) includes both automation rate pieces (containing a ZIP+4 or delivery point barcode) and Presorted rate pieces (containing a 5-digit barcode).
Package size, preparation sequence, and labeling:
a. 5-digit: required (10-piece minimum, fewer not permitted); red Label D or optional endorsement line (OEL).
b. 3-digit: required (10-piece minimum, fewer not permitted); green Label 3 or OEL.
c. ADC: required (10-piece minimum, fewer not permitted); pink Label A or OEL.
d. Mixed ADC: required (no minimum); tan Label MXD or OEL.
As an option to the basic packaging requirements in M210 and M820, a mailer may choose to co-package (see M011) automation rate and Presorted rate pieces, subject to the following conditions:
a. The pieces in the automation rate mailing and the Presorted rate mailing must be part of the same mailing job and must be reported on the appropriate postage statement(s).
b. The pieces in the mailing job must be nonletter-size and meet any other size and mailpiece design requirements applicable to the rate category for which they are prepared.
c. Mailings prepared in sacks must meet the basic standards in M910 or M920.
d. Mailings prepared on pallets must meet the basic standards in M045, M920, M930, or M940.
e. The total number of automation rate and Presorted rate pieces must be used to meet the minimum volume requirements for packages and containers.
f. Presorted rate pieces must contain a 5-digit barcode and be co-packaged with automation rate pieces for the same presort destination. If this optional preparation method is used, all automation rate and Presorted rate pieces in the same mailing job and reported on the same postage statement must be co-packaged.
g. Within a package, all pieces must meet the FSM 881 requirements or all pieces must meet the FSM 1000 requirements described in C820.
h. Mailers must sort Presorted rate pieces and automation rate pieces for each presort destination so that only one physical package for each logical presort destination (see M011) includes both automation rate pieces (containing a ZIP+4 or delivery point barcode) and Presorted rate pieces (containing a 5-digit barcode).
Package size, preparation sequence, and labeling:
a. Firm: optional (for Presorted rate pieces only under M210.1.4) (two-piece minimum); blue Label.
b. 5-digit: required (six-piece minimum, fewer not permitted except under 2.3); red Label D or optional endorsement line (OEL).
c. 3-digit: required (six-piece minimum, fewer not permitted except under 2.3); green Label 3 or OEL.
d. ADC: required (six-piece minimum, fewer not permitted); pink Label A or OEL.
e. Mixed ADC: required (no minimum); tan Label MXD or OEL.
Periodicals 5-digit and 3-digit packages prepared under 2.2 may contain fewer than six pieces when the publisher determines that such preparation improves service. These low-volume packages may be placed in merged 5-digit scheme, merged 5-digit, 5-digit, 3-digit, and SCF sacks or on merged 5-digit scheme, merged 5-digit, 5-digit, 3-digit, or SCF pallets. Presorted rate pieces in such low-volume packages must be claimed at the applicable basic Presorted rate.
Automation rate pieces in such low-volume packages must be claimed at the applicable basic automation rate.
As an option to the basic packaging requirements in M610 and M820, a mailer may choose to co-package (see M011) automation rate and Presorted rate pieces, subject to the following conditions:
a. The pieces in the automation rate mailing and the Presorted rate mailing
b. The pieces in the mailing job must be flat size and meet any other size and mailpiece design requirements applicable to the rate category for which they are prepared.
c. Mailings prepared in sacks must meet the basic standards in M910 or M920.
d. Mailings prepared on pallets must meet the basic standards in M045, M920, M930, or M940.
e. A minimum of 200 pieces or 50 pounds of automation rate pieces are required; the Presorted rate mailing may meet the residual volume requirements in E620. The total number of automation rate and Presorted rate pieces must be used to meet the minimum volume requirements for packages and containers.
f. Presorted rate pieces must contain a 5-digit barcode and be co-packaged with automation rate pieces for the same presort destination. If this optional preparation method is used, all automation rate and Presorted rate pieces in the same mailing job and reported on the same postage statement must be co-packaged.
g. Within a package, all pieces must meet the FSM 881 requirements or all pieces must meet the FSM 1000 requirements described in C820.
h. Mailers must sort Presorted rate pieces and automation rate pieces for each presort destination so that only one physical package for each logical presort destination (see M011) includes both Presorted rate pieces (containing a 5-digit barcode) and automation rate pieces (containing a ZIP+4 or delivery point barcode).
Package size, preparation sequence, and labeling:
a. 5-digit: required (10-piece minimum, fewer not permitted); red Label D or optional endorsement line (OEL).
b. 3-digit: required (10-piece minimum, fewer not permitted); green Label 3 or OEL.
c. ADC: required (six-piece minimum, fewer not permitted); pink Label A or OEL.
d. Mixed ADC: required (no minimum); tan Label MXD or OEL.
An appropriate amendment to 39 CFR 111 to reflect these changes will be published if the proposal is adopted.
Environmental Protection Agency (EPA).
Proposed full approval.
EPA proposes to fully approve the operating permit programs of the Alabama Department of Environmental Management, the City of Huntsville's Division of Natural Resources, and the Jefferson County Department of Health. These programs were submitted in response to the directive in the 1990 Clean Air Act (CAA) Amendments that permitting authorities develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources within the permitting authorities' jurisdiction. On November 15, 1995, EPA granted interim approval to the Alabama, Huntsville, and Jefferson County title V operating permit programs (60 FR 57346). These agencies have revised their programs to satisfy the conditions of the interim approval and this action proposes approval of those revisions and other program changes made since the interim approval was granted.
Comments on the program revisions discussed in this proposed action must be received in writing by EPA on or before September 27, 2001.
Written comments on the program revisions discussed in this action should be addressed to Ms. Kim Pierce, Regional Title V Program Manager, Air & Radiation Technology Branch, EPA, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. Copies of the Alabama, Huntsville, and Jefferson County submittals and other supporting documentation used in developing the proposed full approval are available for inspection during normal business hours at EPA, Air & Radiation Technology Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960.
Kim Pierce, EPA Region 4, at (404) 562-9124 or
This section provides additional information by addressing the following questions:
What is the operating permit program?
What is being addressed in this document?
What are the program changes that EPA proposes to approve?
What is involved in this proposed action?
Title V of the CAA Amendments of 1990 required all state and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the title V operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.
Sources required to obtain an operating permit under the title V program include: “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds (VOCs), carbon monoxide, lead, sulfur dioxide, nitrogen oxides ( NO
Where a title V operating permit program substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval contingent on the state revising its program to correct the deficiencies. Because the Alabama, Huntsville, and Jefferson County programs substantially, but not fully, met the requirements of part 70, EPA granted interim approval in a rulemaking (60 FR 57346) published on November 15, 1995. The interim approval notice described the conditions that had to be met in order for the Alabama, Huntsville, and Jefferson County programs to receive full approval. Alabama submitted five revisions to its interimly approved operating permit program; these revisions were dated July 19, 1996, April 9, 1997, August 4, 1999, January 10, 2000, and May 11, 2001. Huntsville, which adopts the State's rules, submitted five revisions to its interimly approved program; these revisions were dated March 21, 1997, July 21, 1999, December 4, 2000, February 22, 2001, and April 9, 2001. Jefferson County, which also adopts the State's rules, submitted five revisions to its interimly approved program; these revisions were dated February 5, 1998, September 20, 1999, August 8, 2000, March 30, 2001, and May 18, 2001. This document describes changes that have been made to the Alabama, Huntsville, and Jefferson County operating permit programs since interim approval was granted.
As stipulated in the interim approval notice, full approval of the Alabama, Huntsville, and Jefferson County title V operating permit programs was made contingent upon the following rule changes:
(1) Amend Alabama's statute to provide for adequate criminal fines consistent with 40 CFR 70.11(a)(3)(ii) and (iii). The State amended Section 22-28-22, Code of Alabama 1975, to prescribe adequate criminal fines and the amendment was signed into law on May 17, 1996. The amendment was submitted to EPA on July 19, 1996, and Alabama submitted a supplemental Attorney General's Statement certifying that State law provides enforcement authority consistent with 40 CFR 70.11 to EPA on May 11, 2001. Huntsville incorporated the criminal penalties specified by Alabama Act 96-516 into local law and submitted the amendment to EPA on March 21, 1997. On April 9, 2001, Huntsville submitted a legal opinion by the City Attorney certifying that its criminal penalty authority was consistent with 40 CFR 70.11. On May 18, 2001, Jefferson County submitted a Local Counsel's Amended Opinion certifying that State law allows the County to assess criminal penalties consistent with 40 CFR 70.11. EPA has determined that the Alabama, Huntsville, and Jefferson County submittals adequately address the enforcement authority deficiency.
(2) Eliminate Alabama's Rule 335-3-16-.04(9)(b) (and the corresponding local rules) which exempted certain permit applications from the completeness certification requirement in 40 CFR 70.5(a)(2). Alabama deleted the regulation and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville deleted its corresponding rule, Paragraph 3.9.4(b), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County deleted its corresponding rule, Paragraph 18.4.9(b), and submitted the local-effective rule change to EPA on May 18, 2001.
(3) Revise Rule 335-3-16-.01(o) (and the corresponding local rules) to require EPA review and approval of any revisions to the State's insignificant activity list. Alabama revised the regulation accordingly and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville made identical revisions to its corresponding rule, Paragraph 3.1.1(q), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County revised its corresponding rule, Paragraph 18.1.1(o), accordingly and submitted the local-effective rule change to EPA on May 18, 2001.
(4) Revise the Alabama rules (and the corresponding local rules) to ensure that insignificant emissions units with applicable requirements are not exempted from permitting or major source applicability determinations even if listed on the approved list of insignificant activities. Alabama responded by revising the definition of “Insignificant Activity” in Rule 335-3-16-.01(o) to ensure that activities subject to applicable requirements are not classified as insignificant. The State also revised Rule 335-3-16-.04(8)(c)9.(i) to remove the exemption from permitting requirements for insignificant activities. The state-effective rule changes were submitted to EPA on May 11, 2001. Huntsville made identical revisions to its corresponding rules, Paragraph 3.1.1(q) and Subparagraph 3.9.3(c)(9)(i), and submitted the local-effective rule changes to EPA on April 9, 2001. Jefferson County also revised its corresponding rules, Paragraph 18.1.1(o) and Subparagraph 18.4.8(c)(9)(i), accordingly and submitted the local-effective rule changes to EPA on May 18, 2001.
(5) Revise the Alabama rules (and the corresponding local rules) to provide for permit terms and conditions that allow the trading of emissions increases and decreases in accordance with 40 CFR 70.4(b)(12)(iii), 70.5(c)(7), and 70.6(a)(10). The State responded by adding Rule 335-3-16-.05(m), which provides for permit terms and conditions authorizing the trading of emissions increases and decreases in a permitted facility, and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville incorporated the State's rule by adding Paragraph 3.9.5(u) and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule in its new Section 18.5.14 and submitted the local-effective rule change to EPA on May 18, 2001.
(6) Revise Rule 335-3-16-.13(1)(a)7. (and the corresponding local rules) to specifically list the types of changes that are eligible for processing as administrative permit amendments or remove the provision allowing for Director's discretion when determining the types of changes that are eligible for processing as administrative permit amendments. Alabama responded by revising Rule 335-3-16-.13(1)(a)7. to require EPA approval of the types of permit changes that are eligible for processing as administrative amendments, and the state-effective rule change was submitted to EPA on May 11, 2001. Huntsville incorporated the State's rule change in its corresponding rule, Subparagraph 3.9.11(a)(1)(vii), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule change in its corresponding rule, Subparagraph 18.13.1(a)(7), and submitted the local-effective rule change to EPA on May 18, 2001.
(7) Correct the citation in Rule 335-3-16-.13(1)(a)6. (and the corresponding local rules) in order to provide for EPA and affected states review of administrative permit amendments, as specified in 40 CFR 70.7(d)(1)(v). Alabama responded by correcting the citation to reference Rule 335-3-16-.15 “Permit Review by EPA, Affected States and the Public” and submitted the state-effective rule change to EPA on January 10, 2000. Huntsville corrected the citation in its corresponding rule, Section 3.9.11, to reference Section 3.9.13 “Permit Review by EPA, Affected
(8) Revise Rule 335-3-16-.11(1) (and the corresponding local rules) to address EPA's concerns regarding the Director's ability to exempt emissions exceedances on a case-by-case basis. Alabama responded by adding the following language to Rule 335-3-16-.11(1): “For emission limits established by federal rules (e.g., NSPS, NESHAP, and MACT), exemptions may be granted only where provisions for such exemptions are contained in the applicable rule or its general provisions.” The state-effective rule change was submitted to EPA on January 10, 2000. Huntsville incorporated the State's language in its corresponding rule, Paragraph 3.3.8(a), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's language in its corresponding rule, Paragraph 18.11.1, and submitted the local-effective rule change to EPA on August 8, 2000.
(9) Revise Rule 335-3-16-.11(2)(c) (and the corresponding local rules) to allow for EPA and citizen participation in the emergency determination process. In response, Alabama removed language in Rule 335-3-16-.11(2)(c) that allowed only the Director to be the determiner of when an emergency has occurred and submitted the state-effective rule change to EPA on January 10, 2000. Huntsville incorporated the State's rule change in its corresponding rule, Subparagraph 3.3.8(b)(3), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule change in its corresponding rule, Subparagraph 18.11.2(c), and submitted the local-effective rule change to EPA on May 18, 2001.
(10) Revise Rule 335-3-16-.11 (and the corresponding local rules) to clarify that an emergency constitutes an affirmative defense in accordance with 40 CFR 70.6(g)(2). Alabama responded by adding Rule 335-3-16-.11(2)(e), which states that an emergency constitutes an affirmative defense, and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville incorporated the State's rule by adding Subparagraph 3.3.8(b)(5) and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule by adding Paragraph 18.11.2(e) and submitted the local-effective rule change to EPA on August 8, 2000.
The other programmatic changes made by Alabama, Huntsville, and Jefferson County since interim approval was granted involve the mechanisms for determining annual title V fee amounts. The State's title V operating permit program received interim approval based on use of the “presumptive minimum” fee amount described in 40 CFR 70.9(b)(2)(i). However, Alabama's use of this fee amount resulted in the collection of more revenue than was needed to fund the program. On April 9, 1997, Alabama notified EPA of a revision to Rule 335-1-7-.04 that reduced the fee amounts assessed in 1995 through 1999 to offset the excess fees collected in 1991 through 1993. The State has continued to adjust its fees annually so that total revenue balances projected costs. Alabama submitted a fee program update on August 4, 1999, demonstrating that its title V program was being adequately funded.
Huntsville's title V program received interim approval based on use of the part 70 “presumptive minimum” fee amount and the assessment of permit application fees. However, the Alabama Legislature passed legislation during its 2000 session prohibiting the local agencies from charging higher emission fees or permit application fees than those charged by the State. On December 4, 2000, Huntsville submitted local-effective rule changes to Part 3.6 “Permit Application Fees” and Part 3.7 “Major Source Operating Permit Annual Emissions Fees” that gave precedence to the fee structure established under State law. Huntsville submitted a fee program update on July 21, 1999, demonstrating that its title V program was being adequately funded. As a result of the fee restriction imposed in 2000, Huntsville submitted another fee program update on February 22, 2001, demonstrating that its title V program continues to be adequately funded.
Jefferson County's title V program also received interim approval based on use of the part 70 “presumptive minimum” fee amount, but collection of this amount resulted in revenue surpluses in FY96 and FY97. On February 5, 1998, the County submitted a financial report showing the surpluses and informed EPA that it had reduced its fees. Jefferson County submitted a formal fee program update on September 20, 1999, demonstrating that its title V program was being adequately funded. And, in response to EPA's concerns about the potential impact of the statutory fee cap imposed on local agencies by the Alabama Legislature, Jefferson County submitted another fee program update on March 30, 2001, indicating that its title V program was still adequately funded.
Since Alabama, Huntsville, and Jefferson County have fulfilled the conditions of the interim approval granted on November 15, 1995, EPA proposes full approval of their title V operating permit programs and the fee program changes described above. The regulations in Alabama's federally approved title V program include Chapter 335-1-7 “Air Division Operating Permit Fees” and Chapter 335-1-7 “Major Source Operating Permits.” The regulations in Huntsville's federally approved title V program include Parts 3.1 “General Provisions,” 3.6 “Permit Application Fees,” 3.7 “Major Source Operating Permit Annual Emissions Fees,” and 3.9 “Major Source Operating Permits.” The regulations in Jefferson County's federally approved title V program include Chapter 16 “Operating Permit Fees” and Chapter 18 “Operating Permit Regulations for Major Sources.”
EPA requests comments on the program revisions discussed in this proposed action. Copies of the Alabama, Huntsville, and Jefferson County submittals and other supporting documentation used in developing the proposed full approval are contained in the EPA docket file numbered AL-2001-01 that is maintained at the EPA Region 4 office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed full approval. The primary purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the approval process, and (2) to serve as the record in case of judicial review. The docket files are available for public inspection at the location listed under the
The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
Protection of Children from Environmental Health Risks and Safety
This rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined in Executive Order 12866, and it does not involve decisions intended to mitigate environmental health or safety risks.
This rule does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the state and the federal government established in the CAA.
This rule does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000).
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 significantly regulatory action under Executive Order 12866.
The Regulatory Flexibility Act generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial number of small entities because operating permit program approvals under section 502 of the CAA do not create any new requirements but simply approve requirements that the state is already imposing. Therefore, because this approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Under sections 202 of the Unfunded Mandates Reform Act of 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a federal mandate that may result in estimated costs to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not include a federal mandate that may result in estimated costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This federal action approves pre-existing requirements under state or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
In reviewing operating permit programs, EPA's role is to approve state choices, provided that they meet the criteria of the CAA and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the state to use VCS, EPA has no authority to disapprove an operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of an operating permit program that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of NTTAA do not apply.
This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
42 U.S.C. 7401-7671q.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA or the Agency) is proposing an amendment to the May 1, 1995, Comprehensive Procurement
The CPG implements the Resource Conservation and Recovery Act (RCRA) and Executive Order 13101, which require EPA to designate items that are or can be made with recovered materials and to recommend practices that procuring agencies can use to procure designated items. Once EPA designates an item, any procuring agency that uses appropriated federal funds to procure that item must purchase the item containing the highest percentage of recovered materials practicable. Today's proposed action will use government purchasing power to stimulate the use of these materials in the manufacture of new products, thereby fostering markets for materials recovered from solid waste.
EPA will accept public comments on this proposed rule until October 29, 2001.
To comment on this proposal, please send an original and two copies of comments to: RCRA Information Center (5305W), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please place the docket number F-2001-CP4P-FFFFF on your comments.
If any information is confidential, it should be identified as such. An original and two copies of Confidential Business Information (CBI) must be submitted under separate cover to: Document Control Officer (5305W), Office of Solid Waste, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Documents related to today's proposal are available for viewing at the RCRA Information Center (RIC), located at: U.S. Environmental Protection Agency, 1235 Jefferson Davis Highway, Ground Floor, Crystal Gateway One, Arlington, VA 22202. The RIC is open from 9 a.m. to 4 p.m. Monday through Friday, except for federal holidays. The public must make an appointment to review docket materials. Call (703) 603-9230 for appointments. Copies cost $.15 per page.
For general information contact the RCRA Call Center at (800) 424-9346 or TDD (800) 553-7672 (hearing impaired). In the Washington, DC metropolitan area, call (703) 412-9810 or TDD (703) 412-3323. For technical information on individual item designations, contact Terry Grist at (703) 308-7257.
This action may potentially affect those “procuring agencies”—a term defined in RCRA section 1004(17)—that purchase the following: Bike racks, blasting grit, cement and concrete containing cenospheres, cement and concrete containing silica fume, modular threshold ramps, nonpressure pipe, nylon carpet and nylon carpet backing, office furniture, rebuilt vehicular parts, roofing materials, and tires. For purposes of RCRA section 6002, procuring agencies include the following: (1) Any federal agency; (2) any state or local agencies using appropriated federal funds for a procurement; or (3) any contractors with these agencies (with respect to work performed under the contract). The requirements of section 6002 apply to such procuring agencies only when procuring designated items where the price of the item exceeds $10,000 or the quantity of the item purchased in the previous year exceeded $10,000. Potential regulated entities for this rule are shown in Table 1.
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities of which EPA is now aware that could potentially be subject to regulatory requirements triggered by this action. To determine whether your procurement practices are affected by this action, you should carefully examine the applicability criteria in 40 CFR 247.2. If you have questions regarding the applicability of this action to a particular entity, consult the individuals listed in the preceding
EPA (“the Agency”) is proposing this amendment to the Comprehensive Procurement Guideline under the authority of sections 2002(a) and 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976; 42 U.S.C. 6912(a) and 6962; in compliance with section 502 of Executive Order 13101 (Executive Order), “Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition” (63 FR 49643, September 14, 1998).
Section 6002(e) of RCRA requires EPA to designate items that are or can be made with recovered materials and to recommend practices to help procuring agencies meet their obligations for procuring items designated under RCRA section 6002. After EPA designates an item, RCRA requires that each procuring agency, when purchasing a designated item, must purchase that item made of the highest percentage of recovered materials practicable.
Executive Order 13101 establishes the procedure EPA must follow when implementing RCRA section 6002(e). Section 502 of the Executive Order directs EPA to issue a Comprehensive Procurement Guideline (CPG) that designates items that are or can be made with recovered materials. Concurrent with the CPG, EPA must publish recommended procurement practices for purchasing designated items, including recovered material content ranges, in a related Recovered Materials Advisory Notice (RMAN). The Executive Order also directs EPA to update the CPG every 2 years and to issue RMANs periodically to reflect changing market conditions.
The original CPG (CPG I) was published on May 1, 1995 (60 FR 21370). It established eight product categories, designated 19 new items, and consolidated five earlier item designations. At the same time, EPA published the first RMAN (RMAN I) (60 FR 21386). On November 13, 1997, EPA published CPG II (62 FR 60962), which designated an additional 12 items. At the same time, EPA published an RMAN II (62 FR 60975). Paper Products RMANs were issued on May 29, 1996 (61 FR 26985) and June 8, 1998 (63 FR 31214). On January 19, 2000, EPA published CPG III (65 FR 3070), which designated an additional 18 items. At the same time, EPA published an RMAN III (65 FR 3082).
Today, in CPG IV, EPA is proposing to designate the following 11 additional items:
Also today in CPG IV, EPA is proposing to revise the previous designations for polyester carpet and railroad grade crossing surfaces.
While not limiting consideration to these criteria, RCRA section 6002(e) requires EPA to consider the following when determining which items it will designate:
(1) Availability of the item;
(2) Potential impact of the procurement of the item by procuring agencies on the solid waste stream;
(3) Economic and technological feasibility of producing the item; and
(4) Other uses for the recovered materials used to produce the item.
EPA consulted with federal procurement and requirement officials to identify other criteria to consider when selecting items for designation. Based on these discussions, the Agency concluded that EPA should also factor the limitations set forth in RCRA section 6002(c) into its selection decisions. This provision requires each procuring agency that procures an item designated by EPA to procure the item composed of the highest percentage of recovered materials practicable, while maintaining a satisfactory level of competition. A procuring agency, however, may decide not to procure an EPA-designated item containing recovered materials if it determines: (1) The item is not available within a reasonable period of time, (2) the item fails to meet the performance standards set forth in the Agency's specification, or (3) the item is available only at an unreasonable price.
EPA recognized that the above criteria limit the conditions under which procuring agencies must purchase EPA-designated items with recovered materials content, and, thereby, could limit the potential impact of an individual item designation. (The limitations of RCRA section 6002(c) also effectively describe the circumstances in which a designated item is “available” for purposes of the statute.) For these reasons, EPA is also taking into account the limitations cited in RCRA section 6002(c) in its selection of items for designation in today's proposed CPG IV. Thus, the Agency developed the following criteria for use in selecting items for designation: use of materials found in solid waste, economic and technological feasibility and performance, impact of government procurement, availability and competition, and other uses for recovered materials. These criteria are discussed in detail in Section II of the document entitled, “Background
EPA has adopted two approaches in its designation of items that are made with recovered materials. For some items, such as paper and paper products, the Agency designates broad categories of items and provides information in the related RMAN as to their appropriate applications or uses. For other items, such as plastic trash bags, EPA designates specific items, and, in some instances, includes in the designation the specific types of recovered materials or applications to which the designation applies. The Agency explained these approaches to designating items in the preamble to CPG I (60 FR 21373, May 1, 1995).
EPA sometimes had information on the availability of a particular item made with a specific recovered material (e.g., plastic), but no information on the availability of the item made from a different recovered material or any indication that it is possible to make the item with a different recovered material. In these instances, EPA concluded that it was appropriate to include the specific material in the item designation in order to provide vital information to procuring agencies as they seek to fulfill their obligations to purchase designated items composed of the highest percentage of recovered materials practicable. This information enables the agencies to focus their efforts on products that are currently available for purchase, reducing their administrative burden. EPA also included information in the proposed CPG, as well as in the draft RMAN that accompanied the proposed CPG, that advised procuring agencies that EPA is not recommending the purchase of an item made from one particular material over a similar item made from another material. For example, EPA included the following statement in the preamble discussion for plastic desktop accessories (59 FR 18879, April 20, 1994): “This designation does not preclude a procuring agency from purchasing desktop accessories manufactured from another material, such as wood. It simply requires that a procuring agency, when purchasing plastic desktop accessories, purchase these accessories made with recovered materials. * * *”
The Agency has learned that some procuring agencies may erroneously believe that the designation of a broad category of items in a CPG requires them (1) to procure all items included in such category with recovered materials content and (2) to establish an affirmative procurement program for the entire category of items, even where specific items within the category may not meet current performance standards. This is clearly not required under RCRA as implemented through the CPGs and RMANs. RCRA section 6002 does not require a procuring agency to purchase items with recovered materials content that are not available or that do not meet a procuring agency's specifications or reasonable performance standards for the contemplated use. Further, section 6002 does not require a procuring agency to purchase such items if the item with recovered materials content is only available at an unreasonable price or the purchase of such item is inconsistent with maintaining a reasonable level of competition. However, EPA stresses that, when procuring any product for which a recovered materials alternative is available that meets the procuring agency's performance needs, the procuring agency should seek to purchase the product made with the highest percentage of recovered materials practicable.
The items proposed for designation today have all been evaluated with respect to EPA's criteria. Details of these evaluations are discussed in the “Background Document for Proposed CPG IV and RMAN IV. Sections IV-VII of this preamble provide a summary of EPA's rationale for designating these items.
EPA acknowledges that there are other federal procurement programs that encourage agencies to consider other environmental attributes in addition to recovered materials content. In particular, EPA's Environmentally Preferable Purchasing (EPP) Program supports the consideration of life cycle costs and benefits when making purchasing decisions to determine which products and services would have the most significant environmental impacts. Therefore, EPA encourages agencies to consider other environmental impacts of products, as appropriate, when procuring items designated in the CPG. When purchasing carpets, for example, agencies might want to take into account the volatile organic compounds (VOC) content of the carpet, because a lower VOC content can help improve indoor air quality, which is especially important for sensitive individuals. In addition, the use of some sealants and adhesives used for carpet installations may further contribute to increased VOCs. Similarly, some fiberboard products used in office furniture may contain urea-formaldehyde as a binding agent. Formaldehyde is classified by EPA as a possible human carcinogen. Alternative binders may be available for use during the manufacturing process. EPA is not suggesting that the use of these, or any other materials in products, presents an undue risk. We are merely suggesting that, all other things being equal, agencies may wish to procure the designated item that provides the best overall environmental performance while still meeting all applicable specifications and performance requirements.
For additional information on other environmental purchasing initiatives, agencies are encouraged to visit the following Web sites:
EPA requests comments and information throughout this preamble. In general, the Agency is requesting comments on: (1) the items selected for designation and (2) the accuracy of the information presented in the discussions of the basis of the item designations. Requests for specific comments and information are included in the narrative discussions for each of the designated items, which follow in Sections IV through VII.
EPA also is requesting comments on the draft RMAN IV published in the notice section of today's
For additional background information, including information on RCRA requirements, Executive Order directives, and the criteria and methodology for selecting the proposed designated items, please consult “Background Document for Proposed CPG IV and Draft RMAN IV.” Information on obtaining this background document is provided in Section X, Supporting Information and Accessing Internet.
Today, in § 247.3, EPA is proposing to add terms and definitions for the following new items: Bike racks; blasting grit; cement and concrete containing cenospheres; cement and concrete containing silica fume; modular threshold ramps; nonpressure pipe; nylon carpet and nylon carpet backing; office furniture; rebuilt vehicular parts; and roofing materials. In addition, EPA is also including a definition for polyester carpet because it inadvertently failed to do so in CPG I. These definitions are based on industry definitions, including ASTM or other standard specifications, or represent
For several items being proposed for designation, EPA recommends two-part recovered materials content levels in the draft RMAN IV—a postconsumer recovered content component and a total recovered materials component. In these instances, EPA found that both types of materials were being used to manufacture a product. Recommending only postconsumer content levels would fail to acknowledge the contribution to the reduction in solid waste made by the use by one manufacturer of another manufacturers' byproducts as feedstock.
Because the item designations in today's action use the terms “postconsumer materials” and “recovered materials,” the definitions for these terms are repeated here as a reference for the convenience of the reader. These definitions can be found in 40 CFR 247.3. The Agency is not proposing to change these definitions and will not consider any comments submitted on these terms.
The information obtained by EPA demonstrates that rebuilt vehicular parts are commercially available. Today, in § 247.11(d), EPA proposes to designate rebuilt vehicular parts as an item whose procurement will carry out the objectives of section 6002 of RCRA.
A final designation would require that a procuring agency, when purchasing vehicular parts, purchase rebuilt parts when they meet applicable specifications and performance requirements. This designation would apply to rebuilt vehicular parts used in passenger vehicles as well as medium- and heavy-duty equipment (
Rebuilt vehicular parts are vehicle parts that have been remanufactured, reusing parts in their original form. For an automotive product to be considered remanufactured or rebuilt under the Federal Trade Commission (FTC) guides, it must be dismantled; all internal and external parts must be cleaned and made free of rust and corrosion; all impaired, defective, or substantially worn parts must be restored to sound condition or replaced with new or rebuilt parts; and all necessary operations must be performed to put the remanufactured product in sound working condition. (“Guides for the Rebuilt, Reconditioned and Other Used Automotive Parts Industry,” Federal Trade Commission, 16 CFR Part 20).
EPA has concluded that rebuilt vehicular parts meet the statutory criteria for selecting items for designation.
a.
b.
Rebuilt parts are not just cleaned, visually inspected, and resold with little to no repair work done. These parts undergo an extensive remanufacturing and testing process. Rebuilt parts must meet the same industry specifications for performance as new parts. According to APRA, rebuilt parts are comparable in quality to new parts and can be of even better quality than new parts when items are upgraded during the rebuilding process.
c.
EPA found that the majority of replacement vehicular parts purchased by the Forest Service are rebuilt parts (for all types of vehicles). Engines for medium- and heavy-duty equipment are always rebuilt. The U.S. Air Force has a written policy stating its preference for rebuilt parts, and the majority of parts for all of their vehicle types are rebuilt.
Many federal agencies use local commercial facilities for maintenance and repair of government-owned or leased vehicles. Many of these agencies simply request the least expensive parts, which usually are rebuilt parts.
During 1999, bills were introduced in California, New York, Connecticut, Missouri, and Texas that would make procurement of remanufactured products by those state governments easier and prevent procurement by them of products that have restrictions on being remanufactured. Bills were ultimately passed and made law in California, Connecticut, and Texas.
The information obtained by EPA demonstrates that tires containing recovered materials are commercially available. Retread tires were one of five original items EPA designated in the late 1980's. EPA included these earlier designations with new designations in CPG I (60 FR 21370). Sec. 403(b) of EO 13149, “Greening the Government through Federal Fleet and Transportation Efficiency,” encourages agencies to purchase tires containing 5 to 10 percent recovered rubber.
Today, in § 247.11(b), EPA proposes to revise the designation for tires to include tires containing recovered materials as an item whose procurement will carry out the objectives of section 6002 of RCRA. A final designation would require that a procuring agency, when purchasing tires, either procure retread tires and retreading services or purchase tires containing recovered rubber when they meet applicable specifications and performance requirements. The previous designation for retread tires and services is not changed by today's proposal; the Agency is merely reformatting the designation to differentiate between retread tires and services and tires containing recovered materials.
Tires are used on almost all types of vehicles, are available in different sizes, and are designed for specific applications. An average passenger tire weighing about 20 pounds would consist of 10 pounds of elastomers, which are a combination of both synthetic and natural rubber; 5 pounds of carbon black; 3 pounds of fibers such as steel and nylon; and 2 pounds of 40 different kinds of chemicals, waxes, oils, pigments, and binding agents.
EPA has concluded that tires containing recovered materials meet the statutory criteria for selecting items for designation.
a.
Ground or “crumb rubber” is the primary material used in recovered material content tires. Crumb rubber is derived from scrap tires that have been shredded into fine pieces of rubber. According to one crumb rubber manufacturer, U.S. tire manufacturers use approximately 110,000 tons of crumb rubber each year. The company speculated that if U.S. tire manufacturers were to use 10 percent recovered materials content in their tires, demand for crumb rubber would increase to 356,400 tons per year.
In 1998, 273 million scrap tires were generated in the United States. Of these, between 12 to 14 million were used to manufacture crumb rubber for use in tires and other products. One crumb rubber manufacturer speculates that if the current annual U.S. crumb rubber consumption rate of 110,000 tons remains consistent, there is no foreseeable shortage of raw materials to produce this product.
b.
c.
The information obtained by EPA demonstrates that cement and concrete containing cenospheres are commercially available. EPA previously designated cement and concrete containing fly ash and ground granulated blast furnace slag (GGBF) in CPG I. Today, in § 247.12(c), EPA proposes to revise the cement and concrete designation to include cement and concrete containing cenospheres as an item whose procurement will carry out the objectives of section 6002 of RCRA.
Cenospheres are very small (10-350 microns), inert, lightweight, hollow, “glass” spheres composed of silica and alumina and filled with air or other gases. They are a naturally-occurring component of fly ash, the largest byproduct of coal-fired power plants. Cenospheres are recovered and marketed throughout the world as an aggregate (or “filler”) material in a wide variety of products. Unlike some aggregates that compete with cenospheres for certain applications, cenospheres are not manufactured; they are recovered only from fly ash.
Concrete containing cenospheres is a high performance concrete used in many construction applications including, but not limited to, specialty cements, mortars, grouts, and stucco. It can be used in construction of roads, bridges, buildings, docks, and dams.
EPA has concluded that cement and concrete containing cenospheres meets the statutory criteria for selecting items for designation.
a.
According to data provided by the American Coal Ash Association (ACAA), between 630,000 and 3,150,000 tons of cenospheres were generated in 1998 by metal producers in the United States and 25,000 to 45,000 tons were reclaimed. The total amount of cenospheres reused will be higher because of the cenospheres content of fly ash, which is used as an additive in concrete as well. Cenospheres that are not reused are landfilled with the fly ash from which they are derived. According to ACAA, cenospheres are an inert material that does not leach hazardous pollutants in landfills or during storage. It is estimated that 70 to 80 percent of all cenospheres produced are landfilled.
Assuming a conservative cenosphere production rate of 1 million tons per year, the calculated volume of solid waste this represents is 83 million cubic feet of solid waste based on an average bulk density of 24 pounds per cubic foot. Based on the average U.S. reclamation volume of 35,000 tons annually, this represents a volume reduction of approximately 2.9 million cubic feet per year.
b.
EPA identified the following national specification which can be used by procuring agencies to buy concrete containing cenospheres of a standard quality: ASTM C-618, which covers concrete additives.
c.
The information obtained by EPA demonstrates that cement and concrete containing silica fume are commercially available. EPA previously designated cement and concrete containing fly ash and ground granulated blast furnace slag (GGBF) in CPG I. Today, in § 247.12(c), EPA proposes to revise the cement and concrete designation to include cement and concrete containing silica fume from silicon and ferrosilicon metal production as an item whose procurement will carry out the objectives of section 6002 of RCRA.
Silica fume is a waste material recovered from alloyed metal production—it is the solid waste collected on filters of electric arc furnace stacks. According to the Silica Fume Coalition (SFC), silica fume is a very fine, dust-like material composed primarily of silicon dioxide, the basic component of most rocks and sand. The glassy, spherical particles, approximately 1 micrometer in diameter, are a byproduct resulting from the reduction of high-purity quartz with coal or coke and wood chips in an electric arc furnace (EAF) during the production of silicon metal or ferrosilicon alloys. For comparison purposes, a grain of sand is about 1,000 times larger than a silica fume particle. Although silica content and particle size of fumes will vary according to the source of the fume, the use of silica fume in concrete has been standardized in specifications published by the American Society for Testing Materials (ASTM), the American Concrete Institute (ACI), the American Association of State Highway and Transportation Officials (AASHTO), and several state departments of transportation (DOTs). Hydrogen gas is released from concrete mixtures containing silica fume with a silicon metal production greater than 2 percent, which can result in a potential hazard. ASTM standards require that silica fume used in concrete be derived from only silicon or ferrosilicon metal production, which yields silica fume having a silicon metal content less than 2 percent, thus eliminating these hazards. Based on this information, EPA has concluded that any designation should be limited to silica fume from silicon and ferrosilicon metal production.
Concrete containing silica fume is a high-performance concrete (HPC) used in construction and maintenance projects including, but not limited to, roads, bridges, buildings, docks, and dams. As defined by ACI, HPC is concrete that meets special requirements not achievable through the use of conventional materials and construction practices. Concrete containing silica fume is sold premixed in bags, similar to concrete with other additives.
EPA has concluded that cement and concrete containing silica fume meets the statutory criteria for selecting items for designation.
a.
According to SFC, approximately 115,000 tons of silica fume were generated in 1999 by metal producers in the United States and approximately 67,200 tons were reused. SFC estimates, however, that due to increased generation of silica fume, reuse will need to increase 93 percent by the year 2000 to eliminate the need to dispose of silica fume. Other than its use in concrete, no other beneficial uses of silica fume are known. Silica fume that is not reused is either landfilled or stored for future reuse. Silica fume is an inert material and does not leach hazardous pollutants in landfills or during storage.
According to SFC, the United States uses more than 500 million tons of concrete a year, which is more than 2 tons for every person in the United States. Using silica fume in only a small percentage of concrete production could greatly reduce the need to dispose of silica fume.
b.
EPA identified the following national specifications and guidelines, which can be used by procuring agencies to buy HPC containing silica fume of a standard quality: ASTM C1240, AASHTO M840, and ACI 234R-96. ACI 234R-96 describes the properties of silica fume; how silica fume interacts with cement; the effects of silica fume on the properties of fresh and cured concrete; typical applications of silica fume concrete; recommendations on proportions, specifications, and handling of silica fume in the field. Silica fume has been used in HPC primarily to enhance strength and endurance properties, not because it is a recovered material.
Silica fume enhances HPC properties because its small particle size fills the microscopic holes in cement, which increases density and strength. The density of silica fume concrete makes it an appropriate material for bridges, parking decks, docks, and dams because of its strength and its impermeability. Concrete containing silica fume significantly reduces the potential damage from freeze and thaw cycles because it is too dense for water to permeate below the surface of the concrete. According to a contact with the New York Department of Transportation (NYDOT), HPC with silica fume and coal fly ash is used on all NYDOT bridge and deck construction projects as well any other structures that are subjected to salts or chlorides (i.e., deicing salts or salt spray from seawater). The contact indicated that the low permeability of the concrete slows the ingress of salt to internal reinforcements, thus delaying corrosion.
Silicosis is a potentially debilitating lung disorder that results from the inhalation of crystalline silica. While
To reduce the potential risks associated with silica fume particles, suppliers typically slurry with water or compact silica fume to reduce workers' potential exposure to the dust.
c.
The following state DOTs are known to have used concrete containing silica fume: New York, Ohio, Washington, South Carolina, Pennsylvania, Indiana, and Virginia. A contact with the New York DOT indicated that most states have used concrete containing silica fume at one point or another and that many probably use it routinely.
According to SFC, of the 580,000 bridges in the U.S., approximately 1,900 bridges were built or repaired using concrete containing silica fume by 1999.
The information obtained by EPA demonstrates that modular threshold ramps containing recovered materials are commercially available. Today, in § 247.12(k) EPA is proposing to designate modular threshold ramps containing recovered content steel, aluminum, or rubber as an item whose procurement will carry out the objectives of section 6002 of RCRA. A final designation would not preclude a procuring agency from purchasing modular threshold ramps made from another material. It simply requires that a procuring agency, when purchasing steel, aluminum, or rubber modular threshold ramps, purchase these items made with recovered materials when they meet applicable specifications and performance requirements.
Threshold ramps are used to modify door thresholds and other small rises to remove barriers that changes in level landing create, particularly with regards to access by people with disabilities. Threshold ramps can be either custom-made and permanent, or can be constructed from modular sections which can be purchased separately. For reasons explained below, EPA's proposed designation is limited to modular threshold ramps, which usually contain recovered metal or rubber.
A change of level landing greater than
When the change of level landing is greater than 6 inches and where a modular ramp is not suitable, concrete, asphalt, wood, or metal are typically used to create a transition that effectively removes the barrier. A modular rubber ramp for a transition greater than 6 inches becomes very heavy and prohibitively expensive to ship. EPA's proposed designation covers modular threshold ramps only, rather than threshold ramps in general. EPA is limiting the scope of this designation to modular ramps because they are standard items that can be purchased as end products. Custom-built, permanent threshold ramps are not covered under the scope of this designation.
EPA has concluded that modular threshold ramps containing recovered materials meet the statutory criteria for selecting items for designation.
Since concrete and asphalt threshold ramps require construction, they are not included with the modular threshold ramps under consideration for designation. However, since EPA has already designated cement and concrete containing certain recovered materials, procuring agencies should consider requiring cement and concrete used for constructing threshold ramps to contain these recovered materials.
Recycled rubber threshold ramps meeting the ADA and UFAS standards have been available since 1996 and are similar in performance and cost to synthetic rubber ramps. According to a contact with a school district in Florida, the recycled rubber ramp provides a greater static coefficient of friction rating, and is therefore more slip-resistant. The rubber threshold ramps can be used anywhere where there is a change of level landing requiring a ramp of 1:12 slope. The ramps are not limited to door thresholds. Therefore, this product has applicability along any access route, indoors or outdoors.
A limitation to the recycled rubber ramp is that it is only suitable for heights up to 6 inches. At this height the ramp becomes very heavy and expensive to ship. (The standard modular ramp weighs 16 to 18 pounds). For changes in level landing greater than 6 inches, modifications generally require re-pouring concrete or using permanent, custom-built rather than modular ramps.
For many years, aluminum, steel, and copper ramps have been used to provide access for people with disabilities and to eliminate barriers at door thresholds
Three of these suppliers also manufacture aluminum ramps that can contain recovered materials when secondary billet is less expensive than primary billet.
Although exempt from ADA requirements, the federal government is using the 1992 ADA guidelines with regards to accessibility by people with disabilities because they are more current than the much older UFAS. Hence, all government agencies potentially purchase modular threshold ramps. Manufacturers of modular threshold ramps are selling some products to the federal government. Three manufacturers indicated that their distributors have made sales to federal facilities, and, while EPA was not able to quantify purchases of these items, the Agency has concluded that they are purchased in substantial quantities that support the proposed designation of these items.
The information obtained by EPA demonstrates that nonpressure pipe made with recovered materials is commercially available. Today, in § 247.14(l), EPA proposes to designate nonpressure pipe containing recovered steel, plastic, or concrete as an item whose procurement will carry out the objectives of section 6002 of RCRA.
A final designation would not preclude a procuring agency from purchasing nonpressure pipe made from other materials. It simply requires that a procuring agency, when purchasing steel, plastic, or concrete nonpressure pipe, purchase the item containing recovered materials when they meet applicable specifications and performance requirements.
Nonpressure pipe is used throughout the United States as drainage pipe and conduit in construction, communications, municipal, industrial, agricultural, and mining applications. Drainage pipe is used in water distribution systems for surface and subsurface applications (
EPA has concluded that nonpressure pipe containing recovered materials meets the statutory criteria for selecting items for designation. EPA's designation would be limited to nonpressure pipe used for noncritical applications such as agricultural drainage, drain, waste and vent (DWV), building and construction duct and pipe, road and highway ducts and drainage, and electrical and communications conduit.
A 1996 report by the Reason Foundation indicated that because the pipe industry uses minimal amounts of recycled resin in its manufacturing, the industry could potentially absorb additional quantities. Reason estimated that as much as 130,000 additional tons of recovered PVC and 120,000 additional tons of recovered HDPE could be used in the manufacture of pipe.
Several contacts expressed concern about some technical performance issues that could present purchasing barriers, particularly with plastic pipe. EPA addresses these concerns in the “Background Document for Proposed CPG IV and Draft RMAN IV,” located in the RCRA Docket.
The information obtained by EPA demonstrates that nylon carpet and nylon carpet backing made with recovered materials are commercially available. Today, EPA proposes to revise § 247.12(d), to include nylon carpet and nylon carpet backing containing recovered materials as items whose procurement will carry out the objectives of section 6002 of RCRA.
A final designation would not preclude a procuring agency from purchasing carpet or carpet with backing made from other materials. In the case of nylon carpet, the designation simply requires that a procuring agency, when purchasing nylon carpet, purchase this carpet containing recovered materials in the nylon face fiber and/or in the nylon carpet backing when they meet applicable specifications and performance requirements.
When researching nylon carpet backing, EPA identified two companies that use in-house scrap from their own virgin manufacturing practices to make polypropylene (PP) backing. However, EPA is not aware of any company using recovered material as defined in this proposed rule. Therefore, EPA is requesting comments and information on the use of recovered materials in PP carpet backing.
Carpet backing is a layer of woven or nonwoven material used to hold carpet fibers in place and provide structural support. The majority of office floors in the United States are covered with nylon-based broadloom carpet, and nylon-based carpet represents 90 to 95 percent of all carpet, the remaining being polypropylene, acrylic, or polyester-based. Typically, with broadloom, or “roll” carpet, carpet fibers are inserted into a layer of woven material and glued into place. This layer of woven material, the primary backing, is most often made of polypropylene (PP). Another layer of woven material, the secondary backing, is then applied to the primary backing to provide stability. The secondary backing is also usually made from PP but can also be made of jute. Broadloom carpet is purchased and installed as one large piece that is cut and fitted for a particular office environment.
Carpet tile was introduced to the marketplace about 40 years ago as an alternative to broadloom. In the past 10 years, the popularity of carpet tile has increased and now represents approximately 10 percent of total U.S. commercial carpet dollars in sales, estimated to be $2.8 billion. In the government, carpet tile represents approximately 30 percent of total carpet purchased, estimated to be 3.2 million yards per year at a cost of approximately $57 million.
Carpet tiles are manufactured first as broadloom carpet, but a third layer of polyvinyl chloride (PVC), polyurethane, or other hardback material is applied to the secondary backing for enhanced durability. The carpet is then usually cut into 18 by 18-inch squares. Carpet tiles are used in modular flooring systems, such as office settings, and can offer more flexibility than broadloom carpet. Individual carpet tiles can be replaced when they become worn.
EPA has concluded that nylon carpet and nylon carpet backing containing recovered materials meets the statutory criteria for selecting items for designation.
According to information obtained from one carpet company, carpet tiles with recovered content backing weigh approximately 8.4 pounds per square yard. Approximately 22.4 percent of a carpet tile by weight contains recovered material. About 2 pounds of recovered material, therefore, are used in each square yard of its carpet tiles. If a government agency purchased 1,000 square yards of the carpet tiles with recovered content backing, approximately 2,000 pounds (1 ton) of material would be diverted from the waste stream.
In the past, when the carpet was removed, it was largely discarded in landfills. However, many nylon fiber and carpet companies have initiated collection programs to divert used carpet from landfills and use it to make new products. Several manufacturers are producing nylon carpet with up to 100 percent recovered material. The recovered material is usually a combination of postconsumer and postindustrial material, but at least one company has produced caprolactam, the main product of recovery, using 100 percent postconsumer material.
Several companies are manufacturing PVC carpet backing containing recovered materials, with the ratio of postconsumer to postindustrial material dependent on market availability. One company indicated that its recovered content nylon carpet backing is made from 100 percent recovered material, including more than 35 percent postconsumer carpets and less than 65 percent postindustrial material from the carpet-making and automobile manufacturing industries.
Another company is the sole provider of the only carpet renewing program currently on the market. The company super-cleans, retextures, restyles, and recolors modular carpet tiles to look like new. The process creates a product that essentially contains 100 percent postconsumer material.
One company EPA contacted no longer manufactures carpet fiber but does make a polypropylene carpet backing. The company uses a small amount (1 to 2 percent) of postindustrial in-house manufacturing scrap in its backings, but the contact added that they are essentially virgin products.
Another company also has recently started using a small amount (1 percent) of postindustrial manufacturing scrap in its polypropylene backings. The company intends to increase the recovered material content to 5 to 10 percent in the future, possibly including some postconsumer carpet backing material.
Most of the companies contacted have collection programs in place for recovering used carpet and other recovered material.
According to a contact at one company, recovered content PVC carpet backing performs as well as virgin PVC backing.
As mentioned previously, the popularity of carpet tile has increased and now represents approximately 10 percent of total U.S. commercial carpet dollars in sales, estimated to be $2.8 billion. In the government, carpet tile represents approximately 30 percent of total carpet purchased, estimated to be 3.2 million yards per year at a cost of approximately $57 million.
According to contacts at two companies, several carpets manufactured from their recovered material content yarn systems are available through GSA's schedule. Another company's nylon is the major component in numerous carpet styles offered by carpet mills, dealers, and retailers that are listed in the Floor Coverings section of the Federal Supply Schedule (72 I-A). In addition to other government facilities, the government currently purchases nylon carpeting with recovered material content for military housing.
City, county, state, and federal government agencies currently purchase recovered content carpets, either as part of new building construction or retrofit projects.
The information obtained by EPA demonstrates that roofing materials containing recovered materials are commercially available. Today, in § 247.12(m), EPA proposes to designate roofing materials made from recovered content steel, aluminum, fiber, rubber, plastic or plastic composites, and cement as items whose procurement will carry out the objectives of section 6002 of RCRA. A final designation would not preclude a procuring agency from purchasing roofing materials manufactured from another material. It simply requires that a procuring agency, when purchasing steel, aluminum, fiber, rubber, plastic or plastic composite, or
A building's roof system and its finished roofing materials are the primary means of shielding a structure's interior from the natural elements. According to the Roofing Industry Educational Institute, approximately 30 variables determine the type of roof to use on a building. Variables include the roof structure and decking, its slope, appearance, the weight the structure must support, local building and fire codes, the roofing materials already on the building, and the area's climate and wind zone. For example, while a sloping shingle roof easily sheds water, a flat roof must depend on a continuous waterproof membrane to contain the water while it drains and/or evaporates.
Consequently, roofing systems fall into two general categories: (1) High-sloped or “pitched” roofs and (2) low-sloped or flat roofs. Residential structures normally have pitched roofs, although parts (such as garages or some additions) can be low-sloped. Commercial roofs are generally low-sloped. Roofs are generally referred to as “residential” or “commercial,” but these terms can refer either to the slope of the roof or the use of the building.
EPA has concluded that roofing materials containing recovered materials meet the statutory criteria for selecting items for designation.
Large fiberglass shingle manufacturers contacted by EPA indicated that they do not manufacture the shingles with recovered content material. Likewise, EPA found that asphalt used in matting, roll roofing, shingles, coatings, modified bitumen, and built-up roofing usually does not contain recovered or postconsumer materials. Aluminum shingles and panels can and are being made with recovered and postconsumer materials. One manufacturer uses up to 20 percent postconsumer material from curbside collection programs. Another manufacturer makes 95 percent postconsumer aluminum shingles. Rubber single-plies, shingles, and “rubberized” modified bitumen (styrene-butadiene-styrene, known as SBS) can contain some recovered and postconsumer materials, including old tires. One manufacturer of rubber shingles uses 100 percent postconsumer (old) tires. EPA is aware of one other manufacturer that claims to use at least 50 percent postconsumer rubber in its shingles. Plastic single-plies, shingles, and plasticized modified bitumen (atactic polypropylene, known as APP) can contain various types of recovered and postconsumer plastics. One contact was unable to provide a percentage of recovered material content of its plastic. Another manufacturer EPA contacted makes plastic shingles and shakes from 100 percent postconsumer plastic. Wood shakes can contain recovered materials from old pallets, pallet scraps, sawmill waste, and manufacturing waste. EPA contacted one manufacturer that incorporates the company's manufacturing waste into wood shakes and shingles. Another manufacturer makes roofing shingles from 100 percent recovered wood and PVC plastic. Cement-based shingles can include recovered materials. One manufacturer uses 4 percent postconsumer newsprint fibers and 14 percent recovered silica fume in their fiber base concrete shingles, which are made with portland cement.
Roofing systems and their components are subject to an array of standards, tests, and codes pertaining to performance and other characteristics. EPA found no building codes or standards that prohibit the use of recovered materials in roofing products.
Several manufacturers indicated that they sell to federal, state, or local government entities, but did not provide names of specific agencies, contact names, or the amount sold.
On May 1, 1995, EPA issued a final designation for polyester carpet containing recovered materials in CPG I (60 FR 21370). This designation was codified at 40 CFR 247.12(d). Since EPA issued this designation, we have received a number of inquiries from procuring agencies and industry representatives expressing some confusion over the polyester carpet designation, when agencies are “required” to buy recycled-content polyester carpeting, and what applications are included in the designation.
The final CPG I designated “carpet made from polyester fiber for use in low- and medium-wear applications.” In the background document for the final CPG I, EPA cited the Carpet and Rug Institute's (CRI) guidelines for selecting the quality of carpeting in light-, medium-, and heavy-wear applications. At the time, CRI suggested the following general carpet applications:
CRI recently issued new carpet-use classifications which provide a listing of the types of end-use applications recommended for carpet and reclassifies the applications into three new categories: moderate-, heavy-, and severe-wear applications. Most of the applications cited by EPA in the initial polyester designation referred to private homes which, under the new CRI list, would be included in the category of “single family housing.” CRI's classifications includes both moderate- and heavy-use applications under the single family housing category. Therefore, EPA proposes to revise the polyester carpet designation to reference the new CRI classifications and specify that the designation be limited to moderate- and heavy-wear applications such as those found in single-family housing units, private offices, and similar applications. EPA requests comments on this proposed revision to the designation for polyester carpet.
EPA notes that some agencies have developed their own specifications for end-use applications. It is not EPA's intent to suggest that these specifications be changed or to recommend the use of polyester carpet where it may not be suitable. EPA's designation of polyester carpet, in effect, applies to those cases where procuring agencies have determined that polyester carpet has suitable characteristics to meet the agencies' particular applications. Where it is determined that polyester carpet is not suitable for a particular application, the agency is not required to purchase this type of carpet. However, where it is determined that polyester carpet is suitable, procuring agencies should purchase this carpet containing recovered materials.
Today, in 40 CFR 247.12(d), EPA proposes to amend the designation for polyester carpet to specify that the designation is limited to moderate- and heavy-wear applications such as those found in single-family housing units, private offices, and similar applications.
On January 19, 2000, EPA designated railroad grade crossing surfaces made from cement and concrete containing coal fly ash, recovered rubber, or recovered steel (65 FR 3070). This designation was codified at 40 CFR 247.12 (j). EPA recently received information from two companies, one that manufactures railroad grade crossings made from recovered wood, and another that manufactures railroad grade crossings from a composite plastic material. The information from these companies has been included in the RCRA docket for this proposed rule. One company recovers wood from old railroad ties and uses this material to make new railroad ties and railroad grade crossing surfaces. The wood used to make these products is made from old railroad ties combined with a proprietary plastic binder made from postconsumer plastic. The company claims that the end products contain 90-97% postconsumer materials content. The proposed inclusion of wood railroad grade crossing surfaces in EPA's designation would also include composite wood materials. The other company makes a composite crossing from 100% recovered materials, including auto shredder residue and postconsumer plastic. The company claims that the end product contains 85-95% postconsumer material. EPA requests comments on the inclusion of recovered wood and plastic as materials to be added to the previous designation of railroad grade crossing surfaces containing recovered content cement, rubber, or steel.
Today, in 40 CFR 247.12(j), EPA proposes to amend the existing designation for railroad grade crossing surfaces to include railroad grade crossing surfaces containing recovered wood or composite wood materials and composite plastic materials. EPA has concluded that railroad grade crossing surfaces containing recovered wood and plastic meet the statutory criteria for selecting items for designation, as previously discussed in CPG III (63 FR 45558, August 26, 1998).
The information obtained by EPA demonstrates that office furniture made with recovered materials is commercially available. Today, in § 247.16(l), EPA proposes to designate office furniture containing recovered steel, aluminum, wood, agricultural fiber, and plastic as items whose procurement will carry out the objectives of section 6002 of RCRA. A final designation would not preclude a procuring agency from purchasing office furniture manufactured from other materials. It simply requires that a procuring agency, when purchasing steel, aluminum, wood, agricultural fiber, or plastic office furniture, purchase these items made with recovered materials when these items meet applicable specifications and performance requirements.
Office furniture includes seating, desks, storage units, file cabinets, tables, and systems furniture (or “cubicles”) used in virtually all federal offices.
Most office furniture is made of wood, including particleboard and medium-density fiberboard (MDF), or steel. Some companies are making particleboard from recovered agricultural fiber such as straw, kenaf, jute, and soybean hulls. Other materials in office furniture manufacturing include polyethylene terephthalate (PET) in fabrics; plastic, which is integrated in components such as laminated work surfaces and arm rests; and aluminum.
Most companies in the furniture industry do not manufacture and assemble furniture from raw materials. Rather, companies specialize in one aspect of manufacturing and work together. Suppliers, or “base manufacturers,” for example, take raw materials, such as plastic, aluminum, wood, agricultural fiber, or steel, and convert them into components (e.g., table tops, rubber edging, metal frames). Furniture manufacturers then purchase the components from suppliers and assemble them to make furniture products. In some instances, however, manufacturers fabricate their own wood and metal components.
In researching office furniture, EPA found that products fall into one of the following categories: new office furniture; reused furniture; refurbished furniture; and remanufactured furniture. For definitions of these categories, refer to the “Background Document for Proposed CPG IV and Draft RMAN IV,” located in the RCRA Docket.
EPA has concluded that office furniture containing recovered materials meets the statutory criteria for selecting items for designation.
a.
EPA found that new furniture contains varying amounts (from 0 to 98 percent) of recovered materials. Refurbished and remanufactured office furniture typically contains 25 to 75 percent postconsumer materials depending on the condition of the core being refurbished or remanufactured. According to a government consultant with 20 years experience as a federal government sales representative, remanufactured office furniture can contain as much as 60 to 80 percent postconsumer content.
According to Office Furniture Recyclers Forum (OFRF), approximately 3 million tons of office furniture are discarded in landfills each year. Remanufacturing and refurbishing can divert some of this furniture away from landfills by returning it to offices. In fact, remanufacturing just 40 typical work stations diverts one tractor-trailer load of furniture from a landfill. Also, reusing one pound of material through remanufacturing saves five to nine pounds of original materials.
Using recovered materials in manufacturing and remanufacturing also diverts waste from landfills. According to OFRF, when a company manufacturers or remanufacturers one typical work station with fabric made from recovered materials, for example, it uses 240 recovered PET soda bottles. So, if an agency were to purchase 1,000 remanufactured work stations, it would divert 240,000 soda bottles from landfills.
One company estimates it has diverted approximately 48.4 million pounds of workstation materials from landfills since opening for business in 1989.
b.
Office partitions covered with postconsumer content fabric are stain-proof and fabric rated, which means they comply with Boston, New York, and California fire codes (the most stringent state fire codes in the country). Office partitions made from postconsumer content fabric are similar in durability to those made from fabrics with virgin materials.
In many cases, there are advantages to using remanufactured or refurbished furniture. For example, furniture is usually available for delivery on much quicker time frame. In the case of one company, the refinishing can be done on the premises due to the absence of toxic chemicals. As a result, there is very little moving of furniture required and minimal downtime for the client.
c.
GSA operates programs to reuse, refurbish, and donate used furniture. Additionally, GSA's National Furniture Center works with agencies interested in incorporating environmental considerations into its selection process. The 1999 GSA consolidated schedule, which is valid for 5 years, includes furniture items in Solicitation No. 3FNO-M1-990001-B, Schedule 71, Part 1. This schedule includes remanufactured furniture as Special Item Number (SIN) 711-92.
UNICOR's Federal Prison Industries, Inc., is a mandatory source provider to the government for office furniture and many other items. According to UNICOR, the government purchases over 15 percent of its furniture from them, which equates to 40 percent of UNICOR's furniture sales. In 1997, UNICOR's office furniture sales to the federal government totaled $80 million.
The information obtained by EPA demonstrates that bike racks containing recovered materials are commercially available. Today, in § 247.17(h), EPA proposes to designate bike racks containing recovered steel and plastic as an item whose procurement will carry out the objectives of section 6002 of RCRA. A final designation would not preclude a procuring agency from purchasing bike racks manufactured from another material. It simply requires that a procuring agency, when purchasing steel or plastic bike racks, purchase them containing recovered material when they meet applicable specifications and performance requirements. When researching bike racks, EPA obtained information about those manufactured from recovered steel and plastic, but requests comments on other recovered materials such as wood or aluminum that can be or are being used to manufacture bike racks. In addition, although all of the manufacturers of plastic bike racks that EPA contacted use recovered HDPE, EPA sees no technical reason why plastic bike racks could not be made from another type of plastic resin or composite. Therefore, EPA requests comments on whether other types of recovered plastic resins are used in the manufacture of plastic bike racks. In addition, EPA requests comments on whether other recovered materials are used to manufacture bike racks.
Bike racks provide a method for cyclists to secure their bicycles safely. Commonly found in public areas and outside office buildings, bike racks can be designed to hold 1 to 50 bicycles and can range from $100 to $1,000 each, depending on type. They can be free standing units, anchored by bolts or cement, or embedded into the ground.
EPA has concluded that bike racks containing recovered materials meet the statutory criteria for selecting items for designation.
a.
EPA identified four manufacturers that use 100 percent HDPE plastic lumber to manufacture their bike racks. EPA's research noted that most of these plastic lumber manufacturers use 100 percent postconsumer HDPE for their products.
According to the government agencies EPA contacted that use steel bike racks, there are no specifications or requirements that would preclude the purchase of bike racks with recovered materials.
The information obtained by EPA demonstrates that several types of blasting grit are available containing recovered materials. Today, in § 247.17(i), EPA proposes to designate blasting grit (a type of industrial abrasive) containing recovered steel, coal combustion byproducts (boiler slag and bottom ash), metal slags, glass, plastic, or walnut shells as items whose procurement will carry out the objectives of section 6002 of RCRA. A final designation would not preclude a procuring agency from purchasing blasting grit manufactured from another material. It simply requires that a procuring agency, when purchasing blasting grit containing steel, coal combustion byproducts, metal slags, glass, plastic, or walnut shells, purchase these items made with recovered materials when these items meet applicable specifications and performance requirements. EPA identified only one type of recovered organic material (walnut shells) being used in blasting grit and requests comments on whether other types of organic materials are being used in blasting grit.
Blasting grit is a loose form of industrial abrasive that is used to shape, cut, sharpen, or finish a variety of surfaces and materials and to clean engines, prime and clean surfaces, and for corrosion control. It comes in a variety of grades (particle size) dictated by the materials being ground and the finish that is required.
Generally, industrial abrasives can be fashioned for use on metals, ceramics, carbides, composites, glass, and plastics. They can be made from a variety of materials, both virgin (including metal, minerals, and silicon) and recovered (including aluminum oxide, coal and metal slag, glass, plastic, and organic materials such as walnut shells). Industrial abrasives are used in many industries, including construction, automotive, and landscaping.
There are several specific types of industrial abrasives. Bonded abrasives are abrasive materials that have been mixed and hardened with polymer or phenol formaldehyde resins or other types of fixing agents. They are also sometimes affixed to a substrate (most commonly aluminum oxide). Coated abrasives are commonly known as sandpaper, sandpaper discs, and sanding belts, although the term is used somewhat loosely and is occasionally used to include some types of bonded abrasives as well.
Abrasives are also commonly sold in raw or unbonded form for such purposes as blasting grit. These materials are sometimes used with water to help remove contaminants from the substrate, to wet the abrasive, and to reduce dispersion of fine particles (dust). Often containing recovered materials, unbonded abrasives can be made from steel, coal and metal slag, glass, plastic and natural materials such as walnut shells. Superabrasives are abrasives made from only the strongest materials or minerals such as garnet or even diamond. These are highly specialized and expensive products and are used for heavy duty jobs such as compacted rust removal.
EPA has concluded that blasting grit containing recovered materials meets the statutory criteria for selecting items for designation.
In addition, the use of postconsumer recovered glass in the manufacture of blasting abrasives has the potential to significantly boost demand for recovered glass. One company that manufactures blasting abrasives from recovered glass, for example, has developed a glass processing system capable of handling 5,000 to 10,000 tons of recovered glass per year. In addition to recovered steel, coal and metal slag, and glass, EPA is aware that blasting grit can be manufactured from other materials that otherwise would be disposed of as part of the municipal solid waste stream, such as plastic and walnut shells.
EPA regulations do not, however, restrict the use of materials of these types or require their management under the RCRA hazardous waste management system. Thus, recently, in EPA's final rule on the Regulatory Determination on Wastes from the Combustion of Fossil Fuels (40 CFR Part 261), issued May 22, 2000, the Agency chose to retain the exemption for fossil fuel combustion wastes from the hazardous waste management system under RCRA section 3001(b)(3)(C). In addition, EPA stated in the final rule that it did not wish to place any unnecessary barriers on the beneficial use of fossil fuel combustion wastes for applications that conserve natural resources and reduce disposal costs. Therefore, EPA is proposing to include blasting grit containing slag materials in this designation but recommends that workers using these types of abrasives exercise OSHA or other required standard practices designed to protect worker health and safety.
Regarding technical feasibility and performance, abrasive blasting grit made from postconsumer recovered glass can be used in most conventional blasting equipment. A variety of industry standards pertain to industrial abrasives, and all blasting grit products containing recovered materials meet these standards. Reference to industry standards can be found in the “Background Document for Proposed CPG IV and Draft RMAN IV,” which is located in the RCRA Docket.
EPA has identified a number of manufacturers and vendors of the items proposed for designation in today's rule. Once the item designations in today's proposal become final, a list of these companies will be placed in the RCRA docket for this action and will be posted on EPA's Web site. These lists will be updated periodically as new sources are identified and product information changes. Procuring agencies should contact the manufacturers and vendors directly to discuss their specific needs and to obtain detailed information on the availability and price of recycled products meeting those needs.
Other information is available from GSA, DLA, state and local recycling offices, private corporations, and trade associations. In addition, a new Web site has recently been developed that lists all EPA designated items and manufacturers, suppliers, and vendors of these items. The Web site address is <www.greenorder.com>. Refer to Appendix II of the document, “Background Document for Proposed CPG IV and Draft RMAN IV,” located in the RCRA public docket, for more detailed information on these sources of information.
Executive Order 12866 requires agencies to determine whether a regulatory action is “significant.” The Order defines a “significant” regulatory action as one that is likely to result in a proposed 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 serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients; 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.
It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. EPA estimates that the costs associated with today's proposed rule is well below the $100 million threshold. EPA has prepared an Economic Impact Analysis (EIA) to evaluate the potential impact of today's action. The results of the EIA are discussed below. More information on the estimated economic impact of today's proposed rule is included in the Economic Impact Analysis for this proposed rule. A copy of this document is in the RCRA public docket.
As shown in Table 2 below, EPA estimates that the annualized costs of today's proposed rule will range from $6.5 to $12.8 million, with costs being spread across all procuring agencies (i.e., federal agencies, state and local agencies that use appropriated federal funds to procure designated items, and government contractors). These costs are annualized over a 10-year period at a three percent discount rate. Because there is considerable uncertainty regarding several of the parameters that influence the costs, EPA conducted sensitivity analyses to identify the range of potential costs of today's proposed rule. Thus, high-end and low-end estimates are presented along with the best estimate. The primary parameter affecting the range of cost estimates is the number of products each procuring agency is assumed to procure each year. Details of the costs associated with today's proposed rule are provided in the Economic Impact Analysis for this proposed rule.
As a result of today's proposed rule, procuring agencies will be required to take certain actions pursuant to RCRA section 6002, including rule review and implementation; estimation, certification, and verification of designated item procurement; and for federal agencies, reporting and recordkeeping. The costs shown in Table 2 represent the estimated annualized costs associated with these activities. Table 2 also includes estimates for federal agencies that will incur costs for specification revisions and affirmative procurement program modification. More details of the costs associated with today's proposed rule are included in the Economic Impact Analysis.
There may be both positive and negative impacts to individual businesses, including small businesses. EPA anticipates that today's proposed rule will provide additional opportunities for recycling businesses to begin supplying recovered materials to manufacturers and products made from recovered materials to procuring agencies. In addition, other businesses, including small businesses, that do not directly contract with procuring agencies may be affected positively by the increased demand for recovered materials. These include businesses involved in materials recovery programs and materials recycling. Municipalities
EPA is unable to determine the number of businesses, including small businesses, that may be adversely impacted by today's proposed rule. If a business currently supplies products to a procuring agency and those products are made only out of virgin materials, the amendments to the CPG may reduce that company's ability to compete for future contracts. However, the amendments to the CPG will not affect existing purchase orders, nor will it preclude businesses from adapting their product lines to meet new specifications or solicitation requirements for products containing recovered materials. Thus, many businesses, including small businesses, that market to procuring agencies have the option to adapt their product lines to meet specifications.
Another potential cost of today's action is the possible price differential between an item made with recovered materials and an equivalent item manufactured using virgin materials. The relative prices of recycled content products compared to prices of comparable virgin products vary. In many cases, recycled content products are less expensive than similar virgin products. In other cases, virgin products have lower prices than recycled content products. Many factors can affect the price of various products. For example, temporary fluctuations in the overall economy can create oversupplies of virgin products, leading to a decrease in prices for these items. Under RCRA section 6002(c), procuring agencies are not required to purchase a product containing recovered materials if it is only available at an unreasonable price. However, the decision to pay more or less for such a product is left up to the procuring agency.
EPA anticipates that today's proposed rule will result in increased opportunities for recycling and waste prevention. Waste prevention can reduce the nation's reliance on natural resources by reducing the amount of materials used in making products. Using less raw materials results in a commensurate reduction in energy use and a reduction in the generation and release of air and water pollutants associated with manufacturing. Additionally, waste prevention leads to a reduction in the environmental impacts of mining, harvesting, and other extraction processes.
Recycling can effect the more efficient use of natural resources. For many products, the use of recovered materials in manufacturing can result in significantly lower energy and material input costs than when virgin raw materials are used; reduce the generation and release of air and water pollutants often associated with manufacturing; and reduce the environmental impacts of mining, harvesting, and other extraction of natural resources. For example, according to information published by the Steel Recycling Institute, recycling one ton of steel saves nearly 11 million Btus of energy; 2,500 lbs. of ore; 1,400 lbs. of coal; and 120 lbs. of limestone. Recycling can also reduce greenhouse gas emissions associated with manufacturing new products. When compared to landfilling, recycling one ton of high density polyethylene, low density polyethylene, or polyethylene terephthalate plastic can reduce greenhouse gas emissions by up to 0.64 metric tons of carbon equivalent (MTCE). In addition to conserving non-renewable resources and reducing the environmental impacts associated with resource extraction and processing, recycling can also divert large amounts of materials from landfills, conserving increasingly valuable space for the management of materials that truly require disposal.
By purchasing products made from recovered materials, government agencies can increase opportunities for all of these benefits. On a national and regional level, today's proposed rule can result in expanding and strengthening markets for materials diverted or recovered through public and private collection programs. Also, since many state and local governments, as well as private companies, reference EPA guidelines when purchasing designated items, this rule can result in increased purchase of recycled products, locally, regionally, and nationally and provide opportunities for businesses involved in recycling activities.
The RFA generally requires an agency to prepare 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 purposes of assessing the impacts on small entities of today's rule, small entity is defined as: (1) a small business as defined by RFA default definitions for small business (based on Small Business Administration size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.
EPA evaluated the potential costs of its proposed designations to determine whether its actions would have a significant impact on a substantial number of small entities. In the case of small entities that are small governmental jurisdictions, EPA has concluded that the proposal, if promulgated, will not have a significant economic impact. EPA concluded that no small government with a population of less than 50,000 is likely to incur costs associated with the designation of the 11 items because it is improbable that such jurisdictions will purchase more than $10,000 of any designated item. Consequently, RCRA section 6002 would not apply to their purchases of designated items. Moreover, there is no evidence that complying with the requirements of RCRA section 6002 would impose significant additional costs on the small governmental entity to comply in the event that a small governmental jurisdiction purchased more than $10,000 worth of a designated item. This is the case because in many instances, items with recovered materials content may be less expensive than items produced from virgin material.
Furthermore, EPA similarly concluded that the economic impact on small entities that are small businesses would not be significant. Any costs to small businesses that are “procuring agencies” (and subject to RCRA section 6002) are likely to be insubstantial. RCRA section 6002 applies to a contractor with a federal agency (or a state or local agency that is a procuring agency under section 6002) when the contractor is purchasing a designated item, is using federal money to do so, and exceeds the $10,000 threshold. There is an exception for purchases that are “incidental to” the purposes of the contract, i.e., not the direct result of the funds disbursement. For example, a courier service contractor is not required to purchase re-refined oil and retread tires for its fleets because purchases of these items are incidental
After considering the economic impacts of today's proposed rule on small entities, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities.
This rule, therefore, does not require a regulatory flexibility analysis. The basis for EPA's conclusions that today's proposed rule, if adopted, will not have a significant impact on a substantial number of small entities is described in greater detail in the EIA for the proposed rule.
While not a factor relevant to determining whether the proposed rule will have a significant impact for RFA purposes, EPA has concluded that the effect of today's proposed rule would be to provide positive opportunities to businesses engaged in recycling and the manufacture of recycled products. Purchase and use of recycled products by procuring agencies increase demand for these products and result in private sector development of new technologies, creating business and employment opportunities that enhance local, regional, and national economies. Technological innovation associated with the use of recovered materials can translate into economic growth and increased industry competitiveness worldwide, thereby, creating opportunities for small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 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, EPA generally must prepare a written statement, including cost-benefit analysis, for proposed and final rules with federal mandates that may result in estimated costs to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is required for EPA rules, under section 205 of the Act, EPA must identify and consider alternatives, including the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law. Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the Act a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.
EPA has determined that today's proposed rule does not include a federal mandate that may result in estimated annualized costs of $100 million or more to either state or local or tribal governments in the aggregate, or to the private sector. To the extent enforceable duties arise as a result of this proposed rule on state and local governments, they are exempt from inclusion as federal intergovernmental mandates if such duties are conditions of federal assistance. Even if they are not conditions of federal assistance, such enforceable duties do not result in a significant regulatory action being imposed upon state and local governments since the estimated aggregate cost of compliance for them are not expected to exceed, at the maximum, $3.8 million annually. The cost of enforceable duties that may arise as a result of today's proposed rule on the private sector are estimated not to exceed $101,000 annually. Thus, the proposed rule is not subject to the written statement requirement in sections 202 and 205 of the Act.
The designated items included in the proposed CPG IV may give rise to additional obligations under section 6002(I) (requiring procuring agencies to adopt affirmative procurement programs and to amend their specifications) for state and local governments. As noted above, the expense associated with any additional costs is not expected to exceed, at the maximum, $3.8 million annually. In compliance with Executive Order 12875 entitled Enhancing the Intergovernmental Partnership, 58 FR 58093 (October 28, 1993), which requires the involvement of state and local governments in the development of certain federal regulatory actions, EPA conducts a wide outreach effort and actively seeks the input of representatives of state and local governments in the process of developing its guidelines.
When EPA proposes to designate items in a CPG, information about the proposal is distributed to governmental organizations so that they can inform their members about the proposals and solicit their comments. These organizations include the U.S. Conference of Mayors, the National Association of Counties, the National Association of Towns and Townships, the National Association of State Purchasing Officials, and the American Association of State Highway and Transportation Officials. EPA also provides information to potentially affected entities through relevant recycling, solid waste, environmental, and industry publications. In addition, EPA's regional offices sponsor and participate in regional and state meetings at which information about proposed and final designations of items in a CPG is presented. Finally, EPA has sponsored buy-recycled education and outreach activities by organizations such as the U.S. Conference of Mayors, the Northeast Recycling Council, Environmental Defense, Keep America Beautiful, and the California Local Government Commission, whose target audience includes small governmental entities.
The requirements do not significantly affect small governments, because they are subject to the same requirements as other entities whose duties result from today's rule. As discussed above, the expense associated with any additional costs to state and local governments is not expected to exceed, at the maximum, $3.8 million annually. The requirements do not uniquely affect small governments because they have the same ability to purchase these designated items as other entities whose duties result from today's rule. Additionally, use of designated items affects small governments in the same manner as other such entities. Thus, any applicable requirements of section 203 of the Act have been satisfied.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an
This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The proposed rule will not impose substantial costs on states and localities. A final rule would require procuring agencies to perform certain activities pursuant to RCRA section 6002, including rule review and implementation; estimation, certification, and verification of designated item procurement; and for federal agencies, reporting and record keeping. As noted above, EPA estimates that the total annualized costs of today's proposed rule will range from $6.5—$12.8 million. EPA's estimate reflects the costs of the rule for all procuring agencies (i.e., federal agencies, state and local agencies that use appropriated federal funds to procure designated items, and government contractors), not just states and localities. Thus, the costs to states and localities alone will be even lower and not substantial. Thus, Executive Order 13132 does not apply to this rule.
When EPA proposes to designate items in the CPG, information about the proposal is distributed to governmental organizations so that they can inform their members about the proposals and solicit their comments. These organizations include the U.S. Conference of Mayors, the National Association of Counties, the National Association of Towns and Townships, the National Association of State Purchasing Officials, and the American Association of State Highway and Transportation Officials. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comment on this proposed rule from state and local officials.
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.”
Today's proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. The proposed rule does not impose any mandate on tribal governments or impose any duties on these entities. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposal.
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that EPA determines is (1) “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children; and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
EPA interprets the E.O. 13045 as encompassing only those regulatory actions that are risk based or health based, such that the analysis required under section 5-501 of the E.O. has the potential to influence the regulation. This proposed rule is not subject to E.O. 13045 because it does not involve decisions regarding environmental health or safety risks.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pub. L. No. 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by voluntary consensus standard bodies. The NTTAA directs EPA to provide Congress explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This proposed rule does not establish technical standards. Therefore, the Agency has not conducted a search to identify potentially applicable test methods from voluntary consensus standard bodies. As part of this rulemaking effort, EPA has developed guidance for procuring agencies to use in complying with section 6002's obligation to purchase items with recovered materials content to the maximum extent practicable. These recommendations include minimum recovered materials content standards and, as previously noted, are published today in the companion RMAN for the designated items. In developing these recommendations, EPA did consider current voluntary consensus standards on recovered materials content.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 Fed. reg. 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
The index of supporting materials for today's proposed CPG IV is available in the RCRA Information Center (RIC) and on the Internet. The address and telephone number of the RIC are provided in
“Background Document for Proposed CPG IV and Draft RMAN IV,” EPA530-R-01-006, U.S. EPA, Office of Solid Waste and Emergency Response, April 2001
“Economic Impact Analysis for Proposed Comprehensive Procurement Guideline IV,” EPA530-R-01-008, U.S. EPA, Office of Solid Waste and Emergency Response, March 2001.
Copies of the following supporting materials are available for viewing at the RIC only:
“Recovered Materials Product Research for the Comprehensive Procurement Guideline IV,” Draft Report, August 2000.
To access information electronically go to the CPG Web site at
Environmental protection, Government procurement, Recycling.
For the reasons discussed in the preamble, EPA proposes to amend 40 CFR part 247 as follows:
1. The authority citation for Part 247 continues to read as follows:
42 U.S.C. 6912(a) and 6962; E.O. 13101, 58 FR 54911.
2. In § 247.3, the following definitions are added alphabetically:
3. In § 247.11, revise paragraph (b) and add paragraph (d) to read as follows:
(b) (1) Retread tires, excluding airplane tires.
(2) Tires containing recovered rubber.
(d) Rebuilt vehicular parts.
4. In § 247.12, revise paragraphs (c), (d), and (j) and add paragraphs (k), (l), and (m), to read as follows:
(c) Cement and concrete, including concrete products such as pipe and block containing:
(1) Coal fly ash.
(2) Ground granulated blast furnace slag (GGBF).
(3) Silica fume from silicon and ferrosilicon metal production.
(4) Cenospheres.
(d)(1) Carpet made from polyester fiber made from recovered materials for use in moderate- and heavy-wear applications such as single-family housing, private offices, and similar wear applications.
(2) Carpet made from nylon fiber facing and/or nylon carpet backing made from recovered materials.
(j) Railroad grade crossing surfaces made from cement and concrete containing fly ash, recovered rubber, recovered steel, recovered wood, or recovered plastic.
(k) Modular threshold ramps containing recovered steel, rubber, or aluminum.
(l) Nonpressure pipe containing recovered steel, plastic, or cement.
(m) Roofing materials containing recovered steel, aluminum, fiber, rubber, plastic or plastic composites, or cement.
5. In § 247.16, add paragraph (l) to read as follows:
(l) Office furniture containing recovered steel, aluminum, wood, agricultural fiber, or plastic.
6. In § 247.17, add paragraphs (h) and (i) to read as follows:
(h) Bike racks containing recovered steel or plastic.
(i) Blasting grit containing recovered steel, coal and metal slag, glass, plastic, or walnut shells.
Fish and Wildlife Service, Interior.
Notice of intent.
This document announces the intent of the U.S. Fish and Wildlife Service (hereinafter Service or we) to resume review of all aspects of regulations pertaining to the release and harvest of captive-reared mallards. Recently, all four Flyway Councils and the International Association of Fish and Wildlife Agencies (IAFWA) urged the Service to resume its review of the potential effects of releasing free-flighted mallards on State-licensed shooting preserves, also known as regulated shooting areas (RSA). The Service has agreed to this request and intends to complete its review of the Federal regulations (50 CFR 21.13) as published in the June 1993 Notice of Intent (58 FR 31247).
You must submit comments pertaining to regulations governing the release of captive-reared mallards by September 27, 2001.
Send your comments to the Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, room 634-Arlington Square, 1849 C Street, NW, Washington, DC 20240. All comments received, including names and addresses, will become part of the public record. You may inspect comments during normal business hours in room 634, Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia.
Jerome R. Serie, Atlantic Flyway Representative, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, at 301/497-5851.
On June 1, 1993, we published in the
In the past, we have not opposed the shooting of captive-reared mallards on shooting preserves to supplement hunting opportunities for the public when precautions were taken to control the distribution of these birds. However, since 1985, this regulation has become more broadly interpreted and some shooting preserves actively release captive-reared mallards in large numbers in free-ranging situations on their premises. Often these properties are in areas frequented by wild ducks. Because both classes of mallards (captive-reared and wild) are indistinguishable until in the hand, regulatory conflicts arise from allowing free-ranging, captive-reared birds to be taken without bag limits during closed seasons for wild ducks. Similarly, regulations involving live decoys and baiting (50 CFR 20.21) become relevant, which necessitates a discretionary interpretation by enforcement personnel in the field.
Uncontrolled releases of thousands of free-flighted captive-reared mallards into areas inhabited by wild ducks pose a potential threat of disease transmission between captive-reared and wild birds. Highly infectious diseases, such as duck plague and avian cholera, are capable of causing large-scale losses in wild waterfowl. The influx of large numbers of captive-reared mallards into habitats managed for wild birds renders data-gathering activities by Federal, State, and Flyway waterfowl management programs less effective. There are no reliable methods of distinguishing between these classes in population and harvest surveys. These biases not only influence survey estimates but compromise Flyway harvest management strategies and the promulgation of hunting regulations for wild ducks.
Although the Service initiated its review and solicited input from State wildlife agencies in 1993, this effort was suspended because of provisions attached to the 1994 Congressional Appropriations Bill requesting the Service to withhold promulgation of any new regulations until further studies were completed. Since then, studies conducted by Louisiana State University and the National Wildlife Health Center have been completed, and results are available for consideration in this review (copies are available from the address indicated under the caption
Existing regulations, contained in § 21.13, lack specific criteria governing the release and control of captive-reared mallards on licensed shooting preserves and are thus subject to broad interpretation. As a result, numerous conflicts with established regulations governing the take of wild mallards and prohibiting the use of live decoys and baiting have occurred. In addition, aspects involving ownership and control are unclear when flighted, captive-reared birds are allowed to range freely over a wide area. Risks of disease transmission among wild ducks and confounding of data-gathering efforts by wildlife agencies for management of wild ducks are of concern.
The Service believes several options are available to alleviate potential conflicts and resolve management problems associated with captive-reared mallard release programs without adversely affecting the opportunities and operations on shooting preserves. Many of these options would require some modification of Federal regulations (50 CFR parts 20 and 21). The Service intends to explore these options and invites public comment on any options that may alleviate this problem. Comments may be sent to the address indicated under the caption
Under the Migratory Bird Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior has responsibility for setting appropriate regulations for the hunting of migratory birds, with due regard for maintaining such populations in a healthy state and at satisfactory levels. The Fish and Wildlife Act of 1956 (16 U.S.C. 742 a-j) more specifically authorizes collection of such information as is necessary and to take steps as may be required to protect wildlife resources.
Commodity Credit Corporation, USDA.
Notice.
The Commodity Credit Corporation (CCC) is issuing this notice to inform all interested parties of the revised eligibility requirements for benefits under the 1998 Crop Loss Disaster Assistance Program (CLDAP) multi-year provision. CLDAP was originally authorized by the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, 1999 (Public Law 105-277). All interested parties must file applications at the address specified below prior to close of business on September 14, 2001.
Rebecca Davis, Compliance Branch, FSA, USDA; Telephone: (202) 720-9882.
Section 1102 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 1999 (Public Law 105-277) provided $875 million to provide assistance to producers who incurred multi-year losses due to disasters. Accordingly, the Secretary developed the multi-year Crop Loss Disaster Assistance Program (CLDAP) and promulgated regulations to carry out that program. See 7 CFR part 1477. Under the provisions of the 1998 CLDAP, the Farm Service Agency (FSA) defined multi-year losses as crop losses by a producer in at least 3 of the 5 years from 1994 through 1998. The program benefits under this multi-year option were based on a percentage of the total dollar amount the producer received from the combination of crop insurance indemnities, non-insured crop disaster assistance program (NAP), and the 1994 ad hoc disaster assistance program during that 5-year period.
To expedite the disbursement of assistance, crop insurance indemnity information from the Risk Management Agency was interfaced electronically with FSA program payment records to determine the producers eligible for the multi-year assistance and the amount of such benefit. Both Agencies record monetary benefits issued to producers and policy holders by either a social security or taxpayer ID number. Therefore, when payments and indemnities were credited to the same ID number in at least 3 of the 5 years, the producer was determined eligible.
Some producers may have changed ID numbers when they restructured their businesses, or changed the nature of their operations from an individual to a corporation. FSA tried to the maximum extent practicable to allow for changes in ID numbers that were beyond the producers' control such as changes due to death of an insured, or husbands and wives who may have changed operations and operating numbers. Because of changing ID numbers, some producers with losses in three of the five years may not have been issued benefits under the multi-year CLDAP.
Congress intervened. Section 259 of the Agricultural Risk Protection Act of 2000 (Public Law 106-224), directs the Secretary to restore eligibility by making payments to an individual or entity that was determined otherwise ineligible for the multi-year benefits in the amount equal to what the individual or entity would have received had the individual or entity not changed the legal structure, but reduced by any single year payment already received. Additionally, a producer with interests in multiple farming operations, none of which previously received 1998 CLDAP benefits, may now be eligible for payment based on the producer's interest in such eligible losses experienced by each of the respective farming operations which otherwise would not have been eligible for compensation. Section 259 of the Agricultural Risk Protection Act of 2000 was not originally provided funding to carry out its direction.
Congress revisited the funding issue and in section 315 of the Grain Standards and Warehouse Improvement Act of 2000 (Public Law 106-472) amended section 259 of the Agricultural Risk Protection Act of 2000, to authorize the Secretary to use the funds, facilities, and authorities of the Commodity Credit Corporation (CCC).
Eligible producers include those that: (1) Previously filed an application but did not meet eligibility requirements; (2) now meet the eligibility requirements, but did not previously submit an application; and (3) received a payment for a single-year loss, did not initially qualify for multi-year benefits, but now qualify for multi-year benefits under the revised eligibility requirements. However, this provision does not restore eligibility for additional payments where producers were deemed to be eligible for whatever reason. Producers that are not sure as to their revised eligibility should file an application.
The applicant's share will be: (1) 100 percent share of the insurance indemnity, NAP benefit, or ad hoc disaster assistance received as an individual, when applicable; and (2) his/her direct or indirect share of the same earned through a joint operation or entity that has not previously qualified for a multi-year benefit. Attribution shall be used in the benefit calculation process. For embedded entities, the Agency will attribute shares until the fifth level is reached. Additionally, all eligibility requirements for the 1998
Applicant's meeting all eligibility requirements for CLDAP will be eligible for benefits not to exceed the $80,000 per “person” CLDAP payment limitation and subject to the national payment factor, regardless of the number of different farming operations used to qualify. Each applicant must certify that gross revenue provisions are not exceeded by any of the farming operations used for qualification by applying the procedure applicable to the 1998 CLDAP. If one or more “persons” do not meet the gross revenue provisions, the indemnification for that “person” cannot be used in computing eligibility. The 1997 tax year will be used in determining eligibility under the gross revenue provision. If the joint operation or entity used for qualification dissolved in a prior year, FSA will use the last tax year available.
Producers will be required to provide proof of crop insurance indemnities, NAP benefits and ad hoc disaster assistance received for each farming operation used in the qualification process. This information must be recorded on Form CCC-540MY, Crop Loss Disaster Assistance Program Application for Multi-Year Benefits, for each respective farming operation and crop year. This information will be used in determining eligibility and calculating the multi-year benefit. Joint operation/entity member share data shall be verified with CCC-502, Farm Operating Plan for Payment Eligibility Review, information on file with the Agency for the respective program year. If the CCC-502 information is not on file for the joint operation/entity member, this information will be required to identify members and shares. Additional documentation may be required to substantiate the certification such as legal documents and agreements, annual reports, corporate minutes, etc.
Individual producers may obtain Form CCC-540MY in person, by mail, by telephone, or by facsimile from any FSA office. In addition, applicants may download a copy of the CCC-540MY through the Internet at
To apply for benefits, producers must submit: (1) Form CCC-540MY, and include supporting documentation of any crop insurance indemnity, NAP benefits and ad hoc disaster assistance received for each year, entity and joint operation used for qualification; (2) Applicable Form CCC-502, Farm Operating Plan For Payment Eligibility Review, and related information for each year, entity and joint operation used for qualification; (3) Form AD-1026, Highly Erodible Land and Wetland Conservation Compliance, for each entity and joint operation used for qualification; (4) Form CCC-548, Gross Revenue Certification Statement, for each individual and entity used for qualification; (5) copies of all Forms CCC-540, Crop Loss Disaster Assistance Program, and CCC-540A, Notice of Loss/Production Worksheet 1998 Crop Loss Disaster Assistance Program, previously submitted, including any applications submitted for each individual, entity and joint operation used for qualification; and (6) records of 1998 CLDAP benefits previously approved or received, including records for each entity and joint operation used for qualification.
Applications with supporting documentation will be accepted from the date this notice is published through September 14, 2001. The applicant must send all required documents to the following address: USDA/ Farm Service Agency, Room 3643-S, STOP 0517, 1400 Independence Avenue SW, Washington, DC 20250-0517. Applicants are requested to designate the program on the envelope as “Multi-Year Revised Eligibility Determination Request.” All completed applications must be received at the specified address by the close of business on September 14, 2001. All late and incomplete applications will be returned to the applicants with a denial of program benefits.
For additional information, affected producers should contact the Farm Service Agency Service Center in the county in which they originally or would have applied for benefits under the 1998 CLDAP. Eligibility determinations will be made upon receipt of all of the necessary data.
Signed at Washington, DC, on June 29, 2001.
Rural Utilities Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Rural Utilities Service (RUS) invites comments on this information collection for which RUS intends to request approval from the Office of Management and Budget (OMB).
Comments on this notice must be received by October 29, 2001.
F. Lamont Heppe, Jr., Director, Program Development and Regulatory Analysis, Rural Utilities Service, 1400 Independence Ave., SW., STOP 1522, Room 4036 South Building, Washington, DC 20250-1522. Telephone: (202) 720-9550. FAX: (202) 720-4120.
The Office of Management and Budget's (OMB) regulation (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that RUS is submitting to OMB for reinstatement.
Copies of this information collection can be obtained from Michele Brooks, Program Development and Regulatory Analysis, at (202) 690-1078. FAX: (202) 720-4120.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on 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. Comments may be sent to: F. Lamont Heppe, Jr., Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, STOP 1522, 1400 Independence Ave., SW., Washington, DC 20250-1522. FAX: (202) 720-4120.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Notice is hereby given that the application of the Oroville Economic Development Corporation, a non-profit corporation, to establish a general-purpose foreign-trade zone at sites in southern Butte County, California (Doc. 9-2001, 66 FR 10668, 2/16/01), has been amended to delete Site 4 (9 acres), located in Gridley. The application otherwise remains unchanged.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of changed circumstances antidumping duty administrative review.
On May 21, 2001, the Department of Commerce published a notice of preliminary results of its antidumping duty changed circumstances review on certain welded stainless steel pipe from Korea (
August 28, 2001.
Mike Strollo or Scott Lindsay, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-5255 and (202) 482-3782, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the “Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (“Department”) regulations are to 19 CFR 351 (2001).
On May 21, 2001, the Department published its preliminary results in the
The products covered by this order are oil country tubular goods (“OCTG”), hollow steel products of circular cross-section, including only oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, whether or not conforming to American Petroleum Institute (“API”) or non-API specifications, whether finished or unfinished (including green tubes and limited service OCTG products). This scope does not cover casing or tubing pipe containing 10.5 percent or more of chromium, or drill pipe. The products subject to this order are currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.30.10, 7304.29.30.20, 7304.29.30.30, 7304.29.30.40, 7304.29.30.50, 7304.29.30.60, 7304.29.30.80, 7304.29.40.10, 7304.29.40.20, 7304.29.40.30, 7304.29.40.40, 7304.29.40.50, 7304.29.40.60, 7304.29.40.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.60.15, 7304.29.60.30, 7304.29.60.45, 7304.29.60.60, 7304.29.60.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.20.10.30, 7306.20.10.90, 7306.20.20.00, 7306.20.30.00, 7306.20.40.00, 7306.20.60.10, 7306.20.60.50, 7306.20.80.10, and 7306.20.80.50. Although the HTSUS item numbers are provided for convenience and Customs purposes, the written description remains dispositive of the scope of this review.
Because we received no comments on the preliminary results, for the reasons stated in the
Therefore, Hyundai Hysco will be excluded from the antidumping duty order on OCTG from the Republic of Korea and, thus, cash deposits will not
This notice also serves as a final 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(a)(3). Failure to timely notify the Department in writing of the return/destruction of APO material is a sanctionable violation.
This determination is issued and published in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 353.221(c)(4).
Import Administration, International Trade Administration, Department of Commerce.
Notice of amendment to final antidumping duty determinations of sales at less than fair value.
The Department of Commerce is amending its final determinations in the antidumping duty investigations on stainless steel plate in coils and stainless steel sheet and strip in coils from the Republic of Korea in order to implement the report of the WTO dispute settlement panel addressing these matters. Consistent with section 129 of the Uruguay Round Agreements Act, which governs the Department's actions following WTO panel reports, the Department has revised the calculation of dumping margins in the above cases. We are now amending the final determinations consistent with the revised calculation of dumping margins.
August 28, 2001.
Carrie Blozy or Rick Johnson, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0165 or (202) 482-3818, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments 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, 62 FR 27296 (May 19, 1997). Finally, citation to “section 129” refers to section 129 of the URAA, codified at 19 U.S.C. 3538.
On March 31, and June 8, 1999, the Department of Commerce issued final determinations of sales at less than fair value in the antidumping investigations on stainless steel plate in coils from Korea (
On October 14, 1999, the Government of the Republic of Korea (GOK) requested the establishment of a dispute settlement panel under the auspices of the World Trade Organization (WTO) to examine various aspects of the Department of Commerce's final affirmative determinations of dumping in this cases. At the meetings of the WTO Dispute Settlement Body (DSB) on November 19, 1999, the DSB determined to establish such a panel, and the panel was composed on March 24, 2000.
On December 22, 2000, after full briefing and hearings, the panel issued its report,
On July 5, 2001, the Department issued its
On August 15, 2001, the Department transmitted its revised determinations in these cases to the United States Trade Representative (USTR), pursuant to section 129(b)(2) of the URAA. On August 17, 2001, the USTR informed the Department that it had conducted consultations pursuant to section 129(b)(3) of the URAA, and that the revised determinations bring the United States into conformity with the panel's findings in the dispute. Accordingly, the USTR requested, pursuant to section 129(b)(4) of the URAA, that the Department implement the revised determinations for these investigations. Therefore, we are hereby publishing notice of the implementation of our determination and are amending the final determinations in the antidumping duty investigations on Plate and Sheet from the Republic of Korea.
In its report, the dispute settlement panel found,
1. With respect to the issue of whether the Antidumping Agreement permits a currency conversion for certain sales in
The panel found that the evidence in the
2. With respect to the issue of whether the Antidumping Agreement permits adjustment to export price and constructed export price for a bad debt expense resulting from a customer's failure to pay for subject merchandise, the panel found that under the facts of the
Specifically, the panel found that the extraordinary bad debt expenses in these cases could not reasonably have been anticipated, and thus taken into account by the exporter when determining the price to be charged for the product in different markets or to different customers. Accordingly, the panel concluded that the phrase “differences in conditions and terms of sale” of Article 2.4 cannot permissibly be interpreted to encompass the unprecedented failure of a customer to pay for certain sales. Similarly, for sales through the importer, the panel determined that the costs “incurred between importation and resale” cannot include costs that were unforeseeable at the time the price was set. Therefore, the panel found that the manner in which the Department measured the bad debt adjustment in these cases was inconsistent with Article 2.4 of the Antidumping Agreement.
3. With respect to multiple averaging periods, the panel found that by using multiple averaging periods under the facts of the
In making its determination, the panel stated that Article 2.4.2 does not prohibit the use of multiple averaging periods. The panel indicated there may be factual circumstances where the use of multiple averaging periods could be appropriate in order to ensure that price comparability is not affected by differences in the timing of sales within the averaging periods in the home and export markets.
However, in the
Prior to issuance of the Draft Implementation, the GOK and POSCO submitted comments to the Department on the steps necessary to implement the panel's recommendation. The Department issued its Draft Implementation to parties for comment on July 5, 2001. In its Draft Implementation, the Department explained that it implemented the panel's recommendation as follows:
1. With respect to the currency conversion issue, in the
2. With respect to unpaid U.S. sales, in the
To determine the credit expenses, the Department measures the time period in which credit is extended to the customer by calculating the time between shipment of the merchandise to the customer and payment by the customer for such merchandise. For the sales at issue, the payment dates are missing. To address the missing payment dates in the credit expense calculation, the Department has used the average payment experience for all U.S. sales as the facts available date for payment of the sales at issue.
3. With respect to the issue of multiple averaging periods, the Department has recalculated the dumping margins in the
Respondent POSCO argues that the draft implementation of the
POSCO explains that the alleged error concerns the date of sale used in the Department's computer program for U.S. CEP sales out of inventory. POSCO notes that it made a small number of sales, in U.S. channel two, out of POSAM's U.S. inventory during the period of investigation (POI), which it reported to the Department as CEP sales. POSCO classified the other U.S. channel two sales, which were shipped directly from POSCO's plant to the customer, as export price (EP) sales. For the CEP sales out of inventory, POSCO reported U.S. shipment date, which was the same as POSAM's invoice date, as the date of sale. POSCO states that in the final determination of the
POSCO maintains that the Department's error was unintentional and that this error, at the time of the original less-than-fair-value determination, was insignificant to the margin analysis. POSCO reiterates that because correction of this error would result in the rescission of the
Petitioners argue that the Department should not correct any ministerial errors at this time. They assert that the Department may not make any changes to the final margin program in the
Additionally, Petitioners maintain that the Department should dismiss POSCO's citation to CIT and Federal Circuit precedent suggesting that the Department may make corrections to ministerial errors after a court remand as inappropriate forum shopping. They state that POSCO and the Korean Government invoked the jurisdiction of the WTO, not U.S. Courts, as the forum for adjudicating the issues raised in its complaint. Thus, they allege that POSCO cannot rely on the U.S. Courts to support its claim for relief where that claim for relief is outside the jurisdiction of the WTO Panel. Moreover, Petitioners suggest that there is an equal amount of authority at the CIT stating that the Department may not correct late-submitted ministerial errors. In support of their argument, Petitioners cite to
Petitioners also allege a ministerial error in the programs for
Moreover, these ministerial error allegations by POSCO and Petitioners were made at an extremely late point in this process. The Department notes that its final margin calculation, which was issued to the parties over two years ago, contained the calculation alleged by POSCO to be a ministerial error concerning the proper date of sale for POSCO's U.S. CEP sales out of inventory, as well as the calculation alleged by Petitioners to be a ministerial error concerning calculation of a single net price for CEP and EP sales. In accordance with the Department's regulations POSCO and Petitioners had until five days after the release of disclosure documents for the Sheet final determination to file a ministerial error allegation on these issues with the Department (19 CFR 351.224(c)(2)). These parties did not do so. We are concerned that consideration of these
We are also concerned that allowing parties to raise new issues at this point in the process potentially would be unfair, as parties' comments and views on issues, including the Petitioners' views on appealing panel decisions, may have been affected by the allegations, had they been made known earlier. As noted above, section 129(b)(2) determinations have a limited purpose; the fact that the Department happens to be making a determination under that section on issues unrelated to the allegations of error does not provide an excuse for a wholesale review of all issues in the underlying case. We note, however, that correction of these ministerial errors would result in a margin of 2.09 percent, making these allegations largely inconsequential. We note, further, that in the context of the first review, which is currently being conducted, both parties will have an opportunity to fully air all allegations of ministerial error so that any such errors are not reflected in the amount of duties ultimately assessed against POSCO's entries.
Consequently, we have not made corrections to our calculations for either POSCO's or Petitioners' alleged ministerial errors for purposes of this determination.
In their case brief, Petitioners argue that the Department failed to take into account non-payment by a certain U.S. customer. Petitioners maintain that the Department's methodology was wrong and sets a “terrible” precedent. Citing the Department's Antidumping Manual, Petitioners claim that proof of payment of a transaction is a critical component to the Department's determination of the legitimacy of a particular transaction. Citing Issues and Decision Memorandum for the Administrative Reviews of Antifriction Bearings (other than tapered roller bearings) and parts thereof from France, Germany, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom—May 1, 1998 through April 30, 1999 (Comment 26); Notice of Final Determination of Sales at Less Than Fair Value: Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 61 FR 38139, 38141 (July 23, 1996); and Final Results of Antidumping Duty Administrative Review: Porcelain-on-Steel Cooking Ware from Mexico, 58 FR 43327 (August 16, 1993), Petitioners argue that in many other cases, the Department has considered the differences between nominal invoice prices and actual payment amounts to represent
Petitioners argue that if the Department does not make an adjustment for the unpaid sales in the investigations, then the Department must recognize the bad debt as an SG&A expense in the on-going first administrative reviews of the
POSCO rebuts that the WTO Panel instructed that the unpaid sales cannot be treated as direct selling expenses. POSCO claims that under the Department's regulations, a discount is a direct selling expense. Thus, POSCO argues that under Petitioners' proposed methodology for dealing with the unpaid sales, the unpaid sales would continue to be treated as a direct selling expense. POSCO continues that any methodology which continues to treat the unpaid sales as a direct selling expense would constitute an abrogation of the United States' commitments under the WTO. Citing the Panel Report at 30, POSCO submits that the essence of the Panel Report was that a difference in the conditions and terms of sale “could not have been anticipated and thus taken into account by the exporter (POSCO) when determining the price to be charged for the product in different markets or to different customers.” POSCO argues that in this case, unlike the other two cases cited by Petitioners, POSCO did not have knowledge of the financial situation of the customer (citing Panel Report at 30) and therefore had a reasonable expectation of payment from the ABC Company. Moreover, POSCO claims that because the unpaid sales had specified terms of payment, this is further evidence that POSCO expected to be paid. POSCO concludes that the Department's draft implementation did not ignore the unpaid sales, but rather, consistent with its obligations under the WTO, “acknowledged that, in an investigation, the Department cannot adjust U.S. price for the unanticipated bankruptcy of a U.S. customer.” Thus, POSCO requests that the Department reject Petitioners' suggested treatment of the unpaid sales as a discount. Moreover, POSCO claims that the Department has no basis for making an adjustment for the bad debt in the ongoing administrative reviews of
Petitioners argue that if the Department continues to treat the unpaid sales as paid sales, then the Department should impute a longer credit period. Petitioners note that the Department's methodology in the draft implementation, which was to impute the average credit period for all paid sales to the sales at issue, results in a shorter credit period for the unpaid sales than many of POSCO's sales where the customer actually paid. They maintain that the true credit period for the unpaid sales is infinite, and that, as such, the hypothetical payment date cannot be earlier than a date on which the sales remain actually unpaid.
POSCO maintains that the application of an average credit period as the facts available date of payment for the unpaid sales is appropriate and consistent with the panel's findings. POSCO claims that the Department does not have the authority to extend the credit period for these sales beyond the record in the case, as proposed by Petitioners. Moreover, POSCO argues that application of Petitioners' proposed methodology, which would extend the credit period beyond the terms and conditions of the sale, would result in the very distortion that the Panel found to be inconsistent with the WTO. Thus, POSCO concludes that the Department must continue to use average credit period.
To implement the Panel's recommendations, the Department has recalculated the dumping margins in the
1. With respect to the currency conversion issue, in the
2. With respect to unpaid U.S. sales, in the
To determine the credit expenses, the Department measures the time period in which credit is extended to the customer by calculating the time between shipment of the merchandise to the customer and payment by the customer for such merchandise. For the sales at issue, the payment dates are missing. Moreover, the Department found that POSAM wrote-off the sales within the period of investigations for
3. With respect to the issue of multiple averaging periods, the Department has recalculated the dumping margins in the
As a result of the changes to the calculations, we determine that, for POSCO, a 2.49 percent dumping margin exists in the
On or after the date of publication of this notice in the
The revised final weighted-average margins for Sheet and Strip in Coils are as follows:
Since the weighted average margin percentage for Inchon continues to be zero, Inchon continues to be excluded from the antidumping duty order on stainless steel sheet and strip in coils from the Republic of Korea.
These amended final determinations are issued and published in accordance with sections 735(d) and 777(i)(1) of the Act, and section 129(c)(2)(A) of the URAA.
National Institute of Standards and Technology, Department of Commerce.
Request for nominations of members to serve on the Manufacturing Extension Partnership National Advisory Board.
NIST invites and requests nomination of individuals for appointment to the Manufacturing Extension Partnership National Advisory Board. NIST will consider nominations received in response to this notice for appointment to the Board, in addition to nominations already received.
Please submit nominations on or before September 12, 2001.
Please submit nominations to Ms. Linda Acierto, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, MD 20899-4800. Nominations may also be submitted via FAX to 301-963-6556.
Additional information regarding the Board, including its charter and current membership list may be found on its electronic home page at: http://www.mep.nist.gov/index-nist.html.
Ms. Linda Acierto, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, MD 20899-4800; telephone 301-975-5033, fax 301-963-6556; or via email at linda.acierto@nist.gov.
The Board will advise the Director of the National Institute of Standards and Technology (NIST) on MEP programs, plans, and policies.
The Board will consist of nine individuals appointed by the Director of the National Institute of Standards and Technology (NIST) under the advisement of the Director of MEP. Membership on the Board shall be balanced to represent the views and needs of customers, providers, and others involved in industrial extension throughout the United States.
The Board will function solely as an advisory body, in compliance with the provisions of the Federal Advisory Committee Act.
Federal Advisory Committee Act: 5 U.S.C. App.2 and General Services Administration Rule: 41 CFR Subpart 101-6.10.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Advisory Committee to the U.S. Section to the International Commission for the Conservation of Atlantic Tunas (ICCAT), in conjunction with the International Fisheries Division of NMFS, announces the schedule of regional public meetings to be held this fall and a workshop on Atlantic bluefin tuna mixing.
The meetings are scheduled for September and October, 2001. See
The meetings will be held in New York, Louisiana, South Carolina, Massachusetts, and Maryland. See
Rachel Husted at 301-713-2276.
The regional public meetings are scheduled as follows:
The following topics may be presented to the public for discussion at the regional meetings:
(1) Background on ICCAT
(2) Information on the Advisory Committee and Commissioners
(3) Status of Highly Migratory Species Managed by ICCAT
(4) Topics for the 2001 ICCAT Annual Meeting
Representatives from the Advisory Committee to the U.S. Section to ICCAT and NMFS will be in attendance at the regional meetings. There will be an opportunity for public comment on each of these international issues. The length of the meetings may be adjusted based on the progress of the discussions.
Additionally, the annual fall meeting of the Advisory Committee will be held on October 28-30, 2001, at the Holiday Inn Silver Spring, 8777 Georgia Avenue, Silver Spring, MD. There will be opportunity for public comment on international issues on Sunday October 28, from 1 p.m. - 6 p.m. Domestic issues will not be discussed. An agenda for the annual fall Advisory Committee meeting will be available at a later date.
The meeting locations are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Rachel Husted at (301) 713-2276 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 Mid-Atlantic Fishery Management Council's (Council) Dogfish Monitoring Committee will hold a public meeting.
The meeting will be held on Tuesday, September 11, 2001, from 10 a.m. until 5 p.m.
The meeting will be held at the BWI Airport Marriott Hotel, 1743 West Nursery Road, Baltimore, MD; telephone: 410-859-8300.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone: 302-674-2331, ext. 19.
The purpose of this meeting is to review updated fisheries and stock assessment information relative to spiny dogfish and to develop 2002-03 quota recommendations. Options regarding a possible amendment to the current fishery management plan may also be addressed.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council’s intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at the Council Office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Protected Species Committee in September, 2001. Recommendations from the committee will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will held on September 12, 2001 at 9:30 a.m.
The meeting will be held at the New England Fishery Management Council Office, 50 Water Street, Mill #2, Newburyport, MA 01950; telephone: (978) 465-0492.
Paul J. Howard, Executive Director, New England Fishery Management Council (978) 465-0492.
The Protected Species Committee will meet to develop comments on the draft Right Whale Recovery Plan and on elements of the NMFS Biological Opinions on the multispecies, monkfish and dogfish plans. -
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. -
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
Department of Defense Education Activity (DoDEA).
Open meeting notice.
Pursuant to the Federal Advisory Committee Act, Appendix 2 of title 5, United States Code, Public Law 92-463, notice is hereby given that a meeting of the Advisory Council on Dependents' Education (ACDE) is scheduled to be held on October 4, 2001, from 8 a.m. to 5 p.m. The meeting will be held in the 9th floor conference room at the Department of Defense Education Activity (DODEA) located at 4040 North Fairfax Drive, Arlington, Virginia. The purpose of the ACDE is to recommend to the Director, Department of Defense Education Activity (DoDEA), general policies for the operation of the Department of Defense Dependents Schools (DoDDS); to provide the Director with information about effective educational programs and practices that should be considered by DoDDS; and to perform other tasks as may be required by the Secretary of Defense. The meeting emphases will be on quality high schools, headquarters reorganization, system requirements (e.g., personnel issues, customer service), and the ACDE/North Central Association pilot. For further information contact Ms. Marsha Jacobson, at 703-696-4235, extension 1990.
Notice of meeting.
This notice sets forth the schedule and summary agenda for the next meeting of the President's Information Technolgy Advisory Committee. The meeting will be open to the public. Notice of this meeting is required under the Federal Advisory Committee Act (Pub. L. 92-463).
September 25, 2001.
National Science Foundation, Room 555. 4121 Wilson Boulevard, Arlington, VA 22230.
1. Updates and reports from the PITAC's panels on national security and individual/personal security;
2. Reports from PITAC's discovery/review subcommittees on scalable information infrastructure, high-end computing, software, and socio-economic and workforce issues.
3. A discussion on e-health; and
4. A discussion on e-government.
The National Coordination Office for Information Technology Research and Development, formerly the National Coordination Office for Computing, Information, and Communications, provides information about the PITAC on its website at www.itrd.gov and can be reached by phone at 703/292-4873. Public seating for this meeting is limited and is available on first come first served basis.
Deputy Chief of Staff for Personnel (DAPE-ZXI-RM), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Department of the Army announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by October 29, 2001.
Written comments and recommendations on the proposed information collection should be sent to Department of the Army, Military Traffic Management Command, 200 Stovall Street, Alexandria, Virginia 22332-5000, ATTN: MTPP-HR (Alfredo R. Escobar). Consideration will be given to all comments received within 60 days of the date of publication of this notice.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address, or call Department of the Army Reports Clearance Officer at (703) 614-0454.
The MT-HQ Form 43-R is used by intrastate household goods carriers to file rates semi-annually, 1 May—31 October, and 1 November—30 April. Intrastate household goods carriers are required to submit an original and two copies of each rate tender. The original copy is retained at Headquarters, the second copy is furnished to the General Services Administration, and the third is mailed back to the carriers with the official “ACCEPTED” stamp.
Deputy Chief of Staff for Personnel (DAPE-ZXI-RM), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Department of the Army announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility, (b) the accuracy of the agency's estimate of the burden of the proposed informationn collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by October 29, 2001.
Written comments and recommendations on the proposed information collection should be sent to Department of the Army, Military Traffic Management Command, 200 Stovall Street, Alexandria, Virginia 22332-5000, ATTN: MTIM-ITM (Eunice P. Anderson). Consideration will be given to all comments received within 60 days of the date of publication of this notice.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection, instruments, please write to the above address, or call Department of the Army Reports Clearance Officer at (703) 614-0454.
Freight carries furnish information in a uniform format so that the Government can determine the cost of transportation, accessorial, and security services and select the best value carriers for 1.1 million Bill of Lading shipments annually. Additionally, DoD tender rate and other pertinent tender data are noted on the Bill of Lading at the time of shipment. The DoD tender also is the source document for the General Services Administration post-shipment audit of carrier freight bills.
Department of the Army, DoD.
Notice of meeting.
Pursuant to Public Law 92-463, notice is hereby given of the next meeting of the Armament Retooling and Manufacturing Support (ARMS) Executive Advisory Committee (EAC). The EAC encourages the development of new and innovative methods to optimize the asset value of the Government-Owned, Contractor-Operated ammunition industrial base for peacetime and national emergency requirements, while promoting economical and efficient processes at minimal operating costs, retention of critical skills, community economic benefits, and a potential model for defense conversion. This meeting will be hosted by the U.S. Army, Operations Support Command. The purpose of the meeting is to update the EAC and public on the status of ongoing actions, new items of interest, and suggested future direction/actions. Topics for this meeting will include—Policy on Ownership of Property; ARMS Revenue and Revenue Projects; ARMS Approval Process; and Arsenal Support Program Initiative Update. This meeting is open to the public.
Mr. Mike Perez, U.S. Army Operations Support Command, Attn: AMSOS-CCM-E, Rock Island Arsenal, IL 61299, phone (309) 782-3360.
A block of rooms has been reserved at the Holiday Inn Rosslyn for the nights of 2-5 October 2001. The Holiday Inn Rosslyn is located at 1900 North Fort Myer Drive, Arlington, VA 22209, Local Phone (703) 807-2000. Please make your reservations by calling 800-368-3408. Be sure to mention the guest code acronym AMC. Reserve your room prior to September 11th to get the Government Rate of $119.00 a night. Also notify this office of your attendance by notifying Mike Perez,
U.S. Army Corps of Engineers, DoD.
Notice.
In accordance with the National Environmental Policy Act and implementing regulations, a Revised Draft Environmental Impact Statement (RDEIS) has been prepared to evaluate the environmental impacts of changes in the U.S. Army Corps of Engineers (Corps) operation of the Missouri River Mainstem Reservoir System. The Missouri River Master Water Control Manual (Master Manual) specifies the operating criteria for the operation of six Corps dams on the mainstem of the Missouri River. The original Master Manual was published in December 1960. Revisions were made in 1973 and 1975 and a revised Master Manual was published in 1975. The existing Master Manual establishes guidelines for operation of the reservoir system for the multiple project purposes of flood control, hydropower, water supply, water quality, irrigation, navigation, recreation, and fish and wildlife. In addition, the existing Master Manual includes criteria for how reservoir storage is divided and how water is released from the reservoirs during navigation and nonnavigation periods. Each year an Annual Operating Plan is developed using the water control plan outlined in the Master Manual as a guide. During the period 1987-1993, the Missouri River basin experienced a moderate to severe drought. There were numerous lawsuits concerning the Corps operation of the reservoirs. In November 1989, the Corps initiated a Review and Update of the Master Manual and published a Draft Environmental Impact Statement (DEIS) in 1994. In response to public comment and requests for additional studies received during the comment period following publication of the DEIS, the Corps has revised that document. The RDEIS analyzes the environmental effects of a set of six alternative operating plans for the Master Manual—the current water control plan (CWCP), a modified conservation plan (MCP), and four alternatives that add various Gavins Point Dam releases to the MCP. These latter four alternatives, referred to as the GP options, address changes in water releases from Gavins Point Dam that the U.S. Fish and Wildlife Service (USFWS) recommended in their November 2000 Final Biological Opinion (BiOp) for the Corps operation of three Missouri River basin projects. The USFWS feels these changes in releases, in conjunction with other operational and non-operational measures, are necessary to ensure that the Corps operation of the Mainstem Reservoir System is not likely to jeopardize the continued existence of any listed species or result in the destruction or modification of critical habitat for the listed species.
Questions regarding the RDEIS may be sent to Rosemary Hargrave, U.S. Army Corps of Engineers, Northwestern Division, 12565 West Center Road, Omaha, Nebraska 68114-3869. Ms. Hargrave can also be contacted by telephone at (402) 697-2527, or email at
The Missouri River originates at Three Forks, Montana and travels 2,341 miles to its confluence with the Mississippi
There are 30 federally recognized Native American Tribes in the Missouri River Basin. Thirteen reservations are located on the mainstem of the Missouri River. The Tribes are dependent sovereign nations and also hava a Trust relationship with the Corps. The Corps is currently in government-to-government consultation with five Tribes, and urges all of the basin Tribes to enter into consultation with Corps. The RDEIS specifically identifies impacts to Tribes resulting from changes in the operation of the Mainstem Reservoir System. Tribal participation during the public comment period will be developed in partnership with the Tribes.
A 6-month public comment period will follow release of the RDEIS. Oral, written, and electronic comments will be accepted until February 28, 2002. Prior to this date, the Corps will hold Tribal and public informational workshops and hearings throughout the Missouri River basin and at some Mississippi River locations. Dates and locations of these workshops will be provided in a September newsletter and on the Corps' Northwestern Division web page at
U.S. Army Corps of Engineers, DoD.
Notice of intent.
AFI is proposing the development of the Las Americas Transshipment Port Complex in Puerto Rico. The proposal includes the development of hubs at one or more sites on the south coast of Puerto Rico, in the Municipalities of Ponce, Peñuelas, and Guayanilla. At the proposed site(s), the proposed terminals would need Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act permits. There is a possibility that permits pursuant to Section 103 of the Marine Protection, Research and Sanctuaries Act may be required for at one or more sites.
Edwin E. Muñiz, (787) 729-6905/6944, Chief, Antilles Regulatory Section, U.S. Army Corps of Engineers, 400 Fernandez Juncos Avenue, San Juan, Puerto Rico 00901.
In September 1999, the Corps of Engineers published a report titled Preliminary Transshipment Port Assessment for Puerto Rico. This study was performed at the request of the Puerto Rico Ports Authority (PRPA). This report includes a preliminary assessment of alternative sites for a potential new transshipment port to be located in Puerto Rico. The sites considered were locations that have the potential to support deep-draft navigation and associated facilities. A total of thirteen sites were considered. The assessment was based on available information combined with the professional knowledge of the Corps of Engineers, Jacksonville District staff, in the planning of waterway systems and associated port development. The assessment was considered preliminary in nature, and it was not prepared to be used as the sole source of information from which to make a final site selection. Nevertheless, the assessment made a recommendation on the most suitable sites. The assessment also recommended further studies that will help provide the additional detailed information required for making a more informed decision concerning the most appropriate location for a future transshipment site.
AFI is proposing the development of the Las Americas Transshipment Port Complex in Puerto Rico. The proposal includes the development of hubs at one or more sites on the south coast of Puerto Rico, in the Municipalities of Ponce, Peñuelas and Guayanilla. AFI stated that a transshipment port complex would represent a major infrastructure development for all Puerto Rico, especially in the south coast of the island.
In the development of a transshipment port complex, there would be considerable dredge and fill activities in the proposed project area, impacting significant wetlands and other special aquatic sites, and other resources. The proposed action may significantly affect the pattern and type of land use (industrial, commercial, agricultural, recreational, residential) and/or growth and distribution of population, may have significant adverse effects on wetlands, including indirect and cumulative effects, or any major part of a structure or facility constructed or operated under the proposed action may be located in wetlands. Also, the proposed action may significantly affect threatened and endangered species or their habitats identified in the Department of the Interior's list.
Pursuant to Section 10 of the Rivers and Harbors Act structures the Corps of Engineers has regulatory authority over structures and/or work in or affecting navigable waters of the United States. under Section 404 of the Clean Water Act, the Corps of Engineers has regulatory authority to permit the discharge of dredged or fill material into wetlands and other waters of the United States. Also, under Section 103 of the Marine Protection, Research and Sanctuaries Act, the Corps of Engineers has regulatory authority over the transportation of dredged material for the purpose of dumping it in ocean waters at dumping sites designated under 40 CFR part 228. The guidelines pursuant to section 404(b) of the act require that impacts to the aquatic environment be avoided and minimized to the extent practicable. Permit applications for the transportation of dredged material for the purpose of dumping it in ocean waters will be evaluated to determine whether the proposed dumping will unreasonably degrade or endanger human health, welfare, amenities, or the marine environment, ecological systems or economic potentialities.
In determining whether to issue a permit, the Corps must also comply with other requirements including, but not limited to, the Endangered Species Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Magnunson-Stevens Fishery Conservation and Management Act Section 401 of the Clean Water Act, and other applicable Federal laws. Modifying land for new uses also involves zoning, land use planning, water management, and other regulatory/planning requirements at the local, Commonwealth, and Federal level.
Alternative 1: Immediate development of a deep draft navigation harbor at the Guayanilla and Ponce Bays to accommodate Post-Panamax vessels at both ports. In the Guayanilla Bay this alternative would entail the construction of a 6,000 feet long pier with support facilities capable of handling as many as four Post-Panamax vessels at Punta Guayanilla Peninsula; the discharge of fill material in approximately 110 acres of navigable waters in the Punta Gotay area, Punta Guayanilla Peninsula, for the development of loading-unloading storage area and other support facilities; the development of a 480 acre parcel owned by Union Carbide in Peñuelas adjoining Punta Guayanilla (where a petrochemical complex previously operated and recently selected by the Environmental Protection Agency for inclusion in the Brownfield RCRA Program) for added value activities (approximately 10 acres of wetlands would be filled for the development of value-added activities); and the development and/or improvement of other infrastructure within the Guayanilla Harbor needed to operate the Port efficiently. In Ponce this alternative would consist in the expansion of the existing piers to a length of about 3,000 feet to allow simultaneous handling of as many as two Post-Panamax vessels; the immediate dredging of the navigation channel and berthing areas to a minimum depth of 45 feet to allow the navigation of Post-Panamax vessels and the disposal of the dredged material at either the EPA designated ocean disposal site and/or uplands; and the development of a 90 acres of land adjacent to the port for value-added activities.
Alternative 2: Immediate development of a deep draft navigation harbor at the Guayanilla to handle Post-Panamax vessels and immediate improvements to the Port of Ponce to handle Panamax-class vessels and eventual dredging (5 to 10 years) of the navigation channel and berthing areas to further allow the Port of Ponce to handle Post-Panamax vessels. In the Guayanilla Bay this alternative would entail the construction of a 6,000 feet long pier with support facilities capable of handling as many as four Post-Panamax vessels at Punta Guayanilla Peninsula; the discharge of fill material in approximately 110 acres of navigable waters in the Punta Gotay area, Punta Guayanilla Peninsula, for the development of loading-unloading storage area and other support facilities; the development of a 480 acre parcel owned by Union Carbide in Peñuelas adjoining Punta Guayanilla (where a petrochemical complex previously operated and recently selected by the Environmental Protection Agency for inclusion in the Brownfield RCRA program) for added value activities (approximately 10 acres of wetlands would be filled for the development of value-added activities); and the development and/or improvement of other infrastructure within the Guayanilla Harbor needed to operate the Port efficiently. In Ponce, this alternative would consist of the expansion of the existing piers to a length of about 3,000 feet to initially allow Panamax-type vessels and eventually Post-Panamax vessels; the development of a 90 acres of land adjacent to the port for value-added activities; and the eventual or long-term dredging (5 to 10 years) of the navigation channel and berthing areas to a minimum depth of 45 feet to allow the navigation of Post-Panamax vessels and the disposal of the dredged material at either the EPA designated ocean disposal site and/or uplands.
Alternative 3: Immediate development of a deep draft navigation harbor at the Guayanilla to handle Post-Panamax vessels and immediate rehabilitation of the Port of Ponce to handle Panamax-class vessels. In the Guayanilla Bay this alternative would entail the construction of a 6,000 feet long pier with support facilities capable of handling as many as four Post-Panamax vessels at Punta Guayanilla Peninsula; the discharge of fill material in approximately 110 acres of navigable waters in the Punta Gotay area, Punta Guayanilla Peninsula, for the development of loading-unloading storage area and other support facilities; the development of a 480 acre parcel owned by Union Carbide in Peñuelas adjoining Punta Guayanilla (where a petrochemical complex previously operated and recently selected by the Environmental Protection Agency for inclusion in the Brownfield RCRA Program) for added value activities (approximately 10 acres of wetlands would be filled for the development of value-added activities); and the development and/or improvement of other infrastructure within the Guayanilla Harbor needed to operate the Port efficiently. In Ponce, this alternative would consist of the expansion of the existing piers to a length of about 3,000 feet to allow of Panamax-type vessels; and the development of a 90 acres of land adjacent to the port for value-added activities.
In addition to the above alternatives, the no action alternative and alternatives identified in the Corps of Engineers Preliminary Transshipment Port Assessment For Puerto Rico would also be considered, as well as any other alternative identified during scoping process.
U.S. Army Corps of Engineers, DoD.
Notice of intent.
The Jacksonville District, U.S. Army Corps of Engineers intends to prepare a Draft Environmental Impact Statement for Navigation Improvements at Miami Harbor, Dade County, Florida. The study is a cooperative effort between the U.S. Army Corps of Engineers and the Miami-Dade County Seaport Department of the Port of Miami.
Rea Boothby, 904-232-3453, Environmental Branch, Planning Division, P.O. Box 4970, Jacksonville, Florida 32232-0019.
The initial authorization for a Federal channel providing navigation access to the City of Miami occurred in 1902. Later reports and documents recommended further improvement of the harbor's channels, turning basins, and jetties. A Resolution provided by the Committee on Transportation and Infrastructure of the United States House of Representatives dated October 29, 1997 provided the authorization for the current study.
Improvements, including channel deepening and widening, are required to accommodate future commercial fleet and to more effectively transit the existing fleet. Those improvements would allow commercial ships to call at the harbor with increased draft and cargo tonnage, resulting in transportation cost savings.
Widen and deepen the harbor's container ship channels and turning basins. Extend the Federal channel to the west end of Dodge Island. Construction is forecast to begin around October 2003.
An EIS was prepared in 1985 to accommodate dredging in the Port of Miami.
Alternatives currently under consideration include no action, one nonstructural, and five structural alternatives. Six alternatives identified by the Biscayne Bay Pilots and the Miami-Dade County Seaport Department include:
• The first involves flaring the existing 500-foot wide entrance channel to provide an 800-foot wide entrance at buoy 1. Deepening of the entrance channel along Cut-1 and Cut-2 from an existing depth of 44 feet in one-foot increments to a depth of 52 feet will receive consideration.
• The second alternative will consider adding a turn widener between buoys 13 and 15 and deepening to depths of 50 feet.
• Alternative three involves extending the existing Fisher Island turning basin to the north. A turning notch (1600 feet by 1450 feet) extending approximately 500 feet to the north of the existing channel edge along the West End of Cut-3 would require evaluation. Depths from 43 to 50 feet at one-foot increments below the existing depth of 42 feet will receive consideration in the area of the turning notch.
• Alternative four consists of relocating the main channel (cruise ship channel or Cut-4) about 175 feet to the south between channel miles 2 and 3 over a two or three degree transition to the existing cruise ship turning basin. No dredging is expected for alternative four since existing depths allow for continuation of the authorized depth of 36 feet.
• Alternative five proposes to increase the width of the Lummus Island Cut (Fisherman's Channel) about 100 feet to the south of the existing channel. Deepening would include examination of depths below the existing 42-foot depth at one-foot increments from 43 to 50 feet along the proposed widened channel from Cut-3, Station 0+00 to Cut-3, Station 42+00.
• Alternate six includes deepening of Dodge Island Cut and the proposed 1200-foot turning basin from 32 and 34 feet to 36 feet. It also involves relocating the western end of the Dodge Island Cut to accommodate proposed port expansion.
The EIS will consider impacts on seagrasses (including Johnson Seagrass, a threatened species), mangrove, and hardbottom communities, other protected species, Essential Fish Habitat, shore protection, health and safety, water quality, aesthetics and recreation, fish and wildlife resources, cultural resources, energy conservation, socio-economic resources, and other impacts identified through scoping, public involvement, and interagency coordination.
a. A scoping letter was sent to interested parties on January 6, 2000. In addition, all parties were invited to participate in the scoping process by identifying any additional concerns on issues, studies needed, alternatives, procedures, and other matters related to the scoping process.
b. A local, state, and Federal resource agency scoping meeting occurred on March 13, 2000, to determine the areas of coverage for an environmental baseline resource survey. A meeting followed on November 1, 2000, with those resource agencies to review preliminary results.
c. No public scoping meeting is planned at this time.
We invite the participation of affected Federal, state and local agencies, affected Indian tribes, and other interested private organizations and parties.
The proposed action is being coordinated with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) under Section 7 of the Endangered Species Act, with the FWS under the Fish and Wildlife Coordination Act, with the NMFS concerning Essential Fish Habitat and with the State Historic Preservation Officer.
The proposed action would involve evaluation for compliance with guidelines pursuant to Section 404(b) of the Clean Water Act; application (to the State of Florida) for Water Quality Certification pursuant to Section 401 of the Clean Water Act; certification of state lands, easements, and rights of way; and determination of Coastal Zone Management Act consistency.
The Corps and the non-Federal sponsor, the Miami-Dade County Seaport of the Port of Miami, will provide extensive information and assistance on the resources to be impacted, mitigation measures, and alternatives.
It is estimated that the DEIS will be available to the public on or about November 2001.
U.S. Army Corps of Engineers, DoD
Notice of intent.
Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act, the U.S. Army Corps of Engineers has regulatory authority to permit the discharge of dredge and fill material into waters of the United States. In compliance with its responsibilities under the National Environmental Policy Act (NEPA) of 1969, the Jacksonville District, U.S. Army Corps of Engineers intends to prepare a SEIS as a result of the dredge and fill permit application for the Phipps Ocean Park Beach Restoration project located within the Town of Palm Beach, Palm Beach County, Florida.
Brice McKoy, 561-683-0792, U.S. Army Corps of Engineers, Jacksonville District, Regulatory Division, South Permits Branch, 400 North Congress Avenue, Suite 130, West Palm Beach, Florida 33401.
The Town of Palm Beach, Florida is seeking a Department of Army permit to construct a 1.9-mile beach restoration project located in the Town of Palm Beach, Florida, between Florida Department of Environmental Protection reference monument R-116 and R-126 in the vicinity of Phipps Ocean Park. Approximately 1.5 million cubic yards of sand would be dredged from two borrow areas located approximately 3,500 feet offshore and approximately 1.5 and 2.6 miles south of the fill area. The beach fill profile consists of a +9 ft. NGVD berm elevation with an average construction berm width varying from 190 to 455 ft, with a projected life of 8 years. The shoreline within the project area contains rock outcrops located at and below the mean low water line. This project is located within project segment “6” in Palm Beach County and referred to as the “South-end Palm Beach Island Segment” in the Coast of Florida Erosion and Storm Effects Study, which was authorized on 16 July 1984, by Section 104 of the 1985 Appropriations Act (Public Law 98-360). The specific study area for this Draft Supplemental Environmental Impact Statement is approximately 1.9 miles of beach, between Sloans Curve and the Ambassador South II Condominium including Phipps Ocean Park and the Palm Beach Par 3 Golf Club, located within the Town of Palm Beach, Florida, in Sections 11, 14, and 23, Township 44 South, Range 43 East.
This proposed action may also require certification of State lands, easements, and rights of way.
U.S. Army Corps of Engineers, DoD.
Notice of intent.
The Los Angeles District of U.S. Army Corps of Engineers will prepare a DEIS to support the Rio Salado Oeste Feasibility Study, Phoenix, Arizona. The study area is the Salt River (
The Los Angeles District and the City of Phoenix will cooperate in conducting this feasibility study.
District Engineer, U.S. Army Corps of Engineers, Los Angeles District, ATTN: CESPL-PD-RQ (R. Farve), P.O. Box 532711, Los Angeles, California 90053-2325.
Mr. Rey Favre, Environmental Coordinator, telephone (213)-452-3864, or Ms. Kayla Eckert, Study Manager, telephone (602)-640-2003.
A public scoping meeting has been tentatively scheduled for sometime in September 2001. When available, the specific date, time, and location of this meeting will be announced in a mailing to those on the mailing list developed for this project, and announced through local media channels. The purpose of the scoping meeting will be to gather information from the general public or interested organizations about issues and concerns that they would like to see addressed in the DEIS. Comments may be delivered in writing or verbally at the meeting or sent in writing to the Los Angeles District at the address given above. The scoping period will conclude 60 days after publication of this NOI.
Department of the Navy, DOD.
Notice.
The inventions listed below are assigned to the United States Government as represented by the Secretary of the Navy and are made available for licensing by the Department of the Navy.
The following patents and patent applications are available for licensing:
U.S. Patent Number 5,972,136: Liquid Propellant.//U.S. Patent Number 6,177,033 B1: Nitration of Organics in Carbon Dioxide.//U.S. Patent Number 6,173,650 B1: MEMS Energetic Actuator with Integrated Safety and Arming System for a Slapper/EFI Detonator.//U.S. Patent Number 6,258,983 B1: Method of Preparing Solid Hydroxylamine Nitrate.//U.S. Patent Number 6,165,295: GAS-Generating Liquid Compositions (PERSOL 1).//U.S. Patent Number 6,219,218 B1: Magnetic Flux Suppression System.//U.S. Patent Application Serial Number 09/907,879: Contact Comparator and Method of Operation.//U.S. Patent Application Serial Number 9/594,810: Lockable Electro-Optical High Voltage Device for Slapper Detonators.//U.S. Patent Application Serial Number 09/620,128: MEMS Vertical to Horizontal Motion Translation Device.//U.S. Patent Application Serial Number 09/697,252: Reduced Burning Rate Incendiary Composition.//U.S. Patent Application Serial Number 09/588,384: Use for Gas Generating Liquid Composition
Requests for copies of the inventions cited should be directed to Dr. J. Scott Deiter, Head, Technology Transfer Office, Naval Surface Warfare Center, Indian Head Division, Code 05T, 101 Strauss Avenue, Indian Head, MD 20640-5035.
Dr. J. Scott Deiter, Head, Technology Transfer Office, Naval Surface Warfare Center, Indian Head Division, Code 05T, 101 Strauss Avenue, Indian Head, MD 20640-5035, telephone (301) 744-6111.
Department of the Navy, DOD.
Notice.
The invention listed below is assigned to the United States Government as represented by the Secretary of the Navy and is available for licensing by the Department of the Navy. U.S. Patent No. 6,264,543 entitled “Meat Tenderization and Sterilization Using Axial Planer Shockwaves.”
Requests for copies of the patent cited should be directed to Coastal Systems Station, Dahlgren Division, NSWC, 6703 W. Hwy 98, Code CP20L, Panama City, FL 32407-7001.
Mr. Harvey A. Gilbert, Counsel, Coastal Systems Station, 6703 W. Hwy 98, Code CP20L, Panama City, FL 32407-7001, telephone (850) 234-4646.
Department of the Navy, DOD.
Notice.
The invention listed below is assigned to the United States Government as represented by the Secretary of the Navy and is available for licensing by the Department of the Navy. U.S. Patent Application Serial No. 09/898,360 entitled “Video Converter Board,” Navy Case No. 83,093.
Requests for copies of the patent cited should be directed to the Naval Surface Warfare Center, Crane Division, Code OCF, building 64, 300 Highway 361, Crane, IN 47522-5001 and must include the Navy Case number.
Mr. Darrell Boggess, Intellectual Property Office, Naval Surface Warfare Center, Crane Division, Code OCF, Building 64, 300 Highway 361, Crane, IN 47522-5001, telephone (812) 854-1130.
Department of the Navy, DOD.
Notice of partially closed meeting.
The U.S. Naval Academy Board of Visitors will meet to make such inquiry as the Board shall deem necessary into the state of morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of the Naval Academy. During this meeting inquiries will relate to the internal personnel rules and practices of the Academy, may involve on-going criminal investigations, and include discussions of personal information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The executive session of this meeting will be closed to the public.
The meeting will be held on Friday, September 7, 2001, from 9 a.m. to 12 p.m. The closed Executive Session will be held from 11:15 a.m. to 12:00 p.m.
The meeting will be held in Room 385 of the Russell Senate Office Building, Washington, DC.
Lieutenant Commander Thomas E. Osborn, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, telephone (410) 293-1503.
This notice of meeting is provided per the Federal Advisory Committee Act (5 U.S.C. App. 2). The executive session of the meeting will consist of discussions of information which pertain to the conduct of various midshipmen at the Naval Academy and internal Board of Visitors matters. Discussion of such information cannot be adequately segregated from other topics, which precludes opening the executive session of this meeting to the public. In accordance with 5 U.S.C. App. 2, section 10(d), the Secretary of the Navy has determined in writing that the special committee meeting shall be partially closed to the public because they will be concerned with matters as outlined in section 552(b)(2), (5), (6), and (7) of title 5, U.S.C. Due to unavoidable delay in administrative processing, the normal 15 days notice could not be provided.
Department of the Navy, DOD.
Notice.
Pursuant to 5 U.S.C. 4314(c)(4), the Department of the Navy (DON) announces the appointment of members to the DON's numerous Senior Executive Service (SES) Performance Review Boards (PRBs). The purpose of the PRBs is to provide fair and impartial review of the annual SES performance
Ms. Carmen Arrowood, Office of the Assistant Secretary, Manpower and Reserve Affairs, 1000 Navy Pentagon, Washington, DC 20350-1000, telephone (703) 696-5165.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before September 27, 2001..
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10202, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address Karen_F._Lee@omb.eop.gov.
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.
Responses: 17,000.
Burden Hours: 4,250.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Jacqueline Montague at (202) 708-5359 or via her internet address
National Nuclear Security Administration (NNSA), U. S. Department of Energy (DOE).
Notice of intent to solicit applications.
In continuation of the Inertial Fusion Science in Support of Stockpile Stewardship Grant Program, the DOE announces that it plans to expand this university program and conduct a competitive solicitation for research projects in additional areas of fundamental science relevant to the NNSA stockpile stewardship program. The stockpile stewardship program is based on a leading-edge scientific approach to meeting the challenges of ensuring the safety, reliability, and performance of the nuclear weapon stockpile in the absence of testing. The Stewardship Science Academic Alliances Program is sponsored by the Office of Research, Development and Simulation, in the DOE/NNSA Office of Defense Programs (DP). When issued, Solicitation No. DE-PS03-01SF22349 will invite universities and academic institutions to submit cooperative agreement or research grant applications. The total amount of funding expected to be available for the Fiscal Year 2002 (FY02) program cycle is approximately $10,000,000. Multiple awards are anticipated.
The formal solicitation document will be disseminated electronically as Solicitation Number DE-PS03-01SF22349, Stewardship Science Academic Alliances Program, through the Industry Interactive Procurement System (IIPS) located at the following URL:
Bertha Crisp, Contract Specialist,
The solicitation document will contain all the information relative to this action for prospective applicants. The solicitation is targeted for release in late September 2001. Pre-applications and applications will be subject to scientific peer review against predetermined, published criteria. Consideration will be given to a broad spectrum of proposed university programs, ranging from single-investigator projects to comprehensive Centers of Excellence. Final selection of successful applications will be made by the DOE/NNSA. It is anticipated that multiple Cooperative Agreements and Research Grants will be awarded within the available funding. The stockpile stewardship mission focuses on both an increased fundamental understanding of basic physical phenomena associated with stockpile performance, safety, and reliability, as well as on sustaining a comprehensive set of core science and technology competencies in the NNSA/DP complex. Under the Stewardship Science Academic Alliances Program, the NNSA will consider applications for university-based research in fields of physical sciences that are relevant to stockpile stewardship and which fall within the areas of research supported by the NNSA/DP Office of Research, Development and Simulation. An objective of the Stewardship Science Academic Alliances Program is to complement the current NNSA/DP Accelerated Strategic Computing Initiative (ASCI) Academic Strategic Alliances Program (ASAP) by emphasizing primarily experimental research in the following physical sciences areas:
Additional topics of interest may be added pending clarification of funding for FY02. All work funded through this program will be unclassified.
Environmental Protection Agency (EPA).
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C., App. 2) notification is hereby given that the U.S. Environmental Protection Agency, Office of Research and Development (ORD), National Center for Environmental Assessment (NCEA), Board of Scientific Counselors Subcommittee (BOSC), will hold a public meeting.
The meeting will be held on October 10 & 11, 2001. The meeting will begin at 9 am on October 10 and adjourn at approximately 5 pm on October 11. All times noted are Eastern Time.
The meeting will be held at the Charles Glover Building, 808 17th Street, NW., 4th Floor Conference Room, Washington, DC 20006. Seating is limited; therefore, you must notify Joanna Foellmer, Designated Federal Official, Board of Scientific Counselors Subcommittee, to confirm attendance no later than October 4 (address listed below).
Joanna Foellmer at (202) 564-3208.
The Board of Scientific Counselors (BOSC) was established to provide objective and independent counsel to the Office of Research and Development (ORD) on the management and operation of ORD's research programs. The primary functions of BOSC are: (1) To evaluate science and engineering research programs, laboratories, and research-management practices of ORD and recommend actions to improve their quality and/or strengthen their relevance to the mission of the EPA; and (2) to evaluate and provide advice concerning the use of peer review within ORD to sustain and enhance the quality of science in EPA.
In September 1997, a programmatic review of ORD's National Center of Environmental Assessment (NCEA) by an Ad Hoc Subcommittee of the BOSC provided an opportunity for NCEA to look at its past, present, and future. As part of the review, the staff and management of NCEA prepared a “Self-Study Report,” which was submitted to the BOSC Subcommittee for pre-meeting review. During the meeting, the Subcommittee discussed the Self-Study Report responses with NCEA management and staff. They gathered additional comments from the staff regarding the organization, management, human resources, and their professional relationships with the Agency and with external users of NCEA products. A final report from the BOSC Ad Hoc Subcommittee, dated April 1998, was submitted to NCEA. The final report included the conclusions and recommendations of the Subcommittee based on the input from the meeting, the Self Study Report, and the experience of the Subcommittee.
Since the 1998 report, NCEA has worked to refocus some of its activities and directions in response to the recommendations of the Subcommittee and in the context of the EPA and ORD Strategic Plans. As a next step, standing BOSC Subcommittees have been
NCEA is in process of developing a response to a series of questions that were submitted by the BOSC to help the NCEA-BOSC Subcommittee gauge the progress of the Center since its 1997 review and to evaluate science and planning activities that NCEA has developed to address the priorities and directions included in the EPA and ORD Strategic Plans. The October meeting will include a discussion of the NCEA responses to the questions and opportunities for public comment.
Anyone desiring a draft agenda may fax their request to Joanna Foellmer at Fax Number 202-565-0061. If you would prefer to e-mail your request, the address is:
Environmental Protection Agency.
Notice of Draft Document for Review.
The Environmental Protection Agency (EPA or the Agency) today is providing notice of the issuance of a draft Recovered Materials Advisory Notice (RMAN IV). The RMAN provides guidance to procuring agencies for purchasing certain items containing recovered materials. Under section 6002 of the Resource Conservation and Recovery Act of 1976, EPA designates items that are or can be made with recovered materials and provides recommendations for the procurement of these items. Elsewhere in today's
Today's draft RMAN IV also includes revisions to EPA's previous recommendations for polyester carpet issued in RMAN I (60 FR 21386, May 1, 1995). Previously, EPA designated polyester carpet for use in low- and medium-wear applications and referenced those applications in the RMAN. Since the issuance of EPA's designation and recommendations for polyester carpet, the Carpet and Rug Institute (CRI) has issued new carpet use classifications. Under CRI's new classifications, certain applications that EPA has considered to be low- and medium-wear are now classified as moderate- and heavy-wear applications. Therefore, today's draft RMAN revises the recommendations for polyester carpet to recommend its use in certain moderate- and heavy-wear applications, such as those found in single family housing units, private offices, and similar applications. Today's draft RMAN IV also recommends that when procuring agencies purchase new carpet, they also consider making arrangements to have their old carpet collected and recycled or otherwise reused to make new carpeting.
Today's draft RMAN IV proposes revisions to EPA's previous recommendations for railroad grade crossing surfaces by adding recommended recovered materials content levels for railroad grade crossing surfaces containing recovered wood and plastic. In addition, today's draft RMAN proposes to revise EPA's previous recommendations for consolidated and reprocessed latex paint issued in RMAN II (62 FR 60975, November 13, 1997). In RMAN II, EPA recommended that procuring agencies refer to federal specification TT-P-2846 when purchasing recycled paint. (See Section C-7-Latex Paint.) EPA has recently learned that the General Services Administration (GSA) has cancelled this specification and will replace it with commercial item description (CID) A-A-3185. A copy of this CID will be placed in the RCRA public docket for today's notice when it becomes available. In the final RMAN IV, EPA intends to revise Section C-7 of the RMAN to delete reference to federal specification TT-P-2846 and replace it with reference to CID A-A-3185.
EPA will accept public comments on the recommendations contained in the draft RMAN IV until October 29, 2001.
To comment on this notice, please send an original and two copies of comments to: RCRA Information Center (5305W), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please place the docket number F-2001-CP4P-FFFFF on your comments.
If any information is confidential, it should be identified as such. An original and two copies of Confidential Business Information (CBI) must be submitted under separate cover to: Document Control Officer (5305), Office of Solid Waste, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW.,Washington, DC 20460.
Documents related to today's notice are available for viewing at the RCRA Information Center (RIC), located at: U.S. Environmental Protection Agency, 1235 Jefferson Davis Highway, Ground Floor, Crystal Gateway One, Arlington, VA 22202. The RIC is open from 9 a.m. to 4 p.m. Monday through Friday, except for federal holidays. The public must make an appointment to review docket materials. Call (703) 603-9230 for appointments. Copies cost $.15 per page.
For general information contact the RCRA Call Center at (800) 424-9346 or TDD (800) 553-7672 (hearing impaired). In the Washington, DC metropolitan area, call (703) 412-9810 or TDD (703) 412-3323. For technical information on individual item recommendations, contact Terry Grist at (703) 308-7257.
The draft Recovered Materials Advisory Notice (RMAN IV) is issued under the authority of sections 2002(a) and 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended; and 42 U.S.C. 6912(a) and 2962. EPA is also issuing RMAN IV to comply with section 502 of Executive Order 13101, “Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition (63 FR 49643, September 14, 1998).
Section 6002 of RCRA establishes a federal buy-recycled program. RCRA section 6002(e) requires EPA to (1) designate items that are or can be made with recovered materials and (2) prepare guidelines to assist procuring agencies in complying with affirmative procurement requirements set forth in paragraphs (c), (d), and (i) of section 6002. Once EPA has designated items, section 6002 requires that any procuring agency using appropriated federal funds to procure those items must purchase them composed of the highest percentage of recovered materials practicable. For the purposes of RCRA section 6002, procuring agencies include the following: (1) any federal agency; (2) any state or local agencies using appropriated federal funds for a procurement, or (3) any contractors with these agencies (with respect to work performed under the contract). The requirements of RCRA section 6002 apply to such procuring agencies only when procuring designated items where the price of the item exceeds $10,000 or the quantity of the item purchased in the previous year exceeded $10,000.
Executive Order 13101 directs EPA to designate items in a Comprehensive Procurement Guideline (CPG) and publish guidance that contains EPA's recommended recovered content levels for the designated items in the RMANs. The Executive Order further directs EPA to update the CPG every 2 years and the RMANs periodically to reflect changes in market conditions. EPA codifies the CPG designations in the Code of Federal Regulations (CFR), but because the recommendations are guidance, the RMANs are not codified in the CFR. This process enables EPA to revise its recommendations in response to changes in a product's availability or recovered materials content so as to provide timely assistance to procuring agencies in fulfilling their RCRA section 6002 responsibilities.
The original CPG (CPG I) was published on May 1, 1995 (60 FR 21370). It established eight product categories, designated 19 new items, and consolidated five earlier item designations. At the same time, EPA published the first RMAN (RMAN I) (60 FR 21386). On November 13, 1997, EPA published CPG II (62 FR 60962), which designated an additional 12 items. At the same time, EPA published an RMAN II (62 FR 60975). Paper Products RMANs were issued on May 29, 1996 (61 FR 26985) and June 8, 1998 (63 FR 31214). On January 19, 2000, EPA published CPG III (65 FR 3070), which designated an additional 18 items. At the same time, EPA published an RMAN III (65 FR 3082).
Today, in CPG IV, EPA is proposing to designate the following 11 additional items: bike racks, blasting grit, cement and concrete containing cenospheres, cement and concrete containing silica fume, modular threshold ramps, nonpressure pipe, nylon carpet and nylon carpet backing, office furniture, rebuilt vehicular parts, roofing materials, and tires. Once finalized, today's RMAN will serve as companion guidance to the previous RMANs.
EPA, once again, wants to stress that the recommendations in RMAN IV are just that—recommendations and guidance to procuring agencies in fulfilling their obligations under RCRA section 6002. The designation of an item as one that is or can be produced with recovered materials and the inclusion of recommended content levels for an item in the RMAN does not compel the procurement of an item when the item is not suitable for its intended purpose. RCRA section 6002 is explicit in this regard when it authorizes a procuring agency not to procure a designated item which “fails to meet the performance standards set forth in the applicable specification or fails to meet the reasonable performance standards of the procuring agencies.” Section 6002(1)(B), 42 U.S.C. 6962(c)(B).
Thus, for example, in the proposal section of today's
In providing guidance in the RMANs, the Executive Order directs EPA to present “the range of recovered materials content levels within which the designated recycled items are currently available.” Based on the information available to the Agency, EPA recommends ranges that encourage manufacturers to incorporate the maximum amount of recovered materials into their products without compromising competition or product performance and availability. EPA recommends that procuring agencies use these ranges, in conjunction with their own research, to establish minimum content standards for use in purchasing the designated items. EPA recommends ranges rather than minimum standards for several reasons:
First, the Executive Order directs EPA to develop ranges, not minimum content standards or specific recovered materials levels.
Second, EPA has only limited information on recovered materials content levels for the new items proposed for designation. It would not be appropriate to establish minimum content standards without more detailed information because the standards may be treated as maximum targets by manufacturers and may stifle innovative approaches for increasing recovered material use. EPA's expectation is that the use of ranges will encourage manufacturers producing at the low end of the recovered materials range to seek ways of increasing their recovered materials usage. Minimum content standards are less likely to encourage such innovation.
Third, many items are purchased locally rather than centrally. As a result, the recovered materials content of the items are likely to vary from region to region depending on local cost and availability of recovered materials. Minimum content standards are unlikely to be effective given the regional variance in recovered materials content because minimum content levels that are appropriate for one region, may be excessively high or low for other regions. A recovered materials content range gives regional procuring agencies the flexibility to establish their own recovered materials content standards and to make them as high as possible, consistent with the statute, given local product availability and market conditions.
EPA reviewed publicly-available information, information obtained from product manufacturers, and information provided by other government agencies regarding the percentages of recovered materials available in the items proposed for designation in CPG IV. Based on this information, EPA established ranges of recovered materials content for the proposed designated items. In some instances, EPA recommends a specific content level (e.g., 100 percent recovered materials), rather than a range, because the item is universally available at that recommended level, the item contains 100 percent recovered materials, or that level is the maximum content currently used in that item.
In establishing the ranges, EPA's objective was to ensure the availability of the item, while challenging manufacturers to increase their use of recovered materials. By recommending ranges, EPA believes that sufficient information will be provided to enable procuring agencies to set appropriate procurement specifications when purchasing the newly designated items.
It is EPA's intention to provide procuring agencies with the best and most current information available to assist them in fulfilling their statutory obligations under RCRA section 6002. To do this, EPA will monitor the progress made by procuring agencies in purchasing designated items with the highest practical recovered materials content levels and will adjust the recommended content ranges as appropriate. EPA anticipates that the recommended ranges will narrow over time as other items become more available, although for technical reasons, many may never be available with 100 percent recovered materials content levels.
Under RCRA section 6002(i), it is each procuring agency's responsibility to establish minimum content standards, while EPA provides recommendations regarding the levels of recovered materials in the designated items. To make it clear that EPA does not establish minimum content standards for other agencies, EPA refers to its recommendations as “recovered materials content levels,” consistent with RCRA section 6002(e) and the Executive Order.
More information on EPA's methodology for recommending recovered materials content levels for designated items is contained in “Background Document for Proposed CPG IV and Draft RMAN IV,” located in the RCRA public docket for this notice and on EPA's CPG Web site at
Today's draft RMAN IV contains recommendations on the recovered materials content levels and postconsumer materials content levels at which the designated items are generally available. For several items being proposed for designation, this RMAN recommends two-part content levels—a postconsumer recovered materials content component and a total recovered materials component. In these instances, EPA found that both types of materials were being used to manufacture a product. Recommending only postconsumer content levels would fail to acknowledge the contribution to solid waste management made when manufacturers use, as feedstock, the byproducts of other manufacturing processes that would otherwise be destined for disposal as solid waste. The terms “recovered materials” and “postconsumer materials” are defined in 40 CFR § 247.3. These definitions are repeated here as a reference for the convenience of the reader. The Agency is not proposing to change these definitions and will not consider any comments submitted on these terms.
Definitions for the 11 new items covered in this RMAN IV are included in proposed CPG IV published in the proposed rule section of today's
EPA requests comments, including additional supporting documentation and information, on the types of recovered materials identified in the item recommendations, the recommended recovered and postconsumer materials content levels, and other recommendations, including specifications, for purchasing the designated items containing recovered materials. EPA requests specific comments and information on the following issues:
(1) Recently, as explained in the preamble to proposed CPG IV, the Carpet and Rug Institute (CRI) issued new carpet-use classifications that provide a listing of the types of end-use applications recommended for carpet and reclassifies the applications into three new categories: moderate-, heavy-, and severe-wear applications. Most of the applications specified by EPA in the initial polyester carpet designation in CPG I referred to private homes that, under the new CRI classifications, would be included in the category of “single family housing.” CRI's classifications include both moderate- and heavy-use applications under the single family housing category. Therefore, EPA, as explained in the CPG IV, is proposing to revise the polyester carpet designation to reference the new CRI classifications and specify that the designation be limited to moderate- and heavy-wear applications such as those found in single-family housing units, private offices, and similar applications. EPA is requesting comments on this proposed revision to the designation for polyester carpet. Today's RMAN revises EPA's previous recommendations for polyester carpet and adds recommendations for nylon carpet and nylon carpet backing. The RMAN also recommends that procuring agencies make provisions to recycle old carpet that is being replaced.
(2) Whether any specifications exist or are appropriate for passenger tires containing recovered rubber, wood or plastic railroad grade crossing surfaces, office furniture, bike racks, or blasting grit.
(3) EPA is aware that modular threshold ramps can be made with recovered copper. However, it does not have any information relating to the amount of recovered copper used in these ramps and therefore, has not included ramps containing recovered copper in today's proposed designation. EPA requests information on the use of
(4) EPA is aware that nonpressure pipe can be made from aluminum that can contain recovered materials, but does not have any information regarding the recovered content percentages. EPA requests information on the amount of recovered aluminum that is being used in aluminum pipe.
(5) EPA's research indicates that wood shakes and shingles, as well as asphalt/plastic composite roofing materials can be made from recovered materials, but it was unable to identify recovered content percentages in these products. The Agency requests comments or information on the use of recovered materials in wood, fiberglass, and asphalt/plastic composite roofing materials.
The index of supporting materials for today's draft RMAN IV is available in the RCRA Information Center (RIC) and on EPA's CPG Web site at <www.epa.gov/cpg>. The address and telephone number of the RIC are provided in
Copies of the following supporting materials are available for viewing at the RIC only:
To access information electronically, go to EPA's CPG Web site at
The following represents EPA's recommendations to procuring agencies for purchasing the items designated by EPA in the Comprehensive Procurement Guideline IV (CPG IV), in compliance with section 6002 of the Resource Conservation and Recovery Act (RCRA) and Executive Order 13101. These recommendations are intended to be used in conjunction with RMAN I (60 FR 21386, May 1, 1995), the Paper Products RMAN (61 FR 26985, May 29, 1996), the Paper Products RMAN II (63 FR 31214, June 8, 1998), RMAN II (62 FR 60975, November 13, 1997), and RMAN III (65 FR 3082, January 19, 2000). Refer to the previous RMANs or the Code of Federal Regulations at 40 CFR Part 247 for definitions, general recommendations for affirmative procurement programs, and recommendations for previously designated items.
General recommendations for definitions, specifications, and affirmative procurement programs can be found in the May 1, 1995 RMAN (60 FR 21386).
Recommendations for purchasing previously-designated items can be found in RMAN I (May 1, 1995); RMAN II (November 13, 1997); RMAN III (January 19, 2000); and the Paper Products RMANs (May 29, 1996, and June 8, 1998).
EPA previously designated retread tires in CPG I and recommended that procuring agencies procure retread tires or retreading services in RMAN I (60 FR 21386, May 1, 1995). EPA has amended the original designation to include tires containing recovered rubber.
• EPA recommends that procuring agencies purchase passenger tires containing 5-10% postconsumer recovered rubber.
EPA's recommendations incorporate the recommended recovered materials content ranges in Sec. 403(b) of Executive Order 13149, “Greening the Government Through Federal Fleet and Transportation Efficiency” (April 21, 2000). EPA recognizes that tires containing recovered rubber at levels toward the high end of this range may not be readily available, but encourages procuring agencies to purchase tires with the highest level of recovered rubber possible.
Based on EPA's research, rebuilt vehicular parts generally contain between 60 and 95% postconsumer material. However, this level of detail might not be readily available from distributors to procurement officials. Therefore, EPA is not recommending a range of recovered content.
EPA previously designated cement and concrete containing coal fly ash and ground granulated blast furnace slag (GGBF) in CPG I and recommended recovered material content ranges in RMAN I (60 FR 21386, May 1, 1995). EPA has amended the designation to add cenospheres and silica fume from silicon or ferrosilicon metal production as other recovered materials for use as cement and concrete additives.
• EPA recommends that procuring agencies revise their procurement programs for cement and concrete or for construction projects involving cement and concrete to allow use of cement and concrete containing 10-15% cenospheres (by weight), as appropriate. EPA recommends that procuring agencies specifically include provisions in all construction contracts to allow for the use, as optional or alternate materials, on cement or concrete that contains cenospheres, as appropriate.
• EPA recommends that procuring agencies revise their procurement programs for cement and concrete or for construction projects involving cement and concrete to allow use of cement and concrete containing 5-20% silica fume (by weight), as appropriate. EPA recommends that procuring agencies specifically include provisions in all construction contracts to allow for the use, as optional or alternate materials, on cement or concrete that contains silica fume, as appropriate.
EPA recommends that procuring agencies refer to the following national specifications and guidelines, which enable procuring agencies to buy high-performance concrete containing silica fume of a standard quality, when purchasing cement and concrete with silica fume: ASTM C1240, AASHTO M840, and ACI 234R-96. ACI 234R-96 describes the properties of silica fume; how silica fume interacts with cement; the effects of silica fume on the properties of fresh and cured concrete; typical applications of silica fume concrete; recommendations on proportions, specifications, and handling of silica fume in the field. A copy of these specifications have been placed in the RCRA public docket for this RMAN.
On May 1, 1995, EPA issued a final designation for polyester carpet containing recovered materials in CPG I (60 FR 21370). EPA has amended the designation to revise the polyester carpet designation to reference the new Carpet and Rug Institute classifications and specify that the designation be limited to moderate- and heavy-wear applications such as those found in single-family housing units, private offices, and similar applications.
Today's RMAN revises EPA's previous recommendations for polyester carpet and adds recommendations for nylon carpet and nylon carpet backing. The RMAN also recommends that procuring agencies make provisions to recycle old carpet that is being replaced.
For nylon carpet, the recommended recovered materials content levels would also include fiber facing that has been recycled or otherwise renewed through processes that remove, retexture, and recolor the carpeting. EPA also recommends that when procuring agencies purchase new carpeting, they make provisions to have their old carpeting collected, removed, and recycled or otherwise reused to make a new carpet product.
The nylon carpet recommendations would also include “renewed” nylon carpet, which is cleaned, retextured, recolored, or otherwise reused to produce a new nylon carpet product.
While numerous carpet specifications exist, the members of the carpet industry do not utilize any universal standards. Specifications vary and are
EPA previously designated railroad grade crossing surfaces containing recovered content concrete, rubber, and steel (65 FR 3070).
Environmental Protection Agency.
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement concerning the Antifreeze, Inc., Superfund Site, with Kenneth Michael Stansbury and Noelie Andree C. Stansbury, husband and wife, (“Settling Parties”) the United States Enviromental Protection Agency (“EPA”), and the United States Department of Justice (“DOJ”).
The settlement requires the Settling Parties to pay a total of $21,000.00 in reimbursement of Past Response Costs, plus an additional sum for interest on the amount calculated from the date set forth in the definition of Past Response Costs in the Settlement Agreement through the date of payment to the Hazardous Substances Superfund.
The settlement includes a covenant not to sue under section 107 of CERCLA, 42 U.S.C. 9607.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may withdraw or withhold its consent to the proposed settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733.
Comments must be submitted on or before September 27, 2001.
The proposed settlement and additional background information relating to the settlement are available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733. A copy of the proposed settlement may be requested from Barbara J. Aldridge (6SF-AC), U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-2712. Comments should reference the Antifreeze, Inc. Superfund Site, Abbeville, Vermilion Parish, Louisiana and EPA Docket Number 06-04-01, and should be addressed to Joseph E. Compton III at the address listed below.
Joseph E. Compton III (6RC-S), U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-8506.
Environmental Protection Agency.
Notice of proposed administrative settlement and opportunity for public comment—Ewan Property Superfund Site.
The United States Environmental Protection Agency (“EPA”) is proposing to enter into an administrative settlement to resolve certain claims under the Comprehensive Environmental Response and Liability Act of 1980, as amended (“CERCLA”). Notification is being published to inform the public of the proposed settlement and of the opportunity to comment. This settlement is intended to resolve the liability of nineteen parties for certain response costs incurred by EPA at the Ewan Property Superfund Site (“the Site”) in Shamong Township, New Jersey.
Comments must be provided on or before September 27, 2001.
Comments should be addressed to the United States Environmental Protection Agency, Office of Regional Counsel, 290 Broadway—17th Floor, New York, New York 10007, and should refer to: In the Matter of the Ewan Property Superfund
U.S. Environmental Protection Agency, Office of Regional Counsel, 290 Broadway—17th Floor, New York, New York 10007; Attention: Virginia A. Curry, Esq. (212) 637-3134 or
In accordance with section 122(h) of CERCLA, notification is hereby given of a proposed administrative settlement with nineteen parties by which these parties, who are currently conducting the work at the Site under an administrative order, will pay future non-oversight response costs incurred by EPA at the Site. These parties paid all EPA's non-oversight costs at an earlier time. The Site is within the jurisdiction of the federal court in the Third Circuit which has ruled that parties are not liable under CERCLA for EPA oversight costs. The settlors will receive a covenant not to sue for claims related to EPA's past or future oversight costs at the Site, even if the law should change. Section 122(h) authorizes EPA to compromise claims with the approval of the Attorney General and the Attorney General has approved this settlement.
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a premanufacture notice (PMN) or an application for a test marketing exemption (TME), and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from July 9, 2001 to July 20, 2001, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. The “S” and “G” that precede the chemical names denote whether the chemical idenity is specific or generic.
Comments identified by the docket control number OPPTS-51975 and the specific PMN number, must be received on or before September 27, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Barbara Cunningham, Director, Office of Program Management and Evaluation, Office of Pollution Prevention and Toxics (7401), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 554-1404; e-mail address: TSCA-Hotline@epa.gov.
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the premanufacture notices addressed in the 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 OPPTS-51975 and the specific PMN number in the subject line on the first page of your response.
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Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
Section 5 of TSCA requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a PMN or an application for a TME and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from July 9, 2001, to July 20, 2001, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
This status report identifies the PMNs, both pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. If you are interested in information that is not included in the following tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available. The “S” and “G” that precede the chemical names denote whether the chemical idenity is specific or generic.
In table I, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: the EPA case number assigned to the PMN; the date the PMN was received by EPA; the projected end date for EPA's review of the PMN; the submitting manufacturer; the potential uses identified by the manufacturer in the PMN; and the chemical identity.
In table II, EPA provides the following information (to the extent that such information is not claimed as CBI) on the Notices of Commencement to manufacture received:
Environmental protection, Chemicals, Premanufacturer notices.
Federal Communications Commission.
Announcement of meeting.
On August 21, 2001, the Commission released a public notice announcing the September 11-12, 2001 meeting and agenda of the North American Numbering Council (NANC). The intended effect of this action is to make the public aware of the NANC's next meeting and its agenda.
September 11, 2001, at 8:30 a.m. until 5 p.m. and on September 12, 2001 at 8:30 a.m. until 12 p.m. (if required).
Deborah Blue, Special Assistant to the Designated Federal Officer (DFO) at (202) 418-2320 or
The North American Numbering Council (NANC) has scheduled a meeting to be held Tuesday, September 11, 2001, from 8:30 a.m. until 5 p.m., and on Wednesday, September 12, 2001, from 8:30 a.m., until 12 noon (if required). The meeting will be held at the Federal Communications Commission, Portals II, 445 12th Street, SW, Room TW-C305, Washington, DC.
This meeting is open to members of the general public. The FCC will attempt to accommodate as many participants as possible.
The public may submit written statements to the NANC, which must be received two business days before the meeting. In addition, oral statements at the meeting by parties or entities not represented on the NANC will be permitted to the extent time permits. Such statements will be limited to five minutes in length by any one party or entity, and requests to make an oral statement must be received two business days before the meeting. Requests to make an oral statement or provide written comments to the NANC should be sent to Deborah Blue at the address under
Federal Communications Commission.
Announcement of meeting.
This notice invites interested person to a Public Forum and Technology Expo on telecommunications relay services (TRS). The purpose of this Forum and Expo is for TRS administrators, consumers, providers, and Commission staff to share information on, among other things, current state TRS outreach programs, implementation of a nationwide TRS outreach program, and new TRS technologies.
The Public Forum and Technology Expo on TRS will be held on Wednesday, October 10, 2001 from 9:00 a.m. to 3:30 p.m. in the Commission Meeting Room, Room TW-C305 and adjacent rooms, at 445 12th St., SW., Washington, DC 20554. Ex parte comments are due on or before October 20, 2001.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
For more information about the Forum, please contact Suzanne Perrin at (202) 418-2874 (voice), (202) 418-1085 (TTY), or
The Forum will offer an opportunity for everyone, including consumers and industry representatives, to exchange ideas with the Commission and TRS administrators and to have their comments become part of the formal public record in CC Docket 98-67. In conjunction with the Forum, the Consumer Information Bureau will hold a Technology Expo to showcase TRS and other accessibility technologies. The Forum agenda is tentatively as follows:
Interested parties who choose to file
TRS is required by Title IV of the Americans with Disabilities Act (Section 225 of the Communications Act of 1934). TRS now utilizes a variety of services to facilitate telephone communication between persons with hearing or speech disabilities and persons who use voice telephones. Relay services between TTY and voice users utilize a relay operator, called a Communications Assistant (CA), to read what the TTY user types to a voice telephone user, and to type responses back to the TTY user throughout the duration of a telephone call. Speech-to-speech (STS) relay utilizes CAs trained in understanding certain speech patterns to relay conversations for people with speech disabilities. Video relay services (VRS) utilize CAs skilled in sign language to relay conversations for users of American Sign Language. The Forum will provide an opportunity for a full exchange of ideas on state and nationwide outreach efforts related to TRS. In March 2000, the Commission issued a Report and Order and Further Notice of Proposed Rulemaking (FNPRM), In the Matter of Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket 98-67, which tentatively concluded that TRS service could be improved with a nationwide awareness campaign that reaches all potential TRS users, including consumers with disabilities, senior citizens who have lost hearing late in life, potential STS users, and the general public. The FNPRM asked for comment about the extent to which a national outreach effort should be supported by the interstate TRS fund and whether the interstate TRS fund administrator should administer the funding for such educational outreach programs. The FNPRM further proposed to amend the mission of the Interstate TRS Advisory Council to include establishing guidelines and a procedure to fund a coordinated national outreach campaign. In August 2000, the Commission also adopted a Second Report and Order in its proceeding on The Use of N11 Codes and Other Abbreviated Dialing Arrangements, CC Docket 92-105, which required common carriers to provide access to all relay services via the 711 dialing code by October 1, 2001. Among other things, that Order directed each common carrier providing telephone voice
Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act of 1995.
In accordance with requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
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Supplementary Information: 12 CFR 326 requires all insured nonmember banks to establish and maintain procedures designed to assure and monitor their compliance with the requirements of the Bank Secrecy Act and the implementing regulations promulgated thereunder by the Department of Treasury at 31 CFR 103.
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Supplementary Information: Section 29 of the Federal Deposit Insurance Act prohibits undercapitalized insured depository institutions from accepting, renewing, or rolling over any brokered deposits. Adequately capitalized institutions may do so with a waiver from the FDIC, while well-capitalized institutions may accept, renew, or roll over brokered deposits without restriction.
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Supplementary Information: Institutions will use real estate lending policies to guide their lending operations in a manner that is consistent with safe and sound banking practices and appropriate to their size, nature and scope of their operations. These policies should address certain lending considerations, including loan-to-value limits, loan administration policies, portfolio diversification standards, and documentation, approval and reporting requirements.
Supplementary Information: Section 18(d)(2) of the Federal Deposit Insurance Act, requires a nonmember bank to obtain the FDIC's consent to establish or operate a branch in a foreign country and authorizes the FDIC to impose conditions and issue regulations governing foreign branches of nonmember banks. Section 18(l) requires a nonmember bank to obtain the FDIC's consent to acquire and hold, directly or indirectly, stock or other evidences of ownership in any foreign bank or other entity.
Addresses: Information about this submission, including copies of the proposed collections of information, may be obtained by calling or writing the FDIC contact listed above.
Federal Emergency Management Agency (FEMA).
Notice of open meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463, 5 U.S.C. App.), announcement is made of the following committee meeting:
The meeting will be open to the public, with seats available on a first-come, first-served basis. All members of the public interested in attending should contact James D. Duffer, at 202-646-3532.
Minutes of the meeting will be prepared and available for public viewing at the Federal Emergency Management Agency (FEMA), Recovery Division, Readiness, Response and Recovery Directorate, 500 C Street, SW, Washington DC 20472 and posted on FEMA's Web Page located at
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request the Office of Management and Budget (OMB) to allow the proposed information collection project: 2001-2003 Medical Expenditure Panel Survey—Insurance Component (MEPS-IC). In accordance with the Paperwork Reduction Act as amended (see in particular 44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by October 29, 2001.
Written comments should be submitted to: Cynthia D. McMichael, Reports Clearance Officer, AHRQ, 2101 East Jefferson Street, Suite 500, Rockville, MD 20852-4908.
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Cynthia D. McMichael, AHRQ Reports Clearance Officer, (301) 594-3132.
2001-2003 Medical Expenditure Panel Survey—Insurance Component (MEPS-IC).
The MEPS-IC, an annual survey of the characteristics of employer-sponsored health insurance, was first conducted by AHRQ in 1997 for the calendar year 1996. The survey has since been conducted annually for calendar years 1997 through 2000. AHRQ proposes to continue this annual survey of establishments for calendar years 2001 through 2003. The survey date for calendar year 2001 will be collected in 2002. Likewise, calendar year 2002 data will be collected in 2003 and calendar year 2003 data in 2004. The survey will collect information from both public and private employers. This survey will be conducted for AHRQ by the Bureau of the Census using a sample comprised of:
1. Employers selected from Census Bureau lists of private sector employers and governments (known as the List Sample), and
2. Employers identified by respondents to the MEPS-Household Component (MEPS-HC) for the same calendar year (known as the Household Sample).
The MEPS-HC is an annual household survey designed to collect information concerning health care expenditures and related data for individuals. The size of the Household sample varies from year to year with the size of the MEPS-HC.
Data to be collected from each employer will include a description of the business (e.g., size, industry) and descriptions of health insurance plans available, plan enrollments, total plan costs and costs to employees.
The MEPS-IC List Sample data confidentiality is protected under Section 9 of Title 13, United States Code (the U.S. Census Bureau statute) as well as section 924(c) of the Public Health Service Act (42 U.S.C. 299c-3(c)). The MEPS-IC Household Sample data confidentiality is protected under Sections 308(d) and 924(c) of the Public Health Service Act (42 U.S.C. 242m and 42 U.S.C. 299c-3(c)).
Section 308(d) is the confidentiality statute of the National Center for Health Statistics, is applicable because the MEPS-HC sample is derived from respondents of an earlier NCHS survey.
Section 924(c) is the confidentiality statute of AHRQ. All data products listed below must fully comply with the data confidentiality statute under which their raw data was collected.
Data will be produced in three forms: (1) Files derived from the Household Sample, which can be linked back to other information from household respondents in the MEPS-HC, will be available to researchers at the AHRQ Research Data Center; (2) files containing employer information from the List Sample will be available for use by researchers at the Census Bureau's Research Data Centers; and (3) a large compendium of tables of estimates, also based on List Sample data, will be produced and made available on the
The data are intended to be used for purposes such as:
• Generating national and State estimates of employer health care offerings;
• Producing estimates to support the Bureau of Economic Analysis and the Center for Medicare and Medicaid Services in their production of health care expenditure estimates for the National Health Accounts and the Gross Domestic Product;
• Producing national and State estimates of spending on employer-sponsored health insurance to study the results of national and State health car policies;
• Supplying data for modeling the demand for health insurance; and
• Providing data on health plan choices, costs, and benefits that can be linked back to households' use of health care resources in the MEPS-HC for studies of the consumer health care selection process.
These data provide the basis for researchers to address important questions for employers and policymakers alike.
The data will be collected using a combination of modes. The Census Bureau's first contact with employers will be made by telephone. This contact will provide information on the availabiliity of health insurance from that employer and essential persons to contact. Based upon this information, Census will mail a questionnaire to the employer. In order to assure high response rates, Census will follow-up with a second mailing at an acceptable interval, followed by a telephone call to collect data from those who have not responded by mail.
As part of this process, for larger respondents with high burdens, such as State employers and very large firms, we will, if needed, perform personal visits and do customized collection, such as, acceptance of data in computerized formats and use of special forms.
In accordance with the above cited legislation, comments on the AHRQ information collection proposal are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden (including hours and costs) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request the Office of Management and Budget (OMB) to allow a proposed information collection project: “Primary Care Network Survey (PRINS)”. In accordance with the Paperwork Reduction Act as amended (see in particular 44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection request to allow AHRQ to conduct research in primary care settings.
This proposed information collection was previously published in the Federal Register on June 19, 2001 and allowed 60 days for public comment. No public comments were received. The purpose of this notice is to allow an additional 30 days for public comment.
Comments on this notice must be received by September 27, 2001.
Written comments should be submitted to: Allison Eydt, Human Resources and Housing Branch, Office of Information and Regulatory Affairs, OMB, New Executive Office Building, Room 10235, Washington, DC 20503.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Cynthia D. McMichael, AHRQ, Reports Clearance Officer, (301) 594-3132.
As directed in its reauthorization legislation, AHRQ supports activities designated to improve the capacity of practice-based research networks (PBRNs) to conduct research in primary care settings. A PBRN is a group of ambulatory practices devoted principally to the primary care of patients, affiliated with each other in order to investigate questions related to community-based practice. AHRQ has recently established cooperative agreements with 19 PBRNs who have specifically been asked to conduct
PRINS will provide a range of baseline data on the clinicians enrolled in each network, the services provided, and characteristics of patients receiving those services. Data to be collected include the patients' demographic characteristics and reason(s) for visit, and the providers' diagnosis(es) and diagnostic services, medications and disposition.
These data may be used by the PBRN to define the network's capacity to study specific clinical conditions seen in primary care, establish a denominator for epidemoiological or surveillance studies, and stimulate further research on the use, organization and delivery of primary care. All identifiable data that is collected will be protected in accordance with the AHRQ confidentiality statute, 42 USC 299c-3(c).
The estimated annual hour burden is as follows:
To calculate the burden hours, the number of respondents for PRINS is based on a sample of 1,000 clinicians who have agreed to advance to participate. Each clinician fills out an intake form (which requires about 15 minutes).
The same 1,000 then record (on separate forms) information about 30 consecutive patients seen in his/her practice (requiring less than 2 minutes per form to complete). The total cost to the volunteer respondents is estimated to be $150,000 or $150 each.
Comments are invited on: (a) The necessity of the proposed collections; (b) the accuracy of the Agency's estimate of burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Copies of these proposed collection plans and instruments can be obtained from the AHRQ Reports Clearance Officer (see above).
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 639-7090.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Send comments to Anne O'Connor, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
Funding recipients are required to submit progress reports that are used by OSH managers and Project Officers (Pos) twice yearly to CDC to identify training
The proposed change in data collection methodology is being driven by OSH development of an automated management information system (MIS) to maintain individual TCP information and to normalize the information reported by these programs. The proposed data collection will utilize a more formal, systematic method of collecting information that has historically been requested from individual TCPs and will standardize the content of this information. This will facilitate OSH staff's ability to fulfill its obligations under the cooperative agreements; to monitor, evaluate and compare individual programs; and to assess and report aggregate information regarding the overall effectiveness of OSH National Tobacco Control Program (NTCP). It will also support OSH broader mission of reducing the burden of tobacco use by enabling OSH staff to more effectively identify the strengths and weaknesses of individual TCPs; to identify the strength of national movement toward reaching the goals specified in
Centers for Medicare and Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web Site address at http://www.hcfa.gov/regs/prdact95.htm, or E-mail your request, including your address, phone number, OMB number, and CMS document identifier, to Paperwork@hcfa.gov, or call the Reports Clearance Office on (410) 786-1326. Written comments and recommendations for the proposed information collections must be mailed within 60 days of this notice directly to the CMS Paperwork Clearance Officer designated at the following address: CMS, Office of Information Services, Security and Standards Group, Division of CMS Enterprise Standards, Attention: Dawn Willinghan, CMS-R-273, Room N2-14-26, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
Centers for Medicare and Medicaid Services, HHS.
In an effort to revise the current Hospital and Health Care Complex Cost Report, we are interested in receiving public comments to help aid in making the necessary revisions to this cost report. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain a copy of the forms and related materials for the proposed paperwork collections referenced above, access CMS's Web Site address at http://www.hcfa.gov/regs/prdact95.htm, or E-mail your request, including your address, phone number, OMB number, and CMS document identifier, to Paperwork@hcfa.gov, or call the Reports Clearance Office on (410) 786-1326. The revised “Hospital and Health Care Complex Cost Report” will be available after the close of this solicitation, at which time, we will publish a subsequent 60-day
Centers for Medicare and Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web Site address at http://www.hcfa.gov/regs/prdact95.htm, or E-mail your request, including your address, phone number, OMB number, and CMS document identifier, to Paperwork@hcfa.gov, or call the Reports Clearance Office on (410) 786-1326. Written comments and recommendations for the proposed information collections must be mailed within 60 days of this notice directly to the CMS Paperwork Clearance Officer designated at the following address: CMS, Office of Information Services, Security and Standards Group, Division of CMS Enterprise Standards, Attention: Dawn Willinghan, CMS-2088, Room N2-14-26, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the presiding officer summary decisions, presiding officer reports, and the Commissioner of Food and Drugs (the Commissioner) decisions that are issued concerning a regulatory hearing on the proposed disqualification of a clinical investigator from eligibility to continue to receive investigational products for use in clinical investigations. These reports and decisions and an index are available at the FDA Internet site.
Copies of an index to presiding officer summary decisions, presiding officer reports, and Commissioner decisions, as well as the reports and decisions themselves, may be obtained from the Freedom of Information Office home page at http://www.fda.gov/foi/clinicaldis.
Copies of the index and reports and decisions are also available at the Dockets Management Branch, Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Nancy E. Pirt, Office of the Ombudsman (HF-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3390.
FDA regulates scientific studies, known as clinical investigations, designed to test the safety and effectiveness of investigational human and animal drugs, biological products, and medical devices. The data from these clinical investigations may be used as the basis of applications to FDA for approval to market the investigational products. The clinical investigators who conduct clinical trials must comply with FDA’s regulations that govern clinical investigations. FDA may seek to disqualify a clinical investigator if the agency has information indicating that the investigator has repeatedly or deliberately failed to comply with the requirements of the regulations for conducting clinical investigations, or repeatedly or deliberately submitted false data to the FDA or the study’s sponsor. If the Commissioner makes this determination, the Commissioner will notify the investigator and the sponsor of any investigation, in which the investigator has been named as a participant, that the investigator is not entitled to receive investigational drugs.
The criteria for disqualification are set forth in FDA's regulations. For clinical investigations involving human drugs and biologic products, the applicable regulation is found at 21 CFR 312.70. For clinical investigations involving medical devices, the applicable regulation is found at 21 CFR 812.119. For clinical investigations involving investigational animal drugs, the applicable regulation is found at 21 CFR 511.1.
The disqualification process is initiated when FDA's Center for Biologics Evaluation and Research, Center for Drug Evaluation and Research, Center for Devices and Radiological Health, or Center for Veterinary Medicine sends the investigator a written notice of the matter complained of, and offers the investigator an opportunity to explain in writing or, at the option of the investigator, at an informal conference. If the Center does not find the investigator’s explanation to be acceptable, the agency will send the investigator a notice of opportunity for a hearing. If a regulatory hearing is held, it will be conducted under part 16 (21 CFR part 16). Under part 16, if a clinical investigator requests a hearing, a presiding officer is appointed to hear the case. A request for a hearing may be denied if the Commissioner or his or her delegate determines that there is no genuine and substantial issue of fact to justify a hearing. A written notice of this determination will be given to the parties. In addition, the presiding officer may issue a summary decision on any issue in the hearing if the presiding officer determines that there is no genuine and substantial issue of fact respecting that issue.
After a hearing is conducted, the presiding officer, under § 16.60, prepares a written report of the hearing, including a recommended decision with a statement of the reasons, on the proposed disqualification. The written report will include a recommended decision with a statement of reasons, unless the Commissioner directs otherwise. The presiding officer's report is one component of the administrative record of the hearing. Based on the administrative record, the Commissioner issues a written decision on the question of whether the investigator is entitled to receive investigational products. If the Commissioner finds that the clinical investigator repeatedly or deliberately failed to comply with agency regulations, or repeatedly or deliberately submitted false information to FDA or the sponsor, the investigator may be disqualified from receiving investigational products.
Disqualification hearings are informal, and presiding officer summary decisions, presiding officer reports, and Commissioner decisions are not published in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the revised guidance for industry (third edition) entitled “Fish and Fishery Products Hazards and Controls Guidance” (the guidance). The guidance supports and complements FDA regulations for the safe and sanitary processing and importing of fish and fishery products using hazard analysis and critical control point (HACCP) methods. The guidance represents the agency's current views on potential hazards in seafood products and how to control them, and it is designed to assist seafood processors in the development of HACCP plans. The guidance is revised about every 2 years to address comments and to reflect our current understanding of seafood hazards and control methods.
General comments on agency guidance documents are welcome at any time.
Submit written comments on the guidance to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers
Anthony P. Brunetti, Center for Food Safety and Applied Nutrition (HFS-415), Food and Drug Administration, 200 C St. SW., Washington, DC 20204, 202-418-3150.
We (FDA) are announcing the availability of the third edition of the “Fish and Fishery Products Hazards and Controls Guidance” (the guidance). A summary of the changes incorporated in the third edition are listed in the introduction of the guidance.
Under our HACCP regulations at parts 123 and 1240 (21 CFR parts 123 and 1240) processors and importers of fish and fishery products are required to operate preventive control systems that incorporate the principles of HACCP. Under § 123.6(g), fish and fishery products are adulterated under section 402(a)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342) if a processor or importer fails to have and implement a HACCP plan when one is necessary, or otherwise fails to meet any of the requirements of the regulations. The primary purpose of the guidance is to help processors and importers of seafood products identify the likelihood that a food safety hazard may occur in their product, and to guide them in the preparation of appropriate HACCP plans for those hazards that are reasonably likely to occur.
We published the first edition of the guidance in September 1996, about 1 year before the seafood HACCP regulations became effective, and issued the second edition in January 1998. The guidance describes current information relating to: (1) Potential hazards associated with the known commercial species of vertebrate and invertebrate seafood; (2) potential hazards associated with certain processing operations; (3) HACCP strategies that may be used to control the potential hazards; and (4) other information related to food safety.
FDA is not seeking public comment before implementing this edition of the guidance because we have determined that it is not feasible or appropriate in accordance with 21 CFR 10.115(g)(2). We revise this guidance relatively frequently to keep it up-to-date. When revising each edition, we consider both any formal comments received on the previous edition and informal feedback obtained from our HACCP inspections. Thus, each edition is effectively a “draft” for the next edition and each new addition has the benefit of significant up-to-date public comment.
The guidance represents the agency's current thinking on the potential hazards that are associated with various seafood species and certain processing operations, and how their occurrence can be avoided with HACCP controls when they are reasonably likely to occur, as required under parts 123 and 1240 (pertaining to the safe and sanitary processing of fish and fishery products). It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Copies of this guidance for industry are available on the Internet at http://vm.cfsan.fda.gov/~dms/guidance.html.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry (
Submit written or electronic comments on the draft guidance by September 28, 2001, to ensure their adequate consideration in preparation of the final document. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the draft guidance to the Communications Staff (HFV-12), Center for Veterinary Medicine (CVM), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit written comments on the draft guidance to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to http://www.fda.gov/dockets/ecomments. Comments should be identified with the full title of the draft guidance and the docket number found in brackets in the heading of this document.
Louis T. Mulligan, Center for Veterinary Medicine (HFV-153), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6984, e-mail: lmulliga@cvm.fda.gov.
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote the international harmonization of regulatory requirements. FDA has participated in efforts to enhance harmonization and has expressed its commitment to seek scientifically based harmonized technical procedures for the development of pharmaceutical products. One of the goals of
FDA has actively participated in the ICH for several years to develop harmonized technical requirements for the approval of human pharmaceutical and biological products among the European Union, Japan, and the United States. The VICH is a parallel initiative for veterinary medicinal products. The VICH is concerned with developing harmonized technical requirements for the approval of veterinary medicinal products in the European Union, Japan, and the United States, and includes input from both regulatory and industry representatives.
The VICH Steering Committee is composed of member representatives from the European Commission, European Medicines Evaluation Agency, European Federation of Animal Health; Committee on Veterinary Medicinal Products, FDA, the U.S. Department of Agriculture, the Animal Health Institute, the Japanese Veterinary Pharmaceutical Association, the Japanese Association of Veterinary Biologics, and the Japanese Ministry of Agriculture, Forestry and Fisheries.
Two observers are eligible to participate in the VICH Steering Committee: One representative from the Government of Australia/New Zealand and one representative from the industry in Australia/ New Zealand. The VICH Secretariat, which coordinates the preparation of documentation, is provided by the Confédération Mondiale de L’Industrie de la Santé Animale (COMISA). A COMISA representative also participates in the VICH Steering Committee meetings.
The VICH Steering Committee held a meeting on June 28, 2001, and agreed that the draft guidance document entitled “Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: Carcinogenicity Testing” (VICH GL28) should be made available for public comment. This guidance is one of a series of VICH guidances developed to facilitate the mutual acceptance of safety data necessary for the establishment of acceptable daily intakes for veterinary drug residues in human food by the relevant regulatory authorities. The guidance on the overall strategy for the evaluation of veterinary drug residues in human food (“VICH Guidance on General Testing Approach”) will be made available at a later time.
VICH developed this draft guidance after consideration of the existing ICH guidances for pharmaceuticals for human use entitled “Final Guideline on the Need for Long-Term Rodent Carcinogenicity Studies of Pharmaceuticals” and “Testing for Carcinogenicity of Pharmaceuticals,” which published in the
FDA and the VICH Safety Working Group will consider comments about the draft guidance document. Ultimately, FDA intends to adopt the VICH Steering Committee’s final guidance and publish it as future guidance. (Information collection is covered under OMB No. 0910-0117. Information collection also could be covered by OMB No. 0910-0032.)
This draft document, developed under the VICH process, has been revised to conform to FDA’s good guidance practices regulation (21 CFR 10.115). For example, the document has been designated “guidance” rather than “guideline.” Because guidance documents are not binding, unless specifically supported by statute or regulation, mandatory words such as “must,” “shall,” and “will ” in the original VICH documents have been substituted with “should.” Similarly, words such as “require” or “requirement” have been replaced by “recommendation” or “recommended” as appropriate to the context.
The draft guidance represents the agency’s current thinking on carcinogenicity testing for veterinary drug residues in human food. This guidance does not create or confer any rights for or on any person and will not operate to bind FDA or the public. An alternative method may be used as long as it satisfies the requirements of applicable statutes and regulations.
This draft guidance document is being distributed for comment purposes only and is not intended for implementation at this time. Interested persons may submit written or electronic comments regarding this draft guidance document. Written or electronic comments should be submitted to the Dockets Management Branch (address above). Submit written or electronic comments by September 28, 2001, to ensure adequate consideration in preparation of the final guidance. Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. A copy of the draft guidance and received comments are available for public examination in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Electronic comments may be submitted electronically on the Internet at http://www.fda.gov/dockets/ecomments. Once on this Internet site, select “01D-0357 Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: Carcinogenicity Testing (VICH GL28)” and follow the directions.
Copies of the draft guidance entitled “Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: Carcinogenicity Testing” (VICH GL28) may be obtained on the Internet from the CVM home page at http://www.fda.gov/cvm.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comments.
The collection of information listed below has been submitted to the Office of Management and Budget (OMB) for renewal under the provisions of the Paperwork Reduction Act. Copies of the specific information collection requirements, related forms, and explanatory material may be obtained by contacting the Service Information
Consideration will be given to all comments received on or before September 27, 2001. OMB has up to 60 days to approve or disapprove information collection but may respond after 30 days. Therefore, to ensure maximum consideration OMB should receive public comments by September 27, 2001.
To request a copy of the information collection request, explanatory information and related forms, contact Rebecca A. Mullin at (703) 358-2287, or electronically to rmullin@fws.gov.
Comments and suggestions on the requirement should be sent directly to the Office of Information and Regulatory Affairs; Office of Management and Budget; Attention: Interior Desk Officer, Washington, DC 20503; and a copy of the comments should be sent to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, ms 224-ARLSQ, 1849 C Street, NW., Washington, DC 20204.
The Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). The U.S. Fish and Wildlife Service (Service) has submitted a request to OMB to renew its approval of the collection of information for the Migratory Bird Harvest Surveys. The Service is requesting a 3-year term of approval for this information collection activity. A previous 60-day notice on this information collection requirement was published in the April 12, 2001 (66 FR 18973)
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 number for this collection of information is listed in 5 CFR 1320.8(d) and 16 U.S.C. 742d, which is 1018-0015.
The Migratory Bird Treaty Act (16 U.S.C. 703-711) and Fish and Wildlife Act of 1956 (16 U.S.C. 742d) designate the Department of the Interior as the key agency responsible for the wise management of migratory bird populations frequenting the United States and for the setting of hunting regulations that allow appropriate harvests that are within the guidelines that will allow for those populations' well being. These responsibilities dictate the gathering of accurate data on various characteristics of migratory bird harvest of a geographic and temporal nature. Knowledge attained by determining harvests and harvest rates of migratory game birds is used to regulate populations (by promulgating hunting regulations) and to encourage hunting opportunity, especially where crop depredations are chronic and/or lightly harvested populations occur. Based on information from harvest surveys, hunting regulations can be adjusted as needed to optimize harvests at levels that provide a maximum of hunting recreation while keeping populations at desired levels.
This information collection approval request combines three sets of surveys (the Waterfowl Hunter Survey, the Migratory Bird Hunter Survey, and the Parts Collection Survey, OMB Approval Number 1018-0015) and associated forms because they are interrelated and/or dependent upon each other.
The Waterfowl Hunter Survey, which estimates the harvest of ducks and geese, is based on Federal Duck Stamp sales. This survey asks people who purchase Federal Duck Stamps from randomly sampled Post Offices and other stamp vendors to complete and return a postcard (form 3-1823A) with their name and address. Hunters who complete and return the postcard are sent a postcard questionnaire (form 3-2056G) at the end of the hunting season, asking them to report their harvest of ducks and geese. Their responses provide estimates of the average harvest per hunter, which, combined with total Federal Duck Stamp sales, enables the Service to estimate the total harvest of ducks and geese.
The Migratory Bird Hunter Survey is based on the Migratory Bird Harvest Information Program, under which each State annually provides a list of all licensed migratory bird hunters in the State. Randomly selected migratory bird hunters are sent either a waterfowl questionnaire (form 3-2056J), a dove and band-tailed pigeon questionnaire (form 3-2056K), a woodcock questionnaire (form 3-2056L), or a snipe, rail, gallinule, and coot questionnaire (form 3-2056M) and are asked to report their harvest of those species. The resulting estimates of harvest per hunter are combined with the complete list of migratory bird hunters to provide estimates of the total harvest of those species. This survey will replace the Waterfowl Hunter Survey after it has been fully implemented in all States and comparisons of results with Waterfowl Hunter Survey results have been completed.
The Parts Collection Survey estimates the species, sex, and age composition of the harvest, and the geographic and temporal distribution of the harvest. Randomly selected successful hunters who responded to the Waterfowl Hunter Survey or the Migratory Bird Hunter Survey the previous year are asked to complete and return a postcard (forms 3-165A and C) if they are willing to participate in the Parts Collection Survey. Respondents are provided postage-paid envelopes before the hunting season and asked to send in a wing or the tail feathers from each duck, goose, or coot (form 3-165) they harvest, or a wing from each woodcock, band-tailed pigeon, snipe, rail, or gallinule (form 3-165B) they harvest. The wings and tail feathers are used to identify the species, age, and sex of the harvested sample. Respondents are also asked to report on the envelope the date and location (state and county) of harvest for each bird. Results of this survey are combined with harvest estimates from the Waterfowl Hunter Survey and the Migratory Bird Hunter Survey to provide species-specific national harvest estimates.
The combined results of these surveys enable the Service to evaluate the effects of season length, season dates, and bag limits on the harvest of each species, and thus help determine appropriate hunting regulations.
Pursuant to this renewal, comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and, (4) ways to minimize the burden of the collection of information on respondents. The information collections in this program will be part of a system of a record covered by the Privacy Act 95 U.S.C. 552(a)).
Fish and Wildlife Service.
Notice of receipt of permit applications.
The following applicants have applied for a scientific research permit to conduct certain activities with endangered species pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 USC 1531
The applicant requests a recovery permit amendment to remove/reduce to possession the Raven's manzanita (
The applicant requests a permit to take (capture, mark, radio-tag) Alameda whipsnakes (
The applicant requests a recovery permit to remove/reduce to possession seeds of the Malheur wire lettuce (
The applicant requests a recovery permit to take (harm, harass) salt marsh harvest mouse (
The applicant requests a recovery permit to take (conduct surveys, capture, and collect for voucher specimens) up to 20 each of unarmored threespine stickleback (
Written comments on these permit applications must be received within 30 days of the date of publication of this notice.
Written data or comments should be submitted to the Chief, Endangered Species, Ecological Services, Fish and Wildlife Service, 911 NE. 11th Avenue, Portland, Oregon 97232-4181; Fax: (503) 231-6243. Please refer to the respective permit number for each application when submitting comments. All comments received, including names and addresses, will become part of the official administrative record and may be made available to the public.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 20 days of the date of publication of this notice to the address above; telephone: (503) 231-2063. Please refer to the respective permit number for each application when requesting copies of documents.
Fish and Wildlife Service, Interior.
Notice of workshop and meeting.
This notice announces a meeting of the Aquatic Nuisance Species (ANS) Task Force Western Regional Panel and an Invasive Species Screening Process workshop. The meeting topics and workshop agenda are identified in the
The Invasive Species Screening Process workshop will be held from 8:30 a.m. to 4:30 p.m., Tuesday, September 25, 2001, and 9 a.m. to noon, Wednesday, September 26, 2001. The
The Invasive Species Screening Process workshop and the Western Regional Panel meeting will be held at the New Frontier Hotel, 3120 Las Vegas Boulevard South, Las Vegas, Nevada 89108. Phone 800-634-6966.
Tina Proctor, Aquatic Nuisance Species Coordinator, at 303-236-7862 ext 260 or by e-mail at bettina_proctor@fws.gov; or Sharon Gross, Executive Secretary, Aquatic Nuisance Species Task Force at 703-358-2308 or by e-mail at sharon_gross@fws.gov.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. I), this notice announces a meeting of the Aquatic Nuisance Species Task Force Western Regional Panel and an Invasive Species Screening Process workshop. The Task Force was established by the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701-4741). The purpose of the Invasive Species Screening Process workshop is to discuss methods for screening nonindigenous invasive species imported for sale or introduced into natural water bodies. A goal of the workshop is to bring affected parties together to discuss cooperative options to prevent the introduction of invasive species. Topics to be covered during the workshop include shipping industry perspective for the importation of invasive species; perspectives from nursery, pet, and aquaculture industries; Australia's invasive species screening program; Federal screening process under consideration by the National Invasive Species Council and the ANS Task Force; an overview of screening programs in Washington, Oregon, and Hawaii; and a panel discussion on developing an invasive species screening process. The Western Regional Panel will discuss several topics including: status of various projects including facilitation of State Aquatic Nuisance Species Management Plans, development of a rapid response plan, and development of a brochure and display; an update on aquatic nuisance species activities from individual states; a summary of the Invasive Species Screening Process workshop; a review of the new work plan and budget; NISA reauthorization; and updates on West Coast ballast water, 100th Meridian initiative, and Lewis and Clark activities.
Minutes of the meeting will be maintained by the Executive Secretary, Aquatic Nuisance Species Task Force, Suite 810, 4401 North Fairfax Drive, Arlington, Virginia 22203-1622 and will be available for public inspection during regular business hours, Monday through Friday.
Fish and Wildlife Service, Interior.
Notice of meeting.
This notice announces a meeting of the Aquatic Nuisance Species Task Force Ballast Water and Shipping Committee. The meeting topics are identified in the
The Ballast Water and Shipping Committee will meet from 9 a.m. to 3 p.m., Tuesday, September 11, 2001.
The Ballast Water and Shipping Committee meeting will be held at the National Oceanic and Atmospheric Administration complex, SSMC-II, Room 2358, 1325 East West Highway, Silver Spring, Maryland 20910.
LCDR Mary Pat McKeown, U.S. Coast Guard, Ballast Water and Shipping Committee Chairperson, at 202-267-0500 or by e-mail at mmckeown@comdt.uscg.mil; or Sharon Gross, Executive Secretary, Aquatic Nuisance Species Task Force at 703-358-2308 or by e-mail at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. I), this notice announces a meeting of the Aquatic Nuisance Species Task Force Ballast Water and Shipping Committee. The Task Force was established by the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701-4741). The Ballast Water and Shipping Committee will meet to finalize the document entitled “Recommended Ballast Water Research Priorities of the Ballast Water and Shipping Committee of the Aquatic Nuisance Species Task Force.”
Minutes of the meeting will be maintained by the Executive Secretary, Aquatic Nuisance Species Task Force, Suite 810, 4401 North Fairfax Drive, Arlington, Virginia 22203-1622, and the Chairperson of the Ballast Water and Shipping Committee at the Environmental Standards Division, Office of Operations and Environmental Standards, U.S. Coast Guard (G-MSO-4), 2100 Second Street, SW., Room 1309, Washington, DC 20593-0001. Minutes for the meeting will be available at these locations for public inspection during regular business hours, Monday through Friday.
The Bureau of Land Management (BLM) has submitted the proposed collection of information listed below to the Office of Management and Budget for approval under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
The OMB is required to respond to this request within 60 days but may respond after 30 days. For maximum consideration, your comments and suggestions on the requirement should be made within 30 days directly to the Office of Management and Budget, Interior Department Desk Officer (1004-0160), Office of Information and Regulatory Affairs, Washington, DC
1. Whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
2. The accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
3. Ways to enhance the quality, utility, and clarity of the information collected; and
4. Ways to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Bureau of Land Management (BLM) has submitted the proposed collection of information listed below to the Office of Management and Budget for approval under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
OMB is required to respond to this request within 60 days but may respond after 30 days. For maximum consideration, your comments and suggestions on the requirement should be made within 30 days directly to the Office of Management and Budget, Interior Department Desk Officer (1004-0034), Office of Information and Regulatory Affairs, Washington, DC 20503. Please provide a copy of your comments to the BLM Information Collection Clearance Officer (WO-630) 1849 C St., NW, Mail Stop 401 LS, Washington, DC 20240.
1. Whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
2. The accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
3. Ways to enhance the quality, utility, and clarity of the information collected; and
4. Ways to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB
International Trade Commission.
Correction notice for the subject investigation.
On August 22, 2001, the Commission published in the
August 22, 2001.
Vera Libeau (202-205-3176), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office
The public record for this investigation may be viewed on the Commission's electronic docket (EDIS-ON-LINE) at http://dockets.usitc.gov/eol/public.
Depart of Justice.
Notice.
This notice is published in accordance with the provisions of the Federal Advisory Committee Act and advises the public that the Attorney General of the United States has established the Commission for the Review of FBI Security Programs. The Commission will provide advice and recommendations on policy and procedural issues as they relate to the security programs of the Federal Bureau of Investigation.
The Commission meetings will be held at the U.S. Department of Justice, located at 950 Pennsylvania Avenue NW., Washington DC 20530.
George Ellard, Deputy Chief Investigative Counsel, (202) 616-1327.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App., the Attorney General of the United States has established the Commission for the Review of FBI Security Programs. The Commission will provide advice and recommendations on policy and procedural issues as they relate to the security programs of the Federal Bureau of Investigation. The Attorney General has determined that establishment of the Commission is in the public interest.
Notice of closed meeting.
September 18, 2001.
Department of Justice, 950 Pennsylvania Avenue NW., Washington, DC 20530.
This meeting will be closed to the public.
The purpose of the Commission for the Review of FBI Security Programs will be to provide advice and recommendations on policy and procedural issues as they relate to the security programs of the Federal Bureau of Investigation. The Attorney General of the United States Department of Justice (DOJ) has determined that the meetings of the Commission will be closed to the public in accordance with the United States Code, Title 5, Section 552b, due to the likelihood that sensitive national security information regarding intelligence and counter-intelligence investigative techniques and procedures will be reviewed and discussed in an open forum. The potential release of this information could seriously jeopardize the integrity of our internal security programs; ongoing intelligence and counter-intelligence investigations, and could also endanger the lives and safety of FBI Special Agents, other intelligence community personnel, and individuals supporting our intelligence personnel.
George Ellard, Deputy Chief Investigative Counsel, (202) 616-1327.
In accordance with the Departmental Policy, 28 CFR 50.7, notice is hereby given that a Partial Consent Decree in
The Department of Justice will accept written comments on the proposed Partial Consent Decree for thirty (30) days from the date of publication of this notice. Please address comments to the Acting Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington, D.C. 20044 and refer to
Copies of the proposed Partial Consent Decree may be examined at the Office of the United States Attorney, Middle District of Pennsylvania, 228 Walnut Street, Harrisburg, PA 17108, and at EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. A copy of the proposed Partial Consent Decree may be obtained by mail from the U.S. Department of Justice, Consent Decree Library, P.O. Box 7611, Washington, D.C. 20044-7611. When requesting a copy of the proposed Partial Consent Decree, please enclose a check to cover the twenty-five cents per page reproduction costs payable to the “Consent Decree Library” in the amount of $7.50, and reference
Consistent with Department policy, 28 CFR 50.7, 38 FR 19029, and 42 U.S.C. 9622(d), notice is hereby given that on August 15, 2001, a proposed Consent Decree as to Settling Defendants 2, concerning the Somersworth Landfill Site in Somersworth, New Hampshire,
Pursuant to the Consent Decree, these defendants have agreed to reimburse to the United States a total of $197,612 for past and oversight costs incurred and to be incurred by the EPA at the Somersworth Landfill Site and to pay a total of $1,119,796 in contribution to the City of Somersworth and the General Electric Company, the parties that are implementing the remedial design and remedial action at the Site pursuant to a previous Consent Decree entered in
The Department of Justice will receive for a period of thirty (30) days from the date of publication of this Notice comments relating to the proposed Consent Decree as to Settling Defendants 2. Any comments should be addressed to the Assistant Attorney General of the Environment and Natural Resources Division, U.S. Department of Justice, P.O. Box 7611, Washington, DC 20044-7611, and should reference the following case name and number:
The proposed Consent Decree as to Settling Defendants 2 may be examined at the Office of the United States Attorney, District of New Hampshire, 55 Pleasant Street, Concord, New Hampshire 03301, c/o Gretchen Witt, Esq., (603) 225-1552, or at the Region One office of the U.S. Environmental Protection Agency, One Congress St., Boston, MA 02203, c/o Robert Phocas, Esq., (617) 918-1758. A copy of the proposed Consent Decree as to Settling Defendants 2 may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, c/o Peggy Fenlon-Gore, (202) 514-5245. In requesting a copy, please enclose a check in the amount of $10.00 (25 cents per page reproduction cost) payable to the Consent Decree Library.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. §§ 16(b)-(h), that a proposed Final Judgment, Hold Separate Stipulation and Order, and Competitive Impact Statement were filed with the U.S. District Court for the District of Columbia in
Public comment is invited within 60 days of the date of this notice. Such comments, and responses thereto, will be published in the
It is hereby stipulated and agreed by and between the undersigned parties, subject to approval and entry by the Court, that:
As used in this Hold Separate Stipulation and Order:
A. “Acquirer” or “Acquirers” means the entity or entities to whom the Towanda Facility is divested.
B. “Premdor” means defendant Premdor Inc., a Canadian corporation with its headquarters in Mississauga, Ontario, Canada, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
C. “Premdor U.S.” means defendant Premdor U.S. Holdings, Inc., a Florida corporation and a wholly owned subsidiary of Premdor with its headquarters in Tampa, Florida, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
D. “IP” means defendant International Paper Company, a New York corporation with its headquarters in Stamford, Connecticut, its successors and assigns, and its subsidiaries, divisions, groups, affiliates,
E. “Masonite” means defendant Masonite Corporation, a Delaware corporation and a wholly owned subsidiary of IP with its headquarters in Chicago, Illinois, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
F. “Doorskin” means the facing components used in the manufacture of an interior flush door; two doorskins are required for each door—one for the front facing and one for the rear facing of the door.
G. “Molded Doorskin” means a hardboard doorskin made from a fibrous mat that has been molded under extreme pressure and at a high temperature into a raised panel design.
H. “Proprietary Premdor Product” means any product manufactured by Masonite in which Premodor has an ownership interest and which Masonite has agreed in writing not to sell to anyone other than Premdor.
I. “Towanda Facility” means Masonite's Molded Doorskin production facility located in Towanda, Pennsylvania including:
(1) All tangible assets that comprise the Towanda Facility, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, components, parts, designs and other tangible property or assets used at the Towanda Facility (provided, however, that all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, components, parts, designs and other tangible property or assets used exclusively in the production of any Proprietary Premdor Product are excluded from the provisions of this subparagraph); all licenses, permits and authorizations issued by any governmental organization relating to the Towanda Facility; all contracts, teaming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings relating to the Towanda Facility (provided, however, that any contracts, teaming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings between Masonite and/or IP and Premdor and/or Premdor U.S. are excluded from this subparagraph); all lists, contracts, accounts, and credit records of customers (provided, however, that any contracts, accounts, and credit records relating exclusively to Premdor and/or Premdor U.S. are excluded from this subparagraph); all repair, performance, and Towanda Facility records and all other records relating to the Towanda Facility; and
(2) Any and all intangible assets used in the development, production, servicing and sale of Molded Doorskins at the Towanda Facility, including, but not limited to: (a) Subject to the right of Premdor and Premdor U.S., for 180 days from the date of the consummation of the divestiture pursuant to Section IV or VI of the proposed Final Judgment, to use up any Premdor co-branded packaging or promotional material, exclusive use of the CraftMaster, Canterbury, Carmelle, Carolina, Carrera, Caspian, Castille, Classique, Clermont, Colonist, Harvest, Canyon, Corinth, Coventry, Cremona, Hakuju, Maletero, Mesa, Morning Sun, Natural Trugrain Harvest, and Trugrain Natural brand names and all other intellectual property rights used in connection with the production of Molded Doorskins at the Towanda Facility, including all blueprints and engineering drawings needed for the manufacture of dies used in the Molded Doorskin presses at the Towanda facility; (b) all information, documents and computer records, relating to the production, sales, marketing or distribution of any products sold under any of the brand names identified in section I(2)(a), including all files relating to purchasers (other than Premdor and Premdor U.S.) of Molded Doorskins or doors manufactured with Molded Doorskins; (c) with respect to all other intellectual property rights currently used or currently planned to be used in connection with the production of Molded Doorskins at both the Towanda Facility and other nondivested Molded Doorskin production facilities, a transferable license; (d) all existing licenses and sublicenses relating exclusively to the Towanda Facility; (e) a transferable sublicense, exclusive in the Acquirer(s) of the Towanda Facility, to all other existing license and sublicenses relating to the Towanda Facility; and (f) all research or market evaluations relating exclusively to the Towanda Facility or to customers and copies of all other research market evaluations or information relating to plans for, improvements or updates to, or product line extensions of Masonite's Molded Doorskin business in existence as of the date the Towanda Facility is divested. Intellectual property rights comprise, but are not limited to, patents, licenses and sublicenses, technical information, copyrights, trademarks, trade names, service marks, service names, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information provided to employees, customers, supplies, agents, or licensees, and all research data concerning historic and current research and development efforts relating to Masonite's Molded Doorskin business including, but not limited to, designs of experiments and the results of successful and unsuccessful designs and experiments. Intellectual property rights do not include rights to the “Masonite” brand name or to any Proprietary Premdor Product.
(3) The Towanda Facility does not include IP corporate documents, intellectual property owned by IP or other materials regularly maintained at IP headquarters that were not part of the Purchase Agreement.
J. “The North American Molded Products Business” means Masonite's Molded Doorskin business, including:
(1) Production facilities located in Towanda, Pennsylvania and Laurel Mississippi, and all tangible assets that comprise the Towanda Facility and the Laurel Facility, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, and components, parts, design and other tangible property or assets used at the Towanda Facility and the Laurel Facility (provided, however, that all manufacturing equipment, tooling and fixed assets, personal property, and inventory, materials, supplies, components, parts, designs and other tangible property or assets used exclusively in the production of any Property Premdor Product are excluded from the provisions of this subparagraph); all licenses, permits and authorizations issued by any governmental organization relating to the Towanda Facility and the Laurel Facility; all contracts, teaming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings relating to the Towanda Facility and the Laurel Facility (provided, however, that any contracts, terming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings between Masonite and/or IP and Premdor and/or Premdor U.S.
(2) Any and all intangible assets used in the development, production, servicing and sale of Molded Doorskins at the Towanda Facility and the Laurel Facility, including, but not limited to: (a) Subject to the right of Premdor and Premdor U.S., for 180 days from the date of the consummation of the divestiture pursuant to Section IV or VI of the proposed Final Judgment, to use up any Premdor co-branded packaging or promotional material, and CraftMaster, Canterbury, Carmelle, Carolina, Carrera, Caspian, Castille, Clermont, Colonist, Harvest, Canyon, Corinth, Coventry, Cremona, Hakuju, Maletero, Mesa, Morning Sun, Natural, Trugrain Harvest, and Trugrain Natural brand names and all other intellectual property rights used in connection with the production of Molded Doorskin at the Towanda Facility and the Laurel Facility; (b) all existing licenses and sublicenses relating exclusively to the Towanda Facility and the Laurel Facility; and (c) all research, market evaluations or information relating to plans for; improvements or updates to, or product line extensions of Masonite's Molded Doorskin business. Intellectual property rights comprise, but are not limited to, patents, licenses and sublicenses, technical information, copyrights, trademarks, trade names, service marks, service names, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, and manuals and technical information provided to employees, customers, suppliers, agents, or licenses, and all research data concerning historic and current research and development efforts relating to Masonite's Molded Doorskin business including, but not limited to, designs of experiments and the results of successful and unsuccessful designs and experiments. Intellectual property rights to not include rights to any Property Premdor Product; and,
(3) The Illinois Corporate Offices, the Research Center and the Sales and Marketing Offices of Masonite, including all information maintained at these locations, all written and electronic records and files of these locations, and all tangible and intangible property and assets located at them, with the exception of such information, records, files and property that do not concern the production, sale, marketing, or distribution of Molded Doorskin or doors manufactured with Molded Doorskins in North America.
(4) The North American Molded Products Business does not include IP corporate documents, intellectual property owned by IP or other materials regularly maintained at IP headquarters that were not part of the Purchase Agreement.
K. “Purchase Agreement” means the Purchase Agreement by and among IP, Premdor and Premdor U.S. dated as of September 30, 2000 and includes all associated schedules and any subsequent modifications to revisions of that agreement.
The proposed Final Judgment filed in this case is meant to ensure defendants' promote divestiture of the Towanda Facility for the purpose of establishing a viable competitor in the Molded Doorskin business in order to remedy the effects that the United States alleges would otherwise result from Premdor's acquisition of the Masonite business IP. This Hold Separate Stipulation and Order ensures, prior to such divestitures, that the Towanda facility and the North American Molded Products Business remain independent, economically viable, and ongoing business concerns that will remain independent and uninfluenced by Premdor's acquisition of the Masonite business of IP, and that competition is maintained during the pendency of the ordered divestitures.
The Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and venue of this action in proper in the United States District Court for the District of Columbia.
A. Each defendant, upon signing his Hold Separate Stipulation and Order, thereby stipulates that a Final Judgment in the form attached hereto as Exhibit A may be filed with and entered by the Court, upon the motion of any party or upon the Court's own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act (15 U.S.C. § 16), and without further notice to any party or other proceedings, provided that the United States has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on defendants and by filing that notice with the Court.
B. Each defendant, upon signing his Hold Separate Stipulation and Order, thereby stipulates that it shall abide by and comply with the applicable provisions of the proposed Final Judgment, pending the Judgment's entry by the Court, or until expiration of time for all appeals of any Court ruling declining entry of the proposed Final Judgment, and shall, from the date of the signing of this Stipulation by the parties, comply with all the applicable terms and provisions of the proposed Final Judgment as though the same were in full force and effect as an order of the Court.
C. Each defendant, upon signing this Hold Separate Stipulation and Order, thereby stipulates that it shall not consummate the transaction sought to be enjoined by the Complaint herein before the Court has signed this Hold Separate Stipulation and Order, and before each defendant has signed this Stipulation.
D. This Stipulation shall apply with equal force and effect to any amended proposed Final Judgment agreed upon in writing by the parties and submitted to the Court.
E. In the event (1) the United States has withdrawn its consent, as provided in Section IV(A) above, or (2) the proposed Final Judgment is not entered pursuant to this Stipulation, the time has expired for all appeals of any Court ruling declining entry of the proposed Final Judgment, and the Court has not otherwise ordered continued compliance with the terms and provisions of the proposed Final Judgment, then the parties are released from all further obligations under this Stipulation, and the making of this Stipulation shall be without prejudice to any party in this or any other proceeding.
F. Defendants represent that the divestitures ordered in the proposed Final Judgment can and will be made, and that defendants will later raise no claim of mistake, hardship or difficulty of compliance as grounds for asking the Court to modify any of the provisions contained therein.
Until the divestiture required by the proposed Final Judgment has been accomplished, and subject to the provisions of Section VI of this Order:
A. Defendants shall preserve, maintain, and operate the North American Molded Products Business as an independent, ongoing, economically viable competitive business, with management, research, design, development, production, promotions, marketing, sales and operations of such assets held entirely separate, distinct and apart from those of the defendants' other operations. Defendants Premdor and Premdor U.S. shall not coordinate the production, marketing, or terms of sale of any products with those produced by or sold by the North American Molded Products Business, except to the extent necessary to sell Molded Doorskins to Premdor or Premdor U.S. Within twenty (20) days after the entry of the Hold Separate Stipulation and Order, defendants will inform the United States of the steps defendants have taken to comply with this Hold Separate Stipulation and Order.
B. Defendants shall take all steps necessary to ensure that (1) the North American Molded Products Business will be maintained and operated as an independent, ongoing, economically viable and active competitor in the Molded Doorskin industry; (2) the management of the North American Molded Products Business facility will not be influenced by defendants; and (3) the books, records, competitively sensitive sales, marketing and pricing information, and decision-making concerning research, development, marketing, production, distribution or sales of products by or under any of the North American Molded Products Business will be kept separate and apart from the other operations of defendants.
C. Defendants shall use all reasonable efforts to maintain the research, development, sales and revenues of the products produced by or sold by the North American Molded Products Business, and shall maintain at 2001 levels all promotional, advertising, sales, technical assistance, marketing and merchandising support for the Towanda Facility.
D. Defendants shall provide sufficient working capital and lines and sources of credit to continue to maintain the North American Molded Products Business as economically viable and competitive, ongoing business, consistent with the requirements of Section V(A) and (B).
E. Defendants shall take all steps necessary to ensure that the Towanda Facility is fully maintained in operable condition at no less than its current capacity and sales, and shall maintain and adhere to normal repair and maintenance schedules for the Towanda Facility.
F. Defendants shall not, except as stated in the Purchase Agreement or as part of a divestiture approved by the United States in accordance with the terms of the proposed Final Judgment, remove, sell, lease, assign, transfer, pledge or otherwise dispose of any asset of the North American Molded Products Business, subject to the provisions of Section VI of this Order. Except as stated in the Purchase Agreement, defendants shall not remove originals or make copies of any of the information, records, files or property of the North American Molded Products Business, other than the regular course of business, and defendants shall not permit review or disclosure of such information, records, files or property to defendants Premdor or Premdor U.S., provided, however, that Premdor and Premdor U.S. may have access to such information, records, files or property to the extent necessary to comply with the provisions of the Final Judgment and this Order, to obtain and maintain financing to consummate the transactions stated in the Purchase Agreement, and to make any disclosure mandated under the securities laws of the United States or Canada. Premdor and Premdor U.S. shall provide the monitoring trustee, if any, appointed under the proposed Final Judgment timely notice identifying: (1) Which, if any, Premdor or Premdor U.S. employees have been given access to any of the information, records, files or property of the North American Molded Products Business; (2) the information, records, files or property of the North American Molded Products Business to which such employees have been given access; and (3) the reason for such access. In no event shall employees of Premodor and Premdor U.S. with direct responsibility for sales and marketing have access to any of the information, records, files or property of the North American Molded Products Business.
G. Defendants shall maintain, in accordance with sound accounting principles, separate, accurate and complete financial ledgers, books and records that report on a periodic basis, such as the last business day of every month, consistent with past practices, the assets, liabilities, expenses, revenues and income of the North American Molded Products Business.
H. Defendants shall take no action that would jeopardize, delay or implede the sale of the Towanda Facility.
I. Defendants' employees with primary responsibility for the research, design, development, promotion, distribution, sale, and operation of the North American Molded Products Business shall not be transferred or reassigned to other ares within the company except for transfer bids initiated by employees pursuant to defendants' regular, established job posting policy. Defendants shall provide the United States with ten (10) calendar days notice of such transfer.
J. Prior to consummation of their transaction, defendants shall appoint Peter Heist to oversee and to be responsible for defendants' compliance with this section. Peter Heist shall have complete managerial responsibility for the North American Molded Products Business, subject to the provisions of the proposed Final Judgment. In the event such person is unable to perform his duties, defendants shall appoint, subject to the approval of the Untied States, a replacement within ten (10) working days. Should a replacement acceptable to the Untied States not be appointed within this time period, the United States shall appoint a replacement.
K. Defendants shall take no action that would interfere with the ability of any trustee appointed pursuant to the proposed Final Judgment to monitor each defendant's compliance with the terms of the proposed Final Judgment and this Hold Separate Stipulation and Order applicable to it, or to complete the divestitures pursuant to the proposed Final Judgment to an Acquirer or Acquirers acceptable to the United States.
L. This Hold Separate Stipulation and Order shall remain in effect until consummation of the divestitures required by the proposed Final Judgment or until further order of the Court.
A. Defendants may present to the Department of Justice a plan within twenty-eight (28) days of this Order to partition from the Masonite business the Towanda Facility and any other assets of the North American Molded Products Business that are necessary to create a viable Molded Doorskin business. In the event the Department of Justice rejects the partition plan or in the event that the defendants do not submit a partition plan, defendants are ordered and directed to hold separate the North American Molded Products Business until the divestiture of the Towanda Facility is complete. Acceptance of the partition plan is in the sole discretion of the Department of Justice. If the
B. Premdor and Pemdor U.S. shall ensure to the satisfaction of the Department of Justice that the operations of the Towanda Facility shall not be disrupted.
For Plaintiff United States of America
For Defendants Premdor, Inc., and Premdor U.S. Holding Inc.
International Paper Company and Masonite Corporation
It Is So Ordered by the Court, this _____ day of _____, 2001.
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against defendants under section 7 of the Clayton Act, as amended (15 U.S.C. 18).
As used in this Final Judgment:
A. “Acquirer” or “Acquirers” means the entity or entities to whom the Towanda Facility is divested.
B. “Premdor” means defendant Premdor Inc., a Canadian corporation with its headquarters in Mississauga, Ontario, Canada, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
C. “Premdor U.S.” means defendant Premdor U.S. Holdings, Inc., a Florida corporation and a wholly owned subsidiary of Premdor with its headquarters in Tampa, Florida, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
D. “IP” means defendant International Paper Company, a New York corporation with its headquarters in Stamford, Connecticut, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
E. “Masonite” means defendant Masonite Corporation, a Delaware corporation and a wholly owned subsidiary of IP with its headquarters in Chicago, Illinois, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
F. “Doorskin” means the facing components used in the manufacture of an interior flush door; two doorskins are required for each door—one for the front facing and one for the rear facing of the door.
G. “Molded Doorskin” means a hardboard doorskin made from a fibrous mat that has been molded under extreme pressure and at a high temperature into a raised panel design.
H. “Proprietary Premdor Product” means any product manufactured by Masonite in which Premdor has an ownership interest and which Masonite has agreed in writing not to sell to anyone other than Premdor.
I. “Towanda Facility” means Masonite's Molded Doorskin production facility located in Towanda, Pennsylvania including:
(l) All tangible assets that comprise the Towanda Facility, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, components, parts, designs and other tangible property or assets used at the Towanda Facility (provided, however, that all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, components, parts, designs and other tangible property or assets used exclusively in the production of any Proprietary Premdor Product are excluded from the provisions of this subparagraph); all licenses, permits and authorizations issued by any governmental organization relating to the Towanda Facility; all contracts, teaming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings relating to the Towanda Facility (provided, however, that any contracts, teaming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings between Masonite and/or IP and Premdor and/or Premdor U.S. are excluded from this subparagraph); all lists, contracts, accounts, and credit records of customers (provided, however, that any contracts, accounts, and credit records relating exclusively to Premdor and/or Premdor U.S. are excluded from this subparagraph); all repair, performance, and Towanda Facility records and all other records relating to the Towanda Facility; and
(2) Any and all intangible assets used in the development, production, servicing and sale of Molded Doorskins at the Towanda Facility, including, but
(3) The Towanda Facility does not include IP corporate documents, intellectual property owned by IP or other materials regularly maintained at IP headquarters that were not part of the Purchase Agreement.
J. “The North American Molded Products Business” means Masonite's Molded Doorskin business, including:
(1) Production facilities located in Towanda. Pennsylvania and Laurel Mississippi, and all tangible assets that comprise the Towanda Facility and the Laurel Facility, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, components, parts, designs and other tangible property or assets used at the Towanda Facility and the Laurel Facility (provided, however, that all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, components, parts, designs and other tangible property or assets used exclusively in the production of any Proprietary Premdor Product are excluded from the provisions of this subparagraph); all licenses, permits and authorizations issued by any governmental organization relating to the Towanda Facility and the Laurel Facility; all contracts, teaming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings relating to the Towanda Facility and the Laurel Facility (provided, however, that any contracts, teaming arrangements, agreements (including supply agreements), leases, commitments, certifications, and understandings between Masonite and/or IP and Premdor and/or Premdor U.S. are excluded from this subparagraph); all lists, contracts, accounts, and credit records of customers (provided, however, that any contracts, accounts, and credit records relating exclusively to Premdor and/or Premdor U.S. are excluded from this subparagraph); all repair, performance, and Towanda Facility and Laurel Facility records and all other records relating to the Towanda Facility and the Laurel Facility;
(2) Any and all intangible assets used in the development, production, servicing and sale of Molded Doorskins at the Towanda Facility and the Laurel Facility, including, but not limited to: (a) Subject to the right of Premdor and Premdor U.S., for 180 days from the date of the consummation of the divestiture pursuant to Section IV or VI of this Final Judgment, to use up any Premdor co-branded packaging or promotional material, the CraftMaster, Canterbury, Carmelle, Carolina, Carrera, Caspian, Castille, Classique, Clermont, Colonist, Harvest, Canyon, Corinth, Coventry, Cremona, Hakuju, Maletero, Mesa, Morning Sun, Natural, Trugrain Harvest, and Trugrain Natural brand names and all other intellectual property rights used in connection with the production of Molded Doorskins at the Towanda Facility and the Laurel Facility; (b) all existing licenses and sublicenses relating exclusively to the Towanda Facility and the Laurel Facility; and (c) all research, market evaluations or information relating to plans for, improvements or updates to, or product line extensions of Masonite's Molded Doorskin business. Intellectual property rights comprise, but are not limited to, patents, licenses and sublicenses, technical information, copyrights, trademarks, trade names, service marks, service names, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information provided to employees, customers, suppliers, agents, or licensees, and all research data concerning historic and current research and development efforts relating to Masonite's Molded Doorskin business including, but not limited to, designs of experiments and the results of successful and unsuccessful designs and experiments. Intellectual property rights do not include rights to any Proprietary Premdor Product; and,
(3) The Illinois Corporate Offices, the Research Center and the Sales and Marketing Offices of Masonite, including all information maintained at these locations, all written and electronic records and files of these locations, and all tangible and intangible property and assets located at them, with the exception of such information, records, files and property that do not concern the production, sale,
(4) The North American Molded Products Business does not include IP corporate documents, intellectual property owned by IP or other materials regularly maintained at IP headquarters that were not part of the Purchase Agreement.
K. “Purchase Agreement” means the Purchase Agreement by and among IP, Premdor and Premdor U.S. dated as of September 30, 2000 and includes all associated schedules and any subsequent modifications to or revisions of that agreement.
A. This Final Judgment applies to Premdor, Premdor U.S., IP, and Masonite, as defined above, and to all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. Defendants shall require, as a condition of the sale of other disposition of all or substantially all of their assets or of lesser business units that include the Towanda Facility, that the purchaser agrees to be bound by the provisions of this Final Judgment, provided, however, that defendants need not obtain such an agreement from the Acquirer(s).
A. Defendants are ordered and directed within (a) the earlier of (1)
(1) Divest the Towanda Facility in manner consistent with this Final Judgment as a viable, ongoing business to Acquirers acceptable to the United States in its sole discretion;
(2) At the option of the Acquirer(s) enter an agreement to supply, for a maximum period of 12 months from the date of the consummation of a divestiture pursuant to Section IV or Section VI of this Final Judgment, at a price not greater than the cost of production, any reasonably necessary number of the dies used by Masonite to produce the full range of Molded Doorskins designs and sizes that Masonite has the ability to produce as of the date of the consummation of a divestiture pursuant to Section IV or Section VI of this Final Judgment.
(3) At the option of the Acquirer(s), enter into and agreement to supply, for as maximum period of 12 months from the date of the consummation of a divestiture pursuant to Section IV or Section VI of this Final Judgment, reasonable levels of transitional and manufacturing start-up support that will enable the Acquirer(s) to produce Molded Doorskins.
B. The United States, in its sole discretion, may extend the time period for the divestiture two additional periods of time, not to exceed thirty (3) calendar days each, and shall notify the Court in such circumstances. Defendants agree to use their best efforts to divest the Towanda Facility as expeditiously as possible.
C. In accomplishing the divestiture ordered by this Final Judgment, defendants promptly shall make known, by usual and customary means, the availability of the Towanda Facility. Defendants shall inform any person making inquiry regarding a possible purchase of the Towanda Facility that it is being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Towanda Facility customarily provided in a due diligence process except: (1) such information or documents subject to the attorney-client or work-product privileges, and (2) such information or documents consisting solely of information relating to purchases by Premdor and Premdor U.S. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.
D. Defendants shall provide the Acquirer(s) and the United States information relating to any IP or Masonite personnel involved in the research, design, production, operation, development, marketing, and sale of Molded Doorskins to enable the Acquirer(s) to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer(s) to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer(s) to employ any person whose primary responsibility is the research, design, production, operation, development, marketing or sale of Molded Doorskins. Defendants are prohibited from soliciting or making any offers or counteroffers of employment to any employee of the North American Molded Products Business except with respect to: (1) personnel at or with responsibility for the Laurel Facility; (2) personnel at the West Chicago research and development facility.
E. Defendants, or if the transaction contemplated in the Purchase Agreement has closed, defendant Premdor shall permit prospective Acquirers of the Towanda Facility to have reasonable access to personnel and to make inspections of the physical facilities of the Towanda Facility; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operations, or other documents and information customarily provided as part of a due diligence process (except such information or documents subject to the attorney-client or work-product privileges or consisting solely of information relating to purchases by Premdor and/or Premdor U.S.).
F. Defendants shall warrant to the Acquirer(s) of the Towanda Facility that each asset will be operational on the date of sale.
G. Defendants warrant that they have the authority to convey all intellectual property described in Section II.I under the definition of Towanda Facility free and clear of any encumbrances, contractual commitments or obligations to third parties.
H. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Towanda Facility.
I. Defendants shall not take any action that will impede or exclude their customers from buying Molded Doorskins produced by the Acquirer(s) of the Towanda Facility for two years from the date of the consummation of the divestiture pursuant to Section IV or VI of this Final Judgment.
J. Defendants shall not take any action that will impede or exclude their customers from selling doors manufactured with Molded Doorskins produced by the Acquirer(s) of the Towanda Facility for two years from the date of the consummation of the divestiture pursuant to Section IV or VI of this Final Judgment.
K. Defendants shall warrant to the Acquirer(s) of the Towanda Facility that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each assets, and that following the sale of the Towanda Facility, defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning or other permits relating to the operation of the Towanda Facility.
L. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV, or by trustee appointed pursuant to Section VI, of
(1) Shall be made to an Acquirer (or Acquirers) that, in the United Stat's sole judgment, has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the manufacture and sale of Molded Doorskins; and
(2) Shall be accomplished so as to satisfy the United States, in its sole discretion, than none of the terms of any agreement between an Acquirer (or Acquirers) and any of the defendants gives any of the defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer(s) to compete effectively.
A. Immediately upon the filing of this Final Judgment, the United States may, in its sole discretion, appoint a monitoring trustee, subject to approval by the Court.
B. The trustee shall have the power and authority to monitor defendants' compliance with the terms of this Final Judgment and the Hold Separate Stipulation and Order entered by this Court and shall have such powers as this Court deems appropriate. Subject to Section V(C) of this Final Judgment, the monitoring trustee may hire at the cost and expense of defendant Premdor any consultants, accountants, attorneys, or other persons, who shall be solely accountable to the monitoring trustee, reasonably necessary in the monitoring trustee's judgment.
C. Defendants shall not object to actions taken by the monitoring trustee in fulfillment of the monitoring trustee's responsibilities under any Order of this Court on any ground other than the monitoring trustee's malfeasance. Any such objections by defendants must be conveyed in writing to the United States and the monitoring trustee within ten (10) calendar days after the action taken by the monitoring trustee giving rise to the defendants' objection.
D. The monitoring trustee shall serve at the cost and expense of defendant Premdor, on such terms and conditions as the plaintiff approves. The compensation of the monitoring trustee and any consultants, accountants, attorneys, and other persons retained by the monitoring trustee shall be on reasonable and customary terms commensurate with the individuals experience and responsibilities.
E. The monitoring trustee shall have no responsibility or obligation for the operation of defendants' businesses.
F. Defendants shall use their best efforts to assist the monitoring trustee in monitoring defendants' compliance with their individual obligations under this Final Judgment and under the Hold Separate Stipulation and Order. The monitoring trustee and any consultants, accountants, attorneys, and other persons retained by the monitoring trustee shall have full and complete access to the personnel, books, records, and facilities of the North American Molded Products Business, subject to reasonable protection for trade secret or other confidential research, development, or commercial information or any applicable privileges. Defendants shall take no action to interfere with or to impede the monitoring trustee's accomplishment of its responsibilities.
G. After its appointment, the monitoring trustee shall file monthly reports with the United States and the Court setting forth the defendants' efforts to comply with their individual obligations under this Final Judgment and under the Hold Separate Stipulation and Order. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court.
H. The monitoring trustee shall serve until the divestiture of the Towanda Facility is finalized pursuant to either Section IV or Section VI of this Final Judgment.
A. If the Towanda Facility has not been divested within the time period specified in Section IV(A), defendants shall notify the United States of that fact in writing. If a monitoring trustee has been appointed under Section V of this Final Judgment, the monitoring trustee shall immediately assume the sole power and authority to effect the divestiture of the Towanda Facility. If a monitoring trustee has not been appointed, upon application of the United States, the Court shall appoint a trustee selected by the United States and approved by the Court to effect the divestiture of the Towanda Facility.
B. Upon the appointment of a trustee and expiration of the time specified in Section IV(A) of this Final Judgment, only the trustee shall have the right to sell the Towanda Facility. The trustee shall have the power and authority to accomplish the divestiture to an Acquirer or Acquirers acceptable to the United States at such price and on such terms as are then obtainable upon reasonable efforts by the trustee, subject to the provisions of Sections IV, VI, and VII of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section VI(C) of this Final Judgment, the trustee may hire at the cost and expense of defendant Premdor, any investment bankers, attorneys, or other agents, who shall be solely accountable to the trustee, reasonably necessary in the trustee's judgment to assist in the divestiture.
C. Defendants shall not object to a sale by the trustee on any ground other than the trustee's malfeasance. Any such objections by defendants must be conveyed in writing to the United States and the trustee within ten (10) calendar days after the trustee has provided the notice required under Section VII.
D. The trustee shall serve at the cost and expense of defendant Premdor, on such terms and conditions as the plaintiff approves, and shall account for all monies derived from the sale of the assets sold by the trustee and all costs and expenses so incurred. Upon receipt of such monies, the trustee shall place the monies in an interest bearing account. After approval by the Court of the trustee's accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money, including accrued interest, shall be paid to defendants and the trust shall then be terminated. The compensation of the trustee and any professionals and agents retained by the trustee shall be reasonable and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.
E. Defendants shall use their best efforts to assist the trustee in accomplishing the required divestiture. The trustee and any consultants, account's, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and defendants shall develop financial and other information relevant to such business as the trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information or any applicable privileges. Provided, however, that the trustee shall not make available to
F. After its appointment, the trustee shall file monthly reports with the United States and the Court setting forth the trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Towanda Facility, and shall describe in detail each contact with any such person. The trustee shall maintain fully records of all efforts made to divest the Towanda Facility.
G. If the trustee has not accomplished such divestiture within six months after its becomes responsible for selling the Towanda Facility, the trustee shall promptly file with the Court a report setting forth (1) the trustee's efforts to accomplish the required divestiture, (2) the reasons, in the trustee's judgment, why the required divestiture has not been accomplished, and (3) the trustee's recommendations. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to the plaintiff who shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the trustee's appointment by a period requested by the United States.
A. Within two (2) business days following execution of a definitive divestiture agreement, defendants or the trustee, whichever is then responsible for effecting the divestiture required herein, shall notify the United States of any proposed divestiture required by Section IV or VI of this Final Judgment. If the trustee is responsible, it shall similarly notify defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Towanda Facility, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States may request from defendants, the proposal Acquirer(s), any other third party, or the trustee if applicable additional information concerning the proposed divestiture, the proposed Acquirer(s), and any other potential Acquirer. Defendants and the trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States has been provided the additional information requested from defendants, the proposed Acquirer(s), any third party and the trustee, whichever is later, the United States shall provide written notice to defendants and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to defendants limited right to object to the sale under Section VI(C) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer(s) or upon objection by the United States, a divestiture proposed under Section IV or Section VI shall not be consummated. Upon objection by defendants under Section VI(C), a divestiture proposed under Section VI shall not be consummated unless approved by the Court.
Defendants shall not finance all or any part of any purchase made pursuant to Section IV or VI of this Final Judgment.
Until the divestiture required by this Final Judgment has been accomplished, defendants shall take all steps necessary to comply with their individual obligations under the Hold Separate Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestiture order by this Court.
A. Within twenty (20) calendar days of the filing of the Complaint in this matter, and every thirty (30) calendar days thereafter until the divestiture has been completed under Section IV or VI, defendants, or if the transaction contemplated in the Purchase Agreement has closed, defendant Premdor shall deliver to the United States an affidavit as to the fact and manner of its compliance with Section IV or VI of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Towanda Facility, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts defendants have taken to solicit buyers for the Towanda Facility, and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by defendants, including limitation on information, shall be made within fourteen (14) days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint in this matter, defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions defendants have taken and all steps defendants have implemented on an ongoing basis to comply with Section IX of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in defendants' earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.
C. Defendants shall individually keep all records of each of their individual efforts made to preserve and divest the Towanda Facility until one year after such divestiture has been completed.
A. For the purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time duly authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on
(1) Access during defendants' office hours to inspect and copy, or at plaintiff's option, to require defendants provide copies of, all books, ledgers, accounts, records and documents in the possession, custody, or control of defendants, relating to any matters contained in this Final Judgment, and
(2) To interview, either informally or on the record, defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by defendants.
B. Upon the written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, defendants shall submit written reports, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by defendants to the United States, defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, defendants mark each pertinent page of such material. “Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,” then the United States shall give defendants ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
Defendants may not reacquire any part of the Towanda Facility during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten years from the date of its entry.
Entry of this Final Judgment is in the public interest.
Dated:____, 2001
Court approval subject to procedures of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16
The United States, pursuant to the Antitrust Procedures and Penalties Act (“APPA”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
On August 3, 2001, the United States filed a Compliant alleging that the proposed acquisition of the Masonite business of International Paper Company (“IP”) by Premdor Inc. (“Premdor”) would substantially lessen competition in violation of section 7 of the Clayton Act, as amended, 15 U.S.C. 18. The Compliant alleges that Premdor and IP, through its subsidiary Masonite Corporation (“Masonite”), are two of the three largest firms involved in the production of interior molded doors. As alleged in the Complaint, the transaction will substantially lessen competition in the development, manufacture and sale of interior molded doorskins and interior molded doors in the United States, thereby harming consumers. Accordingly, the Complaint seeks among other things: (1) a judgment that the proposed acquisition would violate Section 7 of the Clayton Act; and (2) permanent injunctive relief that would prevent defendants from carrying out the acquisition or otherwise combining their businesses or assets.
At the same time the Complaint was filed, the United States also filed a proposed settlement that would permit Premdor to acquire the Masonite business, provided that Premdor divests its Towanda, Pennsylvania doorskin manufacturing facility, along with intellectual property, research capabilities and other assets needed to be a viable doorskin manufacturer. The settlement consists of proposed Final Judgment and a Hold Separate Stipulation and Order.
The proposed Final Judgment orders defendants to divest the Towanda facility to an acquirer approved by the United States. Defendants must complete the divestiture with 150 calendar days after the filing of the Complaint in this matter, or within 120 calendar days after the closing of Premdor's acquisition of the Masonite business, whichever is earlier. If defendants do not complete the divestiture within the prescribed time, then, under the terms of the proposed Final Judgment, this Court will appoint a trustee to sell the Towanda facility.
The Hold Separate Stipulation and Order and the proposed Final Judgment require defendants to preserve, maintain and continue to operate the North American operations of the Masonite business as an independent, ongoing, economically viable competitive business, with the management, sales and operations held separate from Premdor's other operations. The Hold Separate Stipulation and Order allows the defendants to submit to the United States a plan for partitioning the Towanda facility from the remainder of Masonite's North American operations. If the defendants submit a partition plan that is acceptable to the United States, then, after the transaction closes, Premdor can take control of all of Masonite's North American operations other than the Towanda facility and any other partitioned assets. The partitioned assets must continue to be held separate until they are divested to a suitable acquirer.
The United States and defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that this Court would retain jurisdiction to construe, modify or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
Premdor is a Canadian corporation with its corporate headquarters and principal place of business in Mississauga, Ontario, Canada. Premdor produces interior and exterior doors. Its line of wood doors includes molded, louvered and custom-made commercial and architectural doors. Premdor is the largest manufacturer and merchandises of interior molded doors in the world. It manufactures, merchandises and sells
Premdor U.S. a wholly owned subsidiary of Premdor, is a Florida corporation with its corporate headquarters and principal place of business in Tampa, Florida. Premdor U.S. owns Premdor's U.S. facilities involved in the manufacture and sale of doors.
IP is a New York corporation with its corporate headquarters and principal place of business in Stamford, Connecticut. Its businesses include printing paper, packaging, distribution, chemical and petroleum products and building materials. IP operates in nearly fifty countries and exports its products to more than 130 nations. In 2000, IP reported net sales of approximately $28.2 billion.
Masonite, a wholly owned subsidiary of IP, is a Delaware corporation with its corporate headquarters and principal place of business in Chicago, Illinois. Masonite is one of the world's largest manufacturers of fiberboard, which is processed into a variety of products, including molded doorskins. Masonite manufacturers interior molded doorskins in the United States at plants in Laurel, Mississippi and Towanda, Pennsylvania. Masonite sells interior molded doorskins to all of the non-vertically door manufacturers in the United States. In 2000, Masonite reported total sales of approximately $465 million, approximately half of which was generated through sales of interior molded doorskins.
On or about September 30, 2000, IP, Premdor and Premdor U.S. entered into a purchase agreement whereby Premdor, through Premdor U.S., agreed to purchase IP's Masonite business. Premdor U.S. agreed to purchase 100 percent of the shares of Masonite, International Paper Masonite Holding Company Ltd. and Pintu Acquisition Company, Inc., as well as certain other assets and intellectual property rights. The purchase price for the transaction is approximately $500 million, subject to post-closing adjustments.
As alleged in the Complaint, a doorskin is the component which makes up the front and back of the flush door; two doorskins are required for each flush door. These are several varieties of doorskins—a molded doorskin is formed from a fibrous mat that is molded into a raised panel design in a press under extreme pressure and at high temperatures. Molded doorskins are designed to provide the appearance of solid wood doors at a much lower price. A molded doorskin is the largest input cost of a molded door, comprising up to 70 percent of the cost of manufacturing a molded door. The Complaint alleges that the sale of interior molded doorskin in the United States for use in manufacturing interior molded doors is a relevant product market within the meaning of section 7 of the Clayton Act.
The Complaint also alleges that the sale of interior molded doors in the United States is a relevant product market within the meaning of section 7 of the Clayton Act. Interior molded doors are a type of flush door used primarily in residential construction and remodeling for closets, rooms, and hallways. Other types of flush doors include those made with hardboard and veneered doorskin. Both hardboard and veneered doorskins are flat, unlike a molded doorskin which has a raised panel design. The Complaint alleges that hardboard and veneered doors are not substitutes for molded doors, as they are used in different applications than molded doors. Moreover, changes in price of molded doors have, in the past, had no impact on the demand for hardboard or veneered doors.
The markets for interior molded doorskin (the “upstream market”) and for interior molded doors (the “downstream market”) are closely connected—interior molded doorskins are the primary input in the manufacture of interior molded doors. There are only two major competitors in each market, one of which is a vertically integrated firm, not to party to this action (hereinafter the “non-party firm”), that therefore competes in both markets. Masonite presently is the largest competitor in the interior molded doorskin market and is not vertically integrated into the interior molded door market. Premdor is one of two players in the interior molded doors market and is a small, but significant, participant in the interior molded doorskin market. The proposed transaction, therefore, would combine two competitors in the interior molded doorskin market and result in the combined Premdor/Masonite firm being vertically integrated into both the interior molded doorskin and interior molded door markets. In 2000, Masonite and the non-party firm manufactured the vast majority of all doorskins used to manufacture interior molded doors in the United States. Masonite sell its doorskins to non-vertically integrated door manufacturers, and Premdor is Masonite's largest purchaser of interior molded doorskins. Premdor also participates in the interior molded doorskin market through its joint venture, Fibramold. The non-party firm uses the vast majority of its interior molded doorskin production in the production of its own molded doors; the rest of its interior molded doorskin production is sold to non-vertically integrated door manufacturers. There are also a number of small doorskin manufacturers that sell interior molded doorskins in the United States, however, none of these sells even one percent of the interior molded doorskins sold in the United States.
Premdor is the world's largest producer of interior molded doors. In 2000, Premdor sold over 40 percent of all interior molded doors sold in the United States. Premdor's principal competitor in the downstream interior molded door market is the non-party firm. The approximately nine smaller, non-vertically integrated door manufacturers each sells five percent or less of the interior molded doors sold in the United States. The non-integrated door manufacturers in the United States purchase almost all of their interior molded doorskin from either Masonite or the non-party firm.
But for several impediments to coordination that result from the current structure of the upstream and downstream markets, the markets for interior molded doorskins and interior molded doors sold to U.S. consumers would be more conducive to anticompetitive coordination of output and price by the market participants.
The most significant impediment to coordination is Premdor's potential expansion in the interior molded doorskin market. Due to the substantial volume of interior molded doorskins that it uses, Premdor could become a more significant producer by expanding further into the production of doorskins. If Masonite and the non-party firm were to coordinate, their increased doorskin prices would harm Premdor, giving it an incentive to expand significantly its output of doorskins, which would disrupt the coordination between Masonite and the non-party firm.
As the Compliant alleges, In 1998, Premdor purchased a 48.5 percent equity interest in Fibramold. Following that investment, Premdor began using some of its internally produced molded doorskins in the manufacture of interior molded doors sold in the United States. Recognizing Premdor's potential to expand significantly its participation in the U.S. market for doorskin production, Masonite began negotiating lower interior molded doorskin prices for Premdor. In March 1999, Premdor, Masonite and LP signed a strategic Alliance agreement in which Masonite agreed to lower the price of interior molded doorskins sold to Premdor in exchange for Premdor's agreement,
After Masonite began lowering its interior molded doorskin prices to Premdor pursuant to the Strategic Alliance, Masonite also began lowering its prices to the other interior molded door manufacturers. Under the current market structure, Masonite has an incentive to keep the other door manufacturers competitive with Premdor to maintain a broader customer base. If Premdor were to acquire Masonite, the price-constraining effect of Premdor's potential expansion in the interior molded doorskin market would be eliminated.
In addition, Masonite acts as a significant competitive constraint in the interior molded door market. Premdor and the non-party firm have an incentive to attempt to coordinate pricing by reducing output. Coordination would reduce the output of interior molded doors, and lead to higher door prices. However, such an output reduction would also reduce the output of interior molded doorskins sold in the United States, harming Masonite. Thus, Masonite would have an incentive to disrupt such coordination through increased sales to the other non-vertically integrated door manufacturers. After the proposed transaction, a vertically integrated Premdor/Masonite combination will not have the same incentive to defeat coordination in the interior molded door market by increasing sales to the non-integrated door manufacturers since the combined company would be competing against those door manufacturers, and would benefit from an increase in the prices of interior molded doors.
The non-party firm acts as a significant competitive constraint in both the upstream and downstream markets. Documentary evidence obtained from the defendants suggests that the non-party firm, as a fully vertically integrated manufacturer, has certain cost advantages over Masonite and Premdor that it has used to lower prices to build market share. This differing cost structure among the dominant firms is an impediment to coordination. The evidence from the defendants suggests that post-acquisition, the cost structures of the two vertically integrated firms would be more closely aligned, decreasing the opportunity for the non-party firm to increase its market share profitably through lower prices, and thus increasing the non-party firm's incentive to coordinate with the combined Premdor/Masonite. In fact, Masonite recognized that the non-party firm's incentive to gain market share by lowering price would diminish if it faced a strong, integrated competitor.
Finally, the asymmetries of information available to the firms about the upstream and downstream markets impede coordination. Masonite specializes in interior molded doorskin production, whereas its most significant competitor, the non-party firm, competes in both the interior molded doorskin and interior molded door markets. The differences in vertical integration between the two firms create information asymmetries that would make it difficult for the firms to monitor and punish deviations from attempted coordination on the terms of sale of interior molded doorskins. For example, since the non-party firm uses internally most of the doorskins it produces, Masonite lacks an ability to observe a market price for the non-party firm's doorskins and the number of doorskins that it produces. Similarly, since Masonite does not sell in the downstream market, it lacks information about the non-party firm's production and pricing in the interior molded door market. Moreover, despite the Strategic Alliance between Premdor and Masonite, there are significant gaps in the information each party has about the market in which the other party participates. The proposed acquisition would eliminate much of the information uncertainty by adding Premdor's downstream market information to Masonite's upstream market information, enhancing the combined firm's ability to detect deviations by the on-party firm on any coordinated price increase
It is unlikely that the non-vertically integrated molded door manufacturers would be able to expand their output to defeat any anticompetitive coordination between the two vertically integrated firms post-acquisition. Each of these manufacturers is dependent on Masonite or the non-party firm for the majority of its molded doorskins. Since molded doorskins represent up to 70 percent of the cost of producing a molded door, post-acquisition the two vertically integrated firms could weaken their downstream rivals by raising their molded doorskin prices.
Entry into the U.S. interior molded doorskin market is unlikely to be timely, likely or sufficient to prevent the exercise of market power that the two dominant, vertically-integrated firms would be able to collectively exercise following the merger. While several foreign interior molded doorskin producers have limited sales in North America, they collectively lack the capacity, quality and reliability to disrupt a coordinated effort to restrict output of interior molded doorskins, and ultimately, doors.
Finally, any merger-specific efficiencies that may be generated by the transaction are outweighed by the likely anticompetitive effects. While vertical integration may allow the combined Premdor/Masonite to lower the cost of producing interior molded doors, Premdor and Masonite can obtain the benefits of vertical integration without also enhancing the likelihood of coordination in the relevant markets by
The proposed Final Judgment requires Premdor to divest the Towanda Facility to a purchaser, approved by the United States, that can compete effectively in the interior molded doorskin market, and thereby remedy the anticompetitive effects alleged in the Complaint Specifically, the proposed Final Judgment requires Premdor to divest the assets related to the production of molded doorskins at the Towanda Facility: including the Towanda plant; the exclusive right world-wide to the “CraftMaster” name; the exclusive right world-wide to the molded doorskin design names (i.e. Colonist, Classique, etc.); a license to all of the research and development, and other intellectual property related to the manufacture and sale of molded doorskins; the Towanda customer list; and the right to hire Masonite's sales, marketing and distribution employees, as well as the employees of the Towanda Facility and certain other employees. This will allow the purchaser of the Towanda Facility to manufacture and sell all of the designs and sizes of interior molded doorskins that Masonite currently sells in the United States. The proposed Final Judgment also gives the acquirer of the Towanda Facility the option to enter into transitional agreements for up to twelve months for the supply of dies needed to manufacture interior molded doorskins, as well as for services required to run the Towanda Facility.
Defendants must use their best efforts to divest the Towanda Facility as expeditiously as possible. The proposed Final Judgment provides that the Towanda Facility be divested in such a way as to satisfy the United States, in its sole discretion, that the acquirer can and will use the assets as part of a viable, ongoing business.
The proposed Final Judgment allows for the appointment of a trustee to monitor defendants' compliance with the terms of the proposed Final Judgment and the Hold Separate Stipulation and Order. If the defendants are unable to divest the Towanda Facility in the time allowed, the Final Judgment also allows for the appointment of a trustee to effect the divestiture. If a trustee is appointed, the proposed Final Judgment provides that defendants must cooperate fully with the trustee and defendant Premdor must pay all of the trustee's costs and expenses. Any trustee appointed to effect the divestiture will have his or her compensation structured to provide an incentive for the trustee based on the price and terms of the divestiture and the speed with which it is accomplished. After any trustee appointment becomes effective, the trustee will file monthly reports with the United States and this Court setting forth either the defendants' or the trustee's efforts, whichever is applicable, to accomplish the required divestiture.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal district court to recover three times the damages the person has suffered, as well as the costs of bringing a lawsuit and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no effect as
The parties have stipulated that the proposed Final Judgment may be entered by this Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry of the decree upon this Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
The proposed Final Judgment provides that this Court retains jurisdiction over this action, and the parties may apply to this Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against defendants. The United States is satisfied, however, that the divestiture of the Towanda Facility, and other relief contained in the proposed Final Judgment will establish, preserve and ensure a viable competitor in the relevant markets identified by the United States. Thus, the United States is convinced that the proposed Final Judgment, once implemented by the Court, will prevent Premdor's acquisition of the Masonite business of IP from having adverse competitive effects.
The APPA requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty (60) day comment period, after which the court shall determine whether entry of the proposed Final Judgment is “in the public interest.” In making that determination, the court
(1) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration or relief sought, anticipated effects of alternative remedies actually considered, and any other considerations bearing upon the adequacy of such judgment.
(2) the impact of entry of such judgment upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
In conducting this inquiry, “the Court is nowhere compelled to go to trail or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.”
Accordingly, with respect to the adequacy of the relief secured by the decree, a court may not “engate in an unrestricted evaluation of what relief would best serve the public.”
[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “
The proposed Final Judgment, therefore, should not be reviewed under a standard of whether it is certain to eliminate every anticompetitive effect of a particular practice or whether it mandates certainty of free competition in the future. Court approval of a final judgment requires a standard more flexible and less strict than the standard required for a finding of liability. A “proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is within the reaches of public interest.”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States alleges in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Dated: August 3, 2001, Washington, DC.
Respectfully submitted,
Notice is hereby given that, on July 23, 2001, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and TDC intends to file additional written notification disclosing all changes in membership.
On November 12, 1999, TDC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on March 1, 2000. A notice was published in the
Pursuant to Section 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on February 15, 2001, Cedarburg Phamaceuticals, LLC, 870 Badger Circle, Grafton, Wisconsin 53024, made application by letter to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of tetrahydrocannabinols (7370), a basic class of controlled substance listed in Schedule I.
The firm will manufacture tetrahydrocannabinols for another firm.
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: DEA Federal Register Representative (CCR), and must be filed no later than October 29, 2001.
Pension and Welfare Benefits Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
Notices were published in the
The notices of proposed exemption were issued and the exemptions are being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemptions are administratively feasible;
(b) They are in the interests of the plans and their participants and beneficiaries; and
(c) They are protective of the rights of the participants and beneficiaries of the plans.
The restrictions of sections 406(a) and 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the Sale (the Sale) by the Plan to A.J. Walston and Arthur T. High, the trustees of the Plan (the Trustees), of three parcels of improved real property (the Parcels). This exemption is conditioned upon the adherence to the material facts and representations described herein and upon the satisfaction of the following requirements:
(a) The Sale is a one-time transaction for cash;
(b) The Plan does not pay any commissions, costs or other expenses in connection with the Sale; and
(c) The Plan will receive an amount equal to the greater of:
(i) $234,000; or (ii) The current fair market value of the Property, as established by an independent, qualified, appraiser at the time of the Sale.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption published on June 28, 2001 at 66 FR 34471.
Khalif Ford of the Department, telephone (202) 219-8883 (this is not a toll-free number).
The restrictions of sections 406(a), 406(b)(1) and (b)(2) and 407(a) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply, as of December 29, 2000, to: (1) the receipt by the Plans of certain Litigation Tracking Warrants (the Warrants) pursuant to the distribution of Warrants (the Warrant Distribution) by Dime Bancorp, Inc. (Dime) to all of its common stockholders as of December 22, 2000 (the Record Date);
(A) The Plans' acquisition and holding of the Warrants resulted from an independent act of Dime as a corporate entity, and all holders of Stock, including the Plans, were treated in a like manner with respect to the Warrant Distribution (with the exception of one holder of Stock, who did not receive Warrants);
(B) With respect to Warrants allocated to the Dime 401(k) Plan and the NAMCO Plan, the Warrants were acquired solely for the accounts of participants who had directed investment of all or a portion of their account balances in Stock pursuant to Plan provisions for individually-directed investment of participant accounts;
(C) With respect to Warrants allocated to the Dime Plan and the ESOP, the authority for all decisions regarding the holding, disposition or exercise of the Warrants by such Plans will be exercised by an independent fiduciary acting on behalf of such Plans; and
(D) With respect to Warrants allocated to the Dime 401(k) Plan and the NAMCO Plan, all decisions regarding the holding, disposition or exercise of the Warrants have been, and will continue to be made, in accordance with Plan provisions for individually-directed investment of participant accounts, by the individual Plan participants whose accounts in the Plan received Warrants in connection with the Warrant Distribution, including all determinations regarding the exercise or sale of the Warrants received through the Warrant Distribution,
This exemption is effective as of December 29, 2000.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption (the Proposal) published on June 28, 2001 at 66 FR 34472.
The Department received two written comments with respect to the Proposal. One comment was submitted by a Dime Plan participant who, after receiving an explanation of the Proposal over the telephone by a representative of the Department, withdrew her objection to the Proposal.
The other comment letter was submitted by the applicants. In that letter, the applicants informed the Department that on June 25, 2001, Dime signed an agreement to merge with WM. After the closing of the Merger, Dime will cease to be a separate corporate entity, and WM will be the surviving corporate entity. After the Merger, the Warrants will therefore be exercisable, following the occurrence of their triggering event, with respect to WM stock rather than Dime Stock, in accordance with the terms of the Warrant Agreement (the Agreement). The Agreement was attached as an exhibit to Dime's Form 8-A Filing with the Securities and Exchange Commission in connection with the distribution of the Warrants. The Agreement also provides for the adjustment of the exercise price of the Warrants in the event of a corporate transaction, such as the Merger.
As a result of the anticipated Merger, the applicants requested that the granted exemption reflect this factual change by adding the information contained in footnote 2. The Department has modified the exemption accordingly.
In addition, the applicants requested some changes in language to clarify the Proposal. With respect to Transaction (1) above, the applicants note that because the effective date of the exemption is December 29, 2000, and the Warrants were first distributed as of that date, there was no “past receipt by the Plans” of the Warrants, as indicated in the language of the Proposal, and a reference to “receipt by the Plans” would be more accurate. For purposes of clarification, the Department has deleted the word “past” as it appeared in this section of the Proposal.
The applicants also wanted to correct a typographical error that appeared in footnote 2 of the Proposal at 66 FR 34472. The last word of the fourth line should read “bought,” not “brought.”
The applicants further noted that all references to “Dime” in Paragraph 3 of the Summary of Facts and Representations (the Summary) in the Proposal should actually be to “Dime Savings” and not to “Dime,” as Dime Savings, not Dime Bancorp, maintains the ongoing Goodwill Litigation discussed therein.
Finally, the applicants pointed out that in the description of the number of participants and amount of assets for the Dime 401(k) Plan in Paragraph 8 of the Summary, the statistics listed reflect the Dime 401(k) Plan prior to its merger with the NAMCO Plan on January 1, 2001. Thus, the Dime 401(k) Plan
Accordingly, based on the entire record, the Department has determined to grant the exemption as modified herein.
Gary H. Lefkowitz of the Department, telephone (202) 219-8881. (This is not a toll-free number
The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the sale of two tracts of land (the Property) by the Plan to Harold L. Gooch, Jr. and Susan M. Gooch, who are shareholders of the
(a) The sale is a one-time cash transaction;
(b) The Plan receives the current fair market value for the Property, as established by an independent qualified appraiser at the time of the sale; and
(c) the Plan pays no commissions or other expenses associated with the sale.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on June 28, 2001 at 66 FR 34483.
Ekaterina A. Uzlyan of the Department at (202) 219-8883. (This is not a toll-free number.)
Based on the facts and representations set forth in the application, the Department is granting an exemption under the authority of section 408(a) of the Act and section 4975 (c)(2) of the Code and in accordance with the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990).
The restrictions of section 406(a)(1)(A) through (D) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply to: (1) The purchase or sale by employee benefit plans (the Plans), other than Plans sponsored and maintained by the Applicants, of publicly-traded debt securities (the Debt Securities) issued by the Applicants; and (2) the extension of credit by the Plans to the Applicants in connection with the holding of the Debt Securities.
This exemption is subject to the general conditions that are set forth below in Section II.
(a) The Debt Securities are made available by the Applicants in the ordinary course of their business to Plans as well as to customers which are not Plans.
(b) The decision to invest in the Debt Securities is made by a Plan fiduciary (the Independent Plan Fiduciary) or a participant in a Plan that provides for participant-directed investments (the Plan Participant), which is independent of the Applicants.
(c) The Applicants do not have any discretionary authority or control or provide any investment advice, within the meaning of 29 CFR 2510.3-21(c), with respect to the Plan assets involved in the transactions.
(d) The Plans pay no fees or commissions to the Applicants in connection with the transactions covered by the requested exemption, other than the mark-up for a principal transaction permissible under Part II of Prohibited Transaction Class Exemption (PTCE) 75-1 (40 FR 50845, October 31, 1975).
(e) The Applicants agree to notify Plan investors in the prospectus (the Prospectus) for the Debt Securities that, at the time of acquisition, no more than 15 percent of a Plan's assets should be invested in any of the Debt Securities.
(f) The Debt Securities do not have a duration which exceeds 9 years from the date of issuance.
(g) Prior to a Plan's acquisition of any of the Debt Securities, the Applicants fully disclose, in the Prospectus, to the Independent Plan Fiduciary or Plan Participant, all of the terms and conditions of such Debt Securities, including, but not limited to, the following:
(1) A statement to the effect that the return calculated for the Debt Securities will be denominated in U.S. dollars;
(2) The specified index (the Index) or Indexes on which the rate of return on the Debt Securities is based;
(3) A numerical example, designed to be understood by the average investor, which explains the calculation of the return on the Debt Securities at maturity and reflects, among other things, (i) a hypothetical initial value and closing value of the applicable Index, and (ii) the effect of any adjustment factor on the percentage change in the applicable Index;
(4) The date on which the Debt Securities are issued;
(5) The date on which the Debt Securities will mature and the conditions of such maturity;
(6) The initial date on which the value of the Index is calculated;
(7) Any adjustment factor or other numerical methodology that would affect the rate of return, if applicable;
(8) The ending date on which interest is determined, calculated and paid;
(9) Information relating to the calculation of payments of principal and interest, including a representation to the effect that, at maturity, the beneficial owner of the Debt Securities is entitled to receive the entire principal amount, plus an amount derived directly from the growth in the Index (but in no event less than zero);
(10) All details regarding the methodology for measuring performance;
(11) The terms under which the Debt Securities may be redeemed;
(12) The exchange or market where the Debt Securities are traded or maintained; and
(13) Copies of the proposed and final exemptions relating to the exemptive relief provided herein, upon request.
(h) The terms of a Plan's investment in the Debt Securities are at least as favorable to the Plan as those available to an unrelated non-Plan investor in a comparable arm's length transaction at the time of such acquisition.
(i) In the event the Debt Securities are delisted from any nationally-recognized securities exchange, the Applicants will apply for trading through the National Association of Securities Dealers Automated Quotations System (NASDAQ), which requires that there be independent market-makers establishing a market for such securities in addition to the Applicants. If there are no independent market-makers, the exemption will no longer be considered effective.
(j) The Debt Securities are rated in one of the three highest generic rating categories by at least one nationally-recognized statistical rating service at the time of their acquisition.
(k) The rate of return for the Debt Securities is objectively determined and, following issuance, the Applicants retain no authority to affect the determination of the return for such security, other than in connection with a “market disruption event” that is described in the Prospectus for the Debt Securities.
(l) The Debt Securities are based on an Index that is—
(1) Created and maintained
(2) Created by the Applicants, but maintained by an entity that is unrelated to the Applicants,
(i) Consists either of standardized and generally-accepted Indexes or an Index comprised of publicly-traded securities that are not issued by the Applicants, are designated in advance and listed in the Prospectus for the Debt Securities (Under either circumstance, the Applicants may not unilaterally modify the composition of the Index, including the methodology comprising the rate of return.),
(ii) Meets the requirements for an Index in Rule 19b-4 under the Securities Exchange Act of 1934, and
(iii) The index value for the Index is publicly-disseminated through an independent pricing service, such as Reuters Group, PLC or Bloomberg L.P., or through a national securities exchange.
(m) The Applicants do not trade in any way intended to affect the value of the Debt Securities through holding or trading in the securities which comprise an Index.
(n) The Applicants maintain, for a period of six years, the records necessary to enable the persons described in paragraph (o) of this section to determine whether the conditions of this exemption have been met, except that—
(1) A prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of the Applicants, the records are lost or destroyed prior to the end of the six year period; and
(2) No party in interest other than the Applicants shall be subject to the civil penalty that may be assessed under section 502(i) of the Act, or to the taxes imposed by section 4975(a) and (b) of the Code, if the records are not maintained, or are not available for examination as required by paragraph (o) below.
(o)(1) Except as provided in section (o)(2) of this paragraph and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (n) are unconditionally available at their customary location during normal business hours by:
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service or the Securities and Exchange Commission;
(B) Any fiduciary of a participating Plan or any duly authorized representative of such fiduciary;
(C) Any contributing employer to any participating Plan or any duly authorized employee representative of such employer; and
(D) Any Plan Participant or beneficiary of any participating Plan, or any duly authorized representative of such Plan Participant or beneficiary.
(o)(2) None of the persons described above in subparagraphs (B)-(D) of paragraph (o)(1) are authorized to examine the trade secrets of the Applicants or commercial or financial information which is privileged or confidential.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on July 10, 2001 at 66 FR 36010.
Mr. Gary H. Lefkowitz of the Department, telephone (202) 219-8881. (This is not a toll-free number.)
The sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the proposed sale of certain improved real property (the Property) by the individual account of Warren L. Wagner (the Account) in the Plan, to Mr. Wagner, who is a disqualified person with respect to the Plan,
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on July 10, 2001 at 66 FR 36016.
Ms. Karin Weng of the Department, telephone (202) 219-8881. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) These exemptions are supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of these exemptions is subject to the express condition that the material facts and representations contained in each application accurately describes all material terms of the transaction which is the subject of the exemption.
Nuclear Regulatory Commission.
Weeks of August 27, September 3, 10, 17, 24, October 1, 2001.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the Week of August 27, 2001.
There are no meetings scheduled for the Week of September 3, 2001.
There are no meetings scheduled for the Week of September 10, 2001.
There are no meetings scheduled for the Week of September 17, 2001.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: David Louis Gamberoni (301) 415-1651.
By a vote of 4-0 on August 15, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission's rules that “Affirmation on Final Rule: Interim Storage for Greater than Class C Waste, 10 CFR Parts 30, 70, 72, and 150” be held on August 22, and on less than one week's notice to the public.
By a vote of 4-0 on August 21 and 22, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission's rules that “Affirmation of Consolidated Edison Company of New York, Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc.; Decision on Standing and Admissibility of Contentions in License Transfer Proceeding” be held on August 22, and on less than one week's notice to the public.
The NRC Commission Meeting Schedule can be found on the Internet at: http://www.nrc.gov/SECY/smj/schedule.htm
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to dkw@nrc.gov.
The Presidio Trust.
Correction to notice of public meeting.
On August 21, 2001 the Presidio Trust published notice of a public meeting of the Presidio Trust Board of Directors in the
Time: The meeting will be held from 1 p.m. to 4 p.m. on Monday, September 17, 2001.
The meeting will be held at the Officers' Club, 50 Moraga Avenue, Presidio of San Francisco.
Craig Middleton, Deputy Director for Governmental Affairs, Programs and Administration, the Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, California 94129-0052, Telephone: (415) 561-5300.
Securities and Exchange Commission (“SEC” of “Commission”).
Notice of application for an order under Section 26(c) of the Investment Company Act of 1940 (“Act”) approving the proposed substitution of securities.
Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. Applicants, Bonnie M. Howe, Esq., 100 Fillmore Street, Denver, Colorado 80206-4928.
Patrick Scott, Attorney, or Lorna MacLeod, Branch Chief, Office of Insurance Products, Division of Investment Management, at (202) 942-0670.
The following is a summary of the application. The complete application is available for a fee from the SEC's Public Reference Branch, 450 Fifth Street, N.W., Washington, D.C. 20549 (202) 942-8090).
1. JAS, a Delaware business trust, is registered under the Act as an open-end management investment company. JAS currently issues shares in fourteen investment Portfolios, including High-Yield Portfolio. Each portfolio, including High-Yield Portfolio, consists of two classes of shares. Both classes of shares of each portfolio are registered under the Securities Act of 1933 (“1933 Act”). Institutional shares are offered to insurance company separate accounts as investment vehicles for variable life insurance policies and variable annuity contracts, as well as to qualified plans. Service shares are offered to insurance company separate accounts and qualified plans that require a fee from portfolio assets to procure distribution and administrative services to contract owners and plan participants. WRL Separate Account invests in institutional shares of High-Yield Portfolio.
2. Janus Capital Corporation (“Janus Capital”) serves as investment adviser to each portfolio of JAS. The investment objective of High-Yield Portfolio is to seek to obtain high current income. Capital appreciation is a secondary objective when consistent with its primary objective.
3. WRL is a stock life insurance company and is engaged in the business of writing life insurance policies and annuity contracts. WRL is wholly-owned by First AUSA Life Insurance Company, a stock life insurance company which is wholly-owned by AEGON USA, Inc. (“AEGON USA”), which conducts most of its operations through subsidiary companies engaged in the insurance business or in providing non-insurance financial services. All of the stock of AEGON USA is indirectly owned by AEGON N.V. of the Netherlands, the securities of which are publicly trade. AEGON N.V., a holding company, conducts its business through subsidiary companies engaged primarily in the insurance business.
4. WRL Separate Account is a separate account established by WRL to support variable annuity contracts, including Janus Retirement Advantage (“JRA Contract”). The JRA Contract currently permits allocation of purchase payments and transfers of Contracts values among and between 13 sub-accounts corresponding to different portfolios of JAS (excluding High-Yield Portfolio). High-Yield Portfolio is no longer an allocation option under JRA Contract issued after May 1, 2001. WRL Separate Account is registered as a unit investment trust under the Act and interests in the WRL Separate Account are registered as securities under the 1933 Act.
5. Janus Capital states that High-Yield Portfolio has not grown to a size to allow it to operate efficiently. As of March 31, 2001, High-Yield Portfolio had net assets of approximately $1.7 million. Janus Capital believes the prospects of increasing sales and raising assets to a viable level are low. As a result of its limited assets, High-Yield Portfolio has had relatively high expenses as a percentage of net assets. Absent fee waivers and expense reimbursements from Janus Capital, the Portfolio's total expenses for the year ended December 31, 2000 were 10.38%. To maintain the Portfolio's 1.0% expense limit, Janus Capital waived 9.38% in fees and expenses in 2000. Moreover, it is difficult and inefficient for High-Yield Portfolio's portfolio manager to buy and sell small lots of securities for such a small portfolio.
6. At a meeting on March 13, 2001, the Trustees of JAS authorized closing High-Yield Portfolio to new investors, effective May 1, 2001, and authorized the officers of JAS to file an application for a substitution order with the Commission and to take such other actions as may be necessary to liquidate High-Yield Portfolio. Janus Capital contacted WRL and discussed the advisability of liquidating High-Yield Portfolio and the methods by which this could be accomplished. It was agreed that the most efficient method of liquidating High-Yield Portfolio would be to have WRL substitute shares of another fund for those of High-Yield Portfolio currently held by WRL Separate Account.
7. If the requested substitution order is granted, WRL, on behalf of WRL Separate Account, will substitute institutional shares of Flexible Income Portfolio for shares of High-Yield Portfolio. Flexible Income Portfolio is another investment portfolio of JAS. Flexible Income Portfolio's investment objective is to seek to obtain maximum total return, consistent with preservation of capital. It invests primarily in a wide variety of income-producing securities such as corporate bonds and notes, government securities and preferred stock and may own an unlimited amount of high-yield/high risk bonds. As of March 31, 2001, Flexible Income Portfolio had net assets of 287.2 million. The portfolio's total expenses for the year ended December 31, 2001, were .76%, which did not include any fee waiver or expense offset.
8. Applicants state that the JRA Contract gives WRL the right to eliminate or add sub-accounts, combine two or more sub-accounts, or substitute one or more underlying mutual funds or portfolios for others in which one or more sub-accounts are invested. Applicants assert that these contractual provisions also have been disclosed in the prospectuses or statements of additional information relating to the JRA Contract.
9. Applicants state that, as of the effective date of the substitutions, WRL will redeem shares of High-Yield Portfolio for cash. Simultaneously, WRL will use these proceeds to purchase the appropriate number of shares of Flexible Income Portfolio proposed to be substituted. The substitutions will take place at relative net asset values of the portfolios with no change in the amount of any JRA Contract owner's account values or death benefit.
10. Applicants represent that Janus Capital and WRL will pay all expenses and transaction costs of the substitutions, including legal, accounting and other fees and that none of these costs will be borne by JRA Contract owners. Applicants state that affected JRA Contract owners will not incur any fees or charges as a result of the substitutions, nor will the rights or obligations of WRL under the JRA Contract be altered in any way. Applicants also represent that the proposed substitutions will not have any adverse tax consequences to JRA Contract owners and that the proposed substitutions will not cause JRA Contract fees and charges currently being paid by existing JRA Contract owners to be greater after the proposed
11. Applicants state that the proposed substitutions will not be treated as transfers that may be made by a JRA Contract owner in any period without a transfer charge. Applicants state that WRL will not, with respect to shares substituted, exercise its right that it may have under its JRA Contract to impose additional restrictions on transfers for a period of at least 30 days following the proposed substitutions. Each JRA Contract owner will be allowed one transfer of contract value with respect to shares substituted, for a period of 30 days following the proposed substitution, without that transfer counting toward any limit on free transfers under the JRA Contract.
12. Applicants state that affected JRA Contract owners will be notified of the proposed elimination of High-Yield Portfolio. In addition, Applicants further state that WRL will send affected JRA Contract owners a prospectus supplement which informs them that WRL and other applicants have filed an application for an order allowing WRL to undertake the substitutions described in the application and that affected JRA Contract owners may elect any time prior to the closing date of the substitution to transfer their interest in the sub-account corresponding to High-Yield Portfolio to any other sub-account, without such transfer counting toward any limits on free transfers under a JRA Contract. Applicants also state that with this JRA Contract owners have already received a current prospectus relating to Flexible Income Portfolio (which was included in a combined prospectus with High-Yield Portfolio).
13. Applicants state that once the proposed substitution are completed, a confirmation will be mailed to the JRA Contract owners reflecting the transfer of the JRA Contract values from the sub-accounts investing in High-Yield Portfolio to the sub-accounts investing in the substituted Flexible Income Portfolio. Applicants state that this confirmation will be sent within five days of the completion of the substitution. Applicants also state that, following the proposed substitution, Janus Capital, as the sole remaining shareholder of High-Yield Portfolio, will approve the final liquidation of the High-Yield Portfolio.
1. Applicants request that the Commission issue an order pursuant to Section 26(c) of the Act approving the substitution by WRL of shares of Flexible Income Portfolio for shares of High-Yield Portfolio held by WRL Separate Account.
2. Section 26(c) of the Act requires the depositor of a registered unit investment trust holding the securities of a single issuer to receive Commission approval before substituting the securities held by the trust. Section 26(c) also states that the Commission shall issue an order approving such substitution if the evidence established that it is consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Applicants state that WRL has reserved the right to substitute shares of another open-end management investment company in the JRA Contract and disclosed this reserved right in the prospectuses or statements of additional information for the JRA Contract.
4. Applicants note that, Flexible Income Portfolio is a substantially larger fund that High-Yield Portfolio and that the expense of Flexible Income Portfolio are lower than those of High-Yield Portfolio, even with the current expense limitation in place for High-Yield Portfolio. Applicants state, moreover, that the current expenses limitation for High-Yield Portfolio may be terminated at each annual renewal of High-Yield Portfolio's investment advisory contract, and there is no assurance this arrangement will continue in the future.
5. Applicants also maintain that the Flexible Income Portfolio is an appropriate substitute investment vehicle with regard to JRA Contract owner interests held in High-Yield Portfolio. WRL believes that the investment objectives and policies of Flexible Income Portfolio are sufficiently similar to those of High-Yield Portfolio so as to be appropriate for substitution. Flexible Income Portfolio invests primarily in a wide variety of income-producing securities such as corporate bonds and notes, government securities and preferred stock and may own an unlimited amount of high-yield/high risk bonds. During the fiscal year ended December 31, 2000, based upon a weighted monthly average, Flexible Income Portfolio held 16% of its net assets in securities rated BB. WRL believes JRA Contract owners that have allocated values to High-Yield Portfolio will find Flexible Income Portfolio to be an attractive and highly suitable alternative.
6. Applicants maintain that the purposes, terms and conditions of the substitution are consistent with the principles and purposes of Section 26(c) and do not entail any of the abuses that Section 26(c) is designed to prevent. Applicants note that the JRA Contract provides each JRA Contract owner with the right to exercise his or her own judgment and transfer account values into other allocation options. Moreover, the JRA Contract will offer JRA Contract owners the opportunity to transfer amounts out of the sub-account corresponding to High-Yield Portfolio into any of the remaining sub-accounts without cost or other disadvantage.
Applicants submit that, for all of the reasons summarized above, the proposed substitution are consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
[to be published].
Closed meeting.
450 Fifth Street, NW., Washington, DC.
[to be published].
Additional Items.
The following items will be added to the closed meeting scheduled for Thursday, August 30, 2001, at 10 a.m.:
Commissioner Hunt, as duty officer, determined that Commission business required the above change and that no earlier notice thereof was possible.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary (202) 942-7070.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to amend NASD Rule 7010, System Services, to extend Nasdaq's transaction credit pilot program (“Program”) for an additional six months (through September 1, 2001) for Tape A and B reports. No other substantive changes are proposed to the Program at this time. The text of the proposed rule change is available at the Association and at the Commission.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to extend the Program
The Program began in 1999.
The Program works as follows. Nasdaq calculates two separate pools of revenue from which credits can be earned: one representing 40% of the gross revenues received by the NASD from the CTA for providing trade reports in NYSE-listed securities executed in the InterMarket for dissemination by CTA (Tape A), the other representing 40% of the gross revenue received from CTA for reporting Amex trades (Tape B).
Eligibility for transaction credits is based on concurrent quarterly trading activity. For example, an InterMarket participant that enters the market for Tape A or Tape B securities during a particular quarter and prints an average of 500 daily trades of Tape A securities during the time it is in the market, or that averages 500 Tape B prints during such quarter, would be eligible to receive transaction credits based on its trades during that quarter. Only those NASD members that continue to average an appropriate daily execution level are eligible for transaction credits and thus able to receive a pro-rata portion of the appropriate pool.
The current Program expired on June 30, 2001. Because the Program has helped Nasdaq maintain market share in listed securities. Nasdaq proposes to extend the current Program for an additional six months, through September 1, 2001.
Nasdaq believes the proposed rule change is consistent with Section 15A(b)(6) of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The proposed rule change has become effective pursuant to Section 19(b)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent, 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 Association. All submissions should refer to the file number SR-NASD-2001-42 and should be submitted by [insert date 21 days from the date of publication].
For the Commission, by the Division of Market Regulations, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq is proposing to add new NASD Rule 6540(b) to the NASD Rule 6500 Series, which governs the operation of the OTC Bulletin Board (“OTCBB”). The purpose of the proposed rule change is to permit alternative trading systems (“ATSs”) and electronic communication systems (“ECNs”) to participate in the OTCBB. The text of the proposed rule change is below. Proposed new language is italicized.
(a) No change.
(b)
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposed to permit ATSs and ECNs to post quotes and otherwise participate in the OTCBB. The OTCBB is a quotation service that displays quotes, last-sale prices, and volume
The OTCBB began in 1990 as a pilot program to provide transparency in the OTC equities market.
Under proposed Rule 6540(b), an ATS or ECN would be permitted to participate in the OTCBB in the same way that a market maker currently participates. That is, an ATS or ECN that wishes to post a quote in a security on the OTCBB would register the security by completing a Form 211, unless an exemption applies. The ATS or ECN would submit the Form 211 to the NASD OTC Compliance Unit prior to publication of a quote in that security on the OTCBB. Once cleared, Nasdaq Market Data Integrity would notify the ATS or ECN that it has been registered in the security and may enter a quote. If the ATS or ECN is exempt from Rule 15c2-11, the ATS or ECN would submit an alternative form indicating that it is an ATS or ECN and that it is exempt from Rule 15c2-11.
Every OTC security not currently quoted on the OTC Bulletin Board is considered “ineligible” until a Form 211 or Rule 15c2-11 Exemption Form is submitted. Under the current rules and proposed NASD Rule 6540(b), once clearance to quote the security is given, the security is granted “eligible” status. Thereafter, any other market maker that wishes to quote an “eligible” security must also submit a Form 211 or Exemption Form. An alternative method for obtaining approval to quote an “eligible” security and is exempt from Rule 15c2-11. During the “eligible” period, a frequency-of-quotation test is administered. The test must be satisfied before the security is identified as “active.” Once the security is “active,” a market maker, ATS, or ECN need not submit a Form 211 or Exemption Form before quoting in the security. To satisfy the test, the security must have been quoted on the OTCBB on at least 12 business days during the preceding 30 calendar days, with not more than four consecutive business days without quotations. Market makers, ATSs, or ECNs would be permitted to register on-line to quote in a security that has satisfied the test. As long as the security remains “active,” any market maker, ATS, or ECN would be permitted to quote the security without a Form 211 or Exemption Form submission.
Nasdaq has stated that one ATS has expressed interest in participating in the OTCBB, and Nasdaq believes that there may be additional ATSs or ECNs interested in participating in the Service. Proposed NASD Rule 6540(b) would permit such participation.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act.
Nasdaq does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments 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 proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2001-44 and should be submitted by September 18, 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”),
NASD Regulation proposes to amend Interpretive Material (“IM”) 2210-5 to extend the expiration date of IM-2210-5 and NASD Rule 2210(c)(3) from August 31, 2001 through August 31, 2003.
(a) No change.
(b) No change.
(c) No change.
In its filing with the Commission, NASD Regulation included statements concerning the purpose of and basis for its proposal and discussed any comment it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. NASD Regulation has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On February 29, 2000, the SEC approved the adoption of NASD IM-2210-5, which permits members and their associated persons to include bond fund volatility ratings in supplemental sale literature (mutual fund sales material that is accompanied or preceded by a fund prospectus).
IM-2210-5 permits the use of bond fund volatility ratings only in supplemental sales literature and only if certain conditions are met:
• The word “risk” may not be used to describe the rating.
• The rating must be the most recent available and be current to the most recent calendar quarter ended prior to use.
• The rating must be based exclusively on objective, quantifiable factors.
• The entity issuing the rating must provide detailed disclosure on its rating methodology to investors through a toll-free telephone number, a web site, or both.
• A disclosure statement containing all of the information required by the rule must accompany the rating. The statement must include such information as the name of the entity issuing the rating, the most current rating and the date it was issued, and a description of the rating in narrative form containing certain specified disclosures.
Rule 2210(c)(3) requires members to file bond mutual fund sales literature that includes or incorporates volatility ratings with the Advertising Regulation Department of NASD Regulation (“Department”) at least 10 days prior to use for Department approval. If the Department requests changes to the material, the material must be withheld from publication or circulation until the requested changes have been made or the material has been refiled and approved.
IM-2210-5 and the new Rule 2210(c)(3) were approved on an 18-month trial basis, which trial period expires on August 31, 2001, unless extended or permanently approved by NASD Regulation at or before that date.
As indicated in the SEC's order approving IM-2210-5 and Rule 2210(c)(3), NASD Regulation requested the 18-month trial period to provide an opportunity to assess whether the rule change had facilitated the dissemination of useful, understandable information to investors, and whether it had prevented the dissemination of inappropriate and misleading information.
As of July 2001, the Department had received only six filings pursuant to
Accordingly, NASD Regulation is proposing to extend the expiration date of IM-2210-5 and Rule 2210(c)(3) for an additional two years, until August 31, 2003, to allow more filings to be made. Before this period expires, the staff will evaluate IM-2210-5 and Rule 2210(c)(3) and determine whether to recommend that they be eliminated, modified, or permanently approved as is. Further, NASD Regulation is proposing to amend IM-2210-5 to clarify that upon its expiration, Rule 2210(c)(3) will also expire.
Nasdaq believes that the proposed extension is consistent with the provisions of Section 15A(b)(6) of the Act,
NASD Regulation does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
NASD Regulation has asked that the Commission accelerate the operative date. The Commission finds good cause to waive the 30-day operative waiting period, because such designation is consistent with the protection of investors and the public interest. Acceleration of the operative date will ensure that the operation of the Rule will be uninterrupted by the expiration provision currently contained in IM-2210-5. For these reasons, the Commission finds good cause to waive the 30-day operative waiting period.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Association. All submissions should refer to file number SR-NASD-2001-49 and should be submitted by September 18, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 29, 2001, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-OCC-2001-07 pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
On June 15, 2001, the Commission approved amendments to OCC's By-Laws specifying the types of markets for which OCC would clear security futures and describing the general terms on which it would clear for those markets.
These rules are intended to be as generic as possible to cover any security futures product that may be developed by the markets clearing through OCC. Nevertheless, it may be necessary in the future for OCC to amend or supplement these rules to accommodate specific products that are developed by the markets.
Amendments to the By-Laws and Rules are in the same general format that has previously been used for new products. The proposed rules will provide for clearance and settlement of nearly the full range of security futures products that can be traded under the Commodity Futures Modernization Act (“CFMA”). These include physically-settled futures on individual stocks as well as cash-settled futures on individual stocks and on narrow-based stock indices. A further rule change would be required in order for OCC to clear options on security futures.
The security futures provided for in this rule filing will have the same basic terms as futures contracts trading in the traditional futures markets under the jurisdiction of the CFTC. A futures contract is entered into at a “contract price” agreed upon between the buyer and seller in the futures market. The contract price represents the notional price or value at which the underlying stock or index will be purchased and sold at “maturity” of the contract if the contract has not been offset through an earlier closing transaction. The contracts will be marked to the daily closing price of the futures contract through “variation payments” that are passed through OCC from the buyer to the seller or vice versa depending upon the direction of the market movement. Intraday variation settlements are also provided for although it is OCC's present intention to effect intraday variation settlements only on an exception basis when market conditions or other factors make such settlements necessary or desirable. A deposit of “original” or “risk” margin will be required from both purchasers and sellers to cover the maximum anticipated variation payment that would likely be required based on the clearing member's positions. This calculation will be made based upon all of the positions in the particular account of the clearing member using OCC's TIMS system for portfolio margining.
At maturity of the contract, a “final variation payment” will be determined based on a “final settlement price.” The final settlement price will be the price or level of the underlying security at a specified point or interval in time, which could be either the closing price or a volume-weighted average price on the last day of trading of the futures contract or an opening price on the following day. In the case of cash-settled futures, all rights and obligations under the contract will be satisfied by the final variation payment. In the case of physically-settled security futures, delivery of and payment for the underlying stock will be effected pursuant to the same basic rules currently applicable to settlement of stock option exercises. The price to be paid by the purchaser is referred to as the “aggregate purchase price” and is equal to the final settlement price times the number of shares to be delivered. Effectively, delivery occurs at the current market price of the stock, but the net of the variation payments paid and received over the period that the futures contract was held puts the buyer and seller in the economic position of having purchased and sold the security at the original contract price.
Because a security future is both a “security” as defined in the Act and a “contract for sale of a commodity for future delivery” as defined in the Commodity Exchange Act (“CEA”), security futures are subject to the joint jurisdiction of the Commission and the CFTC. One result of this novel arrangement is that security futures may in certain circumstances be carried by clearing members for their customers in futures “customer segregated funds” accounts subject to the CEA and rules thereunder, and in other circumstances they may be carried in securities accounts subject to the Securities Investor Protection Act and Commission Rule 15c3-3 as well as other customer protection rules under the Act. When security futures are carried in segregated funds accounts at the member firm level, OCC has assumed that the CFTC will require that they also be carried in segregated funds accounts at the clearing level. Accordingly, OCC is adding a “customer segregated funds” account to the types of accounts that a clearing member is able to carry at OCC.
OCC also is permitting futures clearing organizations (“derivative clearing organizations” registered as such under the CEA) to carry omnibus accounts at OCC for the purpose of clearing transactions in security futures on behalf of their clearing members that are not clearing members of OCC. A futures clearing organization could establish one such account for clearing its members' proprietary transactions and a second segregated funds account for members' customer transactions.
Set forth below is a more detailed description of specific changes and additions to the By-Laws and Rules. Some changes, however, seemed sufficiently obvious in their purpose and effect so that no further explanation has been provided.
Because the various terms needed to describe security futures are used throughout the By-Laws and Rules, OCC is including all necessary new definitions in Article I of the By-Laws. Necessary terms have been adopted and defined to correspond as closely as possible to the terminology used in the existing futures markets while also being consistent with terminology in OCC's rules. Certain terms were included in SR-OCC-2001-05 and are referred to above. Others are added by this rule change, and various existing definitions are amended so that they apply to security futures as well as options. Most of these definitions are self-explanatory, but a few terms that are of particular significance are described below. Certain defined terms are discussed later in connection with the substantive provisions of the rules where they are used.
The terms “class” and “series” are amended in order to apply to futures even though such terms are not widely used, if at all, in the futures industry. Such terms are consistent with securities terminology and OCC's existing rules. As in the case of options, the term “series” is used to define a set of security futures contracts that are mutually identical and therefore fungible. The term “series marker” is used to describe a unique identifier that may be assigned to the particular market on which a series is traded. Because the series marker is considered a term of the security future, the effect of the marker is that contracts of a series bearing that unique series marker are not fungible with contracts traded on another exchange even if those contracts have otherwise identical terms. Whether or not a series of security futures will bear a series marker is a decision to be made by the market that trades the series.
The term “contracts” has been made lowercase to reflect a more generic definition. It is now used to refer to any “cleared security,” which includes security futures as well as broad-based index futures that are included in cross-margining arrangements. This broad usage is reflected primarily in the
The definitions of “nominated correspondent” and “nominating clearing member” are being deleted as this particular agency relationship is no longer used. References to these terms are deleted throughout the By-Laws and Rules.
The Interpretations and Policies following Article V, Section 1 of the By-Laws are amended to adapt those requirements to clearing members that clear security futures. Because some of those clearing members may be futures commission merchants (“FCMs”) primarily regulated as such and only notice-registered as broker-dealers under Section 15(b)(11)(A) of the Act, it is necessary to provide alternative membership requirements in certain cases. For example, in the area of experience and competence, OCC has proposed to retain some flexibility in this regard by saying that such clearing members must meet “such other non-discriminatory standards of experience and competence as the Corporation may prescribe.” In addition, interpretation .06 under Section 1 provides that OCC may give expedited review and may waive certain non-financial criteria where appropriate in order to admit affiliates of existing clearing members for the sole purpose of clearing security futures. Some clearing members do their futures business through affiliates, and OCC believes that it is appropriate to give special consideration to such affiliates to the extent that their affiliation with an existing clearing member provides access to competent and experienced personnel able to assist the affiliate if necessary to enable the affiliate to meet OCC's operational requirements.
OCC is amending Article VI, Section 3 of the By-Laws to provide an additional account, the segregated futures account, for the clearance of transactions of “futures customers,” which are defined in Article I to mean persons whose positions are carried by an FCM in a futures account required to be segregated under Section 4d of the CEA. A clearing member might carry customer security futures positions in a futures account rather than a securities account either because it is primarily regulated as a FCM and does not carry securities accounts it is a dual registrant (fully registered both as an FCM and a broker-dealer) and the clearing member, or the clearing members and its customer, choose to carry security futures in a futures account.
The segregated futures account is essentially like a combined market-maker account in that the positions of different futures customers are commingled in it, and OCC's lien extends to all positions, margin, and other assets in the account. OCC can liquidate the account to a single net debt or credit in the event of a clearing member default and can therefore margin it on a net basis as it does a combined market-marker account. Unlike the regular customers' account, which is a securities account, there is no need to hold “fully paid and excess margin securities” free of any liens because the customers's futures account at the clearing firm level is not subject to Commission Rule 15c3-3.
Provisions of Article VI, Section 3 relating to the “firm account” have been modified to provide that it may only be used for transactions of the firm itself and persons who are not customers either for purposes of the CEA and CFTC regulations or for purposes of the securities laws and regulations, principally Rule 15c3-3 and the hypothecation rules.
Sections 4 through 9 of Article VI of the By-Laws are amended to make them applicable to security futures and to eliminate certain redundancies and unnecessary material. A new paragraph (4) has been added to Section 10, which relates to the establishment of terms of cleared securities and the opening of new series, in order to provide for security futures. In addition, the provisions setting deadlines for the various markets to notify OCC of the opening of new series in any cleared security have been updated and consolidated in a new paragraph (e), which permits OCC to announce such deadlines from time to time. The advance notice that is actually currently required by OCC is generally much shorter than the deadlines specified in Section 10 as a result of improvements in efficiency that make the longer notice periods unnecessary. Sections 11 through 18 are amended to apply to security futures.
Section 19 of Article VI, which relates to shortages of underlying securities, makes parallel provisions for physically-settled security futures. It is worth noting that in the case of security futures the economic result of the futures contract is primarily realized through the stream of variation payments and that the stock is delivered against current market value at maturity of the future. Accordingly, if a shortage of underlying securities makes delivery impossible or unduly burdensome, OCC may elect simply to terminate delivery and payment obligations and let the final variation payment completely satisfy all rights and obligations under the contract. If, for some reason, the circumstances suggest that the final settlement price should be adjusted in any way to reflect that no delivery will occur, the provisions of amended Section 19 give OCC the authority to do so.
This article sets out some basic provisions for security futures, including both physically-settled and cash-settled security futures. The general rights and obligations of buyers and sellers of security futures, including the obligation to make and the right to receive variation payments, are set forth here.
Section 3 pertains to adjustments of the terms of outstanding security futures in response to certain events affecting the underlying securities that make adjustments necessary or appropriate in the interest of fairness to buyers and sellers. Section 3 sets out detailed adjustment rules for security futures while the detailed provisions for adjustment of narrow-based index futures are set forth in Section 4.
Adjustments to security futures will be necessary from time to time to reflect certain corporate events affecting the underlying stock. Such adjustments will be determined by OCC rather than by an “adjustment panel” under the provisions of existing Article VI, Section 11 of the By-Laws. However, the adjustment rules for security futures are substantially parallel to the adjustment rules for stock options, and the adjustment rules for stock options, and the adjustment rules in Section 4 for
Futures contracts are ordinarily like European-style options in the sense that there is no opportunity to “exercise” or terminate the contract prior to its expiration or maturity date (other than through closing transactions in the market). There are currently no European-style options on individual stocks, and security futures may therefore be adjusted differently than options on the same securities. For example, where a warrant or right is distributed that expires before the maturity date of a security future or expiration date of a stock option, the security future may not be adjusted to reflect that distribution whereas an American-style option on the same security ordinarily would be adjusted.
Where the adjustment rules call for adjustment in the exercise price of an option, the corresponding adjustment rules for futures contracts call for a one-time-only adjustment in the last settlement price established before the adjustment is effective for use in determining the correct daily variation payment for the adjusted contracts. Cash-settled security futures ordinarily will be adjusted in accordance with the same rules as physically-settled security futures and options. Where physically-settled contracts are adjusted by adjusting the underlying to include distributed property, the appropriate adjustment to the cash-settled contract could be different if there is no public market in which the distributed property will be traded for purposes of establishing market values thereafter.
Article XII, Section 5, which anticipates situations in which a market price for an underlying stock or a current value of an underlying index might be unavailable or inaccurate, is essentially parallel to the provisions of Article XVII, Section, 4 which applies to index options. The rule applies not only to narrow-based index futures but also to cash-settled and physically-settled security futures. The reason for this is that security futures, unlike stock options, require a determination of “final settlement price” at maturity. Whereas settlement of an exercised stock option is effected by delivery of the stock against the exercise price of the option, settlement at maturity of a security futures involves a final variation payment based on the final settlement price, which is also the price against which the underlying stock is delivered if the future is physically-settled.
Section 6 of Article XII provides that the final settlement price for any security future at maturity is determined by a method approved by the market listing the security future. It could be based on a price or level of the underlying interest at a point in time, such as a closing value or opening value for a stock or index on the maturity date or the following business day, or it could be based on an average of prices, such as the volume-weighted average price for an underlying stock on the maturity date.
Financial requirements are substantially the same for all clearing members, whether or not they clear transactions in security futures. However, because OCC will admit clearing members that are merely notice registered as broker-dealers under Section 15(b)(11)(A) of the Act and are primarily regulated as FCMs under the CEA and the rules of the CFTC, OCC financial requirements in Rule 301 that are based on Commission financial requirements are being supplemented to provide appropriate references to corresponding CFTC requirements. It will be OCC's policy as nearly as practicable to provide substantively identical requirements for all clearing members whether their primary regulator is the Commission or the CFTC.
Trade reporting and matching will occur for security futures in essentially the same way as for options. Rule 401 sets forth the information required to be specified in matched trade reports. As noted above, such information in the case of security futures may include, if a market so elects, a series marker that prevents contracts traded on that market from being treated as fungible (except for margin and expiration settlement purposes) with otherwise identical futures contracts traded on other markets cleared by OCC. Following the practice in the futures markets, OCC will not require that matched trade information submitted by a market identify each trade as opening or closing. OCC understands that some markets may not have systems capable of making such identifications. If a market elects to submit trade information without identification as whether the transaction is opening or closing, OCC will treat all transactions a opening transactions. Each clearing member must then submit gross position adjustment information at the end of the day to reduce its positions to reflect the actual open interest in accounts carried by the clearing member. Those procedures are consistent with current practice on many futures exchanges.
Daily variation settlements and final variation settlements will be netted by account with other daily cash settlements and settled in accordance with OCC's usual cash settlement procedures. Chapter V of OCC's rules is being renamed. “Daily Premium and Futures Variation Settlement.” The rules in Chapter V are being modified as necessary to include futures variation payments.
Rules 601 and 602 are being amended to include security futures in the calculation of the “risk margin” required for each account of a clearing member. The term “risk margin” is replacing the term “additional margin” for options as well as security futures because OCC believes it is more descriptive. Risk margin, which is sometimes known as “initial margin” in the futures markets, is the margin intended to cover one day's anticipated market movement. Security futures (whether physically-settled or cash-settled) will be margined under Rule 601, which is applicable to equity options. Narrow—based futures will be margined under Rule 602, which is applicable to index options and other non-equity options. Because OCC's margin systems already provide for risk-based margining of index futures contracts in cross-margining accounts, accordingly this rule change merely extends the margin rules to cover security futures and makes other minor changes to adapt the rule to security futures. There is no substantive change in the way in which margin will be calculated. Minor changes in other rules in Chapter VI are being made to adapt the rules for security futures.
OCC will not, at least initially, accept escrow deposits of underlying securities to collateralize positions in security futures. OCC has no present plans to include security futures in any cross-margining arrangement or to allow security futures to be pledged under Rule 614.
Because each long and short position in a futures contract represents both an asset and a liability, futures contracts should never be deemed to be “fully
The provisions of Chapter IX of OCC Rules relating to delivery and settlement in connection with exercises of stock options are being made applicable to physically-settled security futures without substantive change. As in the case of stock option exercises, delivery, and settlement of security futures will ordinarily take place through the National Securities Clearing Corporation (“NSCC”). The only significant difference is that in the case of security futures the stock will settle at the NSCC against the final settlement price, which will be essentially the current Market value of the stock as of the date when the futures contract matures. Because option exercises settle at the exercise price, which can be deep in the money, settlement of option exercises imposes risks on NSCC that have been covered in an elaborate collateral sharing arrangement known as the “NSCC Accord.” OCC anticipates that it will have a much simpler agreement with NSCC for stock settlements arising from security futures contracts. Delivery obligations arising from security futures will be netted, but they will not be netted with exercise settlements of option contracts because of the differences in the arrangement with NSCC under which the two types of transactions are settled.
The provisions in Chapter IX relating to stock settlements that cannot be completed through NSCC have been adapted to apply to settlements arising from security futures as well. Similarly, the same basic buy-in and sell-out rules have also been made applicable.
Security futures will be covered by the same clearing fund that stands behind all options cleared by OCC. Contributions of individual clearing members to the fund are based on the proportion that their average daily margin requirement bears to the average daily margin requirements of all clearing members, subject to a minimum contribution of $150,000. A special provision is being added to Rule 1001, however, to provide that an affiliate of an existing clearing member that becomes a clearing member of OCC for the purpose of clearing transactions in security futures will not be subject to the $150,000 minimum clearing fund contribution as long as the existing clearing member is in compliance with OCC clearing fund requirements and the affiliate is in compliance with its calculated clearing fund requirement. OCC believes that it would be inappropriate to require an additional $150,000 payment merely because a clearing member chooses, or may be forced because of systems or for other reasons, to clear security futures through an affiliate.
The provisions of Chapter XI of OCC's rules will apply to clearing members carrying positions in security futures in essentially the same way as they apply to clearing members carrying positions in options. Security futures will be liquidated subject to the same basic rules as options. The proposed changes in the rules are intended to apply as precisely as possible the logic of the existing rules to the liquidation of security futures. This task is complicated by the fact that security futures are quite different from options in ways that have important consequences for the structure of these rules. For example, a security future is both an asset and a liability, and accordingly the “seller” of a security future, unlike the writer of an option, may be making rather than receiving a payment. Both short positions and long positions in security futures are treated as “securities” under these rules, and hence the proceeds from positions in security futures, whether resulting from a closing transaction or from a variation payment, are treated like premiums received on the closing sale of an option. Since, as noted above, futures in the (securities) customers' account are always “unsegregated” (for purposes of Rule 611), there is no need for rules relating to the disposition of “segregated” security futures.
OCC is also taking this opportunity to clarify in Rule 1105(d) that, where a charge is appropriately made against a market maker account, it will be made against that account and only any shortfall is to be charged against the Liquidating Settlement Account. This is not a substantive change as the rules and the provisions of the market maker account agreements have always been interpreted in this way.
Following past practice for new products, OCC is adding a new chapter to its Rules relating to security futures. Rule 1301 sets forth the method for determining the amount of variation payments, including the final variation payment. It is anticipated that variation settlement will be affected only once each business day and that OCC would respond to unusually large intraday price moves by requiring additional risk margin. However, the proposed rules will give OCC the flexibility to effect an additional, intraday variation settlement if OCC deems such payments to be appropriate in unusual market conditions or to allow OCC to coordinate its actions with those of other clearing organizations.
Rule 1302 provides for delivery of stocks underlying physically-settled security futures that have reached maturity. This is accomplished primarily by cross-reference to the rules in Chapter IX. Rule 1303 provides that “associate clearinghouses” may clear transactions in security futures through OCC on an omnibus basis on behalf of their members that are not clearing members of OCC. Associate clearinghouses will be treated like any other clearing member for most purposes under the rules. OCC anticipates that one or more futures clearing organizations will become associate clearinghouses of OCC. The agreements under which these associate clearinghouses will operate have not yet been negotiated. There is precedent for such arrangements, however, in that OCC had such a relationship with the clearinghouse for the European Options Exchange (“EOE”) as a time when OCC-issued options were traded on EOE.
On August 13, 2001, OCC filed with the Commission several amendments to its proposed rule changes. OCC proposed changes to some definitions and added a new section to its By-Laws in effort to address risks related to clearing “exchange for physical” (“EFP”) transactions. OCC is reserving the right to reject such transactions in the event a clearing member that is a party to an EFP trade defaults on its
A number of provisions are being added to provide for flexibly structured security futures, including a definition of “flexibly structrued” in Article I of OCC's By-Laws. The definition of “index value determinant” is modified to cover index futures as well as index options and is therefore relocated to Article I of the By-Laws.
OCC added a provision to Article V, Section 1 of the By-Laws stating that a clearing member registered as a broker-dealer under the notice registration provisions of Section 15(b)(11) of the Act may not clear transactions or carry positions in cleared securities other than securities futures.
OCC added an interpretation following Article V, Section 1 to reflect OCC's policy to allow stock clearing members to clear physically settled stock futures and index clearing members to clear cash-settled stock futures and index futures without further conditions if they have such status on the day that OCC commences clearing security futures. OCC believes that this “grandfathering” is an appropriate accommodation to such clearing members and that additional requirements are not needed.
OCC amended the new Sectio 3(f) of Article VI, Section 3 of the By-Laws to make explicit that funds and assets held by OCC with respect to the segregated futures account will be held in accordance with applicable provisions of the CEA and regulations of the CFTC thereunder.
At the request of the CFTC, OCC also added an interpretation following Rule 301. The interpretation merely notes applicable requirements under the CEA and does not represent any substantive change.
Rule 401 is being amended to provide that an exchange transaction in security futures may be identified by a security futures market in a report of matched trades as constituting a block trade or an EFP. The purpose of identifying trades in this way is to permit the security futures markets and clearing members to comply with the applicable provisions of the CEA and CFTC regulations and the rules of the security futures markets.
Included within its amendments, OCC filed with the Commission the security futures clearing agreement it proposes to enter into with the Nasdaq LIFFE, LLC (“NLX”). The agreement is functionally similar to the Restated Participant Exchange Agreement entered into between OCC and the exchanges that clear options through OCC, but it omits requirements relating to options registration and disclosure that do not apply to security futures. OCC anticipates that it will enter into substantially similar agreements with other markets for which it clears securities futures transactions and will file these agreements with the Commission when they have been negotiated.
OCC also filed with the Commission a revised form for use by an appointing clearing member that wants to appoint or that has an appointed clearing member to act for it in effecting settlements of underlying securities. OCC also filed a revised form for use by a Canadian clearing member that wants to appoint or that has appointed the Canadian Depository for Securities, Limited to act for it in effecting settlements of underlying securities. These forms have been amended merely to make them applicable to security futures.
On August 17, 2001, OCC filed with the Commission a third amendment to its proposed rule change. The main purpose of this amendment is to allow OCC to treat block trades in the same manner as it does EFP transactions due to the similar risks that both types of transactions present to OCC. Block trades are now referenced in OCC's definition of “commencement time,” and OCC will be allowed to reject a block trade in the event a clearing member that is a party to a block trade on its obligation to meet its initial variation payment on the contract. In addition, the amendment corrected certain non-substantive marking errors that were contained in OCC's original filing.
Section 19(b)(2)(B) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization. For the reasons set forth below, the Commission believes that OCC's proposed rule change is consistent with OCC's obligations under Section 17A(b)(3)(F) which requires that the rules of a clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions.
In SR-OCC-2001-05 the Commission approved OCC's proposed rule change amending its By-Laws to allow it to clear and settle security futures effected on any national securities exchange or association registered under Section 6(a) or 15A(a) of the Act or on any “designated contract market” that is registered as a national securities exchange under Section 6(g) of the Act. The Commission's order stated that OCC would need to file a complete set of rules for clearing security futures before providing clearance and settlement services for those markets when trading in security futures begins on August 21, 2001. OCC's current proposed rule change is that complete set of rules.
The Commission believes OCC's proposed rule change is consistent with Section 17A(b)(3)(F) of the Act in that it should facilitate the prompt and accurate clearance and settlement of transactions in security futures by providing an efficient and reliable clearing facility with a comprehensive set of rules governing the clearance and settlement of these instruments.
The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of the filing because approval prior to the thirtieth day after the date of publication of the notice of the filing will permit OCC to be ready to clear security futures on August 21, 2001, the date that principal-to-principal trading of security futures can begin under the CFMA. The Commission is approving the proposed rule change prior to the expiration of the comment period in order to permit OCC to be ready to clear security futures on August 21, 2001, the date that principal-to-principal trading of security futures can begin under the CFMA.
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.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201
Department of Transportation.
Notice of order to show cause (Order 2001-8-20), Dockets OST-2000-7546 and OST-2000-7547.
The Department of Transportation is directing all interested persons to show cause why it should not issue orders finding Tourjets Airline Corporation fit, willing, and able, and awarding it certificates of public convenience and necessity to engage in interstate and foreign charter air transportation of persons, property and mail.
Persons wishing to file objections should do so no later than September 5, 2001.
Objections and answers to objections should be filed in Dockets OST-2000-7546 and OST-2000-7547 and addressed to the Department of Transportation Dockets (SVC-124, Room PL-401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Ms. Delores King, Air Carrier Fitness Division (X-56, Room 6401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-2343.
Office of the Secretary, (DOT).
Notice of Performance Review Board (PRB) appointments.
DOT publishes the names of the persons selected to serve on the various Departmental PRBs as required by 5 U.S.C. 4314(c)(4).
Mari Barr Santangelo, Departmental Director, Office of Human Resource Management, (202) 366-4088.
The persons named below have been selected to serve on one or more Departmental PRBs.
Department of Transportation, FAA.
Notice of submission deadline.
On October 1, 1999, the FAA amended the regulations governing takeoff and landing slots and slot allocation procedures at certain High Density Traffic Airports as a result of the “Open Transborder” Agreement between the Government of the United States and the Government of Canada. One element of this final rule established that the deadline for submission of requests for international slots will be published in a Federal Register notice for each scheduling season. The purpose of the amendment is for the FAA deadline for international slot requests to coincide with the International Air Transport Association deadline for submission on international requests. For the Summer 2001 Scheduling Season, the IATA submission deadline is October 14, 2001, which falls on a Sunday. Therefore, the FAA announces in this notice that the deadline for submitting requests for international slots for allocation under 14 CFR 93.217 is October 15, 2001.
Requests for international slots must be submitted no later than October 15, 2001.
Requests may be submitted by mail to Slot Administration Office, AGC-230, Office of the Chief Counsel, 800 Independence Ave., SW., Washington, DC 20591; facsimile: 202-267-7668; ARINC: DCAYAXD; email address: 9-AWA-slotadmin@faa.gov.
Lorelei Peter, Airspace and Air Traffic Law Branch, Regulations Division, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone number: 202-267-3073.
Federal Highway Administration (FHWA), DOT.
Notice.
The purpose of this notice is to publish changes in the residential moving expense and dislocation allowance schedule for the States and Territories of Alabama, American Samoa, California, Colorado, Florida, Guam, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, North Mariana Islands, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wyoming as provided for by Section 202(b) of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. The Uniform Act applies to all programs or projects undertaken by Federal agencies or with Federal financial assistance that cause the displacement of any person.
The provisions of this notice are effective September 27, 2001, or on such earlier date as an agency elects to begin operating under this schedule.
Ronald E. Fannin, Office of Real Estate Services, (202) 366-2042, email address:
An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Services at (202) 512-1661. Internet users may reach the Office of the
The Uniform Relocation Assistance and Real Property Acquistion Policies Act of 1970, as amended, 42 U.S.C. 4601-4655, established a program, which includes the payment of moving and related expenses, to assist persons who move because of Federal or federally assisted projects. The FHWA is the lead agency for implementing the provisions of the Uniform Act, and has issued government-wide implementing regulations at 49 CFR part 24. The government-wide regulations also apply to other agencies within the U.S. DOT that are covered by the Uniform Act.
The following 17 Federal departments and agencies have, by cross-reference, adopted the government-wide regulations:
Section 202(b) of the Uniform Act provides that as an alternative to being paid for actual moving and related expenses, a displaced individual or family may elect payment for moving expenses on the basis of a moving expense schedule established by the head of the lead agency. The government-wide regulations at 49 CFR 24.302 provide that the FHWA will develop, approve, maintain and update this schedule, as appropriate.
The purpose of this notice is to update the schedule published on December 12, 1996 (61 FR 65425). The schedule is being updated to reflect the increased costs associated with moving personal property and is developed from data provided by State highway agencies. This update increases the schedule amounts in the States and Territories of Alabama, American Samoa, California, Colorado, Florida, Guam, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, North Mariana Islands, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wyoming. The following exceptions and limitations apply to this schedule:
1. The expense and dislocation allowance provided to a person who is an occupant of a dormitory style room shared by two or more other unrelated persons, and whose residential move is performed by an agency at no cost to the person, is limited to $50.00. (Several States have requested that in such a case the allowance be increased to $100.00. The $50.00 limit cannot be revised or eliminated by this notice because it is established by regulation (49 CFR 24.302). However, we note that State agencies may request a waiver of the $50.00 limit on a case-by-case basis pursuant to 49 CFR 24.7.)
2. An occupant will be paid on an actual cost basis for moving his or her mobile home from the displacement site. In addition, a reasonable payment to the occupant for packing and securing property for the move may be paid at the agency's discretion.
3. An occupant who moves from a mobile home may be paid for the removal of personal property from the mobile home in accordance with the moving and dislocation allowance payment schedule.
The schedule continues to be based on the “number of rooms of furniture” owned by a displaced individual or family and was developed from data provided by State highway agencies. In the interest of fairness and accuracy, and to encourage the use of the schedule (and thereby simplify the computation and payment of moving expenses), an
42 U.S.C. 4622(b) and 4633(b); 49 CFR 1.48 and 24.302.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
The FMCSA announces that the Information Collection Request (ICR) described in this notice is being sent to the Office of Management and Budget (OMB) for review and approval. The FMCSA is requesting OMB's continued approval of the information that is required for Commercial Driver Licensing and Test Standards. The ICR describes the information collection and its expected burden. We are required to send ICRs to OMB under the Paperwork Reduction Act. The FMCSA published the required
Please submit comments by August 27, 2001.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street NW., Washington, DC 20503,
Mr. Larry Slade (202) 366-5721, Office of Safety Programs, State Programs Division (MC-ESS), Federal Motor Carrier Safety Administration, 400 Seventh Street SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 4:00 p.m., e.t., Monday through Friday, except Federal holidays.
The CMVSA requires a driver to notify both their employer and the licensing official in the driver's State of licensure of all violations of any State or local laws relating to traffic control (except parking violations). A person whose CDL is suspended, revoked, or canceled by a State, or who is disqualified from operating a CMV for any period, also must notify their employer of such actions. A person applying for employment as a CMV driver also must notify prospective employers of their employment history as a CMV driver for the previous ten years.
Under section 31309, Title 49, U.S.C. (49 U.S.C. 31309), the Secretary of Transportation must maintain an information clearinghouse and depository of information about the licensing, identification, and disqualification of CMV operators, in conjunction with 49 U.S.C. 31106. The Secretary must consult with the States in carrying out this section. States must certify that they are in compliance with the CDL program. If a State does not substantially comply with these requirements, the FMCSA may penalize the State until compliance is achieved. The information collected by the States will be used to determine whether the States are in substantial compliance with these requirements.
This request for renewed approval includes additional burdens for recordkeeping requirements under 49 CFR 384.231(d) concerning retention and updating of driver records on the Commercial Driver's License Information System (CDLIS).
(1) Notification of convictions: Estimated number of annual responses = 3,333,333 (10 million CDL drivers/3 = 3,333,333). It takes approximately 10 minutes to notify a motor carrier concerning convictions. Each driver averages approximately 1 conviction every 3 years. The notification requirement has an estimated annual burden of 555,556 burden hours. (10 million /3 ×
(2) State compliance and certification: There are 51 responses to this requirement (50 States and the District of Columbia). The compliance and certification requirement has an estimated annual burden of 1,632 hours (51 × 32 hours = 1,632 hours); and
(3) CDLIS Recordkeeping: 50 States and the District of Columbia are required to enter data into CDLIS and to perform record checks before issuing, renewing or upgrading a CDL or allowing a CDL transfer. We estimate that the average amount of time for each CDLIS inquiry is 2 minutes. The total burden hours is 63,614 for these combined activities: 21,522 hours for all States to create a new driver; 7,120 hours for all States to change the State of record; and 34,972 hours for all States to change data.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.73.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW., Washington, DC 20220.
Written comments should be received on or before September 27, 2001 to be assured of consideration.
Clearance Officer: Frank Bowers (202) 927-8930, Bureau of Alcohol, Tobacco and Firearms, Room 3200, 650 Massachusetts Avenue, NW., Washington, DC 20226.
OMB Reviewer: Alexander T. Hunt (202) 395-7860, Office of Management and Budget, Room 10202, New Executive Office Building, Washington, DC 20503.
United States Secret Service, Treasury.
Notice of systems of records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the U.S. Secret Service, Treasury, is publishing its Privacy Act systems of records.
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a) and the Office of Management and Budget (OMB), Circular No. A-130, the U.S. Secret Service has completed a review of its Privacy Act systems of records notices to identify changes that will more accurately describe these records.
Treasury/USSS .002—Chief Counsel Record System, required minor modifications to the “Records Source Categories.”
Treasury/USSS .005—Freedom of Information Request System has been incorporated into the Treasury-wide notice entitled “DO .150—Freedom of Information Act/Privacy Act Request Records.” The system of records notice was deleted from the Service's inventory of Privacy Act notices on December 3, 1999, at 64 FR 67966.
Other changes throughout the systems notice are editorial in nature and consist principally of changes to the “System Locations” and “System Manager(s) Address.”
Systems Covered by This Notice: This notice covers all systems of records adopted by the U.S. Secret Service up to June 1, 2001.
The systems notices are reprinted in their entirety following the Table of Contents.
Administrative Information System—Treasury/USSS.
(a) U.S. Secret Service (Headquarters), 950 H St. NW, Washington, DC 20223. Components of this System are geographically dispersed throughout U.S. Secret Service field offices. (See below, United States Secret Service, Appendix A, listing the addresses of Secret Service offices.) (b) U.S. Secret Service Uniformed Division, 1111 18th St., NW, Washington, DC 20223; (c) Presidential Protective Division, U.S. Secret Service, Room 10, Old Executive Office Building, 17th and Pennsylvania Ave., NW, Washington, DC 20502; (d) Vice Presidential Protective Division, U.S. Secret Service, Old Executive Office Building, Room 295, Washington, DC 20502; (e) Dignitary Protective Division, U.S. Secret Service, 950 H St., NW, Washington, DC 20223; (f) Special Services Division, U.S. Secret Service, Anacostia Naval Annex, Building 411, 245 Murray Drive, Washington, DC 20373; (g) Johnson Protective Division, U.S. Secret Service, P.O. Box 927, Stonewall, TX 78671; (h) Ford Protective Division, U.S. Secret Service, P.O. Box 955, Rancho Mirage, CA 92270-955; (i) Technical Security Division, U.S. Secret Service, 1709 New York Avenue, NW., Washington, DC 20006; (j) Carter Protective Division, U.S. Secret Service, P.O. Box 308, Plains, GA 31780; (k) Reagan Protective Division, U.S. Secret Service, 2121 Avenue of the Stars, Century City, CA 90067; (l) Bush Protective Division, U.S. Secret Service, P.O. Box 79797, Houston, Texas 77279-9797; (m) White House Security Branch, U.S. Secret Service, Old Executive Office Building, Rm. 23, Washington, D.C. 20502.
(a) Individuals who are now or were Secret Service employees; (b) Individuals, contractors, and vendors, etc., who are presently doing or previously did business with the Secret Service; (c) Claimants against the Secret Service under the Federal Tort Claims Act and the Military Personnel and Federal Employees Claims Act.
(a) Records containing information on issuance of Secret Service equipment and accountable government property; (b) Records containing procurement negotiations, contracts, agreements, etc., with the Secret Service; (c) Records containing information on past, present, and future administrative correspondence with individuals, contractors, vendors, etc., who have or plan to enter into contractual agreements with the Secret Service; (d) Records on vehicle accidents, injuries, fatalities.
Title 40 and 41 of the U.S. Code, and other rules and regulations where applicable; 5 U.S.C. 301; 44 U.S.C. 3101.
(1) Disclosure of information to the Department of Treasury, GAO, OMB, GSA, the Department of Justice and other Federal, state, and local government agencies regarding purchases, contracts, and anticipated purchases and contracts of the Secret Service; (2) To provide administrative services for the Secret Service and maintain administrative records as required by law; (3) To use in the adjudication of any claim for or against the Secret Service; (4) Disclosure to individuals, contractors, vendors, etc., for the purpose of inquiries relating to or confirmation of orders and purchases; (5) Disclosure to a student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.
Records are contained in file jackets and portions of the information are stored electronically at Headquarters.
Records may be retrieved by name and/or number.
(1) File jackets and electronic data at Headquarters are located in locked rooms which are secured by alarms and other internal security devices with guards on duty on an around the clock basis. Access is available only to employees responsible for records management and operational employees who have a need for such information, each of whom holds a top secret security clearance; (2) The file jackets in Secret Service field offices are located in locked file cabinets or in locked rooms when Secret Service employees are not on duty. Access to the system is limited to employees of the Secret Service holding top secret security clearances.
The file jackets and electronic data are retained in accordance with mandatory National Archives Records Administration (NARA), General Records Schedules 3, 4, 8, 10, 11, 13, & 23. Disposal is by burning, shredding, and/or electronic deletion.
Assistant Director, Office of Administration, U.S. Secret Service, 950 H St., NW, Suite 8250, Washington, DC 20223.
Individuals who wish to present a request as to whether this system contains records pertaining to them should address inquiries to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
Requests for information contained in this system should be addressed to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
See “Record access procedures” above.
(a) Individuals who are presently or were Secret Service employees; (b) Individuals, corporations, companies, contractors, etc., previously engaged or presently engaged in business with the Secret Service; (c) Claimants.
None.
Chief Counsel Record System—Treasury/USSS.
Office of Chief Counsel, United States Secret Service, 950 H St., NW, Washington, DC 20223.
(a) Individuals who have filed administrative claims; (b) Individuals involved in litigation against the U.S. Secret Service; (c) Individuals who have filed a petition regarding forfeiture; (d) Employees, former employees or applicants who have filed equal employment opportunity claims against the U.S. Secret Service; (e) Employees or former employees who have appealed disciplinary actions taken against them
(a) Copies of administrative claims filed against the Secret Service or employees of the U.S. Secret Service and responses thereto; (b) Any type of legal document, including but not limited to complaints, summaries, affidavits, litigation reports, motions, subpoenas and any other court filing or administrative filing or evidence; (c) Records concerning requests for information regarding the use of reproductions of obligations of the United States including bonds, checks, coins, coupons, currencies (U.S. and foreign), fractional notes, postage stamps (U.S. and foreign), postal money orders, and postmarks.
18 U.S.C. 3056; 28 U.S.C. 2672 (Federal Tort Claims Act); 18 U.S.C. 471-509.
(1) Administrative claims may be routinely sent to Department of Justice attorneys to assist them in litigation involving the Secret Service; (2) Legal records and litigation reports may be sent to Department of Justice attorneys to assist them in the preparation for litigation; (3) Records indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be referred to the appropriate Federal, state, local or foreign agency charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation or order issued pursuant thereto; (4) Disclosures to opposing counsel, a court magistrate or administrative tribunal in the course of a legal proceeding, and disclosures to opposing counsel in the course of discovery proceedings for the purpose of, enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (5) Disclosures to Federal, state or local agencies maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit; (6) Disclosures to a Federal agency in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter; (7) Disclosure to a student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.
Records are contained in file jackets.
This System is indexed chronologically for administrative claims and requests for information regarding reproductions. Access to the physical files containing litigation records is by name.
The file jackets are secured in a locked room with guards on duty on an around-the-clock basis. Access to the records is available only to employees responsible for record management and operational employees who have a need for such information, each of whom holds a top secret security clearance.
(1) Closed litigation case files are retained for a period of 5 years; (2) Administrative claims, and requests for information are disposed of at varying intervals in accordance with the records retention schedule approved by the National Archives and Records Administration. Any disposal is by shredding and/or burning.
Chief Counsel, U.S. Secret Service, 950 H St., NW, Suite 9200, Washington, DC 20223.
Individuals who wish to present a request as to whether the system contains records pertaining to them should address inquiries to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
Requests for information contained in this System should be addressed to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
See “Record access procedures” above.
(a) Administrative claims are filed by those individuals who believe that they have a claim against the U.S. Secret Service; (b) Individuals who are involved in legal proceedings against the U.S. Secret Service. All litigation reports are initiated by Office of Chief Counsel, U.S. Secret Service. Information may be received from courts, administrative bodies, other federal or state agencies and private parties or entities who have information concerning a legal matter involving the U.S. Secret Service, and (c) Requests for information regarding the use of reproductions from Secret Service field offices, the general public, and from professional organizations; other Federal agencies, and Federal, State and local courts.
None.
Criminal Investigation Information System—Treasury/USSS.
(a) United States Secret Service, (Headquarters) 950 H St., NW, Washington, DC 20223; (b) Components of this System are geographically dispersed throughout Secret Service field offices. (See United States Secret Service Appendix A listing the addresses of Secret Service field offices.)
(a) Individuals who have been or are currently the subject of a criminal investigation by the U.S. Secret Service in connection with the performance by that agency of its authorized criminal investigative functions; (b) Individuals who are payees, registered owners or endorsers of stolen or lost obligations and other securities of the United States; (c) Individuals who are witnesses, complainants, informants, suspects, defendants, fugitives, released prisoners, correspondents, organized crime figures, and victims of crimes who have been identified by the Secret
(a) Records containing information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrest, the nature and disposition of criminal charges, sentencing, confinement, release, and parole or probation status; (b) Records containing information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; (c) Records containing reports identifiable with an individual compiled at various stages of the process of enforcement of criminal laws from arrest or indictment through release from supervision; (d) Records containing investigatory material compiled for law enforcement purposes, including but not limited to, handwriting exemplars; laboratory analyses of inks and papers; handwriting analyses; petitions for the remission of forfeitures; notice of non-receipt of Treasury drafts; affidavits of forged endorsements; opinions of the examiner of questioned documents; reports or opinions from the examination of computer evidence; reports or opinions from the examination of altered cellular telephones; certificates by owners of U.S. registered securities concerning forged requests for payments or assignments; applications for relief on account of loss, theft, or destruction of U.S. Savings Bonds or checks; photographic reproductions of obligations and other securities of the United States; contraband items; claims against the United States for the proceeds of government checks and bonds; and reports necessary for the settlement of check and bond claims; names and telephone numbers of persons intercepted by electronic, mechanical, or other device under the provisions of Title 18 U.S.C., Section 2510 et.seq. compiled during the lawful course of a criminal or civil investigation.
18 U.S.C. 3056.
(1) Disclosure to Federal, state, and local government agencies foreign or domestic, having prosecutive and civil law enforcement functions for use by attorneys, magistrates, and judges, parole or probation authorities and other law enforcement authorities for the purpose of developing a criminal or civil investigation, prosecuting, sentencing, or determining the parole and probation status of criminal offenders or suspected criminal offenders; (2) Disclosure to personnel of other Federal, state and local law enforcement agencies, foreign or domestic, for the purpose of developing information on subjects involved in Secret Service criminal investigations and assisting other law enforcement agencies in the investigation and prosecution of violations of the criminal laws which those agencies are responsible for enforcing; (3) Disclosure to personnel of Federal, state, and local governmental agencies, where such disclosure is considered reasonably necessary for the purpose of furthering Secret Service efforts to investigate the activities of and apprehend criminal offenders and suspected criminal offenders; (4) Disclosure to personnel of Federal, state, and local governmental agencies, foreign and domestic, where there is a showing of reasonable necessity to obtain such information to accomplish a valid law enforcement purpose; (5) Disclosure to employees and officials of financial and commercial business firms and to private individuals of identifying information pertaining to actual or suspected criminal offenders where such disclosure is considered reasonably necessary for the purpose of furthering Secret Service efforts to investigate the activities of and apprehend criminal offenders and suspected criminal offenders; (6) Records maintained in this System indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be disclosed to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto; (7) Disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (8) Disclosures to Federal, state or local agencies maintaining civil, criminal or other pertinent information or enforcement information relevant to an agency decision concerning the hiring or retention of an employee, or the issuance of a license, grant or other benefit; (9) Disclosures to a Federal, state or local agency in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter; (10) Disclosures of information relating to criminal and civil proceedings to the news media in accordance with the guidelines contained in 28 CFR 50.2; (11) Disclosure in connection with the utilization by the Secret Service of the Northern Virginia Regional Identification System for the storage and retrieval of fingerprint information maintained by the Secret Service; (12) Disclosure to a student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.
All records comprising this system are contained in file jackets, computerized data systems, microfilm and microfiche. Portions of the indices and information contained in the records are maintained in electronic storage media located at Headquarters.
This system is indexed by name, address, vehicle license number, and/or telephone number, and is retrieved through computer search of magnetic media indices both at Headquarters and in the field offices. Additionally, subjects are retrievable from the computerized files by physical description. Access to the physical files containing records is by case number.
(1) At Headquarters, the file jackets containing the records are secured by alarms, and other internal security devices, in locked rooms with guards on duty on an around-the-clock basis.
(1) All Judicial cases, 20 years; (2) Non-judicial criminal investigative cases (except non-judicial check and bond cases), 10 years; (3) Non-judicial check claim and bond forgery cases, 5 years; (4) Administrative files of an investigatory nature, 5 years; (5) All other files and records the disposition of which is not otherwise specified, 5 years; (6) Investigations for other districts, 2 years; (7) Receipts vary with the case file to which they pertain; (8) Investigation Control Forms, varies; (9) Arrest History Forms, Indefinite; (10) Headquarters Criminal Investigative case files, 30 years; indices and microfilm copies are retained for an indefinite period; (11) Consensual and non-consensual interception indices, 10 years or when investigative use no longer exists, whichever is longer; (12) Fingerprint and photograph files, at varying intervals in accordance with record retention schedules approved by the National Archives and Records Administration. Disposal is by burning, shredding, maceration, and pulping, and/or electronic deletion.
Assistant Director, Office of Investigations, U.S. Secret Service, 950 H St., NW, Suite 8900, Washington, DC 20223.
In accordance with the provisions of 5 U.S.C. 552a (j) and (k), the Director of the U.S. Secret Service has exempted this System from compliance with the provisions of 5 U.S.C. 552a (e)(4)(G).
In accordance with the provisions of 5 U.S.C. 552a (j) and (k), the Director of the U.S. Secret Service has exempted this System from compliance with the provisions of 5 U.S.C. 552a (e)(4)(H).
See “Record access procedures” above.
In accordance with the provisions of 5 U.S.C. 552a (j) and (k) the Director of the U.S. Secret Service has exempted this System from compliance with the provisions of 5 U.S.C. 552a (e)(4)(I).
This system is exempt from 5 U.S.C. 552a (c)(3), (c)(4), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), of the Privacy Act pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). See 31 CFR 1.36.
Financial Management Information System—Treasury/USSS.
(a) U.S. Secret Service (Headquarters), 950 H St. NW, Washington, DC 20223. Components of this System are geographically dispersed throughout U.S. Secret Service field offices. (See below, United States Secret Service, Appendix A, listing the addresses of Secret Service offices.) (b) U.S. Secret Service Uniformed Division, 1111 18th St., NW, Washington, DC 20223;(c) Presidential Protective Division, U.S. Secret Service, Room 10, Old Executive Office Building, 17th and Pennsylvania Ave., NW, Washington, DC 20502; (d) Vice Presidential Protective Division, U.S. Secret Service, Old Executive Office Building, Room 295, Washington, DC 20502; (e) Dignitary Protective Division, U.S. Secret Service, 950 H St., NW, Washington, DC 20223; (f) Special Services Division, U.S. Secret Service, Anacostia Naval Annex, Building 411, 245 Murray Drive, Washington, DC 20373; (g) Johnson Protective Division, U.S. Secret Service, P.O. Box 927, Stonewall, TX 78671; (h) Ford Protective Division, U.S. Secret Service, P.O. Box 955, Rancho Mirage, CA 92270-955; (i) Technical Security Division, U.S. Secret Service, 1709 New York Avenue, NW., Washington, DC 20006; (j) Carter Protective Division, U.S. Secret Service, P.O. Box 308, Plains, GA 31780. (k) Reagan Protective Division, U.S. Secret Service, 2121 Avenue Of the Stars, Century City, CA 90067, (l) Bush Protective Division, U. S. Secret Service P.O. Box 79797, Houston, Texas 77279-9797, (m) White House Security Branch, U.S. Secret Service, Old Executive Office Building, Rm. 23, Washington, DC 20502.
(a) Individuals who are now, or were previously, Secret Service employees; (b) Individuals, contractors, vendors, etc., who are presently doing business with or previously did business with the Secret Service; (c) Individuals who are involved in or were previously involved in tort claims with the Secret Service; (d) Individuals who are now or previously were involved in payments (accounts receivable) with the Secret Service; (e) Individuals who have been recipients of awards.
(a) Records containing information compiled for the purpose of pay, travel, property damage, expenses incurred other than travel, and retirement annuities and taxes; (b) Records containing information of accounts receivable and payable, involving Secret Service employees and other persons; (c) Records containing information of tort claims dealing with Secret Service property, concerning payment and accounts receivable; (d) Records containing information on the expenditures, anticipated expenditures, and budget studies of the Secret Service; (e) Time and attendance records.
31 U.S.C. 68, 484, 952, and 1801 through 1806, and 5 U.S.C. 5514, and 21 U.S.C. 2415.
The routine uses of the records contained in this System are as follows: (1) Disclosure to the Internal Revenue Service, U.S. Treasury, GAO, OPM and other Federal agencies dealing with the payment and collection of monies concerning Secret Service employees; (2) disclosure to the Internal Revenue Service, U.S. Treasury Department, OPM, GAO, and other Federal agencies dealing with the payment, collection and audit of monies concerning persons who have financial dealings with the Secret Service; (3) To establish and maintain a means of gaining statistical information needed to answer inquiries from other Federal, state, and local governments and Congress; (4) To establish a reporting system to Treasury, OMB, GAO, and Congress concerning Secret Service expenditures; (5) To establish a means of payments to contractors and vendors for purchases made by Secret Service; (6) Disclosure to other Federal agencies to effect inter-agency salary offset and to affect inter-agency administrative offset; (7) Disclosures to debt collection agencies for debt collection services; (8) Disclosures of current mailing addresses obtained from the Internal Revenue Service, which have become a part of this system, to consumer reporting agencies to obtain credit reports and to debt collection agencies for collection services; (9) Disclosures to appropriate
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to consumer reporting agencies as defined in the Debt Collection of 1982 (31 U.S.C. 3701 (a)(3) or the Fair Credit Reporting Act [15 U.S.C. 1681a(f)].
All records are contained in files, and/or microfiche. The information contained in this System is stored in computers maintained at Headquarters.
This System is indexed by name and/or number at Headquarters and by name only in field offices, resident offices and protective divisions. Access is by name and/or number.
(1) The file jackets, and computers are secured by alarms and other internal security devices in locked rooms with guards on duty on a 24-hour basis; (2) Access to the records is available only to employees responsible for records management and operational employees who have a need for such information, each of whom holds a top secret security clearance; (3) The file jackets are located in locked rooms when Secret Service employees are not on duty. Access is limited to employees holding top secret security clearances.
(1) Financial Management Division's automated accounting systems, foreign disbursement file, and paid files are retained for six years and three months; (2) Accounts receivable systems are maintained for six years and three months unless they are not liquidated; (3) Systems for holiday, overtime, and other pay adjustments, enter on duty information, resignations, retirements, reassignments, etc., are disposed of at varying intervals in accordance with records retention schedules approved by the National Archives Record Administration (NARA); (4) Records on personnel are retained in accordance with mandatory National Archives and Records Administration General Records Schedules 2, 5, 6, and 7. Disposal of records is by burning, mulching, shredding, or electronic deletion.
Assistant Director, Office of Administration, 950 H St., NW, Suite 8250, Washington, DC 20223.
Individuals who wish to present a request as to whether this system contains a record pertaining to them should address inquiries to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
Request for information contained in this System should be addressed to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
See “Record access procedures” above.
(a) Individuals who are presently or were previously Secret Service employees; (b) Individuals who are presently or were service contractors or suppliers with the Secret Service; (c) Individuals who are presently or were previously involved in tort claims with the Secret Service; (d) Individuals who are presently or were previously involved in collections and disbursements with the Secret Service; (e) Internal Revenue Service; (f) Surviving spouse of deceased personnel.
None.
Non-Criminal Investigation Information System—Treasury/USSS.
System location: (a) U.S. Secret Service (Headquarters), 950 H St. NW, Washington, DC 20223. Components of this System are geographically dispersed throughout U.S. Secret Service field offices. (See below, United States Secret Service, Appendix A, listing the addresses of Secret Service offices.) (b) U.S. Secret Service Uniformed Division, 1111 18th St., NW, Washington, DC 20223; (c) Presidential Protective Division, U.S. Secret Service, Room 10, Old Executive Office Building, 17th and Pennsylvania Ave., NW, Washington, DC 20502; (d) Vice Presidential Protective Division, U.S. Secret Service, Old Executive Office Building, Room 295, Washington, DC 20502; (e) Dignitary Protective Division, U.S. Secret Service, 950 H St., NW, Washington, DC 20223; (f) Special Services Division, U.S. Secret Service, Anacostia Naval Annex, Building 411, 245 Murray Drive, Washington, DC 20373; (g) Johnson Protective Division, U.S. Secret Service, P.O. Box 927, Stonewall, TX 78671; (h) Ford Protective Division, U.S. Secret Service, P.O. Box 955, Rancho Mirage, CA 92270-955; (i) Technical Security Division, U.S. Secret Service, 1709 New York Avenue, NW., Washington, DC 20006; (j) Carter Protective Division, U.S. Secret Service, P.O. Box 308, Plains, GA 31780. (k) Reagan Protective Division, U.S. Secret Service, 2121 Avenue Of the Stars, Century City, CA 90067, (l) Bush Protective Division, U. S. Secret Service P.O. Box 79797, Houston, Texas 77279-9797, (m) White House Security Branch, U.S. Secret Service, Old Executive Office Building, Rm. 23, Washington, DC 20502, (n) WAVES Center, Old Executive Office Building, Rm. 065, Washington, DC 20502.
(a) Individuals who are applicants for employment with the U.S. Secret Service and other bureaus of the Department of the Treasury; (b) Individuals who are employees of the U.S. Secret Service and other bureaus of the Department of the Treasury holding security clearances granting access to classified documents and records; (c) Individuals who have filed administrative claims with the Secret Service and other bureaus of the Department of the Treasury under the Federal Tort Claims Act or who have been involved in automobile accidents or other incidents involving employees of the Secret Service and other bureaus of the Department of the Treasury resulting in tort claims against such individuals; (d) Individuals involved in investigations required in the administration of the Government Losses in Shipment Act, the Gold Reserve Act, and the Silver Purchase Act; (e) Individuals who are employees of the Secret Service and other bureaus of the Department of the Treasury who have been accused of misconduct in the performance of their duties, or who have been the subject of a complaint involving the performance of their official functions; (f) Individuals who are the subject of investigations or supply information to investigative agents conducting special investigations relating to the performance by the Secret Service of its statutory and regulatory functions.
(a) Record containing investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment or access to classified information; (b) Records containing investigatory material compiled for law enforcement purposes, including but not limited to, reports of investigators relating to claims under the Federal Tort Claims Act, Government Losses in Shipment Act, the Gold Reserve Act and the Silver Purchase Act, and employee misconduct or malfeasance; (c) Records containing reports or statement of investigators, witnesses, complainants, claimants and correspondents associated with identifiable individuals.
18 U.S.C. 3056, Executive Order 10450 and Treasury Order 102-18 (revised March, 1985); and Treasury Order 173-1.
The routine uses of the records contained in this System are as follows: (1) Disclosure to the Department of Justice and other Federal agencies for administrative, civil, or other legal proceedings to be used by personnel officials, attorneys, administrative law officers, and judges; (2) Disclosure to personnel of other Federal, state and local governmental agencies, foreign and domestic, for the purpose of developing or confirming information on individuals involved in non-criminal investigations conducted by the Secret Service; (3) Disclosure to personnel of private institutions and to private individuals for the purpose of confirming and/or determining suitability, eligibility, or qualifications for Federal civilian employment or access to classified information; and for the purposes of furthering the efforts of the Secret Service to investigate the activities of individuals related to or involved in non-criminal civil and administrative investigations; (4) Disclosure to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for the purpose of determining suitability, eligibility, or qualifications for employment with or access to classified information in such other agency or instrumentality; (5) Records maintained indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be referred to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto; (6) Disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (7) Disclosures to Federal, state or local agencies maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit, to the extent that the information is relevant and necessary to the requesting agencies' decision on the matter; (8) Disclosures of information relating to civil proceedings to the news media in accordance with the guidelines contained in 28 CFR 50.2; (9) Disclosure to Federal, state, or local government agencies for the purpose of developing a relevant ongoing civil, criminal, or background investigation; (10) Disclosure to a student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.
Records comprising this system are contained in file jackets, computerized data systems, microfilm, and microfiche. Portions of the information are maintained in on-line computer data files located at Headquarters.
This System is indexed alphabetically by name in Headquarters, Office of Inspection, and in field offices and retrieved through manual search of index cards and/or through computer search of magnetic media. Access to the physical files is by case number obtained from the name indices.
(1) The file jackets, indices and magnetic media are secured by alarms and other internal security devices in locked rooms with guards on duty on an around-the-clock basis. Access to the records is available only to employees responsible for record management and operational employees who have a need for such information, each of whom holds a top secret security clearance; (2) The file jackets field offices are located in locked filing cabinets and when employees are not on duty, in locked rooms. Access to the system is limited to employees holding top secret security clearances.
The retention schedule is as follows: (1) All judicial case records are retained for a period of 30 years; (2) Applicant security and background investigation records of Secret Service employees are retained for 20 years after retirement or separation of the employee from Secret Service employment; (3) Applicant
Assistant Directors, Office of Investigation and Office of Inspection, 950 H St., NW, Washington, DC 20223.
The Director of the U.S. Secret Service has exempted this System from the provisions of 5 U.S.C. 552a (e)(4)(G).
The Director of the U.S. Secret Service has exempted this System from the provisions of 5 U.S.C. 552a (e)(4)(H).
See “Record access procedures” above.
The Director of the U.S. Secret Service has exempted this System from the provisions of 5 U.S.C. 552a (e)(4)(I).
This system is exempt from 5 U.S.C. 552a (c)(3), (d), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) of the Privacy Act pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). See 31 CFR 1.36.
Protection Information System—Treasury/USSS.
(a) U.S. Secret Service (Headquarters), 950 H St. NW, Washington, DC 20223. Components of this System are geographically dispersed throughout U.S. Secret Service field offices. (See below, United States Secret Service, Appendix A, listing the addresses of Secret Service offices.) (b) U.S. Secret Service Uniformed Division, 1111 18th St., NW, Washington, DC 20223;(c) Presidential Protective Division, U.S. Secret Service, Room 10, Old Executive Office Building, 17th and Pennsylvania Ave., NW, Washington, DC 20502; (d) Vice Presidential Protective Division, U.S. Secret Service, Old Executive Office Building, Room 295, Washington, DC 20502; (e) Dignitary Protective Division, U.S. Secret Service, 950 H St., NW, Washington, DC 20223; (f) Special Services Division, U.S. Secret Service, Anacostia Naval Annex, Building 411, 245 Murray Drive, Washington, DC 20373; (g) Johnson Protective Division, U.S. Secret Service, P.O. Box 927, Stonewall, TX 78671; (h) Ford Protective Division, U.S. Secret Service, P.O. Box 955, Rancho Mirage, CA 92270-955; (i) Technical Security Division, U.S. Secret Service, 1709 New York Avenue, NW., Washington, DC 20006; (j) Carter Protective Division, U.S. Secret Service, P.O. Box 308, Plains, GA 31780. (k) Reagan Protective Division, U.S. Secret Service, 2121 Avenue Of the Stars, Century City, CA 90067, (l) Bush Protective Division, U. S. Secret Service P.O. Box 79797, Houston, Texas 77279-9797, (m) White House Security Branch, U.S. Secret Service, Old Executive Office Building, Rm. 23, Washington, DC 20502, (n) WAVES Center, Old Executive Office Building, Rm. 065, Washington, DC 20502
(a) Individuals who have been or are currently the subject of a criminal investigation by the U.S. Secret Service or another law enforcement agency for the violation of certain criminal statutes relating to the protection of persons or the security of properties; (b) Individuals who are the subjects of investigative records and reports supplied to the Secret Service by Federal, state, and local law enforcement agencies, foreign or domestic, other non-law enforcement governmental agencies, or private institutions and individuals; (c) Individuals who are the subjects of non-criminal protective and background investigations by the Secret Service and other law enforcement agencies where the evaluation of such individuals, in accordance with criteria established by the Secret Service, indicates a need for such investigations; (d) Individuals who are granted ingress and egress to areas secured by the Secret Service, or to areas in close proximity to persons protected by the Secret Service, including but not limited to invitees, passholders, tradesmen, and law enforcement, maintenance or service personnel; (e) Individuals who have attempted or solicited unauthorized entry into areas secured by the Secret Service; individuals who have sought an audience or contact with persons protected by the Secret Service or who have been involved in incidents or events which relate to the protective functions of the Secret Service; (f) Individuals who are witnesses, protectees, suspects, complainants, informants, defendants, fugitives, released prisoners, and correspondents who have been identified by the Secret Service or from information supplied by other law enforcement agencies, governmental units, private institutions, and members of the general public in connection with the performance by the Secret Service of its authorized protective functions.
(a) Records containing information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrest, the nature and disposition of criminal charges, sentencing, confinement, release, and parole or probation status; (b) Records containing information compiled for the purpose of a criminal investigation, including reports of informants and investigators, which are associated with an identifiable individual; (c) Records containing reports relative to an individual compiled at various stages of the process of enforcement of certain criminal laws from arrest or indictment through release from supervision; (d) Records containing information supplied by other Federal, state, and local law enforcement agencies, foreign or domestic, other non-law enforcement governmental agencies, private institutions and persons concerning individuals who, because of their activities, personality traits, criminal or mental history, or history of social deviancy, may be of interest to the Secret Service in connection with the performance by that agency of its protective functions; (e) Records containing information compiled for the purpose of identifying and evaluating individuals who may constitute a threat to the safety of persons or security of areas protected by the Secret Service; (f) Records containing information compiled for the purpose of background investigations of individuals, including but not limited to, passholders, tradesmen, maintenance or service personnel who have access to areas secured by or who may be in close proximity to persons protected by the Secret Service.
The protective authority is contained in 18 U.S.C. 3056 and Section 1 of Public Law 90-331, (18 U.S.C. 871; 18 U.S.C. 1751). The protective and security authority of the U.S. Secret Service Uniformed Division is contained in 3 U.S.C. 202.
The routine uses are as follows: (1) Disclosure to the Department of Justice and other Federal, state, and local governmental agencies having a prosecutive function for the use of attorneys, magistrates, and judges; and parole and probation authorities for the purpose of prosecuting, sentencing, and determining the parole and probation status of criminal offenders or suspected criminal offenders; and for civil and other proceedings involving Secret Service Protective functions; (2) Disclosure to personnel of other Federal, state and local law enforcement agencies, foreign or domestic, for the purpose of developing information on subjects involved in Secret Service protective investigations and evaluations and for the purpose of protective intelligence briefings of personnel of other law enforcement and governmental agencies assisting the U.S. Secret Service in the performance of its protective functions; (3) Disclosure to personnel of Federal, state, and local governmental agencies, foreign or domestic, where such disclosures are considered reasonably necessary for the purpose of furthering Secret Service efforts to investigate the activities of those persons considered to be of protective interest; (4) Disclosure to personnel of Federal, state, and local law enforcement agencies and other governmental agencies, foreign or domestic, where there is a showing of a reasonable need to accomplish a valid enforcement purpose; (5) Disclosure to personnel of private institutions and to private individuals of identifying information pertaining to actual or suspected criminal offenders or other individuals considered to be of protective interest for the purpose of furthering Secret Service efforts to evaluate the danger such individuals pose to persons protected by that agency; (6) Records indicating a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, may be disclosed to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto; (7) Disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (8) Disclosures and/or responses to Federal, state or local agencies maintaining civil, criminal or other relevant law enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the issuance of a contract, grant or other benefit, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter; (9) Disclosures of information relating to criminal and civil proceedings to the news media in accordance with the guidelines contained in 28 CFR 50.2; (10) Disclosure to a student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.
All records are contained in file jackets, microfilm, or microfiche. Portions of the information contained in the records are maintained in on-line computer data files located at Headquarters and in the Old Executive Office Building.
This System is indexed by case number and other case related data in master and magnetic media indices. Access to the physical files is by case number, both at Headquarters and the field offices.
(1) The file jackets and magnetic media are secured in locked rooms secured by alarms and other internal security devices with guards on duty on a twenty four hour basis. Access to the records is available only to employees responsible for record management and operational employees who have a need for such information, each of whom holds a top secret security clearance; (2) The file jackets in field offices are located in locked filing cabinets and in locked and alarmed rooms when employees are not on duty. Access to the system is limited to employees of the Secret Service holding top secret security clearances.
The retention schedule for records is as follows: (1) All judicial case records are retained for a period of 30 years. In cases where periodic checkups are conducted in protective intelligence cases, the retention period is computed from the date of the final check-up. (2) All other protective intelligence case records including protective surveys and non-judicial protective intelligence cases are routinely retained for a period of five years; (3) Disposal of records contained in this System is by burning or shredding.
Assistant Director, Office of Protective Research, Assistant Director Protective Operations, U.S. Secret Service, 950 H St., NW, Washington, DC 20223.
In accordance with the provisions of 5 U.S.C. 552a (j) and (k) the Director of the U.S. Secret Service has exempted this System from the provisions of 5 U.S.C. 552a(e)(4)(G).
In accordance with the provisions of 5 U.S.C. 552a (j) and (k) the Director of the U.S. Secret Service has exempted this System from the provisions of 5 U.S.C. 552a(e)(4)(H).
See “Record access procedures” above.
In accordance with the provisions of 5 U.S.C. 552a (j) and (k) the Director of the U.S. Secret Service has exempted this System from the provisions of 5 U.S.C. 552a(e)(4)(I).
This system is exempt from 5 U.S.C. 552a (c)(2), (c)(3), (c)(4), (d), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f) and (g) of the Privacy Act pursuant to 5 U.S.C. 552a (j)(2), (k)(2) and (k)(3). See 31 CFR 1.36.
Public Affairs Record System—Treasury/USSS.
U.S. Secret Service, 950 H St., NW, Washington, DC 20223.
(a) Persons who are private citizens who correspond requesting information relating to the Secret Service; (b) Persons who are members of the news
(a) Records of inquiries received from the general public, the communication media and the press relative to Secret Service activities; (b) Records of awards presented by the Secret Service; (c) Records of Congressional inquiries and correspondence.
18 U.S.C. 3056 and Treasury Department Order Number 173-3, dated October 29, 1965.
The routine uses are as follows: (1) Disclosures and/or responses to members of Congress and/or the general public. (2) Disclosure to a student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.
Records comprising this System are maintained in file jackets.
Records are filed alphabetically and chronologically.
The records are secured in locked filing cabinets and/or in locked rooms, with guards on duty on a twenty four hour basis. Access is available only to employees responsible for management of the system and operational employees who have a need for such information, each of whom holds a top secret security clearance.
Records in this system are maintained in accordance with mandatory General Services Administration, Records Schedule 14, Items 1-7. Disposal of records is by burning, shredding, and electronic deletion.
Assistant Director, Office of Government Liaison and Public Affairs, U.S. Secret Service, 950 H St., NW, Suite 8400, Washington, DC 20223.
Individuals who wish to present a request as to whether this system contains records pertaining to them should address inquiries to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
Requests for information contained in the System should be addressed to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
See “Record access procedures” above.
(a) The general public, the news media and members of Congress who correspond with the Secret Service; (b) Persons who have received awards or honors from the Secret Service.
None.
Training Information System—Treasury/USSS.
James J. Rowley Training Center, Laurel, MD 20708.
Individuals who are now or were Secret Service employees and officers of the U.S. Secret Service Uniformed Division.
Records containing the type and dates of training programs of the U.S. Secret Service employees, officers of the U.S. Secret Service Uniformed Division including course control documents and lesson plans for classes conducted by the Office of Human Resources and Training.
18 U.S.C. 3056.
Disclosure to a student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service, otherwise, disclosures are not made outside of the Agency.
Records are maintained on cards and in a computer database.
Records are filed alphabetically.
Records are secured in locked rooms with alarms when employees are not on duty. Access is available only to employees responsible for management of the records and operational employees who have a need for such information, each of whom holds a top secret security clearance.
Records are currently disposed of at varying intervals in accordance with record retention schedules approved by the National Archives and Records Administration (NARA).
Assistant Director, Office of Human Resources and Training, U.S. Secret Service, 950 H St., Suite 8600, NW, Washington, DC 20223.
Individuals who wish to present a request as to whether this system contains records pertaining to them should address inquiries to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW., Suite 3000, Washington, DC 20223.
Requests for information contained in the System should be addressed to: Freedom of Information and Privacy Acts Officer, U.S. Secret Service, 950 H St., NW, Suite 3000, Washington, DC 20223.
See “Record access procedures” above.
(a) Individuals who are now or were Secret Service employees, officers of the U.S. Secret Service Uniformed Division, (b) Individuals from other Federal, state and local law enforcement agencies.
None.
Veterans Health Administration, Department of Veterans Affairs
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before October 29, 2001.
Submit written comments on the collection of information to Ann
Ann W. Bickoff at (202) 273-8310 or FAX (202) 273-9381.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C., 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary:
Research and Special Programs Administration (RSPA), DOT.
Final rule.
This final rule corrects inconsistencies in terminology and makes minor editorial corrections to improve the clarity of the Hazardous Materials Regulations (HMR). The intended effect of this rule is to enhance the accuracy and reduce misunderstandings of the regulations. The amendments contained in this rule are minor editorial changes and do not impose new requirements.
Gigi Corbin, Office of Hazardous Materials Standards, (202) 366-8553, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
This final rule corrects inconsistent use of terminology to enhance the clarity of the HMR. Because these amendments do not impose new requirements, notice and public comment procedures are unnecessary.
The following is a summary of the amendments made under this final rule. It does not discuss all minor editorial corrections (for example: typographical, capitalization and punctuation errors) and certain other minor adjustments to enhance the clarity of the HMR.
—The term “Associate Administrator” is added in §§ 110.20 and 171.8 to the listing of definitions and abbreviations for uniformity and continuity with the definition that appears in § 107.3. The wording “Associate Administrator for Hazardous Materials Safety” is revised to read “Associate Administrator” wherever it appears in 49 CFR Parts 107 through 180. However, the title “Associate Administrator for Hazardous Materials Safety” is retained when it appears as part of an address.
This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not subject to review by the Office of Management and Budget. This rule is not significant according to the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Because of the minimal economic impact of this rule, preparation of a regulatory impact analysis or a regulatory evaluation is not warranted.
This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule does not propose any regulation that: (1) 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; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts state law.
RSPA is not aware of any State, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment.
This 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 rule would not significantly or uniquely affect the communities of the Indian tribal governments, the funding and consultation requirements of this Executive Order do not apply.
I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor editorial changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses or other organizations.
This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.
There are no new information collection requirements in this final rule.
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.
Administrative practice and procedure, Hazardous materials transportation, Packaging and containers, Penalties, Reporting and recordkeeping requirements.
Disaster assistance, Education, Emergency preparedness, Grant programs—environmental protection, Grant programs—Indians, Hazardous materials transportation, Hazardous substances, Indians, Reporting and recordkeeping requirements.
Oil pollution, Packaging and containers, Response Plans, Reporting and recordkeeping requirements, Transportation.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Reporting and recordkeeping requirements.
Education, Hazardous materials transportation, Hazardous waste, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.
Hazardous materials transportation, Radioactive materials, Railroad safety.
Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Motor carriers, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Railroad safety, Reporting and recordkeeping requirements.
Hazardous materials transportation, Motor carriers, Motor vehicle safety, Packaging and containers, Railroad safety, Reporting and recordkeeping requirements.
49 U.S.C. 5101-5127; 44701; Sec. 212-213, Pub. L. 104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
33 U.S.C. 1321.
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
(c) * * *
(3) * * *
B45 Each tank must have a reclosing combination pressure relief device equipped with stainless steel or platinum rupture discs approved by the AAR Tank Car Committee.
B47 Each tank may have a reclosing pressure relief device having a start-to-discharge pressure setting of 310 kPa (45 psig).
B49 * * * Single unit tank car tanks must have a reclosing pressure relief device having a start-to-discharge pressure set at no more than 1551 kPa (225 psig).
B57 Class 115A tank car tanks used to transport chloroprene must be equipped with a non-reclosing pressure relief device of a diameter not less than 305 mm (12 inches) with a maximum rupture disc burst pressure of 310 kPa (45 psig).
B78 * * * If a tank car tank is equipped with a non-reclosing pressure relief device, the rupture disc must be perforated with a 3.2 mm (0.13 inch) diameter hole. If a tank car tank is equipped with a reclosing pressure relief valve, the tank must also be equipped with a vacuum relief valve.
(c) * * *
(1) The UN Recommendations (see § 171.7 of this subchapter);
(2) The IMDG Code (see § 171.7 of this subchapter);
(3) The ICAO Technical Instructions (see § 171.7 of this subchapter);
(4) The TDG Regulations (see § 171.7 of this subchapter).
49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
(f) * * *
(3) * * *
(ii) For transportation by vessel, shipments are authorized in accordance with the control-temperature requirements of Section 21 of the General Introduction of the IMDG Code (see § 171.7 of this subchapter).
(a) * * *
(2) * * *
(iii) National or international regulations based on the UN Recommendations, as authorized in § 173.24(d)(2);
(d) * * *
(2) UN standard packagings manufactured outside the United States. A UN standard packaging manufactured outside the United States, in accordance with national or international regulations based on the UN Recommendations (see § 171.7 of this subchapter), may be imported and used and is considered to be an authorized packaging under the provisions of paragraph (c)(1) of this section, subject to the following conditions and limitations:
(i) The packaging fully conforms to applicable provisions in the UN Recommendations and the requirements of this subpart, including reuse provisions;
(b) * * *
(2) * * *
(ii) Except for shipments of chloroprene, inhibited, in class DOT 115 tank cars, single-unit tank cars used for materials meeting the definition for Division 6.1 liquid, Packing Group I or II, Class 2 materials, or Class 3 or 4 liquids, must have reclosing pressure relief devices. However, a tank car built before January 1, 1991, and equipped with a non-reclosing pressure relief device may be used to transport a Division 6.1 or Class 4 liquid if the liquid is not poisonous by inhalation. Unless otherwise specifically provided in this subchapter, rupture discs may not have any perforated holes to allow for venting.
(e) * * *
(2) Explosives of the same compatibility group or authorized combination of compatibility group but different division number may be packed together, provided that the whole package is treated as though its entire contents were comprised of the lower division number. For example, a
(g)
(a) * * *
(1) * * *
(iii) * * *
(B) A material with a saturated vapor concentration in air at 20 °C (68 °F) greater than or equal to one-fifth of the LC
(d) * * *
(1) * * *
(vi) Wooden: 11C, 11D, or 11F.
(d) * * *
(1) * * *
(ii) * * *
(F) Wooden: 11C, 11D, or 11F.
(a) * * *
(2) * * *
Special carbon dioxide mining devices containing a heating element and charged with not over 6 pounds of carbon dioxide may be filled to a density of not over 85 percent, provided the cylinder is made of steel with a calculated bursting pressure in excess of 39,000 psi, be fitted with a frangible disc that will operate at not over 57 percent of that pressure, and be able to withstand a drop of 10 feet when striking crosswise on a steel rail while under a pressure of at least 3,000 psig. * * *
a. Amend paragraph (e)(1) by removing the wording “pounds per square inch absolute” and adding the acronym “psia” in its place.
b. Amend paragraph (f)(1) by removing the wording “psi, absolute” and adding the acronym “psia” each place it appears.
(l) * * * A threaded solid plug must seal each valve outlet. In addition, a metal cover must protect all valves.
(o) * * * Each tank car must be equipped with one reclosing pressure relief valve having a start-to-discharge pressure not to exceed 75 percent of the tank test pressure and one non-reclosing pressure relief valve having a rupture disc design to burst at a pressure less than the tank test pressure. * * *
(i) Each tank must be provided with one or more pressure relief devices which, unless otherwise specified in this part, must be of the spring-loaded type. * * *
(4) Each pressure relief valve must be plainly and permanently marked with the pressure in psig at which it is set to discharge, with the actual rate of discharge of the device in cubic feet per minute of the gas or of air at 60 °F and 14.7 psia, and with the manufacturer's
(b) * * *
(4) * * *
(ii) Be capable of withstanding a test pressure of 265 kPa (37.1 psig);
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
(a) * * *
For import or export shipment, explosives other than explosives of Division 1.4, Compatibility Group S, that do not belong to the same compatibility group according to the ICAO Technical Instructions
(a) * * *
49 U.S.C. 5101-5127; 49 CFR 1.53.
(a) * * *
(5) * * *
(ii) The IMDG Code.
(b) * * *
(f) * * *
(g) * * *
(e) * * *
(2) * * * Division 1.1, 1.2, 1.3, or 1.5 materials may not be stowed within 3 m (10 feet) of this bulkhead; in the decks immediately above or below an accommodation space they must be stowed at least 3 m (10 feet) from the line of this bulkhead projected vertically.
(a) * * *
(b) * * *
49 U.S.C. 5101-5127; 49 CFR 1.53.
49 U.S.C. 5101-5127; 49 CFR 1.53.
(f) * * *
(1) For cylinders with a service pressure of less than 900 psig, the wall stress may not exceed 24,000 psi. * * *
(2) For cylinders with service pressure of 900 psig or more the minimum wall must be such that the wall stress at the minimum specified test pressure may not exceed 67 percent of the minimum tensile strength of the steel as determined from the physical tests required in paragraphs (k) and (l) of this section and must be not over 70,000 psi.
(3) Calculation must be made by the formula:
S=[P(1.3D
(b) * * *
(1) With a maximum cross-sectional dimension of 1.8 m (5.9 feet) or less, shall be at least 5 mm (0.197 inches) thick; or
(2) With a maximum cross-sectional dimension exceeding 1.8 m (5.9 feet), shall be at least 6.35 mm (0.250 inches) thick.
(a) * * *
(1) Each portable tank, or each independent compartment of a portable tank, with a capacity of more than 1893 L (500 gallons), must be provided with a primary spring-loaded pressure relief device and, in addition, may have one or more emergency pressure relief devices that may be a spring-loaded pressure relief valve, a rupture disc or fusible element in parallel with the primary pressure relief device.
(3) If a non-reclosing device is inserted in series with a required pressure relief valve, the space between them must have a suitable tell-tale indicator to permit detection, prior to and during shipment, of disc rupture, pinholing, or leakage which could cause a malfunction of the pressure relief system. * * *
(b) The authorized maximum gross weight of the package is 160 kg (350 pounds) for sizes not over 210 L (55 gallons) or 220 kg (480 pounds) for sizes over 210 L (55 gallons) but not over 420 L (110 gallons).
(c) * * * Each joint between sections must be stepped a minimum of 5 cm (2 inches) and gaps between mating surfaces must not exceed 5 mm (0.2 inch). Gaps between foam surface of top section and liner lid must not exceed 1 cm (0.4 inch) or 5 cm (2 inches) where taper is required for mold stripping. * * *
(b) * * *
(2) Weigh each packaging element (top and bottom halves) separately to an accuracy of ±2.3 kg (±5 pounds) and record the weights. If this measured weight exceeds the initially measured weight at the time of fabrication by 11.3 kg (25 pounds) (indicating a significant retained water content), the packaging element must be dried.
(3) Place overpack element in drying oven; maintain temperature between 87.8-98.9 °C (190-210 °F) for a minimum of 72 hours. * * *
(4) Drying may be discontinued after 72 hours if the weight of the packaging element does not exceed the initially measured tare weight of that element at the time of fabrication by more than 11.3 kg (25 pounds). If the weight of the packaging element exceeds the initial fabricated weight (indicating a significant remaining water content) by more than 11.3 kg (25 pounds), drying must be continued until the weight differential is not higher than 11.3 kg (25 pounds), or until the rate of weight loss is less than 1.1 kg (2.5 pounds) per day.
Closure for the protective overpack must be provided by at least 4 mild steel hinges formed from minimum 2.5 cm (1 inch) x 5 mm (
(d) * * *
(2) Not less than 1.75 times the vapor pressure at 50 °C (122 °F) of the material to be transported minus 100 kPa (15 psi) but with a minimum test pressure of 100 kPa (15 psig); or
(3) Not less than 1.5 times the vapor pressure at 55 °C (131 °F) of the material to be transported minus 100 kPa (15 psi), but with a minimum test pressure of 100 kPa (15 psig).
49 U.S.C. 5101-5127; 49 CFR 1.53.
(d) Pressure relief valves must be trimmed with monel or other approved material and equipped with a rupture disc of silver, polytetrafluoroethylene coated monel, or tantalum. Each pressure relief device shall have the space between the rupture disc and the valve vented with a suitable auxiliary valve. The discharge from each pressure relief valve must be directed outside the protective housing.
(b) * * * The capacity of the dome shall be measured from the inside top of shell of tank to the inside top of dome or bottom of any vent pipe projecting inside of dome, except that when a pressure relief device is applied to side of dome, the effective capacity of the dome shall be measured from top of the pressure relief device opening inside of dome to inside top of shell of tank.
(c) Pressure relief devices shall be set for start-to-discharge and rupture discs shall burst at a pressure not exceeding that specified in § 179.301.
(b) Rupture discs of non-reclosing pressure relief devices must be tested as prescribed in Appendix A, A5.03 of the AAR Manual of Standards and Recommended Practices, Section C—Part III, Specifications for Tank Cars, Specification M-1002, January 1996 (see § 171.7 of this subchapter).
(a) Pressure relief valves shall be tested by air or gas before being put into service. * * *
(b) For pressure relief devices that incorporate a rupture disc, samples of the discs used shall burst at a pressure not exceeding the marked test pressure of tank and not less than
(a) * * *
(5) Date (such as 1-01, for January 2001) of tank test, so placed that dates of subsequent tests may easily be added.
(6) Date (such as 1-01, for January 2001) of latest test of the pressure relief device or of the rupture disc, required only when tank is used for transportation of flammable gases.
49 U.S.C. 5101-5127; 49 CFR 1.53.
(h) * * *
(2) * * *
(i) Removing the reclosing pressure relief device from the tank car for inspection; and
(ii) Testing the reclosing pressure relief device with air or another gas to ensure that it conforms to the start-to-discharge pressure for the specification or hazardous material in this subchapter.
Federal Emergency Management Agency (FEMA).
Notice.
This Notice provides listings of changes made to National Flood Insurance Program (NFIP) maps produced by FEMA effective during the first 6 months of 2001.
The listings include changes to NFIP maps that became effective January 1, 2001, through June 30, 2001.
Michael K. Buckley, P.E., Director, Hazard Mapping Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, Washington, DC 20472, (202)646-2756.
In accordance with Section 1360(i) of the National Flood Insurance Reform Act of 1994, this Notice is provided to inform interested parties of changes made by FEMA to NFIP maps. The two listings provided show communities affected by map changes made by letter and communities affected by physical map changes. For each Letter of Map Change, the first listing provides the map panel(s) affected, effective (determination) date of the change, case number, and determination type. For each physical map change, the Map Revision listing provides the map panel(s) affected and the effective date of the change. The listing also identifies: (1) those panels on which the Special Flood Hazard Areas have not been changed or have been changed only to incorporate the Letters of Map Change issued before the effective date; and (2) those panels for which a Flood Insurance Rate Map is produced for the first time, resulting only in changes to flood insurance and floodplain management requirements in the affected community. Future notices of changes to NFIP maps will be published approximately every 6 months.
Two listings are provided below. The first listing includes all Letters of Map Change issued by FEMA from January 1 through June 30, 2001. The following types of letters are included in the listing:
The second listing includes map panels that FEMA physically revised and republished from January 1 through June 30, 2001. For those map panels on which the Special Flood Hazard Areas have not been changed or have been changed only to incorporate Letters of Map Change issued before the effective date, two asterisks(**) are shown to the right of the map panel number. For those map panels for which a Flood Insurance Rate Map is produced for the first time, resulting only in changes to flood insurance and floodplain management requirements in the affected community, three asterisks(***) are shown to the right of the map panel number.
For both listings, a single asterisk is shown to the right of each county name that appears in the ”Community” column. This asterisk indicates the area covered is the unincorporated areas of that county.
Fish and Wildlife Service, Interior.
Proposed rule; supplemental.
The Fish and Wildlife Service (hereinafter Service or we) is proposing to establish the 2001-02 late-season hunting regulations for certain migratory game birds. We annually prescribe frameworks, or outer limits, for dates and times when hunting may occur and the number of birds that may be taken and possessed in late seasons. These frameworks are necessary to allow State selections of seasons and limits and to allow recreational harvest at levels compatible with population and habitat conditions.
You must submit comments on the proposed migratory bird hunting late-season frameworks by September 7, 2001.
Send your comments on these proposals to the Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, room 634-Arlington Square, 1849 C Street, NW, Washington, DC 20240. All comments received, including names and addresses, will become part of the public record. You may inspect comments during normal business hours in room 634, Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia.
Jonathan Andrew, Chief, or Ron W. Kokel, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358-1714.
On April 30, 2001, we published in the
On June 20-21, we held open meetings with the Flyway Council Consultants at which the participants reviewed information on the current status of migratory shore and upland game birds and developed recommendations for the 2001-02 regulations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands, special September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, we reviewed and discussed preliminary information on the status of waterfowl as it relates to the development and selection of the regulatory packages for the 2001-02 regular waterfowl seasons. On July 24, we published in the
On August 1-2, 2001, we held open meetings with the Flyway Council Consultants at which the participants reviewed the status of waterfowl and developed recommendations for the 2001-02 regulations for these species. This document deals specifically with proposed frameworks for the late-season migratory bird hunting regulations. It will lead to final frameworks from which States may select season dates, shooting hours, areas, and limits.
We have considered all pertinent comments received through August 3, 2001, in developing this document. In addition, new proposals for certain late-season regulations are provided for public comment. Comment periods are specified above under
The following paragraphs provide a brief summary of information on the status and harvest of waterfowl excerpted from various reports. For more detailed information on methodologies and results, complete copies of the various reports are available at the address indicated under the caption
Federal, provincial, and State agencies conduct surveys each spring to estimate the size of breeding populations and to evaluate the conditions of the habitats. These surveys are conducted using fixed-wing aircraft and encompass principal breeding areas of North America, and cover over 2.0 million square miles. The Traditional survey area is comprised of Alaska, Canada, and the northcentral U.S., and includes approximately 1.3 million square miles. The Eastern survey area includes parts of Ontario, Quebec, Labrador, Newfoundland, Nova Scotia, Prince Edward Island, New Brunswick, New York, and Maine, an area of approximately 0.7 million square miles.
Habitat conditions in the traditional survey area were variable, and the estimate of May ponds (U.S. and Prairie Canada combined) is up (4.6 million ± 0.1 million, +18 percent) compared to 2000, and slightly below (−6 percent), but not statistically different from the long-term average. Continued drought produced fair to poor conditions in most of Alberta, central and southern Saskatchewan, and eastern Montana. By contrast, North and South Dakota generally had good to excellent water conditions, with the best conditions in the eastern portions of these States, and drier conditions to the north and west. Nesting cover in the Dakotas was in above-average condition. Southern Manitoba and extreme southeastern Saskatchewan have had higher than normal water conditions for the past 2 years, and this water, along with above-normal precipitation due to an early, snowy winter, produced excellent habitat for breeding ducks. Average to above-average precipitation also made for excellent wetland conditions across northern Manitoba and Saskatchewan. The northernmost portion of Alberta was the exception to the record drought and poor wetland conditions in the rest of the province, as above-average winter and spring precipitation filled nearly all available wetland basins. Good conditions for breeding ducks prevailed in the Northwest Territories, except for a small northern area that was rated only fair due to late spring ice conditions that reduced available breeding habitat for early-nesting species. Overall, conditions were good in the traditional survey area, and
In Alaska, breeding conditions depend largely on the timing of spring, as wetland conditions are less variable than on the prairies. Although winter temperatures were mild, spring was late, and waterfowl production will likely be below average to the north and west, and average to the south and east.
In the eastern survey area, conditions were variable but generally good. Southern Ontario and Northern New York had an early spring, and with wetland basins nearly full, the outlook for breeding ducks is good. Spring was also early in Quebec, with good to excellent habitat in the central and northern portions. However, southern Quebec was drier with conditions ranging from fair to poor. In Maine and the Maritime provinces, spring was late, with lower than normal temperatures, but above-average precipitation, and habitat conditions were good. Overall, eastern habitats were in good condition, with average to above-average production expected.
The 2001 total duck population estimate for the traditional survey area was 36.1 ± 0.6 million birds, 14 percent below last year's near-record estimate of 41.8 ± 0.7 million birds, but still 9 percent above the 1955-2000 average. Mallard abundance was 7.9 ± 0.2 million, which is 17 percent below last year's estimate but still 5 percent above the 1955-2000 average. Blue-winged teal abundance was estimated at 5.8 ± 0.3 million. This is 23 percent below last year's record estimate of 7.4 million, but 29 percent above the 1955-2000 average. Gadwall (2.7 ± 0.1 million, +66 percent), green-winged teal (2.5 ± 0.2 million, + 39 percent), and northern shovelers (3.3 ± 0.2 million, +60 percent) all remained above their long-term averages, while American wigeon (2.5 ± 0.1 million), redheads (0.7 ± 0.07 million), and canvasbacks (0.6 ± 0.05 million) did not differ from their long-term averages. Scaup (3.7 ± 0.2 million, −31 percent) and northern pintail (3.3 ± 0.3 million, −23 percent), were again below their long-term average.
The 2001 total duck population estimate for the eastern survey area was 3.3 ± 0.2 million birds, similar to last year's estimate of 3.2 ± 0.3 million birds. Abundances of individual species were similar to those of last year, with the exception of ring-necked ducks (353.0 ± 32 thousand, −43 percent) and buffleheads (95.0 ± 44 thousand, + 93 percent). Buffleheads, goldeneyes and lesser scaup were above the 1996-2000 average in the east. Green-winged teal and ring-necked ducks were below the 1996-2000 average, and other species were similar to their long-term averages.
The mid-continent mallard fall flight is predicted to be 10.5 million mallards, 6 percent lower than last year (P = 0.02).
We provide information on the population status and productivity of 30 populations of North American Canada geese (
During the 2000-01 hunting season, duck stamp sales were slightly above sales in 1999 (+1 percent), and hunter numbers remain well below the highs observed during the early 1970s. U.S. waterfowl hunters hunted about 4 percent fewer days and bagged about 4 percent fewer ducks, 2 percent fewer geese and 58 percent fewer coots than in 1999.
The number of ducks harvested during the 2000-01 hunting season was similar to the numbers that were harvested during the early 1970s. The increased harvest during the last few years is a reflection of the more liberal hunting seasons offered and the increased duck abundance resulting from the improved water availability and habitat conditions that occurred in the prairie-pothole area. Of the five species of ducks that are most important in the bag, in order of importance: the number of mallards harvested increased 3 percent; the number of green-winged teal decreased 23 percent; the number of gadwall increased 16 percent; the number of wood ducks decreased 18 percent; and the number of blue-winged teal remained the same.
The overall harvest of geese last year decreased 2 percent from that of 2000-01. In the U.S., harvest of Canada geese increased 20 percent, snow geese decreased 49 percent, blue geese decreased 35 percent, Ross' geese decreased 66 percent, white-fronted geese decreased 19 percent, and brant increased 64 percent from 1999-2000. Increases in goose harvests over the last decade largely reflect the increased numbers of resident or giant Canada geese, although increases in other populations of Canada geese and other goose species, including snow geese, have occurred.
The preliminary proposed rulemaking, which appeared in the April 30
We received recommendations from all four Flyway Councils. Some recommendations supported continuation of last year's frameworks. Due to the comprehensive nature of the annual review of the frameworks performed by the Councils, support for continuation of last year's frameworks is assumed for items for which no recommendations were received. Council recommendations for changes in the frameworks are summarized below.
We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible, they are discussed under headings corresponding to the numbered items in the April 30, 2001,
Categories used to discuss issues related to duck harvest management are: (A) Harvest Strategy Considerations, (B) Regulatory Alternatives, (C) Zones and Split Seasons, and (D) Special Seasons/Species Management. The categories correspond to previously published issues/discussion, and only those containing substantial recommendations are discussed below.
For the 2001-02 hunting season, we propose the “liberal” regulatory alternative (as described in the July 24
The Mississippi and Pacific Flyway Councils recommended an open canvasback season with a 1-bird daily bag limit for the entire duck season in all four flyways for the 2001-02 season.
The Central Flyway Council recommended modifying the current strategy and recommended two options for individual state selections. First, allow a within-season closure for canvasbacks during the regular duck hunting season. Season length (daily bag of 1, either sex) would be determined by the AHM regulatory alternative when the harvest predicted by the canvasback model is less than the allowable harvest. For the 2001-2002 duck hunting season, the season length for canvasbacks would be 39 days in the Central Flyway, 30 days in the Atlantic and Mississippi Flyways, and 60 days in the Pacific Flyway. States would be allowed to select days during any time period of the regular duck hunting season within established criteria for zones and splits. Second, offer an aggregate daily bag of 1 canvasback or 1 redhead for the entire length of the duck hunting season.
We continue to support the harvest strategy and the model adopted in 1994. However, despite reduced numbers and below-average production forecast this year, we believe there is still some opportunity to allow a limited harvest this fall without compromising the population's ability to reach 500,000 canvasbacks next spring. Thus, we propose a very restrictive, shortened season for canvasbacks for the 2001-02 season. In the Atlantic and Mississippi Flyways, the season length would be 20 days, in the Central Flyway, 25 days, and in the Pacific Flyway, 38 days. The days for this limited season must be used consecutively. Our objective in making this proposal is to provide some hunting opportunity but still assure that the spring population will remain above the 500,000 objective level.
Over the next year, we are willing to discuss the possibility of revising the strategy. Because the population model has performed relatively well to date, we believe that the most productive area for discussion involves subjective aspects of the strategy, such as the setting of population objectives. Any proposed changes should have broad-based support and reflect the interests of all stakeholders. However, we emphasize that discontent with the canvasback strategy this year is symptomatic of difficulties associated with the larger issue of multi-stock management in the existing AHM framework. For example, how should hunting seasons be designed to
Due to relative lateness of this development, the generally earlier opening of duck seasons in Alaska (September 1), and the anticipated level of harvest in Alaska, we propose to exempt Alaska from the proposed shorter season length. However, we believe that Alaska should fully engage in review of population objectives and remain a part of the overall harvest strategy for this species.
Further, we propose that the interim strategy be revised for future years by adjusting the equations used to predict pintail harvest to more accurately reflect realized harvest based on the experience gained during the past four years. The proposed method of adjustment, as well as a brief review of the first four years of interim strategy, will be provided to the Technical Sections for their review and comment. The interim strategy would be used until the development and adoption of a direct methodology for incorporation of pintails into the formal AHM process. We believe that such an action may be possible by the 2002-03 hunting season, but several issue remain to be resolved as described in this year's AHM report. Recognizing that some of these issues may not be resolved by next year, we believe that adjustment to the existing interim strategy is a prudent step, and intend to employ the interim strategy until formal incorporation of pintail harvest into the existing AHM process is accomplished.
The Pacific Flyway Council recommended a daily bag limit of four scaup in the Pacific Flyway for the 2001-02 hunting season.
In North Carolina, the Council recommended allowing modification of the boundary of the Northeast Hunt Unit, and, that North Carolina be allowed to select a 50 day season with a 2 bird daily bag limit with framework dates of October 1 to December 31 in its Southern James Bay Population (SJBP) zone.
In North Atlantic Population (NAP) hunt areas, the Council recommended a 45-day season with a 2 bird daily bag limit between October 1 and January 20.
For resident populations, the Council recommended allowing regular seasons designed to maximize harvest of Resident Population (RP) Canada geese in designated areas of the Atlantic Flyway beginning in 2001. The Council defined designated areas as accounting for no more than 10 percent of migrant geese (AP, NAP, SJBP) band recoveries during 1950-1999 in any State, and collectively accounting for less than 5 percent of all flyway recoveries of any migrant population. Regular seasons in designated RP harvest areas of Maryland, Pennsylvania, and Virginia, would be 70 days, between November 15 and February 15, with a 5-bird daily bag limit. In North Carolina, Massachusetts, and New York, the framework would be 70 days between the last Saturday in October and February 15, with a 5-bird daily bag limit. These seasons would be in lieu of any special late seasons and subject to annual evaluation of band recovery and harvest data.
The Mississippi Flyway Council recommended a number of changes in season lengths, bag limits, zones, and quotas for Canada geese. All of these changes are based on improved population status and current management plans. The Council also recommended that Mississippi Valley Population (MVP) and Southern James Bay Population (SJBP) harvest zones be established in Michigan.
We also support the boundary modifications and framework date changes in North Carolina and the recommendation for NAP geese.
Regarding the Atlantic Flyway Council's recommendation for resident goose areas, while we support the overall intent of this season, we have concerns about how these “RP” zones are delineated and would be evaluated in the future. The proposal, based on a portion (10 percent) of historic band
We concur with the recommended changes in the Mississippi Flyway. Most of these changes are based on the current population status of geese and are consistent with current management plans.
During the past year since the release of the supplemental EA, actions occurred that have contributed to the Service revising and reissuing both a draft and final EA on this issue. First, the Service and cooperators (Canadian Wildlife Service, numerous States and Provinces, and private conservation groups) conducted a comprehensive survey of the number and distribution of breeding trumpeter swans throughout their known North American breeding range during the summer of 2000, providing new information on the status and population trends of trumpeter swans (Caithamer 2001). This new comprehensive survey information documents the continued increase of the three recognized Trumpeter swan populations in North America, both in numerical abundance and in geographic range since the last comprehensive survey in 1995. Second, we were challenged in a lawsuit directed at our decision last year to allow a limited take of trumpeter swans in the 2000-01 swan hunting season, and as part of settling that lawsuit, we agreed to re-initiate the NEPA process in 2001.
A swan season that also permitted the take of a limited number of trumpeter swans in the Pacific Flyway was instituted in 1995. Prior to that time, and beginning in 1962, a tundra swan only season had been in effect. During the tundra swan seasons, it was known that some number of trumpeter swans were taken by swan hunters who mistook them for tundra swans. We looked at this very small take and concluded that any impact on trumpeter swan populations would be minor. Because of that conclusion, we decided to authorize a limited take incidental to the hunting of tundra swans. This limited take was authorized in an attempt to reconcile potentially conflicting strategies for managing two swan species in the Pacific Flyway. The potentially conflicting strategies are: (1) To enhance the winter range distribution of the less abundant RMP of trumpeter swans by severely restricting or eliminating swan hunting in portions of the Pacific Flyway currently open to hunting these species, and (2) to optimize hunting of the more numerous and widely distributed Western Population (WP) of tundra swans in the Pacific Flyway.
We issued a FONSI in August of 1995 and again in July of 2000 after assessing impacts in two previous EAs on this issue. The proposed actions in these EAs represented a balance between the two competing management strategies by establishing a general swan season in portions of Montana, Utah, and Nevada that allowed the taking of any species of swan (
(1) A limited quota on the take of trumpeter swans, which, upon being reached, would trigger the cessation of all swan hunting in the designated area,
(2) Modification of the already limited take and restricted seasons on tundra swans to enhance the likelihood that trumpeter swans would be successful in expanding their winter range, and,
(3) The development and implementation of a program to monitor the effectiveness of this action.
Under the new proposed action, identified in the 2001 EA (Trost et al. 2001), we would continue to establish a hunting season for tundra swans with an authorization of a small take of trumpeter swans in designated portions of Montana, Utah and Nevada, within the Pacific Flyway. Constraints imposed upon swan hunting seasons implemented last year would be continued. Additionally, specific areas open to swan hunting in Montana, Utah and Nevada would remain as defined in the 2000-01 regulations. Further, included is a new requirement for the development of a Memorandum of Agreement (MOA) between the State of Utah and the Service detailing monitoring, hunter training, and season closure procedures for the experimental swan hunt in Utah.
A notice of availability of the draft EA was published in the
Additionally, although not directly related to the issue of hunting seasons, we have continued to provide a leadership role in attempting to enhance trumpeter swan status and breeding
Continued progress toward development of the implementation plan (Bouffard et al. 2001) has occurred. We believe the actions outlined in the plan will help address concerns regarding the number of swans nesting in the Tristate area and help establish new winter distribution patterns. Evidence suggests current and past management activities have made progress toward improving the winter distribution situation (Bouffard 2000). We expect that further actions will continue to improve the status and distribution of RMP trumpeter swans. We will continue implementation efforts to the greatest extent possible.
We appreciate the continued support of The Trumpeter Swan Society (TSS) in the development of a more comprehensive implementation plan to achieve the goals and objectives of the 1998 Pacific Flyway Management Plan for the RMP of trumpeter swans. We remain committed to the goals and objectives of this plan and will continue to work with all partners to achieve these objectives. We have carefully considered all the input received from the TSS and other concerned agencies, organizations and individuals. In particular, we reconsidered the request to close all areas in Utah and Nevada to any legal take of Trumpeter swans and to close the Bear River Refuge in Utah to all swan hunting. After a review of the situation, the Service stands behind it's conclusions in the most recent Environmental Assessment regarding the need to implement the specific recommendations of the TSS (Trost et al. 2001: pages 31-32 and 41-45). We acknowledge a wide disparity of opinion regarding the potential impact of a limited take of trumpeter swans in Utah and Nevada on achieving the goals and objectives of the 1998 plan. Our independent assessment is that the limited take allowed in these seasons will not adversely impact management intended to achieve these objectives and we conclude that the existing seasons should be maintained as described in the Final EA on this issue.
The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. We intend that adopted final rules be as responsive as possible to all concerned interests and, therefore, seek the comments and suggestions of the public, other concerned governmental agencies, nongovernmental organizations, and other private interests on these proposals. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations to the address indicated under the caption
Special circumstances involved in the establishment of these regulations limit the amount of time that we can allow for public comment. Specifically, two considerations compress the time in which the rulemaking process must operate: (1) The need to establish final rules at a point early enough in the summer to allow affected State agencies to adjust their licensing and regulatory mechanisms; and (2) the unavailability, before mid-June, of specific, reliable data on this year's status of some waterfowl and migratory shore and upland game bird populations. Therefore, we believe that to allow comment periods past the dates specified is contrary to the public interest.
Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals. You may inspect comments received on the proposed annual regulations during normal business hours at the Service's office in room 634, 4401 North Fairfax Drive, Arlington, Virginia. For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. However, as in the past, we will summarize all comments received during the comment period and respond to them in the final rule.
NEPA considerations are covered by the programmatic document, “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published a Notice of Availability in the
Additionally, issues pertaining to swan hunting in the Pacific Flyway were covered under a separate NEPA document, “Swan Hunting in the Pacific Flyway,” issued June 14, 2001, with a Finding of No Significant Impact issued June 14, 2001. Copies are available from the address indicated under the caption
Prior to issuance of the 2001-02 migratory game bird hunting regulations, we will consider provisions of the Endangered Species Act of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened or modify or destroy its critical habitat and that the proposed action is consistent with conservation programs for those species. Consultations under Section 7 of this Act may cause us to change proposals in this and future supplemental proposed rulemakings.
While this individual supplemental rule was not reviewed by the Office of Management and Budget (OMB), the migratory bird hunting regulations are economically significant and are annually reviewed by OMB under E.O. 12866. E.O. 12866 requires each agency to write regulations that are easy to understand. We invite comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the
These regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
We examined these regulations under the Paperwork Reduction Act of 1995. The various recordkeeping and reporting requirements imposed under regulations established in 50 CFR part 20, Subpart K, are utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of the Migratory Bird Harvest Information Program and assigned control number 1018-0015 (expires 09/30/2001). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. A Federal 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.
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this proposed rule, has determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this supplemental proposed rule is a significant regulatory action under E.O. 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this proposed action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with E.O. 12630, this proposed rule does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule will allow hunters to exercise otherwise unavailable privileges, and, therefore, reduces restrictions on the use of private and public property.
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections and employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with E.O. 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 2001-02 hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.
Pursuant to the Migratory Bird Treaty Act and delegated authorities, the Department has approved frameworks for season lengths, shooting hours, bag and possession limits, and outside dates within which States may select seasons for hunting waterfowl and coots between the dates of September 1, 2001, and March 10, 2002.
Dates: All outside dates noted below are inclusive.
Shooting and Hawking (taking by falconry) Hours: Unless otherwise specified, from one-half hour before sunrise to sunset daily.
Possession Limits: Unless otherwise specified, possession limits are twice the daily bag limit.
Atlantic Flyway—includes Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode
Mississippi Flyway—includes Alabama, Arkansas, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Ohio, Tennessee, and Wisconsin.
Central Flyway—includes Colorado (east of the Continental Divide), Kansas, Montana (Counties of Blaine, Carbon, Fergus, Judith Basin, Stillwater, Sweetgrass, Wheatland, and all counties east thereof), Nebraska, New Mexico (east of the Continental Divide except the Jicarilla Apache Indian Reservation), North Dakota, Oklahoma, South Dakota, Texas, and Wyoming (east of the Continental Divide).
Pacific Flyway—includes Alaska, Arizona, California, Idaho, Nevada, Oregon, Utah, Washington, and those portions of Colorado, Montana, New Mexico, and Wyoming not included in the Central Flyway.
High Plains Mallard Management Unit—roughly defined as that portion of the Central Flyway which lies west of the 100th meridian.
Definitions: For the purpose of hunting regulations listed below, the collective terms “dark” and “light” geese include the following species:
Dark geese—Canada geese, white-fronted geese, brant, and all other goose species except light geese.
Light geese—snow (including blue) geese and Ross' geese.
Area, Zone, and Unit Descriptions: Geographic descriptions related to late-season regulations are contained in a later portion of this document.
Area-Specific Provisions: Frameworks for open seasons, season lengths, bag and possession limits, and other special provisions are listed below by Flyway.
Compensatory Days in the Atlantic Flyway: In the Atlantic Flyway States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Virginia, where Sunday hunting is prohibited statewide by State law, all Sundays are closed to all take of migratory waterfowl (including mergansers and coots).
Hunting Seasons and Duck Limits: 60 days, except canvasbacks which may not exceed 20 consecutive days, and daily bag limit of 6 ducks, including no more than 4 mallards (2 hens), 3 scaup, 1 black duck, 1 pintail, 1 mottled duck, 1 fulvous whistling duck, 2 wood ducks, 2 redheads, 1 canvasback, and 4 scoters.
Closures: The season on harlequin ducks is closed.
Lake Champlain Zone, New York: The waterfowl seasons, limits, and shooting hours shall be the same as those selected for the Lake Champlain Zone of Vermont.
Connecticut River Zone, Vermont: The waterfowl seasons, limits, and shooting hours shall be the same as those selected for the Inland Zone of New Hampshire.
Zoning and Split Seasons: Delaware, Florida, Georgia, Maryland, North Carolina, Rhode Island, South Carolina, and Virginia may split their seasons into three segments; Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, and West Virginia may select hunting seasons by zones and may split their seasons into two segments in each zone.
Atlantic Population (AP) Zone: A 30-day season may be held between last Saturday in October (October 27) and January 20 with a 2-bird daily bag limit.
South Zone: A special experimental season may be held between January 15 and February 15, with a 5-bird daily bag limit.
AP Zone: A 30-day season may be held between November 15 and January 20 with a 1-bird daily bag limit.
AP Zone: A 30-day season may be held between last Saturday in October (October 27) and January 20 with a 2-bird daily bag limit.
Special Late Goose Season Area: An experimental season may be held in designated areas of North and South New Jersey from January 15 to February 15, with a 5-bird daily bag limit.
NAP Zone: A 45-day season may be held between October 1 and January 20 with a 2-bird daily bag limit.
Special Late Goose Season Area: An experimental season may be held between January 15 and February 15, with a 5-bird daily bag limit in designated areas of Chemung, Delaware, Tioga, Broome, Sullivan, Westchester, Nassau, Suffolk, Orange, Dutchess, Putnam, and Rockland Counties.
AP Zone: A 30-day season may be held between last Saturday in October (October 27) and January 20 with a 2-bird daily bag limit.
AP Zone: A 30-day season may be held between last Saturday in October (October 27) and January 20 with a 2-bird daily bag limit.
Special Late Goose Season Area: An experimental season may be held from January 15 to February 15 with a 5-bird daily bag limit.
Pymatuning Zone: A 35-day season may be held between October 1 and January 20, with a 1-bird daily bag limit.
AP Zone: A 30-day season may be held between November 15 and January 20 with a 1-bird daily bag limit.
Back Bay Area: Season is closed.
Hunting Seasons and Duck Limits: 60 days (51 days in Alabama, Mississippi, and Tennessee), except that the season for canvasbacks may not exceed 20 consecutive days. The daily bag limit is 6 ducks, including no more than 4 mallards (no more than 2 of which may be females), 3 mottled ducks, 3 scaup, 1 black duck, 1 pintail, 2 wood ducks, 1 canvasback, and 2 redheads.
In Alabama, Indiana, Iowa, Kentucky, Louisiana, Michigan, Ohio, Tennessee, and Wisconsin, the season may be split into two segments in each zone.
In Arkansas, Minnesota, and Mississippi, the season may be split into three segments.
(a) North Zone—The season for Canada geese will close after 70 days or when 7,250 birds have been harvested in the Northern Illinois Quota Zone, whichever occurs first. The daily bag limit is 2 Canada geese.
(b) Central Zone—The season for Canada geese will close after 70 days or when 9,250 birds have been harvested in the Central Illinois Quota Zone, whichever occurs first. The daily bag limit is 2 Canada geese.
(c) South Zone—The harvest of Canada geese in the Southern Illinois and Rend Lake Quota Zones will be limited to 16,550 and 2,100 birds, respectively. The season for Canada geese in each zone will close after 70 days or when the harvest limit has been reached, whichever occurs first. The daily bag limit is 2 Canada geese. In the Southern Illinois Quota Zone, if any of the following conditions exist after December 20, the State, after consultation with the Service, will close the season by emergency order with 48 hours notice:
(1) Average body weights of adult female geese less than 3,200 grams as measured from a weekly sample of a minimum of 50 geese.
(2) Starvation or a major disease outbreak resulting in observed mortality exceeding 5,000 birds in 10 days, or a total mortality exceeding 10,000 birds.
In the remainder of the South Zone, the season may extend for 70 days or until both the Southern Illinois and Rend Lake Quota Zones have been closed, whichever occurs first. The daily bag limit is 2 Canada geese.
(a) North Zone: The season for Canada geese may extend for 50 days.
(b) SJBP Zone—The season for Canada geese may extend for 50 days.
(c) South Zone—The season for Canada geese may extend for 56 days.
(d) Ohio River Zone
(1) Posey County—The season for Canada geese will close after 56 days or when the Canada goose harvest at Hovey Lake Fish and Wildlife Area
(2) Remainder of the Ohio River Zone—The season may extend for 56 days.
(b) Pennyroyal/Coalfield Zone—The season may extend for 50 days. The daily bag limit is 2 Canada geese.
(c) Remainder of the State—The season may extend for 50 days. The daily bag limit is 2 Canada geese.
(1) Allegan County GMU—The Canada goose season will close after 25 days or when 1,100 birds have been harvested, whichever occurs first. The daily bag limit is 1 Canada goose.
(2) Muskegon Wastewater GMU—The Canada goose season will close after 25 days or when 350 birds have been harvested, whichever occurs first. The daily bag limit is 2 Canada geese.
(b) SJBP Zone—The framework opening date for all geese is September 16 and the season for Canada geese may extend for 30 days. The daily bag limit is 2 Canada geese.
(1) Saginaw County GMU—The Canada goose season will close after 50 days or when 2,000 birds have been harvested, whichever occurs first. The daily bag limit is 1 Canada goose.
(2) Tuscola/Huron GMU—The Canada goose season will close after 50 days or when 750 birds have been harvested, whichever occurs first. The daily bag limit is 1 Canada goose.
(c) Southern Michigan GMU—A special Canada goose season may be held between January 5 and February 3. The daily bag limit is 5 Canada geese.
(d) Central Michigan GMU—A special Canada goose season may be held between January 5 and February 3. The daily bag limit is 5 Canada geese.
(1) West Central Zone—The season for Canada geese may extend for 40 days. In the Lac Qui Parle Zone, the season will close after 40 days or when 12,000 birds have been harvested, whichever occurs first. Throughout the West Central Zone, the daily bag limit is 1 Canada goose.
(2) Remainder of West Zone—The season for Canada geese may extend for 40 days. The daily bag limit is 1 Canada goose.
(b) Northwest Zone—The season for Canada geese may extend for 40 days. The daily bag limit is 1 Canada goose.
(c) Remainder of the State—The season for Canada geese may extend for 70 days. The daily bag limit is 2 Canada geese.
(d) Special Late Canada Goose Season—An experimental special Canada goose season of up to 10 days may be held in December, except in the West Central and Lac qui Parle Goose zones. During the special season, the daily bag limit is 5 Canada geese, except in the Southeast Goose Zone, where the daily bag limit is 2.
(b) Southeast Zone—The season for Canada geese may extend for 70 days. The season may be split into 3 segments, provided that at least 1 segment occurs prior to December 1. The daily bag limit is 3 Canada geese through October 31, and 2 Canada geese thereafter.
(c) Remainder of the State—(1) North Zone—The season for Canada geese may extend for 70 days, with no more than 30 days occurring after November 30. The season may be split into 3 segments, provided that 1 segment of at least 9 days occurs prior to October 15. The daily bag limit is 3 Canada geese through October 31, and 2 Canada geese thereafter.
(2) Middle Zone—The season for Canada geese may extend for 70 days, with no more than 30 days occurring after November 30. The season may be split into 3 segments, provided that 1 segment of at least 9 days occurs prior to October 15. The daily bag limit is 3 Canada geese through October 31, and 2 Canada geese thereafter.
(3) South Zone—The season for Canada geese may extend for 70 days. The season may be split into 3 segments, provided that at least 1 segment occurs prior to December 1. The daily bag limit is 3 Canada geese through October 31, and 2 Canada geese thereafter.
(b) Southwest Zone—The season for Canada geese may extend for 50 days, and the harvest will be limited to 500 birds. The daily bag limit is 2 Canada geese.
(c) Kentucky/Barkley Lakes Zone—The season for Canada geese may extend for 50 days. The daily bag limit is 2 Canada geese.
(d) Remainder of the State—The season for Canada geese may extend for 70 days. The daily bag limit is 2 Canada geese.
(b) Collins Zone—The framework opening date for all geese is September 17. The harvest of Canada geese is limited to 600 birds. The season may not exceed 68 days. All Canada geese harvested must be tagged. The daily bag limit is 1 Canada goose, and the season limit will be the number of tags issued to each permittee.
(c) Exterior Zone—The framework opening date for all geese is September 22. The harvest of Canada geese is limited to 24,000 birds, with 500 birds allocated to the Mississippi River Subzone. The season may not exceed 70 days, except in the Mississippi River Subzone, where the season may not exceed 80 days. The daily bag limit is 1 Canada goose. In that portion of the Exterior Zone outside the Mississippi River Subzone, the progress of the harvest must be monitored, and the season closed, if necessary, to ensure that the harvest does not exceed 24,000 birds.
Additional Limits: In addition to the harvest limits stated for the respective zones above, an additional 4,500 Canada geese may be taken in the Horicon Zone under special agricultural permits.
Hunting Seasons and Duck Limits:
(1) High Plains Mallard Management Unit (roughly defined as that portion of the Central Flyway which lies west of the 100th meridian): 97 days, except canvasbacks which may not exceed 25 consecutive days, and a daily bag limit of 6 ducks, including no more than 5 mallards (no more than 2 of which may be hens), 1 mottled duck, 1 canvasback, 1 pintail, 2 redheads, 3 scaup, and 2 wood ducks. The last 23 days may start no earlier than the Saturday nearest December 10 (December 8).
(2) Remainder of the Central Flyway: 74 days, except canvasbacks which may not exceed 25 consecutive days, and a daily bag limit of 6 ducks, including no more than 5 mallards (no more than 2 of which may be hens), 1 mottled duck, 1 canvasback, 1 pintail, 2 redheads, 3 scaup, and 2 wood ducks.
Zoning and Split Seasons: Kansas (Low Plains portion), Montana, Nebraska (Low Plains portion), New Mexico, Oklahoma (Low Plains portion), South Dakota (Low Plains portion), Texas (Low Plains portion), and Wyoming may select hunting seasons by zones.
In Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming, the regular season may be split into two segments.
In Colorado, the season may be split into three segments.
Outside Dates: For dark geese, seasons may be selected between the outside dates of the Saturday nearest October 1 (September 29) and the Sunday nearest February 15 (February 17). For light geese, outside dates for seasons may be selected between the Saturday nearest October 1 (September 29) and March 10. In the Rainwater Basin Light Goose Area (East and West) of Nebraska, temporal and spatial restrictions consistent with the experimental late-winter snow goose hunting strategy endorsed by the Central Flyway Council in July 1999, are required.
Season Lengths and Limits:
Light Geese: States may select a light goose season not to exceed 107 days. The daily bag limit for light geese is 20 with no possession limit.
Dark Geese: In Kansas, Nebraska, North Dakota, Oklahoma, South Dakota, and the Eastern Goose Zone of Texas, States may select a season for Canada geese (or any other dark goose species except white-fronted geese) not to exceed 95 days with a daily bag limit of 3. Additionally, in the Eastern Goose Zone of Texas, an alternative season of 107 days with a daily bag limit of 1 Canada goose may be selected. For white-fronted geese, these States may select either a season of 86 days with a bag limit of 2 or a 107-day season with a bag limit of 1.
In South Dakota, for Canada geese in the Big Stone Power Plant Area of Dark Goose Unit 1, the daily bag limit is 3 until November 30 and 2 thereafter.
In Colorado, Montana, New Mexico and Wyoming, States may select seasons not to exceed 107 days. The daily bag limit for dark geese is 5 in the aggregate.
In the Western Goose Zone of Texas, the season may not exceed 107 days. The daily bag limit for Canada geese (or any other dark goose species except white-fronted geese) is 5. The daily bag limit for white-fronted geese is 1.
The season on coots and common moorhens may be between the outside dates for the season on ducks, but not to exceed 107 days.
Coot, Common Moorhen, and Purple Gallinule Limits: The daily bag and possession limits of coots, common moorhens, and purple gallinules are 25, singly or in the aggregate.
Outside Dates: Between the Saturday nearest October 1 (September 29) and the Sunday nearest January 20 (January 20).
Zoning and Split Seasons: Arizona, California, Idaho, Nevada, Oregon, Utah, and Washington may select hunting seasons by zones.
Arizona, California, Idaho, Nevada, Oregon, Utah, and Washington may split their seasons into two segments.
Colorado, Montana, New Mexico, and Wyoming may split their seasons into three segments.
Colorado River Zone, California: Seasons and limits shall be the same as seasons and limits selected in the
Split Seasons: Unless otherwise specified, seasons for geese may be split into up to 3 segments. Three-way split seasons for Canada geese and white-fronted geese require Pacific Flyway Council and U.S. Fish and Wildlife Service approval and a 3-year evaluation by each participating State.
Brant Season—A 16-consecutive-day season may be selected in Oregon. A 16-day season may be selected in Washington, and this season may be split into 2-segments. A 30-consecutive-day season may be selected in California. In these States, the daily bag limit is 2 brant and is in addition to dark goose limits.
Balance-of-the-State Zone—A 79-day season may be selected. Limits may not include more than 3 geese per day, of which not more than 2 may be white-fronted geese and not more than 1 may be a cackling Canada goose or Aleutian Canada goose. Three areas in the Balance-of-the-State Zone are restricted in the hunting of certain geese:
(1) In the Counties of Del Norte and Humboldt, there will be no open season for Canada geese, except for the Special September Canada goose hunt in Humboldt County.
(2) In the Sacramento Valley Special Management Area (West), the season on white-fronted geese must end on or before December 14, and, in the Sacramento Valley Special Management Area (East), there will be no open season for Canada geese.
(3) In the San Joaquin Valley Special Management Area, there will be no open season for Canada geese.
Lake County Zone—The daily dark goose bag limit may not include more than 2 white-fronted geese.
Western Zone—In the Special Canada Goose Management Area, except for designated areas, there will be no open season on Canada geese. In the designated areas, individual quotas will be established that collectively will not exceed 165 dusky Canada geese. See section on quota zones. In those designated areas, the daily bag limit of dark geese is 4 and may include no more than 1 Aleutian Canada goose.
Closed Zone: Those portions of Coos and Curry Counties west of US 101 and all of Tillamook and Lincoln Counties.
Southwest Quota Zone—In the Special Goose Management Area, except for designated areas, there will be no open season on Canada geese. In the designated areas, individual quotas will be established that collectively will not exceed 85 dusky Canada geese. See section on quota zones. In this area, the daily bag limit of dark geese is 4 and may include 4 cackling Canada geese. In Southwest Quota Zone Area 2B (Pacific and Grays Harbor Counties) the dark goose bag limit may include 1 Aleutian Canada goose.
Southwest Unit and Southeastern Unit—The daily bag limit on dark geese is 4.
In Utah, no more than 2,000 permits may be issued. The season must end no later than the second Sunday in December (December 9) or upon attainment of 10 trumpeter swans in the harvest, whichever occurs earliest. Utah must enter into a Memorandum of Agreement with the Service regarding harvest monitoring, season closure procedures, and education requirements for swan seasons in Utah.
In Nevada, no more than 650 permits may be issued. The season must end no later than the Sunday following January 1 (January 6) or upon attainment of 5 trumpeter swans in the harvest, whichever occurs earliest.
In Montana, no more than 500 permits may be issued. The season must end no later than December 1.
South Zone: Remainder of the State.
South Zone: Remainder of the State.
Central Zone: That portion of the State east of the Berkshire Zone and west of a line extending south from the New Hampshire border on I-95 to U.S. 1, south on U.S. 1 to I-93, south on I-93 to MA 3, south on MA 3 to U.S. 6, west on U.S. 6 to MA 28, west on MA 28 to I-195, west to the Rhode Island border; except the waters, and the lands 150 yards inland from the high-water mark, of the Assonet River upstream to the MA 24 bridge, and the Taunton River upstream to the Center St.-Elm St. bridge shall be in the Coastal Zone.
Coastal Zone: That portion of Massachusetts east and south of the Central Zone.
Inland Zone: That portion of the State north and west of the above boundary and along the Massachusetts border crossing the Connecticut River to Interstate 91 and northward in Vermont to Route 2, east to 102, northward to the Canadian border.
North Zone: That portion of the State west of the Coastal Zone and north of a line extending west from the Garden State Parkway on NJ 70 to the New Jersey Turnpike, north on the turnpike to U.S. 206, north on U.S. 206 to U.S. 1 at Trenton, west on U.S. 1 to the Pennsylvania border in the Delaware River.
South Zone: That portion of the State not within the North Zone or the Coastal Zone.
Long Island Zone: That area consisting of Nassau County, Suffolk County, that area of Westchester County southeast of I-95, and their tidal waters.
Western Zone: That area west of a line extending from Lake Ontario east along the north shore of the Salmon River to I-81, and south along I-81 to the Pennsylvania border.
Northeastern Zone: That area north of a line extending from Lake Ontario east along the north shore of the Salmon River to I-81 to NY 31, east along NY 31 to NY 13, north along NY 13 to NY 49, east along NY 49 to NY 365, east along NY 365 to NY 28, east along NY 28 to NY 29, east along NY 29 to I-87, north along I-87 to U.S. 9 (at Exit 20), north along U.S. 9 to NY 149, east along NY 149 to U.S. 4, north along U.S. 4 to the Vermont border, exclusive of the Lake Champlain Zone.
Southeastern Zone: The remaining portion of New York.
Northwest Zone: The area bounded on the north by the Lake Erie Zone and including all of Erie and Crawford Counties and those portions of Mercer and Venango Counties north of I-80.
North Zone: That portion of the State east of the Northwest Zone and north of a line extending east on I-80 to U.S. 220, Route 220 to I-180, I-180 to I-80, and I-80 to the Delaware River.
South Zone: The remaining portion of Pennsylvania.
Interior Zone: That portion of Vermont west of the Lake Champlain Zone and eastward of a line extending from the Massachusetts border at Interstate 91; north along Interstate 91 to US 2; east along US 2 to VT 102; north along VT 102 to VT 253; north along VT 253 to the Canadian border.
Connecticut River Zone: The remaining portion of Vermont east of the Interior Zone.
Zone 2 (Allegheny Mountain Upland): That area bounded by a line extending south along U.S. 220 through Keyser to U.S. 50; U.S. 50 to WV 93; WV 93 south to WV 42; WV 42 south to Petersburg; WV 28 south to Minnehaha Springs; WV 39 west to U.S. 219; U.S. 219 south to I-64; I-64 west to U.S. 60; U.S. 60 west to U.S. 19; U.S. 19 north to I-79, I-79 north to I-68; I-68 east to the Maryland border; and along the border to the point of beginning.
North Zone: The remainder of Alabama.
Central Zone: That portion of the State south of the North Zone to a line extending east from the Missouri border along the Modoc Ferry route to Modoc Ferry Road, east along Modoc Ferry Road to Modoc Road, northeasterly along Modoc Road and St. Leo's Road to Illinois Highway 3, north along Illinois 3 to Illinois 159, north along Illinois 159 to Illinois 161, east along Illinois 161 to Illinois 4, north along Illinois 4 to Interstate Highway 70, east along I-70 to the Bond County line, north and east along the Bond County line to Fayette County, north and east along the Fayette County line to Effingham County, east and south along the Effingham County line to I-70, then east along I-70 to the Indiana border.
South Zone: The remainder of Illinois.
Ohio River Zone: That portion of the State south of a line extending east from the Illinois border along Interstate Highway 64 to New Albany, east along State
South Zone: That portion of the State between the North and Ohio River Zone boundaries.
South Zone: The remainder of Iowa.
East Zone: The remainder of Kentucky.
East Zone: The remainder of Louisiana.
Catahoula Lake Area: All of Catahoula Lake, including those portions known locally as Round Prairie, Catfish Prairie, and Frazier's Arm. See State regulations for additional information.
Middle Zone: That portion of the Lower Peninsula north of a line beginning at the Wisconsin border in Lake Michigan due west of the mouth of Stony Creek in Oceana County; then due east to, and easterly and southerly along the south shore of Stony Creek to Scenic Drive, easterly and southerly along Scenic Drive to Stony Lake Road, easterly along Stony Lake and Garfield Roads to Michigan Highway 20, east along Michigan 20 to U.S. Highway 10 Business Route (BR) in the city of Midland, easterly along U.S. 10 BR to U.S. 10, easterly along U.S. 10 to Interstate Highway 75/U.S. Highway 23, northerly along I-75/U.S. 23 to the U.S. 23 exit at Standish, easterly along U.S. 23 to the centerline of the Au Gres River, then southerly along the centerline of the Au Gres River to Saginaw Bay, then on a line directly east 10 miles into Saginaw Bay, and from that point on a line directly northeast to the Canadian border.
South Zone: The remainder of Michigan.
South Zone: That portion of Missouri south of a line running west from the Illinois border on Missouri Highway 34 to Interstate 55; south on Interstate 55 to U.S. Highway 62; west on U.S. Highway 62 to Missouri Highway 53; north on Missouri Highway 53 to Missouri Highway 51; north on Missouri Highway 51 to U.S. Highway 60; west on U.S. Highway 60 to Missouri Highway 21; north on Missouri Highway 21 to Missouri Highway 72; west on Missouri Highway 72 to Missouri Highway 32; west on Missouri Highway 32 to U.S. Highway 65; north on U.S. Highway 65 to U.S. Highway 54; west on U.S. Highway 54 to the Kansas border.
Middle Zone: The remainder of Missouri.
South Zone: The remainder of Ohio.
South Zone: The remainder of Wisconsin.
Low Plains Early Zone: That area of Kansas east of U.S. 283, and generally west of a line beginning at the Junction of the Nebraska border and KS 28; south on KS 28 to U.S. 36; east on U.S. 36 to KS 199; south on KS 199 to Republic Co. Road 563; south on Republic Co. Road 563 to KS 148; east on KS 148 to Republic Co. Road 138; south on Republic Co. Road 138 to Cloud Co. Road 765; south on Cloud Co. Road 765 to KS 9; west on KS 9 to U.S. 24; west on U.S. 24 to U.S. 281; north on U.S. 281 to U.S. 36; west on U.S. 36 to U.S. 183; south on U.S. 183 to U.S. 24; west on U.S. 24 to KS 18; southeast on KS 18 to U.S. 183; south on U.S. 183 to KS 4; east on KS 4 to I-135; south on I-135 to KS 61; southwest on KS 61 to KS 96; northwest on KS 96 to U.S. 56; west on U.S. 56 to U.S. 281; south on U.S. 281 to U.S. 54; and west on U.S. 54 to U.S. 183; north on U.S. 183 to U.S. 56; southwest on U.S. 56 to U.S. 283.
Low Plains Late Zone: The remainder of Kansas.
Zone 2: The remainder of Montana.
Low Plains Zone 1: That portion of the State east of the High Plains Zone and north and west of a line extending from the South Dakota border along NE 26E Spur to NE 12, west on NE 12 to the Knox/Boyd County line, south along the county line to the Niobrara River and along the Niobrara River to U.S. 183 (the High Plains Zone line). Where the Niobrara River forms the boundary, both banks will be in Zone 1.
Low Plains Zone 2: Area bounded by designated Federal and State highway's and political boundaries beginning at the Kansas-Nebraska border on U.S. Hwy. 73; north to NE Hwy. 67 north to U.S. Hwy 136; east to the Steamboat Trace (Trace); north to Federal Levee R-562; north and west to the Trace/Burlington Northern Railroad right-of-way; north to NE Hwy 2; west to U.S. Hwy 75; north to NE Hwy. 2; west to NE Hwy. 43; north to U.S. Hwy. 34; east to NE Hwy. 63; north and west to U.S. Hwy. 77; north to NE Hwy. 92; west to U.S. Hwy. 81; south to NE Hwy. 66; west to NE Hwy. 14; south to U.S. Hwy 34; west to NE Hwy. 2; south to U.S. Hwy. I-80; west to Gunbarrrel Rd. (Hall/Hamilton county line); south to Giltner Rd.; west to U.S. Hwy. 281; south to U.S. Hwy. 34; west to NE Hwy 10; north to County Road “R” (Kearney County) and County Road #742 (Phelps County); west to County Road #438 (Gosper County line); south along County Road #438 (Gosper County line) to County Road #726 (Furnas County Line); east to County Road #438 (Harlan County Line); south to U. S. Hwy 34; south and west to U.S. Hwy. 136; east to NE Hwy. 10; south to the Kansas-Nebraska border.
Low Plains Zone 3: The area east of the High Plains Zone, excluding Low Plains Zone 1, north of Low Plains Zone 2.
Low Plains Zone 4: The area east of the High Plains Zone and south of Zone 2.
South Zone: The remainder of New Mexico.
Low Plains: The remainder of North Dakota.
Low Plains Zone 1: That portion of the State east of the High Plains Zone and north of a line extending east from the Texas border along OK 33 to OK 47, east along OK 47 to U.S. 183, south along U.S. 183 to I-40, east along I-40 to U.S. 177, north along U.S. 177 to OK 33, west along OK 33 to I-35, north along I-35 to U.S. 412, west along U.S. 412 to OK 132, then north along OK 132 to the Kansas border.
Low Plains Zone 2: The remainder of Oklahoma.
North Zone: That portion of northeastern South Dakota east of the High Plains Unit and north of a line extending east along US 212 to SD 15, then north along SD 15 to Big Stone Lake at the Minnesota border.
South Zone: That portion of Gregory County east of SD 47, Charles Mix County south of SD 44 to the Douglas County line, south on SD 50 to Geddes, east on the Geddes Hwy. to U.S. 281, south on U.S. 281 and U.S. 18 to SD 50, south and east on SD 50 to Bon Homme County line, the Counties of Bon Homme, Yankton, and Clay south of SD 50, and Union County south and west of SD 50 and I-29.
Middle Zone: The remainder of South Dakota.
Low Plains North Zone: That portion of northeastern Texas east of the High Plains Zone and north of a line beginning at the International Toll Bridge south of Del Rio, then extending east on U.S. 90 to San Antonio, then continuing east on I-10 to the Louisiana border at Orange, Texas.
Low Plains South Zone: The remainder of Texas.
Zone 2: The reminder of Wyoming.
North Zone: GMUs 1-5, those portions of GMUs 6 and 8 within Coconino County, and GMUs 7, 9, 12A.
Colorado River Zone: Those portions of San Bernardino, Riverside, and Imperial Counties east of a line extending from the Nevada border south along U.S. 95 to Vidal Junction; south on a road known as “Aqueduct Road” in San Bernardino County through the town of Rice to the San Bernardino-Riverside County line; south on a road known in Riverside County as the “Desert Center to Rice Road” to the town of Desert Center; east 31 miles on I-10 to the Wiley Well Road; south on this road to Wiley Well; southeast along the Army-Milpitas Road to the Blythe, Brawley, Davis Lake intersections; south on the Blythe-Brawley paved road to the Ogilby and Tumco Mine Road; south on this road to U.S. 80; east seven miles on U.S. 80 to the Andrade-Algodones Road; south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone: That portion of southern California (but excluding the Colorado River Zone) south and east of a line extending from the Pacific Ocean east along the Santa Maria River to CA 166 near the City of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of the Tehachapi Mountains at Tejon Pass; east and north along the crest of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on CA 58 to I-15; east on I-15 to CA 127; north on CA 127 to the Nevada border.
Southern San Joaquin Valley Temporary Zone: All of Kings and Tulare Counties and that portion of Kern County north of the Southern Zone.
Balance-of-the-State Zone: The remainder of California not included in the Northeastern, Southern, and Colorado River Zones, and the Southern San Joaquin Valley Temporary Zone.
Zone 2: Includes the following Counties or portions of Counties: Adams; Bear Lake; Benewah; Bingham within the Blackfoot Reservoir drainage; those portions of Blaine west of ID 75, south and east of U.S. 93, and between ID 75 and U.S. 93 north of U.S. 20 outside the Silver Creek drainage; Bonner; Bonneville; Boundary; Butte; Camas; Caribou except the Fort Hall Indian Reservation; Cassia within the Minidoka National Wildlife Refuge; Clark; Clearwater; Custer; Elmore within the Camas Creek drainage; Franklin; Fremont; Idaho; Jefferson; Kootenai; Latah; Lemhi; Lewis; Madison; Nez Perce; Oneida; Power within the Minidoka National Wildlife Refuge; Shoshone; Teton; and Valley Counties.
Zone 3: Includes the following Counties or portions of Counties: Ada; Blaine between ID 75 and U.S. 93 south of U.S. 20 and that additional area between ID 75 and U.S. 93 north of U.S. 20 within the Silver Creek drainage; Boise; Canyon; Cassia except within the Minidoka National Wildlife Refuge; Elmore except the Camas Creek drainage; Gem; Gooding; Jerome; Lincoln; Minidoka; Owyhee; Payette; Power west of ID 37 and ID 39 except that portion within the Minidoka National Wildlife Refuge; Twin Falls; and Washington Counties.
Remainder-of-the-State Zone: The remainder of Nevada.
Columbia Basin Mallard Management Unit: Gilliam, Morrow, and Umatilla Counties.
Zone 2: The remainder of the State.
Zone 2: The remainder of Utah.
Columbia Basin Mallard Management Unit: Same as East Zone.
West Zone: All areas to the west of the East Zone.
AP Zone: Remainder of the State.
South Zone: Same as for ducks.
North Zone: Same as for ducks.
AP Zone: Remainder of the State.
AP Zone: Remainder of the State.
Special Late Season Area: That portion of the Coastal Zone (see duck zones) that lies north of Route 14, east of St. George Road, and east of the Powder Point Bridge.
South—that portion of the State within a continuous line that runs west from the Atlantic Ocean at Ship Bottom along Route 72 to Route 70; then west along Route 70 to Route 206; then south along Route 206 to Route 536; then west along Route 536 to Route 322; then west along Route 322 to Route 55; then south along Route 55 to Route 553 (Buck Road); then south along Route 553 to Route 40; then east along Route 40 to Route 55; then south along Route 55 to Route 552 (Sherman Avenue); then west along Route 552 to Carmel Road; then south along Carmel Road to Route 49; then east along Route 49 to Route 555; then south along Route 555 to Route 553; then east along Route 553 to Route 649; then north along Route 649 to Route 670; then east along Route 670 to Route 47; then north along Route 47 to Route 548; then east along Route 548 to Route 49; then east along Route 49 to Route 50; then south along Route 50 to Route 9; then south along Route 9 to Route 625 (Sea Isle City Boulevard); then east along Route 625 to the Atlantic Ocean; then north to the beginning point.
Long Island (NAP) Zone: Same as Long Island Duck Zone.
Southwest (SJBP) Zone: All of Allegany, Cattaraugus, and Chautaugua Counties; that area of Erie, Wyoming and Niagara Counties lying south and west of a continuous line extending from the Rainbow Bridge below Niagara Falls, north along the Robert Moses Parkway to U.S. Route 62A, then east along Route 62A to U.S. Route 62, then southeast along U.S. Route 62 to Interstate Route 290, then south along Route 290 to Exit 50 of the NYS Thruway, then east along I-90 to State Route 98, then south along State Route 98 to the Cattaraugus County line; and that area of Steuben and Chemung Counties lying south of State Route 17.
AP Zone: Remainder of the State.
Northeast Hunt Unit—Counties of Bertie (that portion east of NC-45, and that portion which is both west of U.S. 17, and east of U.S.-13), Camden, Chowan, Currituck, Dare, Hyde, Northhampton (that portion which is both north of U.S.-158 and east of NC-35), Pasquotank, Perquimans, Tyrrell, and Washington.
Pymatuning Zone: Area south of SR 198 from the Ohio State line to the intersection of SR 18, to the intersection of U.S. Route 322/SR 18, to the intersection of SR 3013, then south to the Crawford/Mercer County line.
Special Late Season Area for Canada Geese: Same as SJBP Zone and the area from New York State line east of U.S. Route 220 to intersection of I-180, east of I-180 to intersection of SR 147, east of SR 147 to intersection of U.S. Route 322, east of Route 322 to intersection of I-81, north of I-81 to intersection of I-80, north of I-80 to New Jersey State line.
AP Zone: Remainder of the State.
Back Bay Area: The waters of Back Bay and its tributaries and the marshes adjacent thereto, and on the land and marshes between Back Bay and the Atlantic Ocean from Sandbridge to the North Carolina line, and on and along the shore of North Landing River and the marshes adjacent thereto, and on and along the shores of Binson Inlet Lake (formerly known as Lake Tecumseh) and Red Wing Lake and the marshes adjacent thereto.
AP Zone: Remainder of the State.
SJBP Zone: That portion of Morgan County east of U.S. Highway 31, north of State Highway 36, and west of U.S. 231; that portion of Limestone County south of U.S. 72; and that portion of Madison County south of Swancott Road and west of Triana Road.
North Zone:
Northern Illinois Quota Zone: The Counties of McHenry, Lake, Kane, DuPage, and those portions of LaSalle and Will Counties north of Interstate Highway 80.
Central Zone:
Central Illinois Quota Zone: The Counties of Grundy, Woodford, Peoria, Knox, Fulton, Tazewell, Mason, Cass, Morgan, Pike, Calhoun, and Jersey, and those portions of LaSalle and Will Counties south of Interstate Highway 80.
South Zone:
Southern Illinois Quota Zone: Alexander, Jackson, Union, and Williamson Counties.
Rend Lake Quota Zone: Franklin and Jefferson Counties.
SJBP Zone: Jasper, LaGrange, LaPorte, Starke, and Steuben Counties, and that portion of the Jasper-Pulaski Fish and Wildlife Area in Pulaski County.
Ballard Reporting Area: That area encompassed by a line beginning at the northwest city limits of Wickliffe in Ballard County and extending westward to the middle of the Mississippi River, north along the Mississippi River and along the low-water mark of the Ohio River on the Illinois shore to the Ballard-McCracken County line, south along the county line to Kentucky Highway 358, south along Kentucky 358 to U.S. Highway 60 at LaCenter; then southwest along U.S. 60 to the northeast city limits of Wickliffe.
Henderson-Union Reporting Area: Henderson County and that portion of Union County within the Western Zone.
Pennyroyal/Coalfield Zone: Butler, Daviess, Ohio, Simpson, and Warren Counties and all counties lying west to the boundary of the Western Goose Zone.
SJBP Zone is the rest of the state, that area south and east of the boundary described above.
Tuscola/Huron Goose Management Unit (GMU): Those portions of Tuscola and Huron Counties bounded on the south by Michigan Highway 138 and Bay City Road, on the east by Colwood and Bay Port Roads, on the north by Kilmanagh Road and a line extending directly west off the end of Kilmanagh Road into Saginaw Bay to the west boundary, and on the west by the Tuscola-Bay County line and a line extending directly north off the end of the Tuscola-Bay County line into Saginaw Bay to the north boundary.
Allegan County GMU: That area encompassed by a line beginning at the junction of 136th Avenue and Interstate Highway 196 in Lake Town Township and extending easterly along 136th Avenue to Michigan Highway 40, southerly along Michigan 40 through the city of Allegan to 108th Avenue in Trowbridge Township, westerly along 108th Avenue to 46th Street, northerly
Saginaw County GMU: That portion of Saginaw County bounded by Michigan Highway 46 on the north; Michigan 52 on the west; Michigan 57 on the south; and Michigan 13 on the east.
Muskegon Wastewater GMU: That portion of Muskegon County within the boundaries of the Muskegon County wastewater system, east of the Muskegon State Game Area, in sections 5, 6, 7, 8, 17, 18, 19, 20, 29, 30, and 32, T10N R14W, and sections 1, 2, 10, 11, 12, 13, 14, 24, and 25, T10N R15W, as posted.
Special Canada Goose Seasons:
Southern Michigan GMU: That portion of the State, including the Great Lakes and interconnecting waterways and excluding the Allegan County GMU, south of a line beginning at the Ontario border at the Bluewater Bridge in the city of Port Huron and extending westerly and southerly along Interstate Highway 94 to I-69, westerly along I-69 to Michigan Highway 21, westerly along Michigan 21 to I-96, northerly along I-96 to I-196, westerly along I-196 to Lake Michigan Drive (M-45) in Grand Rapids, westerly along Lake Michigan Drive to the Lake Michigan shore, then directly west from the end of Lake Michigan Drive to the Wisconsin border.
Central Michigan GMU: That portion of the Lower Peninsula north of the Southern Michigan GMU but south of a line beginning at the Wisconsin border in Lake Michigan due west of the mouth of Stony Creek in Oceana County; then due east to, and easterly and southerly along the south shore of Stony Creek to Scenic Drive, easterly and southerly along Scenic Drive to Stony Lake Road, easterly along Stony Lake and Garfield Roads to Michigan Highway 20, easterly along Michigan 20 to U.S. Highway 10 Business Route (BR) in the city of Midland, easterly along U.S. 10 BR to U.S. 10, easterly along U.S. 10 to Interstate Highway 75/U.S. Highway 23, northerly along I-75/U.S. 23 to the U.S. 23 exit at Standish, easterly along U.S. 23 to the centerline of the Au Gres River, then southerly along the centerline of the Au Gres River to Saginaw Bay, then on a line directly east 10 miles into Saginaw Bay, and from that point on a line directly northeast to the Canadian border, excluding the Tuscola/Huron GMU, Saginaw County GMU, and Muskegon Wastewater GMU.
West Central Zone: That area encompassed by a line beginning at the intersection of State Trunk Highway (STH) 29 and U.S. Highway 212 and extending west along U.S. 212 to U.S. 59, south along U.S. 59 to STH 67, west along STH 67 to U.S. 75, north along U.S. 75 to County State Aid Highway (CSAH) 30 in Lac qui Parle County, west along CSAH 30 to the western boundary of the State, north along the western boundary of the State to a point due south of the intersection of STH 7 and CSAH 7 in Big Stone County, and continuing due north to said intersection, then north along CSAH 7 to CSAH 6 in Big Stone County, east along CSAH 6 to CSAH 21 in Big Stone County, south along CSAH 21 to CSAH 10 in Big Stone County, east along CSAH 10 to CSAH 22 in Swift County, east along CSAH 22 to CSAH 5 in Swift County, south along CSAH 5 to U.S. 12, east along U.S. 12 to CSAH 17 in Swift County, south along CSAH 17 to CSAH 9 in Chippewa County, south along CSAH 9 to STH 40, east along STH 40 to STH 29, then south along STH 29 to the point of beginning.
Lac qui Parle Zone: That area encompassed by a line beginning at the intersection of U.S. Highway 212 and County State Aid Highway (CSAH) 27 in Lac qui Parle County and extending north along CSAH 27 to CSAH 20 in Lac qui Parle County, west along CSAH 20 to State Trunk Highway (STH) 40, north along STH 40 to STH 119, north along STH 119 to CSAH 34 in Lac qui Parle County, west along CSAH 34 to CSAH 19 in Lac qui Parle County, north and west along CSAH 19 to CSAH 38 in Lac qui Parle County, west and north along CSAH 38 to U.S. 75, north along U.S. 75 to STH 7, east along STH 7 to CSAH 6
Northwest Zone: That portion of the state encompassed by a line extending east from the North Dakota border along U.S. Highway 2 to State Trunk Highway (STH) 32, north along STH 32 to STH 92, east along STH 92 to County State Aid Highway (CSAH) 2 in Polk County, north along CSAH 2 to CSAH 27 in Pennington County, north along CSAH 27 to STH 1, east along STH 1 to CSAH 28 in Pennington County, north along CSAH 28 to CSAH 54 in Marshall County, north along CSAH 54 to CSAH 9 in Roseau County, north along CSAH 9 to STH 11, west along STH 11 to STH 310, and north along STH 310 to the Manitoba border.
Special Canada Goose Seasons:
Southeast Zone: That part of the State within the following described boundaries: beginning at the intersection of U.S. Highway 52 and the south boundary of the Twin Cities Metro Canada Goose Zone; thence along the U.S. Highway 52 to State Trunk Highway (STH) 57; thence along STH 57 to the municipal boundary of Kasson; thence along the municipal boundary of Kasson County State Aid Highway (CSAH) 13, Dodge County; thence along CSAH 13 to STH 30; thence along STH 30 to U.S. Highway 63; thence along U.S. Highway 63 to the south boundary of the State; thence along the south and east boundaries of the State to the south boundary of the Twin Cities Metro Canada Goose Zone; thence along said boundary to the point of beginning.
North Zone: Swan Lake Zone: That area bounded by U.S. Highway 36 on the north, Missouri Highway 5 on the east, Missouri 240 and U.S. 65 on the south, and U.S. 65 on the west.
Middle Zone: Southeast Zone: That portion of the State encompassed by a line beginning at the intersection of Missouri Highway (MO) 34 and Interstate 55 and extending south along I-55 to U.S. Highway 62, west along U.S. 62 to MO 53, north along MO 53 to MO 51, north along MO 51 to U.S. 60, west along U.S. 60 to MO 21, north along MO 21 to MO 72, east along MO 72 to MO 34, then east along MO 34 to I-55.
North Zone: Lake Erie SJBP Zone: That portion of the State encompassed by a line beginning in Lucas County at the Michigan State line on I-75, and extending south along I-75 to I-280, south along I-280 to I-80, east along I-80 to the Pennsylvania State line in Trumbull county, north along the Pennsylvania State line to SR 6 in Ashtabula county, west along SR 6 to the Lake/Cuyahoga county line, north along the Lake/Cuyahoga county line to the shore of Lake Erie.
Northwest Zone: Lake, Obion and Weakley Counties and those portions of Gibson and Dyer Counties not included in the Southwest Tennessee Zone.
Kentucky/Barkley Lakes Zone: That portion of the State bounded on the west by the eastern boundaries of the Northwest and Southwest Zones and on the east by State Highway 13 from the Alabama border to Clarksville and U.S. Highway 79 from Clarksville to the Kentucky border.
Collins Zone: That area encompassed by a line beginning at the intersection of Hilltop Road and Collins Marsh Road in Manitowoc County and extending westerly along Hilltop Road to Humpty Dumpty Road, southerly along Humpty Dumpty Road to Poplar Grove Road, easterly and southerly along Poplar Grove Road to County Highway JJ, southeasterly along County JJ to Collins Road, southerly along Collins Road to the Manitowoc River, southeasterly along the Manitowoc River to Quarry Road, northerly along Quarry Road to Einberger Road, northerly along Einberger Road to Moschel Road, westerly along Moschel Road to Collins Marsh Road, northerly along Collins Marsh Road to Hilltop Road.
Exterior Zone: That portion of the State not included in the Horicon or Collins Zones.
Mississippi River Subzone: That area encompassed by a line beginning at the intersection of the Burlington Northern & Santa Fe Railway and the Illinois border in Grant County and extending northerly along the Burlington Northern & Santa Fe Railway to the city limit of Prescott in Pierce County, then west along the Prescott city limit to the Minnesota border.
Rock Prairie Subzone: That area encompassed by a line beginning at the intersection of the Illinois border and Interstate Highway 90 and extending north along I-90 to County Highway A, east along County A to U.S. Highway 12, southeast along U.S. 12 to State Highway 50, west along State 50 to State 120, then south along 120 to the Illinois border.
Brown County Subzone: That area encompassed by a line beginning at the intersection of the Fox River with Green Bay in Brown County and extending southerly along the Fox River to State Highway 29, northwesterly along State 29 to the Brown County line, south, east, and north along the Brown County line to Green Bay, due west to the midpoint of the Green Bay Ship Channel, then southwesterly along the Green Bay Ship Channel to the Fox River.
South Park/San Luis Valley Area: Alamosa, Chaffee, Conejos, Costilla, Custer, Fremont, Lake, Park, Teller, and Rio Grande Counties and those portions of Hinsdale, Mineral, and Saguache Counties east of the Continental Divide.
North Park Area: Jackson County.
Arkansas Valley Area: Baca, Bent, Crowley, Kiowa, Otero, and Prowers Counties.
Pueblo County Area: Pueblo County.
Remainder: Remainder of the Central Flyway portion of Colorado.
Eastern Colorado Late Light Goose Area: that portion of the State east of Interstate Highway 25.
Unit 1: That portion of Kansas east of a line beginning at the intersection of the Nebraska border and KS 99, extending south along KS 99 to I-70 to U.S. 75, south on U.S. 75 to U.S. 54, west on U.S. 54 to KS 99, and then south on KS 99 to the Oklahoma border.
Unit 2: The remainder of Kansas, laying west of Unit 1.
Dark Geese:
Marais des Cygnes Valley Unit: The area is bounded by the Missouri border to KS 68, KS 68 to U.S. 169, U.S. 169 to KS 7, KS 7 to KS 31, KS 31 to U.S. 69, U.S. 69 to KS 239, KS 239 to the Missouri border.
Southeast Unit: That part of Kansas bounded by a line from the Kansas-Missouri State line west on US-160 to its junction with US-69, then north on US-69 to its junction with K-39, then west on K-39 to its junction with US-169, then south on US-169 to its junction with the Kansas-Oklahoma State line, then east on the Kansas-Oklahoma State line to its junction with the Kansas-Missouri State line, then north on the Kansas-Missouri State line to its junction with US-160, except Federal and State sanctuaries.
Remainder: Includes the remainder of the Central Flyway portion of Montana.
North Unit: Keya Paha County east of U.S. 183 and all of Boyd County, including the boundary waters of the Niobrara River, all of Knox County and that portion of Cedar County west of U.S. 81. Where the Niobrara river forms the boundary, both banks will be in the north Unit.
Platte River Unit: That area south and west of U.S. 281 at the Kansas/Nebraska border, north to Giltner Road (near Doniphan), east to NE 14, north to NE 91, west to U.S. 183, south to NE 92, west to NE 61, north to U.S. 2, west to the intersection of Garden, Grant, and Sheridan counties, then west along the northern border of Garden, Morrill, and Scotts Bluff counties to the Wyoming border.
Northcentral Unit: That area north of the Platte River Unit and west of U.S. 183.
East Unit: The remainder of Nebraska.
Light Geese:
Rainwater Basin Light Goose Area (West): The area bounded by the junction of U.S. 283 and U.S. 30 at Lexington, east on U.S. 30 to U.S. 281, south on U.S. 281 to NE 4, west on NE 4 to U.S. 34, continue west on U.S. 34 to U.S. 283, then north on U.S. 283 to the beginning.
Rainwater Basin Light Goose Area (East): The area bounded by the junction of U.S. 281 and US 30 at Grand Island, north and east on U.S. 30 to NE 92, east on NE 92 to NE 15, south on NE 15 to NE 4, west on NE 4 to U.S. 281, north on U.S. 281 to the beginning.
Remainder of State: The remainder portion of Nebraska.
New Mexico (Central Flyway Portion): Dark Geese.
Middle Rio Grande Valley Unit: Sierra, Socorro, and Valencia counties.
Remainder: The remainder of the Central Flyway portion of New Mexico.
Unit 1: Statewide except for Units 2, 3 and 4.
Big Stone Power Plant Area: That portion of Grant and Roberts Counties east of SD 15 and north of SD 20.
Unit 2: Brule, Buffalo, Campbell, Charles Mix, Dewey, Gregory, Hughes, Hyde, Lyman, Potter, Stanley, Sully, and Walworth Counties and that portion of Corson County east of South Dakota State Highway 65.
Unit 3: Clark, Codington, Day, Deuel, Grant, Hamlin, Marshall, and Roberts Counties.
Unit 4: Bennett County.
East Unit: Remainder of State.
Area 2: Converse and Platte County.
Area 3: Albany, Big Horn, Campbell, Crook, Fremont, Johnson, Laramie, Niobrara, Sheridan, and Weston Counties and those portions of Carbon County east of the Continental Divide and Park County north of T58N.
Area 4: Goshen County.
GMU 22 and 23: Game Management Units 22 and 23.
Remainder of State: The remainder of Arizona.
Colorado River Zone: Those portions of San Bernardino, Riverside, and Imperial Counties east of a line extending from the Nevada border south along U.S. 95 to Vidal Junction; south on a road known as “Aqueduct Road” in San Bernardino County through the town of Rice to the San Bernardino-Riverside County line; south on a road known in Riverside County as the “Desert Center to Rice Road” to the town of Desert Center; east 31 miles on I-10 to the Wiley Well Road; south on this road to Wiley Well; southeast along the Army-Milpitas Road to the Blythe, Brawley, Davis Lake intersections; south on the Blythe-Brawley paved road to the Ogilby and Tumco Mine Road; south on this road to U.S. 80; east seven miles on U.S. 80 to the Andrade-Algodones Road; south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone: That portion of southern California (but excluding the Colorado River Zone) south and east of a line extending from the Pacific Ocean east along the Santa Maria River to CA 166 near the City of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of the Tehachapi Mountains at Tejon Pass; east and north along the crest of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on CA 58 to I-15; east on I-15 to CA 127; north on CA 127 to the Nevada border.
Balance-of-the-State Zone: The remainder of California not included in the Northeastern, Southern, and the Colorado River Zones.
Del Norte and Humboldt Area: The Counties of Del Norte and Humboldt.
Sacramento Valley Special Management Area (East): That area bounded by a line beginning at the junction of the Gridley-Colusa Highway and the Cherokee Canal; west on the Gridley-Colusa Highway to Gould Road; west on Gould Road and due west 0.75 miles directly to Highway 45; south on Highway 45 to Highway 20; east on Highway 20 to West Butte Road; north on West Butte Road to Pass Road; west on Pass Road to West Butte Road; north on West Butte Road to North Butte Road; west on North Butte Road and due west 0.5 miles directly to the Cherokee Canal; north on the Cherokee Canal to the point of beginning.
Sacramento Valley Special Management Area (West): That area bounded by a line beginning at Willows south on I-5 to Hahn Road; easterly on Hahn Road and the Grimes-Arbuckle Road to Grimes; northerly on CA 45 to the junction with CA 162; northerly on CA 45/162 to Glenn; and westerly on CA 162 to the point of beginning in Willows.
San Joaquin Valley Special Management Area: That area bounded by a line beginning at the intersection of Highway 5 and Highway 120; south on Highway 5 to Highway 33; southeast on Highway 33 to Crows Landing Road; north on Crows Landing Road to Highway 99; north on Highway 99 to Highway 120; west on Highway 120 to the point of beginning.
Western Canada Goose Hunt Area: That portion of the above described Sacramento Valley Area lying east of a line formed by Butte Creek from the Gridley-Colusa Highway south to the Cherokee Canal; easterly along the Cherokee Canal and North Butte Road to West Butte Road; southerly on West Butte Road to Pass Road; easterly on Pass Road to West Butte Road; southerly on West Butte Road to CA 20; and westerly along CA 20 to the Sacramento River.
State Area: The remainder of the Pacific-Flyway Portion of Colorado.
Zone 2: The Counties of Ada; Adams; Boise; Canyon; those portions of Elmore north and east of I-84, and south and west of I-84, west of ID 51, except the Camas Creek drainage; Gem; Owyhee west of ID 51; Payette; Valley; and Washington.
Zone 3: The Counties of Blaine; Camas; Cassia; those portions of Elmore south of I-84 east of ID 51, and within the Camas Creek drainage; Gooding; Jerome; Lincoln; Minidoka; Owyhee east of ID 51; Power within the Minidoka National Wildlife Refuge; and Twin Falls.
Zone 4: The Counties of Bear Lake; Bingham within the Blackfoot Reservoir drainage; Bonneville, Butte; Caribou except the Fort Hall Indian Reservation; Clark; Custer; Franklin; Fremont; Jefferson; Lemhi; Madison; Oneida; Power west of ID 37 and ID 39 except the Minidoka National Wildlife Refuge; and Teton.
Zone 5: All lands and waters within the Fort Hall Indian Reservation, including private inholdings; Bannock County; Bingham County, except that portion within the Blackfoot Reservoir drainage; and Power County east of ID 37 and ID 39.
In addition, goose frameworks are set by the following geographical areas:
Northern Unit: Benewah, Bonner, Boundary, Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce, and Shoshone Counties.
Southwestern Unit: That area west of the line formed by U.S. 93 north from the Nevada border to Shoshone, northerly on ID 75 (formerly U.S. 93) to Challis, northerly on U.S. 93 to the Montana border (except the Northern Unit and except Custer and Lemhi Counties).
Southeastern Unit: That area east of the line formed by U.S. 93 north from the Nevada border to Shoshone, northerly on ID 75 (formerly U.S. 93) to Challis, northerly on U.S. 93 to the Montana border, including all of Custer and Lemhi Counties.
East of the Divide Zone: The Pacific Flyway portion of the State located east of the Continental Divide.
West of the Divide Zone: The remainder of the Pacific Flyway portion of Montana.
Remainder-of-the-State Zone: The remainder of Nevada.
South Zone: The Pacific Flyway portion of New Mexico located south of I-40.
Northwest Special Permit Zone: That portion of western Oregon west and north of a line running south from the Columbia River in Portland along I-5 to OR 22 at Salem; then east on OR 22 to the Stayton Cutoff; then south on the Stayton Cutoff to Stayton and due south to the Santiam River; then west along the north shore of the Santiam River to I-5; then south on I-5 to OR 126 at Eugene; then west on OR 126 to Greenhill Road; then south on Greenhill Road to Crow Road; then west on Crow Road to Territorial Hwy; then west on Territorial Hwy to OR 126; then west on OR 126 to OR 36; then north on OR 36 to Forest Road 5070 at Brickerville; then west and south on Forest Road 5070 to OR 126; then west on OR 126 to the Pacific Coast.
Northwest Zone: Those portions of Clackamas, Lane, Linn, Marion, Multnomah, and Washington Counties outside of the Northwest Special Permit Zone.
Closed Zone: Those portions of Coos and Curry Counties west of US 101 and all of Tilamook and Lincoln Counties.
Eastern Zone: Hood River, Wasco, Sherman, Gilliam, Morrow, Umatilla, Deschutes, Jefferson, Crook, Wheeler, Grant, Baker, Union, and Wallowa Counties.
Lake County Zone: All of Lake County.
Remainder-of-the-State Zone: The remainder of Utah.
Area 2A (SW Quota Zone): Clark County, except portions south of the Washougal River; Cowlitz, and Wahkiakum counties.
Area 2B (SW Quota Zone): Pacific and Grays Harbor counties.
Area 3: All areas west of the Pacific Crest Trail and west of the Big White Salmon River which are not included in Areas 1, 2A and 2B.
Area 4: Adams, Benton, Chelan, Douglas, Franklin, Grant, Kittitas, Lincoln, Okanogan, Spokane, and Walla Walla Counties.
Area 5: All areas east of the Pacific Crest Trail and east of the Big White Salmon River which are not included in Area 4.
Bear River Area: That portion of Lincoln County described in State regulations.
Salt River Area: That portion of Lincoln County described in State regulations.
Eden-Farson Area: Those portions of Sweetwater and Sublette Counties described in State regulations.
Open Area: Cascade, Chouteau, Hill, Liberty, and Toole Counties and those portions of Pondera and Teton Counties lying east of U.S. 287-89.
This document solicits grant proposals from education institutions, environmental and educational public agencies, and not-for-profit organizations to support environmental education projects, as defined in this notice. This solicitation notice contains all the information and forms necessary to prepare a proposal. If your project is selected as a finalist after the evaluation process is concluded, EPA will provide you with additional Federal forms needed to process your proposal. These grants require non-federal matching funds for at least 25% of the total cost of the project.
The Environmental Education Grants Program provides financial support for projects which design, demonstrate, or disseminate environmental education practices, methods, or techniques, including assessing environmental and ecological conditions or specific environmental issues or problems. This program is authorized under section 6 of the National Environmental Education Act of 1990 (the Act) (Public Law 101-619).
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Proposals requesting over $25,000 in
EPA anticipates funding of approximately $3 million for this annual grant cycle, subject to appropriations and the availability of funds. Each year, this program generates a great deal of public enthusiasm for developing environmental education projects. Consequently, EPA receives many more applications for these grants than can be supported with available funds. The competition for grants is intense, especially at Headquarters which usually receives about 250 proposals and is able to fund 10 to15 grants or about 5% of the applicants. The EPA Regional Offices receive fewer applications and on average fund over 30% each year.
Grants in excess of $150,000 are seldom awarded through this program. Although the Act sets a maximum limit of $250,000 in environmental education grant funds for any one project, because of limited funds, EPA prefers to award smaller grants to more recipients. In summary, you will significantly increase your chance of being funded if you request $5,000 or less from a Regional Office or $100,000 or less from Headquarters.
Any local education agency, state education or environmental agency, college or university, not-for-profit organization as described in section 501(C)(3) of the Internal Revenue Code, or noncommercial educational broadcasting entity may submit a proposal.
“Tribal education agencies” which may also apply include a school or community college which is controlled by an Indian tribe, band, or nation, which is recognized as eligible for special programs and services provided by the United States to Indians because of their status as Indians and which is not administered by the Bureau of Indian Affairs. Tribal organizations do not qualify unless they meet this criteria or the not-for-profit criteria listed above. The terms for eligibility are defined in section 3 of the Act and 40 CFR 47.105.
Applicant organizations must be located in the United States and the majority of the educational activities must take place in the United States, Canada and /or Mexico. A teacher's school district, an educator's nonprofit organization, or a faculty member's college or university may apply, but an individual teacher, educator, or faculty member
An organization may submit more than one proposal if the proposals are for different projects. No organization will be awarded more than one grant for the same project during the same fiscal year. Applicants who received one of these grants in the past may submit a new proposal to expand a previously funded project or to fund an entirely different one. Each new proposal will be evaluated based upon the specific criteria set forth in this solicitation and in relation to the other proposals received in this fiscal year. Due to limited resources, EPA does not generally sustain projects beyond the initial grant period. This grant program is geared toward providing seed money to initiate new projects or to advance existing projects that are “new” in some way, such as reaching new audiences or
EPA strongly encourages applicants to demonstrate or disseminate existing environmental education materials (curricula, training materials, activity books, etc.) rather than designing new materials, because experts indicate that a significant amount of quality educational materials have already been developed and are under-utilized. EPA will consider funding new materials
Environmental education funds cannot be used for:
(1) Technical training of environmental management professionals;
(2) Environmental “information” projects that have no educational component, as described in Section I (B);
(3) Lobbying or political activities, in accordance with OMB Circulars A-21, A-87 and A-122;
(4) Non-educational research and development; or
(5) Construction projects-EPA will not fund construction activities such as the acquisition of real property (e.g., buildings) or the construction or modification of any building. EPA may, however, fund activities such as creating a nature trail or building a bird watching station as long as these items are an integral part of the environmental education project, and the cost is a relatively small percentage of the total amount of federal funds requested.
All proposals must satisfy the definition of “environmental education” under Section I(B) and also address one of the following educational priorities. Headquarters will fund the proposals for larger grants (over $25,000 in Federal funds) that address any of the top three categories listed below; and regional offices will fund grants in any of seven categories listed below. The order of the list is random and does not indicate a ranking. Please read the definitions that are included in this section to prevent your application from being rejected for failure to correctly address a priority.
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(3)
(1-3)
(4)
(5)
(6)
(7)
Proposals must identify existing capacity building efforts, if any, and discuss how the proposed project will support these efforts.
All proposals must identify existing educational improvement needs and goals and discuss how the proposed project will address these needs and goals.
The proposal must contain two standard federal forms, a work plan with budget, and appendices, as described below. Please follow instructions and do not submit additional items. EPA will make copies of your proposal for use by grant reviewers. Unnecessary attachments and forms create a paperwork burden for the reviewers.
(1)
(a)
(b)
(c)
(d)
(e)
(f)
The project summary will be scored on how well you provide an overview of your entire project using the format and topics stated above.
(2)
This subsection will be scored on how well you design and describe your project and how effectively your project meets the following criteria:
(a)
(b)
(c)
(d)
(3)
The project evaluation will be scored on how well your plan will: (a) Measure the project's effectiveness; and (b) apply evaluation data gathered during your project to strengthen it.
(4)
This subsection will be scored on: (a) How well the budget information clearly and accurately shows how funds will be used; (b) whether the funding request is reasonable given the activities proposed; and (c) whether the funding provides a good return on the investment.
(5)
(a)
(b)
(c)
Please do not submit other appendices or attachments such as video tapes or sample curricula. EPA may request such items if your proposal is among the finalists under consideration for funding.
This subsection will be scored based upon: (1) Whether the timeline clarifies the workplan and allows reviewers to determine that the project is well thought out and feasible as planned; (2) whether the key personnel are qualified to implement the proposed project; and (3) whether letters of commitment are included (if partners are used) and the extent to which a firm commitment is made to provide services, facilities, funding, etc.
(6)
The Work Plan should not exceed 5 pages. “One page” refers to one side of a single-spaced typed page. The pages must be letter sized (8
The applicant must submit one original and
Proposals submitted to EPA headquarters and regional offices will be evaluated using the same criteria, as defined here and in section IV of this solicitation. Proposals will be reviewed in two phases—the screening phase and the evaluation phase. During the screening phase, proposals will be reviewed to determine if they meet the basic eligibility requirements. Only those proposals satisfying all of the basic requirements will enter the full evaluation phase of the review process. During the evaluation phase, proposals will be evaluated based upon the quality of their work plans. Reviewers conducting the screening and evaluation phases of the review process will include EPA officials and external environmental educators approved by EPA. At the conclusion of the evaluation phase, the reviewers will score work plans based upon the scoring system described in more detail in section IV. In summary, the maximum score of 100 points can be reached as follows:
After individual projects are evaluated and scored by reviewers, as described under Section IV, EPA officials in the regions and at headquarters will select a diverse range of finalists from the highest ranking proposals. In making the final selections, EPA will take into account the following:
(1) Effectiveness of collaborative activities and partnerships, as needed to successfully develop or implement the project;
(2) Environmental and educational importance of the activity or product;
(3) Effectiveness of the delivery mechanism (i.e., workshop, conference, etc.);
(4) Cost effectiveness of the proposal; and
(5) Geographic distribution of projects.
Applicants will receive a confirmation that EPA has received their proposal once EPA has received all proposals and entered them into a computerized database, usually within two months of receipt. EPA will contact finalists no later than early summer to request additional federal forms and other items as recommended by reviewers.
The Act requires that projects be performed by the applicant or by a person satisfactory to the applicant and EPA. All proposals must identify any person other than the applicant who will assist in carrying out the project. These individuals are responsible for receiving the grant award agreement from EPA and ensuring that all grant conditions are satisfied. Recipients are responsible for the successful completion of the project.
Grant recipients may begin incurring costs on the start date identified in the EPA grant award agreement. Activities must be completed and funds spent within the time frames specified in that document.
Specific financial and other reporting requirements will be identified in the EPA grant award agreement. Grant recipients must submit formal semi-annual progress reports, unless otherwise instructed in the award agreement. Also, two copies of a final report and two copies of all work products must be sent to the EPA project officer within 90 days after the expiration of the budget period. This submission will be accepted as the final requirement, unless the EPA project officer notifies you that changes must be made.
Resources: Please visit our website where you can view and download this solicitation notice, tips for developing successful grant applications, descriptions of projects funded under this program by state, and other education links and resource materials. The “Excellence in EE” series of publications listed there includes guidelines for: Developing and evaluating educational materials; the initial preparation of environmental educators; and using environmental education in grades K-12 to support state and local education reform goals. In addition, a tutorial for grant applicants is available at:
Please note that this is a very competitive grants program. Limited funding is available and many qualified grant applications will not be reached by EPA. If your project is not funded, you may wish to review other available grant programs in the
The Environmental Education Grant Program Regulations, published in the
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the General Accounting Office prior to publication of this document in today's
The Office of Management and Budget (OMB) has approved the information collection requirements contained in this solicitation under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2030-0006.
EPA develops a new mailing list for this grant program each year, however, all applicants who respond to this Solicitation Notice will automatically be put on the new list that will be developed for the next grant cycle. If you fail to submit a proposal in response to this Solicitation Notice, but wish to be added to our future mailing list, please mail your request along with your name, organization, address, and phone number to: Environmental Education Grant Program (Year 2003), EPA Office of Environmental Education, (1704 A), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Applicants who need more information about this grant program or clarification about specific requirements in this Solicitation Notice, may contact the Environmental Education Office in Washington, DC for grant requests of more than $25,000 or their EPA regional office for grant requests of $25,000 or less.
Mail proposals (regular mail) to: Environmental Education Grants, Office of Environmental Education (1704 A), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Mail the proposal to the Regional Office where the project will take place, rather than where the applicant is located, if these locations are different.
Mail proposals to: U.S. EPA, Region I, Enviro Education Grants (MGM), 1 Congress Street, Suite 1100, Boston, MA 02114.
Hand-deliver to: 10th Floor Mail Room, Boston, MA (M-F 8am-4pm).
Information: Kristen Conroy, (617) 918-1069.
Mail proposals to: Information: U.S. EPA, Region II, Enviro Education Grants, Grants and Contracts Management Branch, 290 Broadway, 27th Floor, New York, NY 10007-1866.
Information: Teresa Ippolito, (212) 637-3671.
Mail proposals to: U.S. EPA, Region III, Enviro Education Grants, Grants Management Section (3PM70), 1650 Arch Street, Philadelphia, PA 19103-2029.
Information: Judi Braunston, (215) 814-5536.
Mail proposals to: U.S. EPA, Region IV, Enviro Education Grants, Office of Public Affairs, 61 Forsyth Street, S.W., Atlanta, GA 30303.
Information: Benjamin Blair, (404) 562-8321.
Mail proposals to: U.S. EPA, Region V, Enviro Education Grants, Grants Management Section (MC-10J), 77 West Jackson Boulevard, Chicago, IL 60604.
Information: Megan Gavin, (312) 353-5282.
Mail proposals to: U.S. EPA, Region VI, Enviro Education Grants (6XA), 1445 Ross Avenue, Dallas, TX 75202.
Information: Jo Taylor, (214) 665-2204.
Mail proposal to: U.S. EPA, Region VII, Enviro Education Grants, Office of External Programs, 901 N. 5th Street, Kansas City, KS 66101.
Information: Denise Morrison, (913) 551-7402.
Mail proposals to: U.S. EPA, Region VIII, Enviro Education Grants, 999 18th Street (80C), Denver, CO 80202-2466.
Information: Cece Forget, (303) 312-6605.
Mail proposals to: U.S. EPA, Region IX, Enviro Education Grants, Commun. & Gov't Relations (CGR-3), 75 Hawthorne Street, San Francisco, CA 94105.
Information: Stacey Benfer, (415) 744-1161.
Mail proposals to: U.S. EPA, Region X, Enviro Education Grants, Public Environmental Resource Center, 1200 Sixth Avenue (EXA-124), Seattle, WA 98101.
Information: Sally Hanft, (800) 424-4372, (206) 553-1207.
This is a standard Federal form to be used by applicants as a required face sheet for the Environmental Education Grants Program. These instructions have been modified for this program only and do not apply to any other Federal program.
1. Check the box marked “Non-Construction” under “Application.”
2. Date application submitted to EPA and applicant's control number (if applicable).
3. State use only (if applicable).
4. If you are currently funded for a related project, enter present Federal identifier number. If not, leave blank.
5. Legal name of applicant organization, name of primary organizational unit which will undertake the grant activity, complete address of the applicant organization, and name, telephone, and FAX number of the person to contact on matters related to this application.
6. Enter Employer Identification Number (EIN) as assigned by the Internal Revenue Service. You can obtain this number from your payroll office. It is the same Federal Identification Number which appears on W-2 forms. If your organization does not have a number, you may obtain one by calling the Taxpayer Services number for the IRS.
7. Enter the appropriate letter in the space provided.
8. Check the box marked “new” since all proposals must be for new projects.
9. Enter U.S. Environmental Protection Agency.
10. Enter 66.951 Environmental Education Grants Program.
11. Enter a brief descriptive title of the project.
12. List only the largest areas affected by the project (e.g., State, counties, cities).
13. Self-explanatory (see Section I(C) in Solicitation Notice).
14. In (a) list the Congressional District where the applicant organization is located; and in (b) any District(s) affected by the program or project. If your project covers many areas, several congressional districts will be listed. If it covers the entire state, simply put in STATEWIDE. If you are not sure about the congressional district, call the County Voter Registration Department.
15. Amount requested or to be contributed during the funding/budget period by each contributor. Line (a) is for the amount of money you are requesting from EPA. Lines (b-e) are for the amounts either you or another organization are providing for this project. Line (f) is for any program income which you expect will be generated by this project. Examples of program income are fees for services performed, income generated from the sale of a brochure produced with the grant funds, or admission fees to a conference financed by the grant funds. The total of lines (b-e) must be at least 25% of line (g), as this grant has a match requirement of 25% of the Total
16. Check (b) (NO) since your application does not have to be sent through the state clearinghouse for review.
17. This question applies to the applicant organization, not the person who signs as the authorized representative. Categories of debt include delinquent audit disallowances, loans and taxes.
18. The authorized representative is the person who is able to contract or obligate your agency to the terms and conditions of the grant. (Please sign with blue ink.) A copy of the governing body's authorization for you to sign this application as official representative must be on file in the applicant's office.
This is a standard Federal form used by applicants as a basic budget. These instructions
Complete Section B—Budget Categories—Columns (1), (2) and (5).
For each major program, function or activity, fill in the total requirements for funds by object class categories. Please round figures to the nearest dollar.
All applications should contain a breakdown by the relevant object class categories shown in Lines (a-h): columns (1), (2), and (5) of Section B. Include Federal funds in column (1) and non-Federal (matching) funds in column (2), and put the totals in column (5).
Many applications will not have entries in all object class categories.
Line 6(i)—Show the totals of lines 6(a) through 6(h) in each column.
Line 6(j)—Show the amount of indirect costs, but ONLY if your organization has already prepared an “indirect cost rate” proposal and has it on file, subject to audit.
Line 6(k)—Enter the total of amounts of Lines 6(i) and 6(j).
Line 7—Program Income—Enter the estimated amount of income, if any, expected to be generated from this project. Do not add or subtract this amount from the total project amount. Describe the nature and source of income in the detailed budget description.
Detailed Itemization of Costs: The proposal must also contain a detailed budget description as specified in the Notice in Section IV, (K)(4), and should conform to the following:
Personnel: List all participants in the project by position title. Give the percentage of the budget period for which they will be fully employed on the project (e.g., half-time for half the budget period equals 25%, full-time for half the budget period equals 50%, etc.). Give the annual salary and the total cost over the budget period for all personnel listed.
Travel: If travel is budgeted, show destination and purpose of travel as well as costs.
Equipment: Identify all equipment to be purchased and for what purpose it will be used.
Supplies: If the supply budget is less than 2% of total costs, you do not need to itemize.
Contractual: Specify the nature and cost of such services. EPA may require review of contracts for personal services prior to their execution to assure that all costs are reasonable and necessary to the project.
Construction: Not allowable for this program.
Other: Specify all other costs under this category.
Indirect Costs: Provide an explanation of how indirect charges were calculated for this project.
Federal Transit Administration (FTA), DOT.
Notice of proposed rulemaking.
On June 9, 1998, the Transportation Equity Act for the 21st Century (TEA-21) was enacted requiring the Federal Transit Administration (FTA) to establish a new grant program entitled the Clean Fuels Formula Grant Program. This proposed rule establishes the procedures potential recipients must use to apply for this new program.
The FY 1999, FY 2000, and FY 2001 appropriations bills did not make funding available for this program. FTA is publishing this proposed rulemaking in anticipation that funds may be available in FY 2002 or future Federal fiscal years.
Comment on this proposed rule must be received by October 12, 2001.
Written comments must refer to the docket number that appears above and be submitted to the United States Department of Transportation; Central Dockets Office, PL-401; 400 Seventh Street, SW., Washington, DC 20590. All comments received will be available for inspection at the above address from 10 a.m. to 5 p.m., E.T. Monday through Friday, except Federal holidays. Those desiring the agency to acknowledge receipt of their comments should include a self-addressed, stamped postcard with their comments. The Docket Clerk will date-stamp the post card and mail it back to the commenter.
For program issues: Nancy Grubb, Office of Resource Management and State Programs, (202) 366-2053; for program evaluation issues, Abbe Marner, Office of Planning, (202)366-4317; and Christina Gikakis, Office of Research, Demonstration, and Innovation, FTA, (202) 366-2637. For legal issues: Scheryl Portee, Office of Chief Counsel, FTA, (202) 366-1936 (telephone) or (202) 366-3809 (fax). Electronic access to this and other rules may be obtained through the FTA World Wide Web home page at
Electronic access to this and other documents is available through FTA's home page on the World Wide Web, at
The comment period for this rulemaking is 45 days. A shorter comment period is needed because this program may be funded in FY 2002. FTA believes that this period will allow all interested parties enough time to file their comments; however, late filed comments will be considered to the extent practicable.
Internet users can access all comments received by the U.S. DOT Dockets, Room PL-401, via the Docket Management System (DMS) on the DOT home page, at
An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the
The Clean Fuels Formula Grant Program is a new transit grant program contained in section 3008 of the Transportation Equity Act for the 21st Century (TEA-21) as amended, Pub. L. 105-178, (codified at 49 U.S.C. 5308). This program has a two-fold purpose. First, the program is intended to assist nonattainment and maintenance areas in achieving or maintaining air quality attainment status. Second, the program seeks to support emerging clean fuel and advanced propulsion technologies for transit buses and to create markets for these technologies. As the legislation establishes the basic parameters of the program, the focus of this rulemaking is application procedures. While the program is a formula program, the amount of funds available to individual grantees cannot be calculated in advance of the receipt of applications. The formula is applied to the universe of eligible applications subsequent to receiving and screening all applications in each Federal fiscal year.
The formula provides two-thirds of the funds to urban areas over one million in population and one-third of the funds to urban areas less than one million in population. The specifics of the formula are explained later in this notice. In addition, TEA-21 provides weighting factors based on the severity of nonattainment for ozone and carbon monoxide (CO). These weighting factors are also explained later in the text. TEA-21 provides authorization levels of up to $200,000,000 per year and guaranteed levels at $100,000,000 per year, but actual amounts available are subject to annual appropriations. FTA will make the annual funding level for this program available in the annual
Section 5308 of title 49, U.S.C., defines eligibility and provides both minimum and maximum percentages of funds for certain clean fuel technologies. All of these provisions are described in this proposed rulemaking.
With respect to the second purpose of promoting new clean fuel technologies for transit buses, section 3015(d) of TEA-21 also authorized a new Joint Partnership Program for Deployment of Innovation (JPP), which was announced in a separate
With respect to the weighting factors for severity of nonattainment, it appears that Congressional intent was to use the same weighting that had been developed for the Congestion Mitigation
The CMAQ weighting factors for ozone and CO nonattainment areas are laid out in 23 U.S.C. 104(b). Both ozone and CO areas are also given weighting factors in 49 U.S.C. 5308(d)(2)(A). Section 5308(d)(2)(B) provides additional weighting to CO areas. FTA believes that the drafters of this legislation did not intend double weighting for CO nonattainment areas. Thus, FTA will use the higher of the weighting factors for ozone and CO in section 5308(d)(2)(A), and then apply the additional adjustment of 1.2 in areas classified as both nonattainment for CO and either nonattainment or maintenance for ozone as described in section 5308(d)(2)(B). Section 5308(d)(2)(A) indicates that the number of clean fuel vehicles will be a multiplier; however, FTA believes that the multiplier should be the number of buses in the bus fleet as laid out in section 5308(d)(1).
TEA-21 provides limitations on the use of funds and the maximum amount of grants. In general, the amount of a grant to a designated recipient for an eligible project shall not exceed the lesser of: (1) $15,000,000 in areas with a population under 1,000,000 or $25,000,000 in areas with a population of at least 1,000,000; or (2) 80 percent of the eligible project's total project cost. Additionally, at least five percent of the total program funding must be used for the purchase of hybrid electric or battery-powered buses or construction of facilities designed to service those buses. No more than 35 percent of the amount made available each fiscal year may be available to fund clean diesel buses. No more than five percent of the amount made available each fiscal year may be available to fund retrofitting or replacement of the engines of buses that do not meet the clean air standards of the Environmental Protection Agency (EPA).
TEA-21 requires that FTA issue a rule describing the application procedures it proposes to use to implement this new grant program. The purpose of this rulemaking is to comply with that requirement.
The Government Performance and Results Act (GPRA) was enacted in 1993 to provide the establishment of strategic planning and performance measurement in the Federal Government. It is primarily intended to improve Federal program effectiveness and public accountability by promoting a new focus on results, service quality, and customer satisfaction.
In order to carry out its statutory program responsibilities under GPRA, FTA intends to evaluate the effectiveness of the Clean Fuels Formula Grant Program in meeting its objectives to reduce transit bus emissions and support emerging markets for clean fuel technologies. A comprehensive and accurate evaluation of the program's effectiveness to reduce transit bus emissions would require actual in-use emissions data of the clean fuel buses. However, due to lack of funding for this activity, FTA will not be able to conduct emissions tests on individual vehicles to obtain such information. One possible approach to assess the program's effectiveness in reducing transit bus emissions would be to report the number and type of buses purchased with Clean Fuels Formula Program funds, and estimate the reduction in emissions based on representative emissions from similar vehicles, recognizing this data may differ from actual in-use emission data. Information on the number of buses, type of vehicles purchased, including type of propulsion systems, and whether the vehicles are for service expansion or replacement, must be entered into FTA's electronic grant management system,
FTA is proposing to measure the impact on supporting new and emerging markets for advanced propulsion technologies by reporting the number and type of advanced propulsion vehicles purchased with Clean Fuel Formula Program funds and reporting on new infrastructure funded with the Clean Fuels Formula Program funds.
Information on the number of advanced propulsion vehicles purchased with Clean Fuel Formula Program funds and the new infrastructure funded with the Clean Fuels Formula Program funds must be entered into TEAM.
This rule describes the application process FTA proposes to use to implement the Clean Fuels Formula Grant Program. This rulemaking is required in section 5308(c)(1).
An eligible applicant is a state or local governmental authority providing mass transportation service in either: (1) ozone and carbon monoxide nonattainment areas which have the specific classifications established by section 103 of the 1990 Clean Air Act Amendments, Public Law 101-549 [amended 42 U.S.C. 7511-7511(f)], or (2) ozone and CO “maintenance” areas which, before they were redesignated to attainment by the EPA, had these same classifications. The nonattainment classifications for ozone are: “marginal,” “moderate,” “serious,” “severe,” and “extreme.” The nonattainment classifications for CO are: “moderate” and “serious.” It is clear that the program is limited to these nonattainment and maintenance areas from the way the classification terms are embedded in the program's apportionment formula as air quality weighting factors. These weighting factors are patterned after the factors used in the CMAQ Program in Title 23, U.S.C., before changes by TEA-21, and the sole purpose of that program is to assist areas in attaining and maintaining the National Ambient Air Quality Standards, principally for ozone and CO.
It should be noted that EPA uses some additional classification terms besides the ones listed above for certain other nonattainment areas. Some examples are: “incomplete data” for some ozone areas and “not classified” for some CO areas. These classification terms are not used in the Clean Fuels apportionment formula; therefore, areas with these classifications are not eligible for funding under this program. This is consistent with the Department of Transportation's approach with respect to the CMAQ Program.
EPA's lists of nonattainment and maintenance areas do not change much from year to year. Changes may involve reclassifications of existing nonattainment areas as well as
This section describes the eligible activities as contained in 49 U.S.C. 5308. FTA believes that Congress intended section 5308 to include vans in revenue service as well as buses. Other eligible activities include the purchase or lease of clean fuel buses and facilities, repowering or retrofitting buses to operate on clean fuels and the improvement of existing facilities to accommodate clean fuel buses. (The legislation defines clean fuel buses as those powered by compressed natural gas, liquefied natural gas, biodiesel fuels, batteries, alcohol-based fuels, hybrid electric, fuel cell and clean diesel, and other low or zero emissions technology, and which the EPA has certified sufficiently reduce harmful emissions. Because liquefied petroleum gas (
This section describes the application process for the Clean Fuels Formula Grant Program. The grant requirements for 49 U.S.C. 5309, the Capital Investment Grants and Loans Program (Capital Program) apply. These requirements are contained in FTA Circular 9300.1, which is available from the FTA regional offices and on the FTA home page (
In order to accommodate the need to submit an application without knowing the amount of funds available to individual applicants, FTA intends to request the submission of pre-applications for this program in the
a.
b.
Pre-applications must be submitted to the FTA regional office no later than January 1 of each fiscal year. The regional office will review the pre-applications for eligibility and for completeness of information needed to apply the formula. The regional offices will provide the information from pre-applications to FTA headquarters. FTA headquarters will apply the formula and provide information to the regional offices on the amount of funds available to each applicant. The regional office will notify the applicant in writing as to the amount of funds available for the submission of the final application. The letter will also contain results of the eligibility review. If, for any reason, the whole application were found to be ineligible, the regional office would notify the applicant as soon as possible. If portions of the application were found ineligible, the letter providing information on the availability of funds would also contain this information. Once the applicant has been notified of the amount of funds available and advised of the eligibility of its application, it may proceed to complete and file the final application. The final application must be submitted electronically if the applicant is using FTA's electronic application process,
For urbanized areas, programming of the clean fuels projects in the Metropolitan Transportation Improvement Program (MTIP) and Statewide Transportation Improvement Program (STIP) may be completed following notification by the FTA regional office of the amount of funds available under the formula and results of the eligibility review.
This section discusses the certification called for in 49 U.S.C. 5308. Section 5308(c)(2) requires that there be a certification with each Clean Fuels Formula Program application, which states that vehicles purchased with a grant under this section will be operated by the grantee using only clean fuels. Rather than be included in the application, this certification will be contained in the annual FTA
This section includes the formula as contained in 49 U.S.C. 5308. It appears that the congressional intent was to transfer the CMAQ statutory language into the new Clean Fuels Formula Program. However, it appears that errors were made in the Clean Fuels Formula language, as it is not completely
The CMAQ weighting factors for ozone nonattainment and CO areas are laid out in 23 U.S.C. 104(b). Both ozone and CO areas are also given weighting factors in 49 U.S.C. 5308(d)(2)(A). Section 5308(d)(2)(B) provides additional weighting to CO areas. FTA believes the drafters of this legislation did not intend the double weighting of CO nonattainment area. Thus, FTA will use the higher of the weighting factors for ozone and CO in section 5308(d)(2)(A), and then apply the additional adjustment of 1.2 in areas classified as both nonattainment for CO and either nonattainment or maintenance for ozone as described in section 5308(d)(2)(B).
FTA supports the development and deployment of clean fuel and advanced propulsion technologies for transit buses. FTA is interested in collecting relevant information on the operations and performance of these clean fuel technology buses in revenue service to help assess the reliability, benefits, and costs of these technologies compared to conventional vehicle technologies. Accordingly, FTA intends to require Clean Fuels Formula grantees receiving funds for projects to purchase or lease buses powered by advanced propulsion technologies (
Appendix A: Pre-application Worksheet. The Pre-application Worksheet is included in this notice of proposed rulemaking.
The basic framework of this program is established by legislation. We specifically request comment on the implementation guidance, especially application requirements and possible evaluation approaches. This program is a formula program, but the amount of funds available for each applicant cannot be determined prior to receiving and reviewing application information from potential grantees. As a result, procedures different from FTA's other formula assistance programs are needed to accommodate this situation. Comments are solicited on FTA's proposed approach to structuring the application process, given that under this particular grant program, FTA cannot determine the funding amounts available to individual grantees until after the total number of eligible applicants is known and the specific funding ceilings (
FTA is proposing that the 49 U.S.C. 5309, Capital Investment Grants and Loans Program requirements apply. These requirements are contained in FTA Circular 9300.1, which is available from the FTA regional offices. It is also available on the FTA Home Page (
These pre-applications will permit FTA to identify the pool of eligible applicants and apply the statutory funding formula. Once the amount of funds that could be available to each grantee is determined, the grantee may complete the programming process and submit its application to FTA. FTA will submit the completed application to the Department of Labor for the labor certification required by 49 U.S.C. 5333(b). Applications may be modified to reflect the limitation on uses. Since the pre-application will be a basis for the formula apportionment, any modifications to the application must be approved by FTA. Comments on the pre-application process are requested.
Since the amount of available funds cannot be determined at the time of the pre-application, FTA is proposing to require that the programming of Clean Fuels Formula funds in the MTIP and STIP be completed after February 1 when FTA apportions the funds. This would ensure that fiscal constraint is maintained and simplifies the paperwork and time required to accomplish the programming. Comment on this procedure is requested.
In addition, FTA is proposing to impose reporting requirements for those transit agencies acquiring advanced propulsion technology buses with Clean Fuels Formula Grant funds. (See § 624.11.) Information to be collected includes operations, performance and maintenance data on the vehicles to help assess the reliability, benefits, and costs of these technologies compared to conventional vehicle technologies. Under current FTA grant programs, such reporting is not required. Comments on this proposed reporting requirement are requested.
FTA is also requesting suggestions on the program evaluation. Information on sources of emissions data is sought. Additionally, suggestions as to how evaluation approaches and evaluation methodology are solicited.
FTA has evaluated the industry costs and benefits of the clean fuels formula grant program and has determined that it is not a significant rule under E.O. 12866 because it involves grant application procedures and will not cost more than $100 million annually.
This rule is a significant regulation as defined by the Department's Regulatory Policies and Procedures. Although the regulation involves grant application procedures, it is expected to generate substantial public interest.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612, FTA has evaluated the effects of this rule on small entities. This rule will not have a significant effect on a substantial number of small entities because it merely establishes application procedures for the Clean Fuels Formula Grant Program.
This rule includes information collection requirements subject to the Paperwork Reduction Act. The Office of Management and Budget (OMB) has approved FTA's new information collection request. The affected public would be mass transit operators that apply for Federal funds under this program. Once this NPRM becomes a final rule, any burden associated with it would be added to the current information collection package, Clean Fuels Formula Grant Program, OMB approval number 2132-0560. Comments are being solicited on the paperwork requirements, particularly the proposed reporting requirement. Comments should address: whether the proposed collection of information is necessary for the proper performance of the FTA grant process; ways to enhance the quality, utility, and clarity of the information collected; and ways to minimize the burden of the collection of information on the applicants, including the use of automated collection techniques (
This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 and it has been determined that the proposed rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment because it sets forth application procedures for a discretionary grant program.
This program will have a positive impact on the environment. It promotes the alternative use of clean fuels in vehicles used for mass transportation.
Mass transit has a positive impact on energy consumption as it promotes an alternative to the single occupant vehicle.
This program is a voluntary grant program and will not result in the expenditure by state, local and tribal governments, in the aggregate, of $100,000,000 or more in any one year.
Grant Programs—Transportation, Mass transportation, Reporting and record keeping requirements.
Accordingly, for the reasons cited above, the FTA proposes to amend title 49 of the CFR by adding a new part 624, as set forth below:
49 U.S.C. 5308; 49 CFR 1.51.
(a) An eligible applicant is a state or local governmental authority providing mass transportation service in either:
(1) Ozone and carbon monoxide nonattainment areas that have the specific classifications established by the 1990 Clean Air Act Amendments (Public Law 101-549), or
(2) Ozone and carbon monoxide (CO) “maintenance” areas that, before they were redesignated to attainment by the Environmental Protection Agency (EPA), had these same classifications.
(b) The nonattainment classifications for ozone are “marginal,” “moderate,” “serious,” “severe,” and “extreme.” The nonattainment classifications for CO are “moderate” and “serious.”
(a) Eligible activities include the purchase or lease of clean fuel buses and facilities, repowering or retrofitting buses to operate on clean fuels, and the improvement of existing facilities to accommodate clean fuel buses.
(b) The term clean fuel vehicle means a vehicle that—
(1) Is powered by—
(i) Compressed natural gas;
(ii) Liquefied natural gas;
(iii) Biodiesel fuels;
(iv) Batteries;
(v) Alcohol-based fuels;
(vi) Hybrid electric;
(vii) Fuel cells; or
(viii) Clean diesel, to the extent allowed under this section; or
(2) The Administrator of the Environmental Protection Agency has certified sufficiently reduces harmful emissions.
(c) Eligible projects are the following:
(1) Purchasing or leasing clean fuel buses, including buses that employ a lightweight composite primary structure, and vans for use in revenue service. The purchase or lease of non-revenue vehicles is not an eligible project.
(2) Constructing or leasing clean fuel bus facilities or electrical recharging facilities and related equipment. Facilities and related equipment for clean diesel buses are not eligible.
(3) Improving existing mass transportation facilities to accommodate clean fuel buses.
(4) Repowering pre-1993 engines with clean fuel technology that meets the current urban bus emission standards. Repowering means the removal of an engine from a bus followed by the installation of another engine and applies to engines that are replaced with new, previously unused engines, as well as those exchanged from an inventory of rebuilt engines.
(5) Retrofitting or rebuilding pre-1993 engines if before half life (
(6) At the discretion of FTA, projects relating to clean fuel, biodiesel, hybrid electric, or zero emissions technology vehicles that achieve emissions reductions equivalent or superior to existing clean fuel or hybrid electric technologies.
(a) Pre-applications must be submitted to the appropriate FTA regional office no later than January 1 of each fiscal year. Subject to the availability of funds, FTA will apportion the funds based on the formula and the pool of applicants, no later than February 1 of each year. Once the applicant has been notified of the apportionment of funds and the eligibility of its application, it should proceed to complete and file the final application. The final application must be submitted electronically if the grantee is using the electronic application process (
(b) The pre-application consists of a Letter of Interest and a Pre-application Worksheet described as follows:
(1) Letter of interest. This letter serves as the cover letter for the Pre-application Worksheet, expressing interest in submitting an application. It describes the overall clean fuel technology program of the agency, including the technology selected, describes the necessary infrastructure to support the program and the long-range objectives of the program including the eventual size of the clean fuel fleet. It summarizes the eligible activities for which the agency is applying and the amount of funds that the agency is seeking.
(2) Pre-application Worksheet. Applicants must use the Worksheet found in Appendix A to this part.
The applicant must use the certification contained in the Annual Notice of Assurances and Certifications published in the
The Clean Fuels Formula funds will be apportioned according to the following formula:
(a)
(1) The number of vehicles in the bus fleet of the eligible project, weighted by the severity of nonattainment for the area in which the eligible project is located; and
(2) The total number of vehicles in the bus fleets of all eligible projects in areas with a population of 1,000,000 and above, weighted by the severity of nonattainment for all areas in which those eligible projects are located as provided in paragraphs (c) and (d) of this section. The remaining 50 percent shall be apportioned such that each designated recipient receives a grant in an amount equal to the ratio between:
(i) The number of bus passenger miles of the eligible project of the designated recipient, weighted by the severity of nonattainment of the area in which the eligible project is located as provided in paragraphs (c) and (d) of this section;
(ii) The total number of bus passenger miles of all eligible projects in areas with a population of 1,000,000 and above, weighted by the severity of nonattainment of all areas in which those eligible projects are located as provided in paragraphs (c) and (d) of this section.
(b)
(c)
(i) 1.0 if, at the time of the apportionment, the area is a maintenance area for ozone;
(ii) 1.1 if, at the time of the apportionment, the area is classified as a marginal ozone nonattainment area;
(iii) 1.2 if, at the time of the apportionment, the area is classified as a moderate ozone nonattainment area;
(iv) 1.3 if, at the time of the apportionment, the area is classified as a serious ozone nonattainment area;
(v) 1.4 if, at the time of the apportionment, the area is classified as a severe ozone nonattainment area;
(vi) 1.5 if, at the time of the apportionment, the area is classified as an extreme ozone nonattainment area;
(2) The weighting factor for CO shall be determined based on the following factors:
(i) 1.0 if, at the time of the apportionment, the area is a maintenance area for carbon monoxide;
(ii) 1.2 if, at the time of the apportionment, the area is classified as a moderate carbon monoxide nonattainment area;
(iii) 1.3 if, at the time of the apportionment, the area is classified as a serious carbon monoxide nonattainment area.
(3) The number of buses in the fleet and the bus passenger miles shall be multiplied by the higher of the ozone or CO factors.
(d)
(e)
(2) Not more than 35 percent of the amount made available by or appropriated under 49 U.S.C. 5338 in each fiscal year to carry out this section may be made available to fund clean diesel buses.
(3) Not more than 5 percent of the amount made available by or appropriated under 49 U.S.C. 5338 in each fiscal year to carry out this section may be made available to fund 21 retrofitting or replacement of the engines of buses that do not meet the clean air standards of the Environmental Protection Agency, as in effect on the date on which the application for such retrofitting or replacement is submitted under § 624.5.
(a) Recipients of financial assistance under 49 U.S.C. 5308 who purchase or lease hybrid electric, battery electric and fuel cell vehicles must report to the appropriate FTA regional office on a quarterly basis for the first three years of the useful life of the vehicle with the following information:
(1) Vehicle miles traveled;
(2) Fuel/energy costs;
(3) Vehicle fuel/energy consumption and oil consumption;
(4) Number of road calls or breakdowns resulting from clean fuel and advanced propulsion technology systems, and
(5) Maintenance costs associated with the clean fuels or advanced propulsion system.
(b) Recipients of financial assistance under 49 U.S.C. 5308 who purchase or lease compressed natural gas (CNG), liquefied natural gas (LNG), and liquefied petroleum gas (LPG) vehicles may report the information described in paragraph (a) of this section, but this reporting is voluntary.
(c) Recipients of financial assistance under 49 U.S.C. 5308 who purchase or lease clean diesel vehicles should not report information beyond the normal FTA quarterly reporting requirements.
The following are instructions for completing the pre-application worksheet:
(1)
(2)
(3)
(4)
(5)
(1)
(2)
(3) Indicate the Federal amount and total amount for improvements to existing facilities to accommodate clean fuel buses. Enter any descriptive or explanatory information on the line for additional items, including what fuel type is being accommodated.
(4) Indicate the Federal amount and total amount for repowering/replacing pre-1993 engines with engines that meet current emissions standards when installed. Please include a separate entry for each fuel type. For the purposes of this program, repowering/replacement means the removal of an engine from the bus followed by the installation of another engine. This applies to engines that are replaced with new, previously unused engines, as well as those exchanged from an inventory of rebuilt engines.
(5) Enter a quantity, Federal amount, and total amount by fuel type for retrofit/rebuild of pre-1993 engines to comply with latest EPA-certified emissions standards. For the purposes of this program, “retrofit” means the use of the latest after-market technology such as “upgrade kits,” or after-treatment device(s) that treat the exhaust after it has left the engine, such as catalytic converters or particulate filters. “Before the half-life rebuild” means that the retrofitting would need to occur before the bus is six years old. Since this provision applies to pre-1993 engines, this provision is of limited time availability.
(6) This section should describe any proposed clean fuel project not included in categories (1) through (5). Since any project not included in those categories requires approval at the discretion of FTA, projects included here should also be described in the letter of interest. Include the Federal amount and total.
(7)
This section contains the active bus fleet and annual bus passenger miles information that is required to run the Clean Fuels formula.
(1) Enter the number of buses in the active fixed route fleet. For this purpose, “bus” includes articulated motor bus, Class A bus (>35 seats), Class B bus (25-35 seats), Class C bus (<25 seats), double-decked bus, school bus, and electric trolley bus. Use 2000 data. For UZAs that have already submitted information for the 2000 National Transit Database (NTD), add the data from column H of Form 408 for the following vehicle types: AB, BA, BB, BC, DD, SB, and TB. (These vehicle types are defined in reporter's guidance for the NTD.)
(2) Enter the fixed route annual bus passenger miles for year 2000. This may include motor bus (see types in paragraph 1) or trolley bus. For UZAs that have submitted 2000 NTD data, add the information from column I of line 25 of Form 406 for the modes MB and TB.
This section provides a dollar total for the areas that are affected by either maximum or minimum constraints. These constraints apply to the entire program and not to individual applicants. However, in order to comply with these constraints, FTA must know how much each applicant is applying for in each of these areas.
(1) Enter the total Federal dollar amount for the purchase/lease of clean diesel vehicles.
(2) Enter the total Federal dollar amount for project elements that fall into the category of purchasing hybrid electric or battery-powered buses or constructing facilities designed to service them.
(3) Enter the total Federal dollar amount for project elements that fall into the category of retrofitting or replacing bus engines that do not meet the clean air standards of the EPA.
Because of the uncertainty of how many grantees will apply, the actual amount that a grantee receives in an apportionment may be different from the amount requested in the application that was submitted. Furthermore, because clean diesel and retrofit/replacement of bus engines are subject to maximum constraints, the amounts specifically apportioned for those purposes may not resemble the proportionality of the application. For example, suppose Grantee A's application included $500,000 for clean diesel and $100,000 for a compressed natural gas bus. If the 35 percent ceiling for clean diesel is exceeded by the total applications, Grantee A may only be allowed $50,000 to be used specifically for clean diesel because of the ceiling. The remainder of the funds apportioned to Grantee A (say, $300,000) would have to be used in areas without a maximum constraint,
The chief executive officer or the general manager of the transit agency should sign this certification.