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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Agricultural Marketing Service, USDA.
Final rule and notice of referenda.
This rule establishes procedures which the U.S. Department of Agriculture (USDA) will use in conducting a referenda among producers of each kind of tobacco that is eligible for price support to determine whether they favor mandatory grading of that kind of tobacco. Currently, tobacco that is not sold at auction is not subject to mandatory grading.
John P. Duncan III, Deputy Administrator, Tobacco Programs, Agricultural Marketing Service (AMS), United States Department of Agriculture (USDA), STOP 0280, 1400 Independence Avenue, SW, Washington, DC 20250-0280; telephone number (202) 205-0567.
Section 759 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act for 2002 (Public Law 107-76) (Appropriations Act) requires USDA to conduct referenda among producers of each kind of tobacco that is eligible for price support under the Agricultural Act of 1949 (7 U.S.C. 1421
The USDA published in the
The respondent also stated that only growers who would directly pay the mandatory grading fees should be eligible to vote in the referenda. Such a limitation, however, is not permissible under the statute, which provides that the referenda shall be conducted among tobacco producers.
Provisions are included for the method of conducting the referendum, eligibility for voting, a one vote limitation, form and distribution of ballots, filing and tabulation of ballots, and confidentiality. As provided for in the Appropriations Act, separate referenda will be conducted among the producers of each kind of tobacco eligible for price support. These kinds are flue-cured tobacco, types 11, 12, 13, 14; Kentucky-Tennessee fire-cured tobacco, types 22 and 23; Virginia fire-cured tobacco, type 21; Virginia sun-cured tobacco, type 37; dark air-cured tobacco, types 35 and 36; burley tobacco, type 31; and cigar filler and binder tobacco, types 42, 43, 53, 54, and 55, as set forth at 7 CFR 1464.2.
Producers of each kind of tobacco will be eligible to vote in the referendum for that kind. Under USDA's price support program, periodic referenda are conducted among producers of specific commodities, including tobacco, to determine whether they favor the continuation of quotas. Voting eligibility is governed by 7 CFR 717.3. This final rule will follow those provisions as they apply to tobacco producers and will determine eligibility to vote in the same or similar way. In general, the persons eligible to vote in a referendum for a particular kind of tobacco would be the farmers engaged in the production of the crop of such tobacco harvested in the immediately preceding crop-year prior to the holding of the referendum. This includes any person who is entitled to share in a crop of the commodity, or the proceeds thereof because he or she shares in the risks of production of the crop as an owner, landlord, tenant, or sharecropper, but would not include a landlord whose return from the crop is fixed regardless of the amount of the crop produced.
This rule will administer the Appropriations Act requirements in accordance with USDA voting procedures with which the affected producers are familiar. The AMS Mandatory Grading Referenda program, producer eligibility, and procedural requirements will be governed by 7 CFR part 717, Holding of Referenda, and the
This final rule establishes procedures for conducting the producer referenda. The voting periods for the producer referenda will be March 11-15, 2002, for flue-cured tobacco, types 11, 12, 13, 14; and burley tobacco, type 31; and March 18-22, 2002, for Kentucky-Tennessee fire-cured tobacco, types 22 and 23; Virginia fire-cured tobacco, type 21; Virginia sun-cured tobacco, type 37; dark air-cured tobacco, types 35 and 36; and cigar filler and binder tobacco, types 42, 43, 53, 54, and 55.
Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
This rule has been determined to be not significant for purposes of Executive Order 12866, and, therefore, has not been reviewed by the Office of Management and Budget.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. The rule will not exempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.
In conformance with the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The information collections will be carried out using the referenda procedures of the Farm Service Agency and Form FSA MQ-5, Referendum Ballot. This rule will add no additional burden to that currently approved by OMB and assigned OMB Control Number 0560-0182 under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Administrative practice and procedure, Advisory committees, Government publications, Imports, Pesticides and pests, Reporting and recordkeeping procedures, Tobacco.
Accordingly, 7 CFR part 29 is amended as follows:
7 U.S.C. 511m and 511r. Section 29.74a is also issued under sec. 759, Pub. L. 107-76, 115 Stat. 741 (7 U.S.C. 511s).
(a)(1)
(2)
(3)
(i) The individual members of a partnership shall each be entitled to one vote, but the partnership as an entity shall not be entitled to vote;
(ii) An individual eligible voter shall be entitled to one vote even though he or she is interested in an entity (including but not limited to a corporation) which entity is also eligible to vote;
(iii) A person shall also be entitled to vote in each instance of his or her capacity as a fiduciary (including but not limited to a guardian, administrator, executor or trustee) if in such fiduciary capacity he or she is eligible to vote but the person for whom he or she acts as a fiduciary shall not be eligible to vote.
(4)
(5)
(6)
(b)
Federal Housing Finance Board.
Final rule.
The Federal Housing Finance Board (Finance Board) is amending its regulations to implement the provisions of Title VI of the Gramm-Leach-Bliley Act, Pub. L. 106-102 (1999) and to establish rules of practice and procedure governing hearings on the record in certain administrative enforcement actions. The final rule is intended to provide Finance Board personnel, the Federal Home Loan Banks (Banks), the Office of Finance (OF) and the directors and executive officers of the Banks and OF, as well as any other interested parties, with sufficient notice and guidance to fully utilize the procedures. The Finance Board is also making certain conforming amendments to its existing rules.
April 4, 2002.
Charlotte A. Reid, Special Counsel, Office of General Counsel, 202/408-2510,
Pursuant to the Federal Home Loan Bank Act,
In 1999, with the enactment of section 606 of Title VI of the Gramm-Leach-Bliley Act,
Section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)) establishes the civil administrative enforcement authority of the Finance Board in four parts. First, section 2B(a)(5) of the Act expressly authorizes the Finance Board to issue and enforce cease and desist orders based upon three broad grounds: an unsafe or unsound practice in conducting the business of a Bank; any conduct that violates any provision of the Act or any law, order, rule, or regulation; or any conduct that violates any condition imposed in writing by the Finance Board in connection with the granting of any application or other request by a Bank, or any written agreement entered into by a Bank with the Finance Board.
Second, section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)) adopts the procedural provisions for initiating a cease and desist proceeding that govern
Third, section 2B(a)(5) of the Act provides that the Finance Board shall have all other powers to enforce the Act that OFHEO has under sections 1372 through 1379B of the Safety and Soundness Act, 12 U.S.C. 4632-4641, including the grounds and authority to issue and enforce temporary cease and desist orders (12 U.S.C. 4632) and civil money penalty assessment orders (12 U.S.C. 4636), and the authority to issue subpoenas and subpoenas
On December 18, 2000, the Finance Board published for notice and comment a proposed rule (65 FR 78944) to implement the enforcement powers set forth in the GLB Act amendments and establish the necessary hearing procedures.
Subpart A of the final rule, which has been revised for improved organization prescribes the scope and authority of the regulation, defines certain terms appearing in this part, and relates the general rules of construction. Some of the commenters suggest that the definition of “violation” be revised to clarify that “policy” means “written policy.” The Finance Board has determined that the term “policy,” which was intended to refer to directives issued pursuant the Finance Board's supervisory and enforcement authority under the Act, should be deleted in favor of the term “order” in the definition of “violation.” Thus, as used in the final rule, “violation” is intended to refer to any violation of “any provision of [the] Act or any law, order, rule, or regulation or any condition imposed in writing by the Finance Board in connection with the granting of any application or other request by the Bank, or any written agreement entered into by the Bank with the agency,” as set forth in section 2B(a)(5) of the Act. 12 U.S.C. 1422b(a)(5).
The proposed definition of “adjudicatory proceeding or hearing” has been simplified in the final rule to indicate that a hearing means an adjudicatory proceeding conducted under part 908. The definition of “decisional employee” has been revised to exclude Finance Board employees in the Office of General Counsel to allow for the agency and agency head to obtain the assistance of counsel in such proceedings. “Notice” is defined to mean a written notice of charges or a written notice of assessment of a civil money penalty, with an exception carved out for the common usage of the word in phrases such as ‘reasonable notice.' The definition of “party” has been revised to allow for the common use of the term in the rule, except that for purposes of subparts C through F, party means the Finance Board or respondent. Similarly, the definition of “respondent” has been revised in the final rule to mean any person named in a notice of charges or a notice of assessment of a civil money penalty. Consistent with its effort to conform the rule to the statutory authority, the Finance Board declines to adopt a commenter's request to adopt the definition of “executive officer,” in section 1303(7) of the Safety and Soundness Act (12 U.S.C. 4502(7)). The proposed definition, which excludes directors, is inconsistent with section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)), which expressly provides that the Finance Board shall have such enforcement authority over “any executive officer or director” of a Bank. Finally, several commenters request that the term “unsafe and unsound” be expressly defined in subpart A. The Finance Board declines to do so, for the reasons stated in the discussion of subpart B, below.
Subpart B of the final rule specifies the scope of the Finance Board's enforcement authority with respect to the Banks or any executive officer or director of a Bank, including issuing a notice of charges or a notice of assessment of a civil money penalty, and enforcing cease and desist orders, temporary cease and desist orders, assessment of civil money penalty orders. The rule also specifies the process for judicial review of final orders and public disclosure of final orders. Additionally, the final rule states that there is no implied private right of action created by the provision pursuant to section 1378 of the Safety and Soundness Act (12 U.S.C. 4638). The final rule also provides for the service of a notice of charges on a former executive officer or director of a Bank, within two years of the person's departure from the Bank, as is provided
Section 908.4 of the final rule contains the Finance Board's authority to issue a notice of charges and the grounds for a cease and desist order as set forth in section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)). Specifically, section 2B(a)(5) states that the Finance Board shall have the power to issue and serve a notice of charges upon a Bank, or upon any executive officer or director of a Bank, if in the determination of the Finance Board, the subject individual or Bank:
is engaging or has engaged in, or the Finance Board has reasonable cause to believe that the Bank, executive officer, or director is about to engage in an unsafe or unsound practice in conducting the business of the bank, or any conduct that violates any provision of this Act or any law, order, rule, or regulation or any condition imposed in writing by the Finance Board in connection with the granting of any application or other request by the Bank, or any written agreement entered into by the Bank with the agency, in accordance with the procedures provided in subsection (c) or (f) of section 1371 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 [12 U.S.C. § 4631(c) and (f)].
One commenter suggests that the final rule should establish a definition of “unsafe and unsound” as follows: “Unsafe or unsound practice means a practice that is contrary to prudent standards of operation and is likely to have a material adverse impact on the financial condition of the Bank or on the ability of any Bank or the OF to raise funds in the capital markets.” The Finance Board has studied the issue and concludes that the proposed definition is inconsistent with generally accepted interpretations of the meaning of “unsafe and unsound practices.” First, “material adverse impact” would unnecessarily establish a higher standard relative to the risk of possible loss than traditional definitions of unsafe and unsound practices cited by many courts. Second, the concept of “unsafe and unsound,” by design, is intended to be flexible. Historically, the term “unsafe and unsound” has been broadly interpreted to adapt to the ever-changing nature of banking and finance practices. Finally, the fact that the concept is not defined in the Act supports the conclusion that the Finance Board, as the agency in which Congress has invested exclusive supervisory oversight, is authorized to make judgments concerning safety and soundness issues because it best suited to do so on a case-by-case basis.
In 1966, Mr. John Horne, the Chairman of the Federal Home Loan Bank Board (FHLBB), the Finance Board's predecessor, provided a useful definition of the phrase “unsafe and unsound practices” in hearings before Congress prior to the adoption of the Financial Institutions Supervisory Act of 1966, Pub. L. No. 89-695 (Supervisory Act of 1966). Chairman Horne stated: “Generally speaking, an ‘unsafe or unsound practice' embraces any action, or lack of action, which is contrary to generally accepted standards of prudent operation, the possible consequences of which, if continued, would be abnormal risk or loss or damage to an institution, its shareholders, or the agencies administering the insurance funds.” (Financial Institutions Supervisory Act of 1966: Hearings on S. 3158 and S. 3695 before the House Committee on Banking and Currency, 89th Cong., 2d Sess. 49-50.) The Supervisory Act of 1966 gave the federal banking regulatory agencies “authority to issue cease and desist orders or suspension or removal orders * * * as intermediate powers short of conservatorship or withdrawal of insurance, in order to prevent violations of law or regulations and unsafe and unsound practices which otherwise might adversely affect the Nation's financial institutions, with resulting harmful consequences to the growth and development of the Nation's economy.” (S. Rep. No. 89-1482, 89th Cong., 2d Sess. 2 (August 18, 1966) (reprinted in 1966 U.S.C.C.A.N. 3532, 3533)).
The interpretation of “unsafe or unsound practice” offered by the commenter departs from this tested model. The courts have interpreted the phrase “as a flexible concept which gives the administering agency the ability to adapt to changing business problems and practices in the regulation of the banking industry.”
The Finance Board's authority to issue cease and desist orders under section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)), which incorporates the provisions of sections 8(b)(6) and (7) of the Federal Deposit Insurance Act,
One commenter opposes the rescission provision on the ground that it could seriously jeopardize the Banks' ability to enter binding, enforceable contracts. Another commenter argues that the provision might impair the ability of a Bank to set employees' compensation, rights, and pension or profit-sharing terms by employment contract and suggests amending the provision to exclude employment contracts, change in control agreements, pension or profit sharing plans, or similar employment agreements. This rationale is unavailing. Congress, as the legislative body with exclusive authority to define the extent of the Finance Board's supervisory and oversight authority, has required the Finance Board, as its “primary duty” to “ensure” that the Banks are run in a “financially safe and sound manner” (
Section 908.5 of the final rule revises the proposed rule to clarify that a temporary cease and desist order may be issued only in connection with a notice of charges issued and served by the Finance Board to initiate cease and desist proceedings in accordance with section 2B(a)(5) of the Act. 12 U.S.C. 1422b(a)(5). Pursuant to section 2B(a)(5) of the Act, the statutory authority for the Finance Board to issue a temporary cease and desist order derives from and is governed by section 1372 of the Safety and Soundness Act (12 U.S.C. 4632). Accordingly, the final rule reorders the provisions in sections 908.5(a)(1) and (a)(2) of the proposed rule and restates these provisions in sections 908.5(a) and (b) of the final rule in order to more clearly delineate the separate grounds and authority to issue a temporary cease and desist order. Section 908.5(a) of the final rule consolidates the grounds for a temporary cease and desist order based on conduct or violation or threatened conduct or violation likely to cause insolvency or a significant depletion of capital together with the authority to issue a temporary cease and desist order requiring a Bank or individual respondent to cease and desist from such conduct or violation and to take affirmative action to prevent or remedy such insolvency, depletion, or harm pending completion of the cease and desist hearing. Similarly, the revision set forth in section 908.5(b) of the final rule combines in one provision the Finance Board's authority to base a temporary cease and desist order on a Bank's incomplete or inaccurate books and records and the Finance Board's authority to issue a temporary cease and desist order that would require a respondent to cease and desist from conduct that caused or contributed to the incompleteness of the books and records and to require affirmative action to restore the books to a complete and accurate state. Additionally, in light of the improvements to section 908.5 in the final rule, section 908.5(a)(3) of the proposed rule was deleted in the final rule in response to a comment to make the provisions consistent with the statutory authority.
In accordance with section 1372(d) of the Safety and Soundness Act (12 U.S.C. 4632(d)), which confers subject matter jurisdiction on the United States District Court for the District of Columbia (district court), section 908.5(f) of the final rule [proposed 908.5(c)] describes how a respondent may seek injunctive relief from a temporary cease and desist order. Specifically, a respondent may petition the district court to issue an injunction setting aside, limiting, or suspending the enforcement, operation, of effectiveness of the order pending completion of the hearing pursuant to the notice of charges. In accordance with sections 2B(a)(5) and (7) of the Act (12 U.S.C. 1422b(a)(5) and (a)(7)) and sections 1372(d) and 1375(b) of the Safety and Soundness Act (12 U.S.C. 4632(d) and 4635(b)), the district court's jurisdiction is limited to granting the injunctive relief requested. In effect, the district court lacks subject matter jurisdiction to consider any substantive challenge to the notice of charges, such as an action for judicial review under the Administrative Procedure Act. The means of obtaining judicial review of final orders of the Board of Directors is described separately in § 908.10 of the final rule, in accordance with section 1374 of the Safety and Soundness Act (12 U.S.C. 4634). Under section 908.5(g) of the final rule [proposed 908.5(d)], the district court has subject matter jurisdiction, which is based on sections 2B(a)(5) and (7) of the Act (12 U.S.C. 1422b(a)(5) and (a)(7)) and section 1372(e) of the Safety and Soundness Act (12 U.S.C. 4632(e)), to enforce a temporary cease and desist order if a respondent violates, threatens to violate, or fails to obey such order. Certain commenters contended that the Finance Board cannot confer or limit the jurisdiction of federal courts by regulation. The references to jurisdiction in the proposed rule were intended only to reflect what Congress has provided by statute, and the final rule has been revised to make that point clear.
Section 908.6 of the final rule states the authority of the Finance Board to initiate civil money penalty enforcement proceedings in accordance with section 1376 of the Safety and Soundness Act (12 U.S.C. 4636). As proposed, section 908.6(a)(4) of the rule included unsafe or unsound practices and breaches of fiduciary duty as grounds for assessing a civil money penalty. The Finance Board has deleted these terms from the text of the final rule solely to conform the rule text to that of section 1376(a)(4) of the Safety and Soundness Act (12 U.S.C. 4636(a)(4)). The Finance Board, as the safety and soundness regulator of the Banks, has explicit statutory authority under the Act to determine whether any acts or omissions may constitute an unsafe or unsound practice, a violation of law, order or regulation, or is likely to result in a loss. One commenter opposes the use of the term “loss” in proposed section 908.6(a)(4) of the rule, which provides that the agency may impose a civil money penalty if a Bank or any executive officer or director of a Bank “engages in any conduct that causes or is likely to cause a loss to a Bank.” The commenter argues that the term “loss” is too broad and should be deleted from the rule. The Finance Board disagrees and has retained the provision in section 908.6(a)(4) of the final in as much as it is an exact recitation of the statutory authority in section 1376(a)(4) of the Safety and Soundness Act (12 U.S.C 4636(a)(4)). The Finance Board concludes that any determination of whether or not a “loss” is presented under this provision is to be made on a case-by-case basis and factually established in a hearing on the record. The Finance Board believes that the final rule provides ample procedural safeguards. There is no credible likelihood to suppose, as one commenter suggests, that a determination of “loss” could be made on the basis of shifting market values, or that the provision could make Bank directors guarantors of all Bank activities.
Section 908.6(d) of the final rule [proposed 908.6(c)] lists certain factors to be considered by the Finance Board in assessing a civil money penalty. On its face, the list is not exclusive because it states “such factors as.” One commenter urges the Finance Board to adopt additional factors, taking a page from comments submitted by Freddie Mac and Fannie Mae directed to OFHEO in a recent rulemaking. The Finance Board is not persuaded that it is necessary to encumber section 908.6(d) by inserting “any other factors the [agency] may determine by regulation to be appropriate.” The change would only add redundancy to the rule, which currently permits the Board of Directors to look to other appropriate factors as needed on a case-by-case basis.
One commenter argues that the Finance Board lacks authority to provide in section 908.6(f)(4) of the rule that, in an action brought by the Finance Board in the district court to enforce a civil money penalty assessment order, the court would not have subject matter jurisdiction to review the validity and appropriateness of the order. The commenter calls for the provision to be
One commenter suggests that section 908.6(i) of the proposed rule should be eliminated or, at a minimum, the bar against indemnification of directors and executive officers should be limited to tier 3 violations for knowing conduct that caused or is likely to cause a substantial loss. The Finance Board agrees with the commenter that the rule should state the statutory authority and has revised the indemnification provision in § 908.6(i) of the final rule accordingly.
Section 908.6(k) of the proposed rule set forth the obligation of the Finance Board periodically to adjust the statutory civil money penalty amounts pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, Oct. 5, 1990, 104 Stat. 890, as amended by the Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, Title III, § 31001(s)(2), April 26, 1996, 110 Stat. 1321-373, and Pub. L. 105-362, Title XIII, § 1301(a)(1), Nov. 19, 1988, 112 Stat. 3293 (collectively, the Inflation Adjustment Act) (
The adjustment is based on the formula prescribed in the Inflation Adjustment Act. Section 5(a) of the Inflation Adjustment Act prescribes that the inflation adjustment for each maximum monetary civil penalty (or the range of minimum and maximum civil monetary penalties) shall be determined by the cost-of-living adjustment and shall be rounded to the nearest multiple of a specified dollar amount as set forth in that provision. Section 5(b) of the act defines the term cost-of-living adjustment to mean “the percentage (if any) for each civil monetary penalty by which the Consumer Price Index for the month of June of the calendar year preceding the adjustment exceeds the Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law.” The agencies are required to use the Consumer Price Index for All Urban Consumers (CPI-U), which is compiled by the Bureau of Statistics of the Department of Labor.
Section 908.7 of the proposed rule included provisions for the suspension and removal of officers, directors, employees and agents of the Banks under section 2B(a)(2) of the Act (12 U.S.C. 1422b(a)(2)). Numerous comments on the removal provision argue that the agency lacks authority to adopt the rule and challenge whether the rule met the constitutional requirements of due process. The Finance Board has deleted the removal provision from the final rule because section 2B(a)(2) of the Act (12 U.S.C. 1422b(a)(2)) predated the GLB Act, thus it is not logically a necessary element of this rulemaking, the purpose of which is to implement the GLB Act amendments. Moreover, because section 2B(a)(2) of the Act (12 U.S.C. 1422b(a)(2)) does not require that a hearing on the record be held to remove or suspend an officer, director, employee or agent of a Bank, it raises additional and disparate administrative law issues. Section 908.7 of the proposed rule established different procedures than those applicable to cease and desist and civil money penalty proceedings under section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)). In order to eliminate any potential confusion that may arise from addressing these very different remedies in the same rulemaking, the Finance Board has determined to undertake a separate rulemaking in the future to provide a full and fair opportunity for comment and to respond to such comments in detail at that time. Instead, section 908.7 of the final rule establishes in accordance with section 1379A of the Safety and Soundness Act (12 U.S.C. 4640) that any notice (e.g., notice of charges or notice of civil money penalty assessment) to be served on a respondent under the rule may be served by registered mail or other appropriate manner reasonably calculated to give actual notice to the respondent as the Finance Board may by regulation or otherwise provide.
The Finance Board has adopted several provisions in the final rule pertinent to certain administrative requirements in the Safety and Soundness Act. Briefly, section 908.8 of the rule as proposed was adopted with an additional section that specifies the fees and expenses to be paid witnesses subpoenaed under the provision, in accordance with section 1379B of the Safety and Soundness Act (12 U.S.C. 4641). Section 908.9 of the final rule sets forth the requirement under sections 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)) and 1373 of the Safety and Soundness Act (12 U.S.C. 4633) that hearings conducted pursuant to section 908.4 and 908.6 of the rule are to be held on the record and in the District of Columbia. Section 908.13 of the final rule provides that such hearings shall be public in accordance with section 1379(b) of the Safety and Soundness Act (12 U.S.C. 4639(b)). Section 908.10 of the final rule adopts the provision as proposed, but with certain clarifications. The reference to Rule 4 of the Federal Rules of Procedure [proposed 908.10(b)] has been eliminated. Judicial review of a final order of the Board of Directors (whether a cease and desist order or an order assessing a civil money penalty) is governed by the applicable federal law and appellate court rules. Section 1374 of the Safety and Soundness Act (12 U.S.C. 4634) provides that the petition seeking review must be filed within 30 days after the date of service of the final order with the court of appeals. Rule 15(c) of the Federal Rules of Appellate Procedure (FRAP) and Rule 15 of the United States Court of Appeals, District of Columbia Circuit (Local Rules) require the clerk of the court to transmit a copy of the petition to the Finance Board, in a manner prescribed by FRAP Rule 3(d). Sections 908.10(a) and (b) of the rule have been amended accordingly. Similarly, section 908.10(c) has been amended to clarify that the Finance Board shall file the hearing record with the clerk of the court of appeals in accordance with FRAP 17 and Local Rule 17 as provided in section 2112 of Title 28 of the United States Code. Additional language in the remaining paragraphs clearly states the statutory authority for subject matter
Subpart C of the final rule provides the general rules that govern the process and specifies the authority of the Finance Board and the Board of Directors and the presiding officer, an Administrative Law Judge (ALJ) or other neutral, qualified individual who is appointed by the Finance Board to preside over the hearing and file with the Board of Directors a recommended decision and order, which shall be based on the record of the hearing, for a final decision and order to be issued by the Board of Directors. The Board of Directors may intervene in any matter to perform, direct the performance of, or waive the performance of any authorized action of the presiding officer. The presiding officer is authorized to: change the hearing date, time or place; issue or modify subpoenas or subpoenas
All hearings are open to the public, unless the Finance Board determines that an open hearing would be contrary to the public interest or a party moves for a closed hearing and the Board of Directors orders the hearing closed. Because the presiding officer is fully authorized to regulate the course of the hearing, he or she may limit public and media access to any hearing the Finance Board has determined will be a public hearing. Additionally, the Finance Board may file any document or portion of a document under seal and the presiding officer is required to take all appropriate steps to preserve the confidentiality of such document(s) or parts thereof.
The final rule provides that every filing or submission of record shall be signed by at least one representative of record to certify that the document has been read and that to the best of the representative's knowledge it is supported in fact and is not made for any improper purpose.
Any respondent may submit a settlement proposal to the Finance Board in accordance with section 908.30 of the final rule. Submission of a settlement offer does not provide a basis for delaying a proceeding, and no settlement offer is admissible in evidence in the adjudicative proceeding or any court. Nothing in the rule prohibits or restricts the authority of the Finance Board to conduct any examination or inspection of any Bank, or to conduct or to continue any form of investigation authorized by the Act.
Under subpart D, the Finance Board commences proceedings by issuing and serving a notice of charges or a notice of assessment of a civil money penalty on a respondent. During the course of a hearing, the presiding officer controls virtually all aspects of the proceeding. The presiding officer: determines the hearing schedule; presides over any pre-hearing conferences; rules on motions, discovery, and evidentiary issues; and ensures that the proceeding is fair, equitable, and impartial. The presiding officer does not, however, have the authority to make a ruling that disposes of the proceeding. Only the Board of Directors has the authority to dismiss the proceeding or to make a final determination on the merits of the proceeding following a hearing on the record or a negotiated disposition.
Subpart E of the final rule governs hearings and post-hearing proceedings. Section 908.60 of the final rule provides that hearings shall be conducted in accordance with the APA. The parties to the proceeding have the right to present evidence and witnesses at the hearing and to examine and cross-examine the witnesses. At the completion of the hearing, the parties may submit proposed findings of fact and conclusions of law and a proposed order. The presiding officer then submits the complete record to the Board of Directors for consideration and action. The record includes the presiding officer's recommended decision, recommended findings of fact and conclusions of law, and proposed order. The record also includes all pre-hearing and hearing transcripts, exhibits, rulings, motions, briefs and memoranda, and all supporting papers filed in connection with the hearing. The Board of Directors shall issue a final ruling within 90 days of the date the presiding officer serves notice on the parties that the record is complete and the case has been submitted to the Board of Directors for final decision, or at such time as is practicable within the discretion of the Board of Directors.
Subpart F, “Rules of Practice Before the Finance Board,” governs the parties and their representatives appearing before the Finance Board under this rule and provides for the imposition of disciplinary sanctions—censure, suspension or disbarment—by the presiding officer or the Board of Directors against parties or their representatives. This subpart covers parties and individuals that appear before the Finance Board in a representational capacity; covered representation may include, but is not limited to, the practice of attorneys and accountants. The presiding officer may decide what notice and responses are appropriate where sanctions are at issue for conduct arising in an adjudicatory proceeding or hearing. The final rule prescribes when sanctions may be imposed, and what those sanctions may be. Employees of the Finance Board are not subject to disciplinary proceedings under this subpart. The Finance Board may also apply these qualification and disciplinary rules to parties or representatives in an administrative proceeding under part 907 of the Finance Board's rules and regulations (12 CFR part 907).
Executive Order 13132 requires that Executive departments and agencies identify regulatory actions that have significant federalism implications, that is, regulations or actions that have substantial, direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities between Federal and State Government. The Finance Board has determined that this rule has no federalism implications that warrant consultation with the states or the preparation of a federalism summary impact statement in accordance with Executive Order 13132.
In order to make the regulatory process more efficient, Executive Order 12866 requires the centralized review of regulatory action. The Finance Board has determined that this rule is not a
Executive Order 12988 sets forth guidelines to promote the just and efficient resolution of civil claims and to reduce the risk of litigation to the Federal Government. This rule meets the applicable standards of sections 3(a) and 3(b) of Executive Order 12988.
The Unfunded Mandates Reform Act of 1995 requires for any rule that includes a Federal mandate that may result in an annual expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million, that an agency prepare an assessment statement of the anticipated costs and benefits of the Federal mandate.
The Regulatory Flexibility Act (5 U.S.C. 601
The Paperwork Reduction Act seeks to minimize the paperwork burden for individuals, small businesses, and other entities resulting from the collection of information by or for the Federal government.
Administrative practice and procedure, Federal Home Loan Banks.
Administrative practice and procedure, Penalties.
12 U.S.C. 1422b(a)(1).
In connection with any matter initiated or pending pursuant to this part, petitioners, requestors or intervenors, or their representatives, shall be subject to the provisions of subpart F of 12 CFR part 908. No other provision of part 908 shall apply under this part.
12 U.S.C. 1422b(a)(5), 4631(c) and (f), and 4632-4641. Section 908.4 is also authorized by 12 U.S.C. 1818(b)(6) and (7).
This part prescribes rules of practice and procedure applicable to any hearing with regard to:
(a) Cease and desist proceedings under section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)); or
(b) Civil money penalty assessment proceedings under section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)).
For purposes of this part—
For purposes of this part—
(a) Any term in the singular includes the plural and the plural includes the singular, if such use would be appropriate;
(b) Any use of a masculine, feminine, or neuter gender encompasses all three, if such use would be appropriate; and
(c) Unless the context requires otherwise, a party's representative of record, if any, may, on behalf of that party, take any action required to be taken by the party.
(a)
(i) An unsafe or unsound practice in conducting the business of the Bank;
(ii) Any conduct that violates any provision of the Act or any applicable law, order, rule or regulation; or
(iii) Any conduct that violates any condition imposed in writing by the Finance Board in connection with the granting of any application or other request by the Bank, or any written agreement between the Bank and the Finance Board.
(2)
(b)
(2)
(i) Make restitution or provide reimbursement, indemnification, or guarantee against loss if—
(A) The respondent was unjustly enriched in connection with the violation, conduct or practice described in the order; or
(B) The violation, conduct or practice involved a reckless disregard for the law or any applicable regulations or prior order of the Finance Board;
(ii) Restrict the growth of the Bank;
(iii) Dispose of any loan or asset involved;
(iv) Rescind any agreement or contract;
(v) Employ qualified officers or employees (who may be subject to approval by the Finance Board, as directed by the Finance Board); and
(vi) Take such other action as the Finance Board determines to be appropriate.
(3)
(c)
(a)
(b)
(1) Cease and desist from any activity or practice that caused or contributed to, whether in whole or in part, the incomplete or inaccurate state of the books or records of a Bank; or
(2) Take affirmative action to restore the books or records to a complete and accurate state.
(c)
(d)
(2) Any temporary order issued under paragraph (b) of this section, unless set aside, limited, or suspended by a court in proceedings pursuant to paragraph (e) of this section, shall remain in effect and enforceable until the earlier of the completion of the proceeding on the notice of charges, or the date that the Finance Board determines, by examination or otherwise, that the books and records of the Bank are accurate and reflect the financial condition of the Bank.
(e)
(f)
(a)
(i) Violates any provision of the Act, or any order, rule, or regulation issued under the Act;
(ii) Violates any final or temporary cease and desist order issued by the Finance Board pursuant to the Act;
(iii) Violates any written agreement between a Bank and the Finance Board; or
(iv) Engages in any conduct that causes or is likely to cause a loss to a Bank.
(2)
(b)
(c)
(2) The Finance Board may impose a civil money penalty on an executive officer or director of a Bank in an amount not to exceed $10,000.00, or on a Bank in an amount not to exceed $25,000.00, for each day that a violation or conduct described in paragraph (a) of this section continues, if the Finance Board finds that the violation or conduct:
(i) Is part of a pattern of misconduct; or
(ii) Involved recklessness and caused or would be likely to cause a material loss to a Bank; or
(3) The Finance Board may impose a civil money penalty on an executive officer or director of a Bank in an amount not to exceed $100,000.00, or on a Bank in an amount not to exceed $1,000,000.00, for each day that a violation or conduct described in paragraph (a) of this section continues, if the Finance Board finds that the violation or conduct was knowing and caused or would be likely to cause a substantial loss to a Bank.
(d)
(e)
(f)
(1) After the order is final and no longer subject to judicial review under § 908.10, the Finance Board may bring an action in the United States District
(2) The Finance Board may, in addition, seek such other relief as may be available from the District Court;
(3) The monetary judgment may, in the discretion of the District Court, include any attorneys fees and other expenses incurred by the Finance Board in connection with the action; and
(4) The validity and appropriateness of the Board of Directors' order assessing a civil money penalty shall not be subject to review of the United States District Court for the District of Columbia.
(g)
(1) Review any order to assess a civil money penalty or any interlocutory ruling arising from a hearing on the record, or
(2) Settle, modify, or remit in whole or in part, any civil money penalty, which may be or may have been assessed under this section.
(h)
(i)
(j)
(k)
In accordance with section 2B(a)(5) of the Act (12 U.S.C. 1422b(a)(5)) and section 1379A of the Safety and Soundness Act (12 U.S.C. 4640), any service required or authorized to be made by the Finance Board under this part may be made by registered mail, or in such other manner reasonably calculated to give actual notice as the Finance Board may by regulation or otherwise provide.
(a)
(1) To administer oaths and affirmations;
(2) To take and preserve testimony under oath;
(3) To issue subpoenas and subpoenas
(4) To revoke, quash, or modify subpoenas and subpoenas
(b)
(c)
(d)
(a)
(2)
(3)
(4)
(5)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
The resignation, termination of employment or participation, or separation of a director or executive officer of a Bank shall not affect the jurisdiction and authority of the Finance Board to issue any notice and proceed under this part against any such director or executive officer, if such notice is served before the end of the two-year period beginning on the date such director or executive officer ceases to be associated with the Bank.
(a)
(1) Any written agreement or other written statement for which a violation may be redressed by the Finance Board or any modification to or termination thereof, unless the Finance Board in its discretion, determines that public disclosure would be contrary to the public interest;
(2) Any order that is issued by the Board of Directors and that has become final in accordance with this part; and
(3) Any modification to or termination of any final order made public pursuant to this part.
(b)
(c)
(d)
(e)
This part shall not create any private right of action on behalf of any person against a Bank or any director or executive officer of a Bank or impair any existing private right of action under applicable law.
The Board of Directors may, at any time during the pendency of a proceeding under this part, perform, direct the performance of, or waive the performance of any act that could be done or ordered by the presiding officer.
(a)
(b)
(1) Set and change the date, time and place of the hearing upon reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding, including settlement conferences, mediation or other consensual methods of dispute resolution;
(4) Administer oaths and affirmations;
(5) Issue subpoenas, subpoenas
(6) Take and preserve testimony under oath;
(7) Rule on motions and other procedural matters appropriate in a hearing, except that only the Board of Directors shall have the power to grant any motion to dismiss a cease and desist or civil money penalty proceeding or to make a final determination on the merits of such proceedings;
(8) Regulate the scope and timing of discovery;
(9) Regulate the course of the hearing and the conduct of representatives and parties;
(10) Examine witnesses;
(11) Receive, exclude, limit, or otherwise rule on evidence;
(12) Upon motion of a party, take official notice of facts;
(13) Recuse herself/himself upon motion made by a party or on her or his own motion;
(14) Prepare and present to the Board of Directors a recommended decision as provided in this part;
(15) Establish time, place and manner limitations on the attendance of the public and the media for any public hearing; and
(16) Do all other things necessary and appropriate to discharge the duties of a presiding officer.
(a)
(b)
(c)
(a)
(b)
(i) The representative of record or party has read the filing or submission of record;
(ii) To the best of her or his knowledge, information and belief formed after reasonable inquiry, the filing or submission of record is well-grounded in fact and is warranted by existing law or a good faith, non-frivolous argument for the extension, modification, or reversal of existing law, regulation or Finance Board policy or order; and
(iii) The filing or submission of record is not made for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) If a filing or submission of record is not signed, the presiding officer shall strike the filing or submission of record, unless it is signed promptly after the omission is called to the attention of the pleader or movant.
(c)
(a)
(i) An interested person outside the Finance Board (including the person's representative); and
(ii) The presiding officer handling the proceeding, the Board of Directors or any member thereof, a decisional employee of the Finance Board assigned to that proceeding, or any other person who is or may reasonably be expected to be involved in the decisional process.
(2) A communication that does not concern the merits of a proceeding under this part, such as a request for status of the proceeding, does not constitute an
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(1) Personal service;
(2) Delivery to the U.S. Postal Service or to a reliable commercial delivery service for same day or overnight delivery;
(3) Mailing by first class, registered, or certified mail; or
(4) Transmission by electronic media upon any conditions specified by the Finance Board or the presiding officer. All papers filed by electronic media shall also concurrently be filed in accordance with paragraph (c) of this section.
(c)
(2)
(3)
(4)
(a)
(b)
(1) Personal service;
(2) Delivery to the U.S. Postal Service or to a reliable commercial delivery service for same day or overnight delivery;
(3) Mailing by first class, registered, or certified mail; or
(4) Transmission by electronic media, only if the parties mutually agree. Any papers served by electronic media shall also concurrently be served in accordance with the requirements of § 908.25(c).
(c)
(2) If a notice of appearance has not been filed in the proceeding for a party in accordance with § 908.72, the Finance Board or the presiding officer shall make service upon such party by any of the following methods:
(i) By personal service;
(ii) If the person to be served is an individual, by delivery to a person of suitable age and discretion at the physical location where the individual resides or works;
(iii) If the person to be served is a corporation or other association, by delivery to an officer, managing or general agent, or to any other agent authorized by appointment or by law to receive service and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the party;
(iv) By registered or certified mail addressed to the person's last known address; or
(v) By any other method reasonably calculated to give actual notice.
(d)
(1) By personal service;
(2) If the person to be served is an individual, by delivery to a person of suitable age and discretion at the physical location where the individual resides or works;
(3) If the person to be served is a corporation or other association, by delivery to an officer, managing or general agent, or to any other agent authorized by appointment or by law to receive service and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the party;
(4) By registered or certified mail addressed to the person's last known address; or
(5) By any other method reasonably calculated to give actual notice.
(e)
(f)
(a)
(b)
(i) In the case of personal service or same day reliable commercial delivery service, upon actual service;
(ii) In the case of U.S. Postal Service or reliable commercial overnight delivery service, or first class, registered, or certified mail, upon deposit in or delivery to an appropriate point of collection; or
(iii) In the case of transmission by electronic media, as specified by the authority receiving the filing in the case of filing, and as agreed among the parties in the case of service.
(2) The effective filing and service dates specified in paragraph (b)(1) of this section may be modified by the Finance Board or the presiding officer in the case of filing or by agreement of the parties in the case of service.
(c)
(1) If service was made by first class, registered, or certified mail, or by delivery to the U.S. Postal Service for longer than overnight delivery service, add three (3) calendar days to the prescribed period for the responsive filing.
(2) If service was made by U.S. Postal Service or reliable commercial overnight delivery service, add one (1) calendar day to the prescribed period for the responsive filing.
(3) If service was made by electronic media transmission, add one (1) calendar day to the prescribed period for the responsive filing, unless otherwise determined by the Board of Directors or the presiding officer in the case of filing, or by agreement among the parties in the case of service.
Except as otherwise provided by law, the presiding officer may, for good cause shown, extend the time limits prescribed above or prescribed by any notice or non-dispositive order issued under this part. After the referral of the case to the Board of Directors pursuant to § 908.63, the Board of Directors may grant extensions of the time limits for good cause shown. Extensions may be granted on the motion of a party after notice and opportunity to respond is afforded all nonmoving parties, or on the Board of Directors' or the presiding officer's own motion.
Witnesses (other than parties) subpoenaed for testimony or depositions shall be paid the same fees for attendance and mileage as are paid to witnesses pursuant to the Federal Rules of Civil Procedure (title 28 of the U.S. Code) governing proceedings in the United States district courts, in which the United States is a party, provided that, in the case of a discovery subpoena addressed to a party, no witness fees or mileage shall be paid. Fees for witnesses shall be tendered in advance by the party requesting the subpoena, except that fees and mileage need not be tendered in advance where the Finance Board is the issuer of the subpoena. The Finance Board shall not be responsible for or required to pay any fees to or expenses of any witness not subpoenaed by the Finance Board.
Any respondent may, at any time in a cease and desist or civil money penalty proceeding, unilaterally submit to the Finance Board's counsel of record written offers or proposals for settlement of such proceeding in whole or in part without prejudice to the rights of any of the parties. Any such offer or proposal shall be made exclusively to the Finance Board. Submission of a written settlement offer does not provide a basis for adjourning or otherwise delaying all or any portion of a proceeding under this part. Any party to a proceeding under this part may request a neutral individual preside over settlement negotiations. No settlement offer or proposal, or any subsequent negotiation or resolution, is admissible as evidence in any proceeding under this part or any court.
Nothing contained in this part shall limit in any manner the right of the Finance Board to conduct any examination, inspection, or visitation of any Bank, or the right of the Finance Board to conduct or continue any form of investigation authorized by law. Nothing set forth in this part shall restrict or be deemed to restrict the authority of the Finance Board to supervise the Banks or to issue or enforce orders or directives pursuant to section 2B(a)(1), or any other provision, of the Act (12 U.S.C. 1422b(a)(1)).
If a respondent files in any court a collateral attack that purports to challenge all or any portion of a proceeding under this part, the hearing on the merits shall continue without regard to the pendency of any such challenge action. No default or other failure to act as directed in the hearing within the times prescribed in this subpart shall be excused based on the pendency of any such challenge action.
Proceedings under this part are commenced by the issuance of a notice of charges or a notice of assessment of a civil money penalty (notice). A notice that is served by the Finance Board upon a respondent in accordance with § 908.7 shall state all of the following:
(a) The legal authority for the proceeding and for the Finance Board's jurisdiction over the proceeding;
(b) A statement of the matters of fact or law showing that the Finance Board is entitled to relief;
(c) A proposed order or prayer for an order granting the requested relief;
(d) The time, place and nature of the hearing;
(e) The time within which to file an answer;
(f) The time within which to request a hearing; and
(g) The address for filing the answer and/or request for a hearing.
(a)
(b)
(c)
(a)
(b)
Failure of a respondent to appear in person or by a duly authorized representative at the hearing constitutes a waiver of respondent's right to a hearing and is deemed an admission of the facts as alleged and consent to the relief sought in the notice. Without further proceedings or notice to the respondent, the presiding officer shall file with the Board of Directors a recommended decision containing the findings and the relief sought in the notice.
(a)
(b)
(a)
(2) All written motions shall state with particularity the relief sought and must be accompanied by a proposed order.
(3) No oral argument may be held on written motions except as otherwise directed by the presiding officer. Written memoranda, briefs, affidavits, or other relevant material or documents may be filed in support of or in opposition to a motion.
(b)
(c)
(d)
(2) The failure of a party to oppose a written motion or an oral motion made on the record is deemed to be consent by that party to the entry of an order substantially in the form of the order accompanying the motion.
(e)
(f)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(1) The responding party learns that in some material respect the information disclosed is incomplete or incorrect, and
(2) The additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
(d)
(2) The party who served the request that is the subject of a motion to strike or limit may file a written response within five (5) days of service of the motion. No other party may file a response.
(e)
(f)
(2) The party who asserted the privilege or failed to comply with the request may, within five (5) days of service of a motion for the issuance of a subpoena compelling production, file a written response to the motion. No other party may file a response.
(g)
(h)
(a)
(2) A party shall only apply for a document subpoena under this section within the time period during which such party could serve a discovery request under § 908.46(e) and in accordance with § 908.47. The party requesting the document subpoena is
(3) The presiding officer shall promptly issue any document subpoena applied for under this section; except that, if the presiding officer determines that the application does not set forth a valid basis for the issuance of the subpoena, or that any of its terms are unreasonable, oppressive, excessive in scope, or unduly burdensome, he may refuse to issue the subpoena or may issue it in a modified form upon such conditions as may be determined by the presiding officer.
(b)
(2) Any motion to quash or modify a document subpoena shall be filed on the same basis, including the assertion of privilege, upon which a party could object to a discovery request under § 908.47 and during the same time limits during which such an objection could be filed.
(c)
(a)
(i) The testimony is reasonably expected to be material; and
(ii) Taking the deposition will not result in any undue burden to any other party and will not cause undue delay of the proceeding.
(2) The application must contain a proposed deposition subpoena and a brief statement of the reasons for the issuance of the subpoena. The subpoena must name the witness whose deposition is to be taken and specify the time and place for taking the deposition. A deposition subpoena may require the witness to be deposed anywhere within the United States and its possessions and territories in which that witness resides or has a regular place of employment or such other convenient place as the presiding officer shall fix.
(3) A subpoena shall be promptly issued upon request, unless the presiding officer determines that the request fails to set forth a valid basis under this section for its issuance. The presiding officer shall make a determination that there is a valid basis for issuing the subpoena. The presiding officer may require a written response from the party requesting the subpoena or require attendance at a conference to determine whether there is a valid basis upon which to issue the requested subpoena.
(4) The party obtaining a deposition subpoena is responsible for serving it on the witness and for serving copies on all parties. Unless the presiding officer orders otherwise, no deposition under this section shall be taken on fewer than ten (10) days' notice to the witness and all parties. Deposition subpoenas may be served anywhere within the United States or its possessions or territories on any person doing business anywhere within the United States or its possessions or territories, or as otherwise permitted by law.
(b)
(2) A statement of the basis for the motion to quash or modify a subpoena issued under this section shall accompany the motion. The motion must be served on all parties.
(c)
(2) Any party may move before the presiding officer for an order compelling the witness to answer any questions the witness has refused to answer or submit any evidence that, during the deposition, the witness has refused to submit.
(3) The deposition shall be subscribed by the witness, unless the parties and the witness, by stipulation, have waived the signing, or the witness is ill, cannot be found, or has refused to sign. If the deposition is not subscribed by the witness, the court reporter taking the deposition shall certify that the transcript is a true and complete transcript of the deposition.
(d)
(a)
(b)
(c)
(1) The ruling involves a controlling question of law or policy as to which substantial grounds exist for a difference of opinion;
(2) Immediate review of the ruling may materially advance the ultimate termination of the proceeding;
(3) Subsequent modification of the ruling at the conclusion of the proceeding would be an inadequate remedy; or
(4) Subsequent modification of the ruling would cause unusual delay or expense.
(d)
(a)
(1) There is no genuine issue as to any material fact; and
(2) The movant is entitled to a decision in its favor as a matter of law.
(b)
(2) A motion for summary disposition must be accompanied by a statement of material facts as to which the movant contends there is no genuine issue. Such motion must be supported by documentary evidence, which may take the form of admissions in pleadings, stipulations, written interrogatory responses, depositions, investigatory depositions, transcripts, affidavits and any other evidentiary materials that the movant contends support its position. The motion must also be accompanied by a brief containing the points and authorities in support of the contention of the movant. Any party opposing a motion for summary disposition must file a statement setting forth those material facts as to which such party contends a genuine dispute exists. Such opposition must be supported by evidence of the same type as that submitted with the motion for summary disposition and a brief containing the points and authorities in support of the contention that summary disposition would be inappropriate.
(c)
(d)
If the presiding officer determines that a party is entitled to summary disposition as to certain claims only, he or she shall defer submitting a recommended decision to the Board of Directors as to those claims. A hearing on the remaining issues must be ordered. Those claims for which the presiding officer has determined that summary disposition is warranted will be addressed in the recommended decision filed at the conclusion of the hearing.
(a)
(b)
(1) Simplification and clarification of the issues;
(2) Stipulations, admissions of fact and the contents, authenticity and admissibility into evidence of documents;
(3) Matters of which official notice may be taken;
(4) Limitation of the number of witnesses;
(5) Summary disposition of any or all issues;
(6) Resolution of discovery issues or disputes;
(7) Amendments to pleadings; and
(8) Such other matters as may aid in the orderly disposition of the proceeding.
(c)
(d)
(a)
(1) Pre-hearing statement;
(2) Final list of witnesses to be called to testify at the hearing, including name and address of each witness and a short summary of the expected testimony of each witness;
(3) List of the exhibits to be introduced at the hearing along with a copy of each exhibit; and
(4) Stipulations of fact, if any.
(b)
(a)
(2) A party may apply for a hearing subpoena at any time before the commencement of or during a hearing. During a hearing, a party may make an application for a subpoena orally on the record before the presiding officer.
(3) The presiding officer shall promptly issue any hearing subpoena applied for under this section; except that, if the presiding officer determines that the application does not set forth a valid basis for the issuance of the subpoena, or that any of its terms are unreasonable, oppressive, excessive in scope, or unduly burdensome, he may refuse to issue the subpoena or may issue the subpoena in a modified form upon any conditions consistent with this subpart. Upon issuance by the presiding officer, the party making the application shall serve the subpoena on the person named in the subpoena and on each party.
(b)
(2) Any motion to quash or modify a hearing subpoena must be filed prior to the time specified in the subpoena for compliance, but no more than ten days after the date of service of the subpoena upon the movant.
(c)
(a)
(2)
(3)
(4)
(b)
(a)
(2) Evidence that would be admissible under the Federal Rules of Evidence (
(3) The presiding officer may admit evidence, which otherwise would be inadmissible under the Federal Rules of Evidence (28 U.S.C.), upon a finding made on the record that the evidence is relevant, material, probative and reliable, and would not prejudice the rights of or cause an undue burden to any party to the proceeding.
(b)
(2) All matters officially noticed by the presiding officer or the Finance Board shall appear on the record.
(3) If official notice is requested of any material fact, the parties, upon timely request, shall be afforded an opportunity to object.
(c)
(2) Subject to the requirements of paragraph (a)(1) of this section, any document, including a report of examination, oversight activity, inspection, or visitation, prepared by the Finance Board or by another Federal or State financial institution's regulatory agency is admissible either with or without a sponsoring witness.
(3) Witnesses may use existing or newly created charts, exhibits, calendars, calculations, outlines, or other graphic material to summarize, illustrate, or simplify the presentation of testimony. Such materials may, subject to the presiding officer's discretion, be used with or without being admitted into evidence.
(d)
(2) When an objection to a question or line of questioning is sustained, the examining representative of record may make a specific proffer on the record of what he expected to prove by the expected testimony of the witness. The proffer may be by representation of the representative or by direct interrogation of the witness.
(3) The presiding officer shall retain rejected exhibits, adequately marked for identification, for the record and transmit such exhibits to the Board of Directors.
(4) Failure to object to admission of evidence or to any evidentiary ruling constitutes a waiver of the objection.
(e)
(f)
(2) Such deposition transcript is admissible to the same extent that testimony would have been admissible had that person testified at the hearing, provided that if a witness refused to answer proper questions during the depositions, the presiding officer may, on that basis, limit the admissibility of the deposition in any manner that justice requires.
(3) Only those portions of a deposition received in evidence at the hearing constitute a part of the record.
(a)
(2) Proposed findings and conclusions must be supported by citation to any relevant authorities and by page references to any relevant portions of the record. A post-hearing brief may be filed in support of proposed findings and conclusions, either as part of the same document or in a separate document.
(3) Any party is deemed to have waived any issue not raised in proposed findings or conclusions timely filed by that party.
(b)
(c)
(a)
(b)
(a)
(b)
(2) No exception need be considered by the Board of Directors if the party taking exception had an opportunity to raise the same objection, issue, or argument before the presiding officer and failed to do so.
(c)
(2) All exceptions and briefs in support of exceptions must set forth page or paragraph references to the specific parts of the presiding officer's recommendations to which exception is taken, the page or paragraph references to those portions of the record relied upon to support each exception and the legal authority relied upon to support each exception. Exceptions and briefs in support shall not exceed a total of 30 pages, except by leave of the Finance Board on motion.
(3) Each party may submit one reply brief within ten (10) days of service of exceptions and briefs in support of
(a)
(b)
(c)
(2) The Board of Directors shall render and issue a final decision and order within ninety (90) days after notification of the parties that the case has been submitted to the Board of Directors, unless the Board of Directors orders that the action or any aspect thereof be remanded to the presiding officer for further proceedings in accordance with instructions as may be specified by the Board of Directors. Copies of the final decision and order of the Board of Directors shall be served upon each party to the proceeding and otherwise, as may be required by the Board of Directors in accordance with applicable law.
To exhaust administrative remedies as to any issue on which a party disagrees with the presiding officer's recommendations, a party must file exceptions with the Board of Directors under § 908.64. A party must exhaust administrative remedies as a precondition to seeking judicial review of any final decision and order, in whole or in part, issued by the Board of Directors under § 908.65.
The commencement of proceedings for judicial review of all or part of a final order issued by the Board of Directors in accordance with § 908.65, as provided in § 908.10 may not, unless specifically ordered by the Board of Directors or a reviewing court, operate as a stay of any order issued by the Board of Directors. The Board of Directors may, in its discretion and on such terms as it finds just, stay the effectiveness of all or any part of an order of the Board of Directors pending a final decision on a petition for judicial review of that order.
This subpart contains rules governing practice by parties or their representatives in any proceeding before the Finance Board. In particular, these rules of practice shall apply to any appearances before the Board of Directors under this part or part 907 of this chapter. This subpart also shall govern the imposition of sanctions by the Finance Board or a presiding officer against parties or their representatives in a hearing under this part or a proceeding under part 907 of this chapter. In the sole discretion of the Finance Board, §§ 908.74 and 908.75 may be applied to persons who appear in a representational capacity in any hearing under this part or any proceeding under part 907 of this chapter, or in any other matter that involves contacting the Finance Board as a principal or agent with respect to asserting the rights, privileges, or liabilities of an individual or entity, including presentations to or communications with the Board of Directors or any member of the Board of Directors. This representation includes, but is not limited to, the practice of attorneys and accountants. Employees of the Finance Board are not subject to disciplinary proceedings under this subpart.
Practice before the Finance Board for the purposes of this subpart, includes, but is not limited to, transacting any business with the Finance Board as counsel, representative or agent for any other person, unless the Finance Board orders otherwise. Practice before the Finance Board also includes the preparation of any statement, opinion, or other paper by a counsel, representative or agent that is filed with the Finance Board in any request, certification, notification, application, report, or other document, with the consent of such counsel, representative or agent. Practice before the Finance Board does not include work prepared for a Bank solely at the request of the Bank for use in the ordinary course of its business.
(a)
(2)
(b)
(a)
(b)
(1) That the representative has personally and fully discussed the possibility of conflicts of interest with each such party and nonparty;
(2) That each such party and nonparty waives any right it might otherwise have had to assert any known conflicts of interest or to assert any non-material conflicts of interest during the course of the proceeding.
(a)
(1) Constitutes contemptuous conduct. Contemptuous conduct includes dilatory, obstructionist, egregious, contumacious, unethical, or other improper conduct at any phase of any proceeding, hearing, or appearance before the Board of Directors;
(2) Has caused some other party material and substantive injury, including, but not limited to, incurring expenses including attorney's fees or experiencing prejudicial delay;
(3) Is a clear and unexcused violation of an applicable statute, regulation, or order; or
(4) Has delayed the proceeding unduly.
(b)
(1) Issuing an order against a party;
(2) Rejecting or striking any testimony or documentary evidence offered, or other papers filed, by the party;
(3) Precluding the party from contesting specific issues or findings;
(4) Precluding the party from offering certain evidence or from challenging or contesting certain evidence offered by another party;
(5) Precluding the party from making a late filing or conditioning a late filing on any terms that may be just; or
(6) Assessing reasonable expenses, including attorney's fees, incurred by any other party as a result of the improper action or failure to act.
(c)
(2) Except as provided in paragraph (d) of this section, no sanction authorized by this section, other than refusing to accept late papers, shall be imposed without prior notice to all parties and an opportunity for any representative or party against whom sanctions would be imposed to be heard. The presiding officer shall determine and direct the appropriate notice and form for such opportunity to be heard. The opportunity to be heard may be limited to an opportunity to respond verbally immediately after the act or inaction in question is noted by the presiding officer.
(3) For purposes of interlocutory review, motions for the imposition of sanctions by any party and the imposition of sanctions shall be treated the same as motions for any other ruling by the presiding officer.
(4) Nothing in this section shall be read to preclude the presiding officer or the Finance Board from taking any other action or imposing any other restriction or sanction authorized by any applicable statute or regulation.
(d)
(a)
(i) Not to possess the requisite qualifications or competence to represent others;
(ii) To be seriously lacking in character or integrity or to have engaged in material unethical or improper professional conduct;
(iii) To have caused unfair and material injury or prejudice to another party, such as prejudicial delay or unnecessary expenses including attorney's fees;
(iv) To have engaged in, or aided and abetted, a material and knowing violation of the Act or the rules or regulations issued under the Act or any other law or regulation governing Bank operations;
(v) To have engaged in contemptuous conduct before the Finance Board;
(vi) With intent to defraud in any manner, to have willfully and knowingly deceived, misled, or threatened any client or prospective client; or
(vii) Within the last ten years, to have been convicted of an offense involving moral turpitude, dishonesty or breach of trust, if the conviction has not been reversed on appeal. A conviction within the meaning of this paragraph shall be deemed to have occurred when the convicting court enters its judgment or order, regardless of whether an appeal is pending or could be taken and includes a judgment or an order on a plea of nolo contendere or on consent, regardless of
(2) Suspension or revocation on the grounds set forth in paragraphs (a)(1) (ii), (iii), (iv), (v), (vi) and (vii) of this section shall only be ordered upon a further finding that the individual's conduct or character was sufficiently egregious as to justify suspension or revocation. Suspension or disbarment under this paragraph shall continue until the applicant has been reinstated by the Finance Board for good cause shown or until, in the case of a suspension, the suspension period has expired.
(3) If the final order against the respondent is for censure, the individual may be permitted to practice before the Finance Board, but such individual's future representations may be subject to conditions designed to promote high standards of conduct. If a written letter of censure is issued, a copy will be maintained in the Finance Board's files.
(b)
(2) A suspension or disbarment from practice before the Finance Board under paragraph (b)(1) of this section shall continue until the person suspended or disbarred is reinstated under paragraph (d)(2) of this section.
(c)
(2) Any individual appearing or practicing before the Finance Board who is or within the last ten years has been convicted of a felony or of a misdemeanor that resulted in a sentence of prison term or in a fine or restitution order totaling more than $5,000 shall file a notice promptly with the Finance Board. The notice shall include a copy of the order imposing the sentence or fine, together with any related opinion or statement of the court involved.
(d)
(2) An application for reinstatement for good cause by any person suspended or disbarred under paragraph (b)(1) of this section may be filed at any time, but not less than one (1) year after the applicant's most recent application. An applicant for reinstatement for good cause under this paragraph (d)(2) may, in the Finance Board's sole discretion, be afforded a hearing. However, if all the grounds for suspension or disbarment under paragraph (b)(1) of this section have been removed by a reversal of the order of suspension or disbarment or by termination of the underlying suspension or disbarment, any person suspended or disbarred under paragraph (b)(1) of this section may apply immediately for reinstatement and shall be reinstated upon written application notifying the Finance Board that the grounds have been removed.
(e)
(2) Resignation or voluntary suspension. In order to avoid the institution of or a decision in a disbarment or suspension proceeding, a person who practices before the Finance Board may consent to censure, suspension or disbarment from practice. At the discretion of the Finance Board, the individual may be censured, suspended or disbarred in accordance with the consent offered.
(f)
By the Federal Housing Finance Board.
Federal Trade Commission.
Final rule.
The Commission has completed its review of the Guides for the Rebuilt, Reconditioned and Other Used Automobile Parts Industry (“Used Auto Parts Guides” or “Guides”) and has determined to retain the Guides with updated language and minor revisions.
March 5, 2002.
Requests for copies of this document should be sent to the
David Plottner, Investigator, Federal Trade Commission, 1111 Superior Avenue, Suite 200, Cleveland, Ohio 44114, telephone number (216) 263-3409, e-mail
The Used Auto Parts Guides address claims for automotive parts and assemblies that have been used or contain used parts. These parts or assemblies may have been rebuilt, repaired, reconditioned, etc., since they were last used, and may have been repainted and repackaged in such a way that they could easily be confused with new products. Even used parts that have not been rebuilt are usually cleaned and sometimes repainted before being marketed. The Guides suggest that junk yards, rebuilders, auto parts stores, service garages and others in the distribution chain for these parts or assemblies not mislead purchasers about the prior use and/or the reconstructed nature of the parts and the identity of the rebuilder.
Rebuilt auto parts account for a significant portion of the total automobile replacement parts market. One large retailer/distributor commenting on the Guides reported that such parts account for 20% of its retail sales dollars. Some replacement components, alternators and power steering pumps, for example, are nearly always rebuilt because of the significant cost savings over new parts.
The Guides provide advice regarding the manner in which those who sell used automobile parts can avoid unfair or deceptive acts or practices that may violate section 5 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. 45. The Guides define industry products broadly to include not only used parts for automobiles, but also used parts and assemblies containing used parts for trucks, tractors, motorcycles and other similar self-propelled vehicles. Industry members are those who sell or distribute any of these parts. The Used Auto Parts Guides advise that industry members not:
(1) Deceive purchasers about the previous use of products;
(2) deceive purchasers about the identity of the rebuilder, remanufacturer, reconditioner or reliner;
(3) misrepresent the condition of products and misuse the terms “rebuilt,” “factory rebuilt,” “remanufactured,” or other similar terms.
As part of its program to review current rules and guides, the Commission published in the
The comments in favor of retaining the Guides stated that the Guides provide clear guidance to industry members to assist them in determining what disclosures they should make to consumers about used, rebuilt and reconditioned automobile parts and assemblies, and how to make them in a consistent manner. Those who rebuild industry products especially supported retaining the Guides' clear definitions for the terms “rebuilt” and “remanufactured.” The state Attorneys General supported retaining the Guides because they clearly advise industry of the disclosures necessary to prevent or reduce the incidence of fraudulent activity such as charging unknowing consumers for new parts when the parts are used or rebuilt, and to enable consumers to make informed, cost efficient decisions. The one commenter supporting rescinding the Guides, AutoZone, stated that the Guides are duplicative of state law—statutory, regulatory and common—and are no longer needed, especially in light of the written warranties that now often accompany rebuilt parts, assuring their quality.
The Commission has determined to retain the Guides for the following reasons. First, the Guides are based on well-established legal and policy grounds. Many prior Commission cases hold that used articles restored to the appearance of new require an affirmative disclosure of prior use. A 1969 Commission Enforcement Policy Statement (34 FR 176) reiterates this principle.
In recent actions, the Commission has continued to protect consumers from sellers passing off used goods as new. For example, the Commission recently announced two consent orders against mattress retailers who claimed that their new-looking used mattresses were all new, but for the springs, when in fact, they were entirely used mattresses but for their new outer covers.
Second, various states also prohibit misrepresenting used merchandise as new, either by specific statute or by common law, and some rely on the Commission's Guides to complement their laws and enhance their enforcement efforts.
Third, there are no private, industry-wide standards covering the use of terms such as “rebuilt” or “remanufactured” in the sale of used automobile parts generally. This
It can be argued that if the Commission were to repeal these Guides, section 5, FTC Act would still protect the public from the deceptive practice of passing off used goods as new.
A number of commenters suggested changes to the Guides, which are discussed below. The Commission has determined to update the list of commonly rebuilt used automobile parts contained in section 20.0 of the Guides and to clarify that the Guides apply to advertising in electronic format, such as on the Internet. In addition, the Commission has updated and streamlined certain language in the Guides to conform to current FTC practices.
CarQuest and the state Attorneys General
The descriptive terms used in the Guides are fluid to accommodate the wide range of rebuilding that takes place. All commenters agree that the standard contained in the Guides seems to have worked well. In addition, the Commission has no substantive basis in the record of this review proceeding to define the terms differently or more precisely.The Commission, therefore, has determined not to revise the Guides to adopt more specific standards or procedures than those currently contained in the Guides. The Commission, on the other hand, welcomes industry-sponsored measures to provide more information to consumers through voluntary standards specifying more precise terms, or defining meanings for the various terms, so long as those standards would not mislead consumers about the extent of prior use or the amount of reconstructing that has been done.
Several commenters suggested that the Commission revise the Guides and take other actions to make clear that foreign rebuilders and importers of used auto parts, rebuilt and otherwise, are covered by the Guides.
The Commission has determined that it is not necessary to revise the Guides to address these concerns. First, the Commission has jurisdiction over entities conducting business in the United States regardless of the country of origin of the original new product or of the reconstructed or otherwise used product. The Guides, therefore, currently cover foreign rebuilders and importers of used auto parts who distribute or sell used auto parts in the United States. Second, the Commission's staff can ensure that the U.S. Customs Service is aware of the Guides; no revision to the Guides is required to do so. Finally, the Commission does not ordinarily require country of origin disclosures; it only prohibits false “made in U.S.A.” claims. Ordinarily the Commission will not consider a marketer's use of an American brand name or trademark, or the listing of a company's U.S. address in a nonprominent manner, without more, to constitute a U.S. origin claim.
Two commenters
The Commission has determined not to revise the Guides to require the cooperation suggested by the comments. The Auto Parts Guides concern the disclosures regarding prior use or reconstruction of used automobile parts that are necessary to avoid misleading consumers. These other issues, while relevant to the marketplace for used automobile parts in general, have little to do with the disclosures suggested by the Guides.
Three comments
No modification of the Guides in this regard is necessary. The Guides already apply to all who sell or distribute industry products. Mechanics and service garages nearly always both sell and install the parts needed to repair a consumer's automobile and are therefore included under the Guides.
Several commenters suggested that the list of commonly rebuilt automobile parts included in section 20.0 of the Guides should be updated to reflect modern practices. The Commission agrees and has revised the Guides accordingly.
Three commenters suggested that the Commission should revise the Guides to make it clear that the term “Recycled,” by itself, is not adequate to disclose the used nature of used automobile parts which have received little or no reconstruction.
The Commission has already responded to this issue in its Environmental Marketing Guides, 16 CFR part 260. Section 260.7(e) states that the word “recycled,” used by itself, cannot substitute for the words “used,” “rebuilt,” “reconditioned,” and other similar descriptors except when the environment in which the product is being offered for sale makes the used nature of the product clear, for example, a used part offered for sale at a junkyard. Therefore, a cross reference to the Environmental Marketing Guides has been added as a footnote to section 20.1(b) of the Used Auto Parts Guides.
Advertising, Motor vehicles, Trade practices.
15 U.S.C. 41-58.
The Guides in this part apply to the manufacture, sale, distribution, marketing and advertising (including advertising in electronic format, such as on the Internet) of used parts and assemblies containing used parts designed for use in automobiles, trucks, motorcycles, tractors, or similar self-propelled vehicles whether or not such parts or assemblies have been reconstructed in any way (hereinafter “industry products”). Such automotive parts and assemblies include, but are not limited to, anti-lock brake systems, air conditioners, alternators, armatures, air brakes, brake cylinders, ball bearings, brake shoes, heavy duty vacuum brakes, calipers, carburetors, cruise controls, cylinder heads, clutches, crankshafts, constant velocity joints, differentials, drive shafts, distributors, electronic control modules, engines, fan clutches, fuel injectors, fuel pumps, front wheel drive axles, generators, master cylinders, oil pumps, power brake units, power steering gears, power steering pumps, power window motors, rack and pinion steering units, rotors, starter drives, speedometers, solenoids, smog pumps, starters, stators, throttle body injectors, torque convertors, transmissions, turbo chargers, voltage regulators, windshield wiper motors, and water pumps. Tires are not included. (Tires are covered by the Tire Advertising and Labeling Guides, 16 CFR Part 228.)
(a) It is unfair or deceptive to represent, directly or by implication, that any industry product or part of an industry product is new or unused when such is not the fact, or to misrepresent the current condition, or extent of previous use, reconstruction or repair of any industry product.
(b) It is unfair or deceptive to offer for sale or sell any industry product unless a clear and conspicuous disclosure that such product has been used or contains used parts is made in advertising, sales promotional literature and invoices and on product packaging. Additionally, it is unfair or deceptive to offer for sale or to sell any rebuilt, remanufactured, reconditioned, or otherwise new-appearing industry product unless such disclosure using appropriate descriptive terms is made on the product itself with sufficient permanency to remain visible for a reasonable period of time after installation. Examples of appropriate descriptive terms include, but are not limited to “Used,” “Secondhand,” “Repaired,” “Remanufactured,” “Reconditioned,” “Rebuilt,” or “Relined.”
(c) It is unfair or deceptive to place any means or instrumentality in the hands of others so that they may mislead consumers as to the previous use of industry products or parts.
(a) It is unfair or deceptive to misrepresent the identity of the rebuilder, remanufacturer, reconditioner or reliner of an industry product.
(b) In connection with the sale or offering for sale of an industry product, if the identity of the original manufacturer of the product, or the identity of the manufacturer for which the product was originally made, is revealed and the product was rebuilt, remanufactured, reconditioned or relined by someone else, it is unfair or deceptive to fail to disclose such fact wherever the original manufacturer is identified in advertising and sales promotional literature concerning the product, on the container in which the product is packed, and on the product, in close conjunction with, and of the same permanency and conspicuousness as, the disclosure of previous use of the product described by this section. Examples of such disclosures include:
(1) Disclosure of the identity of the rebuilder:
(2) Disclosure that the product was rebuilt by an independent rebuilder:
(3) Disclosure that the product was rebuilt by someone other than the manufacturer so identified:
(4) Disclosure that the product was rebuilt for the identified manufacturer, if such is the case:
(a) It is unfair or deceptive to use the words “Rebuilt,” “Remanufactured,” or words of similar import, to describe an industry product which, since it was last subjected to any use, has not been dismantled and reconstructed as necessary, all of its internal and external parts cleaned and made rust and corrosion free, all impaired, defective or substantially worn parts restored to a sound condition or replaced with new, rebuilt (in accord with the provisions of this paragraph) or unimpaired used parts, all missing parts replaced with new, rebuilt or unimpaired used parts, and such rewinding or machining and other operations performed as are necessary to put the industry product in sound working condition.
(b) It is unfair or deceptive to represent an industry product as “Factory Rebuilt” unless the product was rebuilt as described in paragraph (a) of this section at a factory generally engaged in the rebuilding of such products. (See also § 20.2.)
Federal Trade Commission.
Final rule; rescission of the guides for the household furniture industry.
The Commission published a
March 5, 2002.
Requests for copies of the
Ingrid E. Whittaker-Ware, Attorney, Federal Trade Commission, 225 Peachtree Street, NE., Suite 1500, Atlanta, GA 30303, (404) 656-1390, e-mail <
The Furniture Guides, promulgated by the Commission in 1973, provide guidance for industry members in the manufacture, sale, distribution, labeling and advertising of household furniture products. The Guides generally advise members of the furniture industry to make affirmative disclosures of product facts, which if known by a purchaser, might influence the purchasing decision. The specific disclosures concern identification of the types of wood and outer coverings or stuffings used in furniture. These disclosures were designed to protect consumers from being misled that the product is different from that which is actually being offered.
The Guides advise affirmative disclosure of the composition of a furniture item and specifies where and how the disclosure should be made. For example, Section 250.1(b) advises that a tag or label affirmatively describing the product be permanently affixed to the product until consummation of sale to a consumer, and that the same information be included in advertising for the product. The Guides also provide examples of deceptive and non-deceptive descriptions of wood and wood imitations to ensure that prospective purchasers are not misled by a product's appearance. In addition, the Guides provide that wood names or trade names not be used to describe materials that simulate the appearance of wood without clearly disclosing that such names are merely descriptive of color or other simulated finish.
The Commission has determined, as part of its oversight responsibilities, to review rules and industry guides periodically. These reviews seek information about the costs and benefits of the Commission's rules and guides, and their regulatory and economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission. The Commission solicited comments on the Furniture Guides in the
The Commission received one comment. This comment was submitted by the American Furniture Manufacturers Association (“AFMA”). The AFMA expressed concern that the Guides, as currently written, have little practical use to members of the furniture industry due to significant changes in technology and terminology since the Guides were first promulgated. It noted that
[T]he existing Guides are almost thirty years old, and fail to reflect current manufacturing processes, materials usage, terminology and the expectations of today's consumers. As currently drafted, the Guides may indeed frustrate good faith efforts to inform the consumer and therefore produce unintended anti-competitive and anti-consumer consequences.
The AFMA also suggests that it was the consensus of members of the industry that if the Guides were to be retained it would be necessary that they undergo significant modifications. The Commission received no comments from any consumer group.
In the almost thirty years since the Guides were issued, the Commission has not received any complaints relating to practices covered by these Guides. Further, within the last ten years the Commission has not had need to initiate any enforcement action relating in any way to these Guides. Moreover, the Commission's unfettered ability to pursue actions against members of this industry for engaging in unfair and deceptive acts and practices under section 5 of the FTC Act, 15 U.S.C. 45, should deter manufacturers and sellers from misleading consumers in the future in the labeling, advertising or sale of household furniture products. If, in the future, deceptive practices prove to be a problem in this industry, however, the Commission may pursue enforcement actions as needed on a case-by-case basis.
For the reasons explained in this notice, the Commission has determined not to revise the Furniture Guides substantially in order to bring them up to date, but instead to rescind the Guides because they are no longer necessary.
Forest and forest products, Furniture industry, Trade practices.
Federal Trade Commission.
Final rule.
The Commission has completed its review of the Guide Concerning Fuel Economy Advertising for New Automobiles (“Fuel Guide”), and announces its decision to retain the Guide.
March 5, 2002.
Requests for copies of this document should be sent to the Consumer Response Center, Room 130, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580. The document is available on the Internet at the Commission's website,
Willie L. Greene, Investigator, Federal Trade Commission, East Central Region, 1111 Superior Avenue—Suite 200, Cleveland, Ohio 44114, telephone number (216) 236-3406, e-mail <
As part of the Commission's review of its rules and guides, the Commission published a
The Commission received three comments in response to the
After review of the Fuel Guide and its effect on the new vehicle industry and purchasers of new vehicles, the Commission concludes that the Fuel Guide is useful to both consumers and the new vehicle industry. The Guide affords clarity in the advertising of fuel economy and therefore should be retained. Price escalation in gasoline and diesel fuels has caused considerable interest and concern in the fuel industry and among consumers. The Commission believes that consumers will continue to benefit from accurate information in the advertising of fuel economy for new vehicles.
The Fuel Guide has been a benefit to consumers, providing fuel economy numbers in advertising that allow meaningful comparisons of different vehicle models. While the benefit to consumers has been great, the cost to vehicle manufacturers of complying with the Guide's provisions has been minimal.
Based on its review, the Commission has concluded that there is a continuing need for the Fuel Guide, which has benefitted both consumers and the new vehicle industry. The Commission therefore has decided to retain the Fuel Guide.
Advertising, Fuel economy, Trade practices.
Tennessee Valley Authority.
Final rule.
The Tennessee Valley Authority is amending its rules regarding restrictions on lobbying to make inflation adjustments in the range of civil monetary penalties it may assess against persons who violate these rules. These adjustments are required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
March 5, 2002.
Clifford L. Beach, Jr., Attorney, 865-632-4146, Office of the General Counsel, Tennessee Valley Authority, 400 West Summit Hill Drive, ET 10A, Knoxville, Tennessee 37902-1401.
Section 4 of the “Federal Civil Penalties Inflation Adjustment Act of 1990” (Public Law 101-410), as amended by the “Debt Collection Improvement Act of 1996” (Public Law 104-134), requires each Federal agency with statutory authority to assess a civil monetary penalty (CMP) to adjust each CMP by the inflation adjustment described in section 5 of the Act. Such adjustment is to be made by regulation published in the
TVA's only statutory authority to assess a CMP is found at 31 U.S.C. 1352(c), which describes the range of penalties TVA may impose for a violation of that statute's prohibition against use of appropriated funds to pay any person for influencing or attempting to influence a Federal official in connection with any Federal action and for a failure to file a declaration or a declaration amendment as required by that statute. The penalties to be imposed
Notice and an opportunity for public comment are not necessary prior to issuance of this final rule because it implements a definitive statutory formula mandated by the Act.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this rule does not contain any information collection requirements that require the approval of the Office of Management and Budget.
Administrative practice and procedures, Penalties.
16 U.S.C. 831-831ee; 31 U.S.C. 1352.
Federal Communications Commission.
Final rule; correction.
The Federal Communications Commission published in the
Effective March 25, 2002.
Nancy Joyner, Mass Media Bureau, (202) 418-2180.
On February 22, 2002, the Commission published a document (67 FR 8205) amending § 73.202(b), the Table of FM Allotments by adding Channel 240A to Arriba, Colorado, Channel 296C to Bennett, Colorado, Channel 295C2 to Pueblo, Colorado, and Channel 238C3 to Pine Bluffs, Wyoming. In addition, the document removed Channel 296C1 from Brush, Colorado
Federal Communications Commission.
Final rule.
This document allots Channel 239C2 to Rule, Texas, as that community's first local aural transmission service, in response to a petition for rule making filed by Katherine Pyeatt. See 66 FR 42621, August 14, 2001. The allotment of Channel 239C2 at Rule, Texas, requires a site restriction 12.7 kilometers (7.9 miles) east of the community, utilizing coordinates 33-13-01 NL and 99-45-45 WL.
Effective April 8, 2002. A filing window for Channel 239C2 at Rule, Texas, will not be opened at this time. Instead, the issue of opening the allotment for auction will be addressed by the Commission in a subsequent Order.
Nancy Joyner, Mass Media Bureau, (202) 418-2180. Questions related to the application filing process for Channel 239C2 at Rule, Texas, should be addressed to the Audio Services Division, (202) 418-2700.
This is a synopsis of the Commission's Report and Order, MM Docket No. 01-183, adopted February 6, 2002, and released February 22, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualtex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893.
Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
Research and Special Programs Administration (RSPA), DOT.
Final rule.
In this final rule, RSPA is amending the Hazardous Materials Regulations (HMR) by revising the “List of Hazardous Substances and Reportable Quantities” that appears in the table, “Hazardous Substances other than Radionuclides”. This action is required by the Superfund Amendments and Reauthorization Act (SARA) of 1986, which amended the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). These laws require RSPA to regulate all hazardous substances designated by the Environmental Protection Agency (EPA). This final rule will enable shippers and carriers to identify the affected CERCLA hazardous substances, comply with all applicable HMR requirements, and make the required notifications if a discharge of a hazardous substance occurs.
This amendment is effective on October 1, 2002. However, immediate compliance with the regulations as amended in this final rule is authorized.
Michael Johnsen (202) 366-8553, Office of Hazardous Materials Standards, RSPA, 400 7th Street, SW, Washington, DC 20590. Questions about hazardous substance designations or reportable quantities should be directed to the Environmental Protection Agency (EPA) at the RCRA/Superfund hotline at (800) 424-9346 or, in Washington, DC, (202) 382-3000.
Section 202 of SARA (Public Law 99-499) amended Section 306(a) of CERCLA (Public Law 96-510), 42 U.S.C. 9656(a), by requiring the Secretary of Transportation to list and regulate hazardous substances, listed or designated under Section 101(14) of CERCLA, 42 U.S.C. 9601(14), as hazardous materials under the Federal hazardous materials transportation law (49 U.S.C. 5101-5127). The Research and Special Programs Administration (RSPA, we) carries out the rulemaking responsibilities of the Secretary of Transportation under the Federal hazardous materials transportation law, 49 CFR 1.53(b). This final rule is necessary to comply with 42 U.S.C. 9656(a), as amended by Section 202 of SARA.
In carrying out that statutory mandate, we have no discretion to determine what is or is not a hazardous substance or the appropriate reportable quantity (RQ) for materials designated as hazardous substances. This authority is vested in EPA. RSPA did not issue a notice of proposed rulemaking prior to issuing this final rule. RSPA lacks discretion concerning the regulation of hazardous substances under the HMR, therefore, under the Administrative Procedure Act notice would serve no purpose and thus is unnecessary.
Therefore, under the CERCLA scheme, EPA must issue final rules amending the list of CERCLA hazardous substances, including adjusting RQs, before RSPA can amend its list of hazardous substances. In the preamble to a final rule on this subject issued under Docket HM-145F (51 FR 42174; November 21, 1986), RSPA included the following statement:
This final rule adjusts the “List of Hazardous Substances and Reportable Quantities” that appears in Table 1 of Appendix A to § 172.101, based on the following EPA final rules that added or removed entries to the EPA table—List of Hazardous Substances and Reportable Quantities under CERCLA in 40 CFR 302.4:
(1) March 17, 2000, rule (65 FR 14472) removed two listings (2,4,6-Tribromophenol and K140);
(2) November 8, 2000, rule (65 FR 67068) added two waste codes generated from the chlorinated aliphatics industry (K174 and K175); and
(3) November 20, 2001, rule (66 FR 57258) added three waste codes from petroleum refining (K176, K177 and K178).
In addition, this final rule corrects several errors to the “List of Hazardous Substances and Reportable Quantities” that appears in Table 1 of Appendix A to § 172.101:
(1) The group of waste codes (K156, K157, K158, K169, K170, K171, and K172) that appear in the table under “2,4,6-Tribromophenol” is moved to the end of the list with the other K waste codes; and
(2) The RQs for “Chloromethyl methyl ether”, “Dichloromethyl ether”, “Methane, chloromethoxy-” and “Methane, oxybis(chloro-” from 1 pound to 10 pounds.
This final rule will enable shippers and carriers to identify CERCLA hazardous substances, comply with all applicable HMR and EPA requirements, and make required notifications if a discharge of a hazardous substance occurs. In addition to the reporting requirements of the HMR found in §§ 171.15 and 171.16, a discharge of a hazardous substance is subject to EPA reporting requirements under 40 CFR 302.6 and may be subject to the reporting requirements of the U.S. Coast Guard under 33 CFR 153.203.
This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. The rule is not considered significant under 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 contained in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements but does not adopt any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous material transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:
(1) The designation, description, and classification of hazardous materials;
(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents related to
(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or
(5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.
This final rule addresses covered subject items (1), (2), and (3) above and would preempt State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This rule is required by law. Federal hazardous materials transportation law provides at Sec. 5125(b)(2) that if RSPA issues a regulation concerning any of the covered subjects, RSPA must determine and publish in the
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian tribal governments, does not impose substantial direct compliance costs, and is required by law, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. The Regulatory Flexibility Act applies only to final rules that are preceded by notices of proposed rulemaking. Because this rule was not preceded by an NPRM, no assessment is required. EPA addressed the Regulatory Flexibility Act when it made the hazardous substances designations and changes reflected in this rule.
This final rule does not impose any new information collection burdens.
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 contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This final rule imposes no mandates and, thus, does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995.
The revisions in this final rule to the list of hazardous substances regulated under the HMR are based on EPA rulemakings that modified the EPA list of hazardous substances and reportable quantities required by CERCLA. Readers should consult the EPA rulemaking dockets for detailed information on the expected environmental impacts of these changes.
Education, Hazardous materials transportation, Hazardous waste, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements.
49 U.S.C. 5101-5127; 49 CFR 1.53.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Announcement of fishing season dates.
NMFS announces the opening directed fishing for sablefish with fixed gear managed under the Individual Fishing Quota (IFQ) program. The season will open 1200 hrs, Alaska local time (A.l.t.), March 18, 2002, and will close 1200 hrs, A.l.t., November 18, 2002. This period is the same as the 2002 IFQ and Community Development Quota season for Pacific halibut adopted by the International Pacific Halibut Commission (IPHC). The IFQ halibut season is specified by a separate publication in the
Effective 1200 hrs, A.l.t., March 18, 2002, until 1200 hrs, A.l.t., November 18, 2002.
Jay Ginter, 907-586-7228.
Beginning in 1995, fishing for Pacific halibut (
This announcement is consistent with § 679.23(g)(1), which requires that the directed fishing season for sablefish managed under the IFQ program be specified by the Administrator, Alaska Region, and announced by publication in the
The Assistant Administrator for Fisheries, NOAA, finds that coordinating the opening of the IFQ sablefish fishery with the IFQ halibut fishery will allow full use of the sablefish allocated to the fixed gear managed under the IFQ program. Halibut and sablefish are fished primarily by the same people using the same gear. This action responds to the best available information recently obtained from the IPHC. Pursuant to the Northern Pacific Halibut Treaty, the opening and closing dates of the halibut season were determined by the IPHC during the week of January 24, 2002. Failure to coordinate the two seasons by having a halibut fishery without a concurrent sablefish season could result in unacceptable levels of sablefish bycatch. Accordingly, the need to implement this action prior to the IFQ halibut season opening constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement this action prior to the IFQ halibut season opening constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.
This action is required by 50 CFR 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 773
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels the public hearing on proposed regulations that define the term statutory merger or consolidation as that term is used in section 368(a)(1)(A).
The public hearing originally scheduled for Wednesday, March 13, 2002, at 10 a.m., is cancelled.
LaNita Van Dyke of the Regulations Unit, Associate Chief Counsel (Income Tax and Accounting), (202) 622-7190 (not a toll-free number).
A notice of proposed rulemaking and notice of public hearing that appeared in the
The notice of proposed rulemaking and notice of public hearing, instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Tuesday, February 26, 2002, no one has requested to speak. Therefore, the public hearing scheduled for Wednesday, March 13, 2002, is cancelled.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations relating to civil causes of action for damages caused by unlawful collection actions of officers and employees of the IRS and the awarding of costs and certain fees. The proposed regulations reflect amendments made by the Taxpayer Bill of Rights 2 and the Internal Revenue Service Restructuring and Reform Act of 1998. The proposed regulations affect all persons who suffer damages caused by unlawful collection actions of officers or employees of the IRS.
Written comments and requests for a public hearing must be received by June 3, 2002.
Send submissions to: CC:ITA:RU (Reg-107366-00), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. In the alternative, submissions may be hand delivered to: CC:ITA:RU (Reg-107366-00), room 5226, Internal Revenue Service, 1111 Constitution Avenue NW., Washington DC. Alternatively, taxpayers may submit comments electronically via the Internet by selecting the “Tax Regs” option on the IRS Home Page, or by submitting comments directly to the IRS Internet site at
Concerning the regulations, Kevin B. Connelly, (202) 622-3630 (not a toll-free number).
This document contains proposed amendments to the Procedure and Administration Regulations (26 CFR part 301) relating to civil actions for damages caused by unlawful collection actions of officers or employees of the IRS. The Taxpayer Bill of Rights 2 (TBOR2), Public Law 104-168 (110 Stat. 1465), amended section 7433 of the Internal Revenue Code of 1986 (Code) by increasing the maximum amount of damages a taxpayer may be awarded for unlawful collection actions from $100,000 to $1,000,000. TBOR2 also eliminated the jurisdictional requirement that administrative remedies be exhausted before a court may award damages; TBOR2 authorized the court, however, to reduce damages if it determined that the plaintiff did not exhaust administrative remedies. These TBOR2 provisions were effective for actions of IRS officers or employees after July 30, 1996. The Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Public Law 105-206 (112 Stat. 685), although retaining the pre-existing authorization for an award of damages in the case of reckless or intentional disregard of the Code or regulations, amended section 7433 by providing that taxpayers may file actions for damages caused by the negligent disregard of the Code or regulations. In addition, this amendment provided that an action for damages could be brought for the IRS's willful violation of section 362 (relating to the automatic stay) or section 524 (relating to the effect of discharge) of the Bankruptcy Code. The maximum amount of damages that may be awarded for negligent disregard is $100,000. The maximum amount of damages that may be awarded for reckless or intentional disregard or for willful violations of section 362 or 524 of the Bankruptcy Code is $1,000,000. RRA 1998 also reinstated the requirement under section 7433 that the plaintiff must exhaust administrative remedies before a court may award damages. These RRA 1998 provisions are effective for actions of IRS officers or employees after July 22, 1998.
RRA 1998 also added new subsection (h) to section 7426, which authorizes persons who bring wrongful levy actions under section 7426 to sue for
RRA 1998 added a new subsection (h) to section 7426. Subsection (h) authorizes persons to sue the United States in federal district court for damages due to a wrongful levy caused by the reckless or intentional, or negligent, disregard of a provision of the Code. Plaintiffs are entitled to recover the lesser of actual direct economic damages and costs of the action or $1,000,000 ($100,000 in the case of negligence). The amendment also provided that the rules of section 7433(d) relating to exhaustion of administrative remedies, mitigation of damages and the period for bringing an action shall apply. The proposed regulations thus adopt rules like those promulgated under section 7433 that plaintiffs must mitigate damages and no damages may be awarded unless the court determines that the plaintiff has exhausted administrative remedies available within the IRS, e.g., by filing an administrative claim for damages. The proposed regulations also provide that any action for damages under this section must be brought within 2 years after the date the action accrues. This two-year limitations period is independent of the nine-month period after the wrongful levy during which the IRS may return, or the third party may make a claim for, wrongfully levied property.
Section 7430 provides that reasonable administrative costs may be awarded to the prevailing party in an administrative proceeding brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under Title 26. Because, prior to the amendments in RRA 1998, taxpayers generally were not entitled to recover costs for administrative proceedings in connection with collection matters, the current regulations exclude such collection matters, including proceedings under sections 7432 and 7433, from the definition of
The proposed regulations provide that the prevailing party is a party who establishes that, in connection with the collection of his or her federal tax, the IRS has willfully violated a provision of section 362 or 524 of the Bankruptcy Code. The only administrative costs that may be awarded are those incurred after the date of the bankruptcy petition that gave rise to the section 362 stay or section 524 discharge injunction.
A claim with the IRS for administrative costs must be filed within 90 days after the date the IRS mails its decision on the taxpayer's administrative claim for damages under § 301.7433-2(e) or claim for relief from a violation of section 362 or 524 of the Bankruptcy Code.
Section 3102 of RRA 1998 amended section 7433(a) of the Code by providing that a taxpayer may sue the United States in a district court of the United States for damages caused by the negligent disregard of the Code or regulations in connection with the collection of the taxpayer's tax liability. Section 801 of TBOR2 amended section 7433(b) by increasing the maximum amount of damages that a taxpayer may recover for damages caused by the reckless or intentional disregard of the Code or regulations from $100,000 to $1,000,000. Section 3102 of RRA 1998 caps the amount of damages that a taxpayer may recover for negligent disregard at $100,000. The proposed regulations under § 301.7433-1 reflect these changes.
RRA 1998 also amended section 7433 by adding a new subsection (e). Subsection (e) gives taxpayers the right to petition the bankruptcy court to recover damages if, in connection with the collection of a federal tax, any officer or employee of the IRS willfully violates section 362 or 524 of the Bankruptcy Code or any regulation promulgated thereunder. Damages in connection with a claim under section 7433(e) are recoverable under section 7433(b) and are subject to the limitations imposed by section 7433(d).
Section 362 relates to the automatic stay, which arises by operation of law when a debtor files a bankruptcy petition. The stay prohibits certain collection actions against the debtor, the debtor's property, and the property of the bankruptcy estate. Prior to enactment of section 7433(e), individuals injured by the IRS's willful violation of the automatic stay could only sue to recover actual damages, including costs and attorneys' fees, under Bankruptcy Code section 362(h). Section 7433(e) provides an alternative cause of action to recover damages, but still permits an individual to recover damages under section 362(h) of the Bankruptcy Code, in lieu of an action under section 7433(e). However, section 7433(e) explicitly provides that administrative and litigation costs incurred in pressing a claim under section 362(h) of the Bankruptcy Code may only be paid pursuant to, and subject to the conditions described in, section 7430 of the Code. Section 7430 authorizes the payment of administrative and litigation costs only if a taxpayer exhausts administrative remedies. The proposed regulations provide that in order to qualify for an award of administrative and litigation costs in an action under section 362(h) of the Bankruptcy Code, a taxpayer must (as in the case of damages actions under section 7433(e)) file an administrative claim with the IRS relating to the violation of the automatic stay.
Section 524 sets forth the effect of a discharge under the Bankruptcy Code. A discharge operates as an injunction against the commencement or continuation of any action to collect a discharged debt as a personal liability of the debtor. Prior to enactment of section 7433(e), a debtor who believed the IRS had willfully violated the discharge injunction could request the Bankruptcy Court under Bankruptcy Code section 105 to hold the IRS in contempt and seek to recover damages under that Bankruptcy Code provision. Section 7433(e) now provides the exclusive remedy for the IRS's willful violation of the discharge injunction.
The proposed regulations set forth procedures relating to these claim and damage allowance provisions. Damages recoverable under section 7433(e) for a violation of the automatic stay or the discharge injunction are limited to (1) the actual, direct economic damages sustained by the taxpayer (and the taxpayer has a duty to mitigate those damages), plus (2) costs of the action. The maximum damage award is $1,000,000. No petition for damages
Similar to rules previously adopted with respect to other wrongful collection actions, the proposed regulations define direct, economic damages as actual, pecuniary damages sustained by the taxpayer as a result of the willful violation of section 362 or 524 of the Bankruptcy Code. Injuries such as inconvenience, loss of reputation, and emotional distress, are not compensable except to the extent they result in actual pecuniary loss.
The proposed regulations define costs of the action that are recoverable as damages under section 7433(e) as: (1) Fees of the clerk and marshal; (2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of paper necessarily obtained for use in the case; (5) docket fees; and (6) compensation of court appointed experts and interpreters. Costs of the action do not include any costs other than those enumerated in this paragraph.
Reasonable administrative and litigation costs, including attorneys fees, are not recoverable as direct economic damages. These costs are recoverable, if at all, under section 7430. The taxpayer generally will be entitled to reasonable litigation costs under section 7430 if the taxpayer (1) files an administrative claim with the IRS, (2) establishes that the IRS willfully violated either the automatic stay under Bankruptcy Code Section 362 or the discharge injunction under section 524, (3) substantially prevails with respect to the amount of damages in controversy, and (4) meets the requirements of sections 7430(c)(4)(A)(ii) regarding net worth.
A petition for damages under section 7433 may not be filed in a bankruptcy court unless the taxpayer first files an administrative claim for damages with the IRS. The claim must be made in writing to the Chief, Local Insolvency Unit for the judicial district in which the bankruptcy was filed. The claim must include: (1) The claimant taxpayer's name, taxpayer identification number, current address, current home and work telephone numbers and any convenient times to be contacted; (2) the court and case number of the bankruptcy case in which the violation occurred; (3) a description, in reasonable detail, of the violation (with copies of any available substantiating documentation or correspondence with the IRS); (4) a description of the injuries incurred by the taxpayer filing the claim (with copies of any available substantiating documentation or evidence); (5) the dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (along with any available substantiating documentation or evidence); and (6) the signature of the taxpayer or any duly authorized representative.
The proposed regulations provide that, after an administrative claim for damages has been filed, a petition for damages under section 7433 may not be filed in a bankruptcy court until the earlier of (1) the time a decision is rendered on the claim or (2) six months from the date the administrative claim is filed. Because a taxpayer must petition the bankruptcy court for damages within two years after the cause of action accrues, the proposed regulations contain an exception for claims filed in the last six months before the two-year limitation period expires. In those circumstances, taxpayers may file petitions for damages at any time after they file their administrative claims and before the period of limitations expires. A cause of action accrues under this section when the taxpayer has had a reasonable opportunity to discover all essential elements of a possible cause of action.
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments that are submitted timely (preferably a signed original and eight (8) copies) to the IRS. Alternatively, taxpayers may submit comments electronically to the IRS Internet at
The principal author of these regulations is Kevin B. Connelly, Office of Associate Chief Counsel (Procedure and Administration), Collection, Bankruptcy & Summons Division, CC:PA:CBS, IRS. However, other personnel from the IRS and the Treasury Department participated in their development.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(a)
(1) Actual, direct economic damages as defined in § 301.7433-1(b) sustained as a proximate result of the reckless, intentional, or negligent actions of the officer or employee, reduced by the amount of any damages awarded under § 301.7426-1(b); and
(2) Costs of the action as defined in § 301.7433-1(c).
(b)
(c)
(i) The date the decision is rendered on a claim filed in accordance with paragraph (d) of this section; or
(ii) The date that is six months after the date an administrative claim is filed in accordance with paragraph (d) of this section.
(2) If an administrative claim is filed in accordance with paragraph (d) of this section during the last six months of the period of limitations described in paragraph (f) of this section, the claimant may file an action in a district court of the United States any time after the administrative claim is filed and before the expiration of the period of limitations.
(d)
(2)
(i) The name, taxpayer identification number, current address and current home and work telephone numbers (indicating any convenient times to be contacted) of the person making the claim;
(ii) The grounds, in reasonable detail, for the claim (include copies of any available substantiating documentation or correspondence with the Internal Revenue Service);
(iii) A description of the damages incurred by the claimant filing the claim (include copies of any available substantiating documentation or evidence);
(iv) The dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (include copies of any available substantiating documentation or evidence); and
(v) The signature of the claimant or duly authorized representative.
(3)
(e)
(f)
(2)
(g)
(h)
(e)
(2)
1. Adding the language “except that requests with respect to administrative proceedings defined by § 301.7430-8(c) should be made to the Chief, Local Insolvency Unit” at the end of the first sentence.
2. Removing the language “District Director for the district” and adding “Internal Revenue Service office” in its place in the second sentence.
1. Revising paragraph (a)(4),
2. Paragraph (b) is amended by adding the language “except those collection actions described by section 7433(e)” at the end of the last sentence.
The revision reads as follows:
(a) * * *
(4) Proceedings in connection with collection actions (as defined in paragraph (b) of this section), including proceedings under section 7432 or 7433, except proceedings brought under section 7433(e) and § 301.7433-2 or proceedings otherwise described in § 301.7430-8(c). See § 301.7430-8.
* * * Sections 301.7430-2(c)(2), 7430-3(a)(4) and (b) are applicable with respect to actions taken by the Internal Revenue Service after July 22, 1998.
(a)
(b)
(1) The taxpayer satisfies the net worth and size limitations in paragraph (f) of § 301.7430-5;
(2) The taxpayer establishes that in connection with the collection of his or her federal tax an officer or employee of the Internal Revenue Service has willfully violated a provision of section 362 or 524 of the Bankruptcy Code; and
(3) The position of the Internal Revenue Service in the proceeding was not substantially justified.
(c)
(d)
(e)
(2) If the Internal Revenue Service denies the claim for administrative costs in whole or in part, the taxpayer must file a petition with the Bankruptcy Court for administrative costs no later than 90 days after the date on which the denial of the claim for administrative costs is mailed, or otherwise furnished, to the taxpayer. If the Internal Revenue Service does not respond on the merits to a request by the taxpayer for an award of reasonable administrative costs within 6 months after such request is filed, the Internal Revenue Service's failure to respond may be considered by the taxpayer as a denial of an award of reasonable administrative costs.
(3) For purposes of paragraphs (e)(1) and (2) of this section, if the 90th day falls on a Saturday, Sunday, or a legal holiday, the 90-day period shall end on the next succeeding day which is not a Saturday, Sunday, or a legal holiday. The term legal holiday means a legal holiday in the District of Columbia. If the request for costs is to be filed with the Internal Revenue Service at an office of the Internal Revenue Service located outside the District of Columbia but within an internal revenue district, the term legal holiday also means a statewide legal holiday in the state where such office is located.
(f)
1. In paragraph (a) introductory text, in the first sentence, the language “, or by reason of negligence,” is added after the language “recklessly or intentionally”. In addition, the language “$100,000” in the third sentence is removed and “$1,000,000 ($100,000 in the case of negligence)” is added in its place.
2. In paragraph (b)(1) the language “, or negligent,” is added after the language “reckless or intentional”.
3. In paragraph (e)(1), in the first sentence, the language “$100,000” is removed and “$1,000,000 ($100,000 in the case of negligence)” is added in its place. In addition, the language “district director (marked for the attention of the Chief, Special Procedures Function) of the district” is removed and “Chief, Local Insolvency Unit in the area” is added in its place.
4. In paragraph (h), in the penultimate sentence, the language “7432(a)” is removed and “7433(a)” is added in its place.
5. Revising paragraph (i).
The revision reads as follows:
(i)
(a)
(i) Actual, direct economic damages sustained as a proximate result of the willful actions of the officer or employee; and
(ii) Costs of the action.
(2) An action under this section constitutes the exclusive remedy under the Internal Revenue Code for violations of sections 362 and 524 of the Bankruptcy Code. In addition, taxpayers injured by violations of section 362 of the Bankruptcy Code may maintain actions under section 362(h) of the Bankruptcy Code (relating to an individual injured by a willful violation of the stay).
(b)
(2)
(c)
(d)
(1)
(i) The date the decision is rendered on a claim filed in accordance with paragraph (e) of this section; or
(ii) The date that is six months after the date an administrative claim is filed in accordance with paragraph (e) of this section.
(2)
(e)
(2)
(i) The name, taxpayer identification number, current address, and current home and work telephone numbers (with an identification of any convenient times to be contacted) of the taxpayer making the claim;
(ii) The location of the bankruptcy court in which the underlying bankruptcy case was filed and the case number of the case in which the violation occurred;
(iii) A description, in reasonable detail, of the violation (include copies of any available substantiating documentation or correspondence with the Internal Revenue Service);
(iv) A description of the injuries incurred by the taxpayer filing the claim (include copies of any available substantiating documentation or evidence);
(v) The dollar amount of the claim, including any damages that have not yet been incurred but which are reasonably foreseeable (include copies of any available documentation or evidence); and
(vi) The signature of the taxpayer or duly authorized representative.
(3)
(f)
(g)
(2)
(h)
(2)
(ii)
(i)
Occupational Safety and Health Administration (OSHA), Labor.
Extension of comment period.
On January 24, 2002, OSHA re-opened the rulemaking record (67 FR 3465) for 60 days to submit to the record the Agency's final draft risk assessment, peer review reports on the draft final risk assessment, and the National Academy of Sciences/Institute of Medicine (NAS/IOM) report “Tuberculosis in the Workplace” and to request comments on these documents. OSHA is extending the deadline for 60 days from March 25, 2002 until May 24, 2002, to allow interested parties additional time for submitting their comments to the record.
Comments and data must be postmarked no later than May 24, 2002. Comments submitted electronically or by FAX must be submitted by May 24, 2002.
Send two copies of your comments to: Docket Office, Docket H-371, Room N-2625, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210. Comments of 10 pages or fewer may be transmitted by FAX to: 202-693-1648, provided that the original and one copy of the comments are sent to the Docket Office immediately thereafter.
You may also submit comments electronically to
The entire record for the TB rulemaking, including the peer reviewers' reports, OSHA's draft final risk assessment and the NAS/IOM report, is available for inspection and copying in the Docket Office, Docket H-371, telephone 202-693-2350.
Amanda Edens, Directorate of Health Standards Programs, Occupational Safety and Health Administration, Room N-3718, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210, Telephone (202) 693-2270, FAX (202) 693-1678.
On October 17, 1997, OSHA published a proposed standard for Occupational Exposure to TB (62 FR 54160). In the proposal, the Agency made a preliminary determination based on a review of the available data that workers in hospitals, nursing homes, hospices, correctional facilities, homeless shelters, and certain other work settings are at significant risk of incurring TB infection while caring for their patients and clients or performing certain procedures potentially involving exposure to TB.
Many persons submitted comments addressing OSHA's preliminary quantitative risk assessment and suggested that OSHA should use more current data in developing its final quantitative risk assessment. In response to these concerns, OSHA reopened the rulemaking record for 30 days to solicit data and comments with respect to assessing the occupational risk of TB infection and disease (64 FR 34625, June 28, 1999). After reviewing all comments in the expanded record, the Agency revised its preliminary quantitative risk assessment to produce a draft final risk assessment. (Ex. 184) The Agency then chose to have this draft final risk assessment peer reviewed by two experts in the fields of TB epidemiology and risk assessment. The peer reviewers selected were Dr. Richard Menzies and Dr. Mark Nicas. Dr. Menzies, Professor and Director of the Respiratory Epidemiology Unit at McGill University in Montreal, Canada, is a physician experienced in the epidemiology, diagnosis, and treatment of TB and is a recognized research scientist, having published numerous scientific papers in the area of occupational exposure to and treatment of TB. Dr. Menzies is also an expert in the use of tuberculin skin testing as a diagnostic test for infection. Dr. Mark Nicas, Professor at the University of California Berkeley and a Certified Industrial Hygienist, is a recognized research scientist, having published numerous scientific papers in the area of occupational exposure to TB and the development of mathematical models for TB transmission. These two reviewers evaluated the overall methodology used by OSHA in the draft final risk assessment, the appropriateness of these studies for the exposure scenarios, the adequacy of the mathematical models, the values of the parameters used to estimate the TB case activation and death rates, the use and estimates of state background infection rates, and the uncertainties associated with the OSHA risk estimates. (Exs. 185 and 186)
In 1999, the U.S. Congress requested that the National Academy of Sciences undertake a short-term study of occupational TB (Pub. L. 106-113) including evaluation of the risks to health care workers due to occupational exposure to TB, the extent to which the TB guidelines of the Centers for Disease Control and Prevention are being implemented, and the potential effectiveness of an OSHA TB standard to protect workers from occupational exposure to TB. The report that was prepared by the IOM, the health policy arm of the Academy, was released on January 16, 2001. In view of the significance of this report, OSHA also placed this report in the record for comment. (Ex. 187)
On February 13, 2002, the Association for Professionals in Infection Control and Epidemiology (APIC), the American Health Care Association (AHCA), and the American Society for Microbiology (ASM), requested from the Secretary of Labor a 60 day extension of the deadline for submitting comments. The letter stated that the APIC, AHCA and ASM believed that the current deadline did not provide sufficient time for a thorough examination of the new risk assessment documents OSHA had added to the rulemaking record.
Risk assessment, as well as the other issues addressed in the re-opening of the record, continues to be of concern to OSHA, and the Agency wants to ensure that all interested parties have ample time to submit comments. Therefore, OSHA has decided to extend the deadline for submitting comments an additional 60 days from March 25, 2002 until May 24, 2002.
This document was prepared under the direction of John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210. It is issued under section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C 655), Secretary of Labor's Order No. 3-2000 (65 FR 50017) and 29 CFR part 1911.
Department of Education.
Notice of meeting to conduct a negotiated rulemaking process; correction.
On February 28, 2002 a notice of meetings to conduct a negotiated rulemaking process relating to improving the academic achievement of the disadvantaged was published in the
Susan Wilhelm, Compensatory Education Programs, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue, SW, room 3W202, Washington, DC 20202-6132. Telephone (202) 260-0826.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
The meeting site is accessible to individuals with disabilities. If you need an auxiliary aid or service to participate in the meeting (
The caption
You may view this document, as well as all other Department of Education documents published in the
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The official version of this document is the document published in the
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
In order to provide prenatal care and other health services, this proposed rule would revise the definition of “child” under the State Children's Health Insurance Program (SCHIP) to clarify that an unborn child may be considered a “targeted low-income child” by the State and therefore eligible for SCHIP if other applicable State eligibility requirements are met. Under this definition, the State may elect to extend eligibility to unborn children for health benefits coverage, including prenatal care and delivery, consistent with SCHIP requirements.
We will consider comments if we receive them at the appropriate address, as provided below, no later than 5 p.m. on May 6, 2002.
In commenting, please refer to file code CMS-2127-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission. Mail written comments (one original and three copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2127-P, P.O. Box 8016, Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be timely received in the event of delivery delays.
If you prefer, you may deliver (by hand or courier) your written comments (one original and three copies) to one of the following addresses:
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and could be considered late.
For information on viewing public comments, see the beginning of the
Kathleen Farrell, (410) 786-3285.
Section 490l of the Balanced Budget Act, (Public Law 105-33), as amended by Public Law 105-100, added title XXI to the Act. Title XXI authorizes the State Children's Health Insurance Program (SCHIP) to assist State efforts to initiate and expand the provision of child health assistance to uninsured, low-income children. Under title XXI, States may provide child health assistance primarily for obtaining health benefits coverage through (1) a separate child health program that meets the requirements specified under section 2103 of the Act; (2) expanding eligibility for benefits under the State's Medicaid plan under title XIX of the Act; or (3) a combination of the two approaches. To be eligible for funds under this program, States must submit a State child health plan (State plan), that meets the applicable requirements of title XXI and is approved by the Secretary.
The State Children's Health Insurance Program is jointly financed by the Federal and State governments and is administered by the States. Within broad Federal guidelines, each State determines the design of its program, eligibility groups, benefit packages, payment levels for coverage, and administrative and operating procedures. Under section 2102(b) of the Act, States have discretion to adopt eligibility standards that are related to age, and thus may extend SCHIP eligibility only to certain age groups of targeted low-income children (who must be under age 19). SCHIP provides a capped amount of funds to States on a matching basis for Federal fiscal years (FY) 1998 through 2007. Regulations implementing SCHIP are set forth at 42 CFR part 457.
Section 2110 of the Act sets forth the definition of a targeted low-income child. In accordance with this section of
For reasons set forth below, in interest of providing necessary pre-natal care to children, we propose in this regulation to clarify and expand the definition of the term “child” so that a State may elect to make individuals in the period between conception and birth eligible for coverage as well under their State plan. Specifically, we would expand and revise the definition to clarify that “child” means an individual under the age of 19 and may include any period of time from conception to birth through age 19. This clarification of the definition of child will provide States with the option to consider an unborn child to be a targeted low-income child and therefore eligible for SCHIP if other applicable State eligibility requirements are met. This clarification would be consistent with the general statutory flexibility given States to elect the age groups of targeted low income children who must be under 19 years of age. Absent this clarification, under SCHIP there is a significant population of children who would be eligible at birth but who would not have had the benefit of needed prenatal care and delivery services. Currently, a pregnant woman under age 19 could be eligible as a targeted low income child and her child would benefit from needed prenatal care and delivery services by virtue of the mother's eligibility status. Absent this clarification, a pregnant woman over age 19 could not be eligible as a targeted low income child, and her child thus would not necessarily have the benefit of needed prenatal care and delivery services. This clarification would permit States to ensure that these needed services are available to benefit unborn children independent of the mother's eligibility status.
It is anticipated that the children covered by this regulation will become eligible for the SCHIP program after birth. By establishing eligibility prior to birth, the proposed change would improve continuity of care and simply allow states to establish eligibility at an earlier but medically critical point in time.
It is well established that access to prenatal care can improve health outcomes during infancy as well as over a child's life. Prenatal care includes monitoring the health of both the mother and the unborn child. The importance of prenatal care is widely accepted for the reasons summarized in the Department's 1999 report,
The report explains,
Adequate prenatal care is determined by both the early receipt of prenatal care (within the first trimester) and the receipt of an appropriate number of prenatal care visits for each stage of a pregnancy. Women whose prenatal care fails to meet these standards are at a greater risk for pregnancy complications and negative birth outcomes.
In the 2000
Early prenatal care allows women and their health care providers to identify, and when possible, treat or correct health problems and health-compromising behaviors that can be particularly damaging during the initial stages of fetal development. Increasing the percentage of women who receive prenatal care, and who do so early in their pregnancies, can improve birth outcomes and lower health care costs by reducing the likelihood of complications during pregnancy and childbirth.
The 2000 Report explains,
Babies born weighing less than 2,500 grams face an increased risk of physical and developmental complications and death. These babies account for four-fifths of all neonatal deaths (deaths under 28 days of age) and are 24 times more likely to die during the first year than are heavier infants.
According to the Report, low birthweight infants account for 7.6 percent of all infants born to mothers age 20 to 24 years.
Medical care is continually advancing and offers opportunities for services specifically targeted to the care of the unborn child. “Fetal medicine” or “fetology” is emerging as a distinct and important medical specialty which includes: obstetrics, maternal-fetal medicine, neonatology, pediatrics and fetal/neonatal pediatric surgery. Physicians specializing in fetal medicine use the pre-partum period to diagnosis potentially life threatening conditions in utero (
This regulatory clarification is intended to benefit both the unborn children and their mothers by promoting continuity of important medical care. Healthy pregnancies should also result in significant savings in public expenditures over a child's lifetime.
In order to protect against the substitution of Title XXI enhanced payments for Medicaid payments, we have added a new subparagraph in section 457.626(a) Prevention of duplicate payments. This subparagraph would clarify that payment is not available under Title XXI when payment may be reasonably expected to be made under Medicaid on the basis of the Medicaid eligibility or enrollment of the pregnant woman. Under section 2105(c)(6)(B) of the SCHIP statute, payment under SCHIP is not available if payment can be reasonably expected under another federally financed health
The purpose of the enhanced match in Title XXI is to encourage states to increase eligibility for health insurance coverage. So too is the purpose of this proposed rule. Consistent with congressional intent, the Department will work with states which seek to adopt this definition to ensure that coverage will be expanded beyond current Title XIX and Title XXI levels.
To the extent that a state elects to include unborn children in the SCHIP definition of children, as permitted by this rule, we believe that the state must also apply that same interpretation in assessing compliance with the Medicaid maintenance of effort provision of section 2105(d)(1). Since unborn children receive medical assistance under the Medicaid program through their mothers' status as pregnant women, more restrictive eligibility standards or methodologies for pregnant women in Medicaid would violate this maintenance of effort requirement. This requirement will be considered when state plan amendments to adopt the expanded definition are submitted. For the same reasons, a state that defines children under SCHIP to include unborn children would need to apply the same definition in the screen-and-enroll process described in SCHIP regulations at 42 CFR 457.350. We are proposing to modify these requirements to clarify that, for purposes of the screen and enroll process, individuals are properly enrolled in the appropriate program.
States will continue to have the authority to set eligibility requirements under their State plans, including age limits so long as the age limit is under 19 years of age, and hence States would not be required to extend coverage to this population. States that opt to extend eligibility to unborn children will submit a State plan amendment in accordance with § 457.60.
Under the Paperwork Reduction Act of 1995 (PRA), agencies are required to provide a 30-day notice in the
• Whether the information collection is necessary and useful to carry out the proper functions of the agency;
• The accuracy of the agency's estimate of the information collection burden;
• The quality, utility, and clarity of the information to be collected; and
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Section 457.60 requires a State to submit to CMS for approval an amendment to its approved State plan, whenever necessary, to reflect any changes in; (1) Federal law, regulations, policy interpretations, or court decisions, (2) State law, organization, policy or operation of the program, or (3) the source of the State share of funding. The burden associated with this requirement is the time and effort for a State to prepare and submit any necessary amendments to its State plan to CMS for approval. Based upon CMS's previous experiences with State plan amendments we estimate that on average, it will take a State 8 hours to complete and submit an amendment. We estimate that 13 States/territories will submit an amendment on an annual basis for a total burden of 104 hours.
Because of the large number of items of correspondence we normally receive on
We have examined the impacts of this proposed rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review) and the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354). 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 (RIA) must be prepared for major rules with economically significant effects ($100 million or more annually).
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $25 million or less annually. Individuals and States are not included in the definition of a small entity.
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 603 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.
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 expenditure in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million.
This proposed rule would revise and clarify the definition of “child” under the State Children's Health Insurance Program (SCHIP) to provide that an unborn child may be considered a “targeted low-income child” by the State and therefore eligible for SCHIP if other applicable State eligibility requirements are met. We estimate that 13 states will elect to include this definition in their State plans. We also estimate that an additional 30,000 unborn children will benefit by this change. In States that adopt this option, the health status of children will improve to the extent that their mothers receive prenatal care. We estimate that the budget impact will be $320 million over a five-year period. Therefore, the provisions set forth in this proposed rule will not have an impact of $110 million or more annually. These are the best estimates available. However, we are interested in seeking comment from the public on estimates of the impact of this rule. Neither is this rule expected to impose an unfunded mandate on States exceeding $110 million annually. Therefore, we have not prepared an analysis of cost and benefits as required by E.O. 12866 and the Unfunded
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct costs on State and local governments, preempts State law, or otherwise has federalism implications. The option for States to extend coverage to unborn children promulgated in this proposed rule does not meet the criteria for having Federalism implications. This provision would not impose direct costs on states or local governments, nor does it preempt State laws. This new option only increases State flexibility and, therefore, prior consultation is not required. However, we welcome input from State and local governments through the notice and comment process.
Administrative practice and procedure, Grant programs—health, Children's Health Insurance Program, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 42 CFR part 457 is proposed to be amended as set forth below:
1. The authority citation for part 457 continues to read as follows:
Section 1102 of the Social Security Act (42 U.S.C. 1302).
2. In § 457.10, the definition of “Child” is revised to read as follows:
Child means an individual under the age of 19 including the period from conception to birth.
3. Amend § 457.350 as follows:
A. Redesignate the text of paragraph (b) following the heading as paragraph (b)(1).
B. Add paragraph (b)(2) to read as follows:
(b) Screening objectives. (1) * * *
(2) Screening procedures must also identify any applicant or enrollee who would be potentially eligible for Medicaid services based on the eligibility of his or her mother under one of the poverty level groups described in 1902(l) of the Act, section 1931 of the Act or a Medicaid demonstration project approved under section 1115 of the Act.
4. Revise § 457.622(c)(5) to read as follows:
(c) * * *
(5) The state does not adopt eligibility standards and methodologies for purposes of determining a child's eligibility under the Medicaid State plan that were more restrictive than those applied under policies of the State plan in effect on June 1, 1997. This limitation applies also to more restrictive standards and methodologies for determining eligibility for services for a child based on the eligibility of a pregnant woman.
5. Amend § 457.626 to add a new paragraph (a)(3) to read as follows:
(a) * * *
(3) Services are for an unborn child and are payable under Medicaid as a service to an eligible pregnant woman under that program.
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard proposes to amend its commercial vessel regulations to provide consistency in the requirements for servicing of inflatable liferafts and inflatable buoyant apparatus (IBA). We are proposing this rule to eliminate an unnecessary burden on vessel operators and to eliminate confusion among the public and Coast Guard field personnel. The proposed rule would defer the first servicing of a new liferaft or IBA to two years after initial packing on all commercial vessels not certificated under the International Convention for the Safety of Life at Sea (SOLAS).
Comments and related material must reach the Docket Management Facility on or before May 6, 2002.
To make sure that your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility (USCG-2001-11118), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Docket Management Facility maintains the public docket for this
If you have questions on this proposed rule, contact Kurt Heinz, Coast Guard, telephone 202-267-1444; e-mail
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (USCG-2001-11118), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under
We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under
In 1991, we published a final rule in the
Historically, liferafts and IBAs have been required to be serviced annually by an approved servicing facility in order to ensure that they remain in operational condition. This 1991 final rule allowed the first servicing of new liferafts or IBAs on uninspected commercial fishing industry vessels to be deferred to two years, instead of one, to lessen the new rule's initial financial impact on the industry. This was responsive to comments on the NPRM concerning the cost of annually servicing inflatable survival craft as is required for inspected vessels.
The Coast Guard considered this allowance to be low risk for two reasons: The stringent production testing and inspections of new liferafts, and a lack of past operational problems associated with new liferafts. In fact, in the more than 10 years since the final rule was published, the Coast Guard is not aware of any operational problems with liferafts or IBAs related to the deferral of first servicing as permitted by the rule.
Three years after publishing the commercial fishing industry vessel final rule, we published an NPRM (59 FR 52590, October 18, 1994) that proposed a complete revision of the inflatable liferaft regulations in 46 CFR subchapter Q. Unlike subchapter C, these proposed regulations were not tied to a specific type of commercial vessel.
Based on the success of the same allowance in the fishing industry vessel final rule, the 1994 NPRM proposed to allow the first servicing of a new inflatable liferaft to be deferred to two years from the date of manufacture on any ship not certificated under the International Convention for the Safety of Life at Sea, 1974 (SOLAS). (International convention requires that inflatable liferafts on ships certificated under SOLAS be serviced annually.) Because IBAs would be subject to the same servicing requirements as inflatable liferafts, by reference to proposed 46 CFR subpart 160.151 in proposed 46 CFR 160.010-3(c), the proposal would apply to IBAs as well.
In 1997, we published a subchapter Q final rule containing a complete revision of the inflatable liferaft regulations, in a new 46 CFR subpart 160.151. (62 FR 25525, May 9, 1997). These new regulations included the allowance for the first servicing of a new liferaft on a non-SOLAS ship to be deferred to two years from the date of manufacture under certain specified conditions. As stated in the preamble to the final rule at 62 FR 25535, “The Coast Guard considers this extension to be low-risk in view of the stringent production testing to which new liferafts are subjected, and so these final rules extend its application to new liferafts on all vessels not SOLAS-certificated.”
Unfortunately, the timing of several unrelated and independent rulemaking projects did not permit this clearly stated intent to be reflected in all of the various vessel subparts in 46 CFR. Although the liferaft final rule did include a conforming amendment to the then-recently published interim rule on lifesaving equipment in 46 CFR subchapter W (61 FR 25272, May 20, 1996)—updating 46 CFR 199.190(g)(3)(i) to correctly reference the servicing procedures in the new liferaft regulations—it left intact 46 CFR 199.190(g)(1)(i), which still specifies servicing every 12 months for “inflatable lifesaving appliances.” Substantially similar language may be found in subchapter I-A at 46 CFR 109.301(g), subchapter K at 46 CFR 122.730(a), and subchapter T at 46 CFR 185.730(a). The relevant portions of all of these subchapters were in the late stages of various rulemaking projects at the time the new inflatable liferaft regulations were published, and it was not considered feasible to add substantive changes, which had not been included at the NPRM stage.
In addition, although the subchapter W rulemaking replaced all of the lifesaving requirements for public nautical school ships and civilian nautical school vessels in parts 167 and 168 of subchapter R, it did not affect the lifesaving requirements for sailing school vessels in part 169 of that subchapter. Section 169.837(b)(4) in subchapter R still requires that liferafts on sailing school vessels be serviced every 12 months.
Soon after the subchapter Q final rule was published, we were able to amend the liferaft servicing requirement in subchapter L, for offshore supply vessels (62 FR 49308, 49345, September 19, 1997). The following table lists the eight subchapters we have been discussing, along with the current and proposed standards.
The inconsistency between the servicing interval specified in the liferaft regulations in subchapter Q and those specified in the various vessel subchapters has been the cause of some confusion, and resulted in some cases in new liferafts being serviced unnecessarily. This NPRM proposes to resolve the inconsistencies by harmonizing the servicing intervals specified in subchapters I-A, K, R, T, and W with the general requirement in the liferaft regulations at 46 CFR 160.151-57 in subchapter Q, consistent with the stated intent of that regulation. This would eliminate the confusion caused by ambiguous or conflicting provisions in the various commercial vessel regulations, and reduce the burden on the public by avoiding potential unnecessary servicing of new inflatable liferafts.
In addition, to maintain internal consistency, changes are proposed to sections 169.513(b) and 169.531 in 46 CFR subchapter R to update or remove references to obsolete liferaft regulations. The currently cited regulations no longer exist, and the specified liferafts are no longer approved for manufacture. The proposed changes would require the analogous types of liferafts, that are approved and manufactured under current regulations, but would allow existing liferafts on the vessel to remain in use as long as they are in good and serviceable condition. Also, conforming editorial changes are proposed to the commercial fishing industry vessel regulations in 46 CFR subchapter C, and to subchapter L, to harmonize the specific wording between the various individual vessel subchapters to the extent possible.
Because of its unique structure, subchapter W, which contains liferaft-servicing requirements referenced by various subchapters, necessitates a slightly different approach than the other vessel subchapters. Amendments are being proposed for two sections in subchapter W, 46 CFR 199.190 and 199.620. Included in these changes is a proposed correction to an existing error in table 199.620(a) in section 199.620—changing “199.621” to “199.261” in the last table entry.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential benefits and costs under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). A detailed, draft analysis supporting this conclusion is available in the docket as indicated under
In addition, we recognize that other benefits of the proposed rule exist but cannot be quantified, particularly the easing of confusion of both the public and Coast Guard personnel caused by vague and conflicting provisions. Furthermore, vessel owners would benefit by eliminating the opportunity cost of time associated with liferaft servicing during the first year after manufacture. Therefore, the total benefits may be higher if the qualitative benefits were represented in monetary terms.
Costs: The proposed rule would not impose costs on vessel owners and operators. No increase in the number of accidents is expected to occur. The revised liferaft servicing allowance is considered low risk in view of the stringent production testing and inspections to which new liferafts are subjected, and there being no history of operational problems associated with new liferafts where servicing has been deferred on commercial fishing industry vessels.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Kurt Heinz at 202-267-1444.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this proposed rule under Executive Order 13132, Federalism, and have determined that it does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their regulatory actions not specifically required by law. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.
To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have considered the environmental impact of this proposed rule and concluded that under figure 2-1, paragraph (34)(d), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. This proposed rule would resolve the inconsistencies in inspection intervals for liferaft servicing and therefore would not have any impact on the environment. A “Categorical Exclusion Determination” is available in the docket where indicated under
Fire prevention, Fishing vessels, Marine safety, Occupational safety and health, Reporting and recordkeeping requirements, Seamen.
Marine safety, Occupational safety and health, Oil and gas exploration, Reporting and recordkeeping requirements, Vessels.
Alcohol and alcoholic beverages, Drugs, Hazardous materials, Marine safety, Navigation (water), Passenger vessels, Reporting and recordkeeping requirements.
Hazardous materials transportation, Marine safety, Navigation (water), Offshore supply vessels, Oil and gas exploration, Operations, Penalties, Reporting and recordkeeping requirements, Vessels.
Fire prevention, Marine safety, Reporting and recordkeeping requirements, Schools, Vessels.
Marine safety, Passenger vessels, Reporting and recordkeeping requirements.
Cargo vessels, Incorporation by reference, Marine safety, Oil and gas exploration, Passenger vessels, Reporting and recordkeeping requirements, Vessels.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR parts 28, 109, 122, 131, 169, 185, and 199 as follows:
1. The authority citation for part 28 continues to read as follows:
46 U.S.C. 3316, 4502, 4505, 4506, 6104, 10603; 49 CFR 1.46.
2. In § 28.140, revise paragraphs (b) and (c), and table 28.140 to read as follows:
(b) Each item of lifesaving equipment, including unapproved equipment, must be maintained and inspected in accordance with:
(1) Table 28.140 in this section;
(2) The servicing procedure under the subpart of this chapter applicable to the item's approval; and
(3) The manufacturer's guidelines.
(c) An inflatable liferaft or inflatable buoyant apparatus must be serviced no later than the month and year on its servicing sticker affixed under 46 CFR 160.151-57(n), and whenever the container is damaged or the container straps or seals are broken. It must be serviced at a facility specifically approved by the Commandant for the particular brand.
3. The authority citation for part 109 continues to read as follows:
43 U.S.C. 1333; 46 U.S.C. 3306, 6101, 10104; 49 CFR 1.46.
4. In § 109.301, revise paragraph (g)(3) to read as follows:
(g) * * *
(3) An inflatable liferaft must be serviced at a facility specifically approved by the Commandant for the particular brand, and in accordance with servicing procedures meeting the requirements of part 160, subpart 160.151, of this chapter—
(i) No later than the month and year on its servicing sticker affixed under 46 CFR 160.151-57(n), except that servicing may be delayed until the next scheduled inspection of the unit, provided that the delay does not exceed 5 months; and
(ii) Whenever the container is damaged or the container straps or seals are broken.
5. The authority citation for part 122 continues to read as follows:
46 U.S.C. 2103, 3306, 6101; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; 49 CFR 1.46.
6. In § 122.730, revise paragraphs (a) and (b) to read as follows:
(a) An inflatable liferaft or inflatable buoyant apparatus must be serviced at a facility specifically approved by the Commandant for the particular brand, and in accordance with servicing procedures meeting the requirements of part 160, subpart 160.151, of this chapter—
(1) No later than the month and year on its servicing sticker affixed under 46 CFR 160.151-57(n), except that servicing may be delayed until the next scheduled inspection of the vessel, provided that the delay does not exceed 5 months; and
(2) Whenever the container is damaged or the container straps or seals are broken.
(b) Each inflatable lifejacket and hybrid inflatable lifejacket or work vest must be serviced:
(1) Within 12 months of its initial packing; and
(2) Within 12 months of each subsequent servicing, except that servicing may be delayed until the next scheduled inspection of the vessel, provided that the delay does not exceed 5 months.
7. The authority citation for part 131 continues to read as follows:
33 U.S.C. 1321(j); 46 U.S.C. 3306, 6101, 10104; E.O. 12234, 3 CFR, 1980 Comp., p. 277; E.O. 12777, 3 CFR, 1991 Comp., p. 351; 49 CFR 1.46.
8. In § 131.580, revise paragraphs (a) and (b) to read as follows:
(a) An inflatable liferaft or inflatable buoyant apparatus must be serviced at a facility specifically approved by the Commandant for the particular brand, and in accordance with servicing procedures meeting the requirements of part 160, subpart 160.151, of this chapter—
(1) No later than the month and year on its servicing sticker affixed under 46 CFR 160.151-57(n), except that servicing may be delayed until the next scheduled inspection of the vessel, provided that the delay does not exceed 5 months; and
(2) Whenever the container is damaged or the container straps or seals are broken.
(b) Each inflatable lifejacket and hybrid inflatable lifejacket or work vest must be serviced:
(1) Within 12 months of its initial packing; and
(2) Within 12 months of each subsequent servicing, except that servicing may be delayed until the next scheduled inspection of the OSV, provided that the delay does not exceed 5 months.
9. The authority citation for part 169 continues to read as follows:
33 U.S.C. 1321(j); 46 U.S.C. 3306, 3307, 6101; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp., p. 793; 49 CFR 1.45, 1.46; § 169.117 also issued under the authority of 44 U.S.C. 3507.
10. In § 169.513, revise paragraph (b) to read as follows:
(b)
(2) Each approved inflatable liferaft on the vessel on [EFFECTIVE DATE OF THE FINAL RULE] may be used to meet the requirements of this part as long as it is continued in use on the vessel, and is in good and serviceable condition.”
11. Remove § 169.531.
12. In § 169.837, revise paragraph (b)(4) to read as follows:
(b) * * *
(4) Each inflatable liferaft has been serviced at a facility specifically approved by the Commandant for the particular brand, and in accordance with servicing procedures meeting the requirements of part 160, part 160.151, of this chapter—
(i) No later than the month and year on its servicing sticker affixed under 46 CFR 160.151-57(n), except that servicing may be delayed until the next scheduled inspection of the vessel, provided that the delay does not exceed 5 months; and
(ii) Whenever the container is damaged or the container straps or seals are broken.
13. The authority citation for part 185 continues to read as follows:
46 U.S.C. 2103, 3306, 6101; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; 49 CFR 1.46.
14. In § 185.730, revise paragraphs (a) and (b) to read as follows:
(a) An inflatable liferaft or inflatable buoyant apparatus must be serviced at a facility specifically approved by the Commandant for the particular brand, and in accordance with servicing procedures meeting the requirements of part 160, subpart 160.151, of this chapter—
(1) No later than the month and year on its servicing sticker affixed under 46 CFR 160.151-57(n), except that servicing may be delayed until the next scheduled inspection of the vessel, provided that the delay does not exceed 5 months; and
(2) Whenever the container is damaged or the container straps or seals are broken.
(b) Each inflatable lifejacket and hybrid inflatable lifejacket or work vest must be serviced:
(1) Within 12 months of its initial packing; and
(2) Within 12 months of each subsequent servicing, except that servicing may be delayed until the next scheduled inspection of the vessel, provided that the delay does not exceed 5 months.
15. The authority citation for part 199 continues to read as follows:
46 U.S.C. 3306, 3307, 3703; 49 CFR 1.46.
16. In § 199.190, revise paragraph (g)(3) to read as follows:
(g) * * *
(3) An inflatable liferaft or inflatable buoyant apparatus must be serviced at a facility specifically approved by the Commandant for the particular brand, and in accordance with servicing procedures meeting the requirements of part 160, subpart 160.151, of this chapter—
(i) No later than the month and year on its servicing sticker affixed under 46 CFR 160.151-57(n), except that servicing may be delayed until the next scheduled inspection of the vessel, provided that the delay does not exceed 5 months; and
(ii) Whenever the container is damaged or the container straps or seals are broken.
17. In § 199.620, in paragraph (a), revise table 199.620(a) and add a new paragraph (q) as follows:
(q) For a new liferaft or inflatable buoyant apparatus, the first annual servicing may be deferred to two years after initial packing if so indicated on the servicing sticker.
Federal Communications Commission.
Proposed rule.
This document solicits comments on how the Commission should allocate and license “non-reserved” spectrum (
Comments are due April 15, 2002; Reply comments are due May 15, 2002.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Eric J. Bash, Mass Media Bureau, Policy and Rules Division, (202) 418-2130 or
This is a synopsis of the
1. We adopt this
2. For some time, the Commission has reserved a portion of the broadcast spectrum for noncommercial educational (“NCE”) use only. In the FM service, the Commission currently reserves twenty specific channels (88.1 MHz to 91.9 MHz, the “reserved band”), out of a total of one hundred channels, for FM full-power and FM translator NCE use. In the full power television service, the Commission has reserved a similar proportion of channels, but using different channels in different geographic areas across the country. The Commission has not reserved channels or frequencies in other services (
3. Traditionally, the Commission resolved mutually exclusive applications filed by commercial or NCE entities through often lengthy, and litigious, comparative hearings. The Commission considered different comparative criteria for reserved and non-reserved spectrum. Both processes were called into question in the early 1990s. The Commission's former Review Board described the criteria used by the Commission to resolve competing applications for reserved channels as “meaningless” and “vague,” and the United States Court of Appeals for the D.C. Circuit held the principal criterion used by the Commission to resolve competing applications for non-reserved channels to be “arbitrary and capricious, and therefore unlawful.” In 1992, the Commission initiated a rulemaking proceeding to reexamine its comparative licensing selection processes for both commercial and NCE entities. The Commission thereafter opened this separate docket and released a Notice of Proposed Rulemaking (“
4. While the Commission was considering the record, the Balanced Budget Act of 1997 (“1997 Budget Act”) became law, amending certain provisions of the Communications Act (“Act”) relevant to the Commission's review of its licensing policies. Section 309(j), which had been adopted in 1993 to authorize the Commission to use competitive bidding systems to resolve mutually exclusive applications under certain circumstances, was amended by the 1997 Budget Act to require the Commission to use such systems subject to several exceptions. Specifically, section 309(j)(1) was revised as follows: If . . . mutually exclusive applications are accepted for any initial license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding that meets the requirements of this subsection.” Section 309(j)(2) sets forth the types of authorizations to which the competitive bidding authority of section 309(j)(1) does not apply, including “licenses or construction permits issued by the Commission * * * (C) for stations described in section 397(6) of this Act,”
5. The Commission sought comment on these statutory changes through a Further Notice of Proposed Rulemaking (“
6. In the year 2000, the Commission adopted a Report & Order (“
7. Several parties sought review in court of the Commission's decision to require NCE entities to compete for channels in the non-reserved spectrum via competitive bidding. In
8. Given the court's decision in
9. Before turning to a discussion of these options, however, we seek comment on the breadth of the statutory language that describes the entities that are exempt from auctions. Section 309(j)(2)(C) states that the Commission's competitive bidding authority does not apply to “licenses or construction permits issued by the Commission * * * for stations described in section 397(6) of this Act.” Section 397(6) of the Communications Act defines the terms “noncommercial educational broadcast station” and “public broadcast station” as a radio or television broadcast station which “(A) under the rules and regulations of the Commission in effect on the effective date of this paragraph, is eligible to be licensed by the Commission as a noncommercial educational radio or television broadcast station and which is owned and operated by a public agency or nonprofit private foundation, corporation, or association; or (B) is owned and operated by a municipality and which transmits only noncommercial programs for education purposes.” Section 397(6) became effective November 2, 1978. Both at that time and currently, the Commission's rules for the FM service stated that NCE stations “will be licensed only to a nonprofit educational organization and upon a showing that the station will be used for the advancement of an educational program.” Likewise, the Commission's rules stated for the TV service that NCE stations “will be licensed only to nonprofit educational organizations upon a showing that the proposed stations will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial television service.” Reading these eligibility requirements in the rules in tandem with the statutory exemption, we request comment on which applicants are exempt from competitive bidding and under what circumstances. Specifically, are all “nonprofit educational organizations” exempt from auctions whenever they apply for any broadcast license, or only when they make a “showing that the station will be used for the advancement of an educational program''? In other words, is the “showing” of an “educational program” or “service” requirement that appears in §§ 73.503 and 73.621 of the Commission's rules, part of the “eligibility” requirement that is incorporated by reference in section 397(6) of the Act? Or is the eligibility requirement referenced in section 397(6) only that the applicant be a “nonprofit educational organization''? If the latter is the case, a nonprofit educational organization could not participate in an auction for a broadcast license under any circumstances—even if it were applying to operate a commercial station. If the former is the case, a nonprofit educational organization could participate in an auction for a broadcast license if it does not make “a showing that the station will be used for the advancement of an educational program.” If a nonprofit educational organization may participate in an auction, is it precluded, once having obtained a broadcast license, from providing noncommercial educational service or from later converting to noncommercial educational operations? Is its transferee precluded from these activities?
10. As we construe section 309(j)(2)(C), we note that certain other construction permits and licenses are also exempt from competitive bidding. Section 309(j)(2)(A) states that these construction permits and licenses include those “for public safety radio services, including private internal radio services used by State and local governments and non-government entities and including emergency road services provided by not-for-profit organizations that (i) are used to protect the safety of life, health, or property, and (ii) are not made commercially available to the public.” We seek to ensure that our construction of section 309(j)(2)(C) is consistent with our implementation of section 309(j)(2)(A), taking into account the differences in the statutory language between the two provisions, and the D.C. Circuit's interpretation of section 309(j)(2)(C) specifically.
11. Option #1: Hold NCE entities ineligible for licenses for non-reserved channels and frequencies. One option the Commission considered in the
12. Option #2: Permit NCE entities to acquire licenses for non-reserved channels and frequencies when there is no conflict with commercial entities. While a decision to hold NCE entities completely ineligible for non-reserved channels has the advantage of clarity and simplicity, such a decision would preclude NCE entities from applying for non-reserved channels even when commercial entities do not wish to do so. As an alternative to that approach, the Commission could open a filing window for both commercial and NCE entities, and resolve mutually exclusive applications as follows. If only NCE entities filed mutually exclusive applications, the Commission could resolve the conflict through the current NCE point system; if only commercial entities filed mutually exclusive applications, the Commission could resolve the conflict via competitive bidding. If both commercial and NCE entities filed applications for channels or frequencies that created a technical conflict, the NCE applicant would be ineligible for a license to operate on such channels or frequencies and the Commission would dismiss its unacceptable application. In services that use the Table of Allotments (
13. If both commercial and NCE entities file mutually exclusive applications for channels in services that do not utilize the Table of Allotments (
14. Any decision to allow NCE entities to apply for non-reserved
15. Option #3: Provide NCE entities additional opportunities to reserve channels in the Table of Allotments. Another option the Commission considered in the
16.
17.
18. Should we establish a procedure for NCE entities to show that these vacant allotments should be reserved under the relaxed criteria? What reservation criteria should be used where the channel has already been allocated through a rulemaking? Should it be the same as the criteria to reserve a channel in a future allocation proceeding? While there is no “finder's preference” for a successful proponent in a channel allocation proceeding, is it fair to commercial entities to permit NCE entities at this point an additional opportunity effectively to remove a channel from the reach of a commercial proponent? Should we create any additional opportunity for NCE entities to attempt to reserve these allotments? If so, how can the Commission create such further reservation opportunities and at the same time accommodate the competing needs of commercial broadcasters in a manner that serves the public interest? Would it be appropriate to extend further reservation opportunities but require any NCE proponent to demonstrate a greater need for the channel before attempting to have it reallocated as reserved? For example, we could require NCE entities to show that there are no other channels available that would serve at least 50% of the area within the protected service contour of the subject allotment,
19. Other Options. If we adopt one or more of the proposals, NCE entities could be accorded more flexible approaches to reserving additional FM and TV channels for NCE use, including channels that have been allocated but not yet licensed, and the ability to operate on non-reserved channels and frequencies if no commercial entities apply for those channels and frequencies. We wish to ensure that NCE entities have reasonable opportunities to obtain the spectrum they need. Will these options satisfy that goal? Are there other options the Commission should consider that would be consistent with the
20. Additional Issue Concerning LPTV and TV Translators. As we reconsider our licensing policies for non-reserved spectrum, we also seek comment on issues unique to LPTV and TV translators. In the year 2000, the Mass Media Bureau and the Wireless Telecommunications Bureau opened a limited filing window to auction the channels for certain LPTV stations. Thereafter, the Association of America's Public Television Stations (APTS) filed a motion to stay the LPTV auction. APTS argued that the
21. While the Commission does not reserve channels in several services, it still licenses NCE entities to operate NCE broadcast stations on AM and FM translator channels, if they satisfy the eligibility criteria and licensing requirements set forth in our rules. The Commission, however, does not license NCE entities as such for LPTV and TV translator channels. Section 309(j)(2)(C) states that competitive bidding procedures shall not apply to “licenses issued by the Commission * * * for stations described in section 397(6) of this Act.” Section 397(6) of the Communications Act defines the terms “noncommercial educational broadcast station” and “public broadcast station” as one which “(A) under the rules and regulations of the Commission in effect on the effective date of this paragraph, is eligible to be licensed by the Commission as a noncommercial educational radio or television broadcast station and which is owned and operated by a public agency or nonprofit private foundation, corporation, or association; or (B) is owned and operated by a municipality and which transmits only noncommercial programs for education purposes.” Given that the Commission has never licensed LPTV and TV translator facilities to operate as NCE stations, subject to the restrictions that apply to those stations, we seek comment on whether section 309(j)(2)(C) applies to LPTV and TV translators, and if not, whether we must use competitive bidding to resolve competing applications for these services, even if they include applications filed by entities that meet the general NCE eligibility criteria set forth in the rules. If licenses for LPTV and TV translators are within the scope of section 309(j)(2)(C), such licenses would not be available for NCE stations under the proposals in this
22. Through the record established in response to this
23.
24. Comments filed through ECFS can be sent as an electronic file via the Internet to
25. Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the Commission's Acting Secretary, William F. Caton, Office of the Secretary, Federal Communications Commission, 445 Twelfth Street SW., TW-A325, Washington, DC 20554. Parties who choose to file by paper should also submit comments on diskette. These diskettes should be addressed to: Wanda Hardy, 445 Twelfth Street SW., 2-C221, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, docket number of the proceeding, type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase: “Disk Copy “ Not an Original.” Each diskette should contain only one party's pleading, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, Qualex International, Portals II, 445 12th Street SW., CY-B402, Washington, DC 20554.
26.
27.
28.
29. As required by the Regulatory Flexibility Act (“
30. The Commission adopts the
31. The Commission adopts the
32. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business” concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. A “small organization” is generally defined as “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field * * *.” Nationwide, as of 1992, there were approximately 275,801 small organizations. A “small governmental jurisdiction” is generally defined as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand * * *.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of less than fifty thousand. The Census Bureau
33. All of the proposals in the
34. Applicants could also include existing radio stations. As of September 30, 2001, the Commission had licensed a total of 13,012 radio stations, of which 4,727 were AM stations, 6,051 were FM commercial stations, and 2,234 NCE FM stations. As of the same date, the Commission had also licensed 3,600 FM translators and boosters (commercial and NCE). SBA defines a radio station that has less than $5 million or less in annual receipts as a small business. According to the Commission staff review of BIA Publications Inc. Master Access Radio Analyzer Database on January 24, 2002, about 11,000 full-power commercial radio stations have revenue of $5 million or less. Many commercial radio stations, however, are affiliated with larger corporations with higher revenue, with the result that the estimate of 11,000 commercial radio stations likely overstates the number that qualify as small entities. The Commission does not know how many of its NCE FM station licensees qualify as small entities.
35. Applicants could also include existing TV stations. As of September 30, 2001, the Commission had licensed a total of 1,686 full-power TV stations, of which 1,309 were commercial TV stations, and 377 were NCE TV stations. As of the same date, the Commission had also licensed 4,762 TV translators, 424 Class A TV stations, and 2,212 low-power TV stations. SBA defines television broadcasting establishments that have $10.5 million or less in annual receipts as a small business. According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database on January 24, 2002, fewer than 800 of the commercial TV stations have revenues of $10.5 million or less. SBA's definition, however, indicates that revenues of TV station affiliates that are not TV stations themselves should be aggregated with the revenues of the TV station to determine when a TV station is a small entity. The Commission's revenues figures for TV stations do not include the revenues of their affiliates that are not TV stations themselves, with the result that the estimate of approximately 800 TV stations likely overstates the number of TV stations that qualify as small entities. The Commission does not know how many of its NCE TV station licensees qualify as small entities.
36. The Commission anticipates that none of the proposals in the 2FNPRM will result in an increase in the existing reporting and recordkeeping requirements of potential applicants.
37. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance and reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
38. The
39. None.
40. Pursuant to the authority contained in sections 1, 2(a), 4(i), 303, 307, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, and 309, this
41. America's Public Television Stations' Motion for Stay of Low Power Television Auction (No. 81)
42. The Commission's Consumer Information Bureau, Reference Information Center,
Radio, Television.
Agricultural Research Service, USDA.
Notice of availability and intent.
Notice is hereby given that the Federally owned invention disclosed in Patent Cooperation Treaty Application PCT/US01/45457, “Cucurbitacin-Containing Insecticidal Compositions,” filed October 24, 2001, is available for licensing and that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to Florida Food Products, Inc., of Eustis, Florida, an exclusive license to this invention.
Comments must be received within ninety (90) calendar days of the date of publication of this Notice in the
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Room 4-1174, Beltsville, Maryland 20705-5131.
June Blalock of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5257.
The Federal Government's patent rights to this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license this invention as Florida Food Products, Inc. has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within ninety (90) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Agricultural Research Service, USDA.
Notice of availability and intent.
Notice is hereby given that the large-seeded Kabuli chickpea variety designated “Sierra,” which is resistant to ascochyta blight, is available for licensing and that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to the Washington State University Research Foundation of Pullman, Washington, an exclusive license to this variety.
Comments must be received within ninety (90) calendar days of the date of publication of this Notice in the
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4-1174, Beltsville, Maryland 20705-5131.
June Blalock of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5257.
The Federal Government's intellectual property rights to this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within ninety (90) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection in support of the regulations governing the importation of solid wood packing material into the United States.
We will consider all comments we receive that are postmarked, delivered, or e-mailed by May 6, 2002.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 02-008-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 02-008-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except
APHIS documents published in the
For information on the regulations governing the importation of solid wood packing material into the United States, contact Ms. Cynthia Stahl, Program Analyst, Port Operations, Plant Protection and Quarantine, APHIS, 4700 River Road Unit 60, Riverdale, MD 20737-1236; (301) 734-5281. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
The regulations in 7 CFR 319.40-1 through 319.40-11 are intended to mitigate the plant pest risk presented by the importation of logs, lumber, and other unmanufactured wood articles into the United States. Section 319.40-5 governs, in part, the importation of solid wood packing material (such as pallets or crates) from the People's Republic of China. Under § 319.40-5(g), solid wood packing material accompanying merchandise exported from the People's Republic of China (including Hong Kong) must be heat treated, fumigated and aerated, or treated with preservatives prior to exportation. Since solid wood packing material could harbor plant pests, treatment is necessary to help prevent the introduction of plant pests into the United States.
These requirements necessitate the use of information collection activities. If solid wood packing material is used in a shipment, the regulations require the completion of an importer statement and a treatment certificate stating that the solid wood packing material used in the shipment was treated, fumigated and aerated, or treated with preservatives. If solid wood packing material is not used in the shipment, then an exporter document is required stating that the shipment contains no solid wood packing material.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, e.g., permitting electronic submission of responses.
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.
Forest Service, USDA.
Notice of availability.
The USDA Forest Service, Washington Office, is transmitting the final Boundaries of the Big Sur, Sisquoc, and Sespe National Wild and Scenic River to Congress.
Information may be obtained by contacting Rich Phelps, Special Areas Coordinator (805) 934-9654 or Jim Turner, Forest Planner (805) 961-5752, Los Padres National Forest, 6755 Hollister Avenue, Goleta, CA 93117.
The Big Sur, Sisquoc, and Sespe Wild and Scenic River boundary is available for review at the following offices: USDA Forest Service, Recreation, Yates Building, 14th and Independence Avenues SW., Washington, DC 20024; Pacific Southwest Regional Office, 1323 Club Drive, Vallejo, CA 94592; and, Los Padres National Forest, 6755 Hollister Avenue, Goleta, CA 93117.
The Los Padres Condor Range and River Protection Act (Public Law 102-301) 1992, designated the Big Sur, Sisquoc, and Sespe Rivers, California, as National Wild and Scenic Rivers, to be administered by the Secretary of Agriculture. The boundaries have been delineated on the appropriate USGS Quad Sheets since 1995 and used for day to day management. Unless changed by Congress, the boundary decision will be implemented ninety days after Congress receives this transmittal.
Forest Service, USDA.
Notice.
The Regional Forester, Eastern Region, hereby delegates the authority to grant FRTA easements, to public road agencies, to all Forest Supervisors in the Easter Region, Forest Service.
Forest Supervisors are also authorized to terminate FRTA easements, to public road agencies, with the consent of the grantee.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Madeleine Clayton, Departmental Paperwork Clearance Officer, (202) 482-3129, Department of Commerce, Room 6608, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at MClayton@doc.gov).
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Madeleine Clayton, Departmental Paperwork Clearance Officer, (202) 482-3129, Department of Commerce, Room 6608, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at MClayton@doc.gov).
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burdens, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before May 6, 2002.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, (202) 482-3129, Department of Commerce, Room 6608, 14th & Constitution Avenue, NW, Washington, DC 20230 or via the Internet at
Request for additional information or copies of the information collection instrument and instructions should be directed to: Jim Nunno, Import Administration, Office of Policy, Room 3713, 14th & Constitution Avenue, NW, Washington, DC 20230; Phone number: (202) 482-0783, and fax number: (202) 501-7952.
The International Trade Administration, Import Administration, AD/CVD Enforcement, implements the U.S. antidumping and countervailing duty law. Import Administration investigates allegations of unfair trade practices by foreign governments and producers and, in conjunction with the U.S. International Trade Commission, can impose duties on the product in question to offset the unfair practices. Form ITA-357P, “ Format for Petition Requesting Relief Under the U.S. Antidumping Duty Law,” is designed for U.S. companies or industries that are unfamiliar with the antidumping law and the petition process. The Form is designed for potential petitioners that believe that an industry in the United States is being injured because a foreign competitor is selling a product in the United States at less than fair value. Since a variety of detailed information is required under the law before initiation of an antidumping duty investigation, the Form is designed to extract such information in the least burdensome manner possible.
Form ITA-357P is sent by request to potential U.S. petitioners.
Comments are invited on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and 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 through the use of automated collection techniques or forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burdens, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before May 6, 2002.
Direct all written comments to Madeleine Clayton, Departmental Paperwork Clearance Officer, (202) 482-3129, Department of Commerce, Room 6608, 14th & Constitution Avenue, NW., Washington, DC 20230 or via internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to: Dorothea Blouin, Office of Microelectronics, Medical Equipment and Instrumentation, Room 1015, Department of Commerce, 14th & Constitution Avenue, NW, Washington, DC 20230; phone (202) 482-1333, fax number (202) 482-0975 or via the Internet at
The Data Collection Form is the vehicle by which individual “Foreign” (non-Japanese) semiconductor companies voluntarily report their sales to Japan. The information provided by the Data Collection Program (DCP) is used by the U.S. Government to calculate foreign market share in the Japanese semiconductor market to ensure access to the Japanese market gained under the 1986 and 1991 U.S.-Japan Semiconductor Arrangement continues under the 1996 Semiconductor Agreement.
The Department of Commerce distributes Form ITA-4115P and the instruction manual to semiconductor companies after their eligibility is checked. The applicant completes the form and then forwards it to Price Waterhouse, who submits a summary report to the U.S. Department of Commerce/ Office of Microelectronics for calculation of foreign (non-Japanese) share of the Japanese market.
Comments are invited on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and 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 through the use of automated collection techniques or forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, U.S. Department of Commerce.
Final results of changed circumstances review.
March 5, 2002.
On November 15, 2001, the Department of Commerce (“the Department”) published a notice of initiation and preliminary results of a changed circumstances review for a revocation of the antidumping duty order on certain cold-rolled carbon steel flat products from the Netherlands at the request of a letter dated September 18, 2001 from Bethlehem Steel Corporation, LTV Steel Company, Inc., National Steel Corporation, and United States Steel LLC (collectively, “petitioners”). The Department issued its preliminary results and intent to revoke the antidumping duty order, retroactive to August 19, 1993, given that producers accounting for substantially all of the production of the domestic like product have expressed a lack of interest in the order (
Michael Ferrier or Abdelali Elouaradia, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-1394 or (202) 482-1374, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to the regulations at 19 CFR part 351 (2001).
On August 19, 1993, the Department published in the
Pursuant to section 751(d)(1) of the Act, the Department may revoke an antidumping duty order based on a review under section 751(b) of the Act (
Petitioners are domestic interested parties as defined by section 771(9)(C) of the Act and 19 CFR 351.102(b). Petitioners indicate that they, along with other domestic producers that have expressed a lack of interest in the order retroactive to August 19, 1993, represent at least 85 percent of the domestic production of the domestic like product to which this order pertains, and thus account for “substantially all” of the production of the domestic like product.
In this changed circumstances review we have determined to revoke the order in part, retroactive to August 19, 1993, for unliquidated entries in light of the submission by petitioners and particularly in light of the fact that the parties to the litigation concerning these entries have agreed to withdraw their appeals; there is only one importer of record; and we received no comments following our preliminary results of November 15, 2001. We hereby notify the public of our revocation in whole the antidumping duty order on certain cold-rolled carbon steel flat products from the Netherlands retroactive to August 19, 1993.
Upon dismissal by the courts of the pending appeals, we will instruct the Customs Service to refund any estimated antidumping duties collected for all unliquidated entries of certain cold-rolled carbon steel flat products from the Netherlands entered, or withdrawn from warehouse, for
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.306. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO 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 § 351.216 of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of changed circumstances review, preliminary intent to revoke the antidumping duty order, and preliminary rescission of antidumping duty administrative reviews.
In response to a request by KBA North America, Inc., Web Press Division, a U.S. producer of subject merchandise and an interested party in this proceeding, on November 5, 2001, the Department of Commerce initiated a changed circumstances review to consider revocation of the antidumping duty order on large newspaper printing presses from Germany. We have preliminarily determined that the producers accounting for all or substantially all of the production of the domestic like product to which the order pertains do not have an interest in maintaining the order. Consequently, we preliminarily intend to revoke the order on large newspaper printing presses from Germany with an effective date of September 1, 1999. In addition, the Department is rescinding preliminarily the ongoing administrative reviews of this order. These reviews cover the periods September 1, 1999, through August 31, 2000, and September 1, 2000, through August 31, 2001. Interested parties are invited to comment on these preliminary results.
September 1, 1999.
David Goldberger or Irene Darzenta Tzafolias AD/CVD Enforcement Group I, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, D.C. 20230; telephone: (202) 482-4136 or (202) 482-0922, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to the regulations at 19 CFR part 351 (2001).
On September 4, 1996, the Department issued the antidumping duty order on large newspaper printing presses (LNPPs) from Germany (61 FR 46623). On September 24, 2001, Koenig & Bauer AG and KBA North America, Inc. Web Press Division (KBA NA, a domestic producer of the subject mercandise; collectively, K&B) requested that the Department revoke the antidumping duty order on LNPPs from Germany through initiation of a changed circumstances review. K&B provided information that Goss, the petitioner in the antidumping duty order proceeding, closed its sole U.S. production facility on August 31, 2001, and is no longer a producer of the merchandise subject to the antidumping duty order. On November 2, 2001, KBA NA stated that it accounts for substantially all of the production of the domestic like product and no longer has an interest in the continuation of the antidumping order. In addition, prior to K&B's request, on September 19, 2001, MAN Roland Druckmaschinen AG and MAN Roland Inc. (collectively, MAN Roland), a foreign producer/exporter of the subject merchandise and its U.S. affiliate, requested that the Department revoke the antidumping duty order on LNPPs from Germany through a changed circumstances review. MAN Roland provided information similar to K&B's regarding the status of Goss's U.S. production facility. Both K&B and MAN Roland submitted additional material regarding Goss on October 19, 2001, and MAN Roland provided further information on October 29, 2001. In their submissions, both K&B and MAN Roland requested that the order be revoked with respect to any entries of LNPPs that have not yet been the subject of a completed administrative review.
On October 3, 2001, the Department requested Goss to state for the record whether it is a domestic producer of LNPPs. Goss responded on October 19, 2001, stating that it continues to perform certain manufacturing functions at a U.S. facility and thus continues to be a manufacturer, producer, or wholesaler in the United States within the meaning of section 771(9) of the Act. On that basis, Goss contended that the Department should reject the requests for a changed circumstances review.
Based on the information submitted by KBA NA and KBA NA's assertions that it accounted for substantially all of the production of the domestic like product and had no interest in maintaining the order, the Department determined that there was sufficient evidence of changed circumstances to warrant a review under section 751(b)(1) of the Act and 19 CFR 351.222(g) and 351.216, and consequently, initiated a changed circumstances review on November 5, 2001. (See Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Germany: Notice of Initiation of Changed Circumstances Review and Consideration of Revocation of the Antidumping Duty Order, 66 FR 56798 (November 13, 2001) (Initiation Notice).) In the Initiation Notice, we stated that we would consider whether there is interest in continuing the order on the part of the U.S. industry. We also stated that we would publish in the Federal Register a notice of preliminary results of changed circumstances review, in accordance with 19 CFR 351.221(c)(3)(i), prior to the issuance of the final results of the review.
Since the Department's notice of initiation of this review, the following events have occurred. On December 7, 2001, the Department issued a questionnaire to Goss seeking to better understand its current operations and to assess its status as a domestic producer of LNPPs. While it never responded directly to the questions in this questionnaire, on December 21, 2001, Goss filed a letter stating that it was no longer interested in participating in any of the current antidumping proceedings concerning LNPPs from Germany (and Japan), including the changed circumstances review, and therefore was withdrawing from them. Subsequent to the filing of Goss's letter, on December 31, 2001 and January 8, 2002, MAN Roland and K&B, respectively, submitted letters urging the Department to conclude based on the facts of the record that Goss is not a domestic producer of the subject merchandise and to revoke the order on the basis of changed circumstances with respect to all unliquidated entries of the subject merchandise, including those that are subject to the current administrative reviews. Specifically, K&B requested that the effective date of revocation of the order be September 1, 1999. On January 31, 2002, MAN Roland specified an effective revocation date of September 1, 2000. Other than the additional comments filed by K&B and MAN Roland, no other interested parties filed comments.
The products covered by the order are large newspaper printing presses, including press systems, press additions and press components, whether assembled or unassembled, whether complete or incomplete, that are capable of printing or otherwise manipulating a roll of paper more than two pages across. A page is defined as a newspaper broadsheet page in which the lines of type are printed perpendicular to the running of the direction of the paper or a newspaper tabloid page with lines of type parallel to the running of the direction of the paper.
In addition to press systems, the scope of the order includes the five press system components. They are: (1) A printing unit, which is any component that prints in monocolor, spot color and/or process (full) color; (2) a reel tension paster (RTP), which is any component that feeds a roll of paper more than two newspaper broadsheet pages in width into a subject printing unit; (3) a folder, which is a module or combination of modules capable of cutting, folding, and/or delivering the paper from a roll or rolls of newspaper broadsheet paper more than two pages in width into a newspaper format; (4) conveyance and access apparatus capable of manipulating a roll of paper more than two newspaper broadsheet pages across through the production process and which provides structural support and access; and (5) a computerized control system, which is any computer equipment and/or software designed specifically to control, monitor, adjust, and coordinate the functions and operations of large newspaper printing presses or press components.
A press addition is comprised of a union of one or more of the press components defined above and the equipment necessary to integrate such components into an existing press system.
Because of their size, large newspaper printing press systems, press additions, and press components are typically shipped either partially assembled or unassembled, complete or incomplete, and are assembled and/or completed prior to and/or during the installation process in the United States. Any of the five components, or collection of components, the use of which is to fulfill a contract for large newspaper printing press systems, press additions, or press components, regardless of degree of assembly and/or degree of combination with non-subject elements before or after importation, is included in the scope of this order. Also included in the scope are elements of a LNPP system, addition or component, which taken altogether, constitute at least 50 percent of the cost of manufacture of any of the five major LNPP components of which they are a part.
For purposes of the order, the following definitions apply irrespective of any different definition that may be found in Customs rulings, U.S. Customs law or the Harmonized Tariff Schedule of the United States (HTSUS): the term “unassembled” means fully or partially unassembled or disassembled; and (2) the term “incomplete” means lacking one or more elements with which the LNPP is intended to be equipped in order to fulfill a contract for a LNPP system, addition or component.
This scope does not cover spare or replacement parts. Spare or replacement parts imported pursuant to a LNPP contract, which are not integral to the original start-up and operation of the LNPP, and are separately identified and valued in a LNPP contract, whether or not shipped in combination with covered merchandise, are excluded from the scope of this order. Used presses are also not subject to this order. Used presses are those that have been previously sold in an arm's-length transaction to a purchaser that used them to produce newspapers in the ordinary course of business.
Further, this order covers all current and future printing technologies capable of printing newspapers, including, but not limited to, lithographic (offset or direct), flexographic, and letterpress systems. The products covered by this order are imported into the United States under subheadings 8443.11.10, 8443.11.50, 8443.30.00, 8443.59.50, 8443.60.00, and 8443.90.50 of the HTSUS. Large newspaper printing presses may also enter under HTSUS subheadings 8443.21.00 and 8443.40.00. Large newspaper printing press computerized control systems may enter under HTSUS subheadings 8471.49.10, 8471.49.21, 8471.49.26, 8471.50.40, 8471.50.80, and 8537.10.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
We interpret Goss's withdrawal from all of the ongoing LNPP proceedings to mean that Goss no longer has interest in the maintenance of this order. Both Goss, the original petitioner, and KBA NA, a U.S. producer of LNPPs which claims it accounts for substantially all of the production of the domestic like product, are no longer interested in the maintenance of this order, and no other interested party has filed any objection to the revocation of this order pursuant to the Department's solicitation of comments in its Initiation Notice.
Pursuant to section 782(h)(2) of the Act, the Department may revoke an antidumping or countervailing duty order based on a review under section 751(b) of the Act (i.e., a changed circumstances review). Section 751(b)(1) of the Act requires a changed circumstances review to be conducted upon receipt of a request which shows changed circumstances sufficient to warrant a review. 19 CFR 351.222(g) provides that the Department will conduct a changed circumstances review under 19 CFR 351.216, and may revoke an order (in whole or in part), if it determines that producers accounting for substantially all of the production of the domestic like product to which the order (or the part of the order to be revoked) pertains have expressed a lack of interest in the relief provided by the order, in whole or in part, or if other changed circumstances exist sufficient to warrant revocation. Furthermore, it is
The Department preliminarily determines that the producers accounting for substantially all of the domestic like product to which the order pertains have expressed a lack of interest in the relief provided by this order, dating back to September 1, 1999, and thus, sufficient changed circumstances exist to warrant revocation of the order. The Department also preliminarily determines that the effective date of revocation for this order is September 1, 1999, the date of the suspension of liquidation for the 1999-2000 administrative review for K&B. Therefore, the Department preliminarily determines that it shall revoke, effective September 1, 1999, the order on LNPPs from Germany in whole, pursuant to sections 751(b) and (d) and 782(h) of the Act, as well as 19 CFR 351.216 and 351.222(g).
As discussed above, on October 30, 2001, the Department published in the Federal Register (65 FR 64662) a notice stating that it would defer for one year the initiation of the administrative review for the period September 1, 1999 through August 31, 2000, for K&B. On October 26, 2001, the Department published in the Federal Register (66 FR 54195) a notice of initiation of an administrative review for the period September 1, 2000 through August 31, 2001 for K&B and MAN Roland. Because we are preliminarily revoking the order for the reasons stated above, effective September 1, 1999, we are preliminarily rescinding the ongoing administrative reviews of LNPPs from Germany pursuant to section 751(d)(3) of the Act.
If our final results do not differ from our preliminary results with respect to revocation, the Department, in accordance with 19 CFR 351.222, will instruct the Customs Service to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, all unliquidated entries of LNPPs from Germany, entered, or withdrawn from warehouse, for consumption on or after September 1, 1999, the date of the suspension of liquidation for the 1999-2000 administrative review for K&B. The Department will further instruct the Customs Service to refund with interest any estimated duties collected with respect to unliquidated entries of LNPPs from Germany entered, or withdrawn from warehouse, for consumption on or after September 1, 1999, in accordance with section 778 of the Act. These instructions will not be issued until either the conclusion of the ongoing litigation with respect to the final determination of the Department's less-than-fair-value investigation of LNPPs from Germany, pursuant to which entries have been enjoined from liquidation, or the injunction in that case is lifted or amended to allow liquidation of entries. (See Koenig & Bauer Albert v. United States, Fed. Cir. Court No. 00-1387 (CIT 96-10-02298).)
Interested parties are invited to comment on these preliminary results. Case briefs may be submitted by interested parties not later than 10 days after the date of publication of this notice. Rebuttal briefs, limited to the issues raised in the case briefs, may be filed not later than five days after the deadline for submission of case briefs. Parties who submit argument in this proceeding are requested to submit with the argument (1) a statement of the issue, and (2) a brief summary of the argument. All written comments shall be submitted in accordance with 19 CFR 351.303 and shall be served on all interested parties on the Department's service list in accordance with 19 CFR 351.303. Parties to the proceedings may request a hearing within 10 days of publication of this notice. Any hearing, if requested, will be held no later than two days after the deadline for the submission of rebuttal briefs, or the first workday thereafter. Persons interested in attending the hearing should contact the Department for the date and time of the hearing. The Department will publish the final results of this changed circumstances review, which will include the results of its analysis of issues raised in any case or rebuttal briefs or at the hearing.
This notice of preliminary results of changed circumstances review and intent to revoke the antidumping duty order are in accordance with sections 751(b) and (d), and 777 of the Act and 19 CFR 351.216(d) and 351.222(g). The 1999-2000 and 2000-2001 antidumping duty administrative reviews of LNPPs from Germany are being preliminarily rescinded in accordance with section 751(d)(3) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
March 5, 2002.
Michael Strollo at (202) 482-0629, Office of AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR part 351 (2001).
On August 20, 2001, the Department published a notice of initiation of administrative review of the antidumping duty order on sebacic acid from the People's Republic of China. See Notice of Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 66 FR 43570. The period of review is July 1, 2000 through June 30, 2001. The review covers three exporters of the subject merchandise to the United States.
Pursuant to section 751(a)(3)(A) of the Act, the Department shall make a preliminary determination in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order. The Act further provides, however, that the Department may extend the 245-day period to 365 days if it determines it is not practicable to complete the review within the foregoing time period. Due to the difficulty in selecting surrogate values to value factors of production, and the requirement that we conduct verification in this proceeding, it is not practicable to complete this review within the time limit mandated by section 751(a)(3)(A) of the Act. Consequently, we have extended the deadline until July 31, 2002.
This extension is in accordance with section 751(a)(3)(A) of the Act (19 U.S.C. 1675(a)(3)(A)(2001)).
Import Administration, International Trade Administration, Department of Commerce.
March 5, 2002.
Robert Bolling or Stephen Shin, AD/CVD Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3434 or (202) 482-0413.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act) are to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department”) regulations are to the current regulations as codified at 19 CFR Part 351 (2001).
On May 31, 2001, Acciai Speciali Terni S.p.A. and its affiliated company, requested that the Department conduct an administrative review. On June 19, 2001, the Department published a notice of initiation of the administrative review of the antidumping duty order on Stainless Steel Plate in Coils from Italy, covering the period May 1, 2000 through April 30, 2001. See Initiation of Antidumping and Countervailing Duty Administrative Review and Requests for Revocation in Part, 66 FR 32934 (June 19, 2001). On December 3, 2001, the Department extended the preliminary results of the review by 60 days. See Notice of Extension of the Time Limit for Preliminary Results of Antidumping Duty Administrative Review: Stainless Steel Plate in Coils From Italy, 66 FR 60196 (December 3, 2001). The preliminary results of this review are currently due no later than April 1, 2002.
Pursuant to section 751(a)(3)(A) of the Act, the Department may extend the deadline for completion of the preliminary results of a review if it determines that it is not practicable to complete the preliminary results within the statutory time limit of 245 days from the date on which the review was initiated. On October 22, 2001, the Department initiated a sales-below-the-cost-of-production investigation with respect to home market sales made by AST. On November 23, 2001, AST submitted the company-specific cost data. In order to properly analyze and consider the cost data in the Department's preliminary results, the Department has determined that it is not practicable to complete the preliminary results of this review for Acciai Speciali Terni S.p.A. and its affiliates within the initial time limits provided in section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations.
Therefore, we are extending the due date for the preliminary results by 60 days, until no later than May 31, 2002. The final results continue to be due 120 days after the publication of the preliminary results.
This extension is in accordance with section 751(a)(3)(A) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit of the preliminary results of the antidumping duty administrative review of stainless steel sheet and strip in coils from Italy.
The Department of Commerce (“the Department”) is extending the time limit of the preliminary results of the antidumping duty administrative review of stainless steel sheet and strip in coils from Italy.
March 5, 2002.
Juanita H. Chen at 202-482-0409, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, N.W., Washington, DC 20230.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 C.F.R. Part 351 (2001).
On July 2, 2001, the Department published a notice of opportunity to
Pursuant to section 751(a)(3)(A) of the Act, and section 351.213(h)(2) of the Department's regulations, the Department may extend the deadline for completion of the preliminary results of a review if it determines that it is not practicable to complete the preliminary results within the statutory time limit of 245 days from the date on which the review was initiated. Due to the complexity of issues present in this administrative review, such as home market affiliated downstream sales, constructed export price versus export price, selling expenses, and complicated cost accounting issues, the Department has determined that it is not practicable to complete this review within the original time period provided in section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations. Therefore, we are extending the due date for the preliminary results by 90 days, until no later than July 1, 2002. The final results continue to be due 120 days after the publication of the preliminary results.
Import Administration, International Trade Administration, Department of Commerce; Office of Insular Affairs, Department of the Interior.
Notice.
This action allocates calendar year 2002 duty-exemptions for watch producers located in the Virgin Islands pursuant to Pub. L. 97-446, as amended by Pub. L. 103-465 (“the Act”).
Faye Robinson, (202) 482-3526.
Pursuant to the Act, the Departments of the Interior and Commerce (the Departments) share responsibility for the allocation of duty exemptions among watch assembly firms in the United States insular possessions and the Northern Mariana Islands. In accordance with §303.3(a) of the regulations (15 CFR 303.3(a)), the total quantity of duty-free insular watches and watch movements for calendar year 2002 is 1,866,000 units for the Virgin Islands (65 FR 8048, February 17, 2000).
The criteria for the calculation of the calendar year 2002 duty-exemption allocations among insular producers are set forth in §303.14 of the regulations (15 CFR 303.14).
The Departments have verified and adjusted the data submitted on application form ITA-334P by Virgin Islands producers and inspected their current operations in accordance with § 303.5 of the regulations (15 CFR 303.5).
In calendar year 2001 the Virgin Islands watch assembly firms shipped 508,506 watches and watch movements into the customs territory of the United States under the Act. The dollar amount of creditable corporate income taxes paid by Virgin Islands producers during calendar year 2001 plus the creditable wages paid by the industry during calendar year 2001 to residents of the territory was $3,058,590.
There are no producers in Guam, American Samoa or the Northern Mariana Islands.
The calendar year 2002 Virgin Islands annual allocations, based on the data verified by the Departments, are as follows:
The balance of the units allocated to the Virgin Islands is available for new entrants into the program or producers who request a supplement to their allocation.
National Institute of Standards and Technology, Commerce.
Notice of public meeting.
The National Institute of Standards and Technology (NIST) invites interested parties to attend the Hampton University's Second Annual Technology Conference co-sponsored by the Advanced Technology Program (ATP) and Hampton University, Hampton, Virginia. ATP provides cost-shared funding to industry to accelerate the development of challenging, high-risk, innovative technologies that promise broad-based economic benefits for the nation.
The Technology Conference will be held on April 3, 2002, from 6:00 p.m. to 8:30 p.m. The Meeting will continue on April 4, 2002, from 8:00 a.m. to 8:00 p.m. and on April 5, 2002, from 8:00 a.m. to 1:30 p.m.
The meeting will be held at the Hampton University Student Center, Hampton, Virginia.
For further information or registration questions, contact Ms. Adrienna Davis at (757) 728-6927 or email at
The ATP statute originated in the Omnibus Trade and Competitiveness Act of 1988 (Public Law 100-418, 15 U.S.C. 278n), and was amended by the American Technology Preeminence Act of 1991 (Public Law 102-245). This law has been codified at 15 U.S.C. 278n. The ATP implementing regulations are published at 15 CFR part 295, as amended. The ATP is a competitive cost-sharing program designed for the Federal government to work in partnership with industry, universities, and states to accelerate the development and broad dissemination of challenging, high-risk technologies that offer the potential for significant commercial payoffs and widespread benefits for the nation.
The Technology Conference title, “Are You Sure, It is Secure?” and “How to Secure Your Share of Federal Funding,” will consist of three Tracks. The Advanced Technology Program will host a robust track on Advanced Technology Development and Commercialization Opportunities. This track will focus on information about the over $1 billion of funding opportunities available for advanced technology research from Federal government agencies. Sessions will emphasize and highlight minority businesses' and universities' participation in these programs. Hampton University will host two tracks, the first “Cyber Crimes: An In-depth Understanding”, and the second, “Information Security and Assurance.”
Information on the meeting agenda and the registration requirements can be found at the ATP website at
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”) has submitted a public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995, Pub. L. 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, William H. Ward, at (202) 606-5000, extension 375. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (800) 833-3722 between the hours of 9:00 a.m. and 5:00 p.m. Eastern Standard Time, Monday through Friday.
Comments should be sent to the Office of Information and Regulatory Affairs, Attn: Ms. Brenda Aguilar, OMB Desk Officer for the Corporation for National and Community Service, Office of Management and Budget, Room 10235, Washington, DC, 20503, (202) 395-7316, within 30 days from the date of publication in this
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including whether the information will have practical utility;
• Evaluate the accuracy of the Corporation's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information 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,
One of the goals of the AmeriCorps program is furthering the educational opportunities of its members. The AmeriCorps Education Award provides up to $4,725 to help a member pay for further education or to repay student loans. Part-time members get a pro-rated portion of that amount. (42 U.S.C. 12601
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Department of Energy.
Notice of open meeting.
This notice announces a meeting of the High Energy Physics Advisory Panel (HEPAP). Federal
Friday, April 26, 2002; 9 a.m. to 6 p.m. and Saturday, April 27, 2002; 8:30 a.m. to 4 p.m.
Fermi National Accelerator Laboratory, Wilson Hall, First Floor 1 North and 1 West, Batavia, Illinois 60510.
Glen Crawford, Executive Secretary; High Energy Physics Advisory Panel; U.S. Department of Energy; 19901 Germantown Road; Germantown, Maryland 20874-1290; Telephone: 301-903-9458.
• Discussion of Department of Energy High Energy Physics Programs.
• Discussion of National Science Foundation Elementary Particle Physics Program.
• Discussion of High Energy Physics University Programs.
• Reports on and Discussion of U.S. Large Hadron Collider Activities.
• Reports on and Discussions of Topics of General Interest in High Energy Physics.
• Public Comment (10-minute rule).
Department of Energy.
Notice of meetings.
The Industry Advisory Board (IAB) to the International Energy Agency (IEA) will meet March 12-15, 2002, at the headquarters of the IEA in Paris, France in connection with the IEA's Disruption Simulation Exercise Program (ERE2).
Samuel M. Bradley, Assistant General Counsel for International and National Security Programs, Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, 202-586-6738.
In accordance with section 252(c)(1)(A)(i) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(i)) (EPCA), the following notice of meetings is provided:
A meeting of the Industry Advisory Board (IAB) to the International Energy Agency (IEA) will be held at the headquarters of the IEA, 9, rue de la Fédération, Paris, France, on March 12, 2002, beginning at approximately 2:15 p.m. The purpose of this meeting is to permit attendance by representatives of U.S. company members of the IAB at an emergency response procedures training session hosted by the IEA's Standing Group on Emergency Questions (SEQ), which is scheduled to be held at the IEA on March 12, 2002. The Agenda for the meeting is under the control of the IEA. It is expected the IEA will adopt the following Agenda:
1. Welcome to the IEA.
2. Objectives of the Session.
3. Introduction to the IEA Emergency System—Background and Objectives, Emergency Response Measures, Organization and Roles.
4. Activation of IEA Measures—A Step by Step Process—Coordinated Emergency Response Measures (CERM) procedures and CERM situations, Application of International Energy Program (IEP)/Emergency Management Manual Procedures.
5. IEA Energy Statistics and Emergency Data System—Structure and Contents of Emergency Questionnaires, and Reporting Relationships.
6. IEA Information Technologies—Structure and Capabilities of IEA Information Technologies.
7. Questions & Answers.
8. Summary of the Training Session.
A meeting involving members of the IAB in connection with the IEA's Disruption Simulation Exercise Program (ERE2) will be held on March 13 and 14, 2002, at the headquarters of the IEA beginning at approximately 9 a.m., and including a preparatory encounter among company representatives from approximately 8:45 a.m. to 9 a.m. The purpose of this meeting is to train IEA delegates in the use of IEA emergency response procedures by reacting to a hypothetical oil supply disruption scenario. The Agenda for the meeting is under the control of the IEA. It is expected the IEA will adopt the following Agenda:
1. Introduction by SEQ Chairman and IEA Oil Markets and Emergency Preparedness (OME) Director.
2. Introduction of Simulation Facilitator, Market Group, Media Group, and Design Group.
3. Logistics are described by Head of Emergency Plans and Preparations Division (EPPD).
4. Rules are defined and simulation is initiated by Facilitator.
5. Before the announcement of the situation, the Market Group will describe and discuss the oil market context of the session.
6. The Stage 1 event is announced.
7. A brief analysis of the market impact by the Market Group.
8. The Media Group requests some on-the-spot answers.
1. Respond to specific questions on market analysis and IEA decision-making.
2. Report on what action(s) if any the IEA should take at this point.
3. Submit a brief report to the Facilitator.
1. Presentation of four team reports (more if sufficiently diverse).
2. Reactions and questions from the Media Group to each team report presentation.
3. Reaction from Market Group on fundamentals following all team reports.
4. Discussions on the recommendations.
5. Chairman's Summary of the Stage 1 Session.
1. Introduction by SEQ Chairman and OME Director.
2. Simulation is initiated by Facilitator.
3. Before the announcement of the situation, the Market Group will describe and discuss the oil market context of the session.
4. The Stage 2 event is announced.
5. The Market Group provides a brief analysis of the supply demand impact.
6. The Media Group requests some on-the-spot answers.
1. Respond to specific questions on market analysis and IEA decision-making.
2. Report on what action(s) the IEA should take at this point.
3. Submit a brief report to the Facilitator.
1. Presentation of four team reports (more if sufficiently diverse).
2. Reactions and questions from the Media Group to each team report presentation.
3. Reaction from Market Group on fundamentals following all team reports.
4. Discussions on the recommendations.
5. Review and critique of the first day of the exercise.
6. Chairman's summary.
1. Introduction by SEQ Chairman.
2. Simulation is initiated by Facilitator.
3. Before the announcement of the situation, the Market Group will describe and discuss the oil market context of the session.
4. The Stage 3 event is announced.
5. The Market Group provides a brief analysis of the supply demand impact.
6. The Media Group requests some on-the-spot answers.
1. Respond to specific questions on market analysis and IEA decision-making.
2. Report on what action(s) if any the IEA should take at this point.
3. Submit a brief report to the Facilitator.
1. Presentation of four team reports (more if sufficiently diverse).
2. Reactions and questions from the Media Group to each team report presentation.
3. Reaction from Market Group on fundamentals following all team reports.
4. Discussions on the recommendations.
5. Chairman's summary of the session.
A meeting of the IAB will be held on March 15, 2002, at the IEA beginning at approximately 9 a.m. The purpose of this meeting is to permit attendance by representatives of U.S. company members of the IAB at a meeting of the IEA's SEQ, which is scheduled to be held on that date, including a preparatory encounter among company representatives from approximately 9 a.m. to 9:15 a.m. The Agenda for the meeting is under the control of the IEA. It is expected the IEA will adopt the following Agenda:
1. Adoption of the Agenda.
2. Approval of the Summary Record of the 103rd Meeting.
3. SEQ Program of Work for 2003-2004_2003-2004 Work Program of the SEQ—First Elements.
4. Update on Compliance with IEP Stockholding Commitments.
5. Policy and Legislative Developments in Member Countries—Update on Korea's Accession to the IEA.
6. Report on Developments in Non-Member Countries and International Organizations.
7. Emergency Response Training and Simulation Exercise_Initial Report on the Emergency Response Training and Simulation Exercise 2002 (ERE2), Phase 3 and Data Workshop Issues.
8. Current IAB Activities—Oral Report by the IAB Chairman.
9. Emergency Response Procedures—Transition from CERM to IEP Measures.
10. Questionnaire on IEA Oil Stock Drawdown Capacity.
11. Joint SEQ/Standing Group on Long-Term Cooperation (SLT) Seminar_Conclusions from Joint SEQ/SLT Inter-fuels Workshop, Results from the Fuel-Switchng Survey.
12. Emergency Response Reviews of IEA Countries_Tentative Schedule of Emergency Response Reviews for 2002-2003.
13. Emergency Data and Related Issues for Information.
Emergency Reserve and Net Import Situation of IEA Countries on January 1, 2001.
Emergency Reserve Situation of IEA Candidate Countries on January 1, 2001.
Monthly Oil Statistics December 2001.
Base Period Final Consumption 1Quarter(Q)2000/4Q2001.
Quarterly Oil Forecast—1Q2002.
Reissue of Emergency Mangement Manual.
Update of Emergency Contacts List.
14. Other Business_Dates of Next Meetings—June 25-27, 2002 and November 12-15 (or 19-22), 2002.
As provided in section 252(c)(1)(A)(ii) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(ii)), these meetings are open only to representatives of members of the IAB and their counsel, representatives of members of the SEQ, representatives of the Departments of Energy, Justice, and State, the Federal Trade Commission, the General Accounting Office, Committees of Congress, the IEA, and the European Commission, and invitees of the IAB, the SEQ, or the IEA.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the American Statistical Association Committee on Energy Statistics, a utilized Federal Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Mr. William I. Weinig, EI-70, Committee Liaison, Energy Information Administration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, Telephone: (202) 287-1709. Alternately, Mr. Weinig may be contacted by email at
1. Weekly Natural Gas Storage Survey.
2. Human Capital Management.
3. Natural Gas Data Quality.
4. Managing Risk in Energy Markets (Room 5E-069).
5. Public Questions and Comments.
6. Redesign of the Commercial Buildings Energy Consumption Survey (CBECS).
7. Extension of the National Energy Modeling System (NEMS) to 2025 (Room 5E-069).
8. System for the Analysis of Global Energy Markets (SAGE).
9. Implementation of New Electric Power Data System.
10. Public Questions and Comments.
1. Energy Situation Analysis Report (ESAR).
2. Information Quality Guidelines.
3. Improve the Quality of the Annual Nonutility Data.
4. Public Questions and Comments.
Take notice that on December 21, 2001, ANR Pipeline Company (ANR) made a filing in compliance with three orders issued by the Commission on November 21, 2001, in the above referenced dockets.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before March 6, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that on February 25, 2002, Constellation Power Source, Inc. tendered a filing with the Federal Energy Regulatory Commission (Commission), a Complaint in which it requests that the Commission find that the California Power Exchange Corporation (CalPX) should release three letters of credit that Constellation had provided as a condition for participating in the CalPX's now-defunct markets.
Any person desiring to be heard or to protest this filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions or protests must be filed on or before March 18, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Answers to the complaint shall also be due on or before March 18, 2002. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that on February 22, 2002, Gulf South Pipeline Company, LP (Gulf South) tendered for filing contracts between Gulf South and the following companies for disclosure of recently negotiated rate transactions. As shown on the contracts, Gulf South requests an effective date of April 1, 2002.
Gulf South states that it has served copies of this filing upon all parties on the official service list created by the Secretary in this proceeding
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
In the Commission's order issued on February 1, 2002,
Take notice that the technical conference will be held on Tuesday, March 19, 2002, at 10:30 a.m., in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
All interested parties and Staff are permitted to attend.
Take notice that on February 25, 2002, PG&E National Energy Group, PG&E Generating, US Gen New England, Inc., and PG&E Energy Trading-Power, L.P. (collectively referred to PG&E National Energy Group Companies) filed a Complaint Requesting Fast Track Processing against ISO New England Inc. (ISO-NE) requesting that the Federal Energy Regulatory Commission immediately strike the January 25, 2002 action by ISO-NE lowering the New England Power Pool (NEPOOL) Objective Capability. The Complaint also requests the Commission to direct NEPOOL to include the Hydro Quebec Interconnection in the NEPOOL Transmission Facilities, and roll the costs of supporting the Hydro Quebec Interconnection into the NEPOOL Open Access Transmission Tariff, or any future tariff for a Northeast Regional Transmission Organization.
Copies of the complaint were served via facsimile and courier to representatives of ISO-NE, electronically to NEPOOL Counsel for circulation to NEPOOL Participants, and by overnight delivery to the affected state regulatory agencies.
Any person desiring to be heard or to protest this filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions or protests must be filed on or before March 18, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Answers to the complaint shall also be due on or before March 18, 2002. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that on February 22, 2002, Tennessee Gas Pipeline Company (Tennessee), tendered for filing as part
Tennessee states that the revised tariff sheet is being filed in compliance with the March 10, 1998 Stipulation and Agreement filed in Docket No. RP97-149,
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that on February 21, 2002, Viking Gas Transmission Company (Viking) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1 the following tariff sheet to become effective April 1, 2002:
Viking states that the purpose of this filing is to make Viking's annual adjustment to its Load Management Cost Reconciliation Adjustment in accordance with Section 154.403 of the Commission's Rules and Regulations, 18 CFR 154.403 and Section 27 of the General Terms and Conditions of Viking's FERC Gas Tariff.
Viking states that copies of the filing have been mailed to all of its jurisdictional customers and to affected state regulatory commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for license for the Woronoco Hydroelectric Project, located on the Westfield River in Hampden County, Massachusetts. Commission staff has prepared an Environmental Assessment (EA) for the project.
The EA contains the staff's analysis of the potential environmental impacts of the project, and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the EA is available for review at the Commission's Public Reference Room, located at 888 First Street, NE, Washington, DC 20426, or by calling (202) 208-1371. The EA may be viewed on the Web at
Any comments (an original and 8 copies) should be filed within 30 days from the date of this notice and should be addressed to Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Comments may be filed electronically via the internet in lieu of paper [see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-filing” link. For further information, contact Allan E. Creamer at (202) 219-0365 or
Take notice that the following hydroelectric application, including an applicant prepared draft environmental assessment, have been filed with the Commission and are available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commissions, 888 First Street, NE., Washington, DC 20426. Comments, protests and interventions may be filed electronically via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person that is on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. The license application has been accepted for filing, but is not ready for environmental analysis. When the license application is ready for environmental analysis, a public notice will be issued soliciting comments, recommendations, terms and conditions, and prescriptions.
l.
The Winton Development consists of the following existing facilities: (1) The Winton Dam comprising: (a) A 227-foot-long earth dike; (b) a 29-foot-high, 176-foot-long spillway section; (c) an 84-foot-long Taintor gate and log sluice section; (d) an 80-foot-long stop-log gate section; (e) an 111-foot-long and a 120-foot-long non-over-flow section; (f) a 176-foot-long forebay; and (g) a 1,250-foot-long earth dike; (3) a 2,982-acre reservoir comprising the Garden, Farm, South Farm, and Friday Lakes at a normal water surface elevation of 1,385.67 feet USGS; (4) two 215-foot-long, 9-foot-diameter underground penstocks extending to; (5) a powerhouse containing two generating units with a total installed capacity of 4,000 kW; and (6) other appurtenances.
The Birch Lake Reservoir Development consists of: (1) A 7-foot high, 227-foot-long dam comprising; (a) a 72-foot-long Taintor gate section; and (b) an 85-foot-long sluice gate section; and (2) the 7,624-acre Birch Lake reservoir at normal water surface elevation of 1,420.5 feet USGS. This development provides water storage for the Winton Development.
m. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at http://www.ferc.gov using the “RIMS” link, select “Docket#” and follow the instructions (call 202-208-2222 for assistance). A copy is also available for inspection and reproduction by contacting the applicant identified in item h above.
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received at the Commission on or before the specified deadline date.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing pertains; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application.
The Office of Energy Projects is initiating the second phase of its Better Stakeholder Involvement Series. These workshops will explore ways to help make the pre-filing stakeholder involvement work. They stem from the staff's report entitled: “Ideas For Better Stakeholder Involvement In The Interstate Natural Gas Pipeline Planning Pre-Filing Process' which was a product of the seminars held last year and the latter part of 2000.
We are again inviting interstate natural gas companies; Federal, state and local agencies; landowners and other non-governmental organizations with a continuing interest in developing successful strategies for involving people in the pre-filing process. The purpose of these workshops is to discuss how stakeholders are implementing the ideas outlined in the staff report. We will not discuss the merits of any pending or planned pipeline projects.
Please join us as we continue to explore and develop ways to enhance the project design and streamline the regulatory process. In a series of panel discussions stakeholders will be sharing their experiences in interactive sessions. Presentations will be made by the staff of the Commission's Office of Energy Projects, various Federal and state agencies, natural gas company representatives, and private landowners.
The objective will be to better define the pre-filing actions. This will aid in identifying and resolving issues, improving the quality of applications, and achieving quicker approval by the Commission for projects required by the public convenience and necessity. Case studies which can be used as examples will be highlighted.
The workshop will be held at the Atlanta Capitol Plaza, 450 Capitol Avenue, SW, Atlanta, Georgia 30312, phone: 404-591-2000, fax: 404-591-1999 Atlanta, Georgia, from 9:15 a.m. to 12:30 p.m. A preliminary agenda and directions to the hotel are enclosed.
If you plan to attend or have suggestions for the agenda, please respond by March 29, 2002 via facsimile to Roberta Coulter at 202/219-2722, or you may email our team at: gasoutreach@ferc.gov. Please include in the response the names, addresses, and telephone numbers of all attendees from your organization.
To help us enhance our panel discussions, please consider, and forward to us, issues and/or questions you would like to have addressed at the meetings. If you have any questions, you may contact any of the staff listed below:
• How can you develop company-wide commitment to stakeholder outreach?
• How do you implement the “corporate commitment?”
• Agency experiences with early involvement in a project.
• What went well and what might be improved?
• How can it work for us?
• Why should a landowner be involved?
• Experience with specific projects:
1. What went well?
2. Where there were problems with implementation?
3. How to get around the barriers.
• Examples of resolving issues.
• Implementation Strategies.
Environmental Protection Agency (EPA).
Notices.
This document announces the Office of Management and Budget's (OMB) responses to Agency clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's
For a copy of the ICR contact Susan Auby at EPA by phone at (202) 260-4901, by e-mail at
EPA ICR No. 1367.06; Regulation of Fuels and Fuel Additives: Gasoline Volatility: Reporting Requirements in 40 CFR part 80.27; was approved 12/17/2001; OMB No. 2060-0178; expires 12/31/2004.
EPA ICR No. 1831.02, NESHAP for Ferroalloys Production in 40 CFR part 63 subpart XXX; was approved 12/17/2001; OMB No. 2060-0391; expires 12/31/2004.
EPA ICR No. 1800.02; Information Requirements for Locomotives and Locomotive Engines in 40 CFR part 92; was approved 12/14/2001; OMB No. 2060-0392; expires 12/31/2004.
EPA ICR No. 1805.03; National Emission Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills; in 40 CFR part 63, subpart MM; was approved 12/14/2001; OMB No. 2060-0377; expires 12/31/2004.
EPA ICR No. 1573.07; Part B Permit Application, Permit Modifications, and Special Permits (Corrective Action Management Proposed Rule); in 40 CFR parts 264 and 270; was approved 12/12/2001; OMB No. 2050-0009; expires 03/31/2003.
EPA ICR No. 1935.01; Standardized Permit for RCRA Hazardous Waste; in 40 CFR parts 267 and 270, 264; was approved 12/12/2001; OMB No. 2050-0182; expires 12/31/2004.
EPA ICR No. 1669.03; Lead-based Pre-Renovation Information Dissemination—TSCA Sec. 406(b); in 40 CFR part 745, subpart E; was approved 12/13/2001; OMB No. 2070-0158; expires 12/31/2004.
EPA ICR No. 0938; General Administrative Requirement for Assistant Programs (Lobbying and Litigation Certification Amendment); was approved 12/13/2001; OMB No. 2030-0020; expires 12/31/2002.
EPA ICR No. 0309.10; Registration of Fuels and Fuel Additives: Requirements for Manufacturers in 40 CFR part 79; was approved 12/05/2001; OMB No. 2060-0150; expires 01/31/2004.
EPA ICR No. 1692.04; NESHAP for Petroleum Refineries in 40 CFR Part 63, subpart CC; was approved 12/05/2001; OMB No. 2060-0340; expires 12/05/2004.
EPA ICR No. 1591.13; Reformulated Gasoline and Conventional Gasoline; Requirements for Parties in the Gasoline Distribution Network; in 40 CFR part 80, subpart D,E,F; was approved 12/05/2001; OMB No. 2060-0277; expires 04/30/2004.
EPA ICR No. 0328.08; Spill Prevention, Control and Countermeasures (SPCC) Plans; in 40 CFR part 112; was approved 12/19/2001; OMB No. 2050-0021; expires 06/30/2002.
EPA ICR No. 1503.04; Data Acquisition for Registration; was approved 12/21/2001; OMB No. 2070-0122; expires 12/31/2004.
EPA ICR No. 1432.20; Recordkeeping and Periodic Reporting of the Production, Import, Recycling, Destruction, Transhipment and Feedstock Use of Ozone-Depleting Substances; OMB No. 2060-0170; on 12/14/2001 OMB extended the expiration date through 01/30/2002.
EPA ICR No. 0783.40; Motor Vehicle Emission Standards and Emission Credits Provisions; in 40 CFR part 86; OMB No. 2060-0104; on 12/18/2001 OMB extended the expiration date through 02/28/2002.
EPA ICR No. 1665.05; Final Rule for Elimination or Special Treatment for Category of Confidential Business Information; in 40 CFR part 2, subpart B; OMB No. 2020-0003; this ICR was withdrawn from OMB review.
EPA ICR No. 1963.01; NESHAP for Source Categories: Generic Maximum Achievable Control Technology Standards; on 12/05/2001 OMB filed comment.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before April 4, 2002.
Send comments, referencing EPA ICR No.1679.04 and OMB Control No. 2060-00289, to the following addresses: Susan Auby, U.S. Environmental Protection Agency, Collection Strategies Division (Mail Code 2822), 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0001; and to Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
For a copy of the ICR contact Susan Auby at EPA by phone at (202) 260-4901, by e-mail at
Under sections 40 CFR part 63, subpart Y, information collection is mandatory, not voluntary. All information submitted to EPA for which a claim of confidentiality is made will be safeguarded according to the Agency policies set forth in 40 CFR part 2, subpart B—Confidentiality of Business Information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. The
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the addresses listed above. Please refer to EPA ICR No.1679.04 and OMB Control No. 2060-0289 in any correspondence.
Environmental Protection Agency.
Notice of proposed settlement agreement; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended, 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement in American Foundrymen's Society, et al. v. EPA, No. 00-1208 (D.C. Circuit). This case concerns the National Emission Standard for Hazardous Air Pollutants for Secondary Aluminum Production, 40 CFR part 63, subpart RRR, published at 65 FR 15710 on March 23, 2000. The proposed settlement agreement was lodged with the United States Court of Appeals for the District of Columbia Circuit on January 11, 2002.
Written comments on the proposed settlement agreement must be received by April 4, 2002.
Written comments should be sent to Timothy D. Backstrom, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460. A copy of the proposed settlement agreement is available from Phyllis J. Cochran, (202) 564-7606. A copy of the proposed settlement agreement was also lodged in the case with the Clerk of the United States Court of Appeals for the District of Columbia Circuit on January 11, 2002.
EPA promulgated the National Emission Standard for Hazardous Air Pollutants for Secondary Aluminum Production, 40 CFR part 63, subpart RRR, on March 23, 2000. 65 FR 15170. Because aluminum die casters and aluminum foundries may conduct some of the same operations as other secondary aluminum producers, Subpart RRR was intended to apply to those die casters and foundries which conduct such operations.
During the original rulemaking, representatives of the aluminum die casters and foundries argued that they are not really secondary aluminum producers and should therefore be wholly exempt from the rule. In response, EPA agreed that not all die casters and foundries engage in secondary aluminum operations, and that those who do not should not be subject to the rule. EPA also agreed during the rulemaking to permit die casters and foundries to melt contaminated internal scrap without thereby becoming subject to the standard. However, industry representatives insisted that too many facilities would remain subject to the standard. Immediately prior to promulgation, EPA agreed that it would withdraw Subpart RRR as applied to aluminum die casters and foundries and develop a separate MACT standard for these facilities.
After promulgation of the rule, the Petitioners the American Foundrymen's Society, the North American Die Casting Association, and the Non-Ferrous Founders' Society (“Petitioners”) petitioned for judicial review. The parties then negotiated an initial settlement agreement establishing a process to effectuate the commitment by EPA to develop a new MACT standard for these facilities, which was lodged with the D.C. Circuit on July 31, 2000. In that first settlement, EPA agreed that it would stay the current standard for these facilities, collect comprehensive data to support an alternate standard, and then promulgate an alternate standard. However, while collecting information to support the new standard, the parties began exploring the possibility of a new settlement agreement which would be based instead on amendments of the current standard.
In the new settlement, EPA has agreed to propose changes in the present standard which would permit customer returns to be treated as internal scrap, and would permit facilities operated by the same company at different locations to be aggregated for purposes of determining what is internal scrap. Some other technical changes intended to eliminate potential anomalies in applicability determinations will also be proposed. The settlement requires the EPA Administrator to sign a proposed rule incorporating these changes by May
For a period of thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the proposed settlement agreement from persons who were not named as parties or interveners to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determine, based on any comment which may be submitted, that consent to the settlement agreement should be withdrawn, the terms of the agreement will be affirmed.
Environmental Protection Agency.
Notice of teleconference meeting.
The Environmental Protection Agency's Environmental Laboratory Advisory Board (ELAB) will have a teleconference meeting on March 20, 2002, at 11 A.M. EST to discuss the ideas and views presented at the previous ELAB meetings, as well as new business. Items to be discussed include: (1) Update on recommendations to restructure the National Environmental Laboratory Accreditation Conference (NELAC) to allow it to better serve the future needs of EPA, the States, and the private sector; (2) approaches to facilitate NELAP accreditation of smaller environmental laboratories; (3) review of ELAB recommendations to EPA; and (4) the reports from ELAB work groups. ELAB is soliciting input from the public on these and other issues related to the National Environmental Laboratory Accreditation Program (NELAP) and the NELAC standards. Written comments on NELAP laboratory accreditation and the NELAC standards are encouraged and should be sent to Mr. Edward Kantor, DFO, PO Box 93478, Las Vegas NV 89193, faxed to (702) 798-2261, or emailed to
Environmental Protection Agency.
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given by the U.S. Environmental Protection Agency (“EPA”), Region II, of a proposed administrative agreement pursuant to section 122(h) of CERCLA, 42 U.S.C. 9622(h), for recovery of past response costs concerning the Carroll & Dubies Site (“Site”) located in the Town of Deer Park, Orange County, New York. The settlement requires the settling parties, Kolmar Laboratories, Inc. and Wichhen Products, Inc. to pay $75,000 in reimbursement of EPA's past response costs at the Site. The settlement includes a covenant not to sue the settling parties pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a), in exchange for their payment of monies. For thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the settlement. EPA will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate that the proposed settlement is inappropriate, improper or inadequate. EPA's response to any comments received will be available for public inspection at EPA Region II, 290 Broadway, New York, New York 10007-1866.
Comments must be submitted on or before April 4, 2002.
The proposed settlement is available for public inspection at EPA Region II offices at 290 Broadway, New York, New York 10007-1866. Comments should reference the Carroll & Dubies Site located in the Town of Deer Park, Orange County, New York, Index No. CERCLA-02-2002-2009. To request a copy of the proposed settlement agreement, please contact the individual identified below.
Sharon E. Kivowitz, Assistant Regional Counsel, New York/Caribbean Superfund Branch, Office of Regional Counsel, U.S. Environmental Protection Agency, 17th Floor, 290 Broadway, New York, New York 10007-1866. Telephone: 212-637-3183.
Federal Communications Commission.
Notice of meeting correction.
The Federal Communications Commission published a document in the
Robert Kimball at 202-418-2339 or TTY 202-418-2989.
In the
Friday, March 22, 2002 at 10 a.m. to 1 p.m.
Federal Communications Commission.
Notice and request for comments.
The Federal Emergency Management Agency has submitted the following proposed information collection to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507).
Estimated Time per Respondent: FEMA Form 81-92, 2.4 hours and FEMA Form 81-92A, 2.4 hours.
Requests for additional information or copies of the information collection should be made to Muriel B. Anderson, Chief, Records Management Section, Program Services and Systems Branch, Facilities Management and Services Division, Administration and Resource Planning Directorate, Federal Emergency Management Agency, 500 C Street, SW, Room 316, Washington, DC 20472, telephone number (202) 646-2625 or facsimile number (202) 646-3347, or e-mail
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 1, 2002.
Board of Governors of the Federal Reserve System, February 28, 2002.
Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS) (formerly the Health Care Financing Administration).
Notice of new system of records (SOR).
In accordance with the requirements of the Privacy Act of 1974, we are proposing to establish a new system of records. The proposed system is titled “Claims Payment System For Medicare's “Healthy Aging” Demonstration Project (CPS-HA), HHS/CMS/CBC, System No. 09-70-0539.” CMS proposes to establish a new system of records containing enrollment and claims payment information plus research-related survey data, in support of a short-term demonstration project testing new potential benefits in the Medicare program.
The primary purpose of the system of records is to manage and maintain information needed to pay Medicare claims under the research demonstration program known as the Healthy Aging project (HA) including its component known as the Medicare Stop Smoking Program (MSSP). The system of records will enable CMS to: enroll and communicate with eligible Medicare beneficiaries who volunteer to participate in HA initiatives, communicate with clinicians and other providers and suppliers who submit claims payable under HA demonstrations, review submitted claims and pay those conforming to applicable payment criteria and federal law, and develop, maintain, and analyze research information showing the
CMS filed a new system report with the Chair of the House Committee on Government Reform and Oversight, the Chair of the Senate Committee on Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on February 25, 2002. In any event, we will not disclose any information under a routine use until 40 days after publication. We may defer implementation of this system of records or one or more of the routine use statements listed below if we receive comments that persuade us to defer implementation.
The public should address comments to: Director, Division of Data Liaison and Distribution (DDLD), CMS, Room N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9 a.m.-3 p.m., eastern time zone.
James Coan, Division of Health Promotion and Disease Prevention, Center for Beneficiary Choices, CMS, Mailstop S3-02-01, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. The telephone number is (410) 786-9168.
The authority to conduct the demonstration project for which the system of records is needed is section 402(a) of Public Law 90-248, as amended by section 222(b)(2) of Public Law 92-603, 42 U.S.C. 1395b-1(a)
The CPS-HA includes the Medicare Health Insurance Claim (HIC) Number, sex, race, age, zip code, state and county. It also includes claims information related to HA claims, answers to enrollment questionnaires and other information needed to confirm a beneficiary's eligibility for enrollment and ongoing participation in the demonstration, and other survey and research information needed to pay claims, administer the HA program, and develop research reports on the study's findings.
The Privacy Act permits us to disclose information without an individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such disclosure of data is known as a “routine use.” The government will only release CPS-HA information that can be associated with an individual patient as provided for under “Section III. Entities Who May Receive Disclosures Under Routine Use.” Both identifiable and non-identifiable data may be disclosed under a routine use. Identifiable data includes individual records with CPS-HA information and identifiers. Non-identifiable data includes individual records with CPS-HA information and masked identifiers or CPS-HA information with identifiers stripped out of the file.
We will only disclose the minimum personal data necessary to achieve the purpose of the CPS-HA system. CMS has the following policies and procedures concerning disclosures of information that will be maintained in the system. In general, disclosure of information from the SOR will be approved only for the minimum information necessary to accomplish the purpose of the disclosure after CMS:
1. Determines that the use or disclosure is consistent with the reason that the data is being collected;
2. Determines that:
a. The purpose for which the disclosure is to be made can only be accomplished if the record is provided in individually identifiable form;
b. The purpose for which the disclosure is to be made is of sufficient importance to warrant the effect and/or risk on the privacy of the individual that additional exposure of the record might bring; and
c. There is a strong probability that the proposed use of the data would in fact accomplish the stated purpose(s).
3. Requires the information recipient to:
a. Establish administrative, technical, and physical safeguards to prevent unauthorized use of disclosure of the record;
b. Remove or destroy at the earliest time all patient-identifiable information; and
c. Agree to not use or disclose the information for any purpose other than the stated purpose under which the information was disclosed.
4. Determines that the data are valid and reliable.
These routine uses specify circumstances, in addition to those provided by statute in the Privacy Act of 1974, under which CMS may release information from the CPS-HA without the consent of the individual to whom such information pertains. Each proposed disclosure of information under these routine uses will be evaluated to ensure that the disclosure is legally permissible, including but not limited to ensuring that the purpose of the disclosure is compatible with the purpose for which the information was collected. We are proposing to establish the following routine use disclosures of information maintained in the system:
1. To agency contractors, or consultants who have been contracted by the agency to assist in the performance of a service related to this system of records and who need to have access to the records in order to perform the activity.
We contemplate disclosing information under this routine use only in situations in which CMS may enter into a contractual or similar agreement with a third party to assist in accomplishing agency business functions relating to purposes for this system of records.
CMS occasionally contracts out certain of its functions when doing so would contribute to effective and efficient operations. CMS must be able to give a contractor whatever information is necessary for the contractor to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor from using or disclosing the information for any purpose other than that described in the contract and requires the contractor to return or destroy all information at the completion of the contract.
2. To a Peer Review Organization (PRO) in order to assist the PRO to perform Title XI and Title XVIII functions relating to assessing and improving HA quality of care. PROs will work to implement quality improvement programs, provide consultation to CMS, its contractors, and to State agencies.
The PROs may use these data to support quality improvement activities and other PRO responsibilities as detailed in Title XI, sections 1151-1164.
3. To another Federal or State agency:
a. To contribute to the accuracy of CMS's proper payment of Medicare benefits,
b. To enable such agency to administer a Federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds, or
c. To improve the state survey process for investigation of complaints related to health and safety or quality of care and to implement a more outcome oriented survey and certification program.
Other Federal or State agencies in their administration of a Federal health program may require CPS-HA information in order to support evaluations and monitoring of quality of care for special populations or special care areas, including proper payment for services provided. Releases of information would be allowed if the proposed use(s) for the information proved compatible with the purpose for which CMS collects the information.
4. To an individual or organization for research on the utilization of inpatient rehabilitation services as well as evaluation or epidemiological projects related to the prevention of disease or disability, the restoration or maintenance of health, or for understanding and improving payment projects.
The CPS-HA data will provide an opportunity for comprehensive research, evaluation and epidemiological projects regarding HA patients. CMS anticipates that many researchers will have legitimate requests to use these data in projects that could ultimately improve the care provided to HA patients and the policy that governs the care.
5. To a Member of Congress or to a congressional staff member in response to an inquiry of the Congressional Office made at the written request of the constituent about whom the record is maintained.
Beneficiaries sometimes request the help of a Member of Congress in resolving some issue relating to a matter before CMS. The Member of Congress then writes CMS, and CMS must be able to give sufficient information to be responsive to the inquiry.
6. To the Department of Justice (DOJ), court or adjudicatory body when:
a. The agency or any component thereof, or
b. Any employee of the agency in his or her official capacity; or
c. Any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee, or
d. The United States Government;
Whenever CMS is involved in litigation, or occasionally when another party is involved in litigation and CMS's policies or operations could be affected by the outcome of the litigation, CMS would be able to disclose information to the DOJ, court or adjudicatory body involved. A determination would be made in each instance that, under the circumstances involved, the purposes served by the use of the information in the particular litigation is compatible with a purpose for which CMS collects the information.
7. To a CMS contractor (including, but not necessarily limited to fiscal intermediaries and carriers) that assists in the administration of a CMS-administered health benefits program, or to a grantee of a CMS-administered grant program, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such program.
We contemplate disclosing information under this routine use only in situations in which CMS may enter into a contractual relationship or grant with a third party to assist in accomplishing CMS functions relating to the purpose of combating fraud and abuse.
CMS occasionally contracts out certain of its functions and makes grants when doing so would contribute to effective and efficient operations. CMS must be able to give a contractor or grantee whatever information is necessary for the contractor or grantee to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor or grantee from using or disclosing the information for any purpose other than that described in the contract and requiring the contractor or grantee to return or destroy all information.
8. To another Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States (including any State or local governmental agency), that administers, or that has the authority to investigate potential fraud or abuse in, a health benefits program funded in whole or in part by Federal funds, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such programs.
Other agencies may require CPS-HA information for the purpose of combating fraud and abuse in such Federally funded programs. Releases of information would be allowed if the proposed use(s) for the information proved compatible with the purposes of collecting the information.
9. To insurance companies, third party administrators (TPA), employers, self-insurers, managed care organizations, other supplemental insurers, non-coordinating insurers, multiple employer trusts, group health plans (i.e., health maintenance organizations (HMO) or a competitive medical plan (CMP)) with a Medicare contract, or a Medicare-approved health care prepayment plan (HCPP), directly or through a contractor, and other groups providing protection for their enrollees. Information to be disclosed shall be limited to Medicare entitlement data. In order to receive the information, they must agree to:
a. Certify that the individual about whom the information is being provided is one of its insured or employees, or is insured and/or employed by another entity for whom they serve as a third party administrator; utilize the information solely for the purpose of processing the individual's insurance claims; and
b. Safeguard the confidentiality of the data and prevent unauthorized access.
Other insurers, CMP, HMO, and HCPP may require CPS-HA information in order to support evaluations and monitoring of Medicare claims information of beneficiaries, including proper payment for services provided.
In addition, our policy will be to prohibit release even of non-identifiable data, except pursuant to one of the routine uses, if there is a possibility that an individual can be identified through implicit deduction based on small cell sizes (instances where the patient population is so small that individuals who are familiar with the enrollees could, because of the small size, use this information to deduce the identity of the beneficiary).
This System of Records contains Protected Health Information as defined by the Department of Health and Human Services' regulation “Standards for Privacy of Individually Identifiable Health Information” (45 CFR parts 160 and 164, 65 FR 82462 as amended by 66 FR 12434). Disclosures of Protected Health Information authorized by these routine uses may only be made if, and as, permitted or required by the “Standards for Privacy of Individually Identifiable Health Information.”
The HHS CPS-HA system will conform to applicable law and policy governing the privacy and security of Federal automated information systems. These include but are not limited to: the Privacy Act of 1984, Computer Security Act of 1987, the Paperwork Reduction Act of 1995, the Clinger-Cohen Act of 1996, and OMB Circular A-130, Appendix III, “Security of Federal Automated Information Resources.” CMS has prepared a comprehensive system security plan as required by OMB Circular A-130, Appendix III. This plan conforms fully to guidance issued by the National Institute for Standards and Technology (NIST) in NIST Special Publication 800-18, “Guide for Developing Security Plans for Information Technology Systems.” Paragraphs A-C of this section highlight some of the specific methods that CMS is using to ensure the security of this system and the information within it.
Personnel having access to the system have been trained in Privacy Act requirements. Employees who maintain records in the system are instructed not to release any data until the intended recipient agrees to implement appropriate administrative, technical, procedural, and physical safeguards sufficient to protect the confidentiality of the data and to prevent unauthorized access to the data. Records are used in a designated work area and system location is attended at all times during working hours.
To ensure security of the data, the proper level of class user is assigned for each individual user level. This prevents unauthorized users from accessing and modifying critical data. The system database configuration includes five classes of database users:
• Database Administrator class owns the database objects (e.g., tables, triggers, indexes, stored procedures, packages) and has database administration privileges to these objects.
• Quality Control Administrator class has read and write access to key fields in the database;
• Quality Index Report Generator class has read-only access to all fields and tables;
• Policy Research class has query access to tables, but are not allowed to access confidential patient identification information; and
• Submitter class has read and write access to database objects, but no database administration privileges.
All server sites will implement the following minimum requirements to assist in reducing the exposure of computer equipment and thus achieve an optimum level of protection and security for the CMS system:
Access to all servers is to be controlled, with access limited to only those support personnel with a demonstrated need for access. Servers are to be kept in a locked room accessible only by specified management and system support personnel. Each server is to require a specific log-on process. All entrance doors are identified and marked. A log is kept of all personnel who were issued a security card, key and/or combination, which grants access to the room housing the server, and all visitors are escorted while in this room. All servers are housed in an area where appropriate environmental security controls are implemented, which include measures implemented to mitigate damage to Automated Information Systems (AIS) resources caused by fire, electricity, water and inadequate climate controls.
Protection applied to the workstations, servers and databases include:
• User Log-on—Authentication is to be performed by the Primary Domain Controller/Backup Domain Controller of the log-on domain.
• Workstation Names—Workstation naming conventions may be defined and implemented at the agency level.
• Hours of Operation—May be restricted by Windows NT. When activated all applicable processes will automatically shut down at a specific time and not be permitted to resume until the predetermined time. The appropriate hours of operation are to be determined and implemented at the agency level.
• Inactivity Lockout—Access to the NT workstation is to be automatically locked after a specified period of inactivity.
• Warnings—Legal notices and security warnings are to be displayed on all servers and workstations.
• Remote Access Security—Windows NT Remote Access Service (RAS) security handles resource access control. Access to NT resources is to be controlled for remote users in the same manner as local users, by utilizing Windows NT file and sharing permissions. Dial-in access can be granted or restricted on a user-by-user basis through the Windows NT RAS administration tool.
All automated systems must comply with Federal laws, guidance, and policies for information systems security. These include, but are not limited to: the Privacy Act of 1974; the Computer Security Act of 1987; OMB Circular A-130, revised; Information Resource Management (IRM) Circular #10; HHS Automated Information Systems Security Program; the CMS Information Systems Security Policy, Standards, and Guidelines Handbook; and other CMS systems security policies. Each automated information system should ensure a level of security commensurate with the level of sensitivity of the data, risk, and magnitude of the harm that may result from the loss, misuse, disclosure, or modification of the information contained in the system.
CMS proposes to establish this system in accordance with the principles and requirements of the Privacy Act and will collect, use, and disseminate information only as prescribed therein. Data in this system will be subject to the authorized releases in accordance with the routine uses identified in this system of records.
CMS will monitor the collection and reporting of CPS-HA data. CPS-HA
CMS will take precautionary measures (see item IV. above) to minimize the risks of unauthorized access to the records and the potential harm to individual privacy or other personal or property rights of patients whose data is maintained in the system. CMS will collect only that information necessary to perform the system's functions. In addition, CMS will make disclosure from the proposed system only with consent of the subject individual, or his/her legal representative, or in accordance with an applicable exception provision of the Privacy Act.
CMS, therefore, does not anticipate an unfavorable effect on individual privacy as a result of maintaining this system of records.
Claims Payment System For Medicare's “Healthy Aging” Demonstration Project (CPS-HA).
Level 3, Privacy Act Sensitive.
CMS Data Center, 7500 Security Boulevard, North Building, First Floor, Baltimore, Maryland 21244-1850 and CMS contractors and agents at various locations.
This system will contain claims and demographic information on Medicare beneficiaries who have volunteered to participate in Medicare's Healthy Aging program including specific demonstration projects such as the MSSP, as well as claims-related information for submissions from providers and suppliers providing services that are covered under Medicare exclusively within the HA program and its demonstration projects. The system will also retain research information such as enrollment questionnaires and survey data from participants in the program.
This system of records will contain demographic and claims-related information on Medicare beneficiaries who have elected to participate, as well as eligibility and enrollment data collected through voluntary surveys, payment information for providers and vendors submitting claims, and other information designed to support the enrollment, claims payment, and research reporting functions of the CPS-HA program.
The authority to conduct the demonstration project for which the system of records is needed is section 402(a)(1)(G) and (a)(2) of Public Law 90-248, as amended by section 222(b)(2) of Public Law 92-603, 42 U.S.C. 1395b-1(a)(1)(G) and (a)(2).
The primary purpose of the system of records is to manage and maintain information needed to pay Medicare claims under the research demonstration program known as the Healthy Aging project (HA) including its component known as the Medicare Stop Smoking Program (MSSP). The system of records will enable CMS to: Enroll and communicate with eligible Medicare beneficiaries who volunteer to participate in CPS-HA initiatives, communicate with clinicians and other providers and suppliers who submit claims payable under CPS-HA demonstrations, review submitted claims and pay those conforming to applicable payment criteria and federal law, and develop, maintain, and analyze research information showing the potential impact of CPS-HA interventions on the quality and cost of health care services in Medicare. Information retrieved from this system of records will also be disclosed to support regulatory, reimbursement, and policy functions performed within the agency or by a contractor or consultant; assist another Federal or State agency with information to enable such agency to administer a Federal health benefits program, or to enable such agency to fulfill a requirement of a Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds; support constituent requests made to a Congressional representative; support litigation involving the agency; facilitate research on the quality and effectiveness of care provided; and, combat fraud and abuse in certain health benefits programs.
These routine uses specify circumstances, in addition to those provided by statute in the Privacy Act of 1974, under which CMS may release information from the CPS-HA without the consent of the individual to whom such information pertains. Each proposed disclosure of information under these routine uses will be evaluated to ensure that the disclosure is legally permissible, including but not limited to ensuring that the purpose of the disclosure is compatible with the purpose for which the information was collected. In addition, our policy will be to prohibit release even of non-identifiable data, except pursuant to one of the routine uses, if there is a possibility that an individual can be identified through implicit deduction based on small cell sizes (instances where the patient population is so small that individuals who are familiar with the enrollees could, because of the small size, use this information to deduce the identity of the beneficiary). Be advised, this System of Records contains Protected Health Information as defined by the Department of Health and Human Services' regulation “Standards for Privacy of Individually Identifiable Health Information” (45 CFR parts 160 and 164, 65 FR 8462 as amended by 66 FR 12434). Disclosures of Protected Health Information authorized by these routine uses may only be made if, and as, permitted or required by the “Standards for Privacy of Individually Identifiable Health Information.”
1. To agency contractors or consultants who have been contracted by the agency to assist in the performance of a service related to this system of records and who need to have access to the records in order to perform the activity.
2. To a Peer Review Organization (PRO) in order to assist the PRO to perform Title XI and Title XVIII functions relating to assessing and improving quality of care. PROs will work to implement quality improvement programs, provide consultation to CMS, its contractors, and to State agencies.
3. To another Federal or State agency:
a. To contribute to the accuracy of CMS's proper payment of Medicare benefits,
b. To enable such agency to administer a Federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a Federal statute or regulation that implements a health benefits program
c. To improve the state survey process for investigation of complaints related to health and safety or quality of care and to implement a more outcome oriented survey and certification program.
4. To an individual or organization for research on the utilization of inpatient rehabilitation services as well as evaluation or epidemiological projects related to the prevention of disease or disability, or the restoration or maintenance of health epidemiological, or for understanding and improving payment projects.
5. To a member of Congress or to a congressional staff member in response to an inquiry of the Congressional Office made at the written request of the constituent about whom the record is maintained.
6. To the Department of Justice (DOJ), court or adjudicatory body when:
a. The agency or any component thereof; or
b. Any employee of the agency in his or her official capacity; or
c. Any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee; or
d. The United States Government; is a party to litigation or has an interest in such litigation, and by careful review, CMS determines that the records are both relevant and necessary to the litigation and the use of such records by the DOJ, court or adjudicatory body is compatible with the purpose for which the agency collected the records.
7. To a CMS contractor (including, but not necessarily limited to fiscal intermediaries and carriers) that assists in the administration of a CMS-administered health benefits program, or to a grantee of a CMS-administered grant program, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such program.
8. To another Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States (including any State or local governmental agency), that administers, or that has the authority to investigate potential fraud or abuse in, a health benefits program funded in whole or in part by Federal funds, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such programs.
9. To insurance companies, third party administrators (TPA), employers, self-insurers, managed care organizations, other supplemental insurers, non-coordinating insurers, multiple employer trusts, group health plans (i.e., health maintenance organizations (HMO) or a competitive medical plan (CMP)) with a Medicare contract, or a Medicare-approved health care prepayment plan (HCPP), directly or through a contractor, and other groups providing protection for their enrollees. Information to be disclosed shall be limited to Medicare entitlement data. In order to receive the information, they must agree to:
a. Certify that the individual about whom the information is being provided is one of its insured or employees, or is insured and/or employed by another entity for whom they serve as a third party administrator;
b. Utilize the information solely for the purpose of processing the individual's insurance claims; and
c. Safeguard the confidentiality of the data and prevent unauthorized access
All records are stored on magnetic media. Input data arrives as paper claims in the case of provider or supplier claims, and eligibility and enrollment information such as the enrollment survey and follow-up monitoring surveys are recorded in hard copy before transcription to magnetic media.
The Medicare records are retrieved by health insurance claim (HIC) number of the beneficiary. Provider IDs and supplier registration numbers are used to facilitate inquiries into specific claims as needed.
CMS has safeguards for authorized users and monitors such users to ensure against excessive or unauthorized use. Personnel having access to the system have been trained in the Privacy Act and systems security requirements. Employees who maintain records in the system are instructed not to release any data until the intended recipient agrees to implement appropriate administrative, technical, procedural, and physical safeguards sufficient to protect the confidentiality of the data and to prevent unauthorized access to the data.
In addition, CMS has physical safeguards in place to reduce the exposure of computer equipment and thus achieve an optimum level of protection and security for the CMS system. For computerized records, safeguards have been established in accordance with HHS standards and National Institute of Standards and Technology guidelines; e.g., security codes will be used, limiting access to authorized personnel. System securities are established in accordance with HHS, Information Resource Management (IRM) Circular #10, Automated Information Systems Security Program; CMS Information Systems Security, Standards Guidelines Handbook and OMB Circular No. A-130 (revised) Appendix III.
CMS will retain identifiable CPS-HA data for a total period of 25 years. Data residing with the designated claims payment contractor shall be returned to CMS at the end of the third project year, with all data then being the responsibility of CMS for adequate storage and security.
Director, Center for Beneficiary Choices, CMS, Mailstop C5-19-16, 7500 Security Boulevard, Baltimore, Maryland, 21244-1850.
For purpose of access, the subject individual should write to the system manager who will require the system name, health insurance claim number, and for verification purposes, the subject individual's name (woman's maiden name, if applicable), address, age, and sex, and social security number (SSN) (furnishing the SSN is voluntary, but it may make searching for a record easier and prevent delay).
For purpose of access, use the same procedures outlined in Notification Procedures above. Requestors should also reasonably specify the record contents being sought. (These procedures are in accordance with Department regulation 45 CFR 5b.5(a)(2).)
The subject individual should contact the system manager named above, and reasonably identify the record and specify the information to be contested. State the corrective action sought and the reasons for the correction with supporting justification. (These procedures are in accordance with Department regulation 45 CFR 5b.7.)
1. Enrollment data on Medicare beneficiaries volunteering to participate in CPS-HA projects will come from beneficiaries who report the information to CMS officials or contractors, pursuant to information collection activities approved at the Office of Management and Budget and through an Institutional Review Board as required by law. Follow-up surveys and questionnaires for participants will also come directly from beneficiaries' voluntary reporting.
2. Claims data will come through voluntary submissions of providers, suppliers, and others seeking reimbursement for covered services provided to a Medicare beneficiary, in accordance with the provisions of the demonstration and the conditions of participation in the Medicare program.
3. Research analysis and reporting will come from the enrollment data, surveys and questionnaires provided by beneficiaries, as well as the analysis and compilations of this information developed by CMS officials, contractors, research collaborators, and others supporting the CPS-HA project and fulfilling the conditions of confidentiality, privacy and security outlined in this Notice.
4. Eligibility information as well as financial or quality reporting related to program integrity or other matters may also interact with existing CMS registries such as those relating to Medicare claims, provider registries, beneficiary enrollment databases, national claims histories.
5. Provider information to document the eligibility of a provider, supplier, or other person or entity to submit Medicare claims under the CPS-HA program, receive continuing medical education within the scope of the CPS-HA program, or for other uses will come from existing Medicare records of eligible providers and suppliers (as may be modified according to the needs of the CPS-HA program).
None.
In FR Doc. 01-28108 appearing on pages 56689-56690 in the issue for Friday, November 9, 2001, the dates and location of some Health Professions and Nurse Education Special Emphasis Panel meetings have changed. The meeting scheduled on April 22-25, 2002, has changed to March 18-21, 2002; the meeting on April 29-May 2, 2002, has changed to April 2-5, 2002; the meeting on May 6-9, 2002, has changed to April 15-18, 2002; and the location of these meetings has changed to the Hilton Silver Spring. The correct information is as follows:
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the following National Advisory Council on Nurse Education and Practice scheduled to meet during the month of April 2002.
The meeting is open to the public.
Anyone interested in obtaining a roster of members, minutes of the meeting, or other relevant information should write or contact Ms. Elaine G. Cohen, Executive Secretary, National Advisory Council on Nurse Education and Practice, Parklawn Building, Room 9-35, 5600 Fishers Lane, Rockville, Maryland 20857, telephone (301) 443-1405.
The NTP Center for the Evaluation of Risks to Human Reproduction (CERHR) 1. Announces a Future Evaluation of Ethylene Glycol (CASRN: 107-21-1) and Propylene Glycol (CASRN: 57-55-6), 2. Requests Public Input on These Chemicals, and 3. Solicits the Nomination of Individuals Qualified to Serve on an Expert Panel.
The CERHR plans to hold an expert panel evaluation of ethylene glycol (CASRN: 107-21-1) and propylene glycol (CASRN: 57-55-6). The exact date for this expert panel meeting is not yet set, but is tentatively planned for the fall of 2002. Additional details about the meeting, including the date and location, will be published in a future
The CERHR will convene an expert panel to evaluate the reproductive and developmental toxicity of ethylene glycol and propylene glycol. The expert panel will consist of approximately 12 scientists, selected for their scientific
Ethylene glycol is a high production volume chemical used chiefly in antifreeze for heating and cooling systems. There is widespread exposure to ethylene glycol due to its use as an automotive antifreeze and as a de-icer for aircraft. The toxicology database on ethylene glycol includes recent mechanistic data and occupational exposure information. Propylene gylcol, similar in structure to ethylene glycol, is used as an antifreeze, de-icing solution, and in various paints and coatings. Unlike ethylene glycol, propylene glycol is approved for use in various food additives, drugs, and cosmetics.
The CERHR invites input from the public and other interested parties on ethylene glycol and propylene glycol including toxicology information from completed and ongoing studies, information on planned studies, as well as information about current production levels, human exposure, use patterns, and environmental occurrence. Information and comments should be forwarded to the CERHR at P.O. Box 12233, MD EC-32, Research Triangle Park, NC 27709 (mail), (919) 541-3455 (phone), (919) 316-4511 (fax), or
The CERHR also invites nominations of qualified scientists to serve on the expert panel for the ethylene glycol/propylene glycol evaluation. Panelists are primarily drawn from the CERHR Expert Registry and/or the nomination of other scientists who meet the criteria for listing in that registry. Criteria for listing in the CERHR Expert Registry include: formal academic training and experience in a relevant scientific field, publications in peer-reviewed journals, membership in relevant professional societies, certification by an appropriate scientific Board or other entities, and participation in similar committee activities. All panel members serve as individual experts in their specific areas of expertise, not as representatives of their employer or other organization. Scientists on the expert panel will represent a wide range of expertise including developmental toxicology, reproductive toxicology, epidemiology, general toxicology, pharmacokinetics, exposure assessment, and biostatistics. Nominations received by May 6, 2002 will be considered for the Ethylene Glycol/Propylene Glycol Expert Panel and inclusion in the CERHR Expert Registry. Nominations should be forwarded to the CERHR at the address given above.
The NTP and the NIEHS established the CERHR in June 1998 [FR (Vol. 63, No. 239, p. 68782, December 1998)]. The purpose of the CERHR is to provide scientifically-based, uniform assessments of the potential for adverse effects on reproduction and development caused by agents to which humans may be exposed. The CERHR also serves as a resource for information on various environmental exposures and their potential to affect pregnancy and child development. Its Web site (
The CERHR follows a formal, open process for the selection and review of chemicals nominated for evaluation of potential reproductive and/or developmental hazards. This process includes an evaluation of the chemical(s) by an external scientific panel that follows specific guidelines in conducting its assessment and provides multiple opportunities for public input. As a final step in the process, the CERHR publishes a NTP-CERHR report on each chemical that includes the expert panel report, public comments, and a NTP brief. A summary of the review process was recently published in the
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services notifies Federal agencies of the laboratories currently certified to meet standards of Subpart C of Mandatory Guidelines for Federal Workplace Drug Testing Programs (59 FR 29916, 29925). A notice listing all currently certified laboratories is published in the
If any laboratory has withdrawn from the National Laboratory Certification Program during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at the following websites:
Mrs. Giselle Hersh or Dr. Walter Vogl, Division of Workplace Programs, 5600 Fishers Lane, Rockwall 2 Building, Room 815, Rockville, Maryland 20857; Tel.: (301) 443-6014, Fax: (301) 443-3031.
Mandatory Guidelines for Federal Workplace Drug Testing were developed in accordance with Executive Order 12564 and section 503 of Pub. L. 100-71. Subpart C of the Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards which laboratories must meet in order to conduct urine drug testing for Federal agencies. To become certified an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection.
To maintain that certification a laboratory must participate in a quarterly performance testing program plus periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements expressed in the HHS
In accordance with Subpart C of the Guidelines, the following laboratories meet the minimum standards set forth in the Guidelines:
Upon finding a Canadian laboratory to be qualified, the DHHS will recommend that DOT certify the laboratory (
Minerals Management Service (MMS), Interior.
Notice of 2002 Industry Awards Program and Luncheon.
This notice announces the 2002 Industry Awards Program and Luncheon. This is the 20th year that MMS will honor outstanding companies for their exemplary safety and pollution prevention records, and is the fourth year for our MMS-wide industry awards program.
The awards program and luncheon will be held on Thursday, April 11, 2002.
The program and luncheon will be held at the Hotel Inter-Continental Houston, 2222 West Loop South, Houston, Texas 77027. The hotel's phone number is (713) 961-7272. To obtain registration information, please log onto the MMS temporary Web site at:
Offshore Minerals Management, Debbie O'Brien at 703-787-1579; Marcia Oliver at (703) 787-1043; Minerals Revenue Management, David Izon at 202-208-3731; Jan Therkildsen at (303) 231-3604; or Mary Louise Miller at (303) 231-3386.
This is the 20th year that MMS will honor outstanding companies for their exemplary safety and pollution prevention records, and is the fourth year for our MMS-wide industry awards program.
The following awards will be presented:
• Corporate Leadership Award (CORLA) recognizing Corporation employees for performing an act or service that enhances MMS's ability to meet Offshore or Minerals Revenue Management mission objectives.
• Corporate Citizen Award (CORCIT) recognizing lessees that have provided the most outstanding performance across MMS—in both offshore operational safety and mineral revenues financial compliance.
• Secretary of the Interior's Mineral Revenues Stewardship Award recognizing exceptional performance by companies that report production and pay royalties for Federal and Indian minerals leases. A company's outstanding performance is reflected by low error rates, timely payment, and responsiveness to compliance and enforcement requests and orders.
• Safety Award for Excellence (SAFE) recognizing OCS oil and gas facility operators and contractors for outstanding safety and pollution prevention performance. It also highlights companies that conduct offshore oil and gas activities safely and in a pollution-free manner, although such activities are complex and carry a significant element of risk. The SAFE Award Categories are as follows:
• High Activity
• Moderate Activity
• Contractor—Drilling
• Contractor—Production
In accordance with the National Environmental Policy Act of 1969 (Pub. L. 91-109 Section 102(c)), the National Park Service is preparing an
The NPS will hold three public scoping meetings beginning in March 2002, that will provide opportunities for all interested parties to express concerns, make suggestions and raise issues concerning the future direction and development of the Washington-Rochambeau Revolutionary Route study. The first public meeting will be held in Hartford, Connecticut on Thursday March 14, from 1:30-3:30 p.m. in the Stanley Room of the South Congregational Church, 277 South Main Street. The second meeting will be held in Yorktown, Virginia on Saturday, March 16, from 1:30-3:30 p.m. in Theater 2 of the Yorktown Visitor Center, Colonial National Historical Park, located at the intersection of Route 238 and Colonial Parkway. A third meeting is being scheduled in Trenton, New Jersey. Additional information about the meetings and the EIS/study will be available on the National Park Service website,
Those persons who wish to comment orally or in writing, or who require further information, are invited to contact Brian_Aviles, Project Manager, at the National Park Service Boston Support Office, 15 State Street, Boston, Massachusetts 02109-3572, (617) 223-5319, -5164 fax, or via email at
The Draft EIS/study report is expected to be completed and available for public review in mid 2004. After public and interagency review of the draft document, comments will be considered and a final EIS/study report, followed by a Record of Decision, will be prepared.
Notice of closed meeting.
March 25, 2002.
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 is 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.
Notice is hereby given that the United States will publish the Tunney Act public comments that it received relating to the Revised Proposed Final Judgment in United States v. Microsoft Corporation, Civil Action No. 98-1232, pending in the United States District Court for the District of Columbia, by following the procedures described in this notice.
On February 15, 2002, the United States made electronic copies of 47 detailed comments, which were provided to the Court on February 14, 2002, available on the Department of Justice's website at
On or about April 11, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to CHM Wholesale Company (CHM), located in Chicago, Illinois, notifying it of an opportunity to show cause as to why the DEA should not deny its application, dated June 8, 2000, for a DEA Certificate of Registration as a distributor of the List I chemicals ephedrine and pseudoeophedrine, pursuant to 21 U.S.C. 823(h), as being inconsistent with the public interest. The order also notified CHM that, should no request for hearing be filed within 30 days, the right to a hearing would be waived.
The OTSC was returned, marked “Return to Sender—Moved, Left No Address.” The OTSC subsequently was sent by certified mail to the residential address of CHM's owner, Hyun Jin Kim (Kim), where it was received, June 4, 2001, as indicated by the signed postal return receipt. Since that time, no further response has been received from the applicant nor any person purporting to represent the applicant. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that CHM is deemed to have waived its right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Administrator finds that on or about June 8, 2000, an application was received by the DEA Chemical Operations Registration section on behalf of CHM for DEA registration as a distributor of the two above-mentioned List I chemicals. The DEA pre-registration inspection on September 7, 2000, revealed that Kim and CHM had no prior experience in distributing List I chemical products. Kim further stated that he had lived in Chicago only three months. He stated he previously had lived in Houston, Texas, where he had operated a number of different retail businesses.
CHM provided a supplier list in response to DEA's request. The DEA investigation revealed both of CHM's proposed suppliers were the recipients of 15 Warning Letters between them. These letters notified the recipients that List I chemicals distributed by them were being diverted and were being discovered in various illicit settings consistent with the clandestine manufacture of methamphetamine. CHM was unable to provide a list of proposed customers.
Pursuant to 21 U.S.C. 823(h), the Administrator may deny an application for a DEA Certificate of Registration if he determines that granting the registration would be inconsistent with the public interest. Section 823(h) requires the following factors be considered:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied.
The Administrator finds factors one, four, and five relevant to this application.
Regarding factor one, the maintenance of effective controls against the diversion of listed chemicals, the DEA pre-registration inspection documented inadequate security arrangements, in that there was no separate secure enclosure at the proposed business location wherein the List I chemical products would be stored. The inspection also revealed inadequate recordkeeping arrangements, in that CHM failed to provide information regarding planned controls to prevent diversion.
Also relevant to this factor, Kim stated to DEA investigators that he planned to relocate CHM's business premises. No further information has been received by DEA regarding the relocation, however, and therefore DEA has been unable to inspect the new proposed business location.
Regarding factor four, the applicant's past experience in the distribution of chemicals, the DEA investigation revealed that Kim could provide no verifiable evidence of previous experience related to handling or distributing listed chemicals.
Regarding factor five, other factors relevant to and consistent with the public safety, the Administrator finds that both of CHM's proposed suppliers were the recipients of 15 Warning Letters between them; one of the proposed suppliers was the subject of a current DEA investigation regarding the diversion of listed chemicals. CHM could not provide a customer list, so DEA investigators could not verify a legitimate customer base for the distribution of List I chemical products. The investigation further showed CHM had inadequate security and no apparent recordkeeping arrangements for listed chemical products. The Administrator concludes that CHM is not prepared to be entrusted with the responsibilities of a DEA registration.
Therefore, for the above-stated reasons, the Administrator concludes that it would be inconsistent with the public interest to grant the application of CHM.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 28 CFR 0.100(b) and 0.104, hereby orders that the application for a DEA Certificate of Registration submitted by CHM Wholesale Company be denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Robert Walker, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid registered return receipt to Mr. Hyun Jin Kim, CHM Wholesale
On July 29, 2000, the Administrator of the Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) to Denver Wholesale, located in Denver, Colorado, notifying it of a preliminary finding that, pursuant to evidence set forth therein, it was responsible for the diversion of large quantities of List I chemicals into other than legitimate channels. Based on these preliminary findings, and pursuant to 21 U.S.C. 824(d) and 28 CFR 0.100 and 0.104, the OTSC suspended Denver Wholesale's DEA Certificate of Registration, effective immediately, with such suspension to remain in effect until a final determination is reached in these proceedings. The OTSC informed Denver Wholesale and its owner, Hassan, Zaghmot (Zaghmot) of an opportunity to request a hearing to show cause as to why the DEA should not revoke its DEA Certificate of Registration, 003378DHY, and deny any pending applications for renewal or modification of such registration, for reason that such registration is inconsistent with the public interest, as determined by 21 U.S.C. 823(h). The OTSC also notified Denver Wholesale that, should no request for hearing be filed within 30 days, its right to a hearing would be considered waived.
On August 9, 2000, a copy of the OTSC was served upon Zaghmot's attorney. No request for a hearing or any other response was received by DEA from Denver Wholesale or Zaghmot; nor anyone purporting to represent it in this matter. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes Denver Wholesale is deemed to have waived its right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43 (d) and (e) and 1301.46.
The Administrator finds as follows. List I chemicals are chemicals that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 1310.02(a). Pseudoephedrine is a List I chemical that is commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant, and its abuse is a growing problem in the United States.
A “regulated person” is a person who manufactures, distributes, imports, or exports inter alia a listed chemical. 21 U.S.C. 802(38). A “regulated transaction” is inter alia a distribution, receipt, sale, importation, or exportation of a threshold amount of a listed chemical. 21 U.S.C. 802(39). The Administrator finds all parties mentioned herein to be regulated, and all transactions mentioned herein to be regulated transactions, unless otherwise noted.
The DEA investigation shows that at the time Denver Wholesale became registered with the DEA in July of 1998 as a distributor of List I chemicals, Zaghmot was personally served with the DEA notices informing him that ephedrine and pseudoephedrine are diverted for use in clandestine methamphetamine laboratories, as well as the notice informing him that possession or distribution of a listed chemical knowing or having reasonable cause to believe that the listed chemical will be used to manufacture a controlled substance is a violation of the Controlled Substances Act.
The DEA investigation shows Denver Wholesale has received millions of dosage units of pseudoephedrine from distributors nationwide since being registered with DEA. In calendar year 1999, Denver Wholesale received 18 million dosage units of 60 mg. pseudoephedrine from one of its six List I chemical suppliers alone.
During September, 1999, and on June 20, 2000, Denver Wholesale provided DEA with customer lists. The lists showed no customers in California, yet Federal Express records document numerous large shipments of pseudoephedrine from Denver Wholesale to California, several of which were tracked directly to methamphetamine laboratories. Zaghmot used fictitious and non-existent business names and addresses in shopping pseudoephedrine to California.
In March of 2000, in Denver, Colorado, Zaghmot and other individuals loaded approximately 55 boxes containing over 15,000 bottles of pseudoephedrine 60 mg. tablets from a storage locker into a rented van, that was then packed with furniture obtained from thrift shops throughout the Denver area. The boxes were transported to a self-storage facility in California, from whence it was transported to several different locations at which laboratory equipment and chemicals consistent with the clandestine manufacture of methamphetamine were located. The individuals having access to the storage lockers were arrested and charged with conspiracy to manufacture methamphetamine. The rented van was stopped in Nevada, and a search revealed $233,960 in United States currency. The passenger, who had been observed by investigators assisting Zaghmot loading pseudoephedrine into the van, stated that he had driven the van from Denver to Sacramento, California, with a load of pseudoephedrine, and was returning to Denver for another load of the chemical.
On July 20, 2000, an undercover DEA agent purchased 120 bottles of Denver Wholesale-labeled pseudoephedrine product for $1000 in cash from a convenience store in Denver, Colorado. On July 25, 2000, the undercover agent returned for another purchase. In response to questioning from the convenience store owner, the undercover agent stated that he had used the previous purchase to manufacture methamphetamine. The convenience store owner sold the agent another 144 bottles of the same product, and informed the agent that he could provide as much as 100 cases (14,400 bottles) of pseudoephedrine. Larger quantities, however, would cost $1,500 a case. The undercover agent left, and the convenience store owner was observed to drive to Denver Wholesale, where he met with Zaghmot. The next day, the undercover agent contacted the convenience store owner, who stated that since the supplier did not know the agent, the supplier would only provide two cases at a time until a relationship was built.
Therefore, pursuant to 21 U.S.C. 824(d), the Administrator of the DEA issued an immediate suspension of Denver Wholesale's DEA Certificate of Registration. While the above-cited evidence provides ample grounds for an immediate suspension pursuant to section 824(d), these grounds also provide the basis for the revocation of Denver Wholesale's DEA Certificate of Registration.
Pursuant to 21 U.S.C. 824(a), the Administrator may revoke a registration to distribute List I chemicals upon a finding that the registrant has committed such acts as would render his registration under section 823 inconsistent with the public interest as
(1) Maintenance of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance with applicable Federal, State, and local law;
(3) Any prior conviction record under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied.
Regarding the first factor, maintenance of effective controls against diversion, the Administrator finds substantial evidence in the investigative file that Denver Wholesale and Zaghmot actively participated in the illegal diversion of pseudoephedrine knowing it would be used to manufacture methamphetamine.
Regarding the second factor, compliance with applicable Federal, State, and local law, the investigative file in this matter reveals that on July 27, 2000, a Federal Grand Jury in the District indicated Zaghmot and other individuals with violations of 21 U.S.C. 841(d)(2) (possession or distribution of a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance) and 846 (attempt or conspiracy to violate the Controlled Substances Act); as well as various money-laundering offenses. Zaghmot was arrested the next day. Search warrants were executed upon Denver Wholesale, a storage facility used by Zaghmot, and Zaghmot's residence. Totals of approximately 2,500 pounds of pseudoephedrine and $668,000 in United States currency were seized from Denver Wholesale, Zaghmot, and his co-conspirators.
Regarding the third factor, any prior conviction record under Federal or State laws relating to controlled substances or chemicals, there is no evidence in the investigative file that Denver Wholesale or Zaghmot has any record of convictions under Federal or State laws relating to controlled substances or chemicals.
Regarding the fourth factor, past experience in the manufacture and distribution of chemicals, the Administrator finds substantial evidence in the investigative file that Zaghmot actively participated in the illegal trafficking of pseudoephedrine, knowing that it was being diverted to the manufacture of methamphetamine. Denver Wholesale's customer list did not contain any customers from California. Yet DEA investigators observed Zaghmot and others loading pseudoephedrine into a rental van in Denver, Colorado, concealing the chemicals with thrift store furniture, and driving the van to a California self-storage facility. A search of the rental van as it was headed back to Colorado revealed $233,960 in United States currency.
In addition, the investigative file contains information obtained from Federal Express showing Denver Wholesale shipping large quantities of pseudoephedrine to California. Zaghmot used fictitious business names and addresses in making these shipments. A number of these shipments were traced directly to clandestine methamphetamine laboratories.
Thus the Administrator finds Denver Wholesale and Zaghmot violated 21 U.S.C. 841(g)(1) (knowing distribution of a listed chemical in violation of the Controlled Substances Act); 841(g)(2) (possession of a listed chemical with knowledge that recordkeeping or reporting requirements not adhered to); and 830(b)(1)(a) (failure to report any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance the regulated person believes may indicate that the listed chemical will be used in violation of this subchapter). (Note: subparagraphs (d) and (g) of 841 have been redesignated as (c) and (f)). Therefore, the Administrator finds Denver Wholesale and Zaghmot significantly violated applicable federal law.
Regarding the fifth factor, such other factors relevant to and consistent with the public safety, the Administrator finds substantial evidence that Denver Wholesale significantly violated applicable law by illegally trafficking thousands of pounds of pseudoephedrine knowing it was being diverted to the manufacture of methamphetamine and further by failing to keep and maintain required records and failure to report suspicious listed chemical transactions. Zaghmot was indicated and arrested for various violations pertaining to controlled substances and listed chemicals.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration 003378DHY, previously issued to Denver Wholesale, be, and it hereby is, revoked; and any pending applications for renewal or modification of said registration be, and hereby are, denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Charles Trant, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid, registered return receipt to Mr. Hassan Zaghmot, Denver Wholesale, 8200 East Pacific Place, Suite 103, Denver, Colorado 80231.
On or about March 6, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Daniel E. Epps, Jr. (Epps), located in Matthews, North Carolina, notifying him of an opportunity to show cause as to why the DEA should not deny his applications, dated May 2, 2000, and July 26, 2000, for a DEA Certificate of Registration as a distributor of the List I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine, pursuant to 21 U.S.C. 823(h), as being inconsistent with the public interest. The order also notified Mr. Epps that, should no request for hearing be filed within 30 days, the right to a hearing would be waived.
The OTSC was received March 12, 2001, as indicated by the signed postal return receipt. Since that time, no further response has been received from the applicant nor any person purporting to represent the applicant. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that Mr. Epps is deemed to have waived his right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Administrator finds as follows. List I chemicals are chemicals that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 1310.02(a). Pseudoephedrine, ephedrine, and phenylpropanolamine are List I chemicals that are commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant, and its abuse is a growing problem in the United States.
The Administrator finds that on or about May 2, 2000, an application was submitted by and on behalf of Daniel E. Epps, Jr., for DEA registration as a distributor of the List I chemical ephedrine. On July 26, 2000, Mr. Epps requested that his application be amended to include the List I chemicals pseudoephedrine and phenylpropanolamine.
During the July 29, 2000, pre-registration inspection, Mr. Epps informed a DEA investigator that he proposed to sell various products from his home, including List I chemical products. While Mr. Epps alleged he had 29 years of experience in the grocery/retail business, he admitted he had no experience in the handling of listed chemical products. Mr. Epps stated he planned to sell List I chemical products to convenience stores and gas stations. He also stated that he wished to distribute certain List I chemical products in 60 count bottles.
The DEA investigation showed that Mr. Epps' residence, where he proposes to conduct business, is not zoned for business purposes in Mecklenburg County, North Carolina. Additionally, as of the date of the July 26, 2000, inspection, Mr. Epps had not applied with the North Carolina State authorities for a Change of Use Permit for the operation of a business from his residence.
Pursuant to 21 U.S.C. 823(h), the Administrator may deny an application for a DEA Certificate of Registration if he determines that granting the registration would be inconsistent with the public interest. Section 823(h) requires the following factors be considered:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administ6rator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied.
Regarding factor one, the maintenance of effective controls against the diversion of listed chemicals, the DEA pre-registration inspection documented inadequate security at the proposed business location. Mr. Epps proposes to store List I chemical products in an unlocked room in the basement of his residence. The residence does not have any sort of alarm system, and the DEA investigation shows that the residence goes unoccupied for long periods of time. Moreover, Mr. Epps admittedly has no experience in handling List I chemicals.
Regarding factor two, the applicant's compliance with applicable law, the Administrator notes that the DEA investigation showed North Carolina State or local law requires zoning approval and a Change of Use Permit cooperate a business from this residence. Mr. Epps did not possess such a permit, and challenged DEA investigators when this lack was noted. There is no evidence in the investigative file that Mr. Epps ever applied for or received the required Change of Use Permit.
Regarding factor three, there is no evidence that Mr. Epps has any record of convictions related to controlled substances or to chemicals controlled under Federal or State law.
Regarding factor four, the applicant's past experience in the distribution of chemicals, the DEA investigation revealed that Mr. Epps has no previous experience in handling listed chemicals or distributing listed chemical products.
Regarding factor five, other factors relevant to and consistent with the public safety, the Administrator finds that due to the applicant's lack of experience in handling listed chemicals, a lack of adequate security at the proposed business location, and his failure to obtain the required zoning approval to operate a business from his residence, the Administrator concludes it would be inconsistent with the public interest to grant this application.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 28 CFR 0.100(b) and 0.104, hereby orders that the application for a DEA Certificate of Registration submitted by Mr. Daniel E. Epps, Jr. be denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Robert Walker, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid, registered return receipt to Mr. Daniel E. Epps, Jr., 539 Walnut Point Drive, Matthews, North Carolina 28105.
Pursuant to section 1008 of the Controlled Substances Import and Export Act (21 U.S.C. 958(i)), the Attorney General shall, prior to issuing a registration under this section to a bulk manufacturer of a controlled
Therefore, in accordance with § 1301.34 of Title 21, Code of Federal Regulations (CFR), notice is hereby given that on August 31, 2001, ISP Freetown Fine Chemicals, 238 South Main Street, Assonet, Massachusetts 02702, made application by renewal to the Drug Enforcement Administration to be registered as an importer of phenylacetone (8501), a basic class of controlled substance listed in Schedule II.
The firm plans to import the phenylacetone to manufacture amphetamine.
Any manufacturer holding, or applying for, registration as a bulk manufacturer of this basic class of controlled substance may file written comments on or objections to the application described above and may, at the same time, file a written request for a hearing on such application in accordance with 21 CFR 1301.43 in such form as prescribed by 21 CFR 1316.47.
Any such comments, objections, or requests for a hearing 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 April 4, 2002.
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice at 40 FR 43745-46 (September 23, 1975), all applicants for registration to import basic class of any controlled substance in Schedule I or II are and will continue to be required to demonstrate to the Deputy Assistant Administration, Office of Diversion Control, Drug Enforcement Administration that the requirements for such registration pursuant to 21 U.S.C. 958(a), 21 U.S.C. 823(a), and 21 CFR 1311.42(a), (b), (c), (d), (e), and (f) are satisfied.
On July 29, 2000, the Administrator of the Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) to North American Group, located in Kissimmee, Florida, notifying it of a preliminary finding that, pursuant to evidence set forth therein, it was responsible for the diversion of large quantities of List I chemicals into other than legitimate channels. Based on these preliminary findings, and pursuant to 21 U.S.C. 824(d) and 28 CFR 0.100 and 0.104, the OTSC suspended North American Group's DEA Certificate of Registration, effective immediately, with such suspension to remain in effect until a final determine is reached in these proceedings. The OTSC informed North American Group of an opportunity to request a hearing to show cause as to why the DEA should not revoke its DEA Certificate of Registration, 004407NAY, and deny any pending applications for renewal or modification of such registration, for reason that such registration is inconsistent with the public interest, as determined by 21 U.S.C. 823(h). The OTSC also notified North American Group that, should no request for hearing be filed within 30 days, its right to a hearing would be considered waived.
On July 31, 2000, a copy of the OTSC was affixed to the front door of the business premises, since no one appeared to be present at the business. On this same date, a second copy of the OTSC was sent certified mail, return receipt requested, to North American Group. The mailed OTSC was returned marked “attempted—unclaimed.” No request for a hearing or any other response was received by DEA from North American Group nor anyone purporting to represent it in this matter. Therefore, the Administrator of the DEA, finding that (1) Thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes North American Group is deemed to have waived its right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Administrator finds as follows. List I chemicals are chemicals that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 1310.02(a). Pseudoephedrine is a List I chemical that is commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant, and its abuse is a growing problem in the United States.
A “regulated person” is a person who manufactures, distributes, imports, or exports inter alia a listed chemical. 21 U.S.C. 802(38). A “regulated transaction” is inter alia a distribution, receipt, sale, importation, or exportation of a threshold amount of a listed chemical. 21 U.S.C. 802(39). The Administrator finds all parties mentioned herein to be regulated, and all transactions mentioned herein to be regulated transactions, unless otherwise noted.
The DEA investigation shows that Hesham Nabut (Nabut) is the owner and president of North American Group (NAG). On July 2, 1999, DEA conducted a preregistration inspection of NAG, and at that time provided Nabut with the DEA notices informing him that pseudoephedrine products are used in the illicit manufacture of methamphetamine; and that possession or distribution of a List I chemical knowing or having reasonable cause to believe it will be used to manufacture a controlled substance is a violation of the Controlled Substances Act.
DEA approved NAG's application for registration to distribute List I chemicals July 6, 1999. Between July 23, 1999, and September 30, 1999, NAg ordered approximately 2,592,000 pseudoephedrine tablets from one manufacturer. In October of 1999, NAG attempted to obtain an additional 3-4 million pseudoephedrine tablets from two other manufacturers.
On September 14 and 15, 1999, law enforcement personnel seized approximately 11,300 bottles of pseudoephedrine tablets from clandestine methamphetamine laboratories in California. Using the lot numbers on the seized bottles, DEA traced the product back to NAG. On October 15, 1999, DEA seized 4000 bottles of pseudoephedrine tablets form a clandestine methamphetamine laboratory in Los Angeles, California. Using the lot numbers on the seized bottles, DEA traced the product back to NAG.
In December of 1999, a DEA Confidential Source revealed that Hesham (last name unknown) and three other individuals shipped 16 boxes, with an aggregate weight of 1000 pounds, to Portland, Oregon. On
On January 7, 2000, a DEA Confidential Source revealed that Hesham Nabut was significantly involved in supplying pseudoephedrine to individuals for the illicit manufacture of methamphetamine. The Confidential Source further revealed that Nabut falsified documents, purportedly showing that he supplied pseudoephedrine to gift shops, but that in reality, the pseudoepherine is shipped to California and Oregon for the illicit manufacture of methamphetamine. A DEA Confidential Source also revealed that one of Nabut's shipments to Portland, Oregon was seized in late 1999 or early 2000.
On January 13, 2000, DEA investigators observed an associate of Nabut loading large cardboard boxes from NAG's warehouse into a van. Eleven of these boxes were subsequently seized in California, and were found to contain 45 cases of 60 mg. pseudoephedrine tablets. The shipping labels bore fictitious names for both the shipper and the receiver, and a fictitious address for the shipper.
On May 18, 2000, DEA investigators observed the owner of Denver Wholesale, a pseudoephedrine distributor also under investigation by DEA, arrive at the Orlando Airport where he was met by Nabut. On May 18 and 19, 2000, DEA investigators observed Nabut and this individual meet with several other individuals currently under investigation by DEA for the illicit diversion of pseudoephedrine.
On May 19, 2000, DEA investigators observed the delivery of 20 large boxes of pseudoephedrine to NAG. On June 7, 2000, DEA investigators observed the delivery of an additional 25 large boxes to NAG. These boxes appeared similar to those previously received by NAG that DEA had confirmed contained pseudoephedrine.
On June 8, 2000, DEA Diversion Investigators conducted an administrative inspection of NAG. The Diversion Investigators observed 45 boxes of pseudoephedrine tablets. Each box contained 27,648 dosage units, for a total of 1,244,160 dosage units of pseudoephedrine.
Therefore, pursuant to 21 U.S.C. 824(d), the Administrator of the DEA issued an immediate suspension of NAG's DEA Certificate of Registration. While the above-cited evidence provides ample grounds for an immediate suspension pursuant to § 824(d), these grounds also provide the basis for the revocation of NAG's DEA Certificate of Registration.
Pursuant to 21 U.S.C. 824(a), the Administrator may revoke a registration to distribute List I chemicals upon a finding that the registrant has committed such acts as would render his registration under section 823 inconsistent with the public interest as determined under that section. Pursuant to 21 U.S.C. 823(h), the following factors are considered in determining the public interest:
(1) Maintenance of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance with applicable Federal, State, and local law;
(3) Any prior conviction record under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experiences in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety. Like the public interest for practitioners pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied.
Regarding the first factor, maintenance of effective controls against diversion, the DEA investigation reveals Nabut contacted DEA from Jordan on July 24, 2000, regarding the alleged theft of 45 boxes of pseudoephedrine by an individual currently under investigation by DEA in a related case. Nabut alleged that 45 boxes of pseudoephedrine were removed from NAG by his brother and transferred to a public storage unit facility. Nabut admitted that the storage unit was rented by the same individual that he claims stole the chemicals, and further, he admitted the individual is not a business associate. DEA obtained a copy of the rental agreement, which stated that only the individual renting the unit had access. Nabut had left the United States and as in Jordan during the time these events allegedly took place. The DEA investigation showed, however, that only three boxed were originally place in the storage unit, and that these boxes were removed by an unknown individual sometime before July 7, 2000. The location of the 45 boxes of pseudoephedrine that DEA investigators had observed at NAG during the June 8, 2000 administrative inspection is unknown. All 45 boxes were missing at the time a criminal search warrant was executed upon NAG July 29, 2000.
The Administrator finds the circumstances of this alleged theft very suspicious, and finds that regardless of the truth of the matter, NAG and Nabut failed to adequately protect this substantial amount of pseudoephedrine (totaling 1,244,160 dosage units) from diversion. Neither Nabut nor his brother was able to give investigators an adequate explanation regarding why the chemicals were removed from the NAG premises. The chemicals, or at least three boxes appearing to contain chemicals, were moved into a storage unit rented and controlled by a third party. Finally, Nabut apparently orchestrated the entire scenario from Jordan. The Administrator concludes that this finding alone provides ample basis for revocation of NAG's DEA registration.
Regarding the second factor, compliance with applicable Federal, State, and local law, the investigative file in this matter contains information from a reliable DEA Confidential Source relating to Nabut's involvement in diverting pseudoephedrine to the manufacture of methamphetamine. The information is as follows: Nabut is significantly involved in a criminal organization devoted to the illegal supplying of pseudoephedrine to clandestine methamphetamine laboratories. The organization operates in Chicago, Los Angeles, New York, Florida, and Oregon. Nabut purchases the chemical for approximately $220 per case, and he sells it for approximately $800-900 per case, and sometimes as high as $3600 per case. Nabut collects pseudoephedrine from various sources and distributes the chemical using UPS and other parcel service facilities, and also occasionally rental vans. The pseudoephedrine allegedly is distributed to retailers such as gift shops, and also to individuals not authorized to receive the chemical. The chemicals do not ever actually reach their purported destination, however, but are diverted through the organization to the illicit manufacture of methamphetamine. Nabut created false shipping and receiving records for the chemicals allegedly shipped to the retailers. These records were created for the specific purpose of deceiving DEA and other law enforcement agencies. Nabut has exported a 4-door Mercedes Benz automobile and approximately $1.5 million dollars to Jordan in
The Administrator finds the Confidential Source information provides substantial evidence that NAG and Nabut are in violation of 21 U.S.C. 841(d)(1) (possession of a listed chemical with intent to manufacture a controlled substance); 841(d)(2) (possession/distribution of a listed chemical knowing or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance); 841(g)(1) (knowing distribution of a listed chemical in violation of the Controlled Substances Act); 841(g)(2) (possession of a listed chemical with knowledge that recordkeeping or reporting requirements not adhered to); 842(a)(5) and (10) (failure to keep required records). (
Regarding the third factor, any prior conviction record under Federal or State laws relating to controlled substances or chemicals, there is not evidence that NAG or Nabut has any record of convictions under Federal or State laws relating to controlled substances or chemicals.
Regarding the fourth factor, past experience in the manufacture and distribution of chemicals, the Administrator finds NAG and Nabut significantly violated applicable law, as set forth in factor two above, and further, failed to adequately protect against the diversion of a substantial quantity of a List I chemical, as set forth in factor one, above.
Regarding the fifth factor, such other factors relevant to and consistent with the public safety, the Administrator finds substantial evidence that NAG and Nabut significantly violated applicable law by actively participating in the diversion of pseudoephedrine to the manufacture of methamphetamine, and the falsification of records to conceal such activity. Furthermore, Nabut has fled the United States in anticipation of possible prosecution for his crimes.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration 004407NAY, previously issued to North American Group, be, and it hereby is, revoked; and any pending applications for renewal or modification of such registration be, and hereby are, denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Linden Barber, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid, registered return receipt to Mr. Hesham Nabut, North American Group, 2792 Michigan Avenue, Suite 406, Kissimmee, Florida 34744.
On or about May 4, 2001, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Paragon Associates (Paragon), located in City of Industry, California, notifying it of an opportunity to show cause as to why the DEA should not deny its application, dated April 23, 1999, for a DEA Certificate of Registration as an exporter of the List I chemical phenylpropanolamine (PPA), pursuant to 21 U.S.C. 823(h), as being inconsistent with the public interest. The order also notified Paragon that, should no request for hearing be filed within 30 days, the right to a hearing would be waived.
The OTSC was received May 16, 2001, as indicated by the signed postal receipt. On June 7, 2001, DEA received a letter from Paragon, purportedly responding to the issues set forth in the OTSC. This letter did not address whether Paragon would request or waive its right to the hearing. Since that time, no further response has been received from the applicant nor any person purporting to represent the applicant. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that Paragon is deemed to have waived its right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46. The Administrator has considered Paragon's letter received June 7, 2001, pursuant to 21 CFR 1309.53(b).
The Administrator finds as follows. List I chemicals are chemicals that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 1310.02(a). PPA is a List I chemical that is commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant and its abuse is a growing problem in the United States.
The Administrator finds that on April 23, 1999, an application was received by the DEA Chemical Operations Registration section on behalf of Paragon for DEA registration as an exporter of the List I chemical phenylpropanolamine (PPA).
On June 17, 1999, DEA investigators conducted a pre-registration investigation of Paragon's proposed business premises, and interviewed the president, Mr. George Fan. Mr. Fan stated that Paragon had been an exporter of vitamins and food supplements since 1997, and now intended to export the List I chemicl PPA to a firm in Taipei, Taiwan.
DEA investigators were unable to verify the existence of Paragon's intended customer because of misleading information provided by Mr. Fan. The DEA investigation revealed Paragon had submitted an application for a permit to handle listed chemicals to the State of California, Bureau of Narcotic Enforcement (BNE). BNE records revealed that Paragon intended to export listed chemicals to China, not Taiwan. The DEA investigation further revealed BNE did not issue a permit to Paragon to allow listed chemicals to enter California.
The DEA investigation also revealed that neither Paragon nor its intended customer have been authorized by the Government of Taiwan to import any listed chemicals. DEA subsequently learned that Paragon had submitted an order to a U.S. supplier of PPA in June of 1999 and offered a copy of its application for DEA registration as proof of registration, despite Paragon's never having been registered to handle listed chemicals. Finally, the DEA investigation revealed that in 1997 and 1998, Paragon acquired domestic supplies of PPA without being authorized to do so, and shipped the chemicals without filing the required
Pursuant to 21 U.S.C. 823(h), the Administrator may deny an application for a DEA Certificate of Registration if he determines that granting the registration would be inconsistent with the public interest. Section 823(h) requires the following factors be considered:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied.
Regarding factor one, the maintenance of effective controls against the diversion of listed chemicals, the Administrator finds that the DEA investigation revealed significant violations with regard to the applicant's security and recordkeeping arrangements. On July 9, 1998, Paragon purchased 485,000 PPA 75 mg. capsules from a supplier located in New York; and on March 5, 1999, Paragon purchased an additional 488,000 capsules of the same product from the same supplier. Mr. Fan admitted these chemicals were exported to Taiwan. Paragon failed to keep records of these regulated transactions, in violation of 21 U.S.C. 830(a) and 21 CFR 1310.03(a); 1310.04; and 1310.06. Paragon was a regulated person as defined by 21 U.S.C. 802(38) as a distributor and exporter of listed chemicals, and thus was required to keep records of regulated transactions. 21 U.S.C. 802(39)(A).
Regarding factor two, the applicant's compliance with applicable law, the Administrator finds that the evidence shows that Pentagon significantly violated applicable law by distributing List I chemicals on at least two separate occasions as set forth in the preceding factor, when not registered to do so, in violation of 21 U.S.C. 822 and 843(a)(9) and 21 CFR § 1309.21(a). In addition, Paragon exported List I chemicals without a DEA registration in violation of 21 U.S.C. 957(a)(2), and further failed to declare these exportations on the DEA Form 486, as required by 21 CFR 1313.21.
Regarding factor three, there is no evidence that Paragon nor Mr. George Fan has any record of convictions related to controlled substances or to chemicals controlled under Federal or State law.
Regarding factor four, the applicant's past experience in the distribution of chemicals, the Administrator finds that the DEA investigation revealed that the applicant significantly violated applicable law, as set forth in factors one and two. In addition, Paragon exported List I chemicals without a DEA registration in violation of 21 U.S.C. 957(a)(2), and further failed to declare these exportations on the DEA Form 486, as required by 21 CFR 1313.21. The DEA investigation further revealed that pursuant to the State of California Health and Safety Code, Section 111001.1, businesses are required to report to BNE imports and exports of products containing PPA 21 days prior to the transaction date. Paragon never notified BNE of its PPA imports into California, set forth in factor one.
Regarding factor five, other factors relevant to and consistent with the public safety, the Administrator finds that Paragon significantly violated applicable law by distributing and exporting List I chemicals without being registered to do so, and by failing to keep and maintain required records of regulated List I chemicals transactions.
The DEA investigation further revealed Mr. Fan was not forthcoming with information concerning his customers. In response to questions, Mr. Fan provided misleading and incomplete information. Mr. Fan's proposed distribution network led through a number of parties whose relationships were not clear, and concerning whose relationships Mr. Fan failed to provide information. When specifically asked, Mr. Fan was unable to adequately describe Paragon's proposed distribution network. The investigation also revealed that Paragon's proposed Taiwan customer did not have the required Import License, and therefore was not authorized to import PPA from the U.S. or any other country.
In addition, review of Paragon's BNE application indicated that Paragon intended to export PPA to China, not Taiwan. Mr. Fan further alleged he initiated the registration process in 1997; in fact, the DEA registration process was not initiated until June of 1999.
The DEA investigation further revealed that, prior to initiating the DEA registration process, on April 23, 1999, Paragon had placed an order for 500,000 to 1,000,000 PPA capsules with a U.S.-based pharmaceutical manufacturer. When confronted with this order by DEA investigators on June 17, 1999, and notified that he was unauthorized to handle any listed chemicals until registered with DEA, Mr. Fan stated that, while he had completed the order in April of 1999, his secretary had only mailed it that week. Then Mr. Fan stated he placed the order in advance so that when he received his DEA registration, the order would be ready for shipment, because his customer in Taiwan was expecting this order.
Finally, the investigation revealed that Mr. Fan stated to DEA investigators that List I chemicals would comprise approximately ten percent of his business; however, on his application with BNE, Mr. Fan indicated that PPA would be his primary business.
The Administrator finds this lack of candor, taken together with Paragon's and Mr. Fan's demonstrated cavalier disregard of the statutory law and regulations concerning the registration, distribution, exporting, and recordkeeping requirements of List I chemicals, makes questionable Paragon's and Mr. Fan's commitment to the DEA regulatory requirements designed to protect the public from the diversion of controlled substances and listed chemicals.
Therefore, for the above-stated reasons, the Administrator concludes that it would be inconsistent with the public interest to grant the application of Paragon Associates. The evidence indicates that the applicant has significantly violated applicable law by distributing and exporting List I
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 28 CFR 0.100(b) and 0.104, hereby orders that the application for a DEA Certificate of Registration submitted by Paragon Associates be denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Wayne Patrick, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid, registered return receipt to Mr. George Fan, Paragon Associates, 1300 John Reed Court, #13, City of Industry, California 91745.
On or about December 6, 2000, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Performance Construction, Inc. (Performance), located in Lakeland, Florida, notifying it of an opportunity to show cause as to why the DEA should not deny its application, dated June 30, 2000, for a DEA Certificate of Registration as a manufacturer of List I chemicals and deny any request to modify its application to distribute List I chemicals, pursuant to 21 U.S.C. 823(h), as being inconsistent with the public interest. The order also notified Performance that, should no request for hearing be filed within 30 days, the right to a hearing would be waived.
The OTSC was received December 11, 2000, as indicated by the signed postal receipt. Since that time, no further response has been received from the applicant nor any person purporting to represent the applicant. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that Performance is deemed to have waived its right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Administrator finds that during a pre-registration inspection of Performance's premises on October 5, 2000, DEA investigators spoke with the president/owner of Performance, who stated that Performance was a general contractor, not engaged in the business of manufacturing, handling, or distribution of listed chemicals, nor did it have any knowledge or experience in this field. He further stated that Performance did not wish to manufacture listed chemicals, but proposed to be registered in order to make a one-time distribution of the List I chemical GBL to an individual also not engaged in the business of handling listed chemicals, purportedly for the purpose of stripping paint from a boat.
The Administrator notes that GBL (gamma-butrolactone) has use as an industrial solvent. GBL is also a known precursor chemical, however, and is readily synthesized into the Schedule I controlled substance GHB. Schedule I controlled substances have no known medical uses, and are highly subject to abuse. 21 U.S.C. 812(b).
DEA investigators contacted numerous marine manufacturers and boat refinishers in south Florida; however none were aware of the use of GBL in the marine industry or for the proposed use in vessel paint stripping. In fact, none of those contacted by DEA had even heard of GBL.
The Administrator further notes that a long-standing DEA policy prohibits the granting of registrations that are essentially “shelf registrations,” that is, registrations for which there is no intent to use. The granting of a registration for a one-time distribution of a chemical that is otherwise widely available from DEA registrants throughout the United States would be inconsistent with this long-standing DEA policy.
Pursuant to 21 U.S.C. 823(h), the Administrator may deny an application for a DEA Certificate of Registration if he determines that granting the registration would be inconsistent with the pubic interest. Section 823(h) requires the following factors be considered:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws related to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied.
The Administrator finds that factors one and four are relevant to this case. The president/owner of Performance freely admitted his firm is a general contractor, and has no experience in handling listed chemicals. He further states he did not wish to manufacture the chemical, but only to make a one-time distribution pursuant to the request of a customer. There is no evidence concerning what measures, if any, Performance would take to prevent the diversion of the List I chemical. The DEA investigation showed Performance's proposed use of the chemical is not consistent with industry practice. The Administrator finds the public interest is not served by granting a DEA registration for a one-time distribution of a List I chemical to an entity with no experience in handling listed chemicals; having no intent to enter into the business of handling listed chemicals; for an alleged purpose inconsistent with industry practice; and where there is no evidence of controls to prevent the diversion of the chemical to the illicit manufacture of a Schedule I controlled substance.
Furthermore, granting this application would violate the long-standing DEA policy against “shelf registrations.”
Therefore, for the above-stated reasons, the Administrator concludes that it woudl be inconsistent with the public interest to grant the application of Performance.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Wayne Patrick, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid, registered return receipt to Mr. Daniel V. Heleski, Performance Construction, Inc., 308 West Highland Drive, Lakeland, Florida 33813.
On or about January 23, 2001, the Deputy Assistant Administration, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to State Petroleum, Inc. (State Petroleum), located in Dearborn, Michigan, notifying it of an opportunity to show cause as to why the DEA should not deny in application, dated June 17, 2000, for a DEA Certificate of Registration as a distributor of the List I chemicals ephedrine and pseudoephedrin, pursuant to 21 U.S.C. 823(h), as being inconsistent with the public interest. The order also notified State Petroleum that, should no request for hearing be filed within 30 days, the right to a hearing would be waved.
The OTSC was received, as indicated by tbe signed postal return receipt, received by DEA February 12, 2001. Since that time, no further response has been received from the applicant nor any person purporting to represent the applicant. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes that State Petroleum is deemed to have waived its right to a hearing. After considering relevant material from the investigate file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Administrator finds as follows. List I chemicals are chemicals that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act 21 u.S.C. 802(34); 21 CFR 1310.02(a). Pseudoephedrine and ephedrine are List I chemicals that are commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant, and its abuse is a growing problem in the United States.
The Administrator finds that on or about June 17, 2001, an application was received by the DEA Chemical Operations Registration section on behalf of State Petroleum for DEA registration as a distributor of the two above-mentioned List I chemicals. The DEA pre-registration inspection on July 7, 2001, revealed that State Petroleum had no prior experience in distributing List I chemical products. A corporate representative stated to DEA investigators that State Petroleum was in the business of wholesaling automotive chemical and petroleum products. The DEA inspection revealed State Petroleum appeared unprepared to accept the responsibilities of a DEA registant. The inspection noted deficiencies in State Petroleum's proposed recordkeeping system that clearly show the firm's ability to comply with DEA's recordkeeping requirements. The DEA investigation also revealed a number of State Petroleum's proposed supplier was out of business and a random sampling of proposed customers either were not interested in distributing List I chemical products, or were already receiving List I chemical products from other suppliers.
Pursuant to 21 U.S.C. § 823(h), the Administrator may deny an application for a DEA Certificate of Registration if he determines that granting the registration would be inconsistent with the public interest. Section 823(h) requires the following factors be considered:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied.
The Administrator finds factors one, four, and five relevant to this case.
Regarding factor one, the maintenance of effective controls against the diversion of listed chemicals, the DEA pre-registration inspection documented inadequate recordkeeping arrangements, in that State Petroleum intended to sell List I chemicals solely on a “cash and carry” basis, and there would be no computerized database with which to track sales to determine whether thresholds and recordkeeping requirements were being met. State Petroleum admitted that its proposed “cash and carry” plan for distribution of List I chemical products would be inadequate to meet DEA recordkeeping requirements.
Regarding factor four, the applicant's past experience in the distribution of chemicals, the DEA investigation revealed that State Petroleum has no previous experience related to handling or distributing listed chemicals.
Regarding factor five, other factors relevant to and consistent with the public safety, the Administrator finds that State Petroleum is unprepared to successfully meet the requirements of a DEA List I chemical registrant. State Petroleum admitted its proposed recordkeeping system would be inadequate to comply with DEA requirements. State Petroleum further could not explain any planned controls against diversion.
In addition, State Petroleum's proposed supplier was out of business, and a random sampling of its proposed customers either had no interest in List I chemical products, or were already receiving their List I chemical products from other suppliers. Thus State Petroleum failed to provide DEA with information demonstrating it had a legitimate source for List I chemical
Therefore, for the above-stated reasons, the Administrator concludes that it would be inconsistent with the public interest to grant the application of State Petroleum.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 28 CFR 0.100(b) and 0.104, hereby orders that the application for a DEA Certificate of Registration submitted by State Petroleum, Inc. be denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Wayne Patrick, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid, registered return receipt to Mr. Mohammed Saghir, State Petroleum, Inc., 6200 Miller Road, Dearborn, Michigan 48126.
On July 29, 2000, the Administrator of the Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) by certified mail to Transtar Distributors, Inc. (Transtar), located in Orlando, Florida, notifying it of a preliminary finding that, pursuant to evidence set forth therein, it was responsible for the diversion of large quantities of List I chemicals into other than legitimate channels. Based on these preliminary findings, and pursuant to 21 U.S.C. 824(d) and 28 CFR 0.100 and 0.104, the OTSC suspended Transtar's DEA Certificate of Registration, effective immediately, with such suspension to remain in effect until a final determination is reached in these proceedings. The OTSC informed Transtar and its owner/president, Nabil Maswadeh (Maswadeh) of an opportunity to request a hearing to show cause as to why the DEA should not revoke its DEA Certificate of Registration, 004662TIY, and deny any pending applications for renewal or modification of such registration, for reason that such registration is inconsistent with the public interest, as determined by 21 U.S.C. 823(h). The OTSC also notified Transtar that, should no request for hearing be filed within 30 days, its right to a hearing would be considered waived.
On August 16, 2000, the OTSC was returned to DEA, marked “Return To Sender—Unclaimed.” No request for a hearing or any other response was received by DEA from Transtar or Maswadeh nor anyone purporting to represent the registrant in this matter. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes Transtar is deemed to have waived its right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43 (d) and (e) and 1301.46.
The Administrator finds as follows. List I chemicals are chemicals that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 1310.02(a). Pseudoephedrine is a List I chemical that is commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant, and its abuse is a growing problem in the United States.
A “regulated person” is a person who manufactures, distributes, imports, or exports inter alia a listed chemical. 21 U.S.C. 802(38). A “regulated transaction” is inter alia a distribution, receipt, sale, importation, or exportation of a threshold amount of a listed chemical. 21 U.S.C. 802(39). The Administrator finds all parties mentioned herein to be regulated, and all transactions mentioned herein to be regulated transactions, unless otherwise noted.
The DEA investigation shows that at the time of Transtar's pre-registration investigation on December 17, 1999, Maswadeh was personally served with the DEA notices informing him that ephedrine and pseudoephedrine are diverted for use in clandestine methamphetamine laboratories, as well as the notice of informing him that possession or distribution of a listed chemical knowing or having reasonable cause to believe that the listed chemical will be used to manufacture a controlled substance is a violation of the Controlled Substances Act.
The DEA investigation shows that by March, 2000, Transtar was amassing a large quantity of pseudoephedrine. On March 20, 2000, DEA investigators observed 19 large boxes containing approximately 100 cases of pseudoephedrine being delivered to Transtar. The shipment was received by a business associate of Maswadeh, who used a fictitious name when signing for the shipment. Maswadeh was present when this shipment was received.
Between March 20 and March 24, 2000, DEA investigators observed Maswadeh and his associate remove numerous large cardboard boxes from Transtar and place them into a storage unit. On March 24, 2000, DEA investigators observed Maswadeh ship three large boxes to California. A subsequent search of the boxes revealed approximately 3,036 bottles of pseudoephedrine, each bottle containing 120 tablets, for a total of 364,320 dosage units. The manufacturer's lot numbers and expiration dates had been scraped off of the bottles. The shipping label bore fictitious names for both the shipper and receiver, and also bore a fictitious address for the shipper.
During this same time period, DEA investigators on several occasions observed Maswadeh and his associate place items in a dumpster located near Transtar. A search of the dumpster revealed 24 large cardboard boxes bearing inscriptions indicating that the boxes had contained pseudoephedrine. A subsequent search of the dumpster revealed numerous labels containing lot numbers that had been scraped off pseudoephedrine bottles. Additional items recovered from the dumpster included: receipts and shipping documents indicating Transtar was receiving large amounts of pseudoephedrine from numerous suppliers; five sealed bottles of ephedrine with their lot numbers and expiration dates removed; and a Federal Express Airbill indicating that a 90 pound shipment was sent to California on March 3, 2000. The Airbill showed address information consistent with the California address to which Maswadeh had sent shipments of pseudoephedrine. The Airbill bore a fictitious name and address for the shipper.
On March 25 and 26, 2000, DEA investigators observed Maswadeh removing boxes of pseudoephedrine from the above-referenced storage unit. Also during this time, Maswadeh was observed placing items into a common
On April 19, 2000, DEA received information that Transtar was attempting to place an order with a pharmaceutical manufacturer in New York for 300,000 bottles of pseudoephedrine per month.
On June 1, 2000, DEA Confidential Source information revealed Maswadeh was willing to sell 240 cases of pseudoephedrine for the purpose of illegally manufacturing methamphetamine.
On June 7, 2000, a search warrant was served upon the above-referenced storage unit. DEA investigators seized approximately 240 cases of pseudoephedrine tablets. Some of the pseudoephedrine was still in bottles, and some was loose in plastic bags.
On June 10, 2000, Maswadeh met with an undercover DEA agent and agreed to transport the 240 cases of pseudoephedrine in a rented van.
Confidential Source information acquired by DEA indicates Maswadeh and his associates were selling pseudoephedrine to individuals on the West Coast knowing that the chemical was to be used in the illicit manufacture of methamphetamine.
Therefore, pursuant to 21 U.S.C. 824(d), the Administrator of the DEA issued an immediate suspension of Transtar's DEA Certificate of Registration. While the above-cited evidence provides ample grounds for an immediate suspension pursuant to § 824(d), these grounds also provide the basis for the revocation of Transtar's DEA Certificate of Registration.
Pursuant to 21 U.S.C. 824(a), the Administrator may revoke a registration to distribute List I chemicals upon a finding that the registrant has committed such acts as would render his registration under section 823 inconsistent with the public interest as determined under that section. Pursuant to 21 U.S.C. 823(h), the following factors are considered in determining the public interest:
(1) Maintenance of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance with applicable Federal, State, and local law;
(3) Any prior conviction record under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate in determining whether a registration should be revoked or an application for registration be denied
Regarding the first factor, maintenance of effective controls against diversion, the Administrator finds substantial evidence in the investigative file that Transtar and Maswadeh actively participated in the illegal diversion of pseudoephedrine knowing it would be used to manufacture methamphetamine.
Regarding the second floor, compliance with applicable Federal, State, and local law, the investigative file in this matter reveals substantial evidence indicating that Transtar and Maswadeh significantly violated applicable law. In shipping substantial quantities of pseudoephedrine using fictitious names and addresses and in removing or otherwise destroying labels and lot numbers, Maswadeh clearly was attempting to conceal his activities from law enforcement. In addition, Confidential Source information showed that Maswadeh was willing to sell 240 cases of pseudoephedrine for the stated purpose of illicit manufacture of methamphetamine, and even stated to a DEA undercover agent that he was willing to deliver the 240 cases of chemicals in a rented van he would provide. The Administrator finds these facts support the following violations of applicable law: Transtar and Maswadeh violated 21 U.S.C. 841(d)(1) (possession of a listed chemical with intent to manufacture a controlled substance); 841(d)(2) (possession/distribution of a listed chemical knowing or having reasonable cause to believe that the listed chemical will be used to manufacture a controlled substance); 841(g)(1) (knowing distribution of a listed chemical in violation of the Controlled Substances Act); 841(g)(2) (possession of a listed chemical with knowledge that recordkeeping or reporting requirements not adhered to); 842(a)(5) and (10) (failure to keep required records); and 830(b)(1)(a) (failure to report any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance the regulated person believes may indicate that the listed chemical will be used in violation of this subchapter). (Note: subparagraphs (d) and (g) of 841 have been redesignated as (c) and (f)).
Regarding the third factor, any prior conviction record under Federal or State laws relating to controlled substances or chemicals, there is no evidence in the investigative file that Transtar or Maswadeh has any record of convictions under Federal or State laws relating to controlled substances or chemicals.
Regarding the fourth factor, past experience in the manufacture and distribution of chemicals, the Administrator finds substantial evidence in the investigative file that Maswadeh actively participated in the illegal trafficking of pseudoephedrine, knowing that it was being diverted to the manufacture of methamphetamine, as set forth in factor two, above.
Regarding the fifth factor, such other factors relevant to and consistent with the public safety, the Administrator finds substantial evidence that Transtar and Maswadeh significantly violated applicable law by illegally trafficking substantial quantities of pseudoephedrine knowing it was being diverted to the manufacture of methamphetamine and further by failing to keep and maintain required records and failure to report suspicious listed chemical transactions.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration 004662TTY, previously issued to Transtar Distributors, Inc., be, and it hereby is, revoked; and any pending applications for renewal or modification of said registration be, and hereby are, denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Linden Barber, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage
On January 9, 2001, the Administrator of the Drug Enforcement Administration (DEA), issued an Order to Show Cause (OTSC) to Yemen Wholesale Tobacco and Candy Supply, Inc. (Yemen), located in Yonkers, New York, notifying it of a preliminary finding that, pursuant to evidence set forth therein, it was responsible fro the diversion of large quantities of List I chemicals into other than legitimate channels. Based on these preliminary findings, and pursuant to 21 U.S.C. 824(d) and 28 CFR §§ 0.100 and 0.104, the OTSC suspended Yemen's DEA Certificate of Registration, effective immediately, with such suspension to remain in effect until a final determination is reached in these proceedings. The OTSC informed Yemen of an opportunity to request a hearing to show cause as to why the DEA should not revoke its DEA Certificate of Registration, 003952YAY, and deny any pending applications for renewal or modification of such registration, for reason that such registration is inconsistent with the public interest, as determined by 21 U.S.C. 823(h). The OTSC also notified Yemen that, should no request for hearing be filed within 30 days, its right to a hearing would be considered waived.
On January 9, 2001, a copy of the OTSC was served upon Hasham Alkaifi, Vice President of Yemen. No request for a hearing or any other response was received by DEA from Yemen or Alkaifi nor anyone purporting to represent the registrant in this matter. Therefore, the Administrator of the DEA, finding that (1) thirty days having passed since receipt of the Order to Show Cause, and (2) no request for a hearing having been received, concludes Yemen is deemed to have waived its right to a hearing. After considering relevant material from the investigative file in this matter, the Administrator now enters his final order without a hearing pursuant to 21 CFR 1301.43 (d) and (e) and 1301.46.
The Administrator finds as follows. List I chemicals are chemicals that may be used in the manufacture of a controlled substance in violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 1310.02(a). Pseudoephedrine is a List I chemical that is commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance. Methamphetamine is an extremely potent central nervous system stimulant, and its abuse is a growing problem in the United States.
A “regulated person” is a person who manufactures, distributes, imports, or exports
Yemen became registered with the DEA January 25, 1999, as a distributor if List I chemicals. During the pre-registration inspection of Yemen's premises, Yemen was asked to provide a list of proposed suppliers of List I chemical products, and a list of proposed customers for its List I chemical products. DEA investigators subsequently attempted to contact each of the proposed suppliers and customers. Investigation showed that Yemen had made no arrangements with any of the suppliers or customers.
On or about August 18, 1999, 802 bottles of 60 count, 60 mg. pseudoephedrine tablets were sized en route to an individual in Oakland, California. The address was not a DEA registered location authorized to handle List I chemicals. The investigation showed the bottles originated from Yemen, and were sent to Oakland from a business called “One Hour Photo” in New York, also not authorized by DEA to buy or sell List I chemicals.
On August 30, 1999, DEA investigators seized 1,056 bottles of 120 count, 60 mg. pseudoephedrine tablets from a public storage facility in San Pablo, California. The storage facility was not a DEA registered location authorized to handle List I chemicals. An individual was arrested at the time of this seizure, and an additional 3,408 bottles of the same product were seized from his vehicle. The DEA investigation revealed all 4,464 bottles originated from Yemen.
On October 5, 1999, DEA investigators interviewed the arrested individual referenced in the preceding paragraph. That individual stated that Mr. Alkafa, President of Yemen, was one of a number of persons who diverted pseudoephedrine from the East Coast to the West Coast. He further stated that those who wanted to purchase pseudoephedrine for the illicit manufacture of methamphetamine would purchase a money order at his market, made payable to Alkafa. The money order would be sent to Alkafa, who would deliver the pseudoephedrine to California.
On or before December 8, 1999, Yemen received a Warning Letter from DEA. This letter informed Yemen that its List I chemical product, labeled “Action Release” pseudoephedrine, had been discovered in various illicit settings consistent with the illicit manufacture of the controlled substance methamphetamine. The letter specified two locations; one at San Pablo, California in August, 1999, the other at Oakland, California, in August, 1999.
The DEA investigation also revealed Yemen purchased in excess of 3,594,000 dosage units of 60 mg. pseudoephedrine tablets subsequent to the receipt of this Warning Letter, between February 4, 2000, and July 25, 2000.
On August 7, 2000, a criminal search warrant was served upon Yemen. The search revealed Yemen kept no records of its purchases or sales of pseudoephedrine. The DEA investigation showed, however, that Yemen purchased approximately 26 million dosage units of pseudoephedrine from various suppliers between November 22, 1999, until July 25, 2000.
Also during the August 7, 2000, execution of the search warrant, DEA investigators discovered Yemen had stored approximately 1.6 million dosage units of 60 mg. pseudoephedrine in an off-site storage unit at an unregistered address. This pseudoephedrine was seized, and Hasham Alkaifi, Vice President of Yemen and nephew of Alkafa, was interviewed. He stated to investigators that Alkafa was in Yemen (the country), but was continuing to order pseudoephedrine on behalf of Yemen Wholesale. Alkaifi had rented the storage unit and stored the pseudoephedrine there at Alkafa's director. Alkaifi was not aware of any customers for the 1.6 million dosage units at the storage facility.
Therefore, pursuant to 21 U.S.C. 824(d), the Administrator of the DEA issued an immediate suspension of Yemen's DEA Certificate of Registration. While the above-cited evidence provides ample grounds for an immediate suspension pursuant to § 824(d), these grounds also provide the
Pursuant to 21 U.S.C. 824(a), the Administrator may revoke a registration to distribute List I chemicals upon a finding that the registrant has committed such acts as would render his registration under section 823 inconsistent with the public interest as determined under this section. Pursuant to 21 U.S.C. 823(h), the following factors are considered in determining the public interest:
(1) Maintenance of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance with applicable Federal, State, and local law;
(3) Any prior conviction record under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
Like the public interest analysis for practitioners and pharmacies pursuant to subsection (f) of section 823, these factors are to be considered in the disjunctive; the Administrator may rely on any one or combination of factors and may give each factor the weight he deems appropriate determining whether a registration should be revoked or an application for registration be denied.
Regarding the first factor, maintenance of effective controls against diversion, the Administrator finds substantial evidence in the investigative file that Yemen and Alkafa actively participated in the illegal diversion of pseudoephedrine knowing it would be used to manufacture methamphetamine.
Regarding the second factor, compliance with applicable Federal, State, and local law, the investigative file that Yemen and Alkafa, and Alkaifi significantly violated applicable law in the following primary instances: first, by trafficking List I chemicals knowing that they would be diverted to the illicit manufacture of methamphetamine; second, by failing to keep and maintain required records; and third, by failing to report suspicious transactions. The confession of the individual arrested in California implicated Yemen and Alkafa in the active diversion of pseudoephedrine to the illicit manufacture of methamphetamine; the DEA search of August 7, 2000, revealed Yemen failed to keep or maintain any records of its pseudoephedrine sales and purchases whatsoever; and the DEA investigation showed Yemen failed to report various suspicious transactions (money orders from California for List I chemical products; sales to individuals not registered with DEA as authorized to handle List I chemicals; failure to report transactions involving extraordinary quantities of a listed chemical).
The Administrator thus finds substantial evidence showing Yemen and Alkafa violated 21 U.S.C. 841(d)(1) (possession of a listed chemical with intent to manufacture a controlled substance); 841(d)(2) (possession/distribution of a listed chemical knowing or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance); 841(g)(1) (knowing distribution of a listed chemical in violation of the Controlled Substances Act); 841(g)(2) (possession of a listed chemical with knowledge that recordkeeping or reporting requirements not adhered to); 842(a)(5) and (10) (failure to keep required records); and 830(b)(1)(a) (failure to report any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance the regulated person believes may indicate that the listed chemical will be used in violation of this subchapter). (Note: subparagraphs (d) and (g) of 841 have been redesignated as (c) and (f)).
Regarding the third factor, any prior conviction record under Federal or State laws relating to controlled substances or chemicals, there is no evidence in the investigative file that Yemen, Alkafa, or Alkaifi have any record of convictions under Federal or State laws relating to controlled substances or chemicals.
Regarding the fourth factor, past experience in the manufacture and distribution of chemicals, the Administrator finds substantial evidence in the investigative file that Yemen and Alkafa actively participated in the illegal trafficking of pseudoephedrine, knowing that it was being diverted to the manufacture of methamphetamine, and completely ignored the responsibilities of a DEA registrant. Yemen was shipping pseudoephedrine individuals in California not registered with DEA. Yemen purchased almost 26 million dosage units of pseudoephedrine during an eight month period, yet failed to keep required records concerning these purchases and sales. At the time of the service of the criminal search warrant, Yemen continued to stockpile 1.6 million dosage units of pseudoephedrine in an unregistered off-site storage unit facility, for no stated legitimate purpose. The Administrator concludes that there is substantial evidence in the investigative file that this pseudoephedrine was also intended to be diverted to the illicit manufacture of methamphetamine.
Regarding the fifth factor, such other factors relevant to and consistent with the public safety, the Administrator finds substantial evidence that Yemen significantly violated applicable law by illegally trafficking millions of dosage units of pseudoephedrine knowing it was being diverted to the manufacture of methamphetamine and further by failing to keep and maintain required records and failure to report suspicious listed chemical transactions.
Accordingly, the Administrator of the Drug Enforcement Administration, pursuant to the authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate of Registration 003952YAY, previously issued to Yemen Wholesale Tobacco and Candy Supply, Inc., be, and it hereby is, revoked; and any pending applications for renewal or modification of said registration be, and hereby are, denied. This order is effective April 4, 2002.
This is to certify that the undersigned, on February 25, 2002, placed a copy of the Final Order referenced in the enclosed letter in the interoffice mail addressed to Brian Bayly, Esq., Office of Chief Counsel, Drug Enforcement Administration, Washington, DC 20537; and caused a copy to be mailed, postage prepaid, registered return receipt to Mr. Nagi Alkafa, Yemen Wholesale Tobacco & Candy Supplies, Inc., 350 South Broadway, Yonkers, New York 10705
Notice of information collection under review: new collection; Violent Criminal Apprehension Program (VICAP) Sexual Assault Crime Analysis Report.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI) has submitted the following formation collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 day for public comment until April 14, 2002. This process is conducted in accordance with 5 CFR 1320.10. Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office Of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Officer, Washington, DC 20503. Comments may also be submitted to Mr. Robert B. Briggs, Department Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, 601 D Street, NW., Suite 1600, Washington, DC 20004.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: to be assigned. Department of Justice, Federal Bureau of Investigation, Violent Criminal Apprehension Program Unit.
(4)
(5)
(6)
If additional information is required contact: Robert B. Briggs, Department Clearance Officer, Information Management and Security Staff, Justice Management Division, United States Department of Justice, 601 D Street, NW, Suite 1600, Washington, DC 20004. Public comment on this proposed information collection is strongly encouraged.
60-Day notice of information collection under review; Application for waiver of passport and/or visa; Form I-193.
The Department of Justice, Immigration and Naturalization Service has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until May 6, 2002.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the
If additional information is required contact: Mr. Robert B. Briggs, Clearance Office, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Patrick Henry Building, 601 D Street, NW., Suite 1600, Washington, DC 20530.
30-Day notice of information collection under review: Employment authorization document; Form I-765.
The Department of Justice, Immigration and Naturalization Service (INS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until April 4, 2002. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, 725-17th Street, NW., Room 10235, Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Solan 202-514-3291, Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, U.S. Department of Justice, Room 4034, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Robert B. Briggs, Clearance Office. United States Department of Justice, Information Management and Security Staff, Justice Management Division, Patrick Henry Building, 601 D Street, NW., Ste. 1600, Washington, DC 20530.
60-Day notice information collection under review: New collection: needs assessment for service providers of trafficking victims telephone survey.
The Department of Justice, Office of Justice Programs, Bureau of Justice Statistics has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with emergency review procedures of the Paperwork Reduction Act of 1995. OMB approval has been requested by March 13, 2003. The proposed information collection is published to obtain comments from the public and affected agencies. If granted, the emergency approval is only valid for 180 days. Comments should be directed to OMB, Office of Information Regulation Affairs, Attention: Department of Justice Desk Officer (202) 395-6466, Washington, DC 20503.
During the first 60 days of this same review period, a regular review of this information collection is also being undertaken. All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
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If additional information is required contact: Ms. Brenda E. Dyer, Deputy Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 1600, 601 D Street, NW, Wasington, DC 20530.
Office of Justice Programs, Bureau of Justice Assistance, Justice.
Notice of meeting.
Announcement of a meeting of the Global Justice Information Network Federal Advisory Committee to discuss the Global Initiative, as described in Initiative A07 “Access America: Re-Engineering Through Information Technology.”
The meeting will take place on Thursday, April 11, 2002, from 9 a.m. to 5 p.m. ET.
The meeting will take place at the Department of Justice, Office of Justice Programs, 3rd floor Ballroom, 810 7th Street, NW., Washington, DC, 20531; Phone: (202) 616-6500. All attendees will be required to sign in at the security desk, so please allow extra time.
To register to attend the meeting, please contact Karen Sublett, Global Designated Federal Employee, Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street NW., Fourth Floor, Washington, DC 20531; Phone: (202) 616-3463. [This is not a toll-free number]. Anyone requiring special accommodations should contact Ms. Sublett at least seven (7) days in advance of the meeting. Due to security measures in the building, members of the public who wish to attend the meeting must register with Ms. Sublett at least (7) days in advance of the meeting. Access to the meeting will not be allowed without registration.
The Global Justice Information Network Federal Advisory Committee was established pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended.
The Global Justice Information Network Federal Advisory Committee (GAC) will act as the focal point for justice information systems integration activities in order to facilitate the coordination of technical, funding, and legislative strategies in support of the Administration's justice priorities.
The GAC will guide and monitor the development of the Global information sharing concept. It will advise the Assistant Attorney General, OJP, the Attorney General, the President (through the Attorney General), and local, state, tribal, and federal policymakers in the executive, legislative, and judicial branches and advocate for strategies for accomplishing a Global information sharing capability.
The Committee will meet to address the Global Initiative, as described in Initiative A07 “Access America: Re-Engineering Through Information Technology”. This meeting will be open to the public, and registrations will then be accepted on a
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before April 19, 2002. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
To request a copy of any records schedule identified in this notice, write to the Life Cycle Management Division (NWML), National Archives and Records Administration (NARA), 8601 Adelphi Road, College Park, MD 20740-6001. Requests also may be transmitted by FAX to 301-713-6852 or by e-mail to
Marie Allen, Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: (301)713-7110. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of the Air Force, Agency-wide (N1-AFU-01-4, 32 items, 32 temporary items). Records relating to inventory control of medical supplies and equipment. Records include an electronic information system, source documents used for input into the system, records of transactions, and outputs, including financial reports, equipment management reports, and other reports. Also included are electronic copies of records created using electronic mail and word processing. Most of the series covered by this schedule were previously approved for disposal.
2. Department of Commerce, Office of Administrative Services (N1-40-01-5, 26 items, 25 temporary items). Records accumulated in the immediate Office of the Director and Management Support staff and in the Offices of Real Estate Policy and Programs, Administrative Operations, and Space and Building Management. Included are such records as program subject files, checkbook and parking permit databases, building delegations and lease files, personal property case files, electronic floor plans, building maintenance documents, and asbestos abatement and employee asbestos training files. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are historical photographs of the construction of the Herbert Clark Hoover Building in 1929 and early views of the building.
3. Department of Commerce, Technology Administration (N1-40-01-1, 23 items, 13 temporary items). Program subject correspondence of the Deputy Under Secretary, chronological files, fellowship program files, unsuccessful nominations for the National Medal of Technology, records relating to the Partnership for a New Generation of Vehicles program, copies of briefing books and publications, and working papers. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of such files as the program correspondence of the Under Secretary for Technology, trip and speech files, minutes of meetings, program files of the Office of Technology Policy, the Air and Space Commercialization Office, and the Interagency Global Positioning Satellite Evaluation Board, and grant files of the Experimental Program to Stimulate Competitive Technology.
4. Department of Defense, Joint Staff and Combatant Commands (N1-218-00-5, 41 items, 25 temporary items). Records relating to information and legal matters, including correspondence, case files, background papers, drafts, transcripts, press releases, and minutes of meetings. Records pertain to such subjects as interaction with the White House and Congress, public relations, general legal matters, military justice, financial disclosures, and patent matters. Also included are electronic copies of documents created using
5. Department of Defense, Joint Staff and Combatant Commands (N1-218-00-8, 58 items, 43 temporary items). Records relating to communications and electronics matters, including correspondence, case files, background papers, drafts, transcripts, publications, and minutes of meetings. Records pertain to such matters as communications and electronic testing and equipment, frequency and spectrum management, networks and circuits, interoperability standards, cryptology, communication and message center operations, and satellite communications. Also included are electronic copies of documents created using electronic mail and word processing as well as electronic systems maintained at combatant commands that feed into systems maintained at higher levels. Recordkeeping copies of files pertaining to such subjects as the policies and procedures governing communications, electronics, frequency/spectrum management, cryptology, and satellite communications are proposed for permanent retention as are related publications.
6. Department of Defense, Defense Commissary Agency, (N1-506-02-1, 19 items, 19 temporary items). Records relating to the acquisition of supplies, equipment, and services through contracting and procurement activities. Included are such records as directives, contracting officer designations, advance planning files, program reviews, contract clause deviations, and status and inspection reports. Also included are electronic copies of documents created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
7. Department of Defense, Defense Information Systems Agency (N1-371-02-2, 6 items, 6 temporary items). Year 2000 (Y2K) program records, including such records as reports, briefings, project plans, risk assessments, system identification criteria, and conversion strategies as well as files relating to administering the program. Also included are electronic copies of documents created using electronic mail and word processing.
8. Department of Energy, Agency-wide (N1-434-01-8, 10 items, 8 temporary items). Copies of internal publications, such as newsletters and bulletins, and records of national and international conferences and conventions that do not have historical significance and/or are accumulated by offices other than the sponsoring office. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of internal publications and files relating to significant conferences and conventions sponsored by the agency or its contractors.
9. Department of Housing and Urban Development, Office of Federal Housing Enterprise Oversight (N1-543-02-1, 25 items, 18 temporary items). Records accumulated by the Office of External Relations. Included are such files as mailing lists, Web site content records, and Web site management records. Proposed for permanent retention are recordkeeping copies of such files as annual reports to Congress, agency news releases, House Price Index publications, captioned photographs portraying significant agency events and personalities, public affairs videotapes, and speeches of the agency Director. Also included are electronic copies of documents created using electronic mail and word processing.
10. Department of Justice, Drug Enforcement Administration (N1-170-01-3, 12 items, 12 temporary items). Physical security files relating to measures taken for the protection of facilities. Included are such records as facilities survey and inspection files, pre-construction surveys, mid-construction surveys, and final acceptance files. Also included are correspondence, instructions, studies, messages, interpretations, and coordinating actions relating to the administration and operation of the physical security program as well as electronic copies of documents created using electronic mail and word processing.
11. Department of Labor, Occupational Safety and Health Administration (N1-100-02-1, 6 items, 4 temporary items). Electronic copies of records created using electronic mail and word processing relating to plans and policy decisions for the implementation of agency programs at the state level. Also included are extra copies of these records. Recordkeeping copies of these files are proposed for permanent retention.
12. Department of State, Bureau of Human Resources, N1-59-00-18, 32 items, 32 temporary items). Records relating to support services provided to Foreign Service Officers and civil service employees and their families. Included are such records as policy and procedures files, subject files, evacuation files, publications, and files that document the provision of information concerning available support services. Also included are electronic copies of documents created using electronic mail and word processing.
13. Department of State, Bureau of Human Resources (N1-59-00-9, 7 items, 7 temporary items). Records relating to hiring civil service employees, including position descriptions, applicant tracking systems, pre-appointment files, and files relating to the priority consideration of applicants. Also included are electronic copies of documents created using electronic mail and word processing.
14. Department of State, Bureau of Human Resources (N1-59-00-17, 9 items, 9 temporary items). Records relating to human resources planning, including class action lawsuit files, correspondence files, staffing statistical reports, and personnel planning studies. Also included are electronic copies of documents created using electronic mail and word processing.
15. Department of State, Bureau of Political and Military Affairs (N1-59-01-20, 16 items, 11 temporary items). Records relating to developing and implementing programs for the removal of mines for humanitarian purposes. Records include budget submissions, financial records, and funding allocation memorandums. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of chronological files, project files, policy and procedures files, interagency working group files, and a master set of publications.
16. Department of State, Bureau of Political and Military Affairs (N1-59-01-23, 10 items, 9 temporary items). Records relating to public and congressional affairs issues. Included are such records as chronological files, congressional inquiries, copies of legislative referral memorandums, and press guidance documents. Also included are electronic copies of documents created using electronic mail and word processing. Recordkeeping copies of briefing books prepared for senior officials are proposed for permanent retention.
17. Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms (N1-436-01-2, 7 items, 7 temporary items). Year 2000 (Y2K) conversion records. Included are such records as plans, lists of systems, risk assessments, contracts, and correspondence with vendors, Congress, the Office of Management and Budget, and the General Accounting Office. Also included are electronic copies of documents created using electronic mail and word processing.
18. Environmental Protection Agency, Office of Prevention, Pesticides, and Toxic Substances (N1-412-01-10, 3 items, 3 temporary items). Log books, registers, and other tracking records used to control and account for the receipt status, maintenance, or use of records that contain Toxic Control Substances Act confidential business information. Also included are electronic copies of documents created using electronic mail and word processing. Copies of these records that are placed in case files will be retained with the related case records in accordance with the previously approved disposition instruction for case files.
19. Federal Emergency Management Agency, Office of Financial Management (N1-311-01-3, 3 items, 1 temporary item). Electronic copies of records created using word processing and electronic mail that pertain to budget policy and budget estimates and justifications. Recordkeeping copies of these files are proposed for permanent retention.
20. National Archives and Records Administration, Office of General Counsel (N1-64-02-5, 5 items, 5 temporary items). Records relating to the agency's alternative dispute resolution program, including policy documents, case files, and administrative files. Also included are electronic copies of records created using electronic mail and word processing.
21. United States Commission for the Preservation of America's Heritage Abroad, Agency-wide (N1-220-02-8, 14 items, 8 temporary items). Commission members' files, constituent mail, staff files, reports and projects working papers, extra copies of publications, procurement records, and records related to the Commission's Web site. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of Commission correspondence, meeting minutes and testimony, country files and agreements, Congressional and budget reports, and historical site reports. Also proposed for permanent retention is a Web site snapshot.
National Science Foundation.
Notice of Permit Modification Received under the Antarctic Conservation Act of 1978, P.L. 95-541.
The National Science Foundation (NSF) is required to publish a notice of requests to modify permits issued to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of a requested permit modification.
Interested parties are invited to submit written data, comments, or views with respect to this permit application within 30 days of the publication of this notice. Permit applications may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Nadene G. Kennedy at the above address or (703) 292-7405.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Public Law 95-541), has developed regulations that implement the “Agreed Measures for the Conservation of Antarctic Fauna and Flora” for all United States citizens. The Agreed Measures, developed by the Antarctic Treaty Consultative Parties, recommended establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas as requiring special protection. The regulations establish such a permit system to designate Specially Protected Areas and Sites of Special Scientific Interest.
The Foundation issued a permit (ACA #2001-025) to Dr. Daniel P. Costa on March 12, 2001. The issued permit allows the applicant to capture up to 25 Crabeater seals (Lobodon carcinophagus), and up to 10 each of Leopard (Thydrrurga leoptony), Weddell (Leptonyshotes weddellii), and Ross seals (Ommatophoca rossil) per season over the next 3 years for the purpose of collecting blood, tissue and stomach samples, take measurements, and attach satellite relay data loggers (SRDL) and VHF radio tags. The samples will be studied to determine and better understand the foraging strategies utilized by marine predators in the face of meso- and fine-scale ecological variability.
The applicant requests a modification to his permit to allow access to the Antarctic Specially Protected Areas of the Dion Islands (ASPA #107), Lagotellerie Island (ASPA #115), Avian Island (ASPA #117), and Rothera Point, Adelaide Island (ASPA #129) located in the Antarctic Peninsula. The applicant had difficulty locating seals in the Marguerite pack ice in the spring last season and requests to enter the specially protected areas locate seals hauled out on the shore. This would greatly improve chances of meeting sample goals and allowing vessel usage to be more optimized for the oceanographic studies underway. Access to sites will be by zodiac or small boat.
Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to OMB and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Information pertaining to the requirement to be submitted:
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Submit, by May 6, 2002, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room located at One White Flint North, 11555 Rockville Pike, Rockville, MD. OMB clearance requests are available at the NRC World Wide Web site,
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Brenda Jo. Shelton, U.S. Nuclear Regulatory Commission, T-6 E 6, Washington, DC 20555-0001, by telephone at (301) 415-7233, or by Internet electronic mail at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
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A copy of the final supporting statement may be viewed free of charge at the NRC Public Document Room located at One White Flint North, 11555 Rockville Pike, Rockville, MD. OMB clearance requests are available at the NRC World Wide Web site,
Comments and questions should be directed to the OMB reviewer listed below by April 4, 2002. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Comments can also be submitted by telephone at (202) 395-3087.
The NRC Clearance Officer is Brenda Jo. Shelton, 301-415-7233.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of March 4, 11, 18, 25, April 1, 8, 2002.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of March 11, 2002.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of March 25, 2002.
There are no meetings scheduled for the Week of April 1, 2002.
* 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
Pursuant to Public Law 97-415, the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. Public Law 97-415 revised section 189 of the Atomic Energy Act of 1954, as amended (the Act), to require the Commission to publish notice of any amendments issued, or proposed to be issued, under a new provision of section 189 of the Act. This provision grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from February 8, 2002 through February 21, 2002. The last biweekly notice was published on February 19, 2002 (67 FR 7410).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period.
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
By April 4, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the NRC's PDR, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC web site,
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff, or may be delivered to the Commission's PDR, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and to the attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public
1. The proposed TS changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed TS changes are not associated with accident initiators. The proposed changes are, however, associated with emergency core cooling requirements for loss of coolant mitigation. This event is a loss of coolant from the reactor vessel when the plant is shutdown and was evaluated in the NRC [Nuclear Regulatory Commission] Safety Evaluation Report supporting License Amendment No. 12, dated January 21, 1976. The proposed changes contained in this request do not affect the assumptions or conclusions of that evaluation and do not impact the physical characteristics of the core spray and fire protection systems. Therefore, the proposed changes do not degrade the ability of the core spray and fire protection systems to perform their intended accident mitigation function. The proposed changes to core spray pump/component and fire protection system operability verification versus demonstration in TS 3.4.A.7.c and core spray pump/component operability verification versus demonstration in TS 3.4.A.8.c provide an alternate means of determining equipment operability without reliance on frequent testing. The clarification of the extent of core spray system operability verification in TS 3.4.A.7.c does not change any existing requirements. Therefore, the proposed changes to TS 3.4.A.7.c and 3.4.A.8.c do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed TS changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed TS changes are not associated with accident initiators. They are changes that provide an alternate means of determining equipment operability while eliminating frequent testing.
The proposed changes to TS 3.4.A.7.c and 3.4.A.8.c do not involve the addition of any new plant structure, system or component (SSC). Similarly, the proposed TS changes do not involve physical changes to an existing SSC nor do they modify any current operating parameters. Providing an alternate means of determining equipment operability does not alter the functional capability of any accident mitigation system. The clarification of the extent of core spray system operability verification in TS 3.4.A.7.c does not change any existing requirements. Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed TS changes do not involve a significant reduction in a margin of safety.
The proposed changes to TS 3.4.A.7.c and 3.4.A.8.c are not associated with accident initiators and do not introduce new SSCs or physically impact existing SSCs. They are changes that provide an alternate means (i.e., verification) of determining core spray and fire protection system component operability. The capability of the necessary core spray and fire protection components to provide the required core cooling flow is demonstrated during surveillance testing. While the proposed changes revise the method of determining the operability of the core spray and fire protection system in the reduced availability mode, they do not degrade the ability of the systems to perform their intended function. The clarification of the extent of core spray system operability verification in TS 3.4.A.7.c does not change any existing requirements. Therefore, the proposed TS change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated.
No. The proposed amendment involves refueling interlock operability requirements during refueling operations. The only design-basis accident described in the Oyster Creek Updated Final Safety Analysis Report (UFSAR) for cold shutdown or refueling conditions is a postulated fuel handling (dropped bundle) accident. The refueling interlocks are not postulated to cause, and are not involved in the mitigation of such an accident. Thus, the proposed amendment does not affect the safety function of the refueling interlocks. The proposed alternative actions provide an equivalent level of protection against inadvertent criticality during fuel handling operations. Therefore, this amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
No. The proposed amendment does not affect accident initiators or precursors because it does not alter any design parameter, condition, equipment configuration, or manner in which the unit is operated. Further, it does not alter or prevent the ability of structures, systems, or components to perform their intended safety or accident mitigating functions. Accordingly, the proposed amendment does not create a new or different kind of accident from any accident previously evaluated.
3. Does the amendment involve a significant reduction in a margin of safety?
No. The proposed amendment does not change any design parameter, analysis methodology, safety limits or acceptance criteria. The revised requirement (i.e., proposed alternative) will continue to ensure against inadvertent criticality during fuel handling operations. Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
Based on the NRC staff's review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the
1. Operation of the facility in accordance with the proposed amendment would not involve a significant increase in the probability or consequences of an accident previously evaluated.
This change involves deletion of the TS requirements for the Independent Onsite Safety Review Group [IOSRG]. To satisfy the NUREG-0737 [“Clarification of TMI Action Plan Requirements,” November 1980] guidance concerning organizational independence, the proposed IOSRG alternative provides for technical expertise by onsite engineering and licensing organizations. These site engineering and licensing organizations report through the Site Vice-President and are independent of the production reporting chain through the plant manager. Additionally, high-level management positions are located in the corporate and regional offices for these engineering and licensing organizations which set policy and have responsibility for governance and oversight of these functional areas. These corporate and regional high-level positions are not in the management chain for power production.
Organizational and procedural changes at TMI Unit 1 [Three Mile Island Nuclear Station, Unit 1] following the issuance of NUREG-0737 have resulted in improvements to the review processes that meet the intent of the requirements [of] NUREG-0737 for an IOSRG. Therefore, inclusion of the IOSRG in the plant or plant support organization is unneccessary. In light of the considerable improvement in the processes listed above, the contribution of three full time engineers assigned as a separate group to address nuclear safety oversight is not significant in comparison to the contribution of the overall organization. This change does not affect assumptions contained in the plant safety analyses, the physical design and/or operation of the plant, nor does it affect Technical Specifications that preserve safety analysis assumptions. No Technical Specification Limiting Condition for Operation, Action Statement, or Surveillance Requirement is affected by this change. The proposed change does not alter design, function, operation, or reliability of any plant component. This change does not involve a physical modification to the plant, a mode of operation, or a change to the UFSAR [Updated Final Safety Analysis Report] transient analyses. Normal and accident dose to plant personnel or to the public are unaffected.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Operation of the facility in accordance with the proposed amendment would not create the possibility of a new or different kind of accident from any accident previously evaluated.
This change to remove the IOSRG from the TS[s] is administrative in nature and does not affect the assumptions contained in the plant safety analyses, the physical design and/or modes of plant operation defined in the plant operating license that preserve safety analysis assumptions.
This proposed change does not introduce a new mode of plant operation or surveillance requirement, nor involve a physical modification to the plant. The proposed change does not alter the design, function, or operation of any plant system or component.
Therefore, the change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Operation of the facility in accordance with the proposed amendment would not involve a significant reduction in a margin of safety.
This change only involves Technical Specification Section 6, “Administrative Controls,” which does not include any margins of safety. None of the proposed changes involve a physical modification to the plant, a new mode of operation, an instrument setpoint, or a change to the UFSAR transient analyses. No Limiting Safety System Setting, Technical Specification Limiting Condition for Operation, Action Statement, or Surveillance Requirement is affected. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
Concerning the application of a single-failure-proof handling system for handling heavy loads near or over the Spent Fuel Pool, NUREG-0612, “Control of Heavy Loads at Nuclear Power Plants” asserts that the probability of an accidental load drop while handling loads over the spent fuel is insignificant.
Under the proposed amendment, the evaluation criteria of NUREG-0612, Section 5.1 are satisfied by the combination of (a) the continued implementation of procedures and the practices for both the Fuel Handling Cranes and the Yard Crane that provide conformance with the guidelines of Section 5.1.1 of NUREG-0612, and (b) the application of a single-failure-proof handling system that satisfies the criteria of NUREG-0612, Sections 5.1.2(1) and 5.1.6 for the movement of any load with a weight greater than 1800 pounds either (i) over any spent fuel assembly in the Spent Fuel Pool or (ii) near or over any area of the Spent Fuel Pool, including the Spent Fuel Cask Laydown Area.
The proposed amendment retains existing restrictions on crane travel for the Fuel Handling Cranes, which are not qualified to the single-failure-proof criteria of NUREG-0612. These retained restrictions continue to support the existing safety analysis of Section 15.2.2, “Fuel Handling Accident” of the
Additionally, the proposed amendment corresponds to the application of a single-failure-proof handling system to fulfill the NUREG-0612 Phase II condition that is required prior to the handling of a spent fuel cask near or over any area of the Spent Fuel Pool.
Therefore, the proposed amendment will not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes will allow the handling by a single-failure-proof handling system of loads in excess of 1800 pounds over fuel assemblies in any region of the Spent Fuel Pool, including the Spent Fuel Cask Laydown Area.
Additionally, the proposed changes correspond to the application of a single-failure-proof handling system for the fulfillment of the required condition for the handling of spent fuel casks near or over any area of the Spent Fuel Pool. This required condition is identified in the documentation for the NRC Issuance of License Amendment 125, Ref. (7) [Letter from US NRC to CYAPCO, dated April 26, 1990] and it is acknowledged in the CYAPCO submittal for the proposed license amendment that was issued as License Amendment 188, Ref. (5) [Letter from J. F. Opeka (CYAPCO) to US NRC, “Haddam Neck Plant Proposed Revision to Technical Specifications Spent Fuel Pool Capacity Expansion,” Letter Number B15136, dated March 31, 1995.] and the NRC Issuance of License Amendment 195, Ref. (6) [Letter from T. L. Fredrichs (NRC) to R. A. Mellor (CYAPCO), “Haddam Neck Plant-Issuance of Amendment RE: Relocation of Requirements to Licensee—Controlled Documents (TAC No. MA5756),” dated October 19, 1999].
NUREG-0612, Section 5.1.2 identifies that the capability of a single-failure-proof handling system to handle heavy loads has been identified as equivalent in risk to the capabilities of a non-single-failure-proof heavy load handling system that complies with the criteria of one of the other three alternative sets from NUREG-0612 (including alternative criteria that include analyses concerning postulated heavy load drops).
A structural evaluation of the heavy load interfaces within the Spent Fuel Cask Laydown Area and the Cask Transfer Bay was performed per the requirements of EDR-1 [(Reference 2) Generic Licensing Topical Report EDR-I (P)-A, “EDERER's Nuclear Safety Related eXtra Safety And Monitoring (X-SAM) CRANES,” Revision 3, Amendment 3, dated October 8, 1982] Appendix B and C (Attachments 2 and 3 [attachments to this application]). The results of the evaluation confirmed the design bases for the Spent Fuel Pool and the Spent Fuel Building are maintained.
As such, use of a single-failure-proof handling system precludes the possibility of a heavy load drop which could cause an accident outside of the existing design bases.
Additionally, the proposed changes retain existing restrictions on the travel of non-single-failure-proof cranes over fuel assemblies in the Spent Fuel Pool. These retained restrictions continue to support the existing safety analysis of Section 15.2.2, “Fuel Handling Accident” of the UFSAR, Reference (9).
Therefore, operation of the facility in accordance with the proposed amendment will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Involve a significant reduction in a margin of safety.
Section 5.1.2 of NUREG-0612 identifies that each of the four alternative sets of criteria for the handling of heavy loads near or over the Spent Fuel Pool, including over fuel assemblies, provides a level of safety that is essentially equivalent to the level of safety provided by any of the other three alternative sets of criteria.
The proposed change corresponds to the application of the first of the four alternative sets of criteria, which is described in NUREG-0612 Section 5.1.2(1), implementation of a single-failure-proof handling system.
Additionally, the proposed change includes the retention of existing crane travel restrictions for the Fuel Handling Cranes, therefore, maintaining the existing margin of safety concerning the operation of those other cranes.
Therefore, operation of the facility in accordance with the proposed amendment will not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Would implementation of the changes proposed in this LAR [license amendment request] involve a significant increase in the probability or consequences of an accident previously evaluated?
No. This LAR makes an administrative change to the Technical Specifications [TS] made necessary as part of Duke's implementation of revised NRC regulations. The changes proposed to these TS have no substantive impact on the Catawba licensing bases, nor Duke's ability to conservatively evaluate changes to these licensing bases. Therefore, the proposed changes have no impact on any accident probabilities or consequences.
2. Would implementation of the changes proposed in this LAR create the possibility of a new or different kind of accident from any accident previously evaluated?
No. This LAR makes administrative changes that have no impact on any accident analyses.
3. Would implementation of the changes proposed in this LAR involve a significant reduction in a margin of safety?
No. The proposed changes are administrative, an implementation of the revised 10CFR50.59 regulation. Implementation of the revised 10CFR50.59 regulation provides the necessary regulatory requirements to ensure that nuclear plants' margin of safety is preserved.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Would implementation of the changes proposed in this LAR [license amendment request] involve a significant increase in the probability or consequences of an accident previously evaluated?
No. This LAR makes an administrative change to TS 5.6.5.b, Core Operating Limits Report (COLR), affecting a list of documents that are separately reviewed and approved by the NRC. The changes proposed to TS 5.6.5.b have no substantive impact on the Catawba licensing bases. Only NRC-approved methodologies will be used to generate the core operating limits. Based on these considerations, it has been determined that the proposed changes have no impact on any accident probabilities or consequences.
2. Would implementation of the changes proposed in this LAR create the possibility of a new or different kind of accident from any accident previously evaluated?
No. This LAR makes administrative changes that have no impact on any accident analyses.
3. Would implementation of the changes proposed in this LAR involve a significant reduction in a margin of safety?
No. The analytical methodologies used to generate the core operating limits are unchanged by this LAR. As such, this LAR has no affect on margins of safety. Future changes to these methodologies will remain subject to NRC review and approval. Therefore, this proposed amendment does not involve a reduction in any margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Would implementation of the changes proposed in this LAR [license amendment request] involve a significant increase in the probability or consequences of an accident previously evaluated?
No. This LAR makes an administrative change to TS 5.6.5.b, Core Operating Limits Report (COLR), affecting a list of documents that are separately reviewed and approved by the NRC. The changes proposed to TS 5.6.5.b have no substantive impact on the Oconee licensing bases. Only NRC-approved methodologies will be used to generate the core operating limits. Based on these considerations, it has been determined that the proposed changes have no impact on any accident probabilities or consequences.
2. Would implementation of the changes proposed in this LAR create the possibility of a new or different kind of accident from any accident previously evaluated?
No. This LAR makes administrative changes that have no impact on any accident analyses.
3. Would implementation of the changes proposed in this LAR involve a significant reduction in a margin of safety?
No. The analytical methodologies used to generate the core operating limits are unchanged by this LAR. As such, this LAR has no affect on margins of safety. Future changes to these methodologies will remain subject to NRC review and approval. Therefore, this proposed amendment does not involve a reduction in any margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed license amendment involve a significant increase in the probability or in the consequences of an accident previously evaluated?
The proposed change to TS Section 3.1.B involves deleting specific TS requirements that duplicate the requirements of 10 CFR [Code of Federal Regulations] 50.60, 10CFR50 Appendix G, and 10CFR50 Appendix H. The proposed change does not result in a change to the design or operation of any plant structure, system or component. Therefore any assumptions of the operability or performance of any structure, system or component in accident evaluations are unchanged.
The proposed change to TS 4.2.1 simply corrects an improper reference to the CFR. There are no physical changes to IP2 or to the operation of any system, structure, or component.
The proposed change to TS 5.2.C makes the design feature description consistent with TS Limiting Condition for Operation 3.3.B wherein the requirements for the method of post-accident iodine removal are specified. Making the Design Feature consistent with the appropriate LCO has no effect on the assumptions and the results of the accident analyses.
TS sections 6.1, 6.2, and 6.4 are administrative controls. Changing an administrative control has no affect on accident analyses.
Therefore, there will be no increase in the probability or in the consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to TS Section 3.1.B does not affect the effectiveness of ENO's implementation of the requirements of 10CFR50.60 that ensure the reactor vessel continues to be protected against non-ductile failure.
There is no change to any system, structure, or component as a result of any of the proposed changes.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed TS changes simplify the methods of controlling the schedule for the reactor vessel surveillance specimen withdrawal schedule in that a duplicative control is removed. The effectiveness of ENO compliance with 10CFR50.60 and 10CFR50 Appendices G and Appendix H is not adversely affected by this change. The level of regulatory control for the reactor vessel pressure/temperature limits is not changed.
The effectiveness of IP2's [Indian Point 2] inservice testing program is not affected by the correction of the improper CFR reference in TS 4.2.1. ENO is required to comply with 10CFR55 at IP2. The effectiveness of ENO's compliance with 10CFR55 is not affected by deleting the improper CFR citation from TS 6.4. Similarly, ENO's compliance with the IP2 license and the all applicable laws and regulations is not affected by the proposed changes to the TS sections for responsibility and organization.
The change to the Design Features to properly identify the method specified in TS 5.2.B for post-accident iodine removal does not affect the margin of safety.
This change does not affect any design function for or the operation of any plant structure, system, or component.
Therefore, the change [* * *] does not result in a change to any of the safety analyses or [a] margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Operation of the facility in accordance with the proposed amendment would not involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated.
The proposed change to the setpoints will cause a reactor trip on high neutron flux for a decreased heat removal event at an earlier (more conservative) condition. The consequences of an accident with the proposed setpoints are less severe than those predicted with the use of the current setpoints.
The main steam line code safety valves, in conjunction with the high neutron flux reactor trip mitigate the consequences of decreased heat removal and uncontrolled rod cluster assembly bank withdrawal events. The systems acting together do not initiate or cause any accident. Therefore, the probability of analyzed accidents is unchanged by the proposed TS change.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Operation of the facility in accordance with the proposed amendment would not create the possibility of a new or different kind of accident from any accident previously evaluated.
There is no change to either the design or operation of the main steam line code safety valves. This proposed change only changes the high neutron flux trip setpoints in response to the inoperable main steam line code safety valves. This feature currently exists both in the plant and in the TS.
Therefore, the proposed change does not create a new accident initiator or precursor, or create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Operation of the facility in accordance with the proposed amendment would not involve a significant reduction in [a] margin of safety.
The current TS setpoints have been determined to be non-conservative and insufficient to guarantee safety. The proposed change would impose limits that were anticipated in the original TS and are conservative with respect to the current TS. Therefore, the margin of safety as defined in the TS (protection of the secondary system from overpressurization so that it is available for decay heat removal) will be restored to that intended with the original TS.
The ability to keep the core cooled in spite of the inoperability of some main steam line code safety valves is enhanced by the proposed change. Therefore, operation of the facility in accordance with the proposed amendment would not involve a significant reduction in [a] margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Operation of the facility in accordance with the proposed amendment would not involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated.
The Gas Turbine Generators only provide a Licensing Basis Event mitigating function. There is no previously evaluated accident or event that is initiated by the Gas Turbine Generators or their associated fuel storage system. The ability of the Gas Turbine Generators to provide power, as a backup to the Emergency Diesel Generators, is enhanced by the proposed change to increase the amount of fuel stored on site and dedicated to Gas Turbine Generator operation. The increase in minimum load has an insignificant affect because the Gas Turbine Generators are capable of loads far in excess of the proposed minimum load.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Operation of the facility in accordance with the proposed amendment would not create the possibility of a new or different kind of accident from any accident previously evaluated.
There is no physical change to the plant. The currently existing fuel oil storage facilities will be used. The only change is to increase the minimum amount of fuel oil that must be maintained at the plant.
Therefore, the proposed change does not create a new accident initiator or precursor, or create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Operation of the facility in accordance with the proposed amendment would not
The proposed limit for Gas Turbine Generator fuel oil storage ensures compliance with the current licensing basis that the Gas Turbine Generators be able to power all the loads required by 10 CFR [Code of Federal Regulations] 50 Appendix R to place the plant into a safe shutdown condition following a fire and maintain safe shutdown for three days. The increase in the minimum load rating ensures that each Gas Turbine Generator will support operation of additional components to enhance operational flexibility in response to an event.
Therefore, operation of the facility in accordance with the proposed amendment would not involve a significant reduction in [a] margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed license amendment involve a significant increase in the probability or in the consequences of an accident previously evaluated?
The fuel storage building air filtration system is not involved in the initiation of any accident nor does it function to prevent any accident. The fuel storage building air filtration system was an accident mitigating system. Therefore there is no affect on the probability of occurrence of a fuel handling accident in the fuel storage building.
The fuel storage building air filtration system was designed to provide an accident mitigation function by filtering the radionuclides that might have been released from a damaged fuel assembly in the event of a fuel handling accident. The charcoal adsorber was the primary component that supported this filtration function. However, based on the recent IP2 [Indian Point 2] analyses to show compliance with 10CFR [Code of Federal Regulations] 50.67, it has been shown that the doses to the public and to control room operators due to a fuel handling accident remain well within regulatory limits even assuming no credit for either isolation or filtration. Therefore, the charcoal filtration function is not required in the event of a fuel handling accident.
There would be no change to the radiological consequences of the fuel handling accident in the fuel storage building analysis as a result of the proposed change. The proposed changes ensure that the assumptions of the fuel handling accident analysis for the release of radioactivity from a damaged fuel assembly in the fuel storage building are maintained.
Therefore, there will be no increase in the probability or in the consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The fuel storage building air filtration system is not an accident initiator. It was designed as an accident mitigation system to filter the radionuclides that may be released from a damaged fuel assembly during a fuel handling accident. The fuel storage building air filtration system does not affect any accident initiator.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The margin of safety is defined by 10CFR50.67 and 10CFR50 Appendix A Criterion 19. The radiological consequences of a fuel handling accident in the fuel storage building have been shown to be well within the regulatory requirements even when assuming no credit for the fuel storage building air filtration system operation.
The proposed change ensures that the assumptions of the current fuel handling analysis for the release of radioactivity from a damaged fuel assembly are maintained.
Therefore, the change does not result in a change to any of the safety analyses or [a] margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The change does not involve a significant increase in the probability or consequences of an accident previously evaluated. The proposed change is to a SR 3.8.4.1 acceptance criterion that will continue to ensure equipment operability. By continuing to ensure equipment operability, the probability or consequences of an accident previously evaluated are not increased. Float charge is the condition in which the charger is supplying the continuous charge required to overcome the internal losses of a battery and maintain the battery in a fully charged state. The voltage requirements are based on the nominal design voltage of the battery and are consistent with the initial voltages assumed in the battery sizing calculations. The 125 VDC alternate battery continues to provide reliable DC power for operation of the required equipment. The number of cells in the alternate battery was increased from sixty to sixty-three and the acceptable float voltage needed to be revised to reflect the additional cells. The addition of the three cells has been evaluated and documented in calculations. These calculations demonstrate that the batteries are appropriately sized to supply the required loads following a loss of offsite power. The ability of the battery to perform its intended function remains unchanged. In addition, the proposed change has no impact on any initial condition assumptions for accident scenarios. Onsite or offsite dose consequences resulting from an accident previously evaluated are not affected by this proposed amendment request.
Accordingly, there is no significant change in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed license amendment provides a change in a TS Surveillance Requirement that continues to ensure equipment operability. The increase in terminal voltage specifically supports the increase in the number of cells for the battery. The operation of the safety-related equipment and components remains unchanged. As such, the relationship between the 125 VDC power
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
The proposed change does not involve a significant reduction in the margin of safety. The proposed change continues to ensure equipment operability. The increase in terminal voltage specifically supports the increase in the number of cells for the alternate battery. Since the change maintains the necessary level of system reliability, it does not involve a significant reduction in the margin of safety. The change in acceptance criterion is to reflect the increase in battery cells from sixty to sixty-three. This acceptance criterion ensures that the equipment remains operable.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The extended time allowed to perform a missed surveillance does not result in a significant reduction in the margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO [Limiting Condition for Operation] is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on the margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the rare occurrence of inoperable equipment, and the rare occurrence of a missed surveillance, a missed surveillance on inoperable equipment would be very unlikely. This must be balanced against the real risk of manipulating the plant equipment or condition to perform the missed surveillance. In addition, parallel trains and alternate equipment are typically available to perform the safety function of the equipment not tested. Thus, there is confidence that the equipment can perform its assumed safety function.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determined that the amendment requests involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated?
The proposed change relaxes the Required Actions of LCO 3.7.3 by allowing 24 hours to restore an inoperable control room habitability envelope pressure boundary to OPERABLE status. Required Actions and their associated Completion Times are not initiating events for any accidents previously evaluated. The accident analyses do not assume that required CREOAS equipment is out of service prior to the analyzed event. Consequently, this change in Required Actions does not significantly increase the probability of occurrence of any accident previously evaluated. The Required Actions in the proposed change have been developed to provide assurance that appropriate remedial actions are taken in response to the degraded condition, considering the operability status of the CREOAS system and the capability of minimizing the risk associated with continued operation. As a result, the consequences of any accident previously evaluated are not significantly increased. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not involve a physical modification or alteration of plant equipment (no new or different type of equipment will be installed) or a change in the methods of governing normal plant operation. The Required Actions and associated Completion Times in the proposed change have been evaluated to ensure that no new accident initiators are introduced. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The relaxed Required Actions do not involve a significant reduction in the margin of safety. The proposed change has been evaluated to minimize the risk of continued operation with the control room habitability envelope pressure boundary inoperable. The operability status of the CREOAS system, a reasonable time for repairs or replacement of required features, and the low probability of a design basis accident occurring during the repair period have been considered in the evaluation. Therefore, this change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The extended time allowed to perform a missed surveillance does not result in a significant reduction in the margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO [Limiting Condition for Operation] is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on the margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration.
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC web site,
The staff's related evaluation of the amendment is contained in a Safety Evaluation dated February 11, 2002.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual 30-day Notice of Consideration of Issuance of Amendment, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a nuclear power plant or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, the Commission may not have had an opportunity to provide for public comment on its no significant hazards consideration determination. In such case, the license amendment has been issued without opportunity for comment. If there has been some time for public comment but less than 30 days, the Commission may provide an opportunity for public comment. If comments have been requested, it is so stated. In either event, the State has been consulted by telephone whenever possible.
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the application for amendment, (2) the amendment to Facility Operating License, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Assess and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. By April 4, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714 which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, and electronically from the ADAMS Public Library component on the NRC Web site,
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses. Since the Commission has made a final determination that the amendment involves no significant hazards consideration, if a hearing is requested, it will not stay the effectiveness of the amendment. Any hearing held would take place while the amendment is in effect.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-001, and to the attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For the Nuclear Regulatory Commission.
Security and Exchange Commission (“Commission”).
Notice of an application under: (a) Section 6(c) of the Investment Company Act of 1940 (the “Act”) requesting an exemption from sections 12(d)(3) and 17(e) of the Act and rule 17e-1 under the Act; (b) sections 6(c) and 17(b) of the Act requesting an exemption from section 17(a) of the Act; and (c) section 10(f) of the Act requesting an exemption from section 10(f) of the Act.
Secretary, Commission, 450 Fifth Street, NW, Washington, DC 20549-0609; Applicants, 777 North Capitol Street, NE., Washington, DC 20002.
Deepak T. Pai, Senior Counsel, at (202) 942-0574 or Michael W. Mundt, Senior Special Counsel, at (202) 942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW, Washington, DC 20549-0102 (telephone (202) 942-8090).
1. The Fund is an open-end management investment company registered under the Act and currently consists of nineteen investment portfolios (“Portfolios”). VIA is an investment adviser registered under the Investment Advisers Act of 1940 (“Advisers Act”) and is a wholly-owned subsidiary of ICMA Retirement Corporation. VIA serves as investment adviser to the Portfolios, including Portfolios (“Multi-Managed Portfolios”) that are advised by VIA and investment subadvisers (“Subadvisers”). Each Subadviser is registered under the Advisers Act or is exempt from registration. Each Subadviser is responsible for making independent investment and brokerage allocation decisions for a discrete portion of a Multi-Managed Portfolio based on its own research and credit evaluations. Each Subadviser is compensated directly by the Fund based on a percentage of the average daily net assets of the discrete portion of the Multi-Managed Portfolio allocated to the Subadviser. VIA also may directly advise a discrete portion of a Multi-Managed Portfolio.
2. Applicants request relief to permit: (a) A broker-dealer that serves as a Subadviser or is an affiliated person of a Subadviser (the broker-dealer, an “Affiliated Broker-Dealer;” the Subadviser, an “Affiliated Subadviser”) to engage in principal transactions with a portion of a Multi-Managed Portfolio that is advised by another Subadviser that is not an affiliated person of the Affiliated Broker-Dealer or Affiliated Subadviser (the portion, an “Unaffiliated Portion”; the other Subadviser, an “Unaffiliated Subadviser”); (b) an Affiliated Broker-Dealer to provide brokerage services to an Unaffiliated Portion, and the Unaffiliated Portion to use such brokerage services, without complying with rule 17e-1(b) or (d) under the Act; (c) an Unaffiliated Portion to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Subadviser or a person of which an Affiliated Subadviser is an affiliated person (“Affiliated Underwriter”); (d) a portion advised by an Affiliated Subadviser (“Affiliated Portion”) to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, in accordance with the conditions of rule 10f-3 under the Act, except that paragraph (b)(7) of the rule would not require the aggregation of purchases by the Affiliated Portion with purchases by Unaffiliated Portions; and (e) an Unaffiliated Portion to purchase securities issued by an Affiliated Subadviser, or an affiliated person of an Affiliated Subadviser, that is involved in securities-related activities (“Securities Affiliate”), subject otherwise to the limits in rule 12d3-1 under the Act.
3. Applicants request that the exemptive relief apply to any open-end management investment company registered under the Act or current or future portfolio of such company for which VIA or any entity controlling, controlled by, or under common control (within the meaning of section 2(a)(9) of the Act) with VIA currently or in the future acts as an investment adviser. The Fund is the only registered investment company that currently intends to rely on the order. VIA will take steps designed to ensure that any other existing or future entity that relies on the order will comply with the terms and conditions of the application.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and an affiliated person of, promoter of, or principal underwriter for such company, or any affiliated person of an affiliated person, promoter, or principal underwriter (“second-tier affiliate”). Section 2(a)(3)(E) of the Act defines an affiliated person to be any investment adviser of an investment company, and section 2(a)(3)(C) of the Act defines an affiliated person of another person to include any person directly or indirectly controlling, controlled by, or under common control with such person. Applicants state that an Affiliated Subadviser would be an affiliated person of a Multi-Managed Portfolio, and an Affiliated Broker-Dealer would be either an Affiliated Subadviser or an affiliated person of the Affiliated Subadviser, and thus a second-tier affiliate of a Multi-Managed Portfolio, including the Unaffiliated Portions. Accordingly, applicants state that any transactions to be effected by an Unaffiliated Subadviser on behalf of an Unaffiliated Portion of a Multi-Managed Portfolio with an Affiliated Broker-Dealer are subject to the prohibitions of section 17(a)(1) and (2).
2. Applicants seek relief under section 6(c) and 17(b) to exempt principal transactions prohibited by section 17(a)(1) and (2) where an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Portion solely because an Affiliated Subadviser is the Subadviser to another portion of the same Multi-Managed Portfolio.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that the terms of the proposed transaction otherwise prohibited by section 17(a) if it finds that the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each registered investment company and the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transaction from any provision of the Act if the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act.
4. Applicants contend that section 17(a) is intended to prevent persons who have the power to control an investment company from using that power to the person's own pecuniary advantage. Applicants assert that when the person acting on behalf of an investment company has no direct or indirect pecuniary interest in a party to a principal transaction, the abuses that section 17(a) is designed to prevent are not present. Applicants state that if an Unaffiliated Subadviser were to purchase securities on behalf of an Unaffiliated Portion in a principal transaction with an Affiliated Broker-Dealer, any benefit that might inure to the Affiliated Broker-Dealer would not be shared by the Unaffiliated Subadviser. In addition, applicants state that Subadvisers are paid on the basis of a percentage of the average daily net assets of the portion of the Multi-Managed Portfolio allocated to their management. The execution of a transaction to the disadvantage of an unaffiliated Portion would also disadvantage the Unaffiliated Subadviser to the extent that it diminishes the value of the Unaffiliated Portion. Applicants further state that VIA's power to dismiss Subadvisers or to change the portion of a Multi-Managed Portfolio allocated to each Subadviser reinforces a Subadviser's incentive to maximize the investment performance of its own portion of the Multi-Managed Portfolio.
5. Applicants state that each Subadviser's contract assigns it responsibility to manage a discrete portion of the Multi-Managed Portfolio. Each Subadviser is responsible for making independent investment and brokerage allocation decisions based on its own research and credit evaluations. Applicants that VIA does not dictate brokerage allocation or investment decisions for any Multi-Managed Portfolio, or have the contractual right to do so, except for any portion of a Multi-Managed Portfolio advised directly by VIA. Applicants submit that, in managing a discrete portion of a Multi-Managed Portfolio, each Subadviser acts for all practical purposes as though it is managing a separate investment company.
6. Applicants state that the proposed transactions will be consistent with the policies of the Multi-Managed Portfolio, since each Unaffiliated Subadviser is required to manage the Unaffiliated Portion in accordance with the investment objectives and policies of the Multi-Managed Portfolio as described in its registration statement. Applicants assert that permitting the transactions will be consistent with the general purposes of the Act and in the public interest because the ability to engage in the transactions increases the likelihood of a Multi-Managed Portfolio achieving best price and execution on its principal transactions, while giving rise to none of the abuses that the Act was designed to prevent.
1. Section 17(e)(2) of the Act prohibits an affiliated person or a second-tier affiliate of a registered investment company from receiving compensation for acting as a broker in connection with the sale of securities to or by the investment company if the compensation exceeds the limits prescribed by the section unless otherwise permitted by rule 17e-1 under the Act. Rule 17e-1 sets forth the conditions under which an affiliated person or a second-tier affiliate of an investment company may receive a commission which would not exceed the “usual and customary broker's commission” for purposes of section 17(e)(2). Rule 17e-1(b) requires the investment company's board of directors, including a majority of the directors who are not interest persons under section 2(a)(19) of the Act, to adopt certain procedures and to determine at least quarterly that all transactions effected in reliance on the rule complied with the procedures. Rule 17e-1(d) specifies the records that must be maintained by each investment company with respect to any transaction effected pursuant to rule 17e-1.
2. As discussed above, applicants state that an Affiliated Broker-Dealer is either an affiliated person (as Subadviser to another portion of a Multi-Managed Portfolio) or a second-tier affiliate of an Unaffiliated Portion and thus subject to section 17(e). Applicants request relief under section 6(c) from section 17(e). Applicants request relief under section 6(c) from section 17(e) of the Act and rule 17e-1 under the Act to the extent necessary to permit the Unaffiliated Portion to pay brokerage compensation to an Affiliated Broker Dealer acting as broker in the ordinary course of business without complying with the requirements of rule 17e-1(b) and (d). The requested exemption would apply only where an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Portion solely because an Affiliated Subadviser is the Subadviser to another portion of the same Multi-Managed Portfolio.
3. Applicants believe that the proposed brokerage transactions involve no conflicts of interest or possibility of self-dealing and will meet the standards of section 6(c) of the Act. Applicants assert that the interests of an Unaffiliated Subadviser are directly aligned with the interests of the Unaffiliated Portion it advises, and an Unaffiliated Subadviser will enter into brokerage transactions with Affiliated Broker Dealers only if the fees charged are reasonable and fair, as required by rule 17e-1(a). Applicants note that an Unaffiliated Subadviser has a fiduciary duty to obtain best price and execution for the Unaffiliated Portion.
1. Section 10(f) of the Act, in relevant part, prohibits a registered investment company from knowingly purchasing or otherwise acquiring, during the existence of any underwriting or selling syndicate, any security (except a security of which the company is the issuer) when a principal underwriter of the security, or an affiliated person of the principal writer, is an officer, director, member of an advisory board, investment adviser, or employee of the investment company. Section 10(f) also provides that the Commission may exempt by order any transaction or classes of transactions from any of the provisions of section 10(f), if and to the extent that such exemption is consistent with the protection of investors. Rule 10f-3 under the Act exempts certain transactions from the prohibitions of section 10(f) if specified conditions are met. Paragraph (b)(7) of rule 10f-3 limits the securities purchased by the investment company, or by two or more investment companies having the same investment adviser to 25% of the principal amount of the offering of the class of securities.
2. Applicants state that each Subadviser although under contract to manage only a discrete portion of a Multi-Managed Portfolio, is an investment adviser to the Multi-Managed Portfolio. Therefore, all purchases of securities by an Unaffiliated Portion from an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, would be subject to section 10(f).
3. Applicants request relief under section 10(f) to permit an Unaffiliated Portion to purchase securities during the existence of an underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter. Applicants request relief from section 10(f) only to the extent that those provisions apply solely because an Affiliated Subadviser is an investment adviser to the Multi-Managed Portfolio. Applicants also seek relief from section 10(f) to permit an Affiliated Portion to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, provided that the purchase is in accordance with the conditions of rule 10f-3, except that paragraph (b)(7) of the rule will not require the aggregation of purchases by the Affiliated Portion with purchases by an Unaffiliated Portion.
4. Applicants state that section 10(f) was adopted in response to concerns about the “dumping” of otherwise unmarketable securities on investment companies, either by forcing the investment company to purchase unmarketable securities from the underwriting affiliate, or by forcing or encouraging the investment company to purchase the securities from another member of the syndicate. Applicants submit that these abuses are not present in the context of the Multi-Managed Portfolios because a decision by an Unaffiliated Subadviser to a discrete portion of a Multi-Managed Portfolio to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, involves no potential for “dumping.” In addition, applicants state that aggregating purchases would serve no purpose because there is no collaboration among Subadvisers, and any common purchases by an Affiliated Subadviser and an Unaffiliated Subadviser would be coincidence.
1. Section 12(d)(3) of the Act generally prohibits a registered investment company from acquiring any security issued by any person who is a broker, dealer, investment adviser, or engaged in the business of underwriting. Rule 12d3-1 under Act exempts certain transactions from the prohibitions of section 12(d)(3) if certain conditions are met. One of these conditions, set forth in paragraph (c) of rule 12d3-1, provides that the exemption provided by the rule is not available when the issuer of the securities is the investment company's investment adviser, promoter, or principal underwriter, or an affiliated person of the investment adviser, promoter, or principal underwriter.
2. Applicants state that because each Subadviser to a Multi-Managed Portfolio is considered to be an investment adviser to the entire Multi-Managed Portfolio, an Unaffiliated Portion may not purchase securities of a Securities Affiliate in reliance on rule 12d3-1. Applicants request an exemption under section 6(c) from section 12(d)(3) to permit an Unaffiliated Portion to acquire securities issued by a Securities Affiliate subject to the limits in rule 12d3-1, except for paragraph (c) to the extent that the paragraph applies solely because the Securities Affiliate is an Affiliated Subadviser, or an affiliated person of an affiliated Subadviser. The requested relief would not extend to securities by the Subadviser making the purchase, VIA, or an affiliated person of any of these entities.
3. Applicants state that their proposal does not raise the conflicts of interest that rule 12d3-1(c) was designed to address because of the nature of the affiliation between a Securities Affiliate and the Unaffiliated Portion. Applicants submit that each Subadviser acts independently of the other Subadvisers in making investment decisions for the assets allocated to its portion of the Multi-Managed Portfolio. Further, applicants submit that prohibiting the Unaffiliated Portions from purchasing securities issued by Securities Affiliates could harm the interests of shareholders by preventing the Unaffiliated Subadviser form achieving optimal investment results.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Each Multi-Managed Portfolio will be advised by an Affiliated Subadviser and at least one Unaffiliated Subadviser, and will be operated in the manner described in the application.
2. No Affiliated Subadviser, Affiliated Broker-Dealer, Affiliated Underwriter, or Securities Affiliate (except by virtue of serving as Subadviser to a discrete portion of a Multi-Managed Portfolio) will be an affiliated person or a second-tier affiliate of (a) VIA, (b) any Unaffiliated Subadviser, (c) any principal underwriter or promoter of the Multi-Managed Portfolio, or (d) any officer, director or employee of the Multi-Managed Portfolio.
3. No Affiliated Subadviser will directly or indirectly consult with any Unaffiliated Subadviser concerning allocation of principal or brokerage transactions or concerning the purchase of the securities issued by Securities Affiliates. Subadvisers may consult with VIA in order to monitor regulatory compliance, including compliance with the limits of rule 12d3-1.
4. No Affiliated Subadviser will participate in any arrangement whereby
5. With respect to purchases of securities by an Affiliated Portion during the existence of an underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter, the conditions of rule 10f-3 will be satisfied except that paragraph (b)(7) will not require the aggregation of purchases by the Affiliated Portion with purchases by Unaffiliated Portions.
6. With respect to purchases by an Unaffiliated Portion of securities issued by a Securities Affiliate, the conditions of rule 12d3-1 will be satisfied except for paragraph (c) to the extent such paragraph is applicable solely because such issuer is an Affiliated Subadviser or an affiliated person of an Affiliated Subadviser.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934,
CBOE proposes to amend CBOE Rule 6.42,
The Board of Directors may establish minimum trading increments for options traded on the Exchange. When the Board of Directors determines to change the trading increments, the Exchange will designate such change as a stated policy, practice, or interpretation with respect to the administration of Rule 6.42 within the meaning of subparagraph (3)(A) of subsection 19(b) of the Exchange Act and will file a rule change for effectiveness upon filing with the Commission, provided, however, that no change may be made to the minimum trading increment as set forth in this Rule for options trading in decimals that is inconsistent with the Decimals Implementation Plan (“Plan”) submitted to the Commission on July 24, 2000, and that otherwise changes the minimum trading increment for options trading in decimals unless the change has been filed with the Commission pursuant to rule 19b-4(f)(6) under section 19(b) of the Exchange Act. Subject to the foregoing, the following minimum trading increments shall apply to options traded on the Exchange:
(1) Subject to paragraph (2) below, bids and offers shall be expressed in decimal increments no smaller than $0.10 for option classes trading in decimals or eighths of $1 (e.g., 3
(2) Bids and offers for all option series quoted below $3 a contract shall be expressed in decimal increments no smaller than $0.05 for options trading in decimals or sixteenths of a dollar (e.g.,
(3) Bids and offers on spread, straddle, or combination orders as defined in Rule 6.53 may be expressed in any decimal or fractional price regardless of the minimum increments otherwise appropriate to the individual legs of the order.
.01-.04 Unchanged.
In its filing with the Commission, CBOE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
CBOE Rule 6.42 establishes the minimum trading increments for options traded on the Exchange. CBOE Rule 6.42(1) provides that, subject to Rule 6.42(2), bids and offers shall be expressed in decimal increments no smaller than $0.10 unless a different increment is approved by the appropriate Floor Procedure Committee for an option contract of a particular
The proposed rule change amends CBOE Rule 6.42(3) to require that bids and offers on spread,
Spread, straddle, and combination orders are complex and multi-part orders, which involve special pricing and handling. A member holding a spread, straddle or combination order typically bids and offers on the basis of a total debit or credit for the order.
When spread, straddle and combination orders are expressed in increments smaller than $0.05, it results in “split” prices for each of the component options in order to reach the quoted debit or credit price and thus “split” contract quantities. SPX traders, particularly floor brokers, have found that when such orders are expressed in decimal increments smaller than $0.05, it is difficult and time consuming for the parties to perform the mathematical calculations to break down the order into the required contract quantities and prices.
CBOE believes that the proposed rule change will enable SPX traders to more efficiently execute these types of transactions by permitting the parties to execute the trades more expeditiously and with less component parts in the transaction. In addition, CBOE believes that the proposed rule change is appropriate given the complexity of these orders, the size of the underlying S&P 500 index, and the participants in the SPX market, which are primarily institutional.
The proposed rule change is consistent with and furthers the objectives of Section 6(b)(5) of the Act.
CBOE does not believe that the proposed rule change will impose a burden on competition that is not necessary or appropriate in furtherance of purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its membership dues and fees schedule (“Schedule”) to provide for rebilling of certain costs relating to member firm connectivity with the Exchange's automatic execution system. The text of the proposed rule change is below. Proposed new language is in italics.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The CHX proposes to amend the Schedule to provide for rebilling of costs incurred by the Exchange relating to member firm connectivity with the MAX System.
To provide high-volume order sending firms with continued incentive to route orders to the Exchange, consistent with their best execution obligations, the proposed rule change includes a provision by which the Exchange would waive its right to reimbursement of MAX connectivity charges if an order sending firm had routed an average of 100,000 trades per month to the CHX during the six-month period preceding the billing date.
The CHX believes that the proposed rule change constitutes an equitable means of recovering its often-substantial technology costs, while recognizing that in certain instances, business considerations warrant the Exchange's absorption of such costs. The Exchange recognizes the Commission's interest in making available information regarding the magnitude of the MAX connectivity charges that the Exchange would waive for firms meeting the requisite volume criteria. Accordingly, while the Exchange cannot provide one fixed number due to varying utility rates and connectivity needs for each order-sending firm, the Exchange notes that the approximate average charge per month for MAX connectivity charges (
The Exchange believes the proposed rule change is consistent with Section 6(b)(4) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were solicited or received.
The proposed rule change has become effective pursuant to Section 19(b)(3)(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 amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to file number SR-CHX-2002-04, and should be submitted by March 26, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its schedule of dues, fees and charges to: (1) Adopt new fees applicable to holders of equity trading permits (“ETPs”) and ETP organizations;
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On January 9, 2002, the Commission approved a proposed rule change to adopt Exchange Rule 23, which provides for ETPs.
As discussed further below, the purpose of the proposed rule change is to generate revenue for the Exchange in order to enable it to provide a marketplace for its members and ETP holders. The Exchange anticipates that in permitting ETP Monthly Fees to be “credit eligible,” ETPs would become more attractive because they would enable ETP organizations, which are also member organizations, to maximize the value of the monthly member credits extended to their qualified members.
Inapplicable Existing Fees. Exchange Rule 23(e) provides that an ETP holder shall be subject to the Exchange's fees and other charges, as applicable, provided that an ETP holder shall not be subject to annual membership dues, technology fees or capital assessments. Additionally, the Exchange would not charge its current $1500.00 Initiation Fee to new ETP holders, whether or not they were previously members, Foreign Currency Option (“FCO”) participants or approved lessors.
The Exchange also proposes to add clarifying language to its fee schedule with respect to the Trading Floor Personnel Registration Fee, which is imposed on member/participant organizations for individuals who are employed by such member/participant organizations and who work on the Exchange's trading floor, such as clerks, interns, stock execution clerks and other associated persons, but who are not registered as members or participants. The Exchange proposes to add language to a footnote in order to clarify that this fee is not to be billed to ETP organizations with respect to its ETP holders who work on the Exchange's trading floor.
Applicable Existing Fees. Except as indicated above, all other Exchange fees and charges applicable to Exchange members and member organizations would apply to ETP holders and ETP organizations.
The Exchange proposes to adopt a number of new fees which are to be applicable to ETP holders and ETP organizations.
The Exchange proposes an Off-Floor ETP Fee, a Regular ETP RCS Fee, a Regular ETP 3-Seat Fee, and a Regular ETP Fee (collectively, the “ETP Monthly Fees”) as described below.
Off-Floor ETP Fee. An Off-Floor ETP Fee of $500.00 per month would be charged for Off-Floor ETP holders.
Regular ETP RCS Fee. A Regular ETP RCS Fee of $1,000.00 per month would be charged in lieu of the Regular ETP Fee for ETP holders whose Exchange business is limited to operating as a remote competing specialist.
Regular ETP 3-Seat Fee. A Regular ETP 3-Seat Fee of $1,350.00 per month would be charged for Regular ETP holders and ETP organizations in lieu of the Regular ETP Fee if the ETP organization has at all times at least three associated persons who are members of the Exchange by virtue of a membership, whether owned or leased.
Regular ETP Fee. A Regular ETP Fee of $3,500.00 per month would be charged for Regular ETP holders and ETP organizations, which are not eligible for the lower Regular ETP 3-Seat Fee or Regular ETP RCS Fee.
ETP Organization Initiation Fee. A non-recurring ETP Organization Initiation Fee of $1,000.00 would be charged for an ETP organization when it is first qualified as such if it is not, at the time it first becomes so qualified, an FCO participant organization or member organization. For instance, if an existing member organization seeks an ETP, then no such fee applies because that member organization has already paid a membership-related Initiation Fee. At the same time, a completely new organization which gets an ETP and thereby becomes an ETP organization must pay this fee. The Exchange intends for this fee to cover the Exchange's expenses associated with a new firm commencing Exchange business.
ETP Intra-Firm Transfer Fee. Finally, the Exchange proposes that a $500.00 fee would apply to intra-firm transfers of ETPs.
ETP holders would not, by virtue of the ETP, be holders of equitable title to Exchange memberships and thus would not be subject, by virtue of the ETP, to the Exchange's $1,500.00 capital funding fee.
The Exchange is proposing that the ETP Monthly Fees be made “credit-eligible” so that a member organization's aggregate monthly member credits may be applied to them.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
By assessing ETP Monthly Fees, the Exchange states that it is requiring ETP holders to make an economic contribution to the Exchange, as members and holders of equitable title have done in the past and continue to do. The Exchange believes that this economic contribution is reasonable and equitable in view of the fact that the Exchange provides the benefits of an Exchange marketplace to both members and ETP holders alike.
In light of the limitations on the number of ETPs the Exchange currently has authority to issue under Rule 23(a) (
Off-Floor ETP Monthly Fees. The Exchange states that it wants to encourage order flow providers to send business to the Exchange. An Off-Floor ETP Monthly Fee of only $500.00 is designed to provide an incentive (or, stated otherwise, to remove the disincentive of a high access fee) to send order flow to the Exchange. Under Exchange Rule 23, the Exchange business of Off-Floor ETP holders is limited to the provision of order flow. Off-Floor ETP holders are not eligible to do business on the Exchange's physical trading floor and are not eligible to conduct a specialist business. Because an Off-Floor ETP holder's trading rights are circumscribed in this respect, and because an ETP holder operating from the Exchange floor would be able to take advantage of more Exchange facilities, utilizing Exchange resources and benefiting from the advantages floor presence affords, the Exchange believes that it is fair to charge less for Off-Floor ETP holders' trading rights than for trading rights which may be exercised by a Regular ETP holder, either at the Regular ETP Fee rate, the Regular ETP RCS Fee rate, or the Regular ETP 3-Seat Fee rate, as applicable.
Regular ETP RCS Fee. The Exchange states that it also wants to encourage the success of its Remote Competing Specialist Initiative program (“RCSI”), and is offering a lower fee than will be available to on-floor ETP holders to remote specialists in order to induce broker-dealers to participate in the RCSI program as remote specialists. The Exchange represents that the availability of a Regular ETP RCS Fee rate which is lower than the Regular ETP Fee rate or the Regular ETP 3-Seat Fee rate is designed to accomplish what the Exchange believes is a reasonable and legitimate business objective. The monthly Regular ETP RCS Fee also reflects the fact that remote specialists will not take up space and resources on the Phlx trading floor or use floor services to the same extent as Phlx floor-based specialists. The Exchange believes that it is fair that remote competing specialists be permitted to acquire trading rights at less cost than an ETP holder trading on the Exchange floor and utilizing Exchange resources and benefiting from the advantages floor presence affords.
Regular ETP 3-Seat Fee and Regular ETP Fee. The Exchange also represents that a goal of the ETP program is to make ETPs available to the Exchange's existing floor members without causing a drastic decline in seat values. The Exchange believes that the requirement that existing members retain 3 seats in order to qualify for the lower Regular ETP 3-Seat Fee will allow the Exchange to do this while creating a disincentive for members to sell all their memberships and replace them with ETPs.
The Exchange recognizes that seat owners who are not themselves members traditionally have, while benefiting from their memberships, also made contributions to the Exchange by making it possible for certain members (in particular, lessee-members) to trade without the member being first required to make a large capital investment in an Exchange membership. In creating the ETP program, the Exchange represents that it has carefully considered the effects on memberships, and has similarly done so respecting the fee structure proposed herein. Specifically, the Exchange states that its business strategy includes a concern not to unnecessarily create a sudden and drastic dislocation in seat prices. Accordingly, the lower Regular ETP 3-Seat Fee is designed to permit some of the ETPs to be issued to existing floor members while creating an incentive for firms which choose to take advantage of ETPs to cause legal title to 3 memberships to be retained by its members. The Exchange believes that making 3 ETPs available at the reduced ETP 3-Seat Fee for each 3 memberships a member organization maintains will result in the optimal mix of Exchange members and ETP holders.
The Exchange states that SROs have filed exchange fee and credit arrangements that do not treat all members (or other persons covered by Sections 6(b)(4) and (5)) equally, such as credits and discounts based on transaction volume, fees based upon the usage by certain members of equipment or other services or resources of an exchange, and fee structures that distinguish among the various activities of persons and firms.
With respect to the applicability and inapplicability of the existing fees to ETP holders and ETP organizations, the Exchange represents that the proposal is reasonable and equitable because the Exchange believes that the proposal generally treats ETP holders/organizations the same as other members/member organizations doing business on the Exchange in terms of fees assessed on the basis of transactions or the use of particular Exchange facilities or services. For instance, ETP holders executing transactions on the equity floor will be subject to equity transaction fees such as the equity transaction value charge. Similarly, ETP holders who utilize post space will be subject to post fees. By extending the applicability of fees currently applicable to existing members and member organizations (except as provided herein) to ETP holders and ETP organizations, the Exchange believes that ETP holders and ETP organizations be treated equally with members and member organizations doing business on the Exchange in terms of fees assessed on the basis of transactions or the use of particular Exchange facilities or services.
The Exchange believes that the one-time $1,000.00 ETP Organization Initiation Fee is fair and equitable. By assessing a one-time $1,000.00 ETP Organization Initiation Fee for new ETP organizations (and by not assessing the $1,500.00 Initiation Fee for new ETP holders) the Exchange states that it is affording ETP organizations new to the Exchange an initial comparative fee advantage relative to new members associated with member organizations. The Exchange believes this advantage is reasonable, however, in that it is designed to result in an optimal mix of ETPs and memberships as determined by the Exchange in the exercise of its reasonable business judgment. This comparative initial advantage is also reflective of the fact that ETP holders will not have voting privileges and that ETPs will not be transferable, except intra-firm to the extent permitted by Exchange Rule 23.
The Exchange proposes a $500.00 ETP Intra-Firm Transfer Fee be charged in the context of ETP transfers, which do not involve the transfer of legal or equitable title. ETP transfers are permitted on an intra-firm basis to the extent provided in Exchange Rule 23. The Exchange believes that this transfer fee is reasonable and equitable because the Exchange would devote administrative resources to ETP transfers as it currently does with transfers of legal and equitable title to memberships.
With respect to the credit eligibility of ETP Monthly Fees, the Exchange believes that this aspect of the proposal is reasonable and equitable, because ETP Monthly Fees will be “credit-eligible” across-the-board, such that any member organization which incurs them may apply any available member credits to them. By making the ETP Monthly Fees “credit-eligible” the Exchange intends to enhance the attractiveness of ETPs, which the Exchange believes is an appropriate, nondiscriminatory business strategy.
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
The foregoing rule change establishes or changes a due, fee, or charge imposed by the Exchange and, therefore, has become effective upon filing pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-Phlx-2002-10 and should be submitted by March 26, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Social Security Administration (SSA).
Notice of computer matching program.
In accordance with the provisions of the Privacy Act, as
SSA will file a report of the subject matching program with the Committee on Governmental Affairs of the Senate, the Committee on Government Operations of the House of Representatives and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefax to (410) 966-5138, or writing to the Acting Associate Commissioner for Program Support, 2-Q-16 Operations Building 6401 Security Boulevard, Baltimore, MD 21235.
All comments received will be available for public inspection at this address.
The Associate Commissioner for Program Support as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving records of Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the match agreements by the Data Integrity Boards of the participating Federal Agencies.
(3) Furnish detailed reports about matching programs to Congress and OMB;
(4) Notify applicants and beneficiaries that their records are subject to matching; and
(5) Verify match findings before reducing, suspending, terminating or denying an individual's benefits or payments.
We have taken action to ensure that all of SSA's computers matching programs comply with the requirements of the Privacy Act, as amended.
SSA and VA.
To identify certain Supplemental Security Income (SSI) and Special Veterans Benefit (SVB) recipients under title XVI and title VIII of the Social Security Act (“Act”) respectively, who receive VA-administered benefits, and to update their SSI/SVB records to reflect the presence of such payments. To determine under section 1144 of the Act, potential eligibility for Medicare Savings Programs (MSP) and enable SSA, in turn, to identify these individuals to the States.
The legal authority for SSA to conduct this matching activity is contained in sections 1631(e)(1)(B) and 1631(f) of the Act, 42 U.S.C. 1383(e)(1)(B) and 1383(f) (SSI), section 806(b) of the Act, 42 U.S.C. 1006(b)(SVB) and section 1144 of the Act, 42 U.S.C 1320b-14.
The VA will provide SSA with electronic files containing compensation and pension data from its system of records entitled Compensation and Pension, Education and Rehabilitation Records—VA (58VA21/22). SSA will then match VA's data with SSI/SVB payment information maintained in the SSR SSA/OSR 60-0103.
The matching program shall become effective 40 days after notice of this matching program is sent to Congress and OMB or 30 days after publication of this notice in the
Department of State.
Notice.
Pursuant to the authority vested in me under Department of State Delegation of Authority No. 236-3, and pursuant to 19 U.S.C. 2602(f)(1), I hereby propose extension of the Agreement between the Government of the United States of America and the Government of the Republic of Mali Concerning the Imposition of Import Restrictions on Archaeological Material from the Region of the Niger River Valley and the Bandiagara Escarpment, signed on September 19, 1997. Pursuant to 19 U.S.C. 2602(f)(2), the views and recommendations of the Cultural Property Advisory Committee will be requested.
A copy of this Memorandum of Understanding, the designated list of restricted categories of material, and related information can be found at the following web site:
Department of State.
Notice.
Notice is hereby given that the Department of State has imposed statutory debarment pursuant to § 127.7(c) of the International Traffic in Arms Regulations (“ITAR”) (22 CFR 120 to 130) on persons convicted of violating or conspiring to violate section 38 of the Arms Export Control Act (“AECA”) (22 U.S.C. 2778).
Date of conviction as specified for each person.
David Trimble, Chief, Compliance Division, Office of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State (202) 633-2700.
Section 38 (g)(4) of the AECA, 22 U.S.C. 2778, prohibits licenses and other approvals for the export of defense articles or defense services to be issued to a person, or any party to the export, who has been convicted of violating certain U.S. criminal statutes, including the AECA.
In implementing this section of the AECA, the Assistant Secretary of State for Political-Military Affairs is authorized by § 127.7 of the ITAR to prohibit any person who has been convicted of violating or conspiring to violate the AECA from participating directly or indirectly in the export of defense articles, including technical data or in the furnishing of defense services for which a license or approval is required. This prohibition is referred to as “statutory debarment”.
Statutory debarment is based solely upon conviction in a criminal proceeding, conducted by a United States court, and as such the administrative debarment proceedings outlined in part 128 of the ITAR are not applicable.
The period for debarment will normally be three years from the date of conviction. At the end of the debarment period, licensing privileges may be reinstated at the request of the debarred person following the necessary interagency consultations, after a thorough review of the circumstances surrounding the conviction, and a finding that appropriate steps have been taken to mitigate any law enforcement concerns, as required by section 38(g)(4) of the AECA and in accordance with section 127.11(b) of the ITAR. Unless licensing privileges are reinstated, the person/entity will remain debarred.
Department of State policy permits debarred persons to apply to the Director of the Office of Defense Trade Controls for an exception from the period of debarment beginning one year after the date of the debarment, in accordance with section 38(g)(4)(A) of the AECA and § 127.11(b) of the ITAR. Any decision to grant an exception can be made only after the statutory requirements under section 38(g)(4) of the AECA have been satisfied. If the exception is granted, the debarment will be suspended.
Debarred persons are generally ineligible to participate in activity regulated under the ITAR (see e.g., sections 120.1(c) and (d), 126.7, 127.1(c), and 127.11(a)). The Department of State will not consider applications for licenses or requests for approvals that involve any person or any party to the export who has been convicted of violating or of conspiring to violate the AECA during the period of statutory debarment. Persons who have been statutorily debarred may appeal to the Under Secretary for Arms Control and International Security for reconsideration of the ineligibility determination. A request for reconsideration must be submitted in writing within 30 days after a person has been informed of the adverse decision, in accordance with 22 CFR 127.7(d) and 128.13(a).
Pursuant to section 38 of the AECA and section 127.7 of the ITAR, the following persons have been statutorily debarred by the Assistant Secretary of State for Political-Military Affairs for a period of three years following their conviction for AECA:
(1) A & C International Trade, Inc., April 13, 2000, U.S. District Court of Washington, D.C., Docket # 99-CR-21-ALL.
(2) John Raymond Thompson, October 28, 1999, U.S. District Court, Central District of California, Western Division, Docket # 98-CR-708-ALL.
(3) Daniel A. Malloy, March 4, 1999, U.S. District Court of Newark, New Jersey, Docket # 98-CR-177-ALL.
(4) Shalom Shaphyr, October 4, 1999, U.S. District Court, Eastern District of Virginia (Alexandria), Docket # 99-CR-288-ALL.
(5) Siraj International, Inc., February 17, 2000, U.S. District Court, Eastern District of Wisconsin (Milwaukee), Docket # 98-CR-189-ALL.
(6) Gia An Du a.k.a. Anthony Huynh, a.k.a. Simon Du, a.k.a. Gia Simon Du, March 2, 1999, U.S. District Court, District of Maryland (Baltimore), Docket #98-CR-462-ALL.
(7) Michael Nathan Kitundu, November 10, 1999, U.S. District Court, Eastern District of Virginia (Alexandria), Docket # 99-CR-278-ALL.
(8) Morris Rothenberg & Son, Inc. d.b.a. Rothco, July 19, 1999, U.S. District Court, Eastern District of New York (Uniondale), Docket # 99-CR-564-ALL.
(9) Far East Trading Company, Inc. a.k.a. FETCO, Inc., U.S. District Court, Eastern District of Virginia (Alexandria) Docket # 01-CR-119-ALL.
This notice is provided in order to make the public aware that the persons listed above are prohibited from participating directly or indirectly in any brokering activities and in any export from or temporary import into the United States of defense articles, related technical data, or defense services in all situations covered by the ITAR. Specific case information may be obtained from the Office of the Clerk for each respective US District Court, citing the court docket number where provided.
Exceptions may be made to this denial policy on a case-by-case basis at the discretion of the Office of Defense Trade Controls pursuant to 22 CFR 126.3. However, such an exception would be granted only after a full review of all circumstances, paying particular attention to the following factors: whether an exception is warranted by overriding U.S. foreign policy or national security interest; whether an exception would further law enforcement concerns which are not inconsistent with the foreign policy or national security interests of the United States; or whether other compelling circumstances exist which are not inconsistent with the foreign policy or national security interests of the United States, and which do not conflict with law enforcement concerns.
This notice involves a foreign affairs function of the United States encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act. Because the exercise of this foreign affair function is discretionary, it is excluded from review under the Administrative Procedure Act.
Department of State.
Notice.
The Cultural Property Advisory Committee will meet on Monday and Tuesday, April 15 and 16, from approximately 9 a.m. to 5 p.m.; and on Wednesday, April 17, from approximately 9 a.m. to 2 p.m., at the Department of State, Annex 44, Room 840, 301 4th St., SW., Washington, DC, to review the proposals to extend: (1) the “Agreement between the Government of the United States of America and the Government of the
The Committee's responsibilities are carried out in accordance with provisions of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601
During its meeting on Monday, April 15, the Committee will hold an open session, from 10 a.m. to 12 Noon to receive oral public comment on the proposals to extend these agreements. Persons wishing to attend this open session should notify the Cultural Property office at (202) 619-6612 by Tuesday, April 9, 2002, to arrange for admission, as seating is limited. Those who wish to make oral presentations should also request to be scheduled, and must submit a written text of the oral comments, by April 9, to allow time for distribution of them to Committee members prior to the meeting. Oral comments will be limited to five minutes each to allow time for questions from members of the Committee and must specifically address the proposals to extend the Agreements with particular attention to determinations that will be made under Section 303 (a)(1) of the Convention on Cultural Property Implementation Act, 19 U.S.C. 2602. The Committee also invites written comments and asks that they be submitted by April 9. All written materials, including the written texts of oral statements, should be faxed to (202) 260-4893.
Other portions of the meeting on April 15, 16 and 17 will be closed pursuant to 5 U.S.C. 552b(c)(9)(B) and 19 U.S.C. 2605(h).
Office of the United States Trade Representative.
Notice that the March 22, 2002, meeting of the Trade and Environment Policy Advisory Committee will be held from 9 a.m. to 11:30 a.m. The meeting will be closed to the public from 9 a.m. to 11 a.m. and open to the public from 11 a.m. to 11:30 a.m.
The Trade and Environment Policy Advisory Committee will hold a meeting on March 22, 2002, from 9 a.m. to 11:30 a.m. The meeting will be closed to the public from 9 a.m. to 11 a.m. The meeting will include a review and discussion of current issues which influence U.S. trade policy. Pursuant to Section 2155(f)(2) of Title 19 of the United States Code, I have determined that this meeting will be concerned with matters the disclosure of which would seriously compromise the development by the United States Government of trade policy, priorities, negotiating objectives or bargaining positions with respect to the operation of any trade agreement and other matters arising in connection with the development, implementation and administration of the trade policy of the United States. The meeting will be open to the public and press from 11 a.m. to 11:30 a.m., when trade policy issues will be discussed. Attendance during this part of the meeting is for observation only. Individuals who are not members of the committee will not be invited to comment.
The meeting is scheduled for March 22, 2002, unless otherwise notified.
The meeting will be held at the USTR ANNEX Building in Conference Rooms 1 and 2, located at 1724 F Street, NW, Washington, DC, unless otherwise notified.
Elizabeth A. Gianini, Office of the United States Trade Representative, (202) 395-6120.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that on January 11, 2002, India requested consultations with the United States under the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), the General Agreement Regarding Tariffs and Trade 1994 (“GATT 1994”), and the Agreement on Rules of Origin (“ROO Agreement”) regarding the rules of origin for textiles and apparel products set out in Section 334 of Uruguay Round Agreements Act and Section 405 of the Trade and Development Act of 2000, and implementing legislation. The European Communities (“EC”) and Bangladesh subsequently requested to join the consultations as third parties. India alleges that Section 334 and its modification, Section 405, are inconsistent with certain obligations of the United States under the ROO Agreement. Pursuant to Article 4.3 of the DSU, such consultations are to take place within a period of 30 days from the date of the request, or within a period otherwise mutually agreed between the United States and the requesting parties. Consultations were held on February 7, 2002, and may be followed by subsequent consultations. USTR invites written comments from the public concerning the issues raised in this dispute.
Although the USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before March 27, 2002, to be assured of timely consideration by USTR.
Comments should be submitted (i) electronically, to
Me
Section 127(b) of the Uruguay Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires that notice and opportunity for comment be provided after the United States receives a request for the establishment of a WTO dispute settlement panel. Consistent with this obligation, but in an effort to provide additional opportunity for comment, USTR is providing notice that consultations have been requested pursuant to the WTO Dispute Settlement Understanding. If such consultations should fail to resolve the matter and a dispute settlement panel is established pursuant to the DSU, such panel, which would hold its meetings in Geneva, Switzerland, would be expected to issue a report on its findings and recommendations within six to nine months after it is established.
Section 334 changed certain rules of origin applicable to textile and apparel products to harmonize U.S. practice with that of our trading partners. Section 405 amended Section 334 to resolve certain concerns raised by the EC. The consultation request alleges that Section 334's changes to rules of origin wrongly differentiated between textile and apparel products and industrial products in order to protect U.S. industry from competition. Similarly, India alleges that the changes made in Section 405 to the textile and apparel rules of origin were adopted to achieve specific trade objectives. These changes, India alleges are inconsistent with Article 2(b)-(e) of the ROO Agreement.
Interested persons are invited to submit written comments concerning the issues raised in the dispute. Persons submitting comments may either send one copy by U.S. mail, first class, postage prepaid, to Sandy McKinzy at the address listed above or transmit a copy electronically to
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—
(1) Must so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” in a contrasting color ink at the top of each page of each copy; and
(3) Is encouraged to provide a non-confidential summary of the information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a file on this dispute settlement proceeding, accessible to the public, in the USTR Reading Room: Room 3, First Floor, Office of the United States Trade Representative, 1724 F Street, NW., Washington, DC 20508. The public file will include a listing of any comments received by USTR from the public with respect to the proceeding; the U.S. submissions to the panel in the proceeding, the submissions, or non-confidential summaries of submissions, to the panel received from other participants in the dispute, as well as the report of the dispute settlement panel, and, if applicable, the report of the Appellate Body. An appointment to review the public file (Docket WTO/DS-234, US-India Textile ROO Dispute) may be made by calling Brenda Webb, (202) 395-6186. The USTR Reading Room is open to the public from 10 a.m. to 12 noon and 1 p.m. to 4 p.m., Monday through Friday.
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) announces its determination that the noise exposure maps submitted by Airport District No. 1, Calcasieu Parish, Louisiana, for Lake Charles Regional Airport under the provisions of title 49 U.S.C, chapter 475 (hereinafter referred to as “Title 49”) and 14 CFR part 150 are in compliance with applicable requirements. The FAA also announces that it is reviewing a proposed noise compatibility program that was submitted for Lake Charles Regional Airport under Part 150 in conjunction with the noise exposure maps and that this program will be approved or disapproved on or before August 5, 2002.
The effective date of the FAA's determination on the noise exposure maps and the start of its review of the associated noise compatibility program is February 5, 2002. The public comment period ends March 17, 2002.
Mr Michael J. Saupp, Department of Transportation, Federal Aviation Administration, Fort Worth, Texas, 76193-0640, (817) 222-5645. Comments on the proposed noise compatibility program should also be submitted to the above office.
This notice announces that the FAA finds that the noise exposure maps submitted for Lake Charles Regional Airport are in compliance with applicable requirements of Part 150, effective February 5, 2002. Further, FAA is reviewing a proposed noise compatibility program for that airport which will be approved or disapproved on or before August 5, 2002. This notice also announces the availability of this
Under title 49, an airport operator may submit to the FAA noise exposure maps, which meet applicable regulations, and which depict noncompatible land uses as of the date of submission of such maps, a description of projected aircraft operations, and the ways in which such operations will affect such maps. Title 49 requires such maps to be developed in consultation with interested and affected parties in the local community, government agencies, and persons using the airport.
An airport operator who has submitted noise exposure maps that are found by the FAA to be in compliance with the requirements of Federal Aviation Regulations (FAR) Part 150, promulgated pursuant to title 49, may submit a noise compatibility program for FAA approval which sets forth the measures the operator has taken or proposes for the reduction of existing noncompatible uses and for the prevention of the introduction of additional noncompatible uses.
Airport District No. 1, Calcasieu Parish, Louisiana, submitted to the FAA on December 18, 2000, noise exposure maps, descriptions and other documentation which were produced during the FAR Part 150 Noise Study initiated by Federal Grant 3-22-0026-21 on August 17, 1999. It was requested that the FAA review this material as the noise exposure maps, as described in Title 49, and that the noise mitigation measures, to be implemented jointly by the airport and surrounding communities, be approved as a noise compatibility program under title 49.
The FAA has completed its review of the noise exposure maps and related descriptions submitted by Airport District No. 1, Calcasieu Parish. The specific maps under consideration are Exhibit 6-1, 1999 DNL Noise Contours, Exhibit 6-2, 2004 DNL Noise Contours, Appendix Exhibit 1, and 2020 DNL Noise contours in the submission.
The FAA has determined that these maps for Lake Charles Regional Airport are in compliance with applicable requirements. This determination is effective on February 5, 2002. FAA's determination on an airport operator's noise exposure maps is limited to a finding that the maps were developed in accordance with the procedures contained in Appendix A of FAR Part 150. Such determination does not constitute approval of the applicant's data, information, or plans, or a commitment to approve a noise compatibility program or to fund the implementation of that program.
If questions arise concerning the precise relationship of specific properties to noise exposure contours depicted on a noise exposure map submitted under section 103 of the Act, it should be noted that the FAA is not involved in any way in determining the relative locations of specific properties with regard to the depicted noise contours, or in interpreting the noise exposure maps to resolve questions concerning, for example, which properties should be covered by the provisions of title 49. These functions are inseparable from the ultimate land use control and planning responsibilities of local government. These local responsibilities are not changed in any way under part 150 or through FAA's review of noise exposure maps. Therefore, the responsibility for the detailed overlaying of noise exposure contours onto the map depicting properties on the surface rests exclusively with the airport operator that submitted those maps, or with those public agencies and planning agencies with which consultation is required under Title 49. The FAA has relied on the certification by the airport operator, under section 150.21 of FAR part 150, that the statutorily required consultation has been accomplished.
The FAA has formally received the noise compatibility program for Lake Charles Regional Airport, also effective on February 5, 2002. Preliminary review of the submitted material indicates that it conforms to the requirements for the submittal of noise compatibility programs, but that further review will be necessary prior to approval or disapproval of the program. The formal review period, limited by law to a maximum of 180 days, will be completed on or before August 5, 2002.
The FAA's detailed evaluation will be conducted under the provisions of 14 CFR part 150, section 150.33. The primary considerations in the evaluation process are whether the proposed measures may reduce the level of aviation safety, create an undue burden on interstate or foreign commerce, or be reasonably consistent with obtaining the goal of reducing existing noncompatible land uses and preventing the introduction of additional noncompatible land uses.
Interested persons are invited to comment on the proposed program with specific reference to these factors. The FAA to the extent will consider all comments, other than those properly addressed to local land use authorities, practicable. Copies of the noise exposure maps, the FAA's evaluation of the maps, and the proposed noise compatibility program are available for examination at the following locations:
Questions may be directed to the individual named above under the heading,
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 199 meeting
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 199: Airport Security Access Control Systems.
The meeting will be held on March 19, 2002 starting at 9 am.
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC, 20036.
RTCA Secretariat, 1828 L Street, NW, Suite 805, Washington, DC, 20036; telephone (202) 833-9339; fax (202) 833-9434; web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 199 meeting. The agenda will include:
• March 19:
• Opening Session (Welcome, Introductory and Administrative Remarks, Agenda Overview, Review Minutes of Previous Meeting, Action Items from Last Meeting)
• Workgroup Reports and Discussions on Developments, New Standard Test and Comments from Members (Sections 1-4, Biometrics workgroup, Smart card workgroup, Database workgroup)
• Closing Session (Any Other Business, Establish Agenda for Next Meeting, Date and Place of Next Meeting)
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 198 meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 198: Next-Generation Air/Ground Communications System (NEXCOM).
The meeting will be held on March 2022, 2002, starting at 9 a.m.
The meeting will be held at RTCA, 1828 L Street, Suite 805, Washington, DC, 20036.
RTCA Secretariat, 1828 L Street, NW, Suite 805, Washington, DC, 20036; telephone (202) 8339339; fax (202) 8339434; web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 198 meeting. The agenda will include:
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Highway Administration (FHWA), DOT.
Notice of public meeting.
The Intelligent Transportation Society of America (ITS AMERICA) will hold a meeting of its Coordinating Council on Tuesday, March 19, 2002, at its headquarters. The meeting runs from 1 p.m. to 5 p.m.
The General Session includes the following items: (1) Housekeeping Items: Welcome, Introductions, Antitrust statement; (2) Minutes—approval of minutes from meeting #41 (10/24/01); (3) President's Report; (4) Coordinating Council Reorganization (D/A); and (5) Closing Housekeeping.
ITS AMERICA provides a forum for national discussion and recommendations on ITS activities including programs, research needs, strategic planning, standards, international liaison, and priorities.
The charter for the utilization of ITS AMERICA establishes this organization as an advisory committee under the Federal Advisory Committee Act (FACA) 5 U.S.C. app. 2, when it provides advice or recommendations to DOT officials on ITS policies and programs. (56 FR 9400, March 6, 1991).
The Coordinating Council of ITS AMERICA will meet on Tuesday, March 19, 2002 from 1 p.m.-5 p.m.
Hilton Scottsdale Resort and Villas, 6333 North Scottsdale, Scottsdale, Arizona, 85250-5428. Phone (877) 768-9330.
Materials associated with this meeting may be examined at the offices of ITS AMERICA, 400 Virginia Avenue SW., Suite 800, Washington, DC 20024. Persons needing further information or who request to speak at this meeting should contact Debbie M. Busch at ITS AMERICA by telephone at (202) 484-2904 or by FAX at (202) 484-3483. The DOT contact is Kristy Frizzell, FHWA, HOIT, Washington, DC 20590, (202) 366-9536. Office hours are from 8:30 a.m. to 5 p.m., e.t., Monday through Friday, except for legal holidays.
Research and Special Programs Administration, Department of Transportation.
Notice.
This notice seeks comments from the public regarding the need for RSPA to collect paperwork from gas service line operators to ensure that customers receiving gas pipeline service are aware of the availability of excess flow valves (EFV's). This notice is published (pursuant to the Paperwork Reduction Act of 1995) to measure the need for the paperwork collection on EFV's, ways to minimize the burden on operators who must respond, ways to enhance the quality of the information collected, and to verify the accuracy of the agency's estimate of the burden (measured in work hours) on pipeline operators. By advising customers of the availability of excess flow valves, the notices give customers information to help them decide if they would like to purchase excess flow valves for their line.
Comments on this notice must be received by May 6, 2002 to ensure consideration.
Please address your comments to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590. You must identify the docket number RSPA-98-4957 at the beginning of you comments, and you should submit two copies of your comments. If you wish to receive confirmation that RSPA received your comments, include a self-addressed, stamped postcard. You may also submit comments by the Internet to
You may review the public docket containing comments in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday except Federal Holidays. The Dockets Office is on the plaza level of the NASSIF Building at the Department of Transportation at the above address. Also, you may review public dockets on the Internet at
Comments are invited on: (a) The need for the proposed collection of information 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 the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Marvin Fell, OPS, RSPA, U.S. Department of Transportation (DOT), 400 Seventh Street, SW., Washington, DC 20950, telephone (202) 366-6205 or e-mail marvin.fell@rspa.dot.gov.
As used in this notice, the terms ‘paperwork information’ and ‘paperwork collection’ are synonymous, and include all work related to preparing and disseminating information related to this customer notification requirement including completing paperwork, gathering information and conducting telephone calls.
Research and Special Programs Administration, Department of Transportation.
Notice.
This notice seeks comments from the public regarding the need for RSPA to collect paperwork information from gas distribution service line operators to ensure that those operators who do not maintain all of their piping notify their customers that they must maintain the piping. This notice is published to measure the need for the proposed paperwork collection, ways to minimize the burden on operators who must respond, ways to enhance the quality of the information collected, and to verify the accuracy of the agency's estimate of the burden (measured in work hours) on the regulated industry. By advising customers of the need to maintain their buried gas piping, the notices reduce the risk of accidents.
Comments on this notice must be received by May 6, 2002 to be assured of consideration.
Please address your comments to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590. You must identify the docket number RSPA-98-4957 at the beginning of you comments, and you should submit two copies of your comments. If you wish to receive confirmation that RSPA received your comments, include a self-addressed, stamped postcard. You may also submit comments by the Internet to
Comments are invited on: (a) The need for the proposed collection of information 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 the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Marvin Fell, OPS, RSPA, Department of Transportation (DOT), 400 Seventh Street, SW., Washington, DC 20590 or call at (202) 366-6205 by e-mail to
In addition, each operator must make the following records available for inspection by RSPA or a State agency participating under 49 U.S.C. 60105 or 60106: (1) A copy of the notice currently in use; and (2) evidence that notices have been sent to customers within the previous 3 years.
As used in this notice, the terms ‘information collection’ and ‘paperwork collection’ are synonymous, and include all work related to preparing and disseminating information related to this customer notification requirement including completing paperwork, gathering information and conducting telephone calls.
Research and Special Programs Administration, Department of Transportation.
Notice.
This notice seeks comments from the public regarding the need for RSPA to collect paperwork information from state agencies that maintain programs to regulate pipelines. The purpose of the paperwork requested from the state agencies is to ensure that these states are properly monitoring the operations of pipeline operators in their states, and to determine Federal grant amounts for these states. This notice is published (pursuant to the Paperwork Reduction Act of 1995) to measure the need for the paperwork collection from these state agencies, ways to minimize the burden on states that must respond, ways to enhance the quality of information collected, and to verify the accuracy of the RSPA's estimate of the burden (measured in work hours) on states. The RSPA published a notice on October 12, 2001 requesting public comment. No comments were received. This notice also seeks approval from the Office of Management and Budget to renew the existing approval of this paperwork collection.
Comments on this notice must be received by April 4, 2002 to be assured of consideration.
Comments should identify the docket number of this notice, RSPA-98-4957. Comments can be mailed directly to Office of Regulatory Affairs, Office of Management and Budget, 726 Jackson Place, NW., Washington, DC 20503, ATTN: Desk Officer for DOT.
Interested persons are invited to send comments regarding the burden estimated 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.
Marvin Fell, Office of Pipeline Safety, RSPA, DOT, 400 Seventh Street, SW., Washington, DC 20590 (202) 366-6205 or by e-mail at
Chapter 601, Title 49, United States Code (49 U.S.C.) authorizes DOT to regulate pipeline transportation. While DOT is primarily responsible for developing, issuing, and enforcing minimum pipeline safety regulations, Chapter 601, 49 U.S.C., provides for state assumption of all or part of the regulatory and enforcement responsibility for intrastate pipelines.
Section 60105 of 49 U.S.C. set forth specific requirements a state must meet to qualify for
As used in this notice, ‘information collection’ and ‘paperwork collection’ are synonymous, and include all work related to preparing and disseminating information related to this recordkeeping requirement including completing paperwork, gathering information and conducting telephone calls.
Research and Special Programs Administration, Department of Transportation.
Request for public comments and Office of Management and Budget (OMB) approval of an existing information collection.
This notice seeks comments from the public regarding the need for RSPA to collect paperwork information from liquefied natural gas operators to ensure that these operators are properly operating and maintaining their facilities. This notice is published (pursuant to the Paperwork Reduction
Comments on this notice must be received by April 4, 2002 to assure consideration.
Comments should identify the docket number of this notice, RSPA-98-4957. Comments can be mailed directly to the Office of Regulatory Affairs, OMB, 726 Jackson Place, NW, Washington, DC 20503, ATTN: Desk Officer for the Department of Transportation.
Interested persons are invited to send comments regarding the burden estimate or any other aspect of this collection of information, including any of the following: (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.
Marvin Fell, Office of Pipeline Safety, RSPA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-6205 or by e-mail at
49 U.S.C. 60103 titled “Standards for Liquefied Natural Gas Pipeline Facilities” delegates the responsibility for ensuring safe operation of LNG facilities to the Secretary of Transportation. Regulations for enforcing this legislation are found in 49 CFR part 193 “Liquefied Natural Gas Facilities: Federal Safety Standards.” These regulations include recordkeeping requirements that allow Federal and State inspectors to ensure that these facilities are operated and maintained in a safe manner.
As used in this notice, the terms “information collection” and “paperwork collection” are synonymous, and include all work related to preparing and disseminating information related to this recordkeeping requirement including completing paperwork, gathering information and conducting telephone calls.
Research and Special Programs Administration, Department of Transportation.
Notice.
This notice seeks comments from the public regarding the need for RSPA to collect paperwork information from gas pipeline operators. The purpose of the paperwork requested from gas operators is to ensure that these operators are properly operating and maintaining their pipelines. This notice is published (pursuant to the Paperwork Reduction Act of 1995) to measure the need for the paperwork collection from gas operators, ways to minimize the burden on operators who must respond, ways to enhance the quality of information collected, and to verify the accuracy of the agency's estimate of the burden (measured in work hours) on pipeline operators. The RSPA published a notice on October 12, 2001, requesting public comment. No comments were received. This notice also seeks approval from the Office of Management and Budget to renew the existing approval of this paperwork collection.
Comments on this notice must be received by April 4, 2002 to be assured of consideration.
Comments should identify the docket number of this notice, RSPA-98-4957. Comments can be mailed directly to Office of Regulatory Affairs, Office of Management and Budget, 726 Jackson Place, NW, Washington, DC 20503, Attn: Desk Officer for the Department of Transportation (DOT).
Marvin Fell, OPS, RSPA, DOT, 400 Seventh Street, SW, Washington, DC 20590, (202) 366-6205, or by e-mail at
As used in this notice, ‘information collection’ and ‘paperwork collection’ are synonymous, and include all work related to preparing and disseminating information related to this recordkeeping requirement including completing paperwork, gathering information and conducting telephone calls.
Surface Transportation Board, DOT.
Notice of exemption.
Under 49 U.S.C. 10502, the Board is granting a petition for exemption from the prior approval requirements of 49 U.S.C. 11323-25 for Dallas, Garland & Northeastern Railroad, Inc., to acquire trackage rights over certain lines of railroad in the vicinity of Dallas, TX, that are owned by Dallas Area Rapid Transit.
This exemption is effective on April 4, 2002. Petitions to stay must be filed by March 20, 2002. Petitions to reopen must be filed by April 1, 2002.
An original and 10 copies of all pleadings referring to STB Finance Docket No. 34122 must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of all pleadings must be served on petitioner's representative, Gary Laakso, Dallas, Garland & Northeastern Railroad, Inc., 5300 Broken Sound Blvd. NW., Boca Raton, FL 33487.
Beryl Gordon, (202) 565-1600. [TDD for the hearing impaired: 1-800-877-8339.]
Additional information is contained in the Board's decision. To purchase a copy of the full decision, write to, call, or pick up in person from: Da 2 Da Legal, Suite 405, 1925 K Street, NW., Washington, DC 20006. Telephone: (202) 293-7776. [Assistance for the hearing impaired is available through TDD services at 1-800-877-8339.]
Board decisions and notices are available on our website at
By the Board, Chairman Morgan and Vice Chairman Burkes.
Delaware & Hudson Railway Company, d/b/a Canadian Pacific Railway (D&H), has filed a verified notice of exemption under 49 CFR 1152 Subpart F—
D&H has certified that: (1) No local traffic has been handled to or from any customer for at least 2 years; (2) any overhead traffic routed over the line can be and has been rerouted over other lines; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1152.50(d)(1) (notice to governmental agencies), and 49 CFR 1105.12 (newspaper publication) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on April 4, 2002, unless stayed pending reconsideration. Petitions to stay
A copy of any petition filed with the Board should be sent to D&H's representative: Diane P. Gerth, Esq., Leonard, Street and Deinard Professional Association, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402. If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Bureau of Transportation Statistics (BTS), U.S. DOT.
Notice.
The BTS announces that two Information Collection Requests (ICR) described in this notice have been sent to the Office of Management and Budget (OMB) for review and approval. The BTS is requesting OMB's renewal of the information collections required for the Financial and Operating Statistics for Motor Carriers of Property. The ICRs describe each information collection and its expected cost and burden. The
Comments must be submitted by April 4, 2002.
Send comments to the U. S. Department of Transportation, Dockets Management System (DMS). You may submit your comments by mail or in person to the Docket Clerk, Docket No. BTS-2001-10909, Department of Transportation, 400 Seventh Street, SW., Room PL-401, Washington, DC 20590-0001. Comments should identify the docket number and be submitted in duplicate. If you would like the Department to acknowledge receipt of your comments, you must submit a self-addressed stamped postcard on which the following statement is made: Comments on Docket BTS-2001-10909. The Docket Clerk will date stamp the postcard prior to returning it to you via the U.S. mail. The DMS is open for examination and copying, at the above address, from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. Please note that due to delays in the delivery of U.S. mail to Federal offices in Washington, DC, we recommend that persons consider an alternative method (the Internet, fax, or professional delivery service) to submit comments to the docket and ensure their timely receipt at U.S. DOT. You may fax your comments to the DMS at (202) 493-2251.
If you wish to file comments using the Internet, you may use the DOT DMS Web site at
We particularly request your comments on the accuracy of the estimated burden; ways to enhance the quality, usefulness, and clarity of the collected information; and ways to minimize the collection burden without reducing the quality of the information collected including additional use of automated collection techniques or other forms of information technology. The OMB requests comments within 30 days of publication of this notice to process the ICR expeditiously.
Paula R. Robinson, Compliance Program Manager, Office of Motor Carrier Information, K-13, Bureau of Transportation Statistics, 400 Seventh Street, SW., Washington, DC 20590-0001; (202) 366-2984; fax: (202) 366-3364; e-mail:
You may view all comments submitted to Docket BTS-2001-10909
Following the publication of the November 5, 2001 Notice, the BTS received three comments. The issues raised in the comments are also addressed in the agency's supporting statement that was submitted previously to OMB. Requests for information on the supporting statement should be directed to the Information Contact named in this notice.
The BTS published the required notice offering a 60-day comment period on two ICRs on November 5, 2001 (66 FR 55981). The agency received three comments to the docket. The commenters were: The Central Analysis Bureau, Inc.(CAB); International Brotherhood of Teamsters (IBT); and Inland Marine Underwriters Association (IMUA).
The first commenter, the CAB supported the agency's need for the data collection and categorized themselves as a “major user” of the F&OS data. They did however, point out that one ICR, the Form M, could be completed in substantially less time than 9 hours based on a motor carrier's efforts to compile the same data for corporate and tax purposes. The CAB felt the burden estimate for the second ICR, the Form QFR, was reasonable. Additionally, CAB recommended the agency include additional data items on the Form M.
The second commenter, the IBT, made similar comments to those made by the CAB, estimating that the agency may have overstated the burden hours for Form M, and commented on other specific issues. Regarding the IBT's recommendation about “an explanatory statement,” BTS does now include detailed instructions with the forms and does solicit “explanatory statement[s] * * * setting forth [any alternative] methodology used” by filing motor carriers, as suggested by the IBT.
Based on the fact that BTS collects F&OS data of critical importance, the agency recognizes the need to improve compliance as commenters suggested. BTS now carefully documents all communication (phone calls, faxes, e-mails, letters, etc.) and is adding staff in preparation for continuing to decrease the number of motor carriers not in compliance with BTS regulations.
Furthermore, the IBT commented on the need for a more automated system to track nonfilers and remind late-filers. BTS has, within the past year, developed and implemented a detailed, automated quality control and edit-check (QC/EC) system to improve the completeness of filed reports and the accuracy of the data submitted on them. In combination with motor carriers filing their Form M and Form QFR data over the Internet, which was implemented in the past year, this provides a system to track and remind carriers who aren't filing regularly. BTS notes that motor carriers are increasingly using electronic filing methods provided by the agency—diskettes, CDs, and the Internet.
In response to the IBT's comments on new-entrant classification, BTS recognizes the challenges in correctly classifying new-entrant carriers and welcomes suggestions of the IBT and other commenters to improve the system. The IBT states that “[a]lthough the regulations provide for [classification] * * * on the basis of estimated annual revenues, 49 CFR 1420(b)(2), in practice this is not done. Instead, new entrant carriers are automatically placed in Class III, where they may remain until BTS discovers that they have revenues sufficient to be in Class I or II.” In practice, according to 49 CFR 1420.2(b)(1), BTS uses the three-year/$3-million rule to classify carriers: “Upward and downward classification will be effected as of January 1 of the year immediately following the third consecutive year of revenue qualification.” However, applying that rule to new entrants is particularly challenging and requires using private sector data in the absence of a new-entrant carriers abiding by the mandatory self-classification requirement: “Carriers must notify [BTS] of any change in classification” (49 CFR 1420.2(b)(4)). BTS is working to remedy that new-entrant classification conundrum (no data upon which to estimate) by working with the Federal Motor Carrier Safety Administration (FMCSA) to include revenue data in the proposed Motor Carrier Replacement Information/Registration System. The BTS expects the revenue information on the proposed form, combined with number-of-power-units and other information, will improve the basis for carrier classification by providing public sector revenue-estimating information where there is none now (prior to a carrier's filing its Form M). However, BTS encourages the IBT and other commenters to provide information to BTS for new-entrant and other carrier classification purposes.
BTS recognizes the challenges that will arise as new Mexican carrier entrants appear in U.S. commerce. The IBT suggested that BTS use procedures to classify Mexican motor carriers based on annual earnings from their existing operations in Mexico combined with estimated or actual revenues from U.S. operations. With regard to the new-entrant classification regulations in 49 CFR 1420.2(b)(2), BTS understands the IBT is suggesting that [Mexican] revenue earned by Mexican carriers in Mexico could be used to estimate whether and how much a Mexican carrier likely began to earn over $3 million gross operating revenue while traveling on U.S. highways. Such estimates would be used to classify the Mexican carrier as Class I, II or III. BTS will investigate that possibility, although BTS is not aware of the availability of public sector individual-carrier revenue-size data for Mexican carriers operating in Mexico. The point made by the IBT is that a more active effort needs to be taken to classify and include new-entrant North American carriers earning revenue on U.S. highways and intermodally. While this comment goes beyond the immediate paperwork burden issues, BTS will work with the available private sector data sources and develop FMCSA and other public sector sources. BTS recognizes this challenge and will continue to place emphasis on this issue.
The third commenter, the Inland Marine Underwriters Association (IMUA), supported the agency's need to renew the data collection and placed great value on the data and information collected by BTS. However, the IMUA, like the CAB, suggested that BTS
BTS thanks CAB, IBT, and IMUA for their comments and assures them and other potential commenters that BTS will continue to balance the need for a reduction in the paperwork burden against the need for additional financial information. The CAB and IMUA provided no estimates for the additional data items suggested and the agency is reluctant to impose additional burdens without accurate estimates. Based on its previous efforts, BTS has found that the shorter the form, the easier it is for carriers to file; the easier it is for carriers to file, the more numerous the carriers that file; the greater the number of carriers that file, the less time needs to be devoted to compliance activities. Additional resources can then be put toward increasing data accuracy and report completeness to make the F&OS data more useful to thousands of users who value the increased comprehensiveness BTS has accomplished within the past year (approximately 50% increase in the number of motor carriers filing the 2000 Form M when compared to the number filing the 1999 Form M).
For additional information, interested parties may review the supporting statement the agency submitted to OMB.
(1)
(2)
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 April 4, 2002 to be assured of consideration.
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 April 4, 2002 to be assured of consideration.
As required by the Federal Advisory Committee Act, Public Law 92-463, the Department of Veterans Affairs gives notice that the Special Medical Advisory Group has scheduled a meeting on March 27, 2002. The meeting will convene at 9 a.m. and end at 2 p.m. The meeting will be held in Room 830 at VA Central Office, 810 Vermont Avenue, NW., Washington, DC. The purpose of the meeting is to advise the Secretary and Under Secretary for Health relative to the care and treatment of disabled veterans, and other matters pertinent to the Department's Veterans Health Administration (VHA).
The agenda for the meeting will include an update on VHA Quality and Performance program and an update on Capital Asset Realignment for Enhanced Services (CARES) program.
All sessions will be open to the public. Those wishing to attend should contact Celestine Brockington, Office of the Under Secretary for Health, Department of Veterans Affairs. Her phone number is 202.273.5878.
By Direction of the Secretary of Veterans Affairs.
The Department of Veterans Affairs gives notice under Public Law 92-463 that a meeting of the Advisory Committee on Women Veterans will be held on March 12-14, 2002, from 8:30 a.m. until 5 p.m., at the Department of Veterans Affairs Central Office (VACO), 810 Vermont Avenue, NW., Conference room 230, Washington, DC.
The purpose of the Committee is to advise the Secretary of Veterans Affairs regarding the needs of women veterans with respect to healthcare, rehabilitation, compensation, outreach, and other programs and activities administered by the Department of Veterans Affairs designed to meet such needs. The Committee will make recommendations to the Secretary regarding such activities.
All sessions will be open to the public. Those who plan to attend should contact Ms. Maryanne Carson, Department of Veterans Affairs, Center for Women Veterans (00W), 810 Vermont Avenue, NW., Washington, DC 20420, at (202) 273-6193. Tentative agenda follows:
• Summit 2000 Proceedings
• Advisory Committee 2000 Report
• Agenda for Visit to the Hill
By Direction of the Secretary:
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice of proposed rulemaking (NPRM).
The Transportation Recall Enhancement, Accountability, and Documentation Act of 2000 mandates a rulemaking proceeding to revise and update our safety performance requirements for tires. In response, this document proposes to establish new and more stringent tire performance requirements in a new Federal motor vehicle safety standard that would apply to all new tires for use on vehicles with a gross vehicle weight rating of 10,000 pounds or less. The agency recently proposed to establish a new tire standard, Standard No. 139, in a December 2001 NPRM on tire safety information. Today's document proposes to include the new tire performance requirements in that standard.
This document seeks comments on the proposed new standard, including its applicability and test procedures, modifications to related existing standards, and lead time provided for manufacturers to achieve compliance. It also seeks comments on the possible future specification of shearography analysis, a technique which evaluates the condition of a tire using laser technology. Finally, it seeks comments on NHTSA's research plans.
You should submit your comments early enough to ensure that Docket Management receives them not later than May 6, 2002.
You may submit your comments in writing to: Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590. Alternatively, you may submit your comments electronically by logging onto the Docket Management System website at
For technical and policy issues: Mr. George Soodoo or Mr. Joseph Scott, Office of Crash Avoidance Standards, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. Telephone: (202) 366-2720. Fax: (202) 366-4329.
For legal issues: Nancy Bell, Attorney Advisor, Office of the Chief Counsel, NCC-20, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. Telephone: (202) 366-2992. Fax: (202) 366-3820.
You may read the materials placed in the docket for this document (
You may also read the materials on the Internet. To do so, take the following steps:
(1) Go to the Web page of the Department of Transportation DMS (
(2) On that page, click on “search” near the top of the page or scroll down to the words “Search the DMS Web” and click on them.
(3) On the next page (
(4) On the next page (“Docket Summary Information”), which contains docket summary information for the materials in the docket you selected, scroll down to “search results” and click on the desired materials. You may download the materials.
Section 10 of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act mandates that the agency issue a final rule to revise and update its tire performance standards. However, the Act gives the agency substantial discretion over the substance of the final rule. The Act does not specify what revisions or updatings should be made. For example, it does not specify which particular existing tests should be improved or how much they should be improved. Likewise, it does not specify which particular new tests should be added or how stringent they should be. However, the legislative history does contain specific references to some tests like aging tests.
In response to section 10, the agency comprehensively examined possible ways of revising and updating its tire standards. In doing so, it placed particular emphasis on improving the ability of tires to withstand the effects of factors mentioned during the consideration and enactment of the TREAD Act such as tire heat build up, low inflation, and aging. The agency has examined the value of modifying the existing tests in its tire standards. In addition, it has examined the value of adopting several new tests.
As a result of these efforts, the agency has identified an array of amendments for revising and updating its tire standards and thereby improving tire performance. Some would upgrade existing tests, while the others would add new ones.
The agency recently proposed to establish a new tire standard, Standard No. 139, in a December 2001 NPRM on tire safety information (Docket No. NHTSA-01-11157, 66 FR 65536, December 19, 2001). Today's document proposes to include the new tire performance requirements in that standard. The standard would apply to light vehicle tires. As used in the December 2001 proposal, “light vehicles” are vehicles (except motorcycles) with a gross vehicle weight rating (GVWR) of 10,000 pounds or less.
Under today's proposal, the new standard would contain requirements and test procedures addressing the following aspects of tire performance: Tire Dimension, High Speed, Endurance, Road Hazard Impact, Bead Unseating, Low Inflation Pressure, and Aging Effects.
The proposed High Speed and Endurance tests would replace the current High Speed and Endurance tests in FMVSS No. 109, New Pneumatic Tires—Passenger Cars, 49 CFR 571.109, with a more stringent combination of testing parameters (ambient temperature, load, inflation pressure, speed, and duration.) Most significantly, the proposed High Speed test specifies test speeds (140, 150 and 160 km/h (88, 94, and 100 mph)) that are substantially higher than those currently specified in FMVSS No. 109 (120, 128, 136 km/h (75, 80, 85 mph)). Likewise, the proposed Endurance Test specifies a test speed 50 percent faster (120 km/h (75 mph)) than that currently specified in FMVSS No. 109 (80 km/h (50 mph)), as well as a duration 6 hours longer (40 hours total) than that currently specified in FMVSS No. 109 (34 hours total). At the specified test speed (120 km/h), the Proposed Endurance Test distance (4800 km) is almost double the distance accumulated than under the current Endurance Test (2720 km at 80 km/h). These new testing parameters are based on NHTSA's activities undertaken in response to the TREAD Act, including extensive agency testing, data gathering and analyses as well as agency review of other existing international, industry and National standards and proposals, and submissions by the public.
The proposed Road Hazard Impact Test and the Bead Unseating Test are modeled on SAE Recommended Practice J1981, Road Hazard Impact Test for Wheel and Tire Assemblies (Passenger Car, Light Truck, and Multipurpose Vehicles), and the Toyota Air Loss Test, respectively. These new tests would replace the Strength and Bead Unseating Resistance tests in the current FMVSS No. 109 with tests that are more dynamic as opposed to quasi-static.
In addition to the tests cited above, the proposed standard contains tests for two new aspects of performance: Low Inflation Pressure Performance and Aging Effects. By creating tests for these aspects of performance, the agency is attempting to address concerns raised by members of Congress in hearings that preceded the enactment of the TREAD Act that NHTSA's current test requirements do not evaluate how well tires perform when significantly underinflated or after being subjected to environmental variables, such as heat, which accelerate aging. In particular, underinflation and heat were factors highlighted as contributing to failure of the Firestone ATX and Wilderness tires in the TREAD hearings, and in the agency's Firestone investigation (NHTSA Office of Defects Investigation (ODI) investigation number EA00-023).
To test Low Inflation Pressure Performance, the agency is proposing two alternative tests based on agency testing and data analyses. Both tests utilize tires significantly under-inflated, for instance 20 psi for P-metric tires (the low inflation pressure threshold requirement for warning lamp activation in the proposed Tire Pressure Monitoring System (TPMS) standard, Docket No. NHTSA-00-8572 (66 FR 38982, July 26, 2001)), as the “inflation pressure” testing parameter for standard load P-metric tires. To test for resistance to Aging Effects, the agency proposes three alternative tests that would evaluate a tire's long term durability through methods different than and/or beyond those required by both the current and the proposed Endurance Test parameters. The three tests use peel strength testing, long-term durability endurance requirements, and oven aging, respectively. The agency solicits comments on which of the two proposed tests for addressing Low Inflation Pressure Performance, and which of the three tests proposed for addressing Aging Effects, should be chosen for the new standard.
In addition to proposing test procedures for the new standard, the agency also discusses in this document its ongoing and future research plans on tire safety, and seeks comments on the future use of shearography analysis (a method of analysis using laser technology) for evaluating the condition of tires subjected to the proposed testing procedures and the plans for revising the Uniform Tire Quality Grading Temperature Grading Requirement testing speeds so that they are consistent with the test speeds in the proposed High Speed tests.
Finally, the agency discusses revising FMVSS Nos. 110, Tire selection and rims, for passenger cars, 49 CFR 571.110, and 120, Tire selection and rims for motor vehicles other than passenger cars, 49 CFR 571.120, to reflect the applicability of the proposed light vehicle tire standard to vehicles up to 10,000 pounds GVWR, and revising FMVSS Nos. 117, Retreaded pneumatic tires, 49 CFR 571.117, and 129, New non-pneumatic tires for passenger cars, 49 CFR 571.129, to replace the performance tests which reference or mirror those in FMVSS No. 109 with
Wishing to adopt only those amendments that contribute to improved safety, and mindful of the principles for regulatory decisionmaking set forth in Executive Order 12866, Regulatory Planning and Review, NHTSA has examined the benefits and costs of these amendments. Its efforts to do so, however, have been limited by several factors. Two factors stand out. One is the limited time allowed by the schedule specified in the TREAD Act for completing this rulemaking. That has limited the amount and variety of information that the agency could obtain and testing that the agency could conduct to examine the effects of different versions of the amendments under consideration. The other is the difficulty inherent in crash avoidance rulemakings, stemming from the multiplicity of the factors contributing to the occurrence of any crash and the difficulty of ascertaining the relative contribution of each factor, in linking specific improvements in safety requirements with specific reductions in crashes and resulting deaths and injuries. Together, these limitations have made it difficult to assess and compare the benefits and costs of this rulemaking.
At this time, the agency believes that improving tires will be beneficial in reducing tire failures and crashes resulting from tire failures. However, we do not have a good estimate of the extent to which the improvements will improve safety. We have made an estimate of the target population—373 fatalities and 9,247 injuries in the target population. If the improvements needed to pass the high-speed and endurance tests (estimated to be 22 percent) related directly to an improvement in safety, the total potential improvement would be 82 lives saved (373* .22) and 2,034 injuries avoided. Since 32.8 percent of the tires currently do not pass the proposed requirements, the benefits would be 27 lives saved (373 * 0.22 * 0.328) and 667 injuries reduced.
The agency emphasizes that not all benefits could be quantified. Specifically, the agency believes that there will be other, currently non-quantifiable, benefits from the proposed Aging test and aspects of the proposal that address the overloading of vehicles. Additionally, there could be benefits from the proposed Low Inflation Pressure Performance tests and from the proposed Road Hazard and Bead Unseating tests.
The agency's estimate of the price increase to improve tires up to the performance levels required in the High Speed and Endurance tests is $3 per affected tire. Based on testing, we estimate that about one-third (32.8 percent) of all tires would need improvements to pass those two tests. If the cost for these improved tires were spread across the entire new light vehicle fleet, the average new vehicle price increase would, we estimate, be $4.09 per vehicle. The overall annual cost of these tests for new original equipment (64 million tires) and replacement tires (223 million tires) is estimated at $282 million for a total of 287 million tires sold annually and the net costs per equivalent life saved would be about $7.2 million.
We do not anticipate an increase in costs for the proposed Road Hazard Impact and Bead Unseating tests because our testing indicates that most of current production tires would pass these tests. The agency has not conducted sufficient testing of the proposed Aging tests to anticipate their potential costs. The agency believes, however, that most manufacturers already perform an aging test. Therefore, it is likely that the incremental cost of adding an aging test would be minimal.
With regard to the Low Inflation Pressure Performance tests, one alternative would provide no added costs because agency testing indicates that current production tires pass the test. Tires tested to the other alternative have a higher failure margin. Costs for this test cannot be characterized by the agency at this point.
The agency is concerned about the overall costs of this rulemaking and the net costs per equivalent life saved. While the agency believes that its proposed amendments represent a reasoned proposal that is based on best currently available information and that would improve tire safety, it is concerned about the apparent overall costs of those amendments. The agency is particularly concerned that the cost per equivalent life saved is significantly higher than that in most NHTSA vehicle safety rulemakings.
Because of the broad mandate from Congress and the uncertainty associated with the analysis of benefits and costs, the agency believes that the most appropriate course of action is for it to seek public comment on the full array of potential amendments that it has identified. As a result of this NPRM, the agency anticipates receiving cost data and other information that will enable it to refine its assessment of benefits and costs. The agency will then be in a better position to pick and choose among the proposed amendments. Its intention is to use that information to fashion a final rule consistent with the principles of Executive Order 12866.
The Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, Pub. L. 106-414, signed into law on November 1, 2000, requires the agency to address numerous vehicle safety matters through rulemaking. Section 10 of the Act directs the Secretary of Transportation to conduct a rulemaking to revise and update the tire safety standards published at 49 CFR 571.109 and 571.119, and to complete the rulemaking, i.e., issue a final rule, by June 1, 2002.
The Secretary of Transportation shall conduct a rulemaking to revise and update the tire standards published at 49 CFR 571.109 and 49 CFR 571.119. The Secretary shall complete the rulemaking under this section not later than June 1, 2002.
The following discussion summarizes current provisions relating to tires.
FMVSS No. 109, New pneumatic tires, 49 CFR 571.109, specifies the requirements for all tires manufactured for use on passenger cars manufactured after 1948. This standard, which was issued in 1967 under the National Traffic and Motor Vehicle Safety Act (Safety Act), specifies dimensions for tires used on passenger cars and requires that the tires meet specified strength, resistance to bead unseating, endurance, and high speed requirements, and be labeled with certain safety information. FMVSS No. 109 applies to passenger car (P-metric) tires produced for use on passenger cars, multipurpose passenger vehicles (MPV), and light trucks (sport utility vehicles (SUV), vans, minivans, and pickup trucks). The standard was adopted from the Society of Automotive Engineers (SAE) recommended practice J918c, Passenger Car Tire Performance Requirements and Test Procedures, which was first issued by the SAE in June 1965.
• A strength test, which evaluates the strength of the reinforcing materials in the tire;
• A resistance-to-bead unseating test, which evaluates how well the tire bead
• An endurance test, which evaluates resistance to heat buildup when the tire is run at its rated load nonstop for a total of 34 hours, and
• A high speed test, which evaluates resistance to heat buildup when the tire is run at 88 percent of its maximum load at speeds of 75 mph, 80 mph, and 85 mph for 30 minutes at each speed.
For the purposes of testing tires to determine their compliance with these requirements, the standard specifies values for several factors, such as tire inflation pressure, the load
Closely related to FMVSS No. 109 is FMVSS No. 110, Tire selection and rims, 49 CFR 571.110. FMVSS No. 110 requires that each passenger car be equipped with tires that comply with FMVSS No. 109, that tires on the cars be capable of carrying the GVWR of that vehicle, that the rims on the car be appropriate for use with the tires, and that certain information about the car and its tires appear on a placard in the passenger car. FMVSS No. 110 also specifies rim dimension requirements and further specifies that, in the event of a sudden loss of inflation pressure at a speed of 97 km/h (60 mph), rims must retain a deflated tire until the vehicle can be stopped with a controlled braking application. FMVSS No. 110 initially became effective in April 1968.
FMVSS No. 117, Retreaded pneumatic tires, 49 CFR 571.117, establishes performance, labeling, and certification requirements for retreaded pneumatic passenger car tires. Among other things, the standard requires retreaded passenger car tires to comply with the tubeless tire resistance to bead unseating and the tire strength requirements of FMVSS No. 109. FMVSS No. 117 also specifies requirements for casings to be used for retreading, and certification and labeling requirements.
FMVSS No. 119, New pneumatic tires for vehicles other than passenger cars, 49 CFR 571.119, specifies performance and labeling requirements for new pneumatic tires designed for highway use on multipurpose passenger vehicles, trucks, buses, trailers and motorcycles manufactured after 1948, and which requires treadwear indicators in tires, and rim matching information concerning those tires. Under this standard, each tire has to meet requirements that are qualitatively similar to those in FMVSS No. 109 for passenger car tires. The high speed performance test in this standard only applies to motorcycle tires and to non-speed-restricted tires of 14.5-inch nominal rim diameter or less marked load range A, B, C, or D. In addition, FMVSS No. 119 does not contain a resistance-to-bead unseating test.
A tire under FMVSS No. 119 is generally required to meet the performance requirements when mounted on any rim listed as suitable for its size designation in the publications, current at the time of the tire's manufacture, of the tire and rim associations that are listed in the standard. Further, the tire is required to meet the dimensional requirements when mounted on any such rim of the width listed in the load-inflation tables of this standard. In addition to the permanent marking for any non-matching listed rims, each tire manufacturer is required to attach to the tire, for the information of distributors, dealers and users, a label listing the designations of rims appropriate for use with the tire.
FMVSS No. 120, Tire Selection and rims for motor vehicles other than passenger cars, 49 CFR 571.120, requires that vehicles other than passenger cars equipped with pneumatic tires be equipped with rims that are listed by the tire manufacturer as suitable for use with those tires and that rims be labeled with certain information. It also requires that these vehicles shall be equipped with tires and rims that are adequate to support the fully-loaded vehicle under contemplated operating conditions.
The primary effect of Standard No. 120 is to specify the minimum load-carrying characteristics of tires not already subject to the passenger car tire and rim selection requirements of FMVSS No. 110.
Tire selection under FMVSS No. 120 consists of two elements. With one exception, each vehicle must be equipped with tires that comply with FMVSS No. 119 and the load rating of those tires on each axle of the vehicle must together at least equal the gross axle weight rating (GAWR) for that axle. If the certification label lists more than one GAWR-tire combination for the axle, the sum of the tire's maximum load ratings must meet or exceed the GAWR that corresponds to the tire's size designation. If more than one combination is listed, but the size designation of the actual tires on the vehicle is not among those listed, then the sum of the load ratings must simply meet or exceed the lowest GAWR that does appear.
FMVSS No. 120 also contains a requirement related to the use of passenger car tires on vehicles other than passenger cars. The requirement states that when a tire that is subject to FMVSS No. 109 is installed on a multipurpose passenger vehicle, truck, bus, or trailer, the tire's load rating must be reduced by a factor of 1.10 by dividing by 1.10 before determining whether the tires on an axle are adequate for the GAWR. This 10 percent de-rating of P-metric tires provides a greater load reserve when these tires are installed on vehicles other than passenger cars. The reduction in the load rating is intended to provide a safety margin for the generally harsher treatment, such as heavier loading and possible off-road use, that passenger car tires receive when installed on a MPV, truck, bus or trailer, instead of on a passenger car.
FMVSS No. 129, New non-pneumatic tires for passenger cars, 49 CFR 571.129, includes definitions relevant to non-pneumatic tires and specifies performance requirements, testing procedures, and labeling requirements for these tires. To regulate performance, the standard contains performance requirements and tests related to physical dimensions, lateral strength, strength (in vertical loading), tire endurance, and high speed performance. The performance requirements and tests in FMVSS No. 129 were based upon those contained in FMVSS No. 109.
The FMVSS No. 129 labeling requirements are similar to those set
When FMVSS No. 109 was issued in 1967, nearly all (more than 99 percent) of passenger car tires in the U.S. were of bias, or bias belt construction. The test procedures that appear in FMVSS No. 109 were developed in a bias tire environment. Today, bias tires have been almost completely replaced by radial tires on passenger cars. The use of radial tires has grown to the extent that they represent more than 95 percent of passenger tires in both the U.S. and Europe and are used on most new light vehicles sold in the U.S.
• OE Passenger Tires Shipments: (included are all P-metric tires even if destined for light truck usage) In 1970 radial tires comprised 0.5 percent of the market and bias/bias ply tires comprised 99.5 percent. In 1999 radial tires comprised 93.7 percent of the market and bias/bias ply tires comprised 6.3 percent.
• Replacement Market Passenger Tire Shipments: (Replacement shipments include all domestically produced and imported tires sent to the U.S. replacement market. Figures include all sizes and types of tires designed for standard highway passenger car service, including P-Metric tires destined for light trucks.) In 1970 radials comprised 2.1 percent of market and in 1999 radials comprised 99.8 percent of market.
• Production of Passenger Tires: (Passenger tire production covers all tires produced in the United States whether for domestic consumption or for export. Figures represent the production for all sizes and types of tires designed for standard highway passenger car service and include P-Metric tires destined for use on light trucks.) In 1970 radial tires comprised 0.0 percent of tires produced. In 1999 radial tires comprised 99.1 percent of tires produced.
• OE Light Truck Tires Shipments: (Light truck tire original equipment shipments covers all tires sent to manufacturers or original equipment vehicles in the U.S. and includes all sizes/types of tires designed by the participants for fitment to light truck.) In 1980 radial tires comprised 14.8 percent of shipments and in 1999 radial tires comprised 98.3 percent of shipments.
• Replacement Light Truck Tires Shipments: (Light truck tire replacement shipments designates all tire shipments sent for replacement purposes to the domestic tire market in the U.S. and includes all sizes/types of tires designed by the participants for fitment to light truck.) In 1980 radials comprised 9.9 percent of shipments and in 1999 radials comprised 94.5 percent of shipments.
• Production of Light Truck Tires: (Tires produced in US whether for domestic consumption or for export outside the United States—does not include P-metric tires). In 1980 radials comprised 7.1 percent of production and in 1999 radials comprised 98.7 percent of production.
Radial tires are less susceptible than bias ply tires to most types of failures. Also, radial tire design resulted in significant improvements in tire performance compared with bias ply tires, thus making it easier for radial tires to comply with the requirements of FMVSS No. 109 than for bias tires.
A bias passenger car tire carcass is typically made up of two or four plies of cord material that run from bead to bead at an angle of approximately 35 degrees to the centerline of the tire. Alternating plies are applied at alternating angles during tire manufacture so that the cord paths of alternating plies criss-cross. This type of construction provides a very strong, durable carcass for the tire. However, it has drawbacks. Because the ply cords criss-cross and all the cords are anchored to the beads, the carcass is stiff and relatively inflexible. This type of construction prevents different parts of the tire from acting independently of one another when forces are applied to the tire. As a result, a bias construction is susceptible to impact breaks because it does not easily absorb road irregularities.
By comparison, a radial passenger car tire carcass is typically made up of one or two plies of cord material that run from bead to bead at an angle of approximately 90 degrees to the centerline of the tire. As a result, the cords do not criss-cross. Because the cords do not criss-cross and because the opposite ends of each cord are anchored to the beads at points that are directly opposite to each other, the radial tire carcass is very flexible. The radial tire is reinforced and stabilized by a belt that runs circumferentially around the tire under the tread. This construction allows the sidewalls to act independently of the belt and tread area when forces are applied to the tire. This “independent” action is what allows the sidewalls to readily absorb road irregularities without overstressing the cords. Impact breaks caused by cord rupture do not occur in radial-ply passenger car tires. This “independent” action also allows two important things to happen during cornering: (1) The tread of a radial tire remains fully in contact with the road over the entire tread width, and (2) the ply cords and sidewall are able to absorb the cornering forces without exerting the twisting force on the beads that are exerted by bias constructions.
These characteristics of a radial tire construction are what make the existing high speed test, endurance test, strength test
Because of the belt package, radial tires far exceed the strength requirements of the test and many times the plunger bottoms out on the rim instead of breaking the reinforcing materials in the radial tire. During the years 1996 through 1998 RMA members reported conducting nearly 19,000 plunger energy (strength) tests on radial tires. There were no reported failures.
Tire under-inflation, high ambient temperatures, and vehicle load are among the factors being considered in the ongoing evaluation of the radial tire failures that have occurred in recent years. Data concerning tire failure, blowouts, and rollovers are discussed below.
Several crash files contain information on “general” tire related problems that precipitate crashes. These files are the National Automotive Sampling System—Crashworthiness Data System (NASS-CDS)
NASS-CDS data for 1995 through 1998 indicate that there are an estimated 23,464 tow-away crashes per year caused by blowouts or flat tires.
Therefore, about one half of one percent of all crashes are caused by these tire problems. The rate of blowout-caused crashes for light trucks (0.99 percent) is more than three times the rate of those crashes for passenger cars (0.31 percent). Blowouts cause a much higher proportion of rollover crashes (4.81) than non-rollover crashes (0.28); and again more than three times the rate in light trucks (6.88 percent) than in passenger cars (1.87 percent).
FARS data for 1995 through 1998 show that 1.10 percent of all light vehicles in fatal crashes were coded with tire problems. Light trucks had slightly higher rates of tire problems (1.20 percent) than passenger cars (1.04 percent). The annual average number of vehicles with tire problems in FARS was 535 (313 passenger cars and 222 light trucks).
The agency further examined the FARS data to determine whether heat is a factor in tire problems. We examined two surrogates for heat: (1) The region of the U.S. in which the crash occurred, and (2) the season in which the crash occurred. The highest rates of tire problems occurred in light trucks in southern states in the summertime, followed by light trucks in northern states in the summertime, and then by passenger cars in southern states in the summertime. The lowest rates occurred in winter and fall.
Based on these data, tires on light trucks appear to be more affected by higher ambient temperatures than tires on passenger cars.
The agency also examined tire problems in the NASS-CDS from 1992 to 1999 by types of light trucks and vehicle size to determine whether LT tires used on light trucks exhibited more problems than P-metric tires. LT tires are used on vehicle classes identified for this analysis as Van Large B and Pickup Large B groups of vehicles. These groups of vehicles typically represent the 3/4 ton and 1-ton vans and pick-ups. P-metric tires are used on most of the other light trucks. The data indicate that the average percentage of light trucks in the NASS-CDS having a LT tire problem is 0.84 (10/1,186), while the average percent of light trucks having a P-metric tire problem is 0.47 percent (53/11,226).
These larger Pickups and vans, however, are also vehicles that carry heavier loads and are more likely to be more overloaded than lighter trucks. In addition, these heavier vehicles are often used at construction sites and may be more apt to encounter nail punctures and experience flat tires. Thus, there may be usage issues that increase the percentage of tire problems for these larger trucks, rather than exclusively a qualitative difference between P-metric and LT tires.
While the agency has not attempted to estimate the extent to which improved tires would reduce the chance of having a flat tire it has looked at crashes indirectly caused by or involved with tire problems.
The agency has identified several types of such crashes. For instance, if a driver stops his vehicle on the side of the road due to a flat tire, curious passing drivers often slow down to view the incident. This can cause congestion, potentially resulting in a rear impact involving two or more of the passing vehicles toward the rear of the congested traffic. Another crash type indirectly caused by tire problems involves tire repair on the shoulder of the road. Sometimes drivers repairing tires or seeking assistance due to tire problems are struck, as pedestrians, by other vehicles. These phenomena are not captured in NHTSA's data files. However, Pennsylvania, Washington, and Ohio have data files that allow for combining and search for codes for this phenomena; for instance, searching simultaneously for “Flat tire or blowout” and “Playing or working on a vehicle” and “Pedestrians.” Our examination of these files for calendar year 1999 for Ohio and Pennsylvania and 1996 for Washington showed the following information:
The combined percentage of total crashes with tire problems in these three states (3,100/670,088 = 0.46) is consistent with the NASS-CDS data percentage of 0.51 percent. The portion of pedestrians coded as being injured while working on a vehicle with tire problems is 2/10,979 = 0.018 percent. Applying this to the estimated number of pedestrians injured annually across the U.S. (85,000 from NASS-GES) results in an estimated 15 pedestrians injured per year. The agency, however, does not have data to estimate how many pedestrian injuries could be reduced by having better tires.
Sales of light trucks have risen steadily for over the past 20 years and now account for almost half of the U.S. light vehicle market—more than twice their market share as recently as 1983. (
In addition to purchasing more SUVs, Americans have shifted toward a significantly higher use of minivans, pickup trucks, and SUVs for personal travel. (
Approximately 90 percent of these light trucks use passenger car (P-metric) tires. The other 10 percent use load range C, D, or E tires which are LT tires and are typically used on heavier light trucks with a gross vehicle weight rating (GVWR) between 6,000 and 10,000 pounds.
Prior to this rulemaking, NHTSA embarked on a program of global harmonization for light vehicle tire standards under the auspices of the United Nations/Economic Commission for Europe's (UN/ECE) World Forum for Harmonization of Vehicle Regulations (WP.29).
In July 1999, NHTSA participated in a GRRF meeting in London, England which initiated deliberations to develop a global technical regulation for tires with other countries. An industry developed standard, Global Tire Standard 2000 for New Pneumatic Car Tires (GTS-2000),
Since the July 1999 meeting, the GRRF has been considering a draft global technical regulation (GTR). Prior to the enactment of the TREAD Act, tentative consensus within an ad hoc tire harmonization working group of the GRRF concerning the draft GTR had been reached on the following issues: (1) To adopt the ECE R30 high speed test methodology
Speed symbol and Rated Speed—km/h:
F—80
G—90
J—100
K—110
L—120
M—130
N—140
P—150
Q—160
R—170
S—180
T—190
U—200
H—210
V—240
W—270
Y—300
ZR—>300
These speeds range from a minimum of 140 km/h (88 mph) to 300 km/h (188 mph) for W, Y categories. The total test time is 50 minutes. The inflation pressures for the ECE R30 high speed test are typically much higher than those recommended by vehicle manufacturers for vehicle operation.
In a February 2001 submission to the docket (Docket No. NHTSA-2000-8011), the Chairman of the GRRF Tire Harmonization Working Group recommended on behalf of the GRRF that NHTSA adopt a draft text that reflects the current state of deliberations for developing a harmonized tire standard.
In September 2000, NHTSA opened a docket, NHTSA-2000-8011, entitled “Tire Testing—Federal Motor Vehicle Safety Standard (FMVSS 109).” The purpose of this docket was to collect tire test data and receive feedback on its high speed and endurance performance testing matrices.
As of the issuance of this document, comments and recommendations from 7 entities have been received in the docket. Substantive comments and recommendations in response to NHTSA's testing matrices are discussed below. Additionally, Toyota Motor Company (Toyota) submitted a copy of its Air Loss Test Procedure.
In December 2000, RMA presented to NHTSA a test protocol (RMA 2000) that was designed and administered with the participation of the following tire companies: Bridgestone/Firestone, Continental/General, Cooper Tire and Rubber, Michelin, Goodyear, Pirelli, Yokohama. The test protocol is divided into the following principal parts: Passenger Car Tire High Speed, Passenger Car Tire Endurance, Light Truck High Speed, and Light Truck Tire Endurance. One hundred thirty-two tests on approximately 900 tires were included in this protocol. A brief summary of RMA 2000's conclusions and recommendations are discussed below.
RMA 2000 concluded that
[t]he SAE test [J1561] conditions were found to be the most consistent discriminators required for completion of the rated speed within the customary one-hour duration.
(1) Test speed and duration: (ITS = Tire's rated speed minus 40 km/h), 6 speed steps, each 10 min in duration: (1) 0 to ITS, (2) ITS, (3) ITS + 10 km/h, (4) ITS + 20 km/h, (5) ITS + 30 km/h, (6) ITS + 40 km/h.
(2) Inflation pressure: 240, 260, 280, 300, or 320 kPa based on speed rating.
(3) Load: 80 percent.
(4) Ambient Temperature: 38° C.
RMA 2000 recommended that the agency revise the High Speed Performance test in FMVSS No. 109 to reflect the conditions found in SAE J1561:
(1) Test speed and duration: (Initial Test Speed (ITS) = Tire's rated speed minus 40 km/h), 6 speed steps, each 10 min in duration: (1) 0 to ITS, (2) ITS, (3) ITS + 10 km/h, (4) ITS + 20 km/h, (5) ITS + 30 km/h, (6) ITS + 40 km/h.
Speed symbol and rated speed—km/h:
F—80
G—90
J—100
K—110
L—120
M—130
N—140
P—150
Q—160
R—170
S—180
T—190
U—200
H—210
V—240
W—270
Y—300
ZR—> 300
(2) Inflation pressures (kPa): 240 for speed rating through N, 260 for P, Q, R, & S, 280 for T, U, & H, 300 for V & Z, 320 for W & Y.
(3) Load and ambient temperature: 80 percent of maximum rated load, 38°C ± 3°C.
RMA concluded that “the results seem to indicate that speed, followed closely by inflation pressure, are key determinants affecting the number of hours to failure.”
RMA recommended revising the Endurance test in FMVSS No. 109 to include the following parameters:
(1) Inflation pressure: 180 kPa.
(2) Test speed: constant at 120 Km/h.
(3) Duration and load: 8 hours at 85 percent of maximum rated load, 8 hours at 90 percent of maximum rated load, 8 hours at 100 percent of maximum rated load.
(4) Ambient temperature: 38°C ± 3°C.
RMA concluded that
[f]or load range C tires an analysis of the results shows the maximum load conditions of 90 percent to be more realistic than the 80 percent. Also, it appears that the inflation pressure of 350 kPa is the most suitable for this test. For load range E tires the data showed that conditions of 90 percent maximum load and 550 kPa pressure, while not particularly discerning for the Q speed rated tires did become much more rigorous for the R speed rated tires (no S rated tires were included in the load range E tests).
RMA recommended that NHTSA incorporate a test similar to SAE J1633 or ISO 10454 into its light truck tire standard, using maximum inflation pressure, limited to tires marked “LT” or “C” and load range A-E or Load Index 124 or below. The parameters are as follows:
(1) Speed and duration (ITS = Tire's rated speed −20 km/h): 3-speed steps: 0 to ITS for 10 min, ITS for 10 min, ITS + 10 km/h for 10 min, ITS + 20 km/h for 30 min.
(2) Inflation pressure corresponding to maximum load.
(3) Load: 90 percent of maximum.
(4) Ambient temperature: 38°C +/−3°C.
RMA 2000 concluded that
[a]s with passenger car endurance tests, speed is deemed to be the greatest determinate of tire failure, followed closely by inflation pressure * * * In the FMVSS 119 test it wasn't until load limits became unrealistically high that tires begin to fail. However, in the four test protocols using combinations of the test conditions cited above, average hours to failure were more realistically demonstrated when testing at 120 km/h using the inflation pressures corresponding to the maximum load rating marked on the tire (350 kPa for load range C, and 550 kPa for load range E).
RMA 2000 recommended revising the light truck tire standard to include the following test parameters:
(1) Inflation pressure: at pressure corresponding to the maximum load rating marked on the tire.
(2) Speed: constant at 120 Km/h.
(3) Duration and load: Load range A, B, C, & D for 8 hours at 75 percent of maximum rated load, 8 hours at 97 percent of maximum rated load, and 8 hours at 114 percent of maximum rated load. Load Range E for 8 hours at 70 percent of maximum rated load, 8 hours at 88 percent of maximum rated load, and 8 hours at 106 percent of maximum rated load.
(4) Ambient Temperature: 38°C +/−3°C.
In February 2001, Michelin presented its suggested Endurance Certification Test to NHTSA. This is an endurance test for long term durability, which evaluates the following factors: belt edge stress, long-term cyclic fatigue and compound evolution. The following table illustrates the parameters of this test:
In May 2001, Michelin supplemented its requested endurance test with a discussion of the influence of its long term durability endurance test variables on tire endurance and crack propagation.
Michelin has also recommended replacing the current high speed test with ISO 10191. ISO 10191 contains test variables substantially similar to those in SAE J1561 and those recommended by RMA 2000 for the high speed test for passenger tires.
In a November 2000 submission to the docket, GM provided the following general comments on the first phase of NHTSA's tire testing matrix: (1) Increased high speed capability will result directly in compromises with mass, fuel economy (rolling resistance) and ride comfort, (2) correlation of laboratory tests with performance of tires in the field environment is necessary and tires with known acceptable field performance should serve as reference to acceptable performance on such laboratory tests, (3) tests that take the tire to failure can always be developed but may not indicate poor performance and tire failures on these tests should not be interpreted as an indication of unacceptable performance, (4) the definition of failure for these tests should be clarified, and (5) it is recommended that temperature monitoring be included in the testing.
GM also submitted a number of comments on NHTSA's test matrices. These comments, specific to NHTSA's preliminary test parameters, are not discussed in detail here, but are available for review in the docket.
Shortly after the enactment of the TREAD Act, the agency initiated tire testing at Standards Testing Labs (STL) in November 2000 to evaluate the high-speed performance, endurance performance, and low inflation pressure performance of a limited number of current production tires. The agency developed a test matrix which focused on the five main parameters currently used in tire testing under FMVSS Nos. 109 and 119: load, inflation pressure, speed, duration, and ambient temperature. Copies of the test matrix and testing results for P-metric tires and for LT tires is available in the docket (see the Tire Test Matrix in NHTSA Docket No. 2000-8011-1).
The high speed tests included a wide range of values for the test parameters to facilitate evaluation of the performance of a variety of tires used on light vehicles. A baseline high speed test was performed on each of the tire brands using the GTS-2000 high speed test for P-metric tires and FMVSS No. 109 for the LT tires.
The Phase I test matrix included loads of 80, 90, and 100 percent
The test results from the Phase I tests show that all but one of the tires completed the baseline high speed tests up to their rated speed without failure. The results of the matrix tests indicate that all the parameters have an impact on tire failure in the high-speed test; however, a decrease in inflation pressure appeared to have the greatest impact on time to failure in the high-speed test. For example, at an inflation pressure of 180 kPa using 20-minute speed intervals, the results of the P-metric tire tests indicate 3 of 9 tire failures, while at 240 kPa, under similar test conditions, all 9 tires completed the high speed test. The data also indicate that RMA 2000's suggested 10-minute test duration at each speed appears to be too short to properly evaluate the high speed performance of a tire. In the agency's testing, few failures occurred at the 10-minute steps, and all tires tested were able to complete many of the tests conducted using 10-minute speed intervals. In general, the most stringent mix of parameters was 100 percent load, low inflation pressure of 180 kPa, combined with the longest test duration for each speed step, 30 minutes. This test condition resulted in only one of nine P-metric tires completing the high speed test. A similar test condition for the test on three LT tires resulted in one tire completing the high speed test. The agency notes that these severe test conditions enabled us to evaluate the high speed performance limits of some current production tires.
The agency conducted additional high speed testing using a Phase II matrix. This second phase of the high-speed testing included 12 tire brands (8 P-metric and 4 LT tires) with a sample of five tires per test per brand. The test parameters included loads at 80 and 85 percent; inflation pressures at 210 kPa and 220 kPa; duration of 20 minutes; and speeds similar to the ITS plus 10, 20, 30 km/h method used in Phase I, and also three fixed speeds of 160, 170, and 180 km/h for 30 minutes at each speed step. For the LT tires tested to the high-speed test, the parameters were similar as those used for P-metric tires, except that the inflation pressures were changed to reflect the higher maximum inflation pressures on those tires.
The test results from the second phase testing demonstrated that there is variability in the manufacturing quality of tires since a mix of passes and failures occurred within the 5 samples tested for each brand.
The endurance testing was also comprised of two phases of matrix testing. The baseline endurance test used for the P-metric tires was the one
All the tires completed the baseline endurance tests without any failures. The results of the matrix tests for endurance indicate that the higher test speed, 140 km/h, had a large impact on the time to failure, even at the higher inflation pressure of 200 kPa. The high load percentages also contributed significantly to the short time to failure, especially for some of the LT tires.
The second phase of the endurance testing included test parameters closer to those that the agency is proposing in this NPRM. The parameters were as follows: lower loads of 100/110/115 percent combined with a test speed of 120 km/h at 180 kPa inflation pressure for a duration of 50 hours; higher loads of 100/115/125 percent combined with a lower test speed of 100 km/h at 180 kPa inflation pressure for 50 hours.
The results of the second phase of endurance testing indicate that fewer failures occurred in Phase II testing with the combination of high load (100/115/125 percent) and lower speed (100 km/h) than under the parameters of Phase 1 testing. In Phase 2, 7 of the 8 P-metric tires completed the test without any failures in any of the 5 samples of each brand tested. The 4 LT tires tested also performed well with one failure in the five samples in 3 of the 4 brands tested. One brand completed the test with all 5 tires completing the 50-hour test. The test conditions that produced the most failures in the P-metric tires were the higher load combinations at 120 km/h. These conditions, surprisingly, did not produce many failures in the LT tires tested.
The agency also conducted a test at low inflation pressures (140 kPa (20 psi) inflation pressure for P-metric tires), at a speed of 120 km/h (75 mph) for a duration of 90 minutes, on the same tires (2 samples of each of the 12 brands) that successfully completed the endurance test. The purpose of this test was to evaluate tire performance at a low inflation pressure threshold level, 20 psi, being proposed for tire pressure monitoring systems for light vehicles.
In summary, the results of the high speed and endurance tests indicated that the agency can develop and propose test requirements that are realistic in terms of the test parameters, yet more stringent than the current FMVSS No. 109, FMVSS No. 119 requirements, European Regulation ECE R 30, GTS 2000, and RMA 2000. The proposed test requirements differentiate tires with better high speed and endurance performance from those with lesser performance. The low pressure validation tests indicate that tires that were able to successfully complete the endurance testing can also complete an additional 90-minute test at a low inflation pressure, 140 kPa for P-metric tires, thus providing an adequate safeguard for consumers to take corrective action when the low pressure warning lamp proposed under the tire pressure monitoring system rulemaking is activated at a “significantly” under-inflated level.
The agency is proposing a single standard for light vehicle tires, FMVSS No. 139, New Pneumatic Tires for Light Vehicles, which would require light vehicle tires to meet a high-speed test, an endurance test, a low inflation pressure performance test, a resistance-to-bead unseating test, a road hazard impact/strength test, and an accelerated aging test. This standard would require tires for passenger cars, multipurpose passenger vehicles, trucks, buses and trailers with a gross vehicle weight rating (GVWR) of 4,536 kilograms (10,000 pounds) or less, manufactured on or after November 1, 2003, to comply with the test requirements. Therefore, this proposal is applicable to LT tires up to load range E.
Both the proposed High Speed Test and the Endurance test contain testing parameters (ambient temperature, load, inflation pressure, speed, and duration) that make the tests more stringent than those tests currently found in FMVSS Nos. 109 and 119, as well as the tests suggested by industry. Most significantly, the proposed High Speed test specifies test speeds (140, 150 and 160 km/h (88, 94, and 100 mph)) substantially higher than those specified in FMVSS No. 109 (120, 128, 136 km/h (75, 80, 85 mph)). Likewise, the proposed Endurance Test specifies a test speed 50% faster (120 km/h (75 mph)) than that currently specified in FMVSS 109 (80km/h (50 mph)), as well as a duration 6 hours longer (40 hours total) than that currently specified in FMVSS 109 (34 hours total). At the specified test speed (120 km/h), the Proposed Endurance Test mileage (3,000) is almost double the mileage that a tire endures under the current Endurance Test (1,700 miles at 80 km/h).
The proposal also contains two alternative Low Inflation Pressure tests which seek to ensure a minimum level of performance safety in tires when they are underinflated to 140 kPa. The agency requests comments on which test is more appropriate to be included in the new standard.
In place of the current strength test in FMVSS No. 109, the agency proposes that the new standard contain a Road Hazard Impact test which is modeled after a SAE recommended practice. This test, which simulates a tire impacting a road hazard, such a pothole or curb, provides both a more stringent and more real world test than the FMVSS No. 109 “plunger test.”
The proposal would also replace the current FMVSS No. 109 Bead Unseating Test with a new Bead Unseating test which is based on a test currently used by Toyota. Industry has previously recommended to the agency that the current bead unseating test be deleted from the standard because radial tires are easily able to satisfy the test. Results from the agency's 1997-1998 rollover testing, however, provide a strong rationale for upgrading, rather than deleting, the bead unseating requirement in FMVSS No. 109. The Toyota test uses test forces more stringent than those in current FMVSS No. 109 which were developed for bias ply tires and are typically not stringent enough for radial tires.
To address the deterioration of tire performance caused by aging, the proposal contains three alternatives for an Aging Effects Tests. These tests, the Adhesion (Peel) Test, Michelin's Long-term Durability Endurance test, and Oven Aging all seek to expose tires to the type of failures experienced by consumers at 40,000 kilometers or beyond. The agency requests comments on which test is most appropriate to be included in the new standard.
The proposal would also revise FMVSS Nos. 110 and 120 to reflect the applicability of the new standard and would revise certain of the tests in FMVSS Nos. 117 and 129 to ensure that all light vehicle tires are required to comply with the identical minimum performance requirements. Lastly, the proposal discusses NHTSA's ongoing and future Road Hazard Impact Test and Bead Unseating Test research plans, the lead time for implementation of the new tire standard, the use of shearography analysis, and the revision of the requirements for the test speeds in UTQG Temperature Grading Requirement to mirror those in the proposed High Speed Test.
NHTSA believes that the proposed upgraded standard would specify more stringent and real-world, yet practicable, tests that would provide a higher level of operation safety and performance for tires on today's light vehicles.
FMVSS No. 139 would apply to new pneumatic tires for use on motor vehicles with a GVWR of 10,000 pounds or less, manufactured after 1975, except for motorcycles. Given the increasing consumer preference for light truck use for passenger purposes, the agency is proposing that the safety requirements for passenger car tires also be made applicable to LT tires (load range C, D, and E) used on light trucks.
Currently, the performance requirements for LT tires in FMVSS No. 119 are less stringent than the requirements for P-metric tires in FMVSS No. 109. LT tires are required to comply with a strength test and a low speed endurance test, but are not required to be tested to a high speed performance test or a resistance-to-bead unseating test as required under FMVSS No. 109. However, LT tires are increasingly used in the same type of on-road service as P-metric tires on light vehicles. Further, recent sales data for heavier light trucks indicate that the use of these tires on passenger vehicles will continue to increase in the near future.
NHTSA is not proposing to require that FMVSS No. 139 apply to motorcycle tires because motorcycle tires are of a design and construction unlike the types of vehicle tires that would be subject to the proposed standard (
NHTSA is also not proposing to require that the new standard be applicable to tires beyond load range E, which are typically used on medium (10,001-26,000 lbs. GVWR) and heavy (greater than 26,001 lbs. GVWR) vehicles, and temporary spare tires,
NHTSA proposes that the High Speed test be conducted using the following five parameters:
(1)
(2)
(3)
(4)
(5)
A tire complies with the proposed requirements if, at the end of the high speed test, there is no visual evidence of tread, sidewall, ply, cord, inner liner, or bead separation, chunking, broken cords, cracking, or open splices, and the
The agency proposes a high speed test with three pre-selected speeds. This testing methodology is different from that in two alternatives which were considered by the agency: (1) GTS-2000, and (2) a high speed test using identical parameters to those proposed above, except that the test speeds are based on the rated speed of the tire (initial test speed (ITS), ITS + 10, ITS + 20, ITS + 30) for durations of 20 minutes at each speed step with a 10-minute warm-up from 0 km/h-ITS.
The methodology suggested by the tire industry in GTS-2000 for tire harmonization and the second alternative determines the test speed based on the tire's speed symbol rated speed. The following chart illustrates the rated speed in km/h for each speed symbol.
The initial test speed (ITS) in GTS-2000 is the rated speed of the tire minus 40 km/h. The test is conducted at the following speed steps: ITS, ITS+10 km/h, ITS+20 km/h, ITS+30 km/h and ITS+40 km/h. The final speed step, ITS+40 km/h, is identical to the rated speed of the tire. Similarly, the ITS in the second alternative is the rated speed of the tire minus 30 km/h. The test is conducted at the following speed steps: ITS, ITS+10 km/h, ITS+20 km/h, and ITS+30 km/h, with the final speed step being identical to the rate speed of the tire. Therefore, under both alternatives, each tire with a different speed rating is tested at different speeds during the high speed test.
Historically, the agency establishes uniform minimum performance requirements for its safety standards for the item of motor vehicle equipment. Testing for compliance using the tire's rated speed differs from that philosophy since it does not establish a single absolute minimum requirement for all tires, but establishes a relative requirement based on each tire's maximum design capabilities.
The agency's proposal, based on pre-selected test speeds and independent of the rated speed of the tire, establishes the same minimum requirement for all tires, regardless of the designed level of performance. We believe that such a methodology is equitable for all tire manufacturers and does not impose higher safety standard requirements on a tire with a higher level of performance.
The following table illustrates an at-a-glance comparison of the other standards and suggestions discussed in this document.
An explanation of the proposed parameters is provided below.
The proposed ambient temperature is 40°C. This temperature is a slight increase over the temperature, 38°C, currently specified in FMVSS No. 109. This temperature reflects the typical daytime temperatures in the South and Southwestern regions of the U.S. during the Summer. As discussed earlier, the highest rates of tire problems occurred in the southern states in the summertime.
The load proposed for the high-speed test is 85 percent. The load percent currently specified in FMVSS No. 109 is 88 percent. As discussed in greater detail below, decreasing the load from 88 percent to 85 percent increases the tire reserve needed by a vehicle under normal loading conditions from 12 percent to 15 percent, resulting in a larger margin of safety when a vehicle is loaded to its GVWR or its tires are underinflated.
Changing the load from 88 percent to 85 percent in the high speed test would affect the current requirement in S4.2.2 of FMVSS No. 110 which states that the vehicle normal load on the tire is to be no greater than the applicable load used in the high speed performance test. “Tire reserve load” refers to a tire's remaining load-carrying capability when the tire is inflated to the vehicle manufacturer's recommended inflation pressure and the vehicle is loaded to its gross vehicle weight rating (GVWR).
In addition, the requirement for a 12 percent tire reserve under normal loading conditions currently applies only to passenger cars. This notice proposes to require light trucks for the first time to have a specified tire reserve under normal loading conditions. Light trucks would have to provide the same 15 percent reserve proposed for passenger cars.
The agency also proposes revised language in FMVSS No. 110 to clarify that the test load that is compared with the vehicle normal load must be determined at the vehicle manufacturer's recommended cold tire inflation pressure, and not at the maximum tire load limit on the sidewall. The agency believes that since the vehicle normal load defines loading during normal operation of the vehicle, it is appropriate to require the load to be determined at the vehicle's recommended cold tire inflation pressure.
Although 85 percent loading for the high speed testing of tires represents a slight decrease from the current 88 percent specification in FMVSS No. 109, test data from the agency's testing and from RMA testing indicate that tire failure is more sensitive to speed and inflation pressure than to loading variations in the 80 to 90 percent range.
The agency proposes a test inflation pressure of 220 kPa (32 psi) for all unrated and speed rated P-metric tires and 260 kPa for extra load tires. The proposed P-metric tire pressure is the same as that specified in FMVSS No. 109. The agency proposes the following inflation pressures for LT tires based upon their higher maximum inflation pressures: 320 kPa for load range C, 410 kPa for load range D, and 500 kPa for load range E tires. During its testing, the agency incorrectly used 600 kPa as the maximum load rate inflation pressure for LT tires with load range “E”, and calculated test pressures utilizing 600 kPa. Based on the Tire and Rim Association (T&RA) Yearbook, load range E tires have an inflation pressure of 550 kPa at its maximum load rating. Therefore, the test inflation pressures are revised accordingly.
The proposed inflation pressures are based on surveys showing that tires are typically operated at some level of underinflation.
Although 220 kPa is the same test pressure specified in FMVSS No. 109, this test pressure, in conjunction with the new proposed test speeds, represents a more stringent test than that contained in FMVSS No. 109. Agency testing results indicate that 220 kPa is a test inflation pressure that would be appropriate for the high speed test given the parameters of speed, load and test duration.
RMA suggested basing the test inflation pressure on the rated speed of the tire. Tires rated P, Q, R, and S would be tested at 260 kPa; tires rated T, U, and H are tested at 280 kPa; tires rated V are tested at 300 kPa; and tires rated W, Y, and Z are tested at 320 kPa.
The proposed test speeds, 140, 150 and 160 km/h (88, 94, and 100 mph) represent a substantially increased stringency from the test speeds currently used in FMVSS No. 109 and 119 for which tires are tested at 75, 80, and 85 mph for 30 minutes at each speed. This approach would more closely mirror the upper limit of real world operational speeds beyond which drivers have few opportunities to operate their vehicles and eliminate from production any tires whose production just achieved the lowest rung of Temperature resistance rating in our Uniform Tire Quality Grading System (UTQGS), “C” rated tires.
The agency considered proposing a higher threshold test speed of 180 km/h so that speed rated tires with a speed rating lower than “S” (180 km/h) would not have been able to comply with the high speed test. In the U.S., light vehicles are typically equipped with tires speed rated no lower than Q (160 km/h). GM suggested that the agency consider basing our test speed on the speed rating of the tire since many of their light trucks are equipped with LT tires rated Q and R, 160 km/h (100 mph) and 170 km/h (106 mph), respectively. NHTSA, however, believes that an upper test speed threshold of 160 km/h (100 mph) ensures a minimum level of safe operation that is 25-30 mph beyond typical speed limits on interstate highways in the U.S.
Under the UTQG test procedure, a tire is rated C if it fails to complete the test at 100 mph for 30 minutes. The test is initiated at 75 mph for 30 minutes and then successively increased in 5 mph increments for 30 minutes each until the tire has run at 115 mph for 30 minutes. Therefore, tires with a temperature rating of C would be able to complete 30 minutes at speeds of 75, 80, 85, 90, and 95 mph (120, 128, 136, 144, and 152 km/h), but not complete the 100-mph (160 km/h) step. NHTSA, as mentioned above, believes that testing at an upper test speed threshold of 160 km/h (100 mph) ensures a minimum level of safe operation.
As discussed above, NHTSA used test speeds based on the speed rating of the tires for its high speed testing at STL (see the Tire Test Matrix in Docket No, NHTSA-00-8011-1). While representing a departure from the methodology of utilizing three predetermined test speeds (as proposed above and currently used in the FMVSS Nos. 109 and 119 high speed tests), this approach is identical to that contained in ECE R 30, GTS-2000, RMA 2000, and in SAE Recommended Practice J15161, Laboratory Speed Test Procedure for Passenger Car Tires. NHTSA seeks comment on whether test speeds based on speed ratings would be more appropriate, than those proposed above, for the High Speed Test and, more specifically, whether the method for determining test speeds contained in NHTSA's high speed testing matrix or the two alternatives mentioned above would be appropriate for the High Speed Test in the final rule.
NHTSA proposes a 30-minute test duration for each of the 3 speed steps, 140, 150, and 160 km/h. The total test time equals 90 minutes. The 30-minute duration allows the tire to attain and maintain its operating temperature at each speed step so that the tire's performance could be evaluated during a steady rate of speed for a duration longer than 10 minutes.
Based on its testing, the agency believes that RMA 2000's 10 minute duration at each speed step (10 minute speed build-up from 0 km/h to ITS, then five 10 minute speed steps) is too short to provide a proper evaluation of high-speed performance. Very few failures occurred in the agency's testing using the 10-minute duration for speed steps. Additionally, RMA's recommendation reduces the duration currently specified in FMVSS No. 109 by almost 50 percent.
NHTSA proposes that the Endurance test be conducted using the following five parameters:
(1)
(2)
(3) Inflation Pressure—180 kPa (26 psi) for P-metric, 260 kPa (38 psi), 340 kPa (50 psi), and 410 kPa (59 psi), for LT load range C, D and E, respectively.
(4) Speed—120 km/h (75 mph).
(5) Duration (hrs): 8, 10, 22 (total 40) at the corresponding loads listed above.
A tire complies with the proposed requirements if, at the end of the endurance test, there is no visual evidence of tread, sidewall, ply, cord, inner liner, or bead separation, chunking, broken cords, cracking, or open splices, and the tire pressure is not less than the initial test pressure.
This combination of these parameters for P-metric tires represents a more real-world test and an increase in stringency over FMVSS No. 109's endurance test with an 18 percent increase in the duration, a 10 percent increase in the load, and a 50 percent increase in speed.
Two alternatives to the proposed test parameters were considered by the agency: (1) RMA 2000, and (2) an endurance test using identical parameters to those proposed above except for test loads at 100/110/115 percent for durations of 8, 10, 32 (total 50).
RMA 2000 includes no change in the load combination of 85/90/100 percent and a 10-hour (almost 30%) decrease in duration from the current standard, FMVSS No. 109. The load and duration increase of the second alternative to a load combination of 100/110/115 and a 16-hour (almost 50%) increase in duration from FMVSS No. 109 would fail over 40 percent of P-metric tires and 20 percent of LT tires tested.
The agency proposes an endurance test that has parameters different from the two alternatives in load and duration. The agency believes that, given the change in the composition of the light vehicle market in the U.S. over the past 10 years towards a greater proportion of light trucks and vans being used for passenger purposes, the load values for an endurance tire test should be increased up to 110 percent to reflect the greater likelihood of vehicle overloading that is more likely to occur with light trucks and vans than with passenger cars. Further, the agency believes that an increase in duration for the test is warranted reflecting the increased life of today's tires. The increase in duration from 34 hours to 40 hours combined with the proposed test speed of 120 km/h represents an increase in the total test distance from
The following chart illustrates an “at-a-glance comparison” of the proposed standard to the other standards and suggestions discussed in this document.
The endurance testing conducted in Phase 1 of the agency's testing was performed at 120 km/h and 140 km/h, with loads of 100 percent, 115 percent, and 125 percent for a total of 50 hours, and at inflation pressures of 160 kPa and 200 kPa. Many failures occurred at the combination of low inflation pressure (160 kPa) and high speed (140 km/h). At a test speed of 120 km/h with an inflation pressure of 200 kPa, 2 of the 9 P-metric tires failed to complete the 50 hour test.
In Phase 2 of the testing, the agency tested with loading conditions of 100/110/115 percent, (identical to the load recommended by the tire industry for the endurance test in GTS-2000), 180 kPa inflation pressure, 120 km/h for 50 hours. For P-metric tires, 2 of the 8 tire brands completed the test without any failures in their 5 samples; the remaining tire brands experienced at least one failure in the five samples used during the test.
Although neither phase of the endurance testing tested tires at exactly the same conditions as those proposed above, analysis conducted by the agency indicates that 19 of the 24 tires tested would pass the proposed endurance test. This analysis is contained in the PEA. NHTSA seeks comment on this analysis and whether the two alternatives mentioned above would be appropriate for the Endurance Test in the final rule.
A more detailed explanation of the proposed parameters is discussed below.
The proposed ambient temperature is 40°C. This temperature is a slight increase over the temperature, 38°C, currently specified in FMVSS No.109, and reflects typical daytime temperatures in the South and Southwestern regions of the U.S. during the Summer months. As discussed earlier, the highest rates of tire problems occurred in the southern states in the summertime.
The proposed loads for the endurance test are 90, 100, and 110 percent. These load percentages represent an approximate 10 percent increase over the load percentages specified for the endurance test in FMVSS No. 109 (85, 90, and 100 percent) and an increase over those recommended by RMA 2000.
The load levels originally proposed by the tire industry in GTS-2000 for P-metric tires rated Q or below were 100/110/115 percent at a test speed of 80 km/h. Given the increased use of light trucks and vans by the general public and the larger cargo volumes available in these vehicles, the agency believes that they are more likely to be operated in an overloaded condition than passenger cars. Our proposal for loads in the endurance test, 90/100/110 percent, reflects the need to increase the loads beyond the loads currently required in FMVSS No. 109 but not to the levels proposed by industry in the original GTS-2000 proposal. The RMA now supports a load combination of 85/90/100 percent for P-metric tires, which is identical to the test loads currently required for the endurance test in FMVSS No. 109, but at the higher speeds of 120 km/h, as proposed by the agency. The load combination proposed by RMA for LT tires with load C or D is 75/97/114 percent, and for load range E tires is 70/88/106 percent. The industry's endurance test proposal for P-metric and LT tires is based on a 24-hour test, which represents a 10-hour reduction in the endurance test time from FMVSS No. 109.
The inflation pressure of 180 kPa represents a 25 percent under-inflation for 240 kPa maximum inflation pressure tires and is the same inflation pressure currently required for the endurance test in FMVSS No. 109. Tires tested to more severe levels of underinflation, e.g., 160 kPa, failed much sooner into the 50-hour endurance test than those tested at 180 kPa.
The proposed test is conducted at 120 km/h (75 mph). The current endurance test in FMVSS 109 is conducted at 80 km/h (50 mph). A 80 km/h test speed
NHTSA is proposing a 40-hour test at 120 km/h. The total test distance is 4800 km (3000 miles), which is almost double the distance for the current endurance test in FMVSS No. 109 (1700 miles at 80 km/h). The proposed test duration represents a slight increase from the current 34-hour test in FMVSS No. 109.
The TREAD Act requires that light vehicles be equipped with a tire pressure monitoring system, effective November 1, 2003, to indicate to the driver when any of the tires on his vehicle is significantly underinflated. NHTSA has proposed to establish 20 psi as a low pressure threshold at or above which the low pressure lamp must be activated.
NHTSA proposes to include in the new light vehicle tire standard a low inflation pressure test to ensure a minimum level of endurance and/or high speed performance/safety when operated at a significant level of under-inflation. To aid the agency in choosing an appropriate test, NHTSA seeks comments on the following alternative tests: (1) The Low Pressure—TPMS test, (2) or the Low Pressure High Speed test. Both proposed tests are described and detail below.
The Low Pressure—TPMS test includes a linkage between the proposed requirements of the tire pressure monitoring system standard and the proposed endurance test for the tire standard upgrade proposed requirements. The former test is predicated upon the notion that a low pressure test would be most appropriate on tires that have completed the endurance test because a significantly underinflated condition for a tire is more likely to occur in a tire after several weeks of natural air pressure loss or due to a slow leak. The parameters for this test, which the tire must complete without failure, are as follows:
(1) Load: 100 percent.
(2) Inflation pressure: 140 kPa (20 psi).
(3) Test speed: 120 km/h (75 mph).
(4) Duration: 90 minutes at the end of the 40-hour endurance test.
(5) Ambient temperature: 40°C.
A tire complies with the proposed requirements if, at the end of the test, there is no visual evidence of tread, sidewall, ply, cord, inner liner, or bead separation, chunking, broken cords, cracking, or open splices, and the tire pressure is not less than the initial test pressure.
As discussed,
The agency believes that this test provides an extra safeguard to ensure that tires which were able to successfully complete the endurance testing can also complete an additional 90-minute test at low inflation pressures.
This proposed test provides a linkage between the proposed TPMS requirements and the proposed high speed test. While it would evaluate tires at a lower load than that specified in the Low Pressure—TPMS test, the Low Pressure—High Speed test would ensure that a manufacturer designs a tire so that its high speed performance would comply with the test requirements not only at recommended inflation pressure, but also at a low inflation pressure. The parameters for this test are as follows:
(1)
(2)
(3)
(4)
(5)
A tire complies with the proposed requirements if, at the end of the test, there is no visual evidence of tread, sidewall, ply, cord, inner liner, or bead separation, chunking, broken cords, cracking, or open splices, and the tire pressure is not less than the initial test pressure.
The above conditions place the test point slightly below the T&RA load curves. The T&RA load curves establish the load capacity a tire is designed to carry at a specific inflation pressure. A tire is considered to have passed the test if it completes the 30 minute step at 160 km/h (100 mph).
NHTSA recently conducted testing of the above parameters on 8 tire brands. The results of this testing are contained in a report which has been added to the docket for this rulemaking. The results indicate that 30 percent of tires with an “S” speed rating, 63 percent of tires with an “R” speed rating, and 75 percent of tires with a “Q” speed rating would not pass this test. However, 70 percent of tires with an “S” speed rating, and all “T” and “H” rated tires would have completed the test. The following bullets summarize key conclusions derived from the results:
• Effect of test pressure on tire performance—Inflation pressure has a significant effect on speed-at-failure. An inflation pressure of 180 kPa (26 psi) produces a substantial number (32 out of 168, or 19 percent) of failures at speeds less than the rated speed of the tire.
• Combined effect of load and pressure on tire performance—The combination of NHTSA and RMA data supports the hypothesis that the performance of a tire is the same for a test condition anywhere on the T&RA load curve except for inflation pressure below 180 kPa (26 psi). At these lower pressures, specifically at 140 kPa (20 psi), failure rates are higher for tires with lower speed ratings than would be predicted from the results of tests run at higher pressures and loads that correspond to points on the T&RA load curve, i.e., the proposed high-speed test condition.
• Effect of length of time at a speed on tire performance—For high-speed tests of tires at the maximum sidewall pressure (240 kPa (35 psi) for the tires tested), it may be necessary to test with durations greater than 10 minutes to fully judge failure rates. For tests at lower pressures, the results do not provide a consistent picture. For example, the RMA data at 180 kPa (26 psi) suggests that it probably is not necessary to test for more than 10 durations. However, the NHTSA data at 140 kPa (20 psi) suggests that 10 minutes may not be a sufficiently long duration.
The agency proposes that a road hazard impact test replace the strength (plunger) test in the new standard. A tire complies with the proposed requirements if, at the end of the test, there is no visual evidence of tread, sidewall, ply, cord, inner liner, or bead separation, chunking, broken cords, cracking, or open splices, and the tire pressure is not less than the initial test pressure.
A road hazard impact test simulates a tire impacting a road hazard, such as a pothole or curb, and is a more realistic test for radial tires than the current strength test in FMVSS No. 109. For this test, NHTSA is utilizing the existing SAE Recommended Practice J1981, Road Hazard Impact Test for Wheel and Tire Assemblies (Passenger Car, Light Truck, and Multipurpose Vehicles) (“J1981”).
J1981 was developed to provide a uniform test procedure for evaluating the effect, on wheel and tire assemblies, of impacting a road hazard such as a pothole or curb. J1981 does not attempt to simulate the exact conditions encountered when the wheel and tire assembly strikes such a hazard. The equipment developed for this test does, however, attempt to reproduce under controlled conditions the wheel and tire deformations that may be experienced with a road hazard impact. The test equipment can also be used to determine, with a high degree of accuracy, the threshold condition at which tire damage first occurs.
In the preparation of J1981, laboratory and road tests carried out by a number of manufacturers were studied. The pendulum test specified in J1981 was designed to provide equivalent damage with low cost equipment that would give accurate and reproducible results. The test is designed for testing of wheel and tire assemblies used with passenger cars, light trucks, and multipurpose vehicles. The test is limited to a front (radial) impact with both wheel rim flanges being impacted simultaneously.
The following bullets summarize the key components of a Road Hazard Impact Test Machine (used by STL) and the test procedure for the Road Hazard Impact Test as specified by SAE J1981:
• The basic machine consists of a framework designed to guide the Pendulum Weight System so that, when released, it will free fall and impact the wheel tire assembly. The wheel/tire assembly is adjustable so that it can be aligned with the Pendulum Weight Assembly.
• The equipment must be calibrated to ensure that the impact force is correct since the impact force on the wheel and tire assembly depends on the length of the pendulum, the shape of the striker, and the friction at the fulcrum.
• The tire and wheel assembly, inflated to the required test pressure, is installed on the test fixture. The inflation pressure proposed for P-metric tires is 180 kPa, and for LT tires load ranges C, D, and E, it is 260 kPa, 340 kPa, and 410 kPa, respectively.
• The 54 kg striker is raised to the predetermined drop height based on the pendulum centerline angle of 80 degrees to the vertical. The striker is allowed to fall freely from this predetermined height to impact the test tire and wheel assembly.
• The test is repeated for a total of five equally spaced points around the circumference of the tire.
• The tire pressure at the end of the test shall not be less than the initial test pressure, and there must be no visual evidence of tire failure.
The current resistance-to-bead unseating test is designed to evaluate how well the tire bead remains on the rim during turning maneuvers. The test forces currently used in FMVSS No. 109 are based on bias ply tires and are typically not stringent enough for radial tires. For this reason, the industry, in GTS-2000, recommended that the test be deleted from the standard because radial tires are able to satisfy the test easily. Results from the agency's 1997-1998 dynamic rollover testing, however, provide a strong rationale for seeking to upgrade, rather than delete, the bead unseating requirement in FMVSS No. 109. In this NHTSA test program, vehicles experienced bead unseating on three of twelve test vehicles. This bead unseating occurred during severe maneuvers, but on level surfaces without any external impact to the tire. Such bead unseating in the real world would pose serious safety concerns. Therefore, NHTSA proposes to replace the current bead unseating test in FMVSS No. 109 with the Toyota Air Loss Test.
The Toyota Air Loss Test was developed by Toyota to evaluate tubeless tire performance. While the current FMVSS No. 109 bead unseating test applies force in the middle of the sidewall, the Toyota Air Loss Test applies force at the tire tread surface edge. The tire tread surface edge is the actual location at which force occurs due to tire/road interface during severe vehicle maneuvers. There are two general methods for conducting the Toyota test:
1.
2.
NHTSA proposes to adopt the Air Loss Bench Test Method because the test is independent of vehicle type, although the agency seeks comments on both methods. This test method uses a force of 2.1 times the maximum load labeled on the tire sidewall, which is applied at the tread surface. The wedge-shaped device applies a force on the tire, laterally, at the tread surface. This force simulates the lateral force at the tread surface, which a tire experiences during severe maneuvers that could produce bead unseating of the tire.
Toyota has provided a brief description of the test apparatus and the test method used for the bench test. The apparatus includes a tire mounting hub that positions the tire vertically at an angle 5 degrees to the vertical axis, a hydraulic-powered sliding wedge-shaped block that applies force to the tire tread surface, and a control panel that includes controls for monitoring and regulating the tire's inflation pressure and a load indicator. The test procedure recommends inflating the tire to an initial inflation pressure of maximum (design) inflation pressure plus 50 kPa. Therefore, the initial inflation pressure for a P205/65R15 standard load tire (rated at a load limit of 635 kg ( 1400 lbs.) at an inflation
The agency has recently conducted research using the Toyota test apparatus and test to verify that the recommended force levels are appropriate for a minimum safety requirement. Based on the agency's evaluation of this bead unseating method, it proposes 180 kPa for an inflation pressure in P-metric tires and 2.0 times the maximum tire load labeled on the tire sidewall for an application load appropriate for a minimum safety standard. The test inflation pressure for other tires are identical to the inflation pressures used in the proposed endurance test, which specifies 260 kPa, 340 kPa, and 410 kPa for LT tires load range C, D, and E, respectively.
The preliminary test results for the bead unseating testing have been placed in the docket. The agency requests comment on the data.
During the Firestone hearings and the passage of the TREAD Act, some members of Congress expressed the view that there is a need for an aging test to be conducted on light vehicle tires. The agency tentatively concludes that we agree there is a need for an aging test in the proposed light vehicle tire standard because most tire failures occur at mileages well beyond 2,720 kilometers (1,700 miles) to which tires are exposed in the current FMVSS No. 109 Endurance Test.
Currently, no industry-wide recommended practice for accelerating the aging of tires exists.
The Adhesion (peel) test is based on the American Society for Testing and Materials (ASTM) 413-98, Standard Test Methods for Rubber Property—Adhesion to Flexible Substrate. The Adhesion (peel) test evaluates a tire's resistance to belt separation by determining the adhesion strength, measure by force per unit width, required to separate a rubber layer from a flexible substrate such as fabric, fibre, wire, or sheet metal. The adhesion levels of a tire will vary based on rubber formulations, the different materials used to construct a tire, and the curing process.
The test methods in ASTM D 413-98 cover the determination of adhesion strength between plies of fabric bonded with rubber or adhesion of the rubber layer in article made from rubber attached to other material. They are applicable only when the adhered surfaces (adjacent tire belts) are approximately plane or uniformly circular in belting, hose, tire carcasses, or rubber covered sheet metal.
The test methods described in this ASTM standard determine the force per unit (pounds per inch) width required to separate a rubber layer from a flexible substrate such as fabric. There are two general methods for this test:
(1)
(2)
Due to the greater accuracy of the tension testing machine, the agency proposes to utilize the Machine Method to apply a peel strength requirement for new tires after they complete a 24-hour test with parameters similar to the proposed 40-hour endurance test. The parameters for this 24-hour test are as follows:
(1) Ambient temperature—40°C.
(2) Load—90/100/110 percent.
(3) Inflation pressure—180 kPa.
(4) Test speed—120km/h.
(5) Duration—24 hours with three 8-hour periods at each load.
For a tire to satisfy the proposed test, it must exhibit a minimum peel strength of 30 pounds per inch at the end of the 24-hour test period. This value was tentatively chosen based on data made available to NHTSA from Ford and Firestone.
The second accelerated aging method being considered by the agency is based on a method utilized by Michelin. This method uses a road wheel endurance test with the following controlled parameters to simulate testing the tire to tread wear-out: load, inflation pressure, speed, and duration. The test tire is inflated with a 50/50 blend of O
The Michelin long-term durability endurance test research findings were initially published at a 1985 International Rubber Conference.
The following test parameter values have been developed, through a multi-year research program at Michelin, to minimize variance from field test end conditions and minimize test hours:
(1)
(2)
(3)
(4)
(5)
(6)
These values were chosen to make each test parameter proportionally
A tire complies with the proposed requirements if, at the end of the test, there is no visual evidence of tread, sidewall, ply, cord, inner liner, or bead separation, chunking, broken cords, cracking, or open splices, and the tire pressure is not less than the initial test pressure.
The agency also proposes a two-step test combining oven aging and a 24-hour test that is similar in method to the proposed 40-hour endurance test. The parameters for this test are as follows:
(1) Oven aging
(a) Oven temperature: 75°C (167°F).
(b) Duration: 14 days.
(2) 24-hour endurance test
(a) Ambient temperature: 40°C.
(b) Load: 90/100/110 percent.
(c) Inflation pressure: 180 kPa.
(d) Test speed: 120 km/h.
(e) Duration: 24 hours with three 8-hour periods at each load.
A tire complies with the proposed requirements if, at the end of the test, there is no visual evidence of tread, sidewall, ply, cord, inner liner, or bead separation, chunking, broken cords, cracking, or open splices, and the tire pressure is not less than the initial test pressure.
One tire manufacturer, Michelin, commented during discussions with NHTSA that oven aging a tire does not create a representative heat differential (
The requirements of the proposed new standard, FMVSS No. 139, would supercede the current requirements of FMVSS No. 109. Therefore, the agency proposes the deletion of FMVSS No. 109 from its standards. FMVSS No. 109 is applicable to tires for vehicles manufactured after 1948. The proposed standard is would be applicable to tires for vehicles manufactured after 1975. While deletion of FMVSS No. 109 would theoretically preclude application of any requirements to tires produced for vehicles manufactured 1975 and before, the agency has no data showing that these vehicles are overrepresented in crashes involving tire failures. Additionally, the number of these vehicles operated today is very limited and this limited number makes them less likely to be involved in a crash caused by tire failure. Finally, the GRRF committee has tentatively agreed on 1975 as the date of applicability for a globally harmonized tire standard. The agency solicits comments on the deletion of FMVSS No. 109 and the issues discussed above.
The purpose of FMVSS Nos. 110 and 120 is to provide safe operational performance by ensuring that vehicles to which they apply are equipped with tires of adequate load rating and rims of appropriate size and type designation. FMVSS No. 110 currently applies to passenger cars and FMVSS No. 120 currently applies to vehicles other than passenger cars including motorcycles and trailers.
The agency proposed in the Tire Safety Information NPRM (Docket No. NHTSA-01-11157) that FMVSS Nos. 110 and 120 be revised to correspond with the applicability of the new light vehicle tire standard. FMVSS No. 110 would include passenger cars and other light vehicles with a GVWR of 10,000 pounds or less. Therefore, most SUVs, vans, trailers, and pickup trucks would be required to comply with the same tire selection and rim requirements as passenger cars. FMVSS No. 120 will continue to apply to vehicles over 10,000 pounds GVWR and motorcycles.
All requirements of FMVSS No. 110 would be retained including S4.2.2 which establishes a linkage between the vehicle normal load
The proposal also retains S4.4.1(b) of FMVSS No. 110 which requires that each rim shall retain a deflated tire in the event of a rapid loss of inflation pressure from a vehicle speed of 97 km/h until the vehicle is stopped with a controlled braking operation.
FMVSS No. 117, which specifies performance requirements for retreaded pneumatic passenger car tires and FMVSS No. 129, which specifies performance requirements for new non-pneumatic tires for passenger cars, contain test requirements and test procedures which either reference or are modeled after those in the current FMVSS No. 109. More specifically, FMVSS No. 117 specifies that each retreaded tire shall comply with FMVSS No. 109 strength and resistance-to-bead unseating tests and the FMVSS No. 129 tire strength and high speed tests specifications mirror those in FMVSS No. 109. In order to maintain consistent testing procedures and requirements for all tires for use on light vehicles, the strength and resistance-to-bead unseating test procedures and requirements in FMVSS No. 117 would be replaced with the proposed road hazard impact test and bead unseating tests. Similarly, the strength and high speed test procedures and requirements in FMVSS No. 129 would be revised to include the proposed road hazard impact test and high speed test. Additionally, the applicability of FMVSS Nos. 117 and 129 would be revised to include retreaded and non-pneumatic tires, respectively, for use on motor vehicles with a GVWR of 10,000 pounds or less, manufactured after 1975, except for motorcycles.
FMVSS No. 120 requires that the load rating of a tire subject to FMVSS No. 109 must be reduced by a factor of 1.10 when installed on a MPV, truck, bus or trailer. This factor equals a 10 percent “de-rating” and provides a greater load reserve when passenger car tires are installed on SUVs, vans, trailers, and pickup trucks. The rationale for the de-rating requirement is that SUVs, vans,
Tire manufacturers have recommended that the agency retain the de-rating provision in the revised standard for tire selection and rims for light vehicles. The agency, for the reasons cited above, agrees with the tire manufacturers' suggestion and has inserted this provision in the proposed regulatory text for the revised FMVSS No. 110.
As discussed above, NHTSA is currently conducting Bead Unseating and Road Hazard Impact Test (SAE J1981) research. The purpose of this research is to establish and to determine force levels for the Bead Unseating Test and to establish a minimum force requirement and test values for the Road Hazard Impact Test. The specific aspects of testing in these two areas are discussed below.
This research will be conducted in two testing phases. In Phase 1, potential bead unseat tests will be evaluated using a limited sample of tire types and sizes. In the first segment of Phase 1 testing (Phase 1a), an initial series of tests will be performed to evaluate basic aspects of the test procedures, such as the effect of test parameter variation and repeatability. These tests will consist of the following:
(1) FMVSS No. 109/110 Bead Unseat Test—tests completed when bead unseating or rim contact occurs.
(2) Toyota Air Loss Bench Test—tests using wedge-shaped loading fixture, two variations for each of vertical load and load rate application (four combinations total).
The Phase 1a testing will be conducted using five different brands of a single tire size. Four samples of each tire will be tested using each of the five tests and testing variations described above. A total of 100 bead unseat tests will be performed in Phase 1a.
Based on the findings from Phase 1a, a second segment of Phase 1 testing (Phase 1b) will be initiated within which promising test procedures will be further explored in an expanded matrix of tests. This testing will include utilizing a larger variety of tire types and sizes and/or additional variations in the selected test procedure(s).
Based on the findings of Phase 1, a final test procedure will be selected for use in Phase 2. In Phase 2, a series of tests will be performed to evaluate the performance of the current tire fleet when subjected to the bead unseat test identified in Phase 1. The agency anticipates that approximately 50 different tire brands and sizes will be tested. A subset of 10 of these tires will be further selected for repeatability testing. Preliminary test results have been placed in the docket. NHTSA requests comments on the data.
This testing will also be conducted in two phases. In Phase 1, potential tire strength tests will be evaluated, as well as potential methods for evaluating tire damage (i.e., pass/fail criteria). In the first segment of Phase 1 testing (Phase 1a), an initial series of tests will be performed to evaluate basic aspects of the test and evaluation procedures, such as the effect of test parameter variations, repeatability, and objectivity. This series of tests consist of the following:
(1) FMVSS No. 109/119 plunger test—test completion when current pass/fail energy level is obtained.
(2) Modified FMVSS No. 109 plunger tests—test completion when an increased energy level is reached. (The contractor will assist in the selection of the higher energy limit.)
(3) SAE J1981 Road Hazard Impact Test—tests conducted with wedge-shaped striker.
(4) SAE J1981 Road Hazard Impact Test—tests conducted with plunger-shaped striker. The Phase 1a tests will be conducted using 10 different types of tires, including different aspect ratios, brands, and models. One sample of each tire will be tested using the two FMVSS No. 109-type tests, and two samples of each will be tested using the SAE J1981-type tests. A total of 60 tire strength tests will be performed in Phase 1a. Prior to testing, all tires will be visually inspected for damage. After the strength tests are performed, all 60 tires will be inspected for damage visually, using x-ray, and shearography.
After the initial series of tests, 20 of the tested tires will be selected for high speed dynamometer testing. These tires are inspected using visual inspection, x-ray, and shearography.
Based on the findings from Phase 1a, a second segment of Phase 1 testing (Phase 1b) will be initiated where promising test procedures and evaluation methods will be further explored in an expanded matrix of tests. This testing will include utilizing a larger variety of tire types and sizes and/or additional variations in the selected test procedure(s) and evaluation method(s) than in the Phase 1a testing.
Based on the findings of Phase 1, a final test procedure and damage evaluation method(s) will be selected for use in Phase 2. In Phase 2, a series of tests will be performed to evaluate the performance of the current tire fleet when subjected to the strength tests and evaluation method(s) identified in Phase 1. The agency anticipates that approximately 50 different tire models and sizes will be tested. A subset of these tires will be selected for further repeatability testing. Preliminary test results have been placed in the docket. NHTSA requests comments on the data.
Congress did not set a lead time by which all applicable tires would be required to meet the upgraded standard. The agency proposes two alternative implementation schedules: a two-year phase-in whereby all applicable tires must comply with the final rule by September 1, 2004, and a three-year phase-in whereby all applicable tires must comply with the final rule by September 1, 2005.
As mentioned above, the proposed new tire standard would apply to radial and non-radial tires for use on passenger cars, SUVs, vans, trailers, and pickup trucks, but not tires for motorcycles or heavy trucks. The applicability of this standard would consolidate the current FMVSS No. 109 and part of FMVSS No. 119. The agency anticipates that many P-metric tires rated C for UTQG Temperature Resistance will either have to be taken off the market or redesigned to pass the proposed tests. Similarly, the agency anticipates that a larger percentage of LT tires, than P-metric tires, will need to be redesigned to pass the proposed standard.
Given the number of additional test requirements and possible design changes that may be required for some tires, particularly LT tires, the agency proposes a phase-in period that allows for up to three years for manufacturers to comply with the requirements of the new standard. The agency believes that a three-year phase-in period would give tire manufacturers sufficient time to make necessary design changes to their tires so that they will comply with the new requirements. A three-year phase-in period would also quickly provide the American public with tires that are
For the three-year phase-in, the agency proposes that beginning on September 1, 2003, approximately one year after issuance of the final rule, 50 percent of P-metric tires would be required to comply with the new standard. As of September 1, 2004, two years after the final rule is published, 100 percent of P-metric tires would be required to comply with the new standard. As for LT tires, 100 percent must comply with the new standard beginning on September 1, 2005, three years after issuance of the final rule. Under this implementation scheme, tire manufacturers would be required to provide the agency with tire production data for the year September 1, 2003 to August 31, 2004. This requirement would enable the agency to verify that tires certified to the new standard constitute 50 percent of a manufacturer's production of P-metric tires for that period of time. No production data would be required for subsequent years because all P-metric tires would be required to be certified to the new standard beginning on September 1, 2004. Similarly, no production data would be required for LT tires because all LT tires would be required to be certified to the new standard beginning on September 1, 2005.
As an alternative to the three-year implementation scheme, the agency proposes a two-year phase-in period. Beginning September 1, 2003, 100 percent of P-metric tires would be required to be certified to the requirements of the new standard. Beginning September 1, 2004, 100 percent of LT tires would be required to be certified to the requirements of the new standard. This implementation plan does not require manufacturers to provide production data because it does not contain provisions for partial compliance. Optional early compliance would be permitted by the agency for both alternatives.
Shearography analysis evaluates the condition of a tire using laser technology. This technology provides information on impending tread or belt separations that cannot be detected through visual inspection. While currently used in the tire industry, shearography analysis requires a technician to exercise his judgement in determining whether an indication of the size and prospective rate of growth of a belt or tread failure could lead to failure. This analysis has proven to be a valuable tool in analyzing tire failures during the agency's high speed and endurance testing program.
For the aforementioned reasons, the agency solicits comments on the appropriateness of specifying shearography analysis for inspection purposes, in addition to the visual inspection now required, to determine tire failure at the end of the high speed test, the endurance test, the low pressure performance test, and the road hazard impact test. In particular, the agency seeks comments on whether the physical indications of possible future tire failure can be described with sufficient specificity to fulfill the statutory requirement that FMVSSs be stated in objective terms.
The agency, in a future rulemaking, may propose to revise the testing speeds specified in the Uniform Tire Quality Grading (“UTQG”) temperature grading requirement in Part 575.104, Uniform Tire Quality Grading Standards, by allowing manufacturers to substitute the High Speed Test speed steps for those currently specified in UTQG, up to 100 mph.
The current temperature resistance test assigns a grade of A, B, C to a tire based on whether it completes or fails to complete a road wheel test for 30 minutes at a given speed. A tire is rated C if it fails to complete the test at 100 mph for 30 minutes, B if it completes the test at 100 mph for 30 minutes, and A if it completes the test at 115 mph for 30 minutes. Under the UTQG test procedure, the test is initiated at 75 mph for 30 minutes and then successively increased in 5 mph increments for 30 minutes each until the tire has run to 115 mph for 30 minutes. Therefore, tires with a temperature rating of C would be able to complete 30 minutes at speeds of 75, 80, 85, 90, and 95 mph (120, 128, 136, 144, and 152 km/h), but not complete the 100-mph (160 km/h) step.
Utilizing the proposed High Speed Test test speeds, a tire could simultaneously complete the High Speed Test speed steps of 140, 150, and 160 km/h (88, 94, 100 mph) and the first 6 speed steps of the UTQG testing procedure. NHTSA requests comments on whether manufacturers should be permitted to substitute, up to 100 mph, the High Speed Test speed steps for those currently specified in UTQG for the Temperature Grading requirement. The agency also requests comment on whether other revisions to the UTQG Temperature Grading requirements are warranted. Please be specific in your response and provide a basis for your answer.
(1) The agency is participating in the development of a global tire standard as part of a cooperative worldwide effort, through the United Nations Economic Commission for Europe, to establish best safety and environmental practices for motor vehicle regulations. The test methodology contained in the proposed global tire standard was used by the agency in its evaluation of the high speed and endurance tests. However, the agency decided to use the methodology of FMVSS No. 109, with more stringent test parameters. Are there any voluntary consensus standards or requirements of other countries or regions (
(2) As noted previously in this NPRM, GM stated in its submission to the docket that while it supports both laboratory and real-world testing, it believes that real-world testing is more valuable. GM, however, did not present any specific proposals or data regarding the test procedures, conditions, specifications, or requirements that should comprise their proposed “real-world” testing. At this juncture, NHTSA believes that real-world testing is not practicable due to issues such as the selection of an appropriate control vehicle and vehicle and testing variability. The agency seeks comments on whether practicable and repeatable “real-world” testing procedures, conditions, and specifications exist and whether they could be utilized as part of a minimum performance standard.
(3) Whereas FMVSS No. 109 specifies requirements for all tires for use on passenger cars manufactured after 1948, the proposal specifies an applicability containing a temporal limitation for vehicles manufactured after 1975. Since the mid-1970s, radial tires have held an increasingly predominate market share (over bias ply tires) in both the original equipment and replacement tire market. The proposed standard will apply to both bias ply and radial tires, however,
(4) For the purpose of testing tires and vehicles to determine their compliance, the agency specifies a limited number of permissible inflation pressures in both English and metric units. In FMVSS No. 109, the agency lists four inflation pressures, 32, 36, 40, or 60 psi, which were originally selected based on bias ply tires. In its proposed standard, the agency retains these tire inflation pressures in English units. The agency seeks comments on whether these four inflation pressures should be retained in the proposed standard and/or whether these inflation values should be translated into metric units. Please be specific in your response and provide a basis for your answer.
For a fuller discussion of the benefits, see the agency's Preliminary Economic Assessment (PEA). A copy of the PEA has been placed in the docket.
The proposed rule would increase the strength, endurance, and heat resistance of tires by raising the stringency of the existing standard on road hazard, bead unseating, endurance, and high speed tests and by requiring a low pressure performance test. Tires that meet the improved tests would, presumably, experience fewer blowouts, tire failures and de-beading problems.
Based on the tires tested by the agency, and on a comparison of their levels of performance in those tests to the level that they would need to achieve to pass the proposed tests, the agency estimates that tires would perform about 7 percent better in the high speed test and about 15 percent better in the endurance test. The agency considers these results additive, such that the total benefit from these two tests would be 22 percent for those tires that currently would not pass the proposed tests. We then assume that these percent improvements of the high speed and endurance tests directly relate to an improvement in safety. The agency cannot currently quantify the benefits of the other proposed tests.
As discussed in the PEA, a target population, 414 fatalities and 10,275 non-fatal injuries annually, can be estimated for tire problems (flat tire/blowout). However, the agency does not know how many of these crashes are influenced by tire design or under-inflation. The agency assumes that under-inflation is involved in 20 percent of flat tire/blowout cases that resulted in a crash. The agency assumes that the influence that under-inflation has on the chances of a blowout is affected by both tire pressure and the properties of the tire. Therefore, the agency assumes that proper inflation would represent 50 percent of these cases and improved tires would represent the other 50 percent of these cases. Consequently, 41 fatalities (414 × .2 × .5) and 1,028 injuries are being assigned to the TPMS Final Rule. This leaves the target population for this proposal at 373 fatalities and 9,247 injuries.
Assuming that the improvement in performance needed to pass the proposed High Speed and Endurance tests (estimated to be 22 percent) related to a reduction in flat tires/blowouts, the total potential improvement would be 82 lives saved (373 × .22) and 2,034 injuries avoided if only those tires in the target population were those that needed improvements. If the tires having flats and blowouts were a random selection of all tires and only benefits accrued to those tires currently not passing the proposed tests (weighted to be 32.8 percent), then the benefits would be 27 lives saved (373 × .22 × .328) and 667 injuries reduced when all tires on the road meet the proposed High Speed and Endurance test requirements. Additionally, there could be benefits from the proposed Low Inflation Pressure Performance tests and from the proposed Road Hazard and Bead Unseating tests.
Furthermore, agency tire testing indicated that there is a significant variability in tires. If this variability could be reduced, many of the failed tires could pass the proposed tests. If variability in tires were reduced in the real world, this would alter the benefits that may occur from the proposed tests. The agency requests comments on this issue.
The following is a summary of the costs associated with the proposed light vehicle tire standard. It is based on the increased stringency of the proposed high speed and endurance tests. For a more detailed analysis, see the agency's PEA.
The proposed tests will result in tires being designed that are less susceptible to heat build-up. The agency believes that many, if not all, of the P-metric tires rated C for Temperature resistance, some P-metric tires rated B for Temperature resistance and some LT tires will not be able to pass the proposed new tests. The agency has attempted to determine the difference in price between two tires that appear be similar in all characteristics except for temperature resistance where one is a B-rated tire and the other is a C-rated tire. There appears to be very few cases where every notable attribute (comparing tire size, warranty, tread wear, and traction) of two different tires are identical except for temperature resistance.
The agency estimates that the difference in price between a B- or C-rated tire that may fail the proposed standard and a B-rated tire that would pass the proposed standard is $3 per tire (in 2001 dollars). Comments are requested on this estimate. Therefore, the cost differential for a vehicle model equipped with C-rated tires, depending on whether it has a full-size spare, is $12 to $15 per vehicle.
Since only a portion of new vehicles are equipped with tires that would not meet the proposed standard, the agency estimates the average price increase for new vehicles by weighting the vehicles that would receive improvements at $3 per tire with the vehicles whose tires and prices would not change. In the Benefits section of the document, the agency estimated that 33 percent of P-metric and 29 percent of LT tires might not pass the proposed standard. Based on the data presented in this document for all crashes by light truck type, we estimate that 10 percent of light trucks have LT tires. Since future sales are estimated to be evenly split between passenger cars and light trucks, 5 percent of all light vehicles (10% × 0.5) would be equipped with LT tires. Therefore, the agency estimates that 32.8 percent of all light vehicle tires would not meet the proposed standard (0.33 × 95% of sales + 0.29 × 5% of sales). Thus, the cost of the proposed standard per average new vehicle is $3.94 to $4.92 per vehicle.
If this proposal resulted in the lowest priced new tires being taken off the market (tires rated C for Temperature resistance appear to be lowest priced tires), there could be market effects on
The agency estimates that the lowest price aftermarket tire will increase by the same margin as the lowest priced OE tire, $3, to improve up to the performance levels required in the High Speed and Endurance Tests. If the cost for these improved tires was spread across the entire new light vehicle fleet, the average new vehicle price increase would, we estimate, be $4.09 per vehicle.
The agency anticipates that 32.8 percent of the combined sales of P-metric and LT tires would not pass the High Speed and Endurance Tests. There are an estimated 287 million light vehicle tires sold of which 32.8 percent might increase in price by $3 per tire. The overall annual cost of these two tests for new original equipment and replacement tires is estimated at $282 million (287 million tires × .328 × $3) and the net costs per equivalent life saved would be about $7.2 million.
We do not anticipate an increase in costs for the proposed Road Hazard Impact and Bead Unseatings tests because our testing indicates that most of all of current production tires would pass these tests. The agency has not conducted sufficient testing of the proposed Aging tests to anticipate their potential costs. The agency believes, however, that most manufacturers already perform an aging test. Therefore, it is likely that the incremental cost of adding an aging test would be minimal. With regard to the Low Inflation Pressure Performance tests, one alternative would provide no added costs because agency testing indicates that current production tires pass the test. Tires tested to the other alternative have a higher failure margin. Costs for this test cannot be characterized by the agency at this point.
The proposed light vehicle tire standard contains six tests with which every applicable tire must comply. Based on a time-based comparison between the time required to run the tests in FMVSS No. 109 and the proposed FMVSS No. 139, the agency anticipates that the proposal will increase test time by 6.5 hours (an additional 5 hours for the endurance test and 90 minutes for the high-speed low inflation test). Labor costs associated with this additional time is estimated to be $53 per hour for a test engineer for the 90 minute low inflation pressure performance test and $31 per hour for a technician for the 90 minute low inflation pressure performance test and for the additional final 5 hours of the proposed endurance test. Therefore, incremental tests costs are estimated to be $281 per tire run (1.5 hours × [$53 + $31] + 5 hours × $31).
As discussed above, the agency has only been able to provide preliminary estimates of the costs and benefits of the proposed high speed and endurance tests. Further, the agency has not been able to quantify the costs and benefits of the other four proposed tests. While our analysis would be made simpler if each proposed test yielded similar costs and benefits, the agency anticipates that each proposed test would produce differing levels of costs and benefits. To the extent that the data will allow, the agency requests that commenters evaluate each proposed test separately and quantify the costs and benefits of each of the six tests individually. The agency wishes to acquire information on which tests would be more costly and which tests would create the most benefits for passenger safety. This information will assist the agency in revising its estimates to provide a more precise and accurate evaluation of the costs and safety benefits of the six proposed tests and will aid the agency in determining which tests would become part of the new standard.
Section 10 of the TREAD Act requires the agency to issue a final rule on this tire upgrade proposal by June 1, 2002. Based on this issuance date, the agency proposes two alternative implementation schedules in section VI.H.1. of this document.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was reviewed by the Office of Management and Budget under Executive Order 12866, “Regulatory Planning and Review.” The rulemaking action has been determined to be economically significant. The proposal is likely to result in an expenditure by automobile manufacturers and/or tire manufacturers of $282 million in annual costs. NHTSA is placing in the public docket a Preliminary Economic Assessment (PEA) describing the costs and benefits of this rulemaking action. The costs and benefits are summarized earlier in this document.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
The proposed rule would affect motor vehicle manufacturers and tire
NHTSA estimates that there are only about four small passenger car and light truck vehicle manufacturers in the United States. These manufacturers serve a niche market. The agency believes that small manufacturers manufacture less than 0.1 percent of total U.S. passenger car and light truck production per year.
NHTSA notes that final stage manufacturers and alterers could also be affected by this proposal. Many final stage manufacturers and alterers install supplier manufactured tires in vehicles they produce. The proposal would not have any significant effect on final stage manufacturers or alterers, however, since the tires they purchase should be tested and certified by the tire manufacturer and the potential cost impacts associated with this proposed action should only slightly affect the price of new motor vehicles and replacement tires.
The agency requests comments concerning the economic impact of the proposed rule on small vehicle manufacturers, tire manufacturers, tire retail outlets, final stage manufacturers and vehicle alterers.
Additional information concerning the potential impacts of the proposed requirements on small entities is presented in the PEA.
NHTSA has analyzed this proposal for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.
The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federal implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal would not have any substantial impact on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.
The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation with base year of 1995). Adjusting this amount by the implicit gross domestic product price deflator for the year 2000 results in $109 million (106.99/98.11 = 1.09). The assessment may be included in conjunction with other assessments, as it is here.
This proposal is not estimated to result in expenditures by State, local or tribal governments of more than $109 million annually. However, it is likely to result in the expenditure by automobile manufacturers and/or their tire manufacturers of more than $109 million annually. The average costs estimate in this analysis is $3 per tire. Estimating that 32.8 percent of 287 million light vehicle tires sold annually (including new vehicle tire sales and aftermarket tires sales but excluding temporary spare tires) results in $282 million in annual costs. These effects have been discussed in the PEA.
This proposal would not have any retroactive effect. Under 49 U.S.C. 21403, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 21461 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
Under the National Technology and Transfer and Advancement Act of 1995 (NTTAA) (Public Law 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Certain technical standards developed by the Society of Automotive Engineers (SAE) and other bodies have been incorporated into this proposal but the overall need for safety precludes, in NHTSA's view, the adoption of such voluntary standards as a substitute for this proposal for several reasons. First, no one voluntary standard contains all six of the proposed test procedures and requirements in this proposal. Second, voluntary consensus standards do not exist for several of the test procedures and requirements in the agency's proposal. Third, while the testing conditions and procedures of some voluntary standard have been incorporated by reference into the agency's proposal, the specified performance requirements of the voluntary standards are either different than those specified in our proposal or are non-existent.
The Department of Transportation is submitting the following information collection request to OMB for review and clearance under the Paperwork Reduction Act of 1995 (Pub.L. 104-13, 44 U.S.C. Chapter 35).
Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
If you have any responses to these questions, please include them in your comments on this proposal.
In developing this proposal, we tried to address the concerns of all our stakeholders. Your comments will help us improve this rule. We invite you to provide different views on options we propose, new approaches we haven't considered, new data, how this proposed rule may affect you, or other relevant information. We welcome your views on all aspects of this proposed rule, but request comments on specific issues throughout this document. We grouped these specific requests near the end of the sections in which we discuss the relevant issues. Your comments will be most effective if you follow the suggestions below:
• Explain your views and reasoning as clearly as possible.
• Provide solid technical and cost data to support your views.
• If you estimate potential costs, explain how you arrived at the estimate.
• Tell us which parts of the proposal you support, as well as those with which you disagree.
• Provide specific examples to illustrate your concerns.
• Offer specific alternatives.
• Refer your comments to specific sections of the proposal, such as the units or page numbers of the preamble, or the regulatory sections.
• Be sure to include the name, date, and docket number with your comments.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under
Comments may also be submitted to the docket electronically by logging onto the Dockets Management System website at
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
(1) Go to the Docket Management System (DMS) Web page of the Department of Transportation (
(2) On that page, click on “search.”
(3) On the next page (
(4) On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. However, since the comments are imaged documents, instead of word processing documents, the downloaded comments are not word searchable.
Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments.
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber products, and Tires.
In consideration of the foregoing, we propose to amend 49 CFR part 571 as follows:
1. The authority citation for part 571 would continue to read as follows:
49 U.S.C. 322, 20111, 30115, 30166 and 30177; delegation of authority at 49 CFR 1.50.
2. Section 571.109 would be removed.
3. Section 571.110, as proposed to be amended in the Notice of Proposed Rulemaking published on December 19, 2001 (66 FR 65536), would be further amended by revising S4.2.1, S4.2.2, and S4.4.1(a), by adding S4.2.1.1, S4.2.1.2, S4.2.2.1, S4.2.2.2, S4.2.2.3, and S4.4.2 and by adding to S3 in alphabetical order, definitions for “Rim size designation,” “Rim diameter,” “Rim width,” “Rim type designation,” “Weather side,” to read as follows:
S4.2.1.1 The vehicle maximum load on the tire shall not be greater than the applicable maximum load rating as marked on the sidewall of the tire.
S4.2.1.2. The vehicle normal load on the tire shall not be greater than 85 percent (as specified in the high speed performance test in S6.1 of § 571.139) of the load rating at the vehicle manufacturer's recommended cold inflation pressure for that tire.
S4.2.2.1 Except as provided in S4.2.2.2, the sum of the maximum load ratings of the tires fitted to an axle shall not be less than the GAWR of the axle system as specified on the vehicle's certification label required by 49 CFR part 567. If the certification label shows more than one GAWR for the axle system, the sum shall be not less than the GAWR corresponding to the size designation of the tires fitted to the axle. If the size designation of the tires fitted to the axle does not appear on the certification label, the sum shall not be less than the lowest GAWR appearing on the label.
S4.2.2.2 When passenger car (P-metric) tires are installed on an MPV, truck, bus, or trailer, each tire's load rating is reduced by dividing it by 1.10 before determining, under S4.2.2.1, the sum of the maximum load ratings of the tires fitted to an axle.
S4.2.2.3 (a) For vehicles equipped with P-metric tires, the vehicle normal load on the tire shall be no greater than the derated value of 85 percent (as specified in the high speed performance test in S6.1 of § 571.139) of the load rating at the vehicle manufacturer's recommended cold inflation pressure for that tire.
(b) For vehicles equipped with LT tires, the vehicle normal load on the tire shall be no greater than 85 percent (as specified in the high speed performance test in S6.1 of § 571.139) of the load rating at the vehicle manufacturer's recommended cold inflation pressure for that tire.
S4.4.1 * * *
(a) Be constructed to the dimensions of a rim that is listed by the manufacturer of the tires as suitable for use with those tires, in accordance with S4 of § 571.139.
(b) * * *
S4.4.2.
(a) A designation which indicates the source of the rim's published nominal dimensions, as follows:
(1) “T” indicates The Tire and Rim Association.
(2) “E” indicates The European Tyre and Rim Technical Organization.
(3) “J” indicates Japan Automobile Tire Manufacturers” Association, Inc.
(4) “D” indicates Deutsche Industrie Norm.
(5) “S” indicates Scandinavian Tire and Rim Organization.
(6) “A” indicates The Tyre and Rim Association of Australia.
(7) “N” indicates an independent listing pursuant to S4.1 of § 571.139 or S5.1(a) of § 571.119.
(b) The rim size designation, and in case of multipiece rims, the rim type designation. For example: 20 x 5.50, or 20 x 5.5.
(c) The symbol DOT, constituting a certification by the manufacturer of the rim that the rim complies with all applicable Federal motor vehicle safety standards.
(d) A designation that identifies the manufacturer of the rim by name, trademark, or symbol.
(e) The month, day and year or the month and year of manufacture, expressed either numerically or by use of a symbol, at the option of the manufacturer. For example: “September 4, 2001” may be expressed numerically as: “90401”, “904, 01” or “01, 904”; “September 2001” may be expressed as: “901”, “9, 01” or “01, 9”.
(1) Any manufacturer that elects to express the date of manufacture by means of a symbol shall notify NHTSA in writing of the full names and addresses of all manufacturers and brand name owners utilizing that symbol and the name and address of the trademark owner of that symbol, if any. The notification shall describe in narrative form and in detail how the month, day, and year or the month and year are depicted by the symbol. Such description shall include an actual size graphic depiction of the symbol, showing and/or explaining the interrelationship of the component parts of the symbol as they will appear on the rim or single piece wheel disc, including dimensional specifications, and where the symbol will be located on the rim or single piece wheel disc. The notification shall be received by NHTSA not less than 60 calendar days before the first use of the symbol. The notification
(2) Each manufacturer of wheels shall provide an explanation of its date of manufacture symbol to any person upon request.
4. Section 571.117, as proposed to be amended in the Notice of Proposed Rulemaking published on December 19, 2001 (66 FR 65536), would be further amended by revising S1, S2, and S3, and by removing the phrase “§ 571.109” wherever it appears and adding in its place the phrase “§ 571.139” in S4.2, S5.1.1, S5.1.2, and S5.1.4, to read as follows:
S1.
S2.
S3.
5. Section 571.119 would be amended by revising its heading, S1, S2, and S3, to read as follows:
S1.
S2.
S3.
6. Tables I, II, and III, in the tables at the end of § 571.119, would be revised to read as follows:
7. Section 571.120, as proposed to be amended in the Notice of Proposed Rulemaking published on December 19, 2001 (66 FR 65536), would be further amended by revising S5.1.1, and S5.1.2 to read as follows:
S5.1.1 Except as specified in S5.1.3, each vehicle equipped with pneumatic tires for highway service shall be equipped with tires that meet the requirements of § 571.119, New pneumatic tires for motor vehicles with a GVWR of more than 10,000 pounds, and rims that are listed by the manufacturer of the tires as suitable for use with those tires, in accordance with S5.1 of § 571.119, except that vehicles may be equipped with a non-pneumatic spare tire assembly that meets the requirements of § 571.129, New non-pneumatic tires for passenger cars, and S8 of this standard. Vehicles equipped with such an assembly shall meet the requirements of S5.3.3, S7, and S9 of this standard.
S5.1.2 Except in the case of a vehicle which has a speed attainable in 3.2 kilometers of 80 kilometers per hour or less, the sum of the maximum load ratings of the tires fitted to an axle shall be not less than the gross axle weight rating (GAWR) of the axle system as specified on the vehicle's certification label required by 49 CFR part 567. Except in the case of a vehicle which has a speed attainable in 2 miles of 50 mph or less, the sum of the maximum load ratings of the tires fitted to an axle shall be not less than the gross axle weight rating (GAWR) of the axle system as specified on the vehicle's certification label required by 49 CFR part 567. If the certification label shows more than one GAWR for the axle system, the sum shall be not less than the GAWR corresponding to the size designation of the tires fitted to the axle. If the size designation of the tires fitted to the axle does not appear on the certification label, the sum shall be not less than the lowest GAWR appearing on the label.
8. Section 571.129, as proposed to be amended in the Notice of Proposed Rulemaking published on December 19, 2001 (66 FR 65536), would be further amended by revising S2, S4.2.2.4, S4.2.2.5, S4.2.2.6, and by removing S5.3 through S6, to read as follows:
S2. Application. This standard applies to temporary non-pneumatic tires for use on motor vehicles, except for motorcycles, with a GVWR of 10,000 pounds or less, manufactured after 1975.
9. Section 571.139, as proposed to be added in the Notice of Proposed Rulemaking published on December 19, 2001 (66 FR 65536), would be amended by adding S3, S5.1 through S5.4, S6 and S7 to read as follows:
Outer diameter means the overall diameter of an inflated new tire.
S5.1.
S5.2.
(a) It shall meet the requirements specified in S6 for its tire size designation, type, and maximum permissible inflation pressure.
(b) It shall meet each of the applicable requirements set forth in paragraphs (c) and (d) of this S5.2, when mounted on a model rim assembly corresponding to any rim designated by the tire manufacturer for use with the tire in accordance with S4.
(c) Except in the case of a CT tire, its maximum permissible inflation pressure shall be either 32, 36, 40, or 60 psi, or 240, 280, 300, 340, or 350 kPa. For a CT tire, the maximum permissible inflation pressure shall be either 290, 330, 350, or 390 kPa.
(d) Its load rating shall be that specified either in a submission made by an individual manufacturer, pursuant to S4, or in one of the publications described in S4 for its size designation, type and each appropriate inflation pressure. If the maximum load rating for a particular tire size is shown in more than one of the publications described in S4, each tire of that size designation shall have a maximum load rating that is not less than the published maximum load rating, or if there are differing maximum load ratings for the same tire size designation, not less then the lowest published maximum load rating.
S5.3.
(a) One tire for high speed;
(b) Another tire for endurance and high speed low inflation pressure performance;
(c) Another tire for road hazard impact test and bead unseating; and
(d) A fourth tire for aging effects.
S5.4.
S6.
S6.1.1
S6.1.1.1
S6.1.1.1.1 Mount the tire on the measuring rim specified by the tire manufacturer or in one of the publications listed in S4.1.1
S6.1.1.1.2 In the case of a P-metric tire, inflate it to the pressure specified in the following table:
S6.1.1.1.3 In the case of a LT tire, inflate it to the pressure index given by the manufacturer.
S6.1.1.1.4 Condition the assembly at 25 ±5°C for not less than 24 hours.
S6.1.1.1.5 Readjust the tire pressure to that specified in S6.1.1.2.
S6.1.1.2.1 Measure the section width and overall width by caliper at six points approximately equally spaced around the circumference of the tire, avoiding measurement of the additional thickness of the special protective ribs or bands. The average of the measurements so obtained are taken as the section width and overall width, respectively.
S6.1.1.2.2 Determine the outer diameter by measuring the maximum circumference of the tire and dividing the figure so obtained by Pi (3.14).
S6.1.2
(a) (For tires with a maximum permissible inflation pressure of 32, 36, or 40 psi) 7 percent, or
(b) (For tires with a maximum permissible inflation pressure of 240, 280, 290, 300, 330, 350 or 390 kPa, or 60 psi) 7 percent or 10 mm (0.4 inches), whichever is larger.
S6.2.1
S6.2.1.1
S6.2.1.1.1 Mount the tire on a test rim and inflate it to the pressure specified for the tire in the following table:
S6.2.1.1.2. Condition the assembly at 35 ± 5°C for not less than three hours.
S6.2.1.1.3 Before or after mounting the assembly on a test axle, readjust the tire pressure to that specified in S6.2.1.1.1.
S6.2.1.2.
S6.2.1.2.1 Press the assembly against the outer face of a test drum with a diameter of 1.70 m ± 1%.
S6.2.1.2.2 Apply to the test axle a load equal to 85% of the tire's maximum load carrying capacity.
S6.2.1.2.3 Break-in the tire by running it for 15 minutes at 80 km/h.
S6.2.1.2.4 Allow tire to cool to 40°C and readjust inflation pressure to applicable pressure in 6.2.1.1.1 immediately before the test.
S6.2.1.2.5 Throughout the test, the inflation pressure is not corrected and the test load is maintained at the value applied in S6.2.1.2.2.
S6.2.1.2.6 During the test, the ambient temperature, at a distance of not less than 150 mm and not more than 1 m from the tire, shall be maintained at not less than 40° C.
S6.2.1.2.7 The test is conducted, continuously and uninterrupted, for ninety minutes through three thirty minute consecutive test stages at the following speeds: 140, 150, and 160 km/h.
S6.2.1.2.8 Not more than 15 minutes after running the tire for the specified time, measure its inflation pressure. Allow the tire to cool for one hour. Then, deflate the tire and remove it from the test rim.
S6.2.2
(a) There shall be no visible evidence of tread, sidewall, ply, cord, innerliner, belt or bead separation, chunking, open splices, cracking, or broken cords.
(b) The tire pressure, when measured not more than 15 minutes after the test, shall not be less than the initial pressure specified in S6.2.1.
S6.3
S6.3.1
S6.3.1.1
S6.3.1.1.1 Mount the tire on a test rim and inflate it to the pressure specified for the tire in the following table:
S6.3.1.1.2 Condition the assembly at 35 ± 5° C for not less than three hours.
S6.3.1.1.3 Readjust the pressure to the value specified in S6.3.1.1.1 immediately before testing.
S6.3.1.2.
S6.3.1.2.1 Mount the assembly on a test axle and press it against the outer face of a smooth wheel having a diameter of 1.70 m ± 1%.
S6.3.1.2.2 During the test, the ambient temperature, at a distance of not less than 150 mm and not more than 1 m from the tire, shall not be less than 40° C.
S6.3.1.2.3 Conduct the test, without interruptions, at not less than 120 km/h test speed with loads and test periods not less than those shown in the following table:
S6.3.1.2.4 Throughout the test, the inflation pressure is not corrected and the test loads are maintained at the value corresponding to each test period, as shown in the table in S6.3.1.2.3.
S6.3.1.2.5 Not more than 15 minutes after running the tire for the time specified in the table in S6.3.1.2.3, measure its inflation pressure. Allow the tire to cool for one hour. Then, deflate the tire and remove it from the test rim.
S6.3.2
(a) There shall be no visible evidence of tread, sidewall, ply, cord, innerliner, belt or bead separation, chunking, open splices, cracking or broken cords.
(b) The tire pressure, when measured not more than 15 minutes after the test, shall not be less than the initial pressure specified in S6.1.1.
S6.4
S6.4.1
S6.4.1.1
S6.4.1.1.1 Mount the same tire tested in accordance with 6.3 on a test rim and inflate it to the following appropriate pressure:
S6.4.1.1.2 Condition the assembly at 35 ± 5° C for not less than three hours.
S6.4.1.1.3 Before or after mounting the assembly on a test axle, readjust the tire pressure to that specified in S6.3.1.1.1.
S6.4.1.2
S6.4.1.2.1 The test is conducted for ninety minutes at the end of the test specified in S6.3, continuous and uninterrupted, at a speed of 120 km/h.
S6.4.1.2.2 Press the assembly against the outer face of a test drum with a diameter of 1.70 m ± 1%.
S6.4.1.2.3 Apply to the test axle a load equal to 100% of the tire's maximum load carrying capacity.
S6.4.1.2.4 Throughout the test, the inflation pressure is not corrected and the test load is maintained at the initial level.
S6.4.1.2.5 During the test, the ambient temperature, at a distance of not less than 150 mm and not more than 1 m from the tire, is maintained at not less than 40° C.
S6.4.1.2.6 Not more than 15 minutes after running the tire for the specified time, measure its inflation pressure. Allow the tire to cool for one hour. Then, deflate the tire and remove it from the test rim.
S6.4.1.2
S6.4.1.2.1 Press the assembly against the outer face of the test drum.
S6.4.1.2.2. Apply to the test axle a load equal to 67% of the tire's maximum load carrying capacity.
S6.4.1.2.3 Throughout the test, the inflation pressure is not corrected and the test load is maintained at the original level.
S6.4.1.2.4 During the test, the ambient temperature, at a distance of not less than 150 mm and not more than 1 m from the tire, is maintained at not less than 40° C.
S6.4.1.2.5 The test is conducted, continuously and uninterrupted, for ninety minutes through three consecutive test stages of 30 minutes each at the following speeds: 140, 150, and 160 km/h.
S6.4.1.2.6 Allow the tire to cool for one hour. Then deflate the tire and remove it from the test rim.
S6.4.2
(a) There shall be no visible evidence of tread, sidewall, ply, cord, innerliner, belt or bead separation, chunking, open splices, cracking, or broken cords. For tires tested at a speed of 300 km/h or above, superficial blistering in the tire tread due to localized heat build-up in the test drum is acceptable.
(b) The tire pressure, when measured not more than 15 minutes after the test, shall not be less than the initial pressure specified in S6.4.1.1.1.
S6.5.1
S6.5.1.1
S6.5.1.1.1 The tire is prepared and mounted on the equipment in accordance with section 3.2 of SAE Recommended Practice J1981 (JUN94), Road Hazard Impact Test for Wheel and Tire Assemblies (Passenger Car, Light Truck, and Multipurpose Vehicles).
S6.5.1.1.2 The test pressure shall be inflated to the appropriate test pressure:
S6.5.1.2
S6.5.2
S6.5.2.1 When the tire has been tested in accordance with S6.5.1.2 using a test rim that undergoes no permanent deformation, the test pressure shall not be less than the initial test pressures specified in S6.5.1.1.
S6.5.2.2 There shall be no visible evidence of tread, sidewall, ply, cord, inner liner, belt or bead separation, chunking, open splices, cracking, or broken cords.
S6.6.1
S6.6.1.1
S6.6.1.1.1
S6.6.1.1.2
S6.6.1.1.3
S6.6.1.2
S6.6.2
S6.7.1.
S6.7.1.1.2 Mount the tire on a test rim and inflate it to the pressure specified in the following table:
S6.7.1.1.3 Condition the assembly at 35 ± 5° C for not less than three hours.
S6.7.1.1.4 Readjust the pressure to the value specified in S6.6.1.1.2 immediately before testing.
S6.7.1.2
S6.7.1.2.1 Mount the assembly on a test axle and press it against the outer face of a smooth wheel having a diameter of 1.70 m ± 1%.
S6.7.1.2.2 During the test, the ambient temperature, at a distance of not less than 150 mm and not more than 1 m from the tire, is not less than 40° C.
S6.7.1.2.3 Conduct the test, without interruptions, at not less than 120 km/h (75 mph) test speed for 24 hours with loads not less than those shown in the following table:
S6.7.1.2.4 Throughout the test, the inflation pressure is not corrected and the test loads are kept constant at the value corresponding to each test period.
S6.7.1.2.5 Allow the tire to cool for one hour. Then, deflate the tire and remove it from the test rim.
S6.7.2
S6.7.1.1
S6.7.1.1.2 Mount the tire on a test rim and inflate it, with a gas blend of 50% O
S6.7.1.1.3 Condition the assembly at 35 ± 5° C for not less than three hours.
S6.7.1.1.4 Readjust the pressure to the value specified in S6.6.1.1.2 immediately before testing.
S6.7.1.2.
S6.7.1.2.1 Mount the assembly on a test axle and press it against the outer face of a smooth wheel having a diameter of 1.70 m ± 1%.
S6.7.1.2.2 During the test, the ambient temperature, at a distance of not less than 150 mm and not more than 1 m from the tire, is not less than 40° C.
S6.7.1.2.3 Conduct the test, without interruptions, at not less than 96 km/h (60 mph) for 250 hours with loads not less than those shown in the following table:
S6.7.1.2.4 Throughout the test, the inflation pressure is not corrected and the test loads are maintained at the original level.
S6.7.1.2.5 Not more than 15 minutes after running the tire the specified time, measure its inflation pressure. Allow the tire to cool for one hour. Then, deflate the tire and remove it from the test rim.
S6.7.2
(a) There shall be no visible evidence of tread, sidewall, ply, cord, inner liner, belt or bead separation, chunking, open splices, cracking or broken cords.
(b) The tire pressure, when measured not more than 15 minutes after the test, shall not be less than the initial pressure specified in S6.1.1.
S6.7.1.
S6.7.1.1.
S6.7.1.1.2 Condition tire in an oven at 75°C (167°F), continuously and uninterrupted for 14 days.
S6.7.1.1.2. Mount the tire on a test rim and inflate it to the pressure specified in the following table:
S6.7.1.1.3. Condition the assembly at 35 ± 5° C for not less than three hours.
S6.7.1.1.4. Readjust the pressure to the value specified in S6.3.1.1.2 immediately before testing.
S6.7.1.2.
S6.7.1.2.1. Mount the assembly on a test axle and press it against the outer face of a smooth wheel having a diameter of 1.70 m ± 1%.
S6.7.1.2.2. During the test, the ambient temperature, at a distance of not less than 150 mm and not more than 1 m from the tire, is not less than 40° C.
S6.7.1.2.3. Conduct the test, without interruptions, at not less than 120 km/h test speed with loads and test period not less than those shown in the following table:
S6.7.1.2.4. Throughout the test the inflation pressure is not corrected and the test loads are maintained at the value corresponding to each test period.
S6.7.1.2.5. Not more than 15 minutes after running the tire the specified time, measure its inflation pressure. Allow the tire to cool for one hour. Then, deflate the tire and remove it from the test rim.
S6.7.2.
(a) There shall be no visible evidence of tread, sidewall, ply, cord, inner liner, belt or bead separation, chunking, open splices, cracking or broken cords.
(b) The tire pressure, when measured not more than 15 minutes after the test, shall not be less than the initial pressure specified in S6.1.1.
S7.1
S7.2
S7.3
S7.1
S7.2
10. Part 597 would be added to read as follows:
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.
This part establishes requirements for manufacturers of new pneumatic tires for motor vehicles with a gross vehicle weight rating of 10,000 pounds or less to submit a report, and maintain records related to the report, concerning the number of such tires the meet the requirements of Standard No. 139 (49 CFR 571.139).
The purpose of these reporting requirements is to assist the National Highway Traffic Safety Administration in determining whether a manufacturer has complied with Standard No. 139 (49 CFR 571.139).
This part applies to manufacturers of tires for motor vehicles with a gross vehicle weight rating of 10,000 pounds or less.
(a) All terms defined in 49 U.S.C. 30102 are used in their statutory meaning.
(b) Motor vehicle and gross vehicle weight rating are used as defined in 49 CFR 571.3.
(c) Production year means the 12-month period between September 1 of one year and August 31 of the following year, inclusive.
At anytime beginning September 1, 2003, each manufacturer shall, upon request from the Office of Vehicle Safety Compliance, provide information identifying the tires (by make, model, brand and tire identification number) that have been certified as complying with Standard No. 139 (49 CFR 571.139). The manufacturer's designation of a tire as a certified tire is irrevocable.
(a)
(1) Identify the manufacturer;
(2) State the full name, title, and address of the official responsible for preparing the report;
(3) Identify the production year being reported on;
(4) Contain a statement regarding whether or not the manufacturer complied with Standard No. 139 (49 CFR 571.139) for the period covered by the report and the basis for that statement;
(5) Provide the information specified in paragraph (b) of this section;
(6) Be written in the English language; and
(7) Be submitted to: Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
(b)
(2)
Each manufacturer must maintain records of the tire identification number for each tire for which information is reported under § 590.6(b)(2) until December 31, 2006.
A manufacturer may petition for extension of time to submit a report under this part. A petition will be granted only if the petitioner shows good cause for the extension and if the extension is consistent with the public interest. The petition must be received not later than 15 days before expiration of the time stated in § 597.6(a). The filing of a petition does not automatically extend the time for filing a report. The petition must be submitted to: Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, D.C. 20590.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of proposed priorities.
The Assistant Secretary for Special Education and Rehabilitative Services proposes priorities for one or more Burn Model Systems (BMS) Projects and one Burn Data Center under the Disability and Rehabilitation Research Projects (DRRP) Program of the National Institute on Disability and Rehabilitation Research (NIDRR) for fiscal year (FY) 2002. The Assistant Secretary takes this action to focus research attention on an identified national need. We intend this priority to improve the rehabilitation services and outcomes for individuals with severe burn injuries.
We must receive your comments on or before April 4, 2002.
Address all comments about these proposed priorities to Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, SW., room 3412, Switzer Building, Washington, DC 20202-2645. If you prefer to send your comments through the Internet, use the following address:
You must include the term Burn Data Projects or Burn Data Center in the subject line of your electronic message.
Donna Nangle. Telephone: (202) 205-5880 or via the Internet:
If you use a telecommunications device for the deaf (TDD), you may call the TDD number at (202) 205-4475.
Individuals with disabilities may obtain this document in an alternative format (
We invite you to submit comments regarding these proposed priorities.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed priorities. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about these priorities in room 3412, Switzer Building, 330 C Street SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed priorities. If you want to schedule an appointment for this type of aid, please contact the person listed under
We will announce the final priorities in a notice in the
This notice does
The proposed priorities refer to the New Freedom Initiative (NFI). The NFI can be accessed on the Internet at:
The proposed priorities also refer to NIDRR's Long-Range Plan (the Plan). The Plan can be accessed on the Internet at:
The purpose of the DRRP Program is to plan and conduct research, demonstration projects, training, and related activities to:
(a) Develop methods, procedures, and rehabilitation technologies that maximize the full inclusion and integration into society, employment, independent living, family support, and economic and social self-sufficiency of individuals with disabilities; and
(b) Improve the effectiveness of services authorized under the Act.
The BMS Projects must conduct research designed to improve treatment and service delivery outcomes and must demonstrate excellence in clinical care, rehabilitation research, and relevance to consumers, principally individuals with burn injuries and their families. Each BMS project funded under this program will have an integrated continuum of care to support the rehabilitation of persons with burn injury, with early linkage to trauma centers as well as community-based treatment alternatives. There should be an emphasis on multi-disciplinary treatment and service delivery approaches. Additional information on the BMS program is available on the Internet at:
The Department is particularly interested in ensuring appropriate expenditure of public funds. Not later than three years after the establishment of any project, NIDRR will conduct one or more reviews of the activities and achievements of the project to ensure that it is carrying out proposed activities and contributing to the advancement of knowledge. In accordance with the provisions of 34 CFR 75.253(a), continued funding depends at all times on satisfactory performance and accomplishment of stated objectives.
The NFI emphasizes the importance of access to assistive and universally designed technologies, employer and workplace supports, and promoting full access to community-based care. The Plan emphasizes the need for consumer knowledge and information, new techniques and technologies, and advancements in the overall body of scientific knowledge. Focusing on both individual and systemic factors that impact functional capability, the Plan includes the following elements: employment outcomes; health and function; technology for access and function; and independent living and community integration.
NIDRR recently completed summative reviews of its BMS projects. Participants in the program reviews observed that the comprehensive continuum of quality care should continue to be a key requirement for participation in the BMS program. In addition, participants felt that projects must demonstrate the impact on individual outcomes of integrating rehabilitation techniques in burn treatment. Reviewers also noted that uniformly comprehensive, high quality care together with a common data collection system and administrative infrastructure make the BMS program a valuable platform for
The BMS program has, since its inception, been guided by a committee consisting of the individual project directors. The project representatives will be required to meet annually in Washington, DC, and with NIDRR input and guidance, develop and oversee the policies of the BMS. NIDRR intends to work through the project directors to implement the following recommendations:
• Systematic evaluation of the burn longitudinal data set, with reduction in redundancy of data items and consideration of adoption of a minimal data set;
• Development of guidelines for public use of the data set, ensuring confidentiality of data;
• Continued development of research management mechanisms that ensure rigorous attention to protocols in collaborative studies; and
• Evaluation of the inclusion criteria's impact on the population admitted to the model system.
In 1994, NIDRR established the Burn Injury Rehabilitation Model Systems of Care (Burn Model Systems) by making 36-months awards to three Centers. In 1997, NIDRR continued the Burn Model Systems (BMS) program and funded four projects for 60 months. NIDRR funded a separate Burn Data Coordinating Center in 1998. The BMS projects are committed to developing and demonstrating comprehensive burn care and rehabilitation services, involving all necessary and appropriate disciplines, for children and adults with severe burns, from point of injury to community integration and long-term follow-up. The BMS projects also evaluate the efficacy of the BMS program through the collection and analysis of uniform data on the course of recovery and outcomes following the delivery of a coordinated system of care that includes emergency care, acute care management, comprehensive inpatient rehabilitation, and long-term interdisciplinary follow-up services.
The Burn Data Coordinating Center (BDCC) coordinates the centralized data collection, manages the database, and provides statistical support to the BMS projects. The current data elements may be obtained from:
In the past, the use of data from the BMS database has been largely restricted to the use of BMS researchers. Recent Federal regulations (see March 16, 2000; 65 FR 14416-14418) outline conditions under which outside parties may request access to the data under the auspices of the Freedom of Information Act. In addition, there is increased interest in expanding the use of these data in conjunction with population-based data to further research on burn injury rehabilitation by the larger research community. Both activities require development of guidelines that ensure subject confidentiality, protect the identity of individual projects, and support use of the data in rigorous research efforts.
The American Burn Association (ABA) reports that about 51,000 Americans, one-third under age 20, are hospitalized for severe burn treatment every year. Of this number, 5,500 die (ABA National Burn Repository Report, April 18, 2001; http://www.ameriburn.org/pub/factsheet.htm). Burn injuries can have devastating impacts on the ability of an individual to function in the community and to achieve positive long-term outcomes. Early initiation of an aggressive inpatient rehabilitation program in a burn program is critical for restoration of optimal physical and psychological function (De Santi L., Lincoln L., Egan F., Dempling, R.,
In the past, individuals who didn't die from burn shock during the first few weeks following the burn incident often died from wound sepsis in the following weeks. Today, new innovative therapies such as improved antibiotics for wound management and infection control, improved nutritional supports, and advanced surgical skin grafting techniques provide burn survivors greater chances of survival. Acute burn treatment encompasses a number of elements that will affect the rehabilitation process. For instance, research has led to improved biotechnology-based products (i.e., biodegradable bandage or spray-on dressings) that are redefining potential outcomes of severe burn by limiting scarring and increasing potential for regaining function (
The goal of rehabilitation intervention for burn patients is to maximize function, minimize or prevent secondary complications, and improve long-term outcomes such as return to community, employment, and quality of life. Burn trauma often causes injuries and impairments in addition to the burn, and many individuals with burn injuries have secondary complications related to the burn condition, such as disfiguring scars, contractures, chronic open wounds, hypersensitivity to heat and cold, amputation, heterotopic ossification, chronic pain, deconditioning/weakness, and neuropathies. Neuropathy is a common complication of severe burn injury inpatients who are older and critically ill (Kowalske K., Holavanahalli R., Helm P.,
A number of rehabilitation techniques are used with burn survivors. These include psychological treatments to deal with problems of self-image and depression, physical therapy to facilitate muscle use and strengthening, occupational therapy to assist with activities of daily living (
Rehabilitation for burn survivors includes efforts by social workers and psychologists who work with the individuals to deal with the psychological aftermath of severe burn and issues such as sexuality, family emotional status, and long-term behavioral adjustment of pediatric burn survivors. Strategies such as peer support begun early in the rehabilitation process may enhance return to participation in the community. Support groups can provide an opportunity to communicate with others going through the same unsettling changes. Rehabilitation goals include community reintegration and burn survivors face many obstacles in reaching this goal. For instance, a number of environmental factors, such as alcohol dependency, drug abuse, psychiatric treatment, heat/cold hypersensitivity or preexisting physical disability may impact vocational rehabilitation, community and workplace integration (Fauerbach J.A., Engrav L., Kowalske K., Brych S., Bryant A., Lawrence J., Li G., Munster A., de Latour B.,
The Assistant Secretary proposes to fund an absolute priority for one or more Burn Model System projects for the purpose of generating new knowledge through research to improve treatment and service delivery outcomes for persons with burn injury. A BMS project must:
(1) Establish a multidisciplinary system that begins with acute care and encompasses rehabilitation services specifically designed to meet the needs of individuals with burn injuries. This system must encompass a continuum of care, including emergency medical services; acute care services; acute medical rehabilitation services; post-acute services; psychosocial/vocational services; and long-term community follow-up.
(2) Participate as directed by the Assistant Secretary in national studies of burn injuries by contributing to a national database and by other means as required by the Assistant Secretary; and
(3) Conduct significant and substantial research in burn injury rehabilitation, ensuring that each project has sufficient sample size and methodological rigor to generate robust findings that will contribute to the advancement of knowledge in accordance with the NFI and the Plan. Applicants may develop up to three site-specific projects and develop up to two projects to be done in collaboration with other BMS projects.
In proposing research studies, applicants must demonstrate their potential impact on rehabilitation goals and objectives. Applicants may select from the following research directives related to specific areas of the NFI and the Plan:
•
•
•
•
•
(4) Provide widespread consumer-oriented dissemination activities to other burn projects, rehabilitation practitioners, researchers, individuals with burn injuries and their families and representatives, and other public and private organizations involved in burn care and rehabilitation.
In carrying out these purposes, the projects must:
• Involve consumers, as appropriate, in all stages of the research and demonstration endeavor;
• Demonstrate culturally appropriate and sensitive methods of data collection, measurements, and dissemination addressing needs of burn survivors with diverse backgrounds;
• Demonstrate the research and clinical capacity to participate in collaborative projects, clinical trials, or technology transfer with other BMS projects, other NIDRR grantees, and similar programs of other public and private agencies and institutions; and
• In conjunction with other BMS projects, plan and conduct a State-of-the-Science conference on “New Trends in Burn Injury Rehabilitation” and publish a comprehensive report on the final outcomes of the conference. The report must be published by the end of the fourth year of grant.
The Assistant Secretary proposes to fund an absolute priority for a Burn Data Coordinating Center for the purpose of managing and facilitating the use of information collected by the BMS projects on individuals with burn injury. The BDCC must:
(1) Establish and maintain a database repository for data from BMS projects while providing for confidentiality, quality control, and data retrieval capabilities, using cost-effective and user-friendly technology;
(2) Ensure data quality, reliability, and integrity by providing training and technical assistance to BMS projects on data collection procedures, data entry methods, and use of study instruments;
(3) Provide consultation to NIDRR and to directors and staff of the BMS
(4) Support efforts to improve the research findings of the BMS projects by providing statistical and other consultation regarding the national database;
(5) Facilitate dissemination of information generated by the BMS projects, including statistical information, scientific papers, and consumer materials;
(6) Evaluate the feasibility of linking and comparing BMS data to population-based data sets or other available burn data and provide technical assistance for such linkage, as appropriate; and
(7) Develop guidelines to provide access to BMS data by individuals and institutions, ensuring that data are available in accessible formats for persons with disabilities.
In carrying out these purposes, the center must:
• Demonstrate knowledge of culturally appropriate methods of data collection, including understanding of culturally sensitive measurement approaches; and
• Collaborate with other NIDRR-funded projects, e.g., the Model Spinal Cord Injury and Traumatic Brain Injury Model System Data Centers, regarding issues such as database development and maintenance, center operations, and data management.
You may review this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 762(g) and 764(b).
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of proposed priority.
The Assistant Secretary for Special Education and Rehabilitative Services proposes funding a priority for a Traumatic Brain Injury Model Systems (TBIMS) Program under the Disability and Rehabilitation Research Projects (DRRP) Program for the National Institute on Disability and Rehabilitation Research (NIDRR) for fiscal year (FY) 2002. The Assistant Secretary takes this action to focus research attention on an identified national need. We intend this priority to improve the rehabilitation services and outcomes for individuals with Traumatic Brain Injury.
We must receive your comments on or before April 4, 2002.
Address all comments about this proposed priority to Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, SW., room 3412, Switzer Building, Washington, DC 20202-2645. If you prefer to send your comments through the Internet, use the following address:
Donna Nangle. Telephone: (202) 205-5880.
If you use a telecommunications device for the deaf (TDD), you may call the TDD number at (202) 205-4475 or via the Internet:
Individuals with disabilities may obtain this document in an alternative format (
We invite you to submit comments regarding this proposed priority.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from the proposed priority. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about this priority in room 3412, Switzer Building, 330 C Street SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this proposed priority. If you want to schedule an appointment for this type of aid, please contact the person listed under
We will announce the final priority in a notice in the
This notice does
The purpose of the DRRP program is to plan and conduct research, demonstration projects, training, and related activities to:
(a) Develop methods, procedures, and rehabilitation technology that maximize the full inclusion and integration into society, employment, independent living, family support, and economic and social self-sufficiency of individuals with disabilities; and
(b) Improve the effectiveness of services authorized under the Rehabilitation Act of 1973 (the Act).
The Traumatic Brain Injury Model Systems (TBIMS) program requires excellence in clinical care, rehabilitation research, and relevance to consumers, principally individuals with traumatic brain injuries and their families. Each TBIMS project funded under this program must have an integrated continuum of care to support the rehabilitation of persons with TBI, with linkage to a trauma system project and community-based treatment settings. Each project must have capacity to enroll TBI subjects and conduct research on TBI.
The Department is particularly interested in ensuring appropriate expenditure of public funds. Not later than three years after the establishment of any TBI project, NIDRR will conduct one or more reviews of the activities and achievements of each project to ensure that the grantee is carrying out proposed activities and contributing to the advancement of knowledge. In accordance with the provisions of 34 CFR 75.253(a), continued funding depends at all times on satisfactory performance and accomplishment of stated objectives.
The New Freedom Initiative (NFI) emphasizes the importance of assistive and universal designed technologies, other employment initiatives, and promotion of full access to community-based living. The NFI can be accessed on the Internet at the following site:
An estimated 5.3 million Americans currently live with disabilities resulting from TBI. The Centers for Disease Control (CDC) estimates that approximately 80,000 Americans experience the onset of disabilities resulting from traumatic brain injury each year. The three leading causes of TBI are motor vehicle crashes, violence, and falls, particularly among the elderly. Following TBI, individuals may have impairments in cognition, movement, and sensation (Thurman D.J., Alverson C.A., Dunn K.A., Guerrero J., Sniezek, J.E.,
As stated in the 1998 National Institute of Health (NIH) Consensus Conference Proceedings, “TBI may result in lifelong impairment of an individual's physical, cognitive, and psychosocial functioning.” In a 1995 review of the literature on TBI survivors, Morton and Wehman identified “significant” decreases in opportunities for social interaction and maintaining friendships as well as high levels of anxiety and depression lasting for prolonged periods following TBI (Morton M., Wehman P.,
In 1987, NIDRR established the National Traumatic Brain Injury Model Systems (TBIMS) Program by funding four projects to provide comprehensive, multidisciplinary rehabilitation services to persons who experience TBI and to conduct research to foster advances in TBI rehabilitation. This number expanded to 17 projects in 1998. The TBIMS program is designed to study the course of recovery and outcomes following the delivery of a coordinated system of TBI care.
From 1989 to present, the TBIMS projects have collected information on common data elements and contributed to a centralized TBI database (additional information on TBIMS can be found at
In the current TBIMS, participants must meet the following criteria: (a) Fit the above definition of TBI; (b) be 16 or older; (c) entered the Model System's acute care hospital emergency department within 24 hours of injury; (d) receive both acute hospital care and care on a designated inpatient rehabilitation unit within the model system; and (e) be able to understand and signs an informed consent form or, if unable, have a family or legal guardian who understands and sign the informed consent form. At the present time, TBIMS projects collects 429 data items on each individual during the initial hospitalization, and an additional 459 items during follow up.
In recent years, medical and pharmacological therapies have shown promise for preserving and enhancing function for individuals with TBI. The availability of drugs capable of regulating neurotransmitter release or receptor function has led to research into neuroprotective intervention in TBI (Verma A.,
Diagnostic data offer new promise for facilitating treatment interventions and impacting outcomes. For instance, evidence indicates that intracranial pressure (ICP) data can increase the confidence of outcome predictions that are based on the clinical examination alone (Bullock R., Chesnut R.M., et al.,
New technologies and therapeutic interventions have the potential to improve understanding and enhance access and function for individuals with TBI. Virtual reality (VR) technology can be used to assess TBI patients and enable them to relearn activities of daily living (ADL) in a safe, controlled, visually stimulating environment (Gourlay D., Lun K.C., et al.,
Research on improving employment outcomes has found that specific vocational interventions tailored to the needs of individuals with TBI may be effective despite significant neuropsychological impairments (Johnstone B., Schopp L.H., Harper J., Koscuilek J.,
Despite the emergence of improved imaging techniques and psychopharmacologic treatments, the effectiveness of many rehabilitation interventions for persons with TBI has yet to be demonstrated conclusively. In work funded by the Agency for Health Care Policy and Research (now the Agency for Health Care Research and Quality), a panel of experts concluded that there is little evidence relating the
NIDRR recently completed a Summative Program Review of the current TBIMS projects. Participants in the review process observed that the comprehensive continuum of quality care should continue to be a requirement for participation in the TBIMS projects program. In addition, the review panels identified longitudinal data collection and innovative research as achievements of the TBIMS. Reviewers also noted that uniformly comprehensive, high quality care, together with a common data collection system and administrative infrastructure, make the TBIMS program a valuable platform for various collaborative studies, including multi-system project trials of therapies and technologies as well as community-based interventions. NIDRR will hold a separate competition to foster collaborative research to take advantage of the multi-site capacities of the TBIMS.
A committee consisting of the individual system project program directors has, since its inception, guided the TBIMS program. This group meets bi-annually in Washington, DC, and, in consultation with NIDRR, develops and oversees the policies of the TBIMS. It is anticipated that this mechanism will continue. In the current funding cycle, this governing body developed a set of strategic recommendations for the Model Systems. NIDRR intends to work through the system project directors to implement some of the recommendations of this group, including:
• Evaluation of the inclusion criteria and its impact on the population admitted to the model system;
• Systematic evaluation of the TBI longitudinal data set, with reduction in redundancy of data items and consideration of adoption of a minimal data set;
• Development of guidelines for public use of the data set, ensuring confidentiality of data; and
• Continued development of research management mechanisms that promote rigor in TBI studies.
The Assistant Secretary proposes to establish an absolute priority for Traumatic Brain Injury Model System projects for the purpose of generating new knowledge through research to improve treatment and services delivery outcomes for persons with TBI. A TBIMS project must:
(1) Have a multidisciplinary system of rehabilitation care specifically designed to meet the needs of individuals with TBI. This system must: (a) Encompass a continuum of care, including emergency medical services, acute care services, acute medical rehabilitation services, and post-acute services; and (b) demonstrate the ability to enroll adequate numbers of subjects in order to conduct rigorous research projects.
(2) Conduct no more than three research studies focused on areas identified in the NFI and the Plan, ensuring that each project has sufficient sample size and methodological rigor to generate robust findings. These studies may be done in collaboration with other TBIMS projects.
(3) Participate as directed by the Assistant Secretary in national studies of TBI by contributing to a national database and by other means as required by the Assistant Secretary, collect data on TBIMS participants, adhering to data collection and data quality guidelines developed by the TBINDC in consultation with NIDRR, and demonstrating capacity to maintain long-term retention of participants.
(4) Disseminate research findings to clinical and consumer audiences, using accessible formats, and evaluate impact of these findings on improved outcomes for persons with TBI.
(5) Collaborate, as appropriate, with other system projects in ongoing research and dissemination efforts, providing information on coordination mechanisms, quality control, and impact on overall management of the system project.
In carrying out these purposes, the TBIMS project may select one of the following research objectives related to specific areas of the NFI or the Plan:
•
•
•
•
In carrying out these purposes, the system project must:
• Involve, as appropriate, individuals with disabilities and individuals from minority backgrounds in all aspects of the research as well as in design of clinical services and dissemination activities.
• Demonstrate knowledge of culturally appropriate methods of data collection, including understanding of culturally sensitive measurement approaches;
• Collaborate with other related projects, including the other funded TBIMS projects.
You may review this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 762(g) and 764(b).