Animal and Plant Health Inspection Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Bonneville Power Administration
Federal Energy Regulatory Commission
National Nuclear Security Administration
Presidential Documents
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
National Park Service
Surface Mining Reclamation and Enforcement Office
National Institute of Justice
Employment and Training Administration
Pension and Welfare Benefits Administration
Copyright Office, Library of Congress
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Food and Drug Administration
Coast Guard
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the regulations concerning gypsy moth host material from Canada by removing the areas in British Columbia from the list of gypsy moth infested areas. Surveys have shown that those areas in British Columbia have been free of gypsy moth for the past 2 years. This action removes restrictions on the importation of regulated articles from British Columbia that are no longer necessary.
September 23, 2002.
Mr. Frederick A. Thomas, Export Operations Officer, Phytosanitary Issues Management, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-8367.
The gypsy moth,
It has been our policy, agreed upon by CFIA, that an area must be free from gypsy moth for a period of 2 consecutive years before it will be removed from the list of gypsy moth infested areas. This is consistent with our practice under the provisions of our domestic quarantine regulations on gypsy moth in 7 CFR 301.45 through 301.45-12. Those areas in British Columbia that have been listed in the regulations as gypsy moth infested areas have been surveyed and found free of gypsy moth for the past 2 years, and have thus met our standard for removal from the list of gypsy moth infested areas. Therefore, in a proposed rule published in the
We solicited comments concerning our proposal for 60 days ending August 13, 2002. We did not receive any comments. Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.
This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the
This final rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
We are amending the regulations concerning gypsy moth host material from Canada by removing areas in British Columbia from the list of gypsy moth infested areas. Surveys have shown that those areas in British Columbia have been free of gypsy moth for the past 2 years. This action relieves the specific certification and destination requirements of the regulations for certain gypsy moth host material imported into the United States from British Columbia.
The articles that are affected by this final rule are trees without roots (
Canada is the major source of all U.S. imports of the regulated articles covered by the regulations, and British Columbia supplies a large portion of those Canadian exports. Table 2 shows U.S. imports of regulated articles from British Columbia during the period 1996-2000.
With the exception of outdoor household articles and mobile homes and their associated equipment, regulated articles originating in a Canadian infested area that are to be moved into or through U.S. noninfested areas must be accompanied by an officially endorsed Canadian phytosanitary certificate that includes an additional declaration confirming that the regulated articles have been inspected and found free of gypsy moth or that the regulated articles have been treated for gypsy moth in accordance with the Plant Protection and Quarantine Treatment Manual. Logs or pulpwood originating in a Canadian infested area may also be moved into or through U.S. noninfested areas if they are moved to a specified U.S. processing plant or mill under compliance agreement with the Animal and Plant Health Inspection Service for specified handling or processing that will mitigate the risk of gypsy moth. Outdoor household articles and mobile homes and their associated equipment that are being moved from a Canadian infested area into or through U.S. noninfested areas may be imported into the United States only if they are accompanied by a statement, signed by their owner, stating that they have been inspected and found free of gypsy moth.
Under the regulations, logs or pulpwood with bark attached, trees, and shrubs originating in a Canadian noninfested area that are to be moved into or through a U.S. noninfested area must be accompanied by a certification of origin stating that they were produced in an area of Canada where gypsy moth is not known to occur. (As defined in § 319.77-1, a certification of origin is a signed, accurate statement certifying the area in which a regulated article was produced or grown that may be provided directly on the shipping documents accompanying shipments of commercial wood products from Canada, or may be provided on a separate certificate.) Outdoor household articles and mobile homes and their associated equipment that are being moved from a Canadian noninfested area may be imported into any area of the United States without restriction.
Our removal of areas in British Columbia from the list of Canadian infested areas eliminates the costs associated with the phytosanitary certificates required by our Canadian gypsy moth regulations for most regulated articles moved from British Columbia into or through U.S. noninfested areas. Some regulated articles,
While we do not have information on the number and size of entities in British Columbia that might be affected by this final rule, the areas within British Columbia that we are removing from the list of gypsy moth infested areas represent a small portion of the province as a whole, so few entities are likely to be affected. Therefore, we expect this final rule will have little economic effect on affected entities, whether small or large.
In addition, Canada has been and is by far the largest source of U.S. imports of the regulated products, and British Columbia is a large source within Canada. This continued to be the case even after our regulations concerning gypsy moth host material from Canada were established in 1999. Therefore, the decrease in costs is not expected to have a significant effect on this pattern. Thus, the overall effect upon price and competitiveness is expected to be positive but relatively insignificant.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery Stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
7 U.S.C. 166, 450, 7711-7714, 7718, 7731, 7732, and 7751-7754; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
2. In § 319.77-3, paragraph (a) is removed and paragraphs (b) through (e) are redesignated as (a) through (d), respectively.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone within the Lake Havasu Region on the navigable waters of the Colorado River during the Skat Trak World Championships. This temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.
This rule is effective from 7 a.m. (PST) on October 6, 2002 until to 6 p.m. (PST) on October 13, 2002.
Documents indicated in this preamble as being available in the docket are part of docket (COTP San Diego 02-021) and are available for inspection or copying at Marine Safety Office San Diego, 2716 N. Harbor Drive, San Diego, CA 92101-1064 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Petty Officer Austin Murai, USCG, c/o U.S. Coast Guard Captain of the Port, at (619) 683-6495.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Final approval and permitting of this event were not issued in time to engage in full notice and comment rulemaking. Publishing a NPRM and delaying the effective date would be contrary to the public interest since the event would occur before the rulemaking process was complete.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The International Jet Sports Boating Association is sponsoring the Skat Trak World Championships, which is held at the Crazy Horse Campgrounds, Lake Havasu City, AZ. This temporary safety zone is established during the Skat Trak World Championships, a marine event that includes participating vessels racing along an established and marked course on Lake Havasu, AZ. This temporary safety zone is necessary to provide for the safety of the crews, spectators, and participants of the Skat Trak World Championships and is also necessary to protect other vessels and users of the waterway.
The following area is a temporary safety zone: the area enclosed by a line beginning from a point on land at 32°28′18″ N, 114°21′04″ W, thence northerly to a point 34°28′06″ N, 114°21′55″ W, thence easterly to a point 34°28′05″ N, 114°21′02″ W, thence southerly along the shoreline to the point of origin. All coordinates are North American Datum 1983.
The Coast Guard is establishing one (1) safety zone that will be enforced everyday from 7 a.m. (PST) to 6 p.m. (PST) from October 6, 2002 to October 13, 2002. This safety zone is necessary to provide for the safety of the crews, spectators, and participants of the Skat Trak World Championships and to protect other vessels and users of the waterway. Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.
This 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 costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, l979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary because of its limited duration of eleven
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities. This safety zone would not have a significant economic impact on a substantial number of small entities because this safety zone is limited in scope and duration (in effect for only eleven (11) hours per day for a period of eight (8) days, from October 6 2002 to October 13, 2002). In addition the Coast Guard will publish local notice to mariners (LNM) before the safety zone is enforced.
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 rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. 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 rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.
We have analyzed this 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 rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are proposing to establish a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 50 U.S.C. 191; and 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Final rule; technical correction.
On January 26, 1989, we approved the Butte Total Suspended Particulate (TSP) State Implementation Plan (SIP), and on March 11, 1994, we approved the Butte Particulate Matter with an aerodynamic diameter less than or equal to 10 micrometers (PM-10) SIP. The Butte PM-10 SIP replaced the Butte TSP SIP and therefore, EPA is making a correction to remove the Butte TSP SIP from the approved SIP. In addition, on August 13, 2001, EPA approved the recodification and revisions to the Administrative Rules of Montana (ARM). In the regulatory material of the August 13, 2001 rule, EPA inadvertently referenced the wrong date. We are correcting the date in this document. Also, in Federal Register documents published on September 21, 2001, November 15, 2001 and November 19, 2001, we incorporated by reference (IBR) materials that contained omission errors in the text. We are correcting the errors contained in the IBR material.
This rule is effective on September 23, 2002.
Laurel Dygowski, EPA, Region 8, (303) 312-6144.
Throughout this document, wherever “we” or “our” is used it means EPA.
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting incorrect text in previous rulemakings. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).
When we approved the Butte PM-10 SIP on 3/11/94 (59 FR 11550) (codified at 40 CFR 52.1370(c)(29)) we should have removed our prior approval of the Butte TSP plan that was approved on 1/26/89 (codified at 40 CFR 52.1370(c)(21)). Page 47.10.9(4) of the SIP narrative of the Butte PM-10 plan adopted on 11/15/91 indicates that the PM-10 control plan approved by the Montana Board of Health and Environmental Science (MBHES) on November 15, 1991 will replace the entire Butte TSP SIP. The SIP narrative explains that the PM-10 plan is more stringent than what was required in the TSP plan. Specifically street sweeping and street flushing requirements and permit requirements are more stringent in the PM-10 plan than was required in the TSP plan. Additionally, street paving projects identified in the TSP plan have been completed. We agree with the State's assessment and under 110(k)(6) of the Clean Air Act, we are removing 40 CFR 52.1370(c)(21) from the approved SIP.
On August 13, 2001 (66 FR 42427), EPA approved, for the most part, a recodification and revisions to the Administrative Rules of Montana. In the regulatory text of that rulemaking, we erroneously identified an effective date of a rule. Specifically, in the introductory text of 40 CFR 52.1370(c)(49) we indicated that we were replacing in the SIP all previously approved Montana air quality regulations except for the Kraft Pulp Mill Rule, ARM 16.8.1413, effective December 13, 1972, and the Stack Heights and Dispersion Techniques Rule, ARM 16.8.1204-1206, effective June 13, 1986, with those regulations listed in paragraph (c)(49)(i)(A). The correct effective date for the Kraft Pulp Mill Rule is December 31, 1972 and not December 13, 1972. We are correcting the introductory text of 40 CFR 52.1370(c)(49) to show the correct effective date for the Kraft Pulp Mill Rule as December 31, 1972.
In our September 21, 2001 (66 FR 48561) rulemaking, and subsequent rule correction on November 19, 2001 (66 FR 57882), we approved ARM 17.8.1305, Conformity, and made a rule correction to the regulatory text. With the September 21, 2001 and November 19, 2001 rules, we inadvertently submitted IBR material that had text missing. Specifically, the “*” under Table B (page 9.2.2.13 (5)) should read: “* If consultation on draft does not result in any revisions, distribution of a separate final document is not required. In this case consulted agencies may simply be notified that the draft has been adopted as final.” Therefore, we are correcting this error by resubmitting page 9.2.2.13 (5) of 17.8.1305 of the IBR material for the September 21, 2002 and November 19, 2001 rules to the Air and Radiation Docket and Information Center for incorporation into the SIP.
In our November 15, 2001 (66 FR 57391) rulemaking, we approved revisions to the Missoula County Air Pollution Control Program. With the November 15, 2001 rule, we inadvertently submitted IBR material that had text missing. Specifically, Rule 17.6.107(6), on page 32.9.1(41) was omitted. Therefore, we are correcting this error by resubmitting page 32.9.1(41) of the IBR material for the Missoula County Air Quality Program to the Air and Radiation Docket and Information Center for incorporation into the SIP.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not
This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act (5 U.S.C. 801
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(29) The Governor of Montana submitted a portion of the requirements for the moderate nonattainment area PM10 State Implementation Plan (SIP) for Butte, Montana with a letter dated July 9, 1992, with technical corrections dated May 17, 1993. The submittals were made to satisfy those moderate PM10 nonattainment area SIP requirements due for Butte on November 15, 1991. The Butte PM10 SIP replaces the prior approved Butte total suspended particulate (TSP) SIP approved in paragraph (c)(21).
(49) On September 19, 1997, December 10, 1997, April 14, 1999, December 6, 1999 and March 3, 2000, the Governor submitted a recodification and revisions to the Administrative Rules of Montana. EPA is replacing in the SIP all of the previously approved Montana air quality regulations except that the Kraft Pulp Mill Rule, ARM 16.8.1413, effective December 31, 1972, and Stack Heights and Dispersion Techniques Rule, ARM 16.8.1204-1206, effective June 13, 1986, with those regulations listed in paragraph (c)(49)(i)(A) of this section. The Kraft Pulp Mill Rule, ARM 16.8.1413, effective December 31, 1972, and Stack Heights and Dispersion Techniques Rule, ARM 16.8.1204-1206, effective June 13, 1986 remain a part of the SIP. In addition, the Governor submitted Yellowstone County's Local Regulation No. 002—Open Burning.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing a full disapproval of a revision to the Arizona Department of Environmental Quality (ADEQ) portion of the Arizona State Implementation Plan (SIP). This action was proposed in the Federal Register on December 18, 2000 and concerns visible emission sources. Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), this action directs Arizona to correct the deficiencies in Rule R18-2-702.
Today's final rule is effective on October 23, 2002.
You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You can inspect a copy of the submitted rule revisions at the following locations:
Al Petersen, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX; (415)947-4118.
Throughout this document, “we,” “us” and “our” refer to EPA.
On December 18, 2000 (65 FR 79037), EPA published a notice of proposed rulemaking (NPRM) proposing a full disapproval of the rule that was submitted for incorporation into the Arizona SIP.
EPA's proposed action provided a 30-day public comment period. We extended this comment period on March 16, 2001 (66 FR 15212) to receive comments by April 16, 2001 and received comments from the following parties:
Chuck Shipley, Arizona Mining Association (AMA); letter dated February 16, 2001 and received February 16, 2001.
Scott Davis, Pinnacle West Capital Corporation (PWCC); letter dated February 15, 2001 and received February 16, 2001.
Nancy Wrona, ADEQ; letter dated April 16, 2001 and received April 16, 2001.
The comments and our responses are summarized below.
AMA also states that 40 CFR 60.11(e)(6)-(8) in the General Provisions of EPA's New Source Performance Standards (NSPS) establishes a similar procedure for sources to receive a new opacity standard. AMA asserts that the ADEQ AOS procedure in Rule R18-2-702 is “nearly identical” to the federal NSPS procedure.
EPA also cited as a deficiency the effect on federal enforceablility of the ADEQ Director's discretion to establish an AOS. The procedure does not ensure that the AOS will be adequately enforceable by EPA because it fails to require approval by EPA. EPA notes, however, that ADEQ may be able to revise the AOS procedure to include an opportunity for public comment and to require any AOS to be submitted to EPA for approval. This could reasonably ensure that RACM/RACT requirements were fulfilled for the AOS and that the AOS is adequately enforceable by EPA.
AMA's reference to the NSPS is not persuasive. The two rules are significantly different for the simple reason that the federal NSPS regulations require EPA review of any petition to adjust the opacity standards. EPA also notes that the NSPS procedure differs from the ADEQ AOS procedure in that the NSPS procedure allows for public review and comment. The ADEQ AOS procedure requires publication of the AOS, but does not allow for public comment. Thus, under Rule R18-2-702, EPA has no reasonable means to assure that the AOS will comply with RACM/RACT and be adequately enforceable by EPA.
EPA concludes that Rule R18-2-702 is deficient because it allows for the potential relaxation of opacity standards below levels that are considered RACM/RACT and does not provide an opportunity for EPA to review such changes and ensure enforceability.
• ADEQ new source performance standards in ADEQ article 9 [R18-2-9xx series rules].
• ADEQ article 7 for existing specific sources [R18-2-7xx series rules].
• ADEQ 40% opacity standard for existing general sources [submitted Rule R18-2-702].
• Fossil-Fuel-Fired Steam Generators for Which Construction Is Commenced after August 17, 1971. Rule R18-2-901, subpart D.
• Electric Utility Steam Generating Units for Which Construction Is Commenced after September 18, 1978. Rule R18-2-901, subpart Da.
• Industrial-Commercial-Institutional Steam Generating Units. Rule R18-2-901, subpart Db.
• Small Industrial-Commercial-Institutional Steam Generating Units. Rule R18-2-901, subpart Dc.
• Incinerators. Rule R18-2-904.
• Nitric Acid Plants. Rule R18-2-901, subpart G.
• Primary Copper Smelters. Rule R18-2-901, subpart P.
Therefore, by limiting Rule R18-2-702 to only “existing sources,” the
Because this revision would amount to a relaxation of a rule approved into the SIP before the 1990 Clean Air Act Amendments and applicable in nonattainment areas, the revision is precluded under section 193 of the Act.
The ADEQ opacity rule applies to major sources located in PM-10 nonattainment areas of the State. Clean Air Act sections 172(c)(1) and 189(a)(1)(C) together require SIPs for PM-10 moderate nonattainment areas to provide for RACM as expeditiously as practicable. In our April 16, 1992, General Preamble for the Implementation of title I (“General Preamble”), we outlined our expectations for how States would comply with the requirement for RACM/RACT in PM-10 nonattainment area SIPs. 57 FR 13498, 13540-41. We explained, sbull I11“The EPA believes it is reasonable for all available control measures that are technologically and economically feasible to be adopted for areas that do not demonstrate attainment.”
One way a State can reject a control measure is to demonstrate that emissions from the sources affected by the measure are insignificant and, therefore, controls on these sources would not be reasonable.
Commenters do not try to argue that the 40% opacity standard is in fact RACM/RACT. Commenters acknowledge that 20% opacity standards are in place in many parts of the country, and do not dispute that the technology to achieve these standards is generally available. Table 2 lists some of the states and local agencies with a 20% opacity standard, or its equivalent of No. 1 Ringlemann, in their SIP rules.
Commenters' reference to the Fort Hall FIP only supports EPA's general expectation that an opacity standard should require 20% in order to be considered RACM/RACT. Commenters try to make an argument out of EPA's acknowledgment that higher limits, though “rare,” might be approved as RACM/RACT. Commenters, however, do not attempt to argue that this particular control measure fits within that “rare” exception. Without a demonstration by ADEQ, no such finding can reasonably be supported.
At bottom, commenters appear to misconstrue EPA's finding in the NPRM. EPA is not promulgating a national RACM/RACT opacity standard by today's action. However, we believe that the widespread application of the 20% opacity standard, or its equivalent No. 1 Ringlemann, across the country is generally achievable and reasonably available unless the State demonstrates otherwise given particular local circumstances. Based on the significant information before the Agency showing that a more stringent opacity standard is generally considered RACM/RACT and lacking a demonstration from the State to rebut this significant information, it is reasonable for EPA to conclude the 40% opacity limit of Rule R18-2-702 fails to fulfill RACM/RACT.
EPA's disapproval of the rule means that it will not be incorporated into the SIP for any portion of the State. EPA declines to follow PWCC's recommendation to approve the rule for the attainment areas of the State. First, the rule was not presented to EPA in a form that would allow EPA to approve a separable portion of the rule that applies only in the attainment areas. Thus, EPA has no mechanism to approve the rule in one part of a state and to disapprove it in another. Moreover, limited approval/disapproval of the rule would not be reasonable because the rule does not, as a whole, strengthen the SIP and is deficient not only with respect to the nonattainment requirements for RACT but also with respect to the more general requirements regarding enforceability. Finally, EPA notes that full disapproval should not create a problem for protecting air quality in attainment areas because the current SIP-approved version contains the same 40% opacity standard as provided in the disapproved rule.
No comments were submitted that would cause us to change from our proposed action on the rule. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a full disapproval of the submitted rule. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the CAA as described in 59 FR 39832 (August 4, 1994). In addition, EPA must promulgate a FIP under section 110(c) unless we approve a subsequent SIP revision that corrects the rule deficiencies within 24 months of the effective date of today's final rule.
The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks and is not economically significant.
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have ldquo;substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely acts on a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of
This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
EPA's disapproval of the state request under section 110 and title I, part D of the CAA does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the CAA, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate, or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action acts on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 22, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(e) Rule R18-2-702 of the Arizona Department of Environmental Quality Rules and Regulations sets an opacity standard for emissions from stationary sources of PM-10. The standard does not fulfill the RACM/RACT requirements of section 189(a) of the CAA. The rule also does not comply with enforceability requirements of section 110(a) and SIP relaxation requirements of sections 110(l) and 193. Therefore, Rule R18-2-702 submitted on July 15, 1998 is disapproved.
Indian Health Service, DHHS.
Interim final rule with comment period.
This is an Interim Final Rule with comment period implementing regulations as mandated by section 408 of the Indian Child Protection and Family Violence Prevention Act (the “Act”), as amended by section 814 of the Native American Laws Technical Corrections Act of 2000, that prescribe minimum standards of character and suitability of employment criteria for individuals who are employed or are being considered for employment in positions with duties and responsibilities that involve regular contact with or control over Indian children.
We will send copies of this Interim Final Rule to each Indian Tribe. The IHS welcomes comments regarding this Interim Final Rule especially from the Tribes and Tribal organizations affected by them.
Send your written comments to: Betty Gould, Regulations Officer, Division of Regulatory and Legal Affairs, IHS, 12300 Twinbrook Parkway, Suite 450, Rockville, MD 20857, Telephone 301-443-7899. (This is not a toll-free number.) Comments received will be available for inspection at the address above from 9 a.m. to 3 p.m., Monday through Friday, beginning approximately two weeks after publication.
Ramona Williams, Child Protection Coordinator, 12300 Twinbrook Parkway, Suite 605, Rockville, Maryland 20852, (301) 443-1539 (This is not a toll-free number.)
On March 25, 1999, the IHS published a Notice of Proposed Rulemaking (NPRM) in the
The Act requires that Tribes or Tribal organizations who receive funds under the Indian Self-Determination and Education Assistance Act (ISDEA), Pub. L. 93-638, employ individuals in positions involving regular contact with or control over Indian children only if the individuals meet standards of character no less stringent than those prescribed under these regulations. Thus, the minimum standards of character as proposed by the NPRM would be the basis for Tribes or Tribal organizations to use when developing their own minimum standards of character and suitability for employment of individuals.
The IHS presented an earlier draft of the NPRM at the 14th Annual National Indian Health Board Consumer Conference. In addition, the IHS provided a copy of the draft NPRM to the tribal leader of each federally recognized tribe for their review and comment. The NPRM was modified to reflect the Tribal comments received.
The NPRM provided interested persons until May 24, 1999 to submit written comments and on May 26, 1999, the IHS extended the comment period to July 26, 1999, in response to Tribal requests for more time to analyze the NPRM and to prepare their comments.
On December 27, 2000, Congress enacted technical amendments to section 408 of the Act, pursuant to section 814 of S. 3031, the Native American Laws Technical Corrections Act of 2000. Section 408 of the Act, as amended now reads:
The minimum standards of character that are to be prescribed under this section shall ensure that none of the individuals appointed to positions described in subsection (a) have been found guilty of, or entered a plea of nolo contendere or guilty to,
The technical amendments were intended to remedy a situation where the original provision was overly broad. Federal employees with a single misdemeanor offense, possibly committed many years ago and which involved no violence or crimes against children, were being prohibited from holding positions for which they were otherwise qualified.
In developing the Interim Final Rule, the agency has revised its regulations by adopting the statutory language contained in the technical amendments. The following is a summary of changes made to the Interim Final Rule incorporating the statutory amendments. Specifically, § 136.403 contains a definition of
The agency developed this definition based on research of definition of crimes involving children contained in Federal or State laws. The definition of “offenses against children” varies from State to State and therefore, we are proposing a general definition with reference to applicable Federal, State or Tribal law. In defining “offenses against children”, we propose using the word crime in the definition to limit its application to criminal offenses not civil offenses. We believe this position is consistent with the technical amendments clarifying that any felonious offense, or any of two or more misdemeanor offenses require removal and that Congress did not intend to encompass all possible offenses but limited the applicability to crimes as evidenced by the reference to felonies and misdemeanors.
In addition, the Interim Final Rule has been amended to provide that the minimum standards of character to hold a position involving regular contact with or control over an Indian child must ensure that the individual has not been guilty of, or entered a plea of nolo contendere or guilty to
Section 136.412, which includes the questions required by the agency as part of the background investigation, has been revised to reflect the technical amendments. Section 136.412(a)(2) has been modified to include the additional category of crimes “offenses against children”. Section 136.412(a)(2) has been further modified to require individuals who are applying for, or are currently in, a position involving regular contact with or control over Indian children to answer whether they have ever been found guilty of, or entered a plea of nolo contendere or guilty to,
The agency has determined that the technical amendments to the Act were effective December 27, 2000 and the agency began implementing the amendments as of that date. The agency believes that the technical amendments are not retroactive and therefore all final determinations issued before December 27, 2000, remain unchanged.
Prior to the technical amendments being enacted, the agency was prepared to issue a Final Rule based on comments received in response to the NPRM published in March 1999. However, as a result of the technical amendments, the agency further revised its regulations to reflect the statutory language. Therefore, we believe an Interim Final Rule is appropriate to solicit public comment specifically on those portions of the Interim Final Rule that have been revised to reflect the technical amendments.
The agency received several comments from Tribes and Tribal Organizations in response to the March 1999 NPRM. We carefully analyzed the submissions by individuals, groups, Indian and non-Indian organizations. To the extent possible, the agency has, in preparing this Interim Final Rule, accommodated the comments received from Tribes and Tribal organizations. A discussion of the comments and the Secretary's response is as follows:
We received several comments in support of the regulation and the purpose of the law for which it was intended. We received several comments regarding the application of the law to conviction of crimes that occurred many years prior to employment with the IHS. We also received several comments regarding the definitions. We received several comments regarding the financial cost and personnel time of conducting the background investigation of current and prospective employees. We received miscellaneous comments addressed more specifically below.
These comments can be organized into the following subject matters for purposes of analysis and discussion.
The final decision of the MSPB found that the minimum standards of character in section 408 of the Act applied to both current and prospective employees and that the plain language in the statute mandated the removal actions. The MSPB found that Congress authorized the agency to “prescribe by regulations minimum standards of character” and mandated that those standards must “ensure that none of the individuals appointed to [covered] positions * * * have been found guilty of, or entered a plea of nolo contendere or guilty to * * *” a covered crime. The MSPB determined that the only way to ensure that none of the individuals appointed to a covered position have been found guilty of, or entered into a plea of nolo contendere or guilty to a covered crime is to make that prohibition the base eligibility requirement for obtaining and/or retaining employment in a covered position. Therefore, under its plain meaning, the MSPB found that section 408 of the Act requires, as the minimum eligibility standard for holding a covered position, that the individual who is employed or is being considered for employment must not have been found guilty of, or entered a plea of nolo contendere or guilty to, a covered crime.
The MSPB also rejected the employees' claims that the penalty of removal is unreasonable and that it should be mitigated by consideration of factors in 5 CFR 731.202, otherwise known as the Douglas factors. Although the MSPB acknowledged that it could reduce a penalty imposed by an agency if certain mitigating circumstances existed under Douglas, the MSPB determined that the plain meaning of the statute prohibited individuals from holding a covered position if they have been found guilty of, or entered a plea of nolo contendere or guilty to, a covered crime.
The MSPB found that Congress, by enacting the mandatory language of section 408 of the Act, created a presumption of nexus between an employee's violation of the minimum standards of character and appointment to or continued service in a covered position. Even though the employees who were removed argued that a nexus could not be presumed because the convictions/violations occurred more than ten years ago, the MSPB found that the language of the statute does not limit its coverage to a specific time period. The MSPB disagreed with the employees that a nexus could not be presumed and found that the history and purpose of the statute established the vital connection between the employees' off duty conduct and the efficiency of the service.
Four of the employees appealed the MSPB's final decision to the United States Court of Appeals, Federal Circuit,
Many of the comments received regarding the applicability of the Act to convictions that occurred several years ago were addressed in the MSPB and Federal Circuit decisions. As indicated above, the MSPB and the Federal Circuit have determined that the plain meaning of the statute requires mandatory removal of individuals in covered positions who have been convicted of or plead nolo contendere or guilty to covered crimes no matter when the conviction occurred. The MSPB found that the language of the statute does not limit its coverage to a specific time period. Further, the MSPB determined that based on the purpose and language in the statute that Congress has presumed a nexus between certain crimes committed and the efficiency of the service. To the extent that the MSPB decision has addressed these issues and upheld the agency's interpretation of section 408 of the Act, the agency does not have the discretion to revise or modify its regulations to address the concerns. However, we believe that through technical amendments to the statute, Congress has attempted to address some of these concerns. The Congress has clarified that the minimum standards of character must ensure that those individuals who have been convicted of or have plead guilty to any felonious offense or any two or more misdemeanor offenses involving certain enumerated crimes shall not hold covered positions. By delineating any felonious offenses or two or more misdemeanor offenses, the impact of section 408 of the Act on those individuals who, as a result of youthful indiscretions, might have been convicted of or plead guilty to one misdemeanor is lessened.
(b) Indian Tribes and Tribal organizations may conduct their own background investigations, contract with private firms, or request that a Federal or State agency conduct all or part of the investigations. (FBI criminal history information, however, may only be received or evaluated by governmental agencies, including Tribal organizations and Tribal governmental agencies, and may not be disseminated to private firms or other entities. The results of searches by state human service agencies may be provided to Tribal organizations and Tribal governmental agencies in summary form. The investigation should cover the past five years of the individual's employment, education, etc.
(c) In conducting background investigations and adjudicating suitability for employment in Tribal positions that allow regular contact with or control over Indian children, Indian Tribes or Tribal organizations may, but are not required to adopt portions of the rules in this subpart that are specifically applicable to employment within the IHS, including 42 CFR §§ 136.409-136.415.
§ 136.416 Who is responsible for ensuring IHS and other Federal employees who are detailed to Tribes and Tribal organizations pursuant to the Intergovernmental Personal Act meet minimum standards of character?
(a) The IHS will ensure that Federal employees detailed to Tribes and Tribal organizations meet the minimum character standards established in 42 CFR 36.405.
(b) A Tribe or Tribal organization is permitted, but not required, to accept the IHS determination in lieu of conducting its own investigation and making its own determination.
(c) At the request of a Tribe or Tribal organization, the IHS will either (1) apply the character standards of the particular Tribe or Tribal organization to the Federal employee to determine whether he or she meets them or (2) provide the Tribe or Tribal organization with copies of its own investigation records so that the Tribe or Tribal organization can determine for itself whether the Federal employee meets its own character standards.
The purpose of the regulations in this subpart is to establish minimum standards for Federal employees working in the IHS, including standards of character to ensure that individuals having regular contact with or control over Indian children have not been convicted of certain types of crimes as mandated by 25 U.S.C. 3207; fitness standards to ensure child care service employees are fit to have responsibility for the safety and well-being of children, as mandated by the Crime Control Act of 1990 (P.L. 101-647); suitability standards to ensure that individuals have not acted in a manner that places others at risk or raised questions about their trustworthiness, as mandated by 5 CFR Part 731; and efficiency standards to ensure that individuals are qualified for the positions they hold or seek, as mandated by 25 U.S.C 3207 ACharacter Investigation (Indian Child Protection and Family Violence Act)
This Interim Final Rule is a significant regulatory action under Executive Order (E.O.) 12866 and has been reviewed by the Office of Management and Budget (OMB). Depending upon the number of positions for which determinations of suitability for employment are required, the cost of the background investigations (including the cost of each FBI fingerprint check) may have an economic effect on each Tribal government and Tribal organization under the Regulatory Flexibility Act (5 U.S.C. 601,
The Department has determined that this Interim Final Rule does not have significant federalism effects under E.O. 12612 and will not interfere with the roles, rights and responsibilities of states. The Act requires the Tribes or Tribal organizations to develop minimum standards of character that cannot be less stringent than prescribed by these regulations. Tribes or Tribal organizations are responsible for identifying positions involving regular contact with children or control over Indian children and conducting background investigations of these individuals. In conducting background investigations and adjudicating eligibility for employment in these positions, Tribes or Tribal organizations may, but are not required to, adopt portions of the rules that are specifically applicable to Federal employment. The statutory amendments provide more reasonable minimum standards of character and thus, the Tribes have more flexibility in hiring individuals who might otherwise been ineligible for employment under the stricter standards.
Under the Paperwork Reduction Act (PRA) of 1995, agencies are required to provide notice in the
For respondent convenience and to limit the response burden, IHS opted to utilize item 16, “Continuation Space/Agency Optional Questions” of the U.S. Office of Personnel Management, Optional Form 306, “Declaration for Federal Employment,” (OMB approved No. 3206-0182). Through use of a one page addendum to the Declaration for Federal Employment IHS is able to receive the information and the certification required in this rule. The IHS anticipates there will be approximately 2000 respondents on an annual basis who will require no more than 15 minutes each to respond to these questions and sign the required certification. The total estimated annual burden for this collection of information is 500 hours. Emergency PRA clearance request. To implement the rule and protect American Indian children at the earliest date, IHS is submitting an emergency PRA clearance request to OMB for approval of the data collection instrument. As stated in this notice, the information collection requirements contained in the rule will be effective 60 days from the date of this publication.
American Indians, Alaska Natives, Children, Child health, Health, Employment.
25 U.S.C. 3201—3211, 5 U.S.C. 301; 42 U.S.C. 13041.
(a) The purpose of the regulations in this subpart is to establish minimum standards for Federal employees working in the Indian Health Service (IHS), including standards of character to ensure that individuals having regular contact with or control over Indian children have not been convicted of certain types of crimes as mandated by section 408 of the Indian Child Protection and Family Violence Prevention Act (the “Act”), Public Law (Pub. L.) 101-630, 104 Stat. 4544, 25 U.S.C. 3201-3211, as amended by section 814 of the Native American Laws Technical Corrections Act of 2000. In order to implement these minimum standards of character, these regulations also address:
(1) The efficiency standards to ensure that individuals are qualified for the positions they hold or seek, as mandated by Section 408 of the Act.
(2) Fitness standards to ensure child care service employees are fit to have responsibility for the safety and well-being of children, as mandated by Section 231 of the Crime Control Act of 1990, Pub. L. 101-647, 42 U.S.C. 13041.
(3) Suitability standards to ensure that individuals have not acted in a manner that places others at risk or raised questions about their trustworthiness, as mandated by 5 CFR part 731.
(b) The Act requires that Tribes or Tribal organizations who receive funds under the Indian Self-Determination and Education Assistance Act (ISDEA), Pub. L. 93-638, employ individuals in positions involving regular contact with or control over Indian children only if the individuals meet standards of character no less stringent than those prescribed under these regulations. Thus, the minimum standards of character as defined in these regulations will become the basis for Tribes or Tribal organizations to use when developing their own minimum standards of character that cannot be less stringent than as prescribed herein.
In enacting the Indian Child Protection and Family Violence Prevention Act, (the “Act”) the Congress recognized there is no resource more vital to the continued existence and integrity of Indian Tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of, or are eligible for membership in, an Indian Tribe. The minimum standards of character as prescribed by the regulations in this subpart are intended to ensure that Indian children are protected.
(a) Persons in the competitive or excepted service (including temporary employment), the Commissioned Corps, or the Senior Executive Service in the IHS;
(b) Persons who perform service for or under the supervision of the IHS while being permanently assigned to another IHS office or to another organization, such as a Federal agency, State, or Tribe;
(c) Persons who volunteer to perform services in IHS facilities;
(d) Persons who contract with the IHS to perform services in IHS facilities.
(a) The IHS must compile a list of all authorized positions with duties and responsibilities that involve regular contact with or control over Indian children; investigate the character of each individual who is employed or is being considered for employment in such a position; and prescribe minimum standards of character that each individual must meet to be appointed or employed in such positions.
(b) All Indian Tribes or Tribal organizations receiving funds under the authority of the ISDEA must identify those positions that permit regular contact with or control over Indian children; conduct an investigation of the character of each individual who is employed or is being considered for employment in a position that involves regular contact with or control over Indian children; and employ only individuals who meet standards of character that are no less stringent than those prescribed by regulations in this subpart.
The minimum standards of character shall mean a benchmark of moral, ethical, and emotional strengths established by character traits and past conduct to ensure that the individual is competent to complete his/her job without harm to Indian children. In order to protect Indian children, the IHS has established minimum standards of character requiring completion of a satisfactory background investigation that ensures that no individuals who have been found guilty of, or entered a plea of nolo contendere or guilty to, any felonious offense or any of two or more misdemeanor offenses under Federal, State, or Tribal law involving crimes of violence; sexual assault, molestation, exploitation, contact, or prostitution; crimes against persons; or offenses committed against children, are placed in positions involving regular contact with or control over Indian children.
The minimum standards of character shall be considered met only after the individual has been the subject of a satisfactory background investigation. The background investigation shall include a review of:
(a) The individual's trustworthiness, through inquiries with the individual's references and places of employment and education;
(b) A criminal history background check, which includes a fingerprint check through the Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI), under procedures approved by the FBI, and inquiries to State and Tribal law enforcement agencies for the previous five years of residence listed on the individual's application; and
(c) A determination as to whether the individual has been found guilty of or entered a plea of nolo contendere or guilty to any felonious offense or any of two or more misdemeanor offenses under Federal, State, or Tribal law involving crimes of violence; sexual assault, molestation, exploitation, contact, or prostitution; crimes against persons; or offenses committed against children.
All convictions or pleas of nolo contendere or guilty to should be considered in making a determination unless a pardon, expungement, set aside or other court order reaches the plea of guilty, plea of nolo contendere, or the finding of guilt.
(a) All Federal employees are subject to suitability criteria contained in 5 CFR part 731 as a condition of employment.
(b) Section 231 of the Crime Control Act of 1990, Pub. L. 101-647, 42 U.S.C. 13041, provides that an individual may be disqualified from consideration or continuing employment if such individual has been convicted of a sex crime, an offense involving a child victim or a drug felony, or any other crime if such conviction bears on an individual's fitness to have responsibility for the safety and well-being of children.
(c) Tribes or Tribal organizations may but are not required to apply additional criteria in determining whether an individual is suitable for a position with duties and responsibilities that involve regular contact with or control over Indian children. Any additional suitability criteria established by Tribes or Tribal organizations beyond the minimum standards of character described in § 136.405 and § 136.406 would be determined by each individual Tribe or Tribal organization in accordance with its own personnel policies and procedures.
(a) All positions that allow an individual regular contact with or control over Indian children are subject to a background investigation and determination of eligibility for employment. The IHS has compiled a list of positions within the agency in which the duties and responsibilities could involve regular contact with or control over Indian children. The list will be periodically updated and made available at all IHS Personnel Offices upon request. Positions should be reviewed on a case-by-case basis to determine whether the individual in that position has regular contact with or control over Indian children.
(b) Tribes and Tribal organizations may use the list compiled by the IHS or develop their own procedures to determine within their program those positions that involve regular contact with or control over Indian children.
(a) The IHS must use the Office of Personnel Management (OPM) to conduct background investigations for Federal employees. The IHS must designate qualified security personnel to adjudicate the results of background investigations.
(b) Indian Tribes and Tribal organizations may conduct their own background investigations, contract with private firms, or may request that a Federal or State agency conduct investigations. (FBI criminal history record information, however, may only be received or evaluated by governmental agencies, including Tribes or Tribal organizations as defined in these regulations at § 136.403, and may not be disseminated to private entities.)
Yes, in conducting background investigations and adjudicating eligibility for employment in Tribal positions that allow regular contact with or control over Indian children, Indian Tribes or Tribal organizations may, but are not required to, adopt portions of the
(a) Applications for employment with the IHS must include the following questions:
(1) Has the individual been arrested or charged with a crime involving a child? If yes, the individual must provide the date, explanation of the violation, disposition of the arrest or charge, place of occurrence, and the name and address of the police department or court involved.
(2) Has the individual ever been found guilty of, or entered a plea of nolo contendere or guilty to, any felonious or misdemeanor offense, under Federal, State, or Tribal law involving crimes of violence; sexual assault, molestation, exploitation, contact, or prostitution; crimes against persons; or offenses committed against children? If yes, the individual must provide an explanation of the violation, place of occurrence, date and disposition of the court proceeding, and the name and address of the police department or court involved.
(b) The IHS must require that the individual sign, under penalty of perjury, a statement verifying the truth of all information provided in the employment application and acknowledging that knowingly falsifying or concealing a material fact is a felony that may result in fines up to $10,000 or five years imprisonment, or both.
(c) The IHS must inform the individual that a criminal history record check is a condition of employment and require the individual to consent in writing to a criminal history record check.
(a) The IHS must comply with all policies, procedures, criteria, and guidance contained in other appropriate guidelines, such as the OPM policies, procedures, criteria, and guidance. Questions asked in § 136.412 will be added as an addendum to item #16 of the OPM Optional Form 306, “Declaration for Federal Employment.” The information is collected as part of the OPM Optional Form 306 and is safeguarded in accordance with Privacy Act provisions.
(b) Indian Tribes and Tribal organizations must comply with the privacy requirements of the Federal, State, or other Tribal agency providing the background investigations. Indian Tribes and Tribal organizations may establish their own procedures that safeguard information derived from background investigations.
(a) Adjudication is the process IHS uses to determine eligibility for placement or retention of individuals in positions involving regular contact with Indian children. The adjudication process protects the interests of the employer and the right of applicants and employees. Adjudication requires uniform evaluation to ensure fair and consistent judgment.
(b) Each case is judged on its own merits. All available information, both favorable and unfavorable, should be considered and assessed in terms of accuracy, completeness, relevance, seriousness, overall significance, and how similar cases have been handled in the past.
(c) The adjudicating official who conducts the adjudication must first have been the subject of a favorable background investigation.
(d) Each adjudicating official must be thoroughly familiar with all laws, regulations, and criteria involved in making a determination for eligibility.
(e) The adjudicating official must review the background investigation to determine the character, reputation, and trustworthiness of the individual. At a minimum, the background investigation must:
(1) Review each security investigation form and employment application and compare the information provided.
(2) Review the results of written record searches requested from local law enforcement agencies, former employers, former supervisors, employment references, and schools.
(3) Review the results of the fingerprint charts maintained by the FBI or other law enforcement information maintained by other agencies.
(4) Review any other information obtained through a background investigation, including the results of searches by State human services agencies, the OPM National Agency Check and Inquiries, the OPM Security/Suitability Investigations Index, and the Defense Clearance and Investigations Index.
(5) Determine whether the individual has been found guilty of, or entered a plea of nolo contendere or guilty to, any felonious offense, or any of two or more misdemeanor offenses under Federal, State, or Tribal law, involving crimes of violence; sexual assault, molestation, exploitation, contact, or prostitution; crimes against persons; or offenses committed against children.
(f) After an opportunity has been afforded the individual to respond, pursuant to § 136.415, and it is adjudicated that the individual has been found guilty of or entered a plea of nolo contendere or guilty to an enumerated offense under paragraph (e)(5) of this section, that individual shall not be placed or retained in a position involving regular contact with or control over Indian children.
(g) For individuals who have been determined to be ineligible for employment in positions having regular contact with or control over Indian children, the IHS may use Federal adjudicative standards to certify that an individual is suitable for employment in a position, if available, that does not involve regular contact with or control over Indian children. The adjudicating official must determine that the individual's prior conduct will not interfere with the performance of duties and will not create a potential risk to the safety and well-being of any Indian children after consideration of the following factors:
(1) The nature and seriousness of the conduct in question.
(2) The recency and circumstances surrounding the conduct in question.
(3) The age of the individual at the time of the incident.
(4) Societal conditions that may have contributed to the nature of the conduct.
(5) The probability that the individual will continue the type of behavior in question.
(6) The individual's commitment to rehabilitation and a change in the behavior in question.
(7) The degree of public trust and the possibility the public would be placed at risk if the individual is appointed to the position.
(a) The individual must be provided an opportunity to explain, deny, or refute unfavorable and incorrect information gathered in an investigation, before the adjudication is final. He/she should receive a written summary of all derogatory information and be informed of the process for explaining, denying, or refuting unfavorable information.
(b) The adjudicating officials must not release the actual background investigative report to an individual. However, they may issue a written summary of the derogatory information.
(c) The individual who is the subject of a background investigation may
(d) The results of an investigation cannot be used for any purpose other than to determine eligibility for employment in a position that involves regular contact with or control over Indian children.
(e) Investigative reports contain information of a highly personal nature and must be maintained confidentially and secured in locked files. Investigative reports must be seen only by those officials who, in performing their official duties, need to know the information contained in the report.
The IHS must deny employment to an individual or dismiss an employee, when the duties and responsibilities of the position the individual person would hold or holds involve regular contact with or control over Indian children, and it has been adjudicated, pursuant to § 136.414 and § 136.415, that the individual has been found guilty of, or entered a plea of guilty or nolo contendere to, any felonious offense, or any of two or more misdemeanor offenses, under Federal, State or Tribal law involving a crime of violence; sexual assault, molestation, exploitation, contact, or prostitution; crimes against persons; or offenses committed against children. The IHS has the discretion to place such an individual in a position, if available, that does not involve regular contact with or control over Indian children, if a determination has been made that such placement would not put Indian children at risk and the individual would be able to perform the duties and responsibilities of this position.
Pursuant to section 231 of the Crime Control Act of 1990, Pub. L. 101-647, 42 U.S.C. 13041, as amended by Pub. L. 102-190, the IHS may hire provisionally individuals as defined in these regulations, prior to the completion of a background investigation if, at all times prior to receipt of the background investigation during which children are in the care of the individual, the individual is within the sight and under the supervision of a staff person and a satisfactory background investigation has been completed on that staff person.
(a) The IHS may deny the applicant employment until the charge has been resolved. (b) The IHS may deny the employee any on-the-job contact with children until the charge is resolved.
(c) The IHS may detail or reassign the employee to other duties that do not involve regular contact with children.
(d) The IHS may place the employee on indefinite suspension, in accordance with statutory and regulatory requirements, until the court has disposed of the charge.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
The NMFS is amending the regulations that implement the Atlantic Large Whale Take Reduction Plan (ALWTRP), specifically with regard to the straight set of gillnets in the southeast U.S. restricted area in waters off the coasts of Georgia and Florida. This final rule prohibits straight sets of gillnets at night from November 15 through March 31, annually, to reduce the risk of entanglement of large whales, including the western North Atlantic right whale (right whale).
This final rule is effective October 23, 2002.
Copies of the Environmental Assessment (EA), the Regulatory Impact Review (RIR), and the Regulatory Flexibility Act (RFA) analysis are available from Protected Resources Division, NMFS /Southeast Region, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432. ALWTRP Compliance guide, Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and a progress report on implementation of the ALWTRP may be obtained by writing to Diane Borggaard, NMFS /Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930 or to Katie Moore, NMFS/Southeast Region, 9721 Executive Center Dr., St. Petersburg, FL 33702-2432. Copies of the EA, the RIR, and the RFA analysis can also be obtained from the ALWTRP Web site listed under the Electronic Access portion of this document. A copy of the most recent Stock Assessment Report (SAR) can be obtained by writing to Richard Merrick, 166 Water St., Woods Hole, MA 02543 or can be downloaded from the NMFS Protected Resources Web site listed under the Electronic Access portion of this document.
Katie Moore, NMFS, Southeast Region, 727-570-5312; Diane Borggaard, NMFS, Northeast Region, 978-281-9145; or Patricia Lawson, NMFS, Office of Protected Resources, 301-713-2322. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.
Several of the background documents for this final rule and the take reduction planning process can be downloaded from the ALWTRP Web site:
This final rule implements approved modifications contained in the ALWTRP recommended by the ALWTRT to satisfy the requirements of the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). Details concerning the justification for and development of this rule were provided in the preamble to the proposed rule (66 FR 14690, March 27, 2002) and are not repeated here.
The proposed rule provided a 60-day public comment period to provide feedback to NMFS via postmarked mail or via facsimile. NMFS also issued a press release announcing the availability of the proposed rule and
This final rule prohibits the straight set of gillnets at night from November 15 through March 31, annually, in the southeast U.S. restricted area, (unless the exemption under 50 CFR 229.32(f)(3)(iii), which relates to shark gillnets, applies). This final rule regulates the MMPA's List of Fisheries (LOF) definition for the Southeast Atlantic gillnet fishery which includes any type of gillnet gear for any species (except shark gillnetting effort using 5-inch (12.7-cm) or greater stretched mesh south of the North Carolina/Georgia border) in waters south of a line extending due east of the fishery management council demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105). The southeast U.S. restricted area consists of those waters from 27°51′ N. lat. (near Sebastian Inlet, FL) to 32°00′ N. lat. (near Savannah, GA) extending from the shore outward to 80° W long. Night means any time between one-half hour before sunset and one-half hour after sunrise, as per the ALWTRP (50 CFR 229.2). The gillnet gear is fished as strikenets or straight sets. Fishing with strikenet gear means a gillnet that is designed so that, when it is deployed, it encircles or encloses an area of water either with the net or by utilizing the shoreline to complete encirclement or to fish with such a net and method. A straight set is the deployment of a gillnet in a straight line, as opposed to the deployment of a gillnet in a circular manner, for example, around a school of fish. Both deployment types are currently fished in the proposed management area, the southeast U.S. restricted area, which includes a nursery area for right whale mothers and calves.
Right whales generally occur in the southeast U.S. restricted area from around November 15 through March 31, annually. Within the time period and geographical area in which the right whale is known to have become entangled, a prohibition would afford additional protection to the concentrations of right whales. NMFS believes straight set gillnets deployed during daytime are of very minimal threat to whales. Such gear is retrieved within about one-half hour of every set; thus, the fisher would be on-site in the possible event of an entanglement, and could subsequently contact the disentanglement network for action. Straight sets at night pose a higher level of risk of entanglement to whales than strike sets or straight sets during the day, because fishers are not as actively involved with straight set gear (in comparison to the strike set method used in southeast Atlantic waters), and whales are much more difficult to spot at night due to darkness. Through this final rule, NMFS aims to reduce the potential for the entanglement of right whales in straight set gillnet gear. Due to the gear restrictions, the final rule will also reduce the likelihood of effort influx into the fishery in the future, thereby further reducing the potential likelihood of entanglements.
Figure 1 shows the boundaries for the southeast U.S. restricted area. Currently the Southeast U.S. shark gillnet fishery is regulated using these boundaries (50 CFR 229.32 (f)(1)).
NMFS received eight sets of written comments on the proposed rule by the May 28, 2002, deadline. The comments were considered in developing this final rule to amend the regulations that implement the ALWTRP and are responded to here.
NMFS has the authority to regulate U.S. waters for ESA listed species such as leatherback turtles; however, NMFS does not believe at this point in time that an expansion of the gillnet restriction area, as defined by this final rule, is warranted for leatherback turtles or sharks. Furthermore, this would be an inappropriate rationale for action on a rule implementing take reduction provisions under the MMPA.
Available data do not demonstrate that the fishing behavior or methodology restricted by this final rule (straight set gillnets at night) is utilized
NMFS believes the current definition of “night” used in this final rule takes into consideration stakeholders' economic concerns and does not result in substantial economic impact sufficient to warrant changing the definition of night as requested.
Two comments were received after the close of the public comment period. Since the comments reflected unique thoughts not previously identified during the public comment period, NMFS has chosen to respond to them.
Under the MMPA's LOF, there are two types of gillnet gear categorized in the southeast United States: Southeast Atlantic Gillnet and Southeastern U.S. Atlantic Shark Gillnet. NMFS currently has restrictions on the Southeastern U.S. Atlantic Shark Gillnet Fishery which has been defined in 50 CFR 229.32 as any gillnets which fish in waters south of the South Carolina/Georgia border with webbing of 5 inches (12.7 cm) or greater stretched mesh.
Under the ESA, additional whale conservation measures were required for gillnet gear which did not have adequate management restrictions in place to reduce the likelihood of whale entanglement. Therefore, through the proposed rule, NMFS proposed whale conservation measures for the Southeast Atlantic Gillnet Fishery which includes any type of gillnet gear for any species (except shark gillnetting effort using 5-inch (12.7 cm) or greater stretched mesh south of the South Carolina/Georgia border) in waters south of a line extending due east from the North Carolina/South Carolina border and south and east of the fishery management council demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105). Through the proposed rule and the pre-existing requirements for shark gillnetters, NMFS regulated the full suite of gillnet users in the Atlantic south of the South Carolina/Georgia border. Further descriptions in the subject rule to differentiate the two fisheries beyond their current LOF definitions may inadvertently exclude a part of the gillnet fishery population which this regulation is attempting to address. Therefore, NMFS does not believe that further gear descriptions are necessary. NMFS will take this recommendation into advisement during future LOF actions to ensure that fishery descriptions are clear.
This final rule does not include a collection-of-information requirement subject to the Paperwork Reduction Act.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this final rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The basis for this certification follows:
The MMPA provides the statutory basis for the rule. The final rule would prohibit the use of straight set gillnets in the southeast U.S. restricted area at night from November 15 through March 31, annually, unless the fishing activity was exempted under 50 CFR 229.32(f)(3)(iii), which pertains to fishing for sharks with strikenet gear. Strikenet gear is exempt if no nets are set at night or when visibility is less than 400 yards (460m), each set is made under the observation of a spotter plane, if a right, humpback, fin or minke whale
The objective of this final rule is to eliminate serious injuries or mortalities of right whales attributable to entanglements with fishing gear and takes into account the time and area during which right whale calves are born.
Available data do not demonstrate that the fishing behavior or methodology restricted by this final rule (straight set gillnets at night) is utilized to a great extent in the restricted area. Data on average trip times, landings, soak times, and vessel characteristics indicate that the fishery is primarily prosecuted as a day fishery generating less than $167 per year of gross revenues. Taking into account the number of vessels participating in the straight set gillnet fishery, vessels average less than $4 income annually, indicating that the fishery is likely of lowly economic profitability to the fleet as a whole. Virtually all recorded gillnet harvests from this area and season are attributed to runaround gillnets and not straight set gillnets. Whether spread over multiple participants or attributed to a single vessel, the economic impacts associated with this rule will not significantly reduce profits for a substantial number of small entities. Therefore, any direct economic impacts on the fishery will be minimal since the fishery does not substantially operate in the manner being restricted.
Generally, a fish-harvesting business is considered a small business if it is independently owned and operated, not dominant in its field of operation, and has annual receipts not in excess of $3.5 million. One hundred and two unique entities (vessels or persons) have reported landings in this fishery over the 1997-2000 fishing seasons. Total dockside value of commercial harvests by these entities from all fishing activities and all gears averaged from $16,000 to $24,000 per year over this period. The maximum gross revenues were less than $300,000. All of these entities are considered small business entities. Thus, business operations in this fishery consist solely of small business entities.
The determination of significant economic impact can be ascertained by examining two criteria: Disproportionality and profitability. The disproportionality question is: Do the regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? All business entities participating in the area of the South Atlantic Gillnet Fishery are considered small business entities. Thus, the issue of disproportionality does not arise in the present case.
The profitability question is: Do the regulations significantly reduce profit for a substantial number of small entities? The predominant harvest methodology in this fishery is runaround (i.e., strike) gillnets and day trips and not the methodology restricted by this document. Less than $500, or $167 per year, of reported landings from all participants over the 1997-2000 fishing seasons (1997-98, 1998-99, 1999-2000) is potentially attributable to straight set gillnets. On this basis, the Assistant General Counsel for Legislation and Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this final rule would not have a significant economic impact on a substantial number of small entities. NMFS received only one public comment relating to the economic impacts of this final rule. NMFS considered this comment before it approved this final rule, and NMFS characterized and responded to it in the “Comments and Responses” section of the preamble to this final rule, as comment/response number 6. No changes to this final rule were made as a result of the comment received. NMFS believes the economic analysis adequately characterized the impact of the proposed rule on affected fisheries and the RFA analysis and copies of the RIR are available (see
This final rule has been determined not to be significant for the purposes of Executive Order 12866.
NMFS requested consultation under section 7 of the ESA regarding the proposed action. As described in the proposed rule, the proposed action was developed to address a Reasonable and Prudent Alternative (RPA) identified in four Biological Opinions (BOs) on the multispecies, spiny dogfish, monkfish, and lobster fisheries on June 14, 2001. The objective of the RPA is to eliminate mortality and serious injuries of right whales, eliminate serious and prolonged right whale entanglements, and significantly reduce the total number of right whale entanglements. On February 7, 2002, NMFS concluded that since the proposed action would implement an RPA under existing BOs, the action did not warrant further analysis under the ESA at that time. NMFS stated that the issuance of the proposed action does not change the basis for the finding of the June 14, 2001, BOs; instead, the rule directly addresses the gear restriction RPA from those findings.
NMFS requested an Essential Fish Habitat (EFH) review of the proposed action and received a determination that the proposed gillnet restrictions would not adversely affect EFH of species managed by the NMFS or the South Atlantic Fishery Management Council.
NMFS has determined that the final action is consistent to the maximum extent practicable with the coastal zone management programs of those affected Atlantic coastal states that have approved coastal zone management programs: Georgia and Florida. The proposed rule, RIR, RFA analysis, and EA were submitted to the responsible state agencies for their review under section 307 of the Coastal Zone Management Act. Florida concurred that the proposed action is consistent to the maximum extent practicable with their applicable CZMA regulations.
The Georgia Coastal Management Program (GCMP) objected to NMFS' determination that the amendment to the ALWTRP is consistent to the maximum extent practicable with the enforceable policies of the GCMP, pursuant to 15 CFR part 930, subpart C. NMFS is required by law to rely on the best scientific information available to develop fishery management actions. NMFS believes a complete gillnet prohibition, as suggested by Georgia, would be in direct conflict with several of NMFS' statutory obligations because there is not sufficient documented evidence at this time to justify the gillnet prohibition. Therefore, current statutory obligations restrict NMFS' ability to be fully consistent with the GCMP, and the proposed action remains the legally appropriate decision at this time.
NMFS shares Georgia's concern regarding bycatch and bycatch mortality rates in gillnet fisheries and continues to dedicate resources to evaluate the degree to which gillnet fisheries affect protected species. NMFS encourages Georgia and all coastal states to submit data collected through state activities, and NMFS will continue to work with Georgia to address the issues with gillnet fisheries in Federal waters off the coasts of Georgia and Florida.
NMFS prepared a draft EA for the proposed action, as described in the proposed rule. NMFS did not receive any comments on the EA during the public comment period. The Assistant Administrator for Fisheries, NOAA has determined, based on an EA prepared under the National Environmental Policy Act (NEPA), that implementation of these regulations would not have a significant impact on the human environment. As a result of this determination, an environmental impact
This final rule contains policies with federalism implications that were sufficient to warrant preparation of a federalism summary impact statement under Executive Order 13132. Accordingly, the Assistant Secretary for Legislative and Intergovernmental Affairs provided notice of the proposed action to the appropriate officials of the affected state and local governments through a letter mailed to those officials in April 2002. Specifically, the letter was sent to the state of Florida and Georgia. The letter described NMFS' position supporting the need to issue the regulation, specifically the need to reduce the risk of entanglement of large whales, including right whales. The state and local officials did not raise any concerns in direct response to the April 2002 letter.
Administrative practice and procedure, Confidential business information, Fisheries, and Marine mammals.
For the reasons set out in the preamble, the National Marine Fisheries Service amends 50 CFR part 229 as follows:
1. The authority citation for part 229 continues to read as follows:
Authority: 16 U.S.C. 1371
1. In § 229.3, paragraph (k) is revised to read as follows:
(k) It is prohibited to fish with gillnet gear in the areas and for the times specified in § 229.32(f)(1) through (f)(4), unless the gear or the person with gillnet gear complies with the gear marking requirements specified in § 229.32(f)(2), the requirements for observer coverage as specified in § 229.32(f)(3), and the closures, requirements, and other restrictions as specified in § 229.32(f)(4).
(f)
(3) Observer requirement. No person may fish with shark gillnet gear in the southeast U.S. observer area from November 15 through March 31 of the following year unless the operator of the vessel calls the SE Regional Office in St. Petersburg, FL not less than 48 hours prior to departing on any fishing trip in order to arrange for observer coverage. If the Regional Office requests that an observer be taken on board a vessel during a fishing trip at any time from November 15 through March 31 of the following year, no person may fish with shark gillnet gear aboard that vessel in the southeast U.S. observer area unless an observer is on board that vessel during the trip.
(4)
(ii)
(iii)
(iv)
(A) No nets are set at night or when visibility is less than 500 yards (460m).
(B) Each set is made under the observation of a spotter plane.
(C) No net is set within 3 nautical miles of a right, humpback, fin or minke whale.
(D) If a right, humpback, fin or minke whale moves within 3 nautical miles of the set gear, the gear is removed immediately from the water.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Atlantic bluefin tuna retention limit adjustments.
NMFS has determined that the Atlantic bluefin tuna (BFT) General category daily retention limit should be adjusted in order to allow for maximum utilization of the General category September time-period subquota. Therefore, NMFS increases the daily retention limit to two large medium or giant BFT through September 30, 2002. Additionally, NMFS adjusts the BFT daily retention limit for vessels participating in the recreational fishery that are permitted in the Atlantic Highly Migratory Species (HMS) Charter/Headboat category and that are licensed by the U.S. Coast Guard (USCG) to carry more than six passengers. The daily retention limit for these vessels is adjusted to one BFT per angler, up to a maximum of 20 per vessel through October 31, 2002. These actions are being taken to provide increased fishing opportunities in all areas without risking overharvest of the quotas established for the respective categories.
The BFT General category daily retention limit adjustment is effective September 20, 2002 through September 30, 2002.
The daily retention limit for vessels permitted in the HMS Charter/Headboat category, and licensed by USCG to carry more than six passengers, is effective September 20, 2002 through October 31, 2002.
Brad McHale, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
Under § 635.23 (a)(4), NMFS may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel to allow for maximum utilization of the quota for BFT. Based on a review of dealer reports, daily landing trends, and the availability of BFT on the fishing grounds, NMFS has determined that an increase of the daily retention limit for the second half of September is appropriate and necessary to allow full use of the September subquota. Therefore, NMFS adjusts the General category daily retention limit through September 30, 2002, to two large medium or giant BFT per vessel.
The intent of this adjustment is to allow for maximum utilization of the General category subquota for the September time-period (specified under 50 CFR 635.27(a)) by General category participants in order to help achieve optimum yield in the General category fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the HMS FMP.
A recommendation of ICCAT requires that NMFS limit the catch of school BFT to no more than 8 percent by weight of the total domestic landings quota over each 4-consecutive-year period. NMFS is implementing this ICCAT recommendation through annual and inseason adjustments to the school BFT retention limits, as necessary, and through the establishment of a school BFT reserve (64 FR 29090, May 28, 1999; 64 FR 29806, June 3, 1999).
Under § 635.23(b)(3), NMFS may increase or reduce the recreational angler retention limit for any size class BFT or may change an angler limit to vessel trip limit or vice versa. Size class categories of BFT are defined as follows: School size BFT measure 27 to less than 47 inches (69 to less than 119 cm) curved fork length (CFL); large school BFT measure 47 to less than 59 inches (119 to less than 150 cm) CFL; small medium BFT measure 59 to less than 73 inches (150 to less than 185 cm) CFL; large medium BFT measure 73 to less than 81 inches (185 to less than 206 cm) CFL; and giant BFT measure 81 inches or greater (206 cm or greater) CFL.
Regulations at 50 CFR 635.23(b) restrict vessels fishing under the BFT Angling category quota to one BFT per vessel per day, which may be from the school, large school, or small medium category and, in addition, one large medium or giant BFT per vessel per year. This retention limit is subject to inseason adjustment to provide for maximum utilization of the quota and enhanced fishing opportunities over the range of the recreational fisheries. NMFS had issued an adjustment notice on June 11, 2002 ( 67 FR 39869 ) to allow vessels fishing under the Angling category quota a total of four BFT per day, measuring 27 to less than 73 inches CFL, effective June 11, 2002, through October 31, 2002.
Over the last several years, NMFS has received comments that a retention limit of three or four BFT per vessel per day does not provide reasonable fishing opportunities for headboats, which may carry up to 40 passengers on a tuna fishing trip. In order to increase fishing and data collection opportunities in all sectors of the recreational BFT fishery, NMFS is implementing an alternative retention limit for headboats in the 2002 fishing year. NMFS set a differential retention limit for headboats in 2001 and received favorable comments on that action. For headboats, defined as vessels that possess an Atlantic HMS Charter/Headboat category permit and that are inspected and licensed by the Coast Guard to carry more than six passengers, the daily retention limit through October 31, 2002, is adjusted to one BFT per passenger (not including Captain and crew) in any combination of the school, large school or small medium size classes, with a maximum of 20 fish per vessel. NMFS selected the daily retention limit and the duration of the daily retention limit adjustment after examining past catch and effort rates and the available quota for the 2002 fishing year.
From November 1, 2002 through May 31, 2003, the daily retention limit for all vessels fishing under the Angling category quota will be one large school or small medium BFT per vessel. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that an interim closure or an additional retention limit adjustment is necessary to enhance scientific data collection from, and fishing opportunities in, all geographic areas. Additionally, NMFS may determine that an allocation from the school BFT reserve is warranted to further fishery management objectives. Closures or subsequent adjustments to the daily retention limit, if any, will be announced through publication in the
NMFS will continue to monitor the Angling category fishery closely through the Automated Landings Reporting System, the state harvest tagging programs in North Carolina and Maryland, and the Large Pelagic Survey. All BFT landed under the Angling category quota must be reported within 24 hours of landing to the NMFS Automated Landings Reporting System via toll-free phone at (888)872-8862; or the Internet (
Anglers aboard permitted vessels may continue to tag and release BFT of all sizes under a tag-and-release program, provided the angler tags all BFT so caught, regardless of whether previously tagged, with conventional tags issued or approved by NMFS, returns such fish to the sea immediately after tagging with a minimum of injury, and reports the tagging, and, if the BFT was previously tagged, the information on the previous tag (50 CFR 635.26).
These actions are taken under 50 CFR 635.23(a)(4) and under 50 CFR 635.23(b)(3) and are exempt from review under Executive Order 12866.
16 U.S.C. 971
Farm Credit Administration (FCA).
Advance notice of proposed rulemaking (ANPRM).
The Farm Credit Administration (FCA or agency) is considering whether regulatory changes are needed to enhance the Farm Credit System's (System) service to young, beginning, and small farmers, ranchers, and producers or harvesters of aquatic products (YBS farmers and ranchers) and the agency's measurement and reporting of the System's YBS activities and performance.
You may send us comments by December 23, 2002.
Send us your comments by electronic mail to or through the Pending Regulations section of our Web site,
Samuel R. Coleman, CFA, Senior Policy Analyst, Office of Policy and Analysis, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4498, TTY (703) 883-4434; or, Wendy R. Laguarda, Senior Counsel, Office of General Counsel, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4020, TTY (703) 883-2020.
To ensure that the System accommodates the current and evolving needs of YBS farmers and ranchers for credit and closely related services, we seek comments in this ANPRM on ways to:
1. Develop clear, meaningful, and results-oriented guidelines for System YBS policies and programs;
2. Effectively measure the System's YBS performance to ensure that the System is fulfilling its YBS statutory mission; and
3. Provide adequate reporting and disclosure to the public on the System's compliance with its statutory YBS mission.
The FCA's mission is to promote a safe and sound, competitive System to finance agriculture and rural America as authorized by Congress. The System has a special public purpose concerning YBS farmers and ranchers. Since 1980, Congress has required the System to prepare programs for furnishing sound and constructive credit and related services to YBS farmers and ranchers. Specifically, section 4.19(a) of the Farm Credit Act of 1971, as amended (Act) states:
Under policies of the district Farm Credit Bank board, each Federal land bank association and production credit association
Even before the issuance of the Act and its 1980 amendments, the System had been serving all categories of YBS farmers and ranchers. The agency believes the System's continued success at serving all three categories, “young,” “beginning,” and “small” farmers and ranchers is crucial to a future generation of farmers and ranchers and a strong agricultural economy.
In 1998, the FCA Board adopted a policy statement that called for a renewed commitment by the System to YBS lending, provided guiding principles for enhanced service to YBS farmers and ranchers, and revised definitions for “young,” “beginning,” and “small” farmers and ranchers.
Since 1999, YBS lending programs have been a “focus area” of agency examinations where, among other factors, the agency has looked at the System's YBS board policies and procedures; YBS credit enhancement programs and underwriting standards; YBS coordination with Federal, state, System or other credit sources; demographic studies; marketing, advertising, and other outreach programs; and the quality of YBS reporting to System boards and FCA.
In addition to this examination focus area, the FCA Board and staff have advocated greater attention on the System's mission to serve YBS farmers and ranchers. For example, the agency recently recognized several System associations for their successful YBS programs.
On March 8, 2002, the General Accounting Office (GAO) issued a report on the FCA's oversight of the System's mission to serve YBS farmers and ranchers.
1. Promulgating a regulation that outlines specific activities and standards that constitute an acceptable program to implement the YBS statutory requirement;
2. Ensuring that examiners follow the guidance and complete the appropriate examination procedures related to YBS, and adequately document the work performed and conclusions drawn during examinations; and
3.Publicly disclosing the results of the examinations for YBS compliance for individual System associations.
In its response to Congress, the FCA noted its commitment to address the issues raised in the GAO report. Seeking public input through an ANPRM is a valuable step in ensuring that the System designs comprehensive YBS policies and programs that have a realistic and reasonable likelihood of success.
1. What type of guidelines should FCA implement for YBS policies and programs? In your comments to this question, please consider whether:
a. FCA should make regulatory or policy changes to enhance YBS policies and programs;
b. Guidelines should require YBS programs to include both quantitative (such as YBS loan volume and portfolio percentage goals) and qualitative (such as YBS marketing and outreach strategies, special credit and related services programs, and joint YBS efforts) performance goals;
c. Guidelines should be different for each YBS category—that is, different guidelines for “young,” “beginning,” and “small” farmers and ranchers;
d. FCA should require YBS programs to include special credit treatment for YBS loans (including guarantors, concessionary underwriting standards, loan fees, interest rates, and differential loan covenants);
e. In addition to its recent recognition of successful YBS programs, FCA should provide incentives, regulatory or otherwise, to the System to promote YBS programs;
f. The System currently offers appropriate related services, such as farm business consulting, record keeping, insurance, and tax planning and preparation services to YBS farmers and ranchers;
g. Certain types of marketing and outreach activities most help promote YBS programs;
h. Certain types of System partnerships, alliances, or other joint efforts most help promote YBS programs; and
i. The System should more effectively use Other Financing Institutions (OFIs), the Federal Agricultural Mortgage Corporation (Farmer Mac), loan participations, loan guarantees, specialized risk pools under § 614.4165(c) of our regulations, and Federal, state, or private programs to promote YBS programs within each System association's risk-bearing capacity.
2. How should FCA measure the System's YBS performance? In your comments to this question, please consider whether:
a. FCA should establish a formal rating system for YBS performance similar to the agency's current Financial Institution Rating System (FIRS). If so, what rating components should we include in such a system and should we weigh each component equally?;
b. The data currently available to assess YBS market penetration in System territories adequately and accurately measures the number of YBS farmers and ranchers in the territory. If not, what meaningful alternative data is available?;
c. The data collected by the agency should focus on the “borrowers” or “loans” when measuring each category of YBS farmers and ranchers;
d. FCA should require System associations to conduct demographic studies and develop strategies to address inconsistencies between the YBS market in their lending area and their penetration of that market; and
e. FCA should take into account the demographics of a System association's territory in rating YBS performance.
3. How should FCA report and publicly disclose the System's YBS performance? In your comments to this question, please consider whether:
a. The data that FCA currently collects from the System accurately portrays the System's YBS performance. If not, what additional or alternative data should the agency collect from the System? For example, should FCA require the System to report the number and amount of YBS loans made by OFIs, made through loan participations, made through risk pools created under § 614.4165(c) of our regulations, or made through alliances, joint ventures, or other joint efforts with System or non-System entities?;
b. FCA should require the System to report the number and volume of YBS loans sold to Farmer Mac, other secondary market entities, or non-System lenders;
c. FCA should require the System to report the number and type of related services that YBS farmers and ranchers are using, as well the success or lack of success of individual related services programs (currently, the agency only requires the reporting of the types of related services offered);
d. FCA should require the System to report the types of, and costs associated with, YBS educational programs, technical assistance programs, marketing and outreach activities, and coordinated programs in which YBS farmers and ranchers have participated, as well the success or lack of success of individual programs (currently, the agency only requires the reporting of the types of programs offered);
e. FCA should require the System to separately report loan performance information on each category of YBS farmer and rancher loans;
f. FCA should make available to the public the YBS reports of each System bank and association and the agency's examination results of YBS performance; and
g. FCA should require the System to include YBS performance reports and the agency's examination results of YBS performance in quarterly or annual reports to shareholders or would other disclosure methods be more effective.
The agency welcomes any other comments you may have for us to consider in developing guidelines for System YBS policies and programs. We thank you for your comments.
The FCA may also conduct public meetings at some future date to solicit information from the public on ways to enhance the System's service to YBS farmers and ranchers. If such meetings are planned, the agency will provide public notice through the
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model MD-90-30 airplanes. This proposal would require a one-time inspection for chafing of the RDB wire bundle against the automatic direction finder (ADF) receiver located at the aft end of the forward right radio rack; repair or replacement, if necessary; and modification of the wire bundle. This action is necessary to prevent chafing of the RDB wire bundle against the ADF receiver, which could result in electrical arcing and consequent smoke and/or fire in the cockpit. This action is intended to address the identified unsafe condition.
Comments must be received by November 7, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-173-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-173-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-173-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received a report indicating chafing of an RDB wire bundle against the automatic direction finder (ADF) receiver located at the aft end of the forward right radio rack, due to inadequate clearance. The chafing was found on a McDonnell Douglas MD-90-30 airplane. Investigation revealed that this condition may exist on airplanes with a No. 2 ADF receiver installed adjacent to a large diameter wire bundle. The manufacturer has determined that splitting the wire bundle into two smaller bundles will minimize potential chafing. Chafing of the RDB wire bundle against the ADF receiver, if not found and fixed, could result in electrical arcing and consequent smoke and/or fire in the cockpit.
We have reviewed and approved McDonnell Douglas Alert Service Bulletin MD90-24A051, Revision 02, dated August 14, 2002, which describes procedures for a visual inspection to find chafing of the RDB wire bundle against the automatic direction finder (ADF) receiver located at the aft end of the forward right radio rack of the airplane at approximately station Y=160.000, and repair or replacement if necessary. The service bulletin also provides instructions for modification of the wire bundle by installation of three new tie mounts using new screws and clip nuts, removal of the existing tie straps and splitting the wire bundle into two separate bundles, installation of six new straps, and verification of adequate clearance between the wire bundle and the ADF receiver. Following the modification, the service bulletin specifies a return-to-service test on the ADF receiver. The service bulletin also specifies reporting inspection findings (chafing or no chafing) to the manufacturer.
The service bulletin references McDonnell Douglas Wire Diagram
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.
The service bulletin refers only to a “visual inspection” to find chafing of the RDB wire bundle, but this proposed AD would require a “general visual inspection.” Note 2 has been included in this proposed AD to define this type of inspection.
Although the service bulletin requests that operators report inspection findings of chafing or no chafing to the manufacturer after inspecting the RDB wire bundle, this proposed AD does not contain such a reporting requirement.
There are approximately 96 airplanes of the affected design in the worldwide fleet. The FAA estimates that 21 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 1 work hour per airplane to accomplish the proposed inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection proposed by AD on U.S. operators is estimated to be $1,260, or $60 per airplane.
It would take approximately 4 work hours per airplane to accomplish the proposed modification of the RDB wire bundle, at an average labor rate of $60 per work hour. Parts cost would be minimal. Based on these figures, the cost impact of the modification proposed by this AD on U.S. operators is estimated to be $5,040, or $240 per airplane.
Should an operator be required to accomplish the repair or replacement of the wire bundle, it would take approximately 2 work hours per airplane to accomplish the proposed actions, at an average labor rate of $60 per work hour. Parts cost would be minimal. Based on these figures, the cost impact of the repair or replacement proposed by this AD would be $120 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent chafing of the RDB wire bundle against the automatic direction finder (ADF) receiver, which could result in electrical arcing and consequent smoke and/or fire in the cockpit, accomplish the following:
(a) Within 6 months after the effective date of this AD, do the requirements specified in paragraphs (a)(1) and (a)(2) of this AD, per McDonnell Douglas Alert Service Bulletin MD90-24A051, Revision 02, dated August 14, 2002.
(1) Do a one-time general visual inspection for chafing of the RDB wire bundle against the ADF receiver located at the aft end of the forward right radio rack. If any chafing is found, before further flight, repair or replace the affected wire bundle.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to enhance visual access to all exposed surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(2) Modify the RDB wire bundle (including installation of three new tie mounts using new screws and clip nuts, removal of the existing tie straps and splitting the wire bundle into two separate bundles, installation of six new straps, and verification of adequate clearance between the wire bundle and the ADF receiver), and do the return-to-service test.
(b) Accomplishment of the actions specified in paragraphs (a)(1) and (a)(2) of this AD, per McDonnell Douglas Alert Service Bulletin MD90-24A051, dated October 28, 1999; or Revision 01 dated March
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Operators shall submit their 1 requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
The Federal Aviation Administration (FAA) proposes to adopt a new airworthiness directive (AD) that is applicable to Hartzell Propeller Inc. HD-E6C-3B/E13890K propellers. This proposal would require the reduction of the original hub certified service (fatigue) life from unlimited hours to 37,400 flight hours. This proposal is prompted by a reevaluation by Hartzell Propeller Inc. of the D-5108-( ) original hub service life certification calculations. The actions specified by the proposed AD are intended to prevent fatigue failure of D-5108-( ) hubs, which may result in loss of airplane control.
Comments must be received by November 22, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-45-AD, 12 New England Executive Park, Burlington, MA 01803-5299. This information may be examined, by appointment, at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA. Comments may also be sent via the Internet using the following address:
Tomaso DiPaolo, Aerospace Engineer, Chicago Aircraft Certification Office, FAA, Small Airplane Directorate, 2300 East Devon Avenue, Des Plaines, IL 60018, telephone; (847) 294-7031, fax; 847 294-7834.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-45-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-45-AD, 12 New England Executive Park, Burlington, MA 01803-5299.
As a result of an in-service occurrence of a cracked hub, Hartzell
Propeller Inc. has reevaluated the service (fatigue) life of the D-5108-( ) hub installed in the HD-E6C-3B/E13890K propeller. Hartzell has reduced the original hub certified service (fatigue) life from unlimited hours to 37,400 flight hours. Exceeding this life limit could result in fatigue failure of the hub, which may result in loss of airplane control. The 37,400 flight hour life limit is documented in the Airworthiness Limitations section of Hartzell Manual 161.
Since an unsafe condition has been identified that is likely to exist or develop on other Hartzell Propeller Inc. HD-E6C-3B/E13890K propellers of the same type design, the proposed AD would require the reduction of D-5108-( ) hub certified service (fatigue) life from unlimited hours, to 37,400 flight hours.
There are approximately 250 propellers of the affected design in the worldwide fleet. The FAA estimates that 140 propellers installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take approximately 30 work hours per propeller to do the proposed actions, and that the average labor rate is $60 per work hour. The approximate cost of a new hub is $20,000. Based on these figures, the total cost of the proposed AD on U.S. operators is estimated to be $3,052,000.
This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action”
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to the propeller identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For propellers that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent fatigue failure of Hartzell D-5108-( ) hubs, which may result in loss of airplane control, do the following:
(a) Remove from service D-5108-( ) hubs before exceeding 37,400 flight hours and replace with a serviceable hub.
(b) After the effective date of this AD, do not install any D-5108-( ) hub that has accumulated 37,400 flight hours.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Chicago Aircraft Certification Office (ACO). Operators must submit their request through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Chicago ACO.
(d) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be done.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Kansas regulatory program (Kansas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Kansas proposes to revise its regulatory program by updating its adoption by reference of applicable portions of 30 CFR part 700 to End from the July 1, 1995, version to the July 1, 2001, version. Kansas intends to revise its program to be consistent with the corresponding Federal regulations.
This document gives the times and locations that the Kansas program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4 p.m., c.d.t., October 23, 2002. If requested, we will hold a public hearing on the amendment on October 18, 2002. We will accept requests to speak at a hearing until 4 p.m., c.d.t. on October 8, 2002.
You should mail or hand deliver written comments and requests to speak at the hearing to John W. Coleman, Mid-Continent Regional Coordinating Center, at the address listed below.
You may review copies of the Kansas program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Mid-Continent Regional Coordinating Center.
John W. Coleman, Mid-Continent Regional Coordinating Center. Telephone: (618) 463-6460. Internet:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things,“* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kansas program on January 21, 1981. You can
By e-mail dated July 24, 2002 (Administrative Record No. KS-623), Kansas sent us an amendment to its program under SMCRA (30 U.S.C. 1201
Kansas proposes to update its adoption by reference of applicable sections of 30 CFR part 700 to End from the July 1, 1995, version to the July 1, 2001, version and to revise terms and cross-references, as required.
In paragraph (a)(4), Kansas proposes to add the address of the Federal Register Library.
In paragraph (c)(2), Kansas proposes to update the address of the administrative appeals section of the Kansas Department of Health and Environment.
Kansas proposes to designate the existing paragraph as paragraph (a) and to add new paragraphs (b) through (f) to read as follows:
(b) Permits with variances granted in accordance with K.A.R. 47-3-42(a)(41), variances for delay in contemporaneous reclamation requirement in combined surface and underground mining activities, shall be reviewed no later than 3 years from the date of issuance.
(c) Permits containing experimental practices issued in accordance with K.A.R. 47-3-42(a)(39) shall be reviewed as set forth in the permit or at least every 2
(d) After the review required by this section, or at any time, the Kansas department of health and environment may, by order, require reasonable revision of a permit in accordance with K.A.R. 47-6-2 to ensure compliance with the state act and the regulatory program.
(e) Any order of the Kansas department of health and environment requiring revision of a permit shall be based upon written findings and shall be subject to the provisions of administrative and judicial review in K.S.A. 49-407(d), 49-416a, 49-422a, and article 4 of chapter 47 of the Kansas administrative regulations. Copies of the order shall be sent to the permittee.
(f) Permits may be suspended or revoked in accordance with articles 5 and 15 of chapter 47 of the Kansas administrative regulations.
Kansas proposes to update the cross-references in the following sections of its regulations: K.A.R. 47-16-9. Contractor responsibility and K.A.R. 47-16-10. Exclusion of certain noncoal reclamation sites.
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.
Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (
Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: [KS-023-FOR]” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Mid-Continent Regional Coordinating Center at (618) 463-6460.
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
In this rule, the State is proposing valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights rule. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E of the preamble to that rule.
This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local governmental agencies or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
National Park Service, Interior.
Notice of meeting dates.
Notice is hereby given in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770, 5 U.S.C. App 1, section 10), of a meeting of the Negotiated Ruelmaking Advisory Committee for Off-Road Driving Regulations at Fire Island National Seashore (36 CFR 7.20).
The Committee meeting scheduled for September 13-14, 2002 has been rescheduled for November 8-9, 2002.
The meeting will begin at 9 a.m. and will be held at Dowling College, New York.
Barry Sullivan, Acting Superintendent, Fire Island National Seashore, 120 Laurel Street, Patchogue, NY 11772, 631-289-4810 (Ext. 221).
The Committee was established pursuant to the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570). The purpose of the Committee is to advise the National Park Service with regard to proposed rulemaking governing off-road vehicle use at Fire Island National Seashore. Notice of intent to establish this committee was published in 65 FR 70674-70675, November 27, 2000.
Environmental Protection Agency.
Notice of intent for partial deletion of the Rocky Mountain Arsenal National Priorities List Site from the National Priorities List; request for comments.
The Environmental Protection Agency (EPA) Region 8 announces its intent to delete the Western Tier Parcel of the Rocky Mountain Arsenal National Priorities List Site (RMA/NPL Site) On-Post Operable Unit (OU) from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This partial deletion of the RMA/NPL Site is proposed in accordance with 40 CFR 300.425(e) and Notice of Policy Change: Partial Deletion of Sites listed on the National Priorities List (November 1, 1995).
EPA bases its proposal to delete the western tier of the RMA/NPL Site on the determination by EPA and the State of Colorado, through the Colorado Department of Public Health and Environment (CDPHE), that all appropriate actions under CERCLA have been implemented to protect human health, welfare and the environment and that no further response action by responsible parties is appropriate.
This partial deletion pertains only to the western tier of the On-Post OU of the RMA/NPL Site and does not include the rest of the On-Post OU or the Off-Post OU. The rest of the On-Post OU and the Off-Post OU will remain on the NPL and response activities will continue at those OUs.
Comments concerning this proposed partial deletion may be submitted on or before October 23, 2002.
Comments may be mailed to: Catherine Roberts, Community Involvement Coordinator (8OC), U.S. EPA, Region 8, 999 18th Street, Suite 300, Denver, Colorado, 80202-2466, 1-800-227-8917 or (303) 312-6025.
Comprehensive information on the RMA/NPL Site, as well as information specific to this proposed partial deletion, is available through EPA's Region 8 Superfund Records Center in Denver, Colorado. Documents are available for viewing by appointment from 8:00 a.m. to 4:00 p.m., Monday through Friday excluding holidays by calling (303) 312-6473. The Administrative Record for the RMA/NPL Site and the Deletion Docket for this partial deletion are maintained at the Joint Administrative Records Document Facility, Rocky Mountain Arsenal, Building 129, Room 2024, Commerce City, Colorado 80022-1748, (303) 289-0362. Documents are available for viewing from 12:00 p.m. to 4:00 p.m., Monday through Friday or by appointment.
Ms. Laura Williams, Remedial Project Manager (8EPR-F), U.S. EPA, Region 8, 999 18th Street, Suite 300, Denver Colorado, 80202-2466, (303) 312-6660.
The United States Environmental Protection Agency (EPA) Region 8 announces its intent to delete the western tier parcel of the Rocky Mountain Arsenal National Priorities List (RMA/NPL) Site, Commerce City, Colorado, from the National Priorities List (NPL) and requests comment on this proposed action. The NPL constitutes Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9605. EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Site is proposed in accordance with 40 CFR 300.425(e) and Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List (60 FR 55466 (November 1, 1995)). As described in 40 CFR 300.425(e)(3), portions of a site deleted from the NPL remain eligible for further remedial actions if warranted by future conditions.
EPA will accept comments concerning its intent for partial deletion of the RMA/NPL Site for thirty days after publication of this notice in the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this proposed partial deletion. Section IV discusses the western tier of the RMA/NPL Site and explains how it meets the deletion criteria.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate to protect public health or the environment. In making such a determination pursuant to section 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
Section 300.425(e)(1)(i). Responsible parties or other persons have implemented all appropriate response actions required; or
Section 300.425(e)(1)(ii). All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
Section 300.425(e)(1)(iii). The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking remedial measures is not appropriate.
A partial deletion of a site from the NPL does not affect or impede EPA's ability to conduct CERCLA response activities for portions not deleted from the NPL. In addition, deletion of a portion of a site from the NPL does not affect the liability of responsible parties or impede agency efforts to recover costs associated with response efforts. The U.S. Army and Shell Oil Company will be responsible for all future remedial actions required at the area deleted if future site conditions warrant such actions.
Upon determination that at least one of the criteria described in § 300.425(e) of the NCP has been met, EPA may formally begin deletion procedures. The following procedures were used for this proposed deletion of the western tier of the RMA/NPL Site:
(1) EPA has recommended the partial deletion and has prepared the relevant documents.
(2) The State of Colorado, through the CDPHE, has concurred with publication of this notice of intent for partial deletion.
(3) Concurrent with this national Notice of Intent for Partial Deletion, a local notice has been published in a newspaper of record and has been distributed to appropriate federal, State, and local officials, and other interested parties. These notices announce a thirty (30) day public comment period on the deletion package, which ends on October 23, 2002, based upon publication of this notice in the
(4) EPA has made all relevant documents available at the information repositories listed previously for public inspection and copying.
Upon completion of the thirty calendar day public comment period, EPA Region 8 will evaluate each significant comment and any significant new data received before issuing a final decision concerning the proposed partial deletion. EPA will prepare a responsiveness summary for each significant comment and any significant new data received during the public comment period and will address concerns presented in such comments and data. The responsiveness summary will be made available to the public at the EPA Region 8 office and the information repository listed above and will be included in the final deletion package. Members of the public are encouraged to contact EPA Region 8 to obtain a copy of the responsiveness summary. If, after review of all such comments and data, EPA determines that the partial deletion from the NPL is appropriate, EPA will publish a final notice of partial deletion in the
The following information provides EPA's rationale for deletion of the western tier of the RMA/NPL Site from the NPL and EPA's finding that the proposed final deletion satisfies 40 CFR 300.425(e) requirements:
The On-Post OU of the RMA/NPL Site encompasses 27 square miles in southern Adams County, Colorado, approximately 8 miles northeast of downtown Denver. The Rocky Mountain Arsenal was established in 1942 by the U.S. Army, and was used to manufacture chemical warfare agents and incendiary munitions for use in World War II. Prior to this, the area was largely undeveloped ranch and farmland. Following the war and through the early 1980s, the facilities continued to be used by the Army. Beginning in 1946, some facilities were leased to private companies to manufacture industrial and agricultural chemicals. Shell Oil Company, the principal lessee, primarily manufactured pesticides from 1952 to 1982. After 1982, the only activities at the Arsenal involved remediation.
Complaints of ground water pollution north of the RMA/NPL Site began to surface in 1954. Common industrial and waste disposal practices used during these years resulted in contamination of structures, soil, surface water, and ground water. As a result of this contamination, the Arsenal was proposed for inclusion on the NPL in October 15, 1984. The listing of RMA on
A remedial investigation (RI) completed in January 1992 studied each of the five environmental media at the RMA/NPL Site including soils, water, structures, air, and biota. Based upon evidence gathered during the RI, the western tier of the RMA/NPL Site was exposed to minimal contamination and is considered a “non-source” area. A structures survey program identified eight structures within the western tier all which have no potential contamination history.
Several ground water plumes below the western tier parcel have been identified but are not attributable to the RMA/NPL Site. Because the ground water does not meet drinking water standards, the Klein Water Treatment Facility was built in 1989—prior to completion of the RI—to treat the ground water contamination that is now known to originate from non-RMA/NPL sources. The Klein Water Treatment Facility is located within the area to be deleted; however, its continued operation, and associated 5-year review requirements, have been incorporated as part of the Chemical Sales Company Superfund Site.
The Irondale Containment System (ICS) was constructed during development of the RI/FS as an interim response action (IRA). The ICS was partially located on the western tier and installed to extract and treat ground water emanating from the Rail Yard and the Motor Pool areas, both of which are in close proximity to the western tier.
A feasibility study (FS) was finalized in October 1995 and a proposed plan prepared and presented to the public in October 1995 as well. On June 11, 1996, the On-Post Record of Decision (ROD) was signed by the Army, EPA, and the State of Colorado. The ROD specified no remedial action for soil within the western tier of the On-Post OU as the soil does not pose a risk to humans or biota. The remedy for structures included the dismantling of three of the eight structures found on the western tier. The selected ground water remedy consisted of continued operation of the ICS. The ROD also required continued use restrictions for the property.
On October 2, 1998, EPA published a notice of intent for partial deletion (NOIDp) in the
Since 1988, each of the parties involved with the Arsenal cleanup has made extensive efforts to ensure that the public is kept informed on all aspects of the cleanup program. More than 100 fact sheets about topics ranging from historical information to site remediation have been developed and made available to the public. Following the release and distribution of the draft Detailed Analysis of Alternatives report (a second phase of the FS), the Army held an open house for about 1,000 community members. The open house provided opportunity for individual discussion and understanding of the various technologies being evaluated for cleanup of the RMA/NPL Site.
The Proposed Plan for the On-Post OU was released for public review on October 16, 1995. On November 18, 1995, a public meeting was held, attended by approximately 50 members of the public, to obtain public comment of the Proposed Plan. As a result of requests at this meeting, the period for submitting written comments on the plan was extended one month, concluding on January 19, 1996. No public comments were received on the alternatives presented for the western tier of the On-Post OU.
Based on public comment received for the NOIDp published on October 2, 1998, EPA postponed action on partial deletion until additional soil sampling and analysis of the western tier parcel could be conducted. Members of the Site Specific Advisory Board also requested that National Ombudsman, Robert Martin, include deletion of the western tier parcel as one of fifty-two issues to be investigated at RMA. The Ombudsman held two public meetings, one on January 26, 2000, followed by the second on November 6, 2000. EPA, Region 8, continues to coordinate with the Ombudsman's office on this process.
Upon completion of the thirty calendar day public comment period for this NOIDp, EPA Region 8 in consultation with the State and the Army, will evaluate each comment and any significant new data received before issuing a final decision concerning the proposed partial deletion.
Of the three structures slated for demolition, one was determined to no longer exist (a building foundation), and the other two structures (survey tower and septic tank) were demolished in October 1997. Since the ROD was signed, three structures referred to as “vaults” were found in section 9 of the western tier parcel. These structures were used for housing antennae associated with the Titan I Missile system during the late 1950s through the mid-1960s. Evaluation of the vaults confirmed that no radiological, chemical or biological materials were utilized in these structures. The vaults were demolished and disposed of from the western tier during the week of July 20, 1998.
The ICS extraction wells have met the ROD shut-off criteria and were shut down on October 1, 1997. Extraction wells for the Motor Pool IRA have also met shut-off criteria in March 1998; therefore, the ICS facility was demolished and removed on May 7, 2002. A treatment system was constructed at the Rail Yards to more directly treat the contaminated groundwater associated with the Rail Yards. The Rail Yard IRA and Treatment System, Motor Pool IRA, and Irondale facility are not associated with the western tier parcel. Monitoring of the ground water aquifer previously treated through the ICS extraction wells, as required by the ROD, has been incorporated into the sitewide monitoring program.
Use of the ground water below the western tier for potable drinking purposes is prohibited by the FFA, the RMA National Wildlife Refuge Act of 1992, and the ROD; and will continue to be prohibited even after portions of
Based on the extensive investigations and risk assessment performed for the western tier of the RMA/NPL Site, there are no further response actions planned or scheduled for this area. Currently, no hazardous substances remain at the site above health-based levels with respect to anticipated uses of and access to the site, which are limited under the Federal Facility Agreement, Rocky Mountain Arsenal National Wildlife Refuge Act and the ROD. Because the western tier parcel is subject to these restrictions on land and water use, it will be included in the RMA-wide five-year reviews. All completion requirements for the western tier of the On-Post OU have been achieved as outlined in OSWER Directive 9320.2-3A. Therefore, there is no requirement for operation and maintenance.
EPA, with concurrence from the State of Colorado, has determined that all appropriate CERCLA response actions have been completed at the western tier parcel of the RMA/NPL Site to protect public health and the environment and that no further response action by responsible parties is required. Therefore, EPA proposes to delete the western tier of the On-Post OU of the RMA/NPL Site from the NPL.
Federal Communications Commission.
Proposed rule.
The Commission requests comments on a petition filed by Central Texas College, licensee of station KNCT-TV, NTSC channel 46, Belton, Texas, proposing the substitution of DTV channel 38 for DTV channel 47c for station KNCT-DT. DTV Channel 38 can be allotted to Belton at reference coordinates 30-59-08 N. and 97-37-51 W. with a power of 200, a height above average terrain HAAT of 392.9 meters.
Comments must be filed on or before November 1, 2002, and reply comments on or before November 18, 2002.
The Commission permits the electronic filing of all pleadings and comments in proceeding involving petitions for rule making (
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 02-271, adopted September 4, 2002, and released September 10, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Digital television broadcasting, Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.622(b), the Table of Digital Television Allotments under Texas is amended by removing DTV channel 47c and adding DTV channel 38 at Belton.
Federal Communications Commission.
Proposed rule.
The Commission requests comments on a petition filed by TV
Comments must be filed on or before November 7, 2002, and reply comments on or before November 22, 2002.
The Commission permits the electronic filing of all pleadings and comments in proceeding involving petitions for rule making (
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 02-273, adopted September 9, 2002, and released September 16, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Digital television broadcasting, Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.622(b), the Table of Digital Television Allotments under Alabama is amended by removing DTV channel 34c and adding DTV channel 5 at Tuscaloosa.
The Materials Technical Advisory Committee (MTAC) will meet on October 9, 2002, 10:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to advanced materials and related technology.
1. Opening remarks.
2. Presentation of papers and comments by the public.
3. Election of Chairman.
4. Briefing on Department of Commerce Critical Technology Assessment of Biotechnology in U.S. Industry.
The meeting will be open to the public and a limited number of seats will be available. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials to the following address: Ms. Lee Ann Carpenter, Advisory Committees MS: 3876, 14th St. & Pennsylvania Ave., NW., U.S. Department of Commerce, Washington, DC 20230.
For more information contact Lee Ann Carpenter on (202) 482-2583.
International Trade Administration, Commerce.
Notice of implementation of the Visit Industry Program.
The U.S. Department of Commerce will provide for private sector companies to host a US&FCS International Trade Specialist for a period of up to 30 days for the purpose of improving his/her understanding of the issues and obstacles that small and medium-sized businesses must face. The US&FCS believes that such an agreement, authorized under the Mutual Educational and Cultural Exchange Act (MECEA) and ITA's appropriations act, will enhance the ability of its trade specialists to understand the problems and issues facing exporting businesses.
James S. Cramer, International Trade Specialist, Office of the Director General, U.S. Commercial Service, (202) 482-2071.
The goal of the Visit Industry Program is to pursue high-quality professional development opportunities, to improve the Trade Specialists' understanding of the issues and obstacles that small and medium-sized businesses must face, educating the trade specialist and assisting the participating company in pursuing international business opportunities. The purpose of the agreement is to provide U.S. & FCS Trade Specialists with an in-depth professional development opportunity that is not available from any other public or private source.
15 U.S.C. 4721; 22 U.S.C. 2455 (f).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Monkfish Oversight Committee, Skate Advisory Panel and Whiting Oversight Committee in October, 2002 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from these groups will be brought to the full Council for formal consideration and action, if appropriate.
The meetings will be held on October 8-10, 2002 and October 23-24, 2002. See
The meetings will be held in Portland, ME, Mansfield and Danvers, MA and Warwick, RI. See
Paul J. Howard, Executive Director, New England Fishery Management Council, (978) 465-0492.
Location: Holiday Inn by the Bay, 88 Spring Street, Portland, ME; telephone: (207-775-2311).
The Committee will review overfishing definition options and analysis prepared by the Plan Development Team (PDT) for inclusion in Framework 2, and comments by the Scientific and Statistical Committee. The analysis will also show Fishing Year 2003 target Total Allowable Catch (TACs) for each of the options. Framework 2 will implement adjustments to the overfishing definitions that were made on a temporary basis under NMFS emergency rule in 2002, with modifications as appropriate based on PDT analysis. Framework 2 will also implement trip limit and days-at-sea adjustments for 2003 as needed to achieve the target TACs. Unless modified by Framework 2, the default measures eliminating the monkfish directed fishery will take effect upon expiration of the emergency rule in May, 2003 (pending an extension for 180 days by the Secretary of Commerce in November, 2001). The Committee will also provide guidance to the PDT in the development of management alternatives to achieve the targets for the 2003 fishing year.
Location: Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; telephone: (508) 339-2200.
The committee will review development of Framework 37 to the Northeast Multispecies Fishery Management Plan (FMP), including progress on Draft Framework 37 document, background information, and available analyses. They will refine alternatives for inclusion in Framework 37. They will also provide guidance to the Whiting PDT regarding Framework 37. Also on the agenda is discussion of the timing of Framework 37 and other related issues.
Location: Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; telephone: (508) 339-2200.
The panel will review the Draft Skate FMP and Environmental Impact Statement (EIS) and public hearing document. They will review public comments received on the Draft Skate FMP/EIS and public hearing document. They will also develop advisory panel comments and recommendations for Skate Committee and Council consideration regarding the Final Skate FMP management measures.
Location: Hampton Inn and Suites Airport, 2100 Post Road, Warwick, RI 02886; telephone: (401) 739-8888.
The Committee will review a draft Stock Assessment and Fishery Evaluation (SAFE) Report on the 2001 fishing year, and PDT analysis of options for overfishing definition reference points, target TACs and management measures to be considered in Framework 2. Measures under consideration include adjustments to the trip limits and days-at-sea allocations to achieve the target TACs and to account for changes to the multispecies fishery management program (affecting monkfish vessels) under the court-ordered remedy. The Committee will recommend preferred alternatives to the Councils, as appropriate, or any other measures needed to achieve the plan objectives in 2003. The Committee will discuss the status of Amendment 2 and develop a timetable for completion of required elements and analysis.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Groundfish Fishery Management Plan Environmental Impact Statement Oversight Committee (Ad Hoc EIS Oversight Committee) will hold a working meeting, which is open to the public, on the draft Groundfish Programmatic Environmental Impact Statement (PEIS).
The meeting will be held on October 7-8, 2002. The Ad Hoc EIS Oversight Committee working meeting will begin Monday, October 7, 2002 at 1 p.m. and may go into the evening until business for the day is completed. The meeting will reconvene from 8 a.m. to 5 p.m. Tuesday, October 8.
The meetings will be held in the conference room at the Pacific Fishery Management Council office, 7700 NE Ambassador Place,Portland, OR 97220-1384.
Dr. Christopher Dahl, NEPA Specialist, (503) 820-2280.
The purpose of the Ad Hoc EIS Oversight Committee meeting is to review the status of the PEIS and to develop comprehensive alternatives to the current groundfish management program. The committee met in May 2002 and developed an initial set of five program alternatives which were presented to the Council in June 2002. The Council delayed adoption of those recommendations due to preliminary information that major management changes might be necessary for the remainder of 2002 and 2003. The Council has now completed its deliberations on the 2003 harvest levels and management measures. The Ad Hoc EIS Oversight Committee will consider the Council's 2003 management recommendations, the May 2002 report, public comments, and other information and may choose to revise the proposed alternatives. The Ad Hoc EIS Oversight Committee will present its proposed alternatives to the Council at the October 28-November 1 meeting. The Council expects to adopt PEIS alternatives at that time.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503)820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (CPSMT) and Coastal Pelagic Species Advisory Subpanel (CPSAS) will hold public meetings.
The CPSMT will meet on Tuesday, October 8, 2002, from 8 a.m. to 12 p.m. The CPSAS will meet on Tuesday, October 8, 2002, from 1 p.m. until business for the day is completed.
Both meetings will be held in the large conference room at NMFS, 501 W Ocean Blvd., Long Beach, CA 90802, telephone: (562) 980-4000.
Dan Waldeck, Pacific Fishery Management Council, (503) 820-2280.
The purpose of the CPSMT meeting is to review the Pacific sardine biomass estimate and harvest guideline for 2003. The purpose of the CPSAS meeting is to review documents developed by the CPSMT, notably the Pacific sardine biomass estimate and recommended harvest guideline for 2003.Although nonemergency issues not contained in the CPSMT and CPSAS meeting agendas may come before the committees for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the CPSMT's or CPSAS's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
Missile Defense Agency (MDA), Department of Defense.
Notice of availability.
MDA announces the availability of a draft supplement to the Final Environmental Impact Statement for the Program Definition and Risk Reduction (PDRR) Phase of the Airborne Laser Program (April 1997) (FEIS) and Record of Decision (September 1997). This draft Supplemental EIS (SEIS) analyzes proposed ABL Program test activities at Kirtland Air Force Base (KAFB), Holloman Air Force Base (HAFB), and White Sands Missile Range (WSMR), New Mexico; and Edwards Air Force Base (EAFB), Vandenberg Air Force Base (VAFB), and the adjacent Naval Air Warfare Center Weapons Division (NAWCWPNS) Sea Range, Point Mugu, California. The draft SEIS has been prepared in accordance with the National Environmental Policy Act, as amended (42 U.S.C. 4321,
The ABL is a laser weapon system installed on a Boeing 747-400F aircraft capable of operating for extended periods of time. Up to two such aircraft would be developed. The ABL weapon system would include four lasers:
• Active Ranging System (ARS) Laser (a small carbon dioxide laser used to begin tracking a target),
• Track Illuminator Laser (TILL), (a solid state laser used to provide detailed tracking of a target),
• Beacon Illuminator Laser (BILL), (a solid state laser used to measure atmospheric distortion), and
• High-Energy Laser (HEL), (i.e., Chemical Oxygen-Iodine Laser (COIL), which is a chemical laser used to destroy a target.
An additional laser, a surrogate for the High-Energy Laser (SHEL), will be used during testing in place of the HEL. The SHEL is a low-power solid-state laser that would be used in both ground- and flight-testing. The ABL also would include an Infrared Search and Track sensor (IRST) (a passive infrared device used to identify heat sources). The 1997 PDRR ABL FEIS analyzed use of a COIL HEL on board an aircraft to destroy ballistic missiles on the boost phase. The Record of Decision (ROD) on the FEIS documented the Air Force's decision to proceed with PDRR phase ABL home base activities at EAFB, diagnostic test activities over WSMR, and expanded area test activities at VAFB and the NAWCWPNS Sea Range. Since completion of the FEIS, specific proposed test activities have been identified and additional information made available about the proposed testing that warrant preparation of a SEIS.
To obtain a copy of the supplement to the 1997 FEIS and Record of Decision, please write to: Mr. Charles J. Brown, Environmental Coordinator, Project Execution Division, Headquarters, Air Force Center for Environmental Excellence, 3207 Sidney Brooks Road, Building 532, Brooks AFB, TX 78235-5363 or a copy of it can also be accessed at “
U.S. Army Armor Center and Fort Knox, Department of the Army, DoD.
Notice of availability.
In compliance with the National Environmental Policy Act (NEPA), a ROD has been prepared for the construction and operation of a multi-purpose digital training range and a series of maneuver areas, drop zones and landing zones at Fort Knox. As soon as practical, the Army will begin to construct and operate the facilities described as the Preferred Alternative (Alternative 2). Although Alternative 2 has significant environmental impacts, all feasible measures will be used to mitigate the impacts. Alternative 2 is the only course of action that will provide a multi-functional war fighting capability to meet the Army's current and future training needs for soldiers in urban and restricted terrain combat scenarios and the new digital technology to support the M1A2 System Enhancement Package (SEP) Main Battle Tank. All practical mitigation measures are listed in the ROD.
Interested parties desiring to review the ROD may obtain a copy by contacting: Environmental Management Division, Directorate of Base Operations Support, U.S. Army Armor Center, ATTN: ATK-OSE (Mrs. Pollock), Building 1110, Room 216, Ironsides & 6th Avenue, Fort Knox, KY 40121-5000 or by sending electronic mail to:
Mr. Al Freeland or Mrs. Gail Pollock, Environmental Management Division, Directorate of Base Operations Support, U.S. Army Armor Center, ATTN: ATZK-OSE, Building 1110, Room 216, Ironsides & 6th Avenue, Fort Knox, KY 40121-5000; by phone at (502) 624-3629 or by fax at (502) 624-3000.
The proposed project includes upgrading an existing training range to a modern digitized multi-purpose training range; construction of a series of landing zones, drop zones and maneuver areas and a grassed mock C130 landing strip; upgrade of existing roads; installation of fiber optics and other infrastructure improvements. The facilities would prepare the mounted force warriors for full spectrum combat operations. The proposed facilities would fully support new equipment training such as the M1A2 Main Battle Tank (MBT) System Enhancement Package (SEP), the M2A3 Bradley Fighting Vehicle, and the Stryker family of vehicles, as well as other enhanced vehicles requiring digital capability. These vehicles are equipped with a dynamic new computer system that uses digital technology to provide soldiers with on the move and instantaneous battlefield communications.
Public reading copies of the ROD are available at the following locations: Barr Library; 400 Quartermaster Street, Fort Knox, Kentucky 40121-5000 and Ridgeway Memorial Library, 127 North Walnut Street, P.O. Box 146, Shepherdsville, Kentucky 40165.
Department of Education.
The Acting Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 22, 2002.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at his e-mail address
Chicago Operations Office, DOE.
Notice of availability of a financial assistance solicitation.
The U.S. Department of Energy (DOE) is announcing its intention to solicit applications for financial assistance for cost shared research and development of technologies that will enhance research and development in fuel cell technology. The DOE Office of Hydrogen, Fuel Cells and Infrastructure Technologies seeks industry cost-shared projects that address research needs in building fuel cell systems; fuel cells for back up power; materials for high temperature membranes; fuel cell component durability; water and thermal management; fuel processing; and catalysts.
The solicitation will be available on DOE's “Industry Interactive Procurement System” (IIPS) Web page located at
The solicitation and any subsequent amendments will be published on the above mentioned Internet address. All applications shall be submitted through IIPS in accordance with the instructions provided in the solicitation.
Nadine Kijak at (630) 252-2508; by mail at U.S. Department of Energy, 9800 South Cass Avenue, Argonne, IL 60439-4899; by facsimile at (630) 252-5045; or by electronic mail at
The combined residential and commercial Buildings sector accounts for approximately 36% of the U.S. primary energy consumption and between 30% and 40% of all airborne emissions. These factors are the driving force behind DOE's efforts to develop high efficiency polymer electrolyte membrane (PEM) fuel cell power systems as an alternative power source to grid-based electricity for buildings. The Buildings sector provides a diverse set of application requirements over a wide power range that can be met by PEM fuel cell systems. DOE seeks applications from qualified developers of PEM fuel cell power systems to develop and test a stationary fuel cell power system for a market-driven building application that simultaneously addresses DOE priorities of lowering energy consumption and emissions. Also included in the solicitation are cross-cutting areas which apply to fuel cell technology for stationary and transportation applications, such as high temperature membranes, durability, and catalysts.
A workshop was held on April 10-11, 2002 regarding Fuel Cells for Buildings and Stationary Applications. The proceedings from this workshop are available on the following web site:
•
• 2001 Annual Progress Report: Transportation Fuel Cell Power Systems, Part 1 (
• 2001 Annual Progress Report: Transportation Fuel Cell Power Systems, Part 2 (
To be eligible for award under this solicitation, applicants will be required to contribute a non-federal cost share of 20-50% of the yearly project costs to be incurred under the proposed project, depending upon specific topic area selected, as specified in the solicitation. Prior costs incurred (
In addition to the foregoing, other evaluation and selection criteria will be identified in the solicitation. DOE solicitation and selection procedures are set forth in 10 CFR 600. The full text of 10 CFR part 600 Financial Assistance Rules are located at
Once released, the solicitation will be available for downloading from the IIPS Internet page. At this Internet site you will also be able to register with IIPS,
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada Test Site. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Wednesday, October 9, 2002, 6 p.m.-8:30 p.m.
Grant Sawyer State Office Building, 555 East Washington Avenue, Room 4401, Las Vegas, Nevada.
Kelly Kozeliski, U.S. Department of Energy, Office of Environmental Management, PO Box 98518, Las Vegas, Nevada 89193-8513, phone: 702-295-2836, fax: 702-295-5300, e-mail
1. Discussion on the planned FY 2003 work scope for each Environmental Management project.
2. Briefing on the status of the Resource Conservation & Recovery Act (RCRA) Part B permit application.
Copies of the final agenda will be available at the meeting.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Worker Advocacy Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770), requires that notice of this meeting be published in the
Monday, October 21, 2002, 9 a.m.-5:30 p.m.
Loews L'Enfant Plaza Hotel, 480 L'Enfant Plaza, SW., Washington, DC.
Judy Keating, Executive Administrator, Worker Advocacy Advisory Committee, U.S. Department of Energy, EH-8, 1000 Independence Avenue, SW., Washington, DC 20585, Telephone Number 202-586-7551, E-mail:
Office of Fossil Energy, DOE.
Notice of order.
The Office of Fossil Energy (FE) gives notice that on September 12, 2002, it issued DOE/FE Order No. 1807 granting Midland Cogeneration Venture Limited Partnership (MCV) authority to import up to 10,000 Mcf per day of natural gas from Canada, beginning on November 1, 2001, and extending
This Order may be found on the FE web site at
Bonneville Power Administration (BPA), Department of Energy (DOE).
Notice of availability of Record of Decision (ROD).
This notice announces the availability of the ROD to offer contract terms for integrating power from the Cliffs Energy Project of GNA Energy, LLC, into the Federal Columbia River Transmission System. This decision is based on input from public processes and information in the BPA Business Plan Environmental Impact Statement (DOE/EIS-0183, June 1995) and the Business Plan ROD (August 15, 1995). The Cliffs Energy Project is a 300-megawatt gas-fired, combined-cycle, combustion-turbine power generation project, which will help serve as a resource to meet demand in the long term.
Copies of the GNA Cliffs Energy ROD, Business Plan, and Business Plan EIS and ROD may be obtained by calling BPA's toll-free document request line: 1-800-622-4520.
Donald L. Rose, KEC-4, Bonneville Power Administration, P.O. Box 3621, Portland, Oregon, 97208-3621, telephone number 503-230-3796; fax number 503-230-5699; e-mail
Bonneville Power Administration (BPA), DOE.
Notice of document availability.
Copies of the Bonneville Purchasing Instructions (BPI), which contain the policy and establish the procedures that BPA uses in the solicitation, award, and administration of its purchases of goods and services, including construction, are available in printed form for $30, or without charge at the following Internet address:
Unbound copies of the BPI or BFAI may be obtained by sending a check for the proper amount to the Head of the Contracting Activity, Routing CK-1, Bonneville Power Administration, P.O. Box 3621, Portland, Oregon 97208-3621.
Manager, Corporate Communications, 1-800-622-4519.
BPA was established in 1937 as a Federal Power Marketing Agency in the Pacific Northwest. BPA operations are financed from power revenues rather than annual appropriations. BPA's purchasing operations are conducted under 16 U.S.C. 832
BPA's solicitations and contracts include notice of applicability and availability of the BPI and the BFAI, as appropriate, for the information of offerors on particular purchases or financial assistance transactions.
Take notice that on September 11, 2002, Nicole Production, Ltd. (Nicole), a minority-owned gas producer, filed a complaint against Columbia Gas Transmission Corporation (Columbia Gas) pursuant to 18 CFR 385.206. Nicole alleges that Columbia Gas has improperly voided its gathering agreement with Nicole. Nicole alleges that Columbia Gas has improperly
Any person desiring to be heard or to protest this filing should file 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). 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. The answer to the complaint and all comments, interventions or protests must be filed on or before October 7, 2002. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on September 11, 2002, Catamount Energy Corp. (CEC), TJH Investments LLC (TJH), Summersville Hydro Corp. (Summersville), Gauley River Management Corp.,(Gauley Management) Gauley River Power Partners, L.P., (Gauley Power) CHI Energy, Inc. (collective, the Applicants) filed with the Commission a joint application for the expedited approval of the disposition of jurisdictional facilities pursuant to Section 203 of the Federal Power Act for authorization of the sale by CEC, TJH and Summersville to CHI Energy, Inc.,'s subsidiaries, CHI Finance, Inc., and Gauley Hydro, LLC, of one hundred percent (100%) of the equity interest in Gauley Management and Gauley Power, a power marketer with market-based rate authorization. In addition, GRPP operates the Summersville Hydroelectric Project, a qualifying facility, pursuant to a long-term contract with the City of Summersville, West Virginia.
Take notice that on September 11, 2002, Colorado Energy Management LLC, 2575 Park Lane, Suite 200, Lafayette, Colorado 80026 (Applicant), filed with the Federal Energy Regulatory Commission (Commission) an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
The Applicant is a Colorado limited liability company. Commencing September 25, 2002, the Applicant intends to operate a nominal 75-megawatt gas-fired electric cogeneration plant located near Rifle, Colorado (the Facility). The Facility will be owned by Tri-State Generation and Transmission Association, Inc. (Tri-State). Tri-State is not a jurisdictional public utility under the Federal Power Act. All of the electric output of the Facility will be sold by Tri-State at wholesale. The Applicant will operate the Facility as Tri-State's agent, subject to Tri-State's ultimate control and decision-making authority.
Take notice that on September 11, 2002, the New York Independent System Operator, Inc. (NYISO) filed revisions to its Market Administration and Control Area Services Tariff in compliance with the Commission's August 27 Order in the above-captioned proceedings.
The NYISO has requested an effective date of September 30, 2001, for its compliance changes. The NYISO has served a copy of this filing upon parties on the official service lists maintained by the Commission for the above-captioned dockets.
Take notice that on September 10, 2002, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) and American Transmission Company LLC (ATCLLC) filed an errata to their August 26, 2002 filing in the above-captioned proceeding.
The Midwest ISO states that it has served copies of its filing upon each person designated on the official service list compiled by the Secretary in the above-captioned proceeding.
Take notice that on September 11, 2002, the California Independent System Operator Corporation (ISO) submitted for filing modifications to the ISO Tariff to comply with the Commission's August 27, 2002 order in the captioned docket concerning Amendment No. 45 to the ISO Tariff, 100 FERC ¶ 61,209. The ISO has served copies of the filing on all parties in the captioned docket.
Take notice that on September 11, 2002, PJM Interconnection, L.L.C. (PJM), submitted for filing an amendment to its August 29, 2002 filing in this docket. In its August 29, 2002 filing, PJM amended the Appendix of Attachment K of the PJM Open Access Transmission Tariff (PJM Tariff) and Schedule 1 of the Amended and Restated Operating Agreement of PJM Interconnection, L.L.C. (Operating Agreement) to
PJM requests an effective date of December 1, 2002 for the amendments filed on August 29, 2002 and September 11, 2002. Copies of this filing were served upon all parties listed on the official service list in Docket No. ER02-2519-000, all PJM members, and each state electric utility regulatory commission in the PJM control area and PJM West region.
Take notice that on September 10, 2002 PJM Interconnection, L.L.C. (PJM), submitted for filing an executed interim interconnection service agreement between PJM and Dominion Equipment, Inc. and an executed interconnection service agreement between PJM and Fairless Energy, LLC.
PJM requests a waiver of the Commission's 60-day notice requirement to permit the effective dates agreed to by the parties. Copies of this filing were served upon each of the parties to the agreements and the state regulatory commissions within the PJM region.
Take notice that on September 11, 2002, the New York Independent System Operator, Inc. (NYISO) filed revisions to its Market Administration and Control Area Services Tariff (Services Tariff) to provide further clarity and improve the administration of the Installed Capacity market in the New York Control Area.
The NYISO has served a copy of this filing to all parties that have executed Service Agreements under the NYISO's Open-Access Transmission Tariff or Services Tariff, the New York State Public Service Commission and to the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice that on September 12, 2002, Occidental Power Services, Inc. (OPSI) tendered for filing a proposed amendment to the Western Systems Power Pool (WSPP). The proposed amendment reflects the admission of OPSI to membership in the WSPP. OPSI requests that the Commission authorize the proposed amendment to become effective on September 12, 2002.
Take notice that on September 12, 2002, Tenaska-Oxy Power Services, L.P., 1701 E. Lamar Boulevard, Suite 100, Arlington, TX 76006 (TOPS) submitted for filing with the Federal Energy Regulatory Commission an application for blanket authorization and certain waivers under regulations of the Commission, and for an order accepting its Rate Schedule FERC No. 1 to be effective the earlier of November 11, 2002, or the date of a Commission order granting approval of its Rate Schedule.
TOPS intends to engage in electric power and energy transactions as a marketer and a broker. In transactions where TOPS purchases power, including capacity and related services from electric utilities, qualifying facilities, and independent power producers, and resells such power to other purchasers, TOPS will be functioning as a marketer. In TOPS' marketing transactions, TOPS proposes to charge rates mutually agreed upon by the parties. In transactions where TOPS does not take title to electric power and/or energy, TOPS will be limited to the role of a broker and will charge a fee for its services. TOPS is not in the business of producing electric power nor does it contemplate acquiring title to any electric power transmission facilities.
E. Any person desiring to intervene or to protest this filing should file 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). 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. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's web site at
Environmental Protection Agency (EPA)
Notices.
This notice announces the availability of the Reregistration Eligibility Decision (RED) document and technical support documents for the pesticide active ingredient, lindane. These documents have been developed using a public participation process designed by the EPA and the U.S. Department of Agriculture (USDA) to involve the public in the reassessment of pesticide tolerances under the Food Quality Protection Act (FQPA) and the reregistration of individual pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This notice starts a 60-day public comment period for lindane, during which the public is invited to submit comments on the Agency's risk management decision.
Comments, identified by docket ID number OPP-2002-0202, must be received on or before November 22, 2002
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Mark Howard, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-8172; fax
This action is directed to the public in general, nevertheless, a wide range of stakeholders will be interested in obtaining the revised risk assessments and submitting risk management comments on lindane including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the use of pesticides on food. As such, the Agency has not attempted to specifically describe all the entities potentially affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
You can obtain copies of the RED and related documents discussed in this notice from EPA's Office of Pesticide Programs' Home Page, http://www.epa.gov/pesticides/ using the following links: “Reregistration Eligibility (REDs)” under the heading “Reregistration and Special Review” and then “Lindane.” You can also go directly to the “Lindane RED” at http://www.epa.gov/pesticides/reregistration/status.htm. Available documents include the RED, supporting technical documents, and
2.
You may submit comments on any part of the RED through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket ID number OPP-2002-0202 in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The Agency has issued a RED for the pesticide active ingredient lindane. Under FIFRA, as amended in 1988 and 1996, EPA is conducting an accelerated reregistration program to re-evaluate existing pesticides to make sure they
As part of the lindane RED, the Agency will revoke all existing lindane tolerances because all lindane products for which the tolerances were originally established have been cancelled. The Agency has also determined that the currently registered lindane seed treatment products would be eligible for reregistration if the registrants make the changes to the terms and conditions specified in the lindane RED and provide the required data, and if EPA is able to establish all required tolerances for residues of lindane in food. The RED document includes guidance and time frames for complying with any label changes for products containing lindane.
The reregistration program is being conducted under Congressionally mandated time frames, and EPA recognizes both the need to make timely reregistration decisions and to involve the public. Therefore, EPA is issuing the lindane RED as a final document with a 60-day public comment period. Although the 60-day comment period does not affect the registrants's response due date, it is intended to provide an opportunity for public input and a mechanism for initiating any necessary amendments to the RED. All comments will be carefully considered by the Agency. If any comment significantly affects the lindane RED, EPA will amend the RED by publishing the amendment in the
The legal authority for these RED falls under FIFRA, as amended in 1988 and 1996. Section 4(g)(2)(A) of FIFRA directs that, after submission of all data concerning a pesticide active ingredient,“the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration.”
Environmental protection, Lindane, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces availability and starts a 60-day public comment period on the Reregistration Eligibility Decision (RED) documents for the pesticide active ingredients thiabendazole and salts. The RED represents EPA's formal regulatory assessment of the health and environmental data base of the subject chemical and presents the Agency's determination regarding which pesticidal uses are eligible for reregistration.
Comments, identified by docket ID number OPP-2002-0252, must be received on or before November 22, 2002.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
By mail: Lorilyn Montford, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-8170; e-mail address: montford.lorilyn@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or the Federal Food, Drug, and Cosmetic Act (FFDCA); environmental, human health, and agricultural advocates; pesticides users; and members of the public interested in the use of pesticides. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
To access RED documents and RED fact sheets electronically, go directly to the REDs table on the EPA Office of Pesticide Programs Home Page, at http://www.epa.gov/pesticides/reregistration/status.htm.
2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket ID number OPP-2002-0252 in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The Agency has issued REDs for the pesticide active ingredients listed in this document. Under the FIFRA, as amended in 1988, EPA is conducting an accelerated reregistration program to reevaluate existing pesticides to make sure they meet current scientific and regulatory standards. The data base to support the reregistration of each of the chemicals listed in this document is substantially complete, and each pesticide's risks have been mitigated so that it will not pose unreasonable risks to people or the environment when used according to its approved labeling. In addition, EPA is reevaluating existing pesticides and reassessing tolerances under the Food Quality Protection Act (FQPA) of 1996. The pesticides included in this notice also have been found to meet the FQPA safety standard.
All registrants of pesticide products containing one or more of the active ingredients listed in this document have been sent the appropriate REDs, and must respond to labeling requirements and product specific data requirements (if applicable) within 8 months of receipt. Products also containing other pesticide active ingredients will not be reregistered until those other active ingredients are determined to be eligible for reregistration.
The reregistration program is being conducted under Congressionally-mandated time frames, and EPA recognizes both the need to make timely reregistration decisions and to involve the public. Therefore, EPA is issuing these REDs as final documents with a 60-day comment period. Although the 60-day public comment period does not affect the registrant's response due date, it is intended to provide an opportunity for public input and a mechanism for initiating any necessary amendments to the REDs. All comments will be carefully considered by the Agency. If any comment significantly affects a RED, EPA will amend the RED by publishing the amendment in the
The legal authority for these REDs falls under FIFRA, as amended in 1988 and 1996. Section 4(g)(2)(A) of FIFRA directs that, after submission of all data concerning a pesticide active ingredient, “the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration,” before calling in product specific data on individual end-use products, and either reregistering products or taking “other appropriate regulatory action.”
Environmental protection, Chemicals, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice of final NPDES general permits—MAG070000 and NHG070000.
The Director of the Office of Ecosystem Protection, Environmental Protection Agency-New England (EPA-NE), is issuing the final National Pollutant Discharge Elimination System (NPDES) general permit for construction dewatering activity discharges to certain waters of the States of Massachusetts and New Hampshire and for Indian Country lands located in Massachusetts for the purpose of reissuing the general permit that expired on May 1, 2001. This NPDES general permit establishes Notice of Intent (NOI) requirements, effluent limitations, standards, prohibitions and management practices for construction dewatering activity discharges. Construction dewatering activity is defined as pumped or drained discharges of groundwater and/or stormwater from excavations or other
Owners and/or operators of sites that discharge groundwater and/or stormwater from construction dewatering activities, including those currently authorized to discharge under the expired general permit, will be required to submit an NOI to EPA-NE to be covered by the appropriate general permit and will receive a written notification from EPA-NE of permit coverage and authorization to discharge under the general permit.
The general permit shall be effective on September 23, 2002, and will expire five years from the effective date.
Notices of Intent to be authorized to discharge under the reissued permit should be sent to EPA-NE, Office of Ecosystem Protection (CMU), 1 Congress Street, Suite 1100, Boston, Massachusetts 02114-2023. The submittal of other information required under the permit or individual permit applications should also be sent to the above address. See also Part 1.D. of the general permit for State Agency notification requirements and mailing addresses.
Additional information concerning the final permit may be obtained between the hours of 9 a.m. and 5 p.m. Monday through Friday excluding holidays from: Austine Frawley, Office of Ecosystem Protection, Environmental Protection Agency, 1 Congress Street, Suite 1100, Boston, MA 02114-2023; telephone: 617-918-1065; e-mail:
The Final NPDES General Permit may be viewed over the Internet via the EPA-NE web site
• General permits for the States of Massachusetts and New Hampshire are presented separately.
• EPA-NE has modified slightly the requirements to obtain permit coverage to enhance the protection of historic properties so that the requirements are consistent with the September 30, 1998 modifications to the National Historic Preservation Act. The revised requirements are consistent with the requirements for coverage under other Regionally-issued NPDES General Permits.
• EPA-NE has modified the requirements to obtain permit coverage to enhance the protection of listed species in response to comments received by the Agency from Fish and Wildlife Services and the National Marine Fisheries Services. The revised requirements are consistent with the requirements for coverage under other Regionally-issued NPDES General Permits.
• There is no General Permit for the State of Maine. EPA delegated NPDES permitting authority to the State of Maine on January 12, 2001, except for facilities located in Indian country. At this point NPDES permitting under the Clean Water Act is temporarily suspended in Indian country pursuant to section 402(c) of the Act; therefore, the general permit is not available to dischargers in Indian country in the State of Maine. See 66 FR 112792-93 (2/28/01).
• The State of New Hampshire does not allow discharges to Class A waters under this general permit.
• Notification by Permittees, Geographic Area and Administrative Aspects (request to be covered and eligibility to apply) transferred from Fact Sheet and Supplemental Information to Part I, Permit Section I.C.
• A provision has been added to the permit, in the event that the permit is not reissued prior to its expiration date, that will administratively continue the permit beyond its expiration date in accordance with the Administrative Procedures Act, and the permittee submits a new Notice of Intent. See Part I.C.2.c. of the final permit.
• All States—commingling of effluent from a construction dewatering facility is allowed as long as the effluent can be monitored before it mixes with other streams of wastewater.
The Director of the Office of Ecosystem Protection, EPA-New England, is issuing final general permits for the discharge of groundwater and stormwater from construction dewatering activities to certain waters of the States of Massachusetts and New Hampshire. This document contains Part I, the final general NPDES permits, and Part II, Standard Conditions.
Section 301(a) of the Clean Water Act (the Act) provides that the discharge of pollutants is unlawful except in accordance with a National Pollutant Discharge Elimination System (NPDES) permit unless such a discharge is otherwise authorized by the Act. Although such permits are generally issued to individual discharges, EPA's regulations authorize the issuance of “general permits” to categories of
A. The Director of an NPDES permit program is authorized to issue a general permit if there are a number of point sources operating in a geographic area that:
1. Involve the same or substantially similar types of operations:
2. Discharge the same types of wastes;
3. Require the same effluent limitations or operating conditions;
4. Require the same or similar monitoring requirements; and
5. In the opinion of the Director, are more appropriately controlled under a general permit than under individual permits.
Authorization under the general permit shall require prior submittal of certain facility information. Upon receipt of all required information, the permit issuing authority may allow or disallow coverage under the general permit.
B. The similarity of the discharges prompted EPA to issue the May 1, 1996 general permit. When reissued, this permit will enable facilities covered under the expired general permit to maintain compliance with the Act; will extend environmental and regulatory controls to new discharges; and, will avoid a backlog of individual permit applications. The re-issuing of this general permit in New Hampshire and Massachusetts is warranted by the similarity of environmental conditions; State regulatory requirements applicable to the discharges and receiving waters; and, the technology employed.
Violations of a condition of a general permit constitute a violation of the Clean Water Act and subjects the discharger to the penalties in section 309 of the Act.
Discharges of groundwater and stormwater associated with the construction of single family homes are not covered under this permit.
This permit does not authorize the discharge of stormwater associated with construction sites which disturb greater than 5 acres of land. These sites are required to have a separate NPDES permit for stormwater discharges in accordance with 40 CFR 122.26(b)(14)(x).
Discharges of stormwater runoff from construction sites less than 5 acres, which is not pumped or drained from excavations associated with construction activity, are not covered under this NPDES permit. These sites are required to comply with 40 CFR 122.26(b)(5).
The State of New Hampshire does not allow discharges to Class A waters under this general permit.
EPA has determined that this general permit will not be available to “New Source” dischargers as defined in 40 CFR 122.2 due to the site specific nature of the environmental review required by the National Environmental Policy Act of 1969 (NEPA). 33 U.S.C. 4321
EPA has determined that this general permit will not be available for discharge(s) into impaired waters on the Federal Clean Water Act section 303(d) list which are not attaining state water quality standards. Applicants may call EPA-NE or their State Agency for listing of impaired waters. See Final Permit, Section D, Monitoring and Reporting, for Agency contact information.
Any owner or operator authorized by a general permit may request to be excluded from coverage of a general permit by applying for an individual permit. This request may be made by submitting a NPDES permit application together with reasons supporting the request. The Director may also require any person authorized by a general permit to apply for and obtain an individual permit. Any interested person may petition the Director to take this action. However, individual permits will not be issued for sources covered by the general permit unless it can be clearly demonstrated that inclusion under the general permit is inappropriate. The Director may consider the issuance of individual permits when:
1. The discharger is not in compliance with the terms and conditions of the general permit;
2. A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;
3. Effluent limitations guidelines are subsequently promulgated for the point sources covered by the general NPDES permit;
4. A Water Quality Management Plan or Total Maximum Daily Load (TMDL) containing requirements applicable to such point sources is approved;
5. Circumstances have changed since the time of the request to be covered so that the discharger is no longer appropriately controlled under the general permit, or either a temporary or permanent reduction or elimination of the authorized discharge is necessary;
6. The discharge(s) is a significant contributor of pollution or in violation of State Water Quality Standards for the receiving water.
In accordance with 40 CFR 122.28(b)(3)(iv), the applicability of the general permit is automatically terminated on the effective date of the individual permit.
Under this general permit, owners and operators of construction dewatering sites in Massachusetts and New Hampshire may be granted authorization to discharge groundwater and stormwater generated wastewaters into waters of the respective states. Discharges authorized under this general permit must be treated in a settling basin or other treatment system designed to remove total suspended solids unless the State agency specifically waives that requirement for the individual applicant.
1.
EPA is required to consider technology and water quality requirements when developing permit limits. 40 CFR part 25 subpart A sets the criteria and standards that EPA must use to determine which technology-based requirements, requirements under section 301(b) of the Act and/or
The Clean Water Act requires that all discharges, at a minimum, must meet effluent limitations based on the technology-based treatment requirements for dischargers to control pollutants in their discharge. Section 301(b)(1)(A) of the Act requires the application of Best Practicable Control Technology Currently Available (BPT) with the statutory deadline for compliance being July 1, 1977, unless otherwise authorized by the Act. Section 301(b)(2) of the Act requires the application of Best Conventional Control Technology (BCT) for conventional pollutants, and Best Available Technology Economically Achievable (BAT) for non-conventional and toxic pollutants. The compliance deadline for BCT and BAT is as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated and in no case later that March 31, 1989.
2.
EPA believes that for most discharges these limits are sufficient to achieve water quality standards. Coverage under the general permit will not be granted for those discharges which EPA or the applicable state believe a more stringent water quality-based TSS limit is needed.
3.
The States of Massachusetts and New Hampshire have narrative criteria in their water quality regulations (
Water quality standards applicable to construction dewatering activity discharges covered by this general permit include pH and oil and grease for both States. The pH limits are based upon the applicable numeric water quality criteria in each State. The pH limits in the final permit are the same as the limits in the existing permit in accordance with the anti-backsliding requirements found in 40 CFR 122.44(1). The oil and grease limits in the final permit are based on the Massachusetts narrative water quality standard of no visible sheen on the surface of the receiving water and the New Hampshire narrative water quality standard of no oil or grease in such concentrations that would impair any existing or designated uses of Class B waters. To ensure that the narrative water quality standards are protected, EPA has established a numeric guideline of 15 mg/l for this permit. EPA has historically used 15 mg/l to approximate the concentration at which a visible oil sheen is likely to occur. The Region believes that this standard is a reasonable target value and has previously imposed maximum daily oil and grease limits of 15 mg/l in permits at facilities (such as oil terminals) that have a reasonable potential for oil and grease discharge. At 40 CFR part 423, the technology-based guideline for oil and grease for Steam Electric Power Generating Point Sources are limited to 15 and 20 mg/l for average monthly and maximum daily values respectively. The oil and grease numeric limits in the final permit are moire stringent than the narrative limits in the existing permit.
The final permit contains no other water quality based limits based on the assumption that the discharges to be covered under this permit will consist of groundwater and/or stormwater which does not contain pollutants in amounts which would have reasonable potential to cause or contribute to violations of applicable State water quality standards. If, based on information submitted in the Notice of Intent or on other available information, it is determined by EPA or the applicable State that this assumption is not correct, the discharger will not be granted coverage under the general permit.
For those discharges which are not granted coverage under this permit because the discharge contains pollutants in quantities which represent reasonable potential to cause or contribute to violations of water quality standards, the discharger must apply for an individual NPDES permit. (EPA-New England is currently developing a general permit for the discharge of treated groundwater from rermediation sites. When this permit is available it may be an alternative to an individual permit). The discharger may also seek authorization for the discharge from an EPA On-Scene Coordinator pursuant to 40 CFR 122.3(d).
The conditions of the permit reflect the goal of the CWA and EPA to achieve and maintain water quality standards. The environmental regulations pertaining to the State Antidegradation Policies which protect the State's surface waters from degradation of water quality are found in the following provisions: Massachusetts Water Quality Standards 314 CMR Section 4.04
This general permit does not apply to any new or increased discharge to receiving waters unless the discharge is shown to be consistent with the State's anti-degradation policies. This determination shall be made in accordance with the appropriate State antidegradation implementation procedures for this general permit. EPA will not authorize discharges under the general permit until it receives a favorable antidegradation review and certification from the States. (Concurrent to the publication of this final general permit in the
Effluent limitations and monitoring requirements which are included in the general permit describe the requirements to be imposed on the facilities to be covered.
Facilities covered by the final general permits will be required to prepare and keep on site, in a secure place, Discharge Monitoring Report (DMR) containing effluent data. The frequency of reporting is determined in accordance with each State's provisions (see the individual State permits).
The monitoring requirements have been established to yield data representative of the discharge under authority of section 308(a) of the Act and 40 CFR 122.41(j), 122.44(i) and 122.48, and as certified by the State.
The National Marine Fisheries Service has requested that it review and comment on all proposed discharges that may adversely affect the federally-listed endangered shortnose sturgeon (Acipenser brevirostrum) in certain sections of the Merrimack and Connecticut River in Massachusetts.
Applicants with discharges that would occur along the waterways subject to consultation must conduct informal consultation as a non-Federal representative and must notify both EPA-New England and the appropriate Service office in writing of that decision.
Services Contact Information: USFWS, New England Field Office, 70 Commercial Street, Suite 300, Concord, NH 03301-5087; Telephone 603/223-2541; NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298; Telephone: 978/281-9112.
Under the 1996 Amendments (Pub. L. 104-267) to the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
40 CFR 122.41 and 122.42 establish requirements which must be in all NPDES permits. Part II of the general permit includes these requirements.
Section 401 of the CWA provides that no Federal license or permit, including NPDES permits, to conduct any activity that may result in any discharge into navigable waters shall be granted until the State in which the discharge originates certifies that the discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of the CWA. The section 401 certification process is complete in both the States of Massachusetts and New Hampshire. In addition, EPA and the Commonwealth of Massachusetts will jointly issue the final permit. For lands held by federally recognized tribes in Massachusetts, EPA has provided the necessary certification. Currently, the only federally recognized tribe is the Wampanoag Tribe of Gay Head (Aquinnah) on the Island of Martha's Vineyard.
The Coastal Zone Management Act (CZMA), 16 U.S.C. 1451
The general permits do not authorize discharges from any new sources as defined under 40 CFR 122.2. Therefore, the National Environmental Policy Act, 33 U.S.C. 4321
Facilities which adversely affect properties listed or eligible for listing in the National Registry of Historic Places under the National Historic Preservation Act of 1966. 16 U.S.C. 470
d. Under Fact Sheet, Section K, National Historic Preservation Act, Part 1.C.1.c.(1), Limitations on Coverage-Construction Dewatering Activity Discharges with Effects on Historic Properties; and part 1.C.1.d, Notification by Permittees, language is added to modify the requirements to obtain permit coverage to enhance the protection of historic properties so that the requirements are consistent with the requirements for coverage under EPA's Multi-Sector General Permit for Industrial Activities, 65 FR 64746 (October 30, 2000) and other Regionally-issued NPDES General permits.
2. EPA received comments from both the Fish and Wildlife Service (F&WS), and the National Marine Fisheries Service (NMFS), hereafter referred to as the Services, in letters dated November 21, 2001 and March 5, 2002 respectively, on the potential impacts to federally listed, proposed threatened or endangered species and/or designated critical habitat for listed species specific to EPA's Draft NPDES General Permit for Construction Dewatering Activity discharges in MA and NH. Although EPA received the comments from the NMFS after the thirty day deadline period as required in the Public Notice, EPA has addressed their comments in the final permit under Fact Sheet, Section E., Endangered Species Act; Part 1.C.1.c., Limitations on Coverage; and part 1.C.1.d, Notification by Permittees.
The Region has received the Services concurrence on the following revised procedures to ensure compliance with the Endangered Species Act. Specifically, the Fact Sheet discussion and General Permit requirements list the specific species and waterways subject to consultation, based on the information provided to EPA-NE by the Services; provides information on the ESA Section 7 consultation requirements, including a provision for permit applicants, when designated as a non-Federal representative, to carry out informal consultations with the Services. EPA has designated applicants for this construction dewatering activity discharge general permit a non-Federal representative for the purpose of carrying out informal consultation with the Services.
The general permit states that when construction dewatering activities would occur in waterways subject to consultation, permit coverage is available only if: (1) The applicant contacts the Service to determine if the discharges are likely to occur in designated critical habitat and/or if listed species are present in the vicinity of the project area; and (2) informal consultation with the Services has been concluded and results in a written concurrence by the Services that the discharge is not likely to adversely affect listed species and critical habitat. Lastly, to be eligible for permit coverage under the general permit, applicants are required to submit a copy of the Service's written concurrence with the Notice of Intent and to certify on the Notice of Intent that they are in compliance with the permit's endangered species requirements. Applicants are required to maintain any supporting documentation used to make the eligibility determination.
Regardless of the above conditions, EPA may require that a permittee apply for an individual NPDES permit on basis of possible jeopardy to species or critical habitats. Where there is concern that coverage for a particular discharger is not sufficiently protective of listed species, the Services, as well as any other interested parties, may petition EPA to require that the discharger obtain an individual NPDES permit and conduct an individual Section 7 consultation as appropriate.
The recommended process allows for the broadest and most efficient coverage for the permittee while still providing for the most efficient protection of endangered species. The process will significantly reduce the number of dischargers that must be considered individually and therefore allow the Agency, the Services and the States to focus their resources on those discharges that are indeed likely to jeopardize listed species. Straightforward mechanisms such as these allow for more immediate access to permit coverage for most applicants and allow the Agencies to provide endangered species protection in a more expeditious manner.
EPA has determined that this general permit is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.
The information collection requirements of this permit were previously approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4. generally requires Federal agencies to assess the effects of their “regulatory actions” (defined to be the same as “rules” subject to the RFA) on tribal, state and local governments and the private sector. The permit issued today, however, is not a “rule” subject to the RFA and is therefore not subject to the requirements of UMRA.
The following two general permits have been combined for purposes of this
In compliance with the provisions of the Federal Clean Water Act, as amended, (33 U.S.C. 1251
This permit shall become effective when issued. The permit and the authorization to discharge expire at midnight, five years from the effective date, which is the date of publication in the
This General Permit consists of Part IA, Massachusetts General Permit; Parts IC-IE; and Part II, General Conditions.
1. During the period beginning on the effective date and lasting through expiration, the permittee is authorized to discharge groundwater and/or stormwater from construction dewatering activities. All discharges shall pass through settling basins or other treatment system designed to remove total suspended solids unless specifically waived by the State.
a. Each outfall discharging effluent from construction dewatering activities shall be limited and monitored as specified below. Monitoring for each outfall shall be reported.
b. The discharge shall not cause a violation of the water quality standards.
c. The discharge shall not cause an objectionable discoloration of the receiving water.
d. There shall be no discharge of floating solids or visible foam in other than trace amounts.
e. Samples taken in compliance with the monitoring requirements specified above shall be taken at a location that provides a representative analysis of the effluent just prior to discharge to the receiving water or if the effluent is commingled with another discharge, prior to such commingling.
f. The pH of the effluent for discharges to Class A and Class B waters shall be in the range of 6.5-8.3 standard units and not more than 0.5 units outside of the background range. There shall be no change from background conditions that would impair any uses assigned to the receiving water Class.
g. The pH of the effluent for discharges to Class SA and Class SB waters shall be in the range of 6.5-8.3 standard units and not more than 0.2 units outside of the background range. There shall be no change from background conditions that would impair any uses assigned to the receiving water Class.
h. Sampling for oil and grease is required only if a periodic inspection of the discharge indicates the presence of a visible sheen, as defined in 40 CFR part 110. The discharge of a sheen of oil or gasoline constitutes an oil spill and must be reported immediately to the National Response Center (NRC) at 800/424-8802. Upon detection of a visible sheen, the discharge must stop immediately and the problem corrected.
i. A discharge structure shall be constructed if necessary to protect the bank of the water body from erosion.
j. Chronic (and modified acute) toxicity test(s) and/or priority pollutant scan shall be performed on the groundwater and/or stormwater discharge from construction dewatering activities by the permittee upon request by EPA and/or the MA DEP. See also, Section C.1.d. Testing shall be performed in accordance with EPA toxicity protocol to be provided at the time of the request. The test shall be performed on a 24-hour composite sample to be taken during normal facility operation. The result of the test(s) shall be forwarded to both the EPA and the State within 30 days after completion.
1. This Discharge Permit is issued jointly by the U.S. Environmental Protection Agency (EPA) and the Massachusetts Department of Environmental Protection (MADEP) under Federal and State law, respectively. As such, all terms and conditions of this permit are hereby incorporated into and constitute a discharge permit issued by the Assistant Commissioner of the Massachusetts Bureau of Resource Protection pursuant to M.G.L. Chap. 21, Section 43.
2. Each Agency shall have the independent right to enforce the terms and conditions of this Permit. Any modification, suspension or revocation of this Permit shall be effective only with respect to the Agency taking such action, and shall not affect the validity or status of this Permit as issued by the other Agency, unless and until each Agency has concurred in writing with such modification, suspension or revocation. In the event any portion of this Permit is declared, invalid, illegal or otherwise issued in violation of State law such permit shall remain in full force and effect under Federal law as an NPDES Permit issued by EPA. In the event this Permit is declared invalid, illegal or otherwise issued in violation of Federal law, this Permit shall remain in full force and effect under State law as a Permit issued by the Commonwealth of Massachusetts.
In compliance with the provisions of the Federal Clean Water Act, as amended, (33 U.S.C. 1251
This permit shall become effective when issued. The permit and the authorization to discharge expire at midnight, five years from the effective date, which is the date of publication in the
This General Permit consists of Part 1B, New Hampshire General Permit; Parts 1C-1E; and Part II. General Conditions.
1. During the period beginning on the effective date and lasting through expiration, the permittee is authorized to discharge groundwater and/or stormwater from construction dewatering activities to the State's Class B receiving waters. All discharges shall pass through settling basins or other treatment systems designed to remove total suspended solids.
a. Each outfall discharging effluent from construction dewatering activities shall be limited and monitored as specified below. Monitoring for each outfall shall be reported.
b. The discharge shall not cause a violation of the water quality standards of the receiving water.
c. The discharge shall not cause any visible and objectionable discoloration of receiving waters.
d. The discharge shall be adequately treated to insure that the surface water remains free from pollutants in concentrations or combinations that settle to foam harmful deposits, float as foam, debris, scum or other visible pollutants. It shall be adequately treated to insure that the surface waters remain free from pollutants which odor, color, taste or turbidity in the receiving water which is not naturally occurring and would render it unsuitable for its designated uses.
e. Samples taken in compliance with the monitoring requirements specified above shall be taken at a location that provides a representative analysis of the effluent just prior to discharge to the receiving water or, if the effluent is commingled with another permitted discharge, prior to such commingling.
f. The pH of the effluent shall not be less than 6.5 standard units (su) nor greater than 8.0 su at any time unless these values are exceeded due to natural causes.
g. Sampling for oil and grease is required only if a periodic inspection of the discharge indicates the presence of a visible sheen, as defined in 40 CFR part 110. The discharge of a sheen of oil or gasoline constitutes an oil spill and must be reported immediately to the National Response Center (NRC) at 800/424-8802. Upon detection of a visible sheen, the discharge must stop immediately and the problem corrected. The use of dispersants to treat the sheen is prohibited. This permit does not allow for the addition of any chemicals to treat the sheen.
h. A discharge structure shall be constructed if necessary to protect the bank of the water body from erosion.
i. Chronic (and modified acute) toxicity test(s) and/or priority pollutant scans shall be performed on the groundwater and/or stormwater discharge from construction dewatering activities by the permittee upon request by EPA and/or the NHDES. See also, Part C.1.d.
Testing shall be performed in accordance with EPA toxicity protocol to be provided at the time of the request. The test shall be performed on a 24-hour composite sample to be taken prior to any discharge of groundwater. The result of the test(s) shall be forwarded to both the EPA and the State prior to any discharge of groundwater.
a. This NPDES Discharge Permit is issued by the U.S. Environmental Protection Agency under Federal and State law. Upon final issuance by the EPA, the New Hampshire Department of Environmental Services, Water Division, Concord, NH, 03302-0095, may adopt this Permit including all terms and conditions, as a state permit pursuant to RSA 485-A:13.
a.
b.
This permit does not authorize the discharge or stormwater associated with construction sites which disturb greater than 5 acres of land. These sites are required to comply with 40 CFR 122.26.
Discharges of stormwater runoff from construction sites less than 5 acres, which is not pumped or drained from excavations associated with construction activity, are not covered under this NPDES permit.
This permit is not available for discharges into impaired waters on the Federal Clean Water Act 303(d) list which are not attaining state water quality standards for the particular pollutants limited herein.
This general permit is not available to “New Source” dischargers as defined in 40 CFR 122.2.
c.
(1)
(i) Applicants are required to coordinate with the State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer (THPO) and others regarding effects of their construction dewatering activity discharges on historic properties. See Section I.IV.K. of the Fact Sheet for information on the SHPO and THPO contacts).
(ii) The applicant must provide evidence of prior screening for the presence of historic properties and coordinate with the relevant official(s) to develop a mitigation plan, as needed, consistent with the procedures regarding coordination with local officials described at Sections 800.4-800.6 of the National Historic Preservation Act regulations.
In the event there is an inadvertent discovery of a historic property on the site during construction, the permittee must immediately stop the construction activity and coordinate with the appropriate official(s) consistent with the steps outlined in 36 CFR 800.13 of the National Historic Preservation Act regulations.
(2)
(i) The permit applicant contacts the Services to determine: (1) If the construction dewatering activities would occur in designated critical habitat; (2) if listed species are present in the vicinity of the project area; and, (3) whether the applicant's discharges and discharge related activities are likely to affect listed species and/or critical habitats.
(ii) Coverage under the general permit is available only if informal consultation with the Services under section 7 of the Endangered Species Act has been concluded which addresses the effects of the applicant's construction dewatering activity discharges on listed species and critical habitat and the consultation results in a written concurrence by the Service(s) on a finding that the applicant's construction dewatering activity discharges are not likely to adversely affect listed species and critical habitat.
(iii) Permit applicants must submit a copy of the Service's written concurrence with their Notice of Intent submittal. Applicants are required to certify eligibility for coverage under the General Permit on their Notice of Intent Submittal (See Section 1.C.1.d, Notification by Permittee) and to maintain any supporting documentation for that determination.
(IV) Applicants who choose to conduct informal consultation to meet
d.
In addition, one Whole Effluent Toxicity (WET) test result and/or one priority pollutant scan of the water to be discharged may be required as part of the Notice of Intent, on a case-by-case basis by the States and/or EPA as authorized at 40 CFR 122.44(d)(1)(v). If toxicity testing is required, EPA will provide the permittee with a copy of the test procedure and detailed protocol. The WET test will consist of one chronic and modified acute toxicity screening test with one hundred percent sample. The Ceriodaphnia dubia for fresh water and sea urchin for marine water shall be used as test organism. The 126 EPA Priority Pollutants are found at 40 CFR Part 423, Appendix A. All samples shall be tested using the analytical methods found in 40 CFR Part 136 or alternative methods approved by EPA in accordance with the procedures in 40 CFR Part 136. The permittee shall submit to EPA-NE and the appropriate State Agency the results of all testing conducted, as required at 40 CFR 122.41(l)(4)(ii).
An authorization to discharge under this general permit, where the construction dewatering activity discharges to a municipal or private storm drain owned by another party, does not convey any rights or authorization to connect to that drain.
The sites authorized to discharge under the final general permit will receive written notification from EPA-NE with Senate concurrence. Failure to submit to EPA-NE a Notice of Intent to be covered and/or failure to receive from EPA-NE written notification of permit coverage means that the facility is not authorized to discharge under this general permit. Sites who are denied permit coverage by EPA-NE are not authorized under this general permit to discharge from those sites to the receiving waters.
a.
b.
Facilities with expired individual construction dewatering activity permits that have been administratively continued in accordance with 40 CFR 122.6 may apply for coverage under this general permit. When coverage is granted the expired individual permit automatically will cease being in effect.
Proposed new dischargers may apply for coverage under this general permit and must submit the NOI at least 30 days prior to the initiation of discharge.
Facilities that were covered under the general permit that was issued on May 1, 1996 and that expired on May 1, 2001 need to apply for coverage under this general permit within 60 days from the effective date of this permit. Failure to submit a Notice of Intent within 60 days from the effective date of this permit for continuation of the discharge will be considered discharging without a permit as of May 1, 2001 for enforcement purposes. A Notice of Intent is not required if the permittee submits a Notice of Termination (see Part I.E.1) of discharge before the 60-day time frame expires.
c.
(1) Reissuance of this permit, at which time the permittee must comply with the Notice of Intent conditions of the new permit to maintain authorization to discharge; or
(2) The permittees' submittal of a Notice of Termination; or
(3) Issuance of an individual permit for the permittee's discharges; or
(4) A formal permit decision by the Director not to reissue this general permit, at which time the permittee must seek coverage under an alternative general permit or an individual permit.
Massachusetts and New Hampshire: Monitoring results obtained during the previous month shall be summarized for each month and recorded on separated Discharge Monitoring Report Form(s) that shall be kept on-site in a secured place. The reports should be readily available for review at any time during the working hours by EPA and State officials. All notifications and communications should be sent to both EPA-NE and the appropriate State office at the following addresses:
a. The Regional Offices wherein the discharge occurs, shall receive a copy of all notifications and communications:
b. Copies of all notifications required by this permit shall also be submitted to the State at:
c. Copies of the State Form BRP WM 10, Request for General Permit coverage for Surface Water Discharge from a Construction Dewatering site, and the Transmittal Form for Permit Application and Payment, may be obtained at the DEP website at (
A copy of the transmittal form, a copy of the check, and Form BRP WM 10 should be sent to Massachusetts Department of Environmental Protection, 627 Main Street, Worcester, MA 01608. A copy of the transmittal form and the $250 fee should be sent to MADEP PO Box 4062, Boston, MA 02111. Municipalities are fee-exempt, but should send a copy of the transmittal form to that address for project tracking purposes. A copy of Form BRP WM 10 should be sent to EPA-New England, One Congress Street, Mail Code CMU, Boston, MA 02114-2023. Keep a copy of the transmittal form and a copy of the application package for your records.
Copies of all notifications and communications should be sent to:
1.
2.
a. The Director may require any person authorized by this permit to apply for and obtain an individual NPDES permit. Any interested person may petition the Director to take such action. Instances where an individual permit may be required include the following:
(1) The discharge(s) is a significant contributor of pollution;
(2) The discharger is not in compliance with the conditions of this permit;
(3) A change has occurred in the availability of the demonstrated technology of practices for the control or abatement of pollutants applicable to the point source.
(4) Effluent limitation guidelines are promulgated for point sources covered by this permit;
(5) A Water Quality Management Plan or Total Maximum Daily Load containing requirements applciable to such point source is approved;
(6) Discharge to the territorial sea;
(7) Discharge to outstanding natural resource water; or
(8) The point source(s) covered by this permit no longer;
(a) Involves the same or substantially similar types of operations;
(b) Discharges the same types of wastes;
(c) Requires the same effluent llimitations or operating conditions; and/or;
(d) Requires the same or similar monitoring.
b. The Director may require an individual permit only if the permittee authorized by the general permit has been notified in writing that an individual permit is required, and has been given a brief explanation of the reasons for this decision.
3.
a. Any operator may request to be excluded from the coverage of this general permit by applying for an individual permit.
b. When an individual NPDES permit is issued to an operator otherwise subject to this general permit, the applicability of this permit to that owner or operator is automatically terminated on the effective date of the individual permit.
1.
a. The permittee shall comply with effluent standards or prohibitions established under section 307(a) of the CWA for toxic pollutants and with standards for sewage sludge use or disposal established under section 405(d) of the CWA within the time provided in the regulations that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirements.
b. The CWA provides that any person who violates sections 301, 302, 306, 307, 308, 318, or 405 of the CWA or any permit condition or limitation implementing any of such sections in a permit issued under section 402, or any requirement imposed in a pretreatment program approved under section 402(a)(3) or 402(b)(8) of the CWA is subject to a civil penalty not to exceed $25,000 per day for each violation. Any person who
c. Any person may be assessed an administrative penalty by the Administrator for violating sections 301, 302, 306, 307, 308, 318, 405 of the CWA, or any permit condition or limitation implementing any of such sections in a permit issued under section 402 of the CWA. Administrative penalties for Class I violations are not to exceed $10,000 per violation, with the maximum amount of any Class I penalty assessed not to exceed $25,000. Penalties for Class II violations are not to exceed $10,000 per day for each day during which the violation continues, with the maximum amount of any Class II penalty not to exceed $125,000.
2.
3.
4.
5.
6.
7.
a. In accordance with 40 CFR part 2, any information submitted to EPA pursuant to these regulations may be claimed as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words “confidential business information” on each page containing such information. If no claim is made at the time of submission,
b. Claims of confidentiality for the following information
(i) The name and address of any permit applicant or permittee;
(ii) Permit applications, permits, and effluent data as defined in 40 CFR 2.302(a)(2).
c. Information required by NPDES application forms provided by the Regional Administrator under § 122.21 may not be claimed confidential. This includes information submitted on the forms themselves and any attachments used to supply information required by the forms.
8.
9.
10.
1.
2.
3.
4.
a.
(1) “Bypass” means the intentional diversion of waste streams from any portion of a treatment facility.
(2) “Severe property damage” means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.
b.
c.
(1)
(2)
d.
(1) Bypass is prohibited, and the Regional Administrator may take enforcement action against a permittee for bypass, unless:
(a) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(b) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercised of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and
(c)(i) The permittee submitted notices as required under Paragraph 4.c of this section.
(ii) The Regional Administrator may approve an anticipated bypass after considering its adverse effects, if the Regional Administrator determines that it will meet the three conditions listed above in Paragraph 4.d of this section.
5.
a.
b.
c.
(1) An upset occurred and that the permittee can identify the cause(s) of the upset;
(2) The permitted facility was at the time being properly operated;
(3) The permittee submitted notice of the upset as required in Paragraphs D.1.a and 1.e (24-hour notice); and
(4) The permittee complied with any remedial measures required under B.3. above.
d.
1.
a. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.
b. Except for records of monitoring information required by this permit related to the permittee's sewage sludge use and disposal activities, which shall be retained for a period of at least five years (or longer as required by 40 CFR part 503), the permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report or application
c. Records of monitoring information shall include:
(1) The date, exact place, and time of sampling or measurements;
(2) The individual(s) who performed the sampling or measurements;
(3) The date(s) analyses were performed;
(4) The individual(s) who performed the analyses;
(5) The analytical techniques or methods used; and
(6) The results of such analyses.
d. Monitoring results must be conducted according to test procedures approved under 40 CFR part 136 or, in the case of sludge use or disposal, approved under 40 CFR part 136 unless otherwise specified in 40 CFR part 503, unless other test procedures have been specified in the permit.
e. The Clean Water Act provides that any person who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this permit shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment is a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both.
2.
a. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;
b. Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;
c. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment),
d. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any substances or parameters at any location.
1.
a.
(1) The alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in 40 CFR 122.29(b); or
(2) The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject to the effluent limitations in the permit, not to the notification requirements under 40 CFR 122.42(a)(l).
(3) The alteration or addition results in a significant change in the permittee[s sludge use or disposal practices, and such alteration, addition or change may justify the application of permit conditions different from or absent in the existing permit, including notification of additional use or disposal sites not reported during the permit application process or not reported pursuant to an approved land application plan.
b.
c.
d.
(1) Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or specified by the Regional Administrator for reporting results of monitoring of sludge use or disposal practices.
(2) If the permittee monitors any pollutant more frequently than required by the permit using test procedures approved under 40 CFR part 136 or, in the sludge use of disposal, approved under 40 CFR part 136 unless otherwise specified in 40 CFR part 503, or as specified in the permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR or sludge reporting form specified by the Regional Administrator.
(3) Calculations for all limitations which require averaging of measurement shall utilize an arithmetic mean unless otherwise specified by the Regional Administrator in the permit.
e.
(1) The permittee shall report any noncompliance which may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission shall also be provided within 5 days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.
(2) The following shall be included as information which must be reported within 24 hours under this paragraph.
(a) Any unanticipated bypass which exceeds any effluent limitation in the permit. (See § 122.41(g))
(b) Any upset which exceeds any effluent limitation in the permit.
(c) Violation of a maximum daily discharge limitation for any of the pollutants listed by the Regional Administrator in the permit to be reported within 24 hours. (See § 122.44(g))
(3) The Regional Administrator may waive the written report on a case-by-case, basis for reports under Paragraph D.1.e if the oral report has been received within 24 hours.
f.
g.
h.
2.
a. All applications, reports, or information submitted to the Regional Administrator shall be signed and certified. (see § 122.22)
b. The CWA provides that any person who knowingly makes any false statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including monitoring reports or reports of compliance or non-compliance shall, upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both.
3.
1.
(a) Any addition of any “pollutant” or combination of pollutants to “waters of the United States” from any “point source,” or
(b) Any addition of any pollutant or combination of pollutants to the waters of the “contiguous zone” or the ocean from any point source other than a vessel or other floating craft which is being used as means of transportation. This definition includes additions of pollutants into waters of the United States from: surface runoff which is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances leading into privately owned treatment works. This term does not include an addition of pollutants by any “indirect discharger.”
(a) From which there is or may be a “discharge of pollutants”;
(b) That did not commence the “discharge of pollutants” at a particular “site” prior to August 13, 1979;
(c) Which is not a “new source;” and
(d) Which has never received a finally effective NPDES permit for discharges at that “site”. This definition includes an “indirect discharger” which commence discharging into “waters of the United States” after August 13, 1979. It also includes any existing mobile point source (other than an offshore of coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a “site” for which it does not have a permit; and any offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas development drilling rig that
An offshore or coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig will be considered a “new discharger” only for the duration of its discharge in an area of biological concern.
(a) After promulgation of standards of performance under section 306 of CWA which are applicable to such.
(b) After proposal of standards of performance in accordance with section 306 of CWA which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal.
(a) Sewage from vessels; or
(b) Water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if the State determines that the injection or disposal will not result in the degradation of ground or surface water resources.
(a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(b) All interstate waters, including interstate “wetlands”;
(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:
(1) Which are or could be used by interstate or foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or,
(3) Which are used or could be used for industrial purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the United States under this definition;
(e) Tributaries of waters identified in paragraphs (a)(d) of this definition;
(f) The territorial sea; and
(g) “Wetlands” adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)-(f) of this definition.
2. Abbreviations when used in this permit are defined below:
The Federal Communications Commission, as part of its continuing
Written comments should be submitted on or before November 22, 2002. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Judith Boley Herman or Leslie Smith, Federal Communications Commission, Room 1-C804 or Room 1-A804, 445 12th Street, SW, Washington, DC 20554 or via the Internet to jboley@fcc.gov or
For additional information or copies of the information collection(s), contact Judith Boley Herman at 202-418-0214 or via the Internet at
Federal Communications Commission.
Federal Communications Commission.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons of a meeting of the Media Security and Reliability Council (Council). The meeting will be held at the Federal Communications Commission in Washington, DC.
Wednesday, November 6, 2002 at 10 a.m. to 11:30 p.m.
Federal Communications Commission, 445 12th St. SW., Room TW-C305, Washington, DC.
Barbara Kreisman at 202-418-1605 or TTY 202-418-7172.
The Council was established by the Federal Communications Commission to bring together leaders of the broadcast and multichannel video programming distribution industries and experts from consumer, public safety and other organizations to explore and recommend measures that would enhance the security and reliability of media facilities and services.
The Council will discuss the progress of its working groups. The Council may also discuss such other matters as come before it at the meeting. Members of the general public may attend the meeting. The Federal Communications Commission will attempt to accommodate as many people as possible. Admittance, however, will be limited to the seating available. The public may submit written comments before the meeting to Barbara Kreisman, the Commission's Designated Federal Officer for the Media Security and Reliability Council, by email (bkreisma@fcc.gov) or U.S. mail (2-A666, 445 12th St. SW., Washington, DC 20554). Real Audio and streaming video Access to the meeting will be available at
Federal Communications Commission.
Federal Emergency Management Agency.
Notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed new information collections. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), this notice seeks comments concerning the development of the Fire and Emergency Services
As chief officer promotional requirements for bachelor's degree in U.S. fire departments increases, so do interest in the academic fire programs that offer them. Moreover, the work schedules of fire fighters oftentimes direct them to distance education programs as alternative to traditional programs. Likewise, since the events of September 11, increased interest in fire fighting as a career choice may drive up enrollments in two- and four-year colleges offering degrees in fire science and fire administration.
All of these factors contribute to a national need for this database and the consequence of not doing this project is an unmet need of an important constituency. Finally, the Government Performance and Results Act require our measuring program results. The program office has established four areas of measurement, of which this survey will directly support one.
This study will help this process by providing the fire service community with descriptive data on fire service degree programs from which to begin cooperative planning. The information collected as part of this study will provide baseline data for future studies allowing for more accurate tracking of trends. In addition, institutions offering fire service degree programs can use this information as a benchmark and/or for comparing their program to national averages. Policymakers at the state and national level can use the information gathered to initiate and/or support program and legislative initiatives.
The three audiences for whom the survey is intended are:
(1) Potential students looking for a fire-related degree program;
(2) Fire Science Coordinators looking to start or revamp their programs; and
(3) Researchers of fire degree-related information,
As Not-for-Profit Institutions, colleges and universities offering fire-related degree programs are the recipients of the survey instruments.
Interested persons should submit written comments to Muriel B. Anderson, Chief, Records Management Section, Program Services and Systems Branch, Facilities and Services Management Division, Administration and Resource Planning Directorate, Federal Emergency Management Agency, 500 C Street, SW, Room 316, Washington, DC 20472.
Contact Edward J. Kaplan, Education Specialist, U. S. Fire Administration, 16825 S. Seton Ave., Emmitsburg, MD 21727 or at
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the Federated States of Micronesia, (FEMA-1427-DR), dated July 11, 2002, and related determinations.
September 10, 2002.
Magda Ruiz, Response and Recovery and Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
The notice of a major disaster declaration for the Federated States of Micronesia is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of July 11, 2002:
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of North Dakota (FEMA-1431-DR), dated September 10, 2002, and related determinations.
September 10, 2002.
Magda Ruiz, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that, in a letter dated September 10, 2002, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act), as follows:
Notice is hereby given that pursuant to the authority vested in the Director of the Federal Emergency Management Agency under Executive Order 12148, I hereby appoint Steven R. Emory of the Federal Emergency Management Agency to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of North Dakota to have been affected adversely by this declared major disaster:
All counties and Indian Reservations within the State of North Dakota are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Wisconsin (FEMA-1432-DR), dated September 10, 2002, and related determinations.
September 10, 2002.
Magda Ruiz, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that, in a letter dated September 10, 2002, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act), as follows:
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
Notice is hereby given that pursuant to the authority vested in the Director of the Federal Emergency Management Agency under Executive Order 12148, I hereby appoint Gracia Szczech of the Federal Emergency Management Agency to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Wisconsin to have been affected adversely by this declared major disaster:
All counties within the State of Wisconsin are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
The Federal Radiological Preparedness Coordinating Committee (FRPCC) advises the public that the FRPCC will meet on October 3, 2002 in Washington, DC.
The meeting will be held on October 3, 2002, at 9 a.m.
The meeting will be held in FEMA's Lobby Conference Center, 500 C Street, SW., Washington, DC 20472.
Pat Tenorio, FEMA, 500 C Street, SW., Washington, DC 20472, telephone (202) 646-2870; fax (202) 646-4321; or e-mail
The role and functions of the FRPCC are described in 44 CFR 351.10(a) and 351.11(a). The Agenda for the upcoming FRPCC meeting is expected to include: (1) Introductions, (2) reports from FRPCC subcommittees, (3) old and new business, and (4) business from the floor.
The meeting is open to the public, subject to the availability of space. Reasonable provisions will be made, if time permits, for oral statements from the public of not more than five minutes in length. Any member of the public who wishes to make an oral statement at the October 3, 2002, FRPCC meeting should request time, in writing, from W. Craig Conklin, FRPCC Chair, FEMA, 500 C Street, SW., Washington, DC 20472. The request should be received at least five business days before the meeting. Any member of the public who wishes to file a written statement with the FRPCC should mail the statement to: Federal Radiological Preparedness Coordinating Committee, c/o Pat Tenoria, FEMA, 500 C Street, SW., Washington, DC 20472
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 7, 2002.
Board of Governors of the Federal Reserve System, September 17, 2002.
This notice corrects a notice (FR Doc. 02-23279) published on pages 58053 and 58054 of the issue for Friday, September 13, 2002.
Under the Federal Reserve Bank of San Francisco heading, the entry for James O. Pohlad, and William M. Polad, Los Angeles, California, is revised to read as follows:
Comments on this application must be received by September 27, 2002.
Board of Governors of the Federal Reserve System, September 17, 2002.
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
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 October 17, 2002.
In connection with this application, Milam Financial Corporation, Wilmington, Delaware, also has applied to become a bank holding company by acquiring 100 percent of the voting shares of Citizens National Bank, Cameron, Texas.
Board of Governors of the Federal Reserve System, September 17, 2002.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request the Office of Management and Budget (OMB) to allow the proposed information collection project: “Pilot Study of the Hospital Adverse Event Reporting Survey”. In accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506j(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by November 22, 2002.
Written comments should be submitted to: Cynthia D. McMichael, Reports Clearance Officer, AHRQ, 2101 East Jefferson Street, Suite 500, Rockville, MD 20852-4908.
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Cynthia D. McMichael, AHRQ Reports Clearance Officer, (301) 594-3132.
The Pilot Study of the Hospital Adverse Event Reporting Survey will pilot test a survey instrument which was developed to examine and characterize adverse event reporting in the nation's hospitals. The survey will collect information from staff for a nationally representative sample of U.S. non-Federal hospitals. The Pilot Study will test the survey and the methodology of its administration at 40 hospitals. Different staff, specifically, risk managers; directors of nursing, pharmacy, laboratory medicine, and transfusion medicine; infrection control officers; and medical directors will complete a questionnaire. Two versions of the questionnaire have been developed: one to be administered to hospital risk managers, and the other to be administered to the above-named departmental managers.
To achieve responses from 40 hospitals, we will contact 50 hospitals to enlist their cooperation (thus, we anticipate an 80% response rate). Contacting 50 hospitals should yield 40 risk managers with whom to conduct an interview. In addition, we plan to conduct interviews with six specific Department heads. Not all hospitals will have such positions, and thus, we anticipate at most, 240 interviews with Department managers (assuming an 80% response rate).
The questionnaire will ask whether hospitals collect information on adverse events, and how the information is stored. The questionnaire also asks about the hospital's case definition of a reportable event and whether information on the severity of the adverse event is collected. If inquires about who might report information and whether they can report to a system which is confidential and/or anonymous. The questionnaire also asks about the uses of the data that are collected, reporting systems, and whether information is used for purposes including analytic uses, personnel action, and intervention design. Finally, the questionnaire asks about the other sources of information that are useful for patient safety-related interventions.
The sample will be randomly drawn from the American Hospital Association Field Guide (the “AHA Guide”). The AHA Guide is a listing of 5,890 registered hospitals, which include Department of Defense, and Veteran's Administration hospitals. The AHA believes is database is close to 100 percent complete. AHA gathers additional information directly from hospitals via an annual survey. The resulting database includes over 600 fields in areas such as organizational structure, facilities, bed numbers, finances and services specialities. Their survey results are published annually in the AHA Guide. In our sample, we will include only non-Federal hospitals and we will aim to pilot the instruments in large, medium and small hospitals.
In the Fiscal Year 2002 Senate Appropriations Report for the Departments of Labor, HHS, and Education (Rpt.-107-84), AHRQ was given the following specific requirements:
The Committee further directs AHRQ to provide a report detailing the results of its efforts to reduce medical errors. The report should include how hospitals and other healthcare facilities are reducing medical errors; how these strategies are being shared among healthcare professionals; how many hospitals and other healthcare facilities record and track medical errors; how medical error information is used to improve patient safety; what types of incentives and/or disincentive have helped healthcare professionals reduce medical errors and; a list of the most common root causes of medical errors.
This project is sponsored by the Federal Quality Interagency Taskforce (QuIC) Errors Workgroup. The QuIC is responsible for the Federal Interagency coordination of patient safety efforts. AHRQ serves as provider of operational support to the chair of the QuIC.
As a pilot study, this survey offers researchers the opportunity to experiment with the mode in which to collect the information. Accordingly, in this pilot study, respondents from one-
1. All sample hospitals will be contacted and “screened” to obtain the Risk Manager's name, direct telephone number, Fax number and verify the hospital's mailing address.
2. Half of the sample will then be randomly assigned to either the mail or telephone mode of data collection.
3. All Risk Managers will receive an advance letter explaining the study and notifying them that they will soon receive a telephone call or survey in the mail.
4. When the Risk Manager receives the survey/telephone call, he/she will be asked to provide the names of Departmental Managers.
5. The Departmental Managers will be contacted in the same fashion (telephone or mail) as their institution's Risk Manager. Thus, they will receive an advance letter and then a telephone call or mail survey.
A thank you/reminder postcard will be sent to all mail respondents. A second questionnaire will be mailed to the nonrespondents in the mail mode. Finally, all the mail nonrespondents will be contacted by telephone to complete the questionnaire.
The estimated annual hour burden is as follows:
In accordance with the above-cited legislation, comments on the AHRQ information collection proposal are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden (including hours and costs) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request the Office of Management and Budget (OMB) to allow the proposed information collection project: “Pilot Data for the Development of a Hospital Patient Safety Culture Survey”. In accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by November 22, 2002.
Written comments should be submitted to: Cynthia D. McMichael, Reports Clearance Officer, AHRQ, 2101 East Jefferson Street, Suite 500, Rockville, MD 20852-4908.
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Cynthia D. McMichael, AHRQ Reports Clearance Officer, (301) 594-3132.
The project is being conducted in partial response to an AHRQ task order entitled “Patient Safety Measures” (issued under Contract 290-96-0004). With AHRQ's Director chairing the Quality Interagency Coordination Task Force (QuIC), AHRQ coordinated the Federal response to the Institute of Medicine's (IOM) 1999 report on medical errors. The response outlined specific initiatives the QuIC agencies would take. This project addresses the need, for a measurement tool to assess patient safety culture within health care institutions is one of those initiatives. The project is to develop a hospital patient safety culture survey, conduct cognitive pretesting, collect pilot data using the survey, analyze the pilot data to determine the psychometric properties of the survey (internal consistency, reliability, response variability, etc.), and then, to prepare survey administration procedures accordingly.
The overall goal of this study is to provide AHRQ with a reliable employee survey instrument to assess a hospital's patient safety culture. The survey instrument will be made publicly available to enable hospitals throughout the nation to evaluate aspects of their organizational culture that impact medical errors, error reporting, and patient safety.
The hospital patient safety culture survey to be pilot tested for this project is an employee survey that places an emphasis on medical error reporting. The survey also includes scales that measure other aspects of organizational
The purpose of this pilot data collection is to gather enough survey responses to evaluate the internal consistency, reliability, response variability, and other psychometric properties of a newly developed survey, not to produce national estimates. Therefore, a purposive sample (hand-chosen, non-statistical sample) of 12 hospitals will suffice to participate in the study. Hospitals will be selected based on two factors: bed size and teaching vs. non-teaching status (2 large/teaching, 2 medium/teaching, 2 small/teaching, 2 large/non-teaching, 2 medium/non-teaching, 2 small/non-teaching).
Surveys will be distributed to 100 employees at each of the 12 sites (a total of 1,200 employees). A contact person at each hospital will be asked to select 100 employees using a systematic random sample of employees. The contact person at each hospital will distribute the paper surveys to the 100 selected employees at each site. For purposes of individual confidentiality, no individual identifiers will be used, so it will not be possible to track individual responses. Respondents will be instructed to mail their completed surveys directly to the research organization conducting the study using a postage-paid return envelope that will be provided. The hospitals will at no time have access to individual responses.
The survey will be distributed to a total of 1,200 hospital employees (100 individuals at each of 12 hospitals), with a target response rate of 75%, or 900 returned surveys. Standard techniques like using a prenotification letter, a cover letter of support from the hospital, a follow-up postcard, and distribution of a second survey will be used to achieve the target response rate. Respondents should take approximately 20 minutes to complete the survey. Therefore, we estimate that the respondent burden for completing the survey will be 300 hours (900 completes multiplied by 20 minutes per completed survey).
Estimated Annual Respondent Burden:
Respondents will not be asked to maintain any records. No additional equipment purchases will be made to support data collection processes or record keeping. Respondents will incur no monetary cost in completing the survey.
The total cost to the Government for conducting this survey development project is approximately $227,000 which includes the cost of survey development, pretesting, data collection, analysis, preparation of survey administration procedures, and preparation of a final report. The estimated cost of the data collection component is $50,000, which includes labor costs, fringe expenses, administrative expenses, and costs associated with copying, postage, and telephone expenses.
In accordance with the Paperwork Reduction legislation cited in the summary section above, comments on the AHRQ information collection proposal are requested with regard to any of the following:
(a) Whether the proposed collection of information is necessary for the proper performance of functions of the Agency, including whether the information will have practical utility;
(b) The accuracy of the Agency's estimate of the burden (including hours and costs) of the proposed collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information on respondents, including the use of automated collection techniques or other forms of information technology.
(d) Ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 67 FR 42268-71, dated June 21, 2002) is amended to restructure the Epidemiology and Surveillance Division, National Immunization Program.
Section C-B, Organization and Functions, if hereby amended as follows:
Delete the functional statement for the
(1) Directs all Program activities regarding epidemiology, national surveillance, research and technical consultation for pertussis, diphtheria, tetanus, polio, measles, mumps, rubella, varicella, smallpox, and the vaccines, and toxoids to prevent these diseases, has the lead responsibility for immunization safety, and takes an
Delete the titles and functional statements for the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration is announcing the availability of a final guidance entitled “Establishing Pregnancy Exposure Registries.” The guidance is intended to provide sponsors with guidance on how to establish pregnancy exposure registries to monitor the outcomes of pregnancies exposed to specific medical products.
Submit written comments on agency guidances at any time.
Submit written requests for single copies of this guidance to the Office Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, or the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research, 1401 Rockville Pike, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist that office in processing your requests. The guidance document may also be obtained by mail by calling the CBER Voice Information System at 1-800-835-4709 or 301-827-1800. Submit written comments on the guidance to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Dianne L. Kennedy, Center for Drug Evaluation and Research (HFD-970), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-2364, kennedyd@cder.fda.gov; or Toni M. Stifano, Center for Biologics Evaluation and Research (HFM-600), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448, 301-827-6190, stifano@cber.fda.gov.
FDA is announcing the availability of a guidance for industry entitled “Establishing Pregnancy Exposure Registries.” Pregnancy exposure registries are recognized as one method of obtaining information on risks associated with exposure to medical products during pregnancy. The guidance is intended to provide sponsors with recommendations on how to establish pregnancy exposure registries, to help ensure the quality and integrity of registry data, and to help ensure the adequacy of document registry research methods.
In June 1999, FDA announced the availability of a draft guidance entitled “Establishing Pregnancy Registries” (64 FR 30041, June 4, 1999). Comments received on the draft guidance revealed that several general areas of the guidance needed revision and/or clarification.
Based on the comments received and on discussions with FDA's Pregnancy Labeling Subcommittee of the Advisory Committee for Reproductive Health Drugs on June 3, 1999 (64 FR 23340) and March 28 to 29, 2000 (65 FR 10811), the agency revised and/or clarified several sections of the guidance, including (1) When it is recommended that a registry be conducted, (2) use of comparison groups, (3) promotion of a registry and (4) regulatory reporting requirements. In addition, the name of the guidance was changed from “Pregnancy Registries” to “Pregnancy Exposure Registries” to more accurately reflect the nature of these types of studies and to differentiate them from more classic retrospective registries (e.g., cancer registries and birth defect registries).
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the agency's current thinking on pregnancy exposure registries. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may, at any time, submit written comments on the guidance to the Dockets Management Branch (address above). Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. The guidance document and received comments are available for public examination in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Persons with access to the Internet may obtain the guidance document at
National Park Service, Interior
Notice of request for extension of a currently approved information collection.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the National Park Service's intention to request an extension for a currently approved information collection in support of its Concession Management Program.
Comments in this notice must be received no later than November 22, 2002.
Contact Cynthia Orlando, Concession Program Manager, National Park Service, 1849 C Street, NW., (2410), Washington, DC 20240 or 202/513-7144.
16 U.S.C. 3 provides that no contract, lease, permit or privilege granted for the purpose of providing accommodations for visitors to the national parks shall be assigned or transferred by such grantee, permittees, or licenses without the approval of the NPS, first obtained in writing. It further provides that the NPS may authorize concessioners to execute mortgages and issue bonds, shares of stock, and other evidences or interest in or indebtedness upon their rights, properties and franchises, for the purposes of installing, enlarging or improving plant and equipment and extending facilities for the purposes of installing, enlarging or improving plant and equipment and extending facilities for the accommodation of the public within national parks and monuments. 16 U.S.C. 20(3) also provides that the possessory interest of a concessioner may be assigned, transferee, encumbered, or relinquished. Regulations at 36 CFR part 51 require that certain information be submitted for review by the NPS prior to the consummation of any sale, transfer, assignment or encumbrance.
The information requested is used to determine whether or not the proposed transaction will result in decreased services to the public, the lack of a reasonable opportunity for profit over the remaining term of the authorization, or rates in excess of existing approved rates to the public. In addition, pursuant to the regulations at 36 CFR, Part 51, the value of rights for intangible assets such as the concession contract, right of preference in renewal, user days, or low fees belong to the Government. If any portion of the purchase price is attributable either directly or indirectly to such assets, the transaction may not be approved. The amount and type of information to be submitted varies with the type and complexity of the proposed transaction. Without such information, the NPS would be unable to determine whether approval of the proposed transaction would be adequate.
A list of information required to be submitted with a request for sale, assignment, transfer or encumbrance of a concession authorization is set forth at 36 CFR 51.7.
Send comments regarding the accuracy of the burden estimate, ways to minimize the burden, including the use of automated collection techniques or other forms of information technology, or any other aspect of this collection to: Cynthia L. Orlando, Concession Program Manager, National Park Service, Department of the Interior, 1849 C Street, NW., (2410), Washington, DC 20240.
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.
National Park Service, Interior.
Public notice.
Public notice is hereby given that the National Park Service proposes to award a temporary concession contract authorizing the operation of mobile food services for the public within the Jamaica Bay Unit, Gateway National Recreation Area, New York for a term not to exceed two years.
Thirty (30) days after date of publication in the
Concession Program Manager, National Park Service, Northeast Region, Concession Management Program, 15 State Street, Boston, MA 02109-3572.
This temporary concession contract is being awarded to the Dover Gourmet Corporation, Plainview, New York. It is necessary to award the contract in order to avoid interruption of visitor services.
The action is issued pursuant to 36 CFR 51.24(a). This is not a request for proposals and no prospectus is being issued at this time. Gateway National Recreation Area is in the process of reviewing its visitor services plans for this location to develop a long-term strategy. This temporary contract will allow the continuation of services to the public during the planning process. You may be placed on a mailing list for receiving information regarding any future competitive solicitation by sending a written request to the above address.
National Park Service, Interior.
Public notice.
Pursuant to 36 CFR 51.23, public notice is hereby given that the National Park Service proposes to extend the following expiring concession contract for a period of up to three years, or until such time as a new contract is awarded, whichever occurs sooner.
The listed concession authorization will expire by its terms on December 31, 2002. The National Park Service has determined that the proposed extension is necessary in order to avoid interruption of visitor services and has taken all reasonable and appropriate steps to consider alternatives to avoid such interruption. This extension will allow the National Park Service to complete and issue a prospectus leading to the competitive selection of a concessioner for a new long-term concession contract covering this operation.
January 1, 2003.
Cynthia Orlando, Concession Program Manager, National Park Service, Washington, DC 20240, Telephone 202/565-1210.
National Park Service, Department of Interior.
Availability of draft environmental impact statement for the Special Resource Study for the Battle of Homestead and Carrie Furnaces sites.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, the National Park Service announces the availability of a Draft Environmental Impact Statement (DEIS) for the Special Resource Study for the Battle of Homestead and Carrie Furnaces sites in Homestead, Pennsylvania. The Department of the Interior and Related Agencies Appropriations Bill (House of Representatives Committee Report 105-609) directed the National Park System to undertake a Special Resource Study for the Battle of Homestead and Carrie Furnace sites in Pennsylvania. The purpose of a Special Resource Study is to determine the degree and kind of federal actions that may be desirable for the management and protection of an area considered to have potential for addition to the National Park System. This is a Special Resource Study (SRS) of the U.S. Steel Homestead Works including the Battle of Homestead site and adjacent town of Homestead and the related Carrie Furnace area. The study area includes the National Historic District in the town of Homestead, the landing site and pump house, the site of Carrie Furnaces number 6 and 7, and the Hot Metal Bridge. The study addresses the significance of the site in the contexts of the history of steel making and labor history in the United States.
The study area, includes portions of four boroughs within Allegheny County: Homestead, Munhall, Rankin and Swissvale.
The land under consideration is currently part of the Rivers of Steel National Heritage Area, but it is all in private ownership and there is not expected to be any federal ownership and no NPS management role. Instead, conservation, interpretation and other activities will continue to be managed by partnerships among federal, state, and local governments and private nonprofit organizations. The national heritage area is managed by the Steel Industry Heritage Corporation (SIHC), a non-profit 501(c)(3). The National Park Service has been authorized by Congress to provide technical and financial assistance for a limited period to the SIHC (up to 10 years from the time of the designation in 1996).
The DEIS will remain on Public Review for a period of sixty days after the Federal Register Announcement by the U.S. Environmental Protection Agency. If necessary a public meeting will be scheduled and notice will be made of the meeting through a broad public mailing and publication in the local newspapers.
Peter Samuel, Project Leader, Philadelphia Support Office, National Park Service, U.S. Custom House, 200 Chestnut Street, Philadelphia, PA 19106,
If you correspond using the internet, please include your name and return address in your e-mail message. Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
National Park Service, Department of the Interior.
Notice of intent to prepare an environmental impact statement for a General Management Plan, Chickasaw National Recreation Area, Oklahoma.
Under the provisions of the National Environmental Policy Act, the National Park Service is preparing an environmental impact statement (EIS) for a general management plan for Chickasaw National Recreation Area. The environmental impact statement will be approved by the Director, Intermountain Region.
The general management plan (GMP) will establish the overall direction for the park, setting broad management goals for managing the area over the next 15 to 20 years. The plan will prescribe desired resource conditions and visitor experiences that are to be achieved and maintained throughout the park. Based on the desired conditions, the plan will outline the kinds of resource management activities, visitor activities, and developments that would be appropriate in the park. Among the topics that will be addressed are protection of natural and cultural resources, water resources, management of the cultural landscape, appropriate range of visitor uses, facility developments, traffic patterns and circulation, staff needs, education and interpretive efforts, park partnerships, and external pressures on the park. In cooperation with local, state, tribal, and other federal agencies, attention will also be given to cooperative efforts to address issues that affect the integrity of Chickasaw National Recreation Area, such as the management of water resources.
A range of reasonable alternatives for managing the park, including a no-action and preferred alternative, will be developed through the planning process and included in the EIS. The EIS will evaluate the potential environmental impacts of the alternatives.
As the first phase of the planning and EIS process, the National Park Service is beginning to scope the issues to be addressed in the GMP/EIS. All interested persons, organizations, and agencies are encouraged to submit comments and suggestions regarding the issues or concerns the GMP/EIS should
Written comments on the scope of the general management plan/environmental impact statement will be accepted for 60 days beyond the publication of this Notice of Intent. In addition, public scoping sessions will be held at Sulphur and surrounding communities in the fall of 2002. Locations, dates, and times of these meetings will be provided in local and regional newspapers, a scoping newsletter to be mailed in September, and on the Internet at
Written comments or requests to be added to the project mailing list should be directed to: John F. (Rick) Shireman, Superintendent, Chickasaw National Recreation Area, 1008 W. 2nd, Sulphur, OK 73086, telephone (580) 622-3161, extension 1-200; e-mail:
Contact Superintendent, John F. (Rick) Shireman, Chickasaw National Recreation Area, 1008 W. 2nd, Sulphur, OK 73086, telephone (580) 622-3161, extension 1-200. General information about Chickasaw National Recreation Area is available on the Internet at
Please submit Internet comments as a text file avoiding the use of special characters and any form of encryption. Be sure to include your name and return street address in your Internet message.
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that their home addresses be withheld from the public record, which will be honored to the extent allowable by law. Requests to withhold names and/or addresses must be stated prominently at the beginning of the comments. However, submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public inspection in their entirety.
National Park Service, Interior.
Notice of availability of the Final Environmental Impact Statement for the General Management Plan, Fort Davis National Historic Site.
Pursuant to National Environmental Policy Act of 1969, 42 U.S.C. 4332(c), the National Park Service announces the availability of the Final Environmental Impact Statement for the General Management Plan, Fort Davis National Historic Site, Fort Davis, Texas.
The National Park Service will execute a Record of Decision (ROD) no sooner than 30 days following publication by the Environmental Protection Agency of the notice of availability of the Final Environmental Impact Statement.
Information will be available for public review in the office of the Superintendent, and at the following locations: (1) Superintendent, Fort Davis National Historic Site, P.O. Box 1379, Fort Davis, Texas 79734. (2) On the NPS Planning Web site at:
Superintendent, Fort Davis National Historic Site, P.O. Box 1379, Fort Davis, Texas 79734 915-426-3224, extension 21.
National Park Service, Interior.
Notice of Availability of a Final Environmental Impact Statement for the General Management Plan for Fort Frederica National Monument, Saint Simons Island, Georgia.
Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969, the National Park Service (NPS) announces the availability of a Final Environmental Impact Statement and General Management Plan (FEIS/GMP) for Fort Frederica National Monument, St. Simons Island, Georgia.
The Draft EIS/GMP was on public review from October 15, 2001 through December 15, 2001. Responses to public comment are addressed in the FEIS/GMP. A 30-day no-action period will follow the Environmental Protection Agency's Notice of Availability of the FEIS/GMP. After the 30-day period, a Record of Decision will be signed that will document NPS approval of the FEIS/GMP and identify the selected alternative for implementation.
Copies of the FEIS/GMP are available from the Superintendent, Fort Frederica National Monument, Route 9, Box 286-C, St. Simons Island, Georgia 31522. Public reading copies of the FEIS/GMP will also be available for review at the following locations:
• Division of Planning and Compliance, Southeast Regional Office, National Park Service, Attention: David Libman, 100 Alabama Street, 1924 Building, Atlanta, Georgia 30303, Telephone: 404-562-3124, ext. 685.
Superintendent, Fort Frederica National Monument, Route 9, Box 286C, St. Simons Island, Georgia 31522, Telephone: 912-638-3639
Consistent with the park's purpose, significance, and mission goals, the FEIS/GMP analyzes 4 alternatives for guiding management of the park over the next 15 to 20 years. The alternatives incorporate various management prescriptions to ensure resource protection and quality visitor experience conditions. The environmental consequences anticipated from implementing the various alternatives are addressed in the document. Impact topics include cultural resources, natural resources, visitor use and experience, and the socioeconomic environment. The following management alternatives were evaluated in the FEIS/GMP:
The responsible official for this Environmental Impact Statement is Jerry Belson, Regional Director, Southeast Region, National Park Service, 100 Alabama Street SW., 1924 Building, Atlanta, Georgia 30303.
National Park Service, Department of Interior.
Availability of the final environmental impact statement for the National Coal Heritage Area Management Plan.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, the National Park Service announces the availability of a Final Environmental Impact Statement (DEIS) for the National Coal Heritage Area (HCHA) in West Virginia. The National Coal Heritage Area Act of 1996 requires the NCHA, with guidance from the National Park Service, to prepare a management plan for the heritage area. The purpose of the Management Action Plan is to: (1) Set forth the integrated cultural, historical, and land resource management policies and programs in order to retain, enhance, and interpret the significant values of the lands, water, and structures of the Area. (2) describe the guidelines and standards for projects that involve preservation, restoration, maintenance, operations, interpretation, and promotion of buildings, structures, facilities, and sites; and (3) set forth the responsibilities of the State of West Virginia, units of local government, nonprofit entities, in order to further historic preservation and compatible economic revitalization.
The study area, designated as the National Coal Heritage Area, includes the following eleven counties in the southern region of West Virginia: Boone, Cabell, Fayette, Logan, McDowell, Mercer, Mingo, Raleigh, Summers, Wayne, and Wyoming.
The National Park Service (NPS) maintains three park sites within the region: New River Gorge National River, The Bluestone National Scenic River and the Gauley National Recreation Area. Otherwise the majority of land is non-federal and the NPS assumes a management role only within their park units. Instead, conservation, interpretation and other activities are managed by partnerships among federal, state, an local governments and private nonprofit organizations. The national heritage area is managed by the State of West Virginia Division of Culture and History, and Division of Tourism, but will be managed in the future by a State Authority. The National Park Service has been authorized by Congress to provide technical and financial assistance for a limited period to the state (up to 10 years from the time of the designation in 1996).
The FEIS will remain on Public Review for thirty days after announcement is made by the U.S. Environmental Protection Agency of its availability.
Peter Samuel, Project Leader, Philadelphia Support Office, National Park Service, U.S. Custom House, 200 Chestnut Street, Philadelphia, PA 19106,
If you correspond using the internet, please include your name and return address in your e-mail message. Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the record a respondent's identify, as allowable by law. If you wish to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of
National Park Service, Interior.
Notice; correction.
The National Park Service published a document in the
Kevin Brandt, 301-714-2201.
In the
The area under consideration for the proposed crossing is between the U.S. 15 bridge area and the Nolands Ferry boat ramp area along the canal near the community of Point of Rocks in Frederick County, Maryland.
National Park Service.
Notice of Intent to prepare an Environmental Impact Statement and to Hold Public Scoping Meetings for the Chesapeake Bay Special Resource Study.
This notice announces the intent to prepare an environmental impact statement and hold public scoping meetings for the Chesapeake Bay Special Resource Study.
The Fiscal Year 1999 appropriations bill for the Department of the Interior and related agencies included direction to the National Park Service to conduct a Chesapeake Bay Special Resource Study. The purpose of the study is to explore the appropriateness of representing additional Chesapeake Bay resource areas within the national park system and determine whether this would help advance the partnership effort to conserve and restore the Chesapeake Bay; to determine what type of resource(s) and concept(s) might be appropriate, if any; and to make recommendations to Congress regarding these findings. Such recommendations will focus on overall concepts and criteria, rather than evaluating specific sites. Direct input from political, environmental, business and community leaders, as well as local citizens, will help develop these concepts and criteria.
Four public meetings will be held in September 2002 to discuss the Chesapeake Bay Special Resource Study being undertaken by the National Park Service and to conduct scoping for an associated Environmental Impact Statement. The study is authorized by the fiscal year 1999 appropriations bill for the Department of the Interior. For information on specific meeting dates and locations may be obtained from
National Park Service, Interior.
Backcountry Management Plan, General Management Plan Amendment, and Environmental Impact Statement, Gates of the Arctic National Park and Preserve, Alaska.
The National Park Service (NPS) is amending the Gates of the Arctic National Park and Preserve General Management Plan with a Backcountry Management Plan and accompanying Environmental Impact Statement (plan/EIS). Gates of the Arctic National Park and Preserve was established by the 1980 Alaska National Interest Lands Conversation Act (ANILCA). With passage of ANILCA, Congress designated 7.2 million acres of wilderness within the park and set forth special provisions for management in recognition of the unique situations and traditional lifeways of Alaska.
The purpose of the plan/EIS is to formulate a comprehensive plan that will provide management direction during the next 15-20 years for the backcountry of Gates of the Arctic National Park and Preserve. The backcountry consists of all of the acreage within the park and preserve boundary, including 7.2 million acres of designated wilderness. Tracts in private ownership are excluded.
Gates of the Arctic National park and Preserve is one of four national park units in Alaska to initiate a backcountry management planning process and GMP amendment. This notice of intent is being published simultaneously with notices to prepare plan/EISs for Glacier Bay National Park and Preserve and Wrangell-St. Elias National Park and Preserve. A plan/EIS for Denali National Park and Preserve is underway (64 FR 49503, September 13, 1999).
The Gates of the Arctic National Park and Preserve plan/EIS is being prepared in response to the increasing level and diversity of activities in the park, resource management and protection needs, and requests for activities and facilities not anticipated or addressed in the 1986 General Management Plan. Specific topics to be addressed in the plan/EIS include, but are not limited to: backcountry hiking, sport hunting, mountaineering, aviation, boating, snowmobiling, dogsledding, commercial services, administrative and scientific/research activities, and the various facilities related to these activities.
The proposed action and other action alternatives will assess variations in the types and levels of backcountry activities and facilities. Toward this end, prescriptive management zones will be described and allocated to park land to provide a spectrum of visitor experience opportunities, resource
The NPS requests written and verbal comments about the scope of the planning process (e.g., issues and concerns, alternatives, potential environmental impacts), from federal and state agencies, local government, Native tribes, private organizations, backcountry users, and the general public. Further information on this planning process will be available through public scoping meetings, press releases, web sites, and newsletters. Joint public scoping meetings on the plans/EISs for The Gates of the Arctic National Park and Preserve, Glacier Bay National Park and Preserve, and Wrangell-St. Elias National Park and Preserve will be held in Fairbanks, Anchorage, and Juneau, Alaska, as well as in Seattle, Washington. Additional scoping meeting will be held in communities near the respective parks. The public will be notified in the future of the specific dates, times, and locations of the scoping meeting.
The Gates of the Arctic draft plan/EIS is anticipated to be available for public review in the spring of 2004. Public meetings will be scheduled during the 60-day comment period after release of the draft plan/EIS.
Interested groups, organizations, individuals, and government agencies are invited to comment on the plan. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the administrative record, which we will honor to the extent allowable by law. There also may be circumstances in which would withhold from the administrative record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will not, however, consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
The plan/EIS is being prepared in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4331
David D. Mills, Superintendent, Gates of the Arctic National Park and Preserve, 201 First Avenue, Fairbanks, Alaska 99701. Telephone (907) 457-5752.
National Park Service, Interior.
Backcountry management plan, General Management Plan Amendment, and Environmental Impact Statement, Glacier Bay National Park, Alaska.
The National Park Service (NPS) is amending the Glacier Bay National Park and Preserve General Management Plan with a Backcountry Management Plan and accompanying Environmental Impact Statement (plan/EIS). Glacier Bay National Park and Preserve was expanded by the 1980 Alaska National Interest Lands Conservation Act (NILCA). With passage of ANILCA, Congress designated nearly 2.7 million acres of wilderness within the park and set forth special provisions for management in recognition of the unique situations and traditional lifeways in Alaska.
The purpose of the plan/EIS is to formulate a comprehensive plan that will provide management direction during the next 15-20 years for the backcountry of Glacier Bay National Park. The backcountry consists of all designated wilderness lands and waters within the part except the Alsek River watershed, which is managed cooperatively with British Columbia Parks, Parks Canada, and the Yukon Department of Renewable Resources. The plan/EIS also will cover a non-wilderness island in Blue Mouse Cove and Cenotaph Island in Lituya Bay. Glacier Bay National Preserve, the Bartlett Cove area, and tracts in private ownership are excluded.
Glacier Bay National Park is one of four national park units in Alaska to initiate a backcountry management planning process and GMP amendment. This notice of intent is being published simultaneously with notices to prepare plans/EISs for Wrangell-St. Elias National Park and Preserve and Gates of the Arctic National Park and Preserve. A plan/EIS for Denali National Park and Preserve is underway (64 FR 49503, September 13, 1999).
The Glacier Bay National Park plan/EIS is being prepared in response to the increasing level and diversity of activities in the park, resource management and protection needs, and requests for activities and facilities not anticipated or addressed in the 1984 General Management Plan or the 1989 Wilderness Visitor Use Management Plan. Specific topics to be addressed in the plan/EIS include, but are not limited to: backcountry hiking, mountaineering, aviation, non-motorized boating (such as kayaking), commercial services, administrative and scientific/research activities, and the various facilities related to these activities. Motorized vessels in Glacier Bay proper, Dundas Bay, and Taylor Bay will be addressed under the Vessel Quota and Operating Plan/EIS currently under development (67 FR 8313, February 22, 2002).
The proposed action and other action alternatives will assess variations in the types and levels of backcountry activities and facilities. Toward this end, prescriptive management zones will be described and allocated to park land to provide a spectrum of visitor experience opportunities, resource conditions, and management activities throughout the backcountry of Glacier Bay National Park. A no-action alternative also will be evaluated.
The NPS requests written and verbal comments about the scope of the planning process (
The Glacier Bay draft plan/EIS is anticipated to be available for public review in the fall of 2004. Public meetings will be scheduled during the 60-day comment period after release of
The plan/EIS is being prepared in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4331
Tomie Lee, Superintendent, Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 99826. Telephone (907) 697-2232.
The National Park Service, in accordance with the provisions of the National Environmental Policy Act (42 U.S.C. 4321
The Golden Gate National Recreation Area (GGNRA) is a unit of the National Park System located in the San Francisco Bay Area, in central California. Congress established GGNRA “in order to preserve for public use and enjoyment certain areas of Marin and San Francisco Counties, California, possessing outstanding natural, historic, scenic, and recreational values, and in order to provide for the maintenance of needed recreational open space necessary to urban environment and planning * * * (Public Law 92-589).” Point Reyes National Seashore, a nearby unit of the National Park System, is wholly located in Marin County, California. It was established by Congress “to save and preserve, for the purpose of public recreation, benefit, and inspiration, a portion of the diminishing seashore of the United States that remains undeveloped” (Public Law 87-657). By prior management agreement, Point Reyes National Seashore administers the north district of GGNRA within Marin County.
In certain instances, the National Park Service (NPS) has expanded upon the concept of “preservation” to incorporate restoration, as well as conservation. In its 2001 Management Policies, the NPS emphasized that it will “* * * strive to achieve a longer term goal of net gain of wetlands across the national park system through restoration of previously degraded or destroyed wetlands (§ 4.6.5).” Furthermore, the new Policies encourage units of the National Park System to “* * * protect, preserve, and restore the natural resources and functions of floodplains (§ 4.6.4).”
In keeping with these resource conservation policies, the NPS proposes to restore wetlands at a 563-acre historic coastal salt marsh site formerly known as the Giacomini Ranch in Tomales Bay. Tomales Bay is a 12-mile-long coastal bay that borders Point Reyes National Seashore to the north. This area of coastal salt marsh was diked in 1946, and these lands had been utilized by the Waldo Giacomini family as a dairy since then. In 2000, the NPS purchased the Giacomini property using a combination of federal and state funds. State funding was provided by the California Department of Transportation (Caltrans), which was under obligation to the California Coastal Commission to mitigate for impacts resulting from road repairs on Highway 1 in Marin County conducted in the early 1990s. The California Coastal Commission permitted Caltrans to mitigate for the road repair impacts through transfer of funds to the NPS to purchase, restore, and manage a wetland site at the Giacomini Ranch.
The NPS believes that the potential value of restoring the Giacomini Ranch would be important not only for these national park lands and resources, but to the Tomales Bay watershed ecosystem as a whole. By some accounts, the state of California has suffered the loss of more than 95 percent of its coastal wetlands. The percentage of loss is not quite as high in Tomales Bay, but a large percentage of the coastal wetlands once present were lost when this deltaic land at the head of the bay was reclaimed for agricultural purposes. Coastal wetlands provide essential ecosystem functions benefiting both humans and wildlife through floodwater storage, food production, and filtration of nutrients and sediments. Increasing the acreage of coastal wetlands could increase wetland functions and result in improved environmental conditions for both humans and wildlife in the Tomales Bay watershed. The San Francisco District of the Regional Water Quality Control Board has determined that Tomales Bay is impaired by sediment, nutrients, fecal coliform, and mercury (pursuant to § 303(d) of the Clean Water Act). This condition jeopardizes not only the bay's well-known oyster fisheries, but the wildlife species that use Tomales Bay for breeding or foraging habitat such as Pacific harbor seals, seal lions, gray whales, California brown pelican, and Pacific herring.
Point Reyes National Seashore is in the initial stages of the conservation planning process for this initiative, and the park desires public input on a suitable range of alternatives. It is anticipated that methods for restoring the Giacomini wetlands area would likely involve some type of geomorphic-topographic alterations aimed at recovering natural hydrologic and ecological processes. These potential alterations could change the current hydrologic regime within the proposed project area, leading either to muted tidal action, full tidal action, and/or natural creek action (
The possible larger-scale issues or concerns associated with the proposed restoration project include potential impacts (both positive and negative) to threatened or endangered species protected under the federal Endangered Species Act; potential impacts to soils designated as Farmland of Statewide and Local Importance; change in land use; opportunities for and constraints on public access; and potential effects (both positive and negative) on flooding and saltwater intrusion into local groundwater supplies, including Point Reyes Station, stemming from implementing restoration actions.
As noted, the NPS will undertake a conservation planning and environmental impact analysis process to address issues and identify alternatives for the Giacomini Wetlands Restoration Project. Federal, state, and local agencies, affected individuals, and interested organizations and groups are encouraged to participate in the scoping process. The level of California state or local involvement in the environmental impact analysis process is also yet to be determined. If an environmental document is required under the California Environmental Quality Act (CEQA), the NPS will coordinate the NEPA-CEQA public involvement and analysis process with the designated local lead agency (or agencies) responsible for fulfilling requirements under CEQA.
A key opportunity during the scoping phase will be a public meeting to be held on October 19, 2002. For those persons unable to attend the meeting, a scoping document will be available through the Seashore. At this time, primary topics expected to be addressed at the public meeting include: background information on the purpose and need for restoring the wetlands; local issues and concerns (
If individuals submitting comments request that their name or\and address be withheld from public disclosure, it will be honored to the extent allowable by law. Such requests must be stated prominently in the beginning of the comments. There also may be circumstances wherein the NPS will withhold a respondent's identity as allowable by law. As always: the NPS will make available for public inspection all submissions from organizations or businesses and from persons identifying themselves as representatives or officials of organizations and businesses; and, anonymous comments may not be considered.
At this time, the draft EIS is expected to be available for public review in winter 2003/2004; and the final environmental document will be completed in winter 2004/2005. As a delegated EIS, the official responsible for the final decision is the Regional Director, Pacific West Region. Subsequently the Superintendent, Point Reyes National Seashore, would be responsible for implementing the approved restoration and management actions.
National Park Service, Interior.
Notice to extend the public comment period on scoping issues for preparation of an environmental impact statement (EIS) for the Colorado River Management Plan, Grand Canyon National Park.
On June 13, 2002, pursuant to the National Environmental Policy Act (NEPA), the public was advised that the National Park Service intends to prepare an EIS for the Colorado River Management Plan (CRMP) for Grand Canyon National Park. Due to public interest, following five successful public scoping meetings in August, the agency will extend the written public comment period and conduct two additional public scoping meetings in the San Francisco/Oakland and the Washington, DC/Baltimore areas.
The public scoping period is being extended to November 1, 2002. Submissions should be in writing or by e-mail (
Written comments on issues to be addressed in the EIS.CRMP should be sent to CRMP Project, Grand Canyon National Park, P.O. Box 129, Grand Canyon, Arizona 86023.
Comments may be submitted by any one of several methods. You may mail comments to CRMP Project, Grand Canyon National Park, P.O. Box 129, Grand Canyon, Arizona 86023. You may also comment via electronic mail (e-mail) to
Joseph Alston, Superintendent, Grand Canyon National Park, (928) 638-7945.
National Park Service, Department of the Interior.
Notice of Intent to prepare an environmental impact statement for an Integrated Multimodal Transportation Plan, Grand Teton National Park.
Under the provisions of the National Environmental Policy Act, the National Park Service is preparing an environmental impact statement for an Integrated Multimodal Transportation Plan for Grand Teton National Park. The environmental impact statement will be approved by the Director, Intermountain Region.
The Integrated Multimodal Transportation Plan will serve as a management and decision making tool for developing short and long-term solutions to problems associated with transportation in and around Grand Teton National Park. The primary objectives of the plan include (1) regional partnerships between the park and its gateway communities to reduce traffic impacts in both the park and surrounding communities, minimize duplication of services and facilities, and provide links to regional pathways to improve recreational opportunities in the park; (2) increasing the range of travel mode choices within the park, other than via private automobile, available to visitors, residents and employees of all ages and physical abilities; (3) provisions for safe travel throughout the park by all modes; and (4) protection of the park's natural and cultural resources from impacts attributable to vehicles and visitor use, including inappropriate parking along roadways or parking lot edges, noise, air quality, and wildlife mortality.
The National Park Service conducted public scoping (public meetings and solicitation of comments from state, county and town agencies and organizations; park neighbors; state historic preservation officer; and associated American Indian tribes) for the Integrated Multimodal Transportation Plan from December, 2001 to January, 2002 and began preparing an environmental assessment for a range of draft alternatives. Due to the degree to which potential impacts are uncertain, the National Park Service is proceeding with preparation of an environmental impact statement.
The National Park Service will conduct further public scoping for the draft alternatives and environmental impact statement for a period of 30-days beyond publication of this Notice of Intent.
You may mail comments to: Integrated Multimodal Transportation Plan, Superintendent's Office, Grand Teton National Park, PO Drawer 170, Moose, WY 83012. You may also hand-deliver comments to the Superintendent's Office, Grand Teton National Park, Moose, Wyoming (Attn: Integrated Multimodal Transportation Plan).
Superintendent Steve Martin, Grand Teton National Park, PO Drawer 170, Moose, WY 83012; Tel: (307) 739-3410; FAX: (307) 739-3440; e-mail:
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
National Park Service, Department of the Interior.
Notice of intent to prepare an environmental impact statement for the Wildland Fire Management Plan, Mesa Verde National Park.
Under the provisions of the National Environmental Policy Act of 1969, the National Park Service is preparing an environmental impact statement for a wildland fire management plan for Mesa Verde National Park. This effort will result in a new wildland fire management plan that meets current policies, provides a framework for making fire-related decisions, and serves as an operational manual. Much has changed in the park and within the agency since the park's current fire management plan was adopted in 1996. Since that time, Mesa Verde was subjected to three large catastrophic fires that have physically altered over 60% of the landscape. In addition, recent policy changes resulting from the 2000 National Fire Plan indicate that a new plan is necessary. The plan will be developed in consultation with local communities, other federal and state agencies, the 24 tribes legally associated with the park, including the neighboring Ute Mountain Ute Tribe, and all other interested and affected organizations and individuals. A range of alternatives will be developed through this planning process and will include a no-action alternative and all other reasonable alternatives. The alternatives will consider fuel condition, weather, air quality, natural and cultural resources, safety, and structure protection, and include a range of appropriate strategies including full fire suppression, fire use such as through prescribed fire, and mechanical fuels treatment such as removal of hazardous fuels. The plan will identify the agencies preferred alternative and the environmentally preferred alternative.
Issues to be addressed include the safety of the public, employees and firefighters; protection of natural and
The scoping process will include public meetings to explain the planning process, solicit alternative ideas, and identify issues to be addressed in the plan. Specific dates, times and locations of the meetings will be announced in the local media and will also be available by contacting the Superintendent of Mesa Verde National Park. Information about the planning process as well as copies of the draft and final plans will be posted on the park's Web site at
The public scoping process will be initiated from the date this notice is published in the
Information will be available for public review and comment in the Mesa Verde Park Headquarters (970) 529-4465.
Larry Wiese, Superintendent, Mesa Verde National Park, P.O. Box 8, Mesa Verde, CO 81330, (970) 529-4465.
If you wish to provide input, you may submit your comments or questions by any one of several methods. Comments will be collected during the public meetings, or can be sent or hand delivered to: Larry Wiese, Superintendent, Mesa Verde National Park, P.O. Box 8, Mesa Verde, CO 81321. You may also comment via the Internet to
National Park Service, Department of the Interior.
Notice of intent to prepare an environmental impact statement for the Transportation Plan, Mesa Verde National Park.
Under the provisions of the National Environmental Policy Act of 1969, the National Park Service is preparing an environmental impact statement for the transportation plan for Mesa Verde National Park. This effort will result in a comprehensive transportation plan that considers various means to get visitors and employees into the park, and effectively manage use within the park in order to enhance visitor experience, protect resources and otherwise carry out the mission of the park. The plan will be developed in consultation with local communities, other federal and state agencies, the 24 tribes affiliated with the park, including the neighboring Ute Mountain Ute Tribe, and all other interested and affected organizations and individuals. Alternatives to be considered include no-action, the environmentally preferred alternative, the agency-preferred alternative, and transportation options such as improving roadway, parking and trail facilities, using various ground and aerial guideway systems, applying various visitor management strategies, and other ideas that come out of the public process.
Major issues include protecting natural resources, systems and processes; protecting cultural resources such as archeological, ethnographic, historic and landscape resources; changes to the visitor experience; requirements of the Americans with Disabilities Act; local economic impacts that may result from any changes to visitor use; cultural concerns of the 24 affiliated tribes; and impacts to park operations and existing and future capacity constraints of any proposed transportation system.
A scoping newsletter will be distributed via mail and will be posted on the Internet. Also, meetings will be held to solicit input from the public, federal and state agencies, and affiliated tribes. Copies of scoping information may be obtained from Larry T. Wiese, P.O. Box 8, Mesa Verde, CO 81330, (970) 529-4465.
The scoping period will be a minimum of 60 days and will begin the date this notice is published in the
Information will be available for public review and comment in the Mesa Verde National Park Headquarters (970) 529-4465.
Larry T. Wiese, Superintendent, Mesa Verde National Park, (970) 529-4465.
If you wish to comment on the scoping brochure, or any other issues associated with the plan, you may submit your comments or questions by any one of several methods. You may mail comments to Patricia Trap, Planner, Mesa Verde National Park, P.O. Box 8, Mesa Verde, CO 81330. You may also comment via the Internet to
National Park Service.
Notice of intent for a General Management Plan/Environmental Impact Statement for Monocacy National Battlefield (NB), Maryland.
Under the provisions of the National Environmental Policy Act of 1969, the National Park Service (NPS) is preparing an environmental impact statement for the general management plan (GMP) for Monocacy National Battlefield. The planning effort will result in a comprehensive general management plan that encompass preservation of cultural and natural resources, visitor use and interpretation, and necessary and appropriate facilities. In cooperation with local interests, attention will also be given to resources outside the boundaries that affect the integrity of the battlefield. Alternatives to be considered include no-action, the preferred alternative, and other alternatives addressing the following major issues:
• How can the important natural and cultural resources be best protected and preserved, while providing for visitor use for present and future generations?
• What level and type of use is appropriate to be consistent with the park's purpose and to relate to the park's significance?
• What facilities are needed to meet the mission goals of the park regarding natural and cultural resource management, visitor use and interpretation, partnerships, and operations?
The NPS is planning to hold public scoping meetings regarding the project during the week of July 29, 2002. Specific dates, times, and locations will be announced in the local media, and can be obtained by contacting the park superintendent. The purpose of these meetings is to explain the planning process and to obtain comments concerning appropriate resource management desired visitor use, interpretation, facilities, and issues that need to be resolved. In addition to attending scoping meetings, people wishing to provide input to this initial phase of developing GMP may address comments to the superintendent. Scoping comments should be received no later than 60 days from the publication of this Notice of Intent.
Park Manager Susan Trail, 4801 Urbana Pike, Frederick, Maryland 21704-7307; telephone: (301) 662-6980; fax: (301) 662-3420; e-mail:
National Park Service, Interior.
Notice of intent to prepare an environmental impact statement for the Fire Management Plan for Saguaro National Park.
Under the provisions of the National Environmental Policy Act of 1969, the National Park Service is preparing an environmental impact statement for the Fire Management Plan for Saguaro National Park. This effort will result in a new wildland fire management plan that meets current policies, provides a framework for making fire-related decisions, and serves as an operational manual. Development of a new fire plan is compatible with the broader goals and objectives derived from the park purposes that governs resources management. Alternatives to be considered include no-action, the Fire Management Unit Based Plan Natural Ignition, and Landscape Plan. The no-action alternative maintains the current 1991 fire management plan strategy of suppression, prescribed natural fire, and prescribed burning. The Fire Management Unit Based Plan Natural Ignition alternative would allow fires to burn in certain areas of the park under conditions which meet resource objectives. Prescribed fires would be carried out by park personnel to reduce hazardous fuel accumulations around developments and near park boundaries. The Landscape Plan calls for the National Park Service and adjacent U.S. Forest Service to jointly formulate a fire management plan that covers the entire landscape of the Rincon Mountains or a more naturally bounded portion of the range.
Major issues include environmental effects of the FMP that are potential problems and include depression of plant and wildlife populations,
A scoping brochure has been prepared describing the issues identified to date. Copies of the brochures may be obtained from Sarah Craighead, Superintendent, Saguaro National Park, 3693 S. Old Spanish Trail, Tucson, AZ 95730, (520) 733-5153.
The Park Service will accept comments from the public for 30 days from the date this notice is published in the
Information will be available for public review and comment in the Fire Management Office, Saguaro National Park, 3693 S. Old Spanish Trail, Tucson, AZ 85730, (520) 733-5130.
Chuck Scott, Fire Management Officer, Saguaro National Park, (520) 733-5130.
If you wish to comment on the scoping brochure, or any other issues associated with the plan, you may submit your comments by any one of the several methods. You may mail comments to Chuck Scott, Fire Management Officer, Saguaro National Park, 3693 S. Old Spanish Trail, Tucson, AZ 85730. You may also comment via the Internet to
National Park Service, Interior.
Notice of intent to prepare an environmental impact statement (EIS) for a right-of-way request to cross the Saint Croix National Scenic Riverway (Riverway) with the Arrowhead—Weston Electric Transmission Line Project, Wisconsin.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The Arrowhead-Weston Electric Transmission Line Project is a proposed 345-kilovolt (kV) bulk electric transmission line that would reach 220 miles from the Arrowhead Substation near Duluth, Minnesota to the Weston Substation near Wausau, Wisconsin. According to the applicants, the purpose of the project is to strengthen the bulk transmission system by providing a second high-capacity connection across the Wisconsin-Minnesota transmission interface. The Public Service Commission of Wisconsin, the State Agency with regulatory authority for the overall project, approved the routing for the line in late 2001. The Utilities are now seeking other necessary permits from Federal, State and local agencies.
The State-approved route for the Arrowhead-Weston Project crosses the Namekagon River in Stinnett Township, approximately 10 river miles west of Hayward, Wisconsin. The Namekagon River is part of the Riverway, which is administered by the NPS. The Utilities need a right-of-way permit from the NPS to cross the Riverway. The Utilities propose to cross at an existing 161-kV transmission line easement granted to Xcel Energy by private landowners prior to NPS land acquisition in the area. The span of the transmission line that would be within the Riverway boundary is 4500 feet.
The EIS will consider a range of alternatives for the crossing including a double-circuit single overhead transmission line combined with the existing 161-kV line, undergrounding the existing 161kV with the proposed 345-kV line built overhead, undergrounding the 345-kV line with the 161-kV line built overhead, and undergrounding both lines. Depending on the alternative, an additional 10-55 feet of right-of-way would be required on the eastside of the existing transmission line easement. A no action alternative will be included to provide a baseline of existing conditions against which to compare the impacts of the action alternatives. An additional alternative will be considered that would go around the Namekagon River to the east in order to disclose the potential impacts should the right-of-way request be denied. Since the NPS has no authority to require such a route, this alternative will be explored in a general, rather than site specific, sense.
The Riverway was designated under the Wild and Scenic Rivers Act in 1968 (Public Law 90-542, as amended; 16 U.S.C. 1271-1287) to protect its free-flowing quality and its outstanding natural, scenic, aesthetic, cultural, and recreational values. The EIS will analyze the impacts of each alternative on natural and cultural resources, scenic values, recreation use, and social and economic resources. Major issues to be addressed in the EIS will include the impact of the proposed crossing on scenic values and the visitor experience. The responsible NPS manager must determine whether or not the proposed action could lead to impairment of park resources and values. The information presented in the EIS will be used to reach a decision about the right-of-way request.
Additional issues to be addressed in the EIS may be identified during the scoping process. Federal, State, local agencies, and individuals or organizations are invited to participate in the scoping process. The scoping process will include the identification of potential issues, the identification of potential impact topics and topics to be analyzed in depth, and the determination of potential cooperating agencies and assignment of responsibilities.
A public scoping meeting in an open house format will be held in the Hayward area in early fall. Public notice
Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request we withhold their home address from the record, which we will honor to the extent allowable by law. There may also be circumstances where we would withhold from the record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives, officials, organizations, or businesses, available for public inspection in their entirety.
Ms. Jill Medland, Compliance Specialist, Saint Croix National Scenic Riverway, PO Box 708, 401 Hamilton Street, Saint Croix Falls, Wisconsin 54024, telephone 715-483-3284, Extension 609.
National Park Service, Interior.
Notice of Intent (NOI) to prepare a Draft Environmental Impact Statement (DEIS).
Notice is hereby given that in accordance with the National Environmental Policy Act of 1969, the U.S. Department of the Interior, National Park Service (NPS) will prepare a Draft Environmental Impact Statement (DEIS) on the Feasibility Study (Special Resource Study) on the Preservation of Civil War Battlefields and Related Historic Sites along the Vicksburg Campaign Trail in Arkansas, Louisiana, Mississippi, and Tennessee. These sites will each be examined with a view to how they might best be preserved and linked together into the Vicksburg Campaign Trail. The study process entails evaluating the national significance, suitability, feasibility, and management options for each identified site according to NPS standards and criteria established by the Civil War Sites Advisory Commission Report on the Nation's Civil War Battlefields (1993).
For each site, experts and professional historians will determine whether it qualifies as Tier I (nationally significant), Tier II (regionally or state significant), or Tier III (locally significant). Based on this evaluation, some sites may be recommended for addition to the National Park System. Protection and interpretation of sites not recommended for addition to the National Park System will be sought via other arrangements, that may include management by other Federal agencies, State or local governments, non-profit organizations or private owners. These different management options form the basis for various alternatives, the environmental impacts of which will be analyzed in the DEIS. Through the scoping process, the NPS welcomes suggestions from the public both of potential sites and possible management options.
Public meetings will be conducted during the course of the project. Additional scoping opportunities such as public meetings, newsletters, etc. will be announced in the local media. Representatives of the NPS will be available to discuss issues, resource concerns, and the planning process at each of the public meetings. This Notice will also serve as an additional scoping method. Persons who may be interested in or affected by the Feasibility Study/DEIS are invited to participate in the scoping process by responding to this Notice with written comments. The scoping process will help define issues or problems facing the feasibility study.
Comments on the Vicksburg Campaign Trail Feasibility Study, potential sites, management options, and environmental issues that should be addressed should be directed to Bill Koning, National Park Service Planner, Denver Service Center, PO Box 25287, 12795 W. Alameda Parkway, Denver, CO 80225-0287.
Requests for information concerning dates and background on the feasibility study, including a brochure describing the process should be directed to William O. Nichols, Superintendent, Vicksburg National Military Park, 3201 Clay Street, Vicksburg, MS 39183, (601) 636-0583, or Bill Koning, National Park Service Planner, Denver Service Center, PO Box 25287, 12795 W. Alameda Parkway, Denver, CO 80225-0287, (303) 969-2390.
On July 4, 1863, after an eight-month campaign and siege, heavily-fortified Vicksburg, Mississippi capitulated to Federal forces commanded by General Ulysses S. Grant. This surrender gave the Union control of the Lower Mississippi River and effectively cut the Confederate States of America in half. It was regarded by many at the time, including President Abraham Lincoln, as one of the pivotal events of that great conflict; contemporary Civil War historians continue to regard it in that light. Grant's monumental campaign to capture the “Gibraltar of the Confederacy” is seen by military historians as a brilliant logistical exhibition, encompassing long and difficult flanking maneuvers, cavalry raids, pitched battles, naval engagements, and siege warfare. Grant's triumph at Vicksburg paved the way for his subsequent battles at Chattanooga in November 1863, and then—as commander of all Union armies—at the Wilderness and Petersburg; ultimately, it made possible his starring role at Appomattox as well as his eventual election as President of the United States.
In November 2000, Public Law 106-487 authorized a feasibility study on the preservation of Civil War battlefields along the Vicksburg Campaign Trail. The task is to examine and evaluate a variety of sites in four states associated with the Civil War events of the Vicksburg Campaign. The feasibility study is to be completed within three years and is to examine a large number (over 400) and wide variety of sites in Arkansas, Louisiana, Mississippi, and Tennessee. Each site will be evaluated for national significance, as well as the suitability and feasibility of adding it to the National Park System. This DEIS will examine the potential environmental effects of different management options for the sites found to be eligible for inclusion in the National Park System.
The legislation directs a review of current NPS programs, policies, and criteria to determine the most appropriate means of preservation; to make evaluations for the establishment
The responsible official for this DEIS is Jerry Belson, Regional Director, National Park Service, Southeast Region, 100 Alabama Street SW., Atlanta, Georgia 30303.
National Park Service, Interior.
Backcountry Management Plan, General Management Plan Amendment, and Environmental Impact Statement, Wrangell-St. Elias National Park and Preserve, Alaska.
The National Park Service (NPS) is amending the Wrangell-St. Elias National Park and Preserve General Management Plan with a Backcountry Management Plan and accompanying Environmental Impact Statement (plan/EIS). Wrangell-St. Elias National Park and Preserve was established by the 1980 Alaska National Interest Lands Conservation Act (ANILCA). With passage of ANILCA, Congress designated 8.9 million acres of wilderness within the park and preserve and set forth special provisions for management in recognition of the unique situations and traditional lifeways of Alaska.
The purpose of the plan/EIS is to formulate a comprehensive plan that will provide management direction during the next 15-20 years for the backcountry of Wrangell-St. Elias National Park and Preserve. The backcountry currently is defined to include the park's designated wilderness and other non-developed areas of the park. The Nabesna and McCarthy roads would not be included in this process. Tracts in private ownership are excluded, including the settled areas of McCarthy/Kennecott, Slana, Nabesna, Chisana, and May Creek. The airstrips associated with these settlements would be excluded as well.
Wrangell-St. Elias National Park and Preserve is one of four national park units in Alaska to initiate a backcountry management planning process and GMP amendment. This notice of intent is being published simultaneously with notices to prepare plans/EISs for Glacier Bay National Park and Preserve and Gates of the Arctic National Park and Preserve. A plan/EIS for Denali National Park and Preserve is underway (64 FR 49503, September 13, 1999).
The Wrangell-St. Elias National Park and Preserve plan/EIS is being prepared in response to the increasing level and diversity of activities in the park, resource management and protection needs, and requests for activities and facilities not anticipated or addressed in the 1986 General Management Plan. Specific topics to be addressed in the plan/EIS include, but are not limited to: backcountry hiking, sport hunting, mountaineering, aviation, boating, snowmobiling, dogsledding, commercial services, administrative and scientific/research activities, and the various facilities related to these activities.
The proposed action and other action alternatives will assess variations in the type and levels of backcountry activities and facilities. Toward this end, prescriptive management zones will be described and allocated to park land to provide a spectrum of visitor experience opportunities, resource conditions, and management activities throughout the backcountry of Wrangell-St. Elias National Park and Preserve. A no-action alternative also will be evaluated.
The NPS requests written and verbal comments about the scope of the planning process (e.g., issues and concerns, alternatives, potential environmental impacts), from federal and state agencies, local government, Native tribes, private organizations, backcountry users, and the general public. Further information on this planning process will be available through pubic scoping meetings, press releases, web sites, and newsletters. Joint public scoping meetings on the plans/EISs for Wrangell-St. Elias National Park and Preserve, Glacier Bay National Park and Preserve, and Gates of the Arctic National Park and Preserve will be held in Fairbanks, Anchorage, and Juneau, Alaska, as well as in Seattle, Washington. Additional scoping meetings will be held in communities near the respective parks. The public will be notified in the future of the specific dates, times, and locations of the scoping meetings.
The Wrangell-St. Elias draft plan/EIS is anticipated to be available for public review in the spring of 2005. Public meetings will be scheduled during the 60-day comment period after release of the draft plan/EIS.
Interested groups, organizations, individuals, and government agencies are invited to comment on the plan. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the administrative record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the administrative record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will not, however, consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
The plan/EIS is being prepared in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4331
Gary Candelaria, Superintendent, Wrangell-St. Elias National Park and Preserve, P.O. Box 439, Copper Center, Alaska 99573. Telephone (907) 822-5234.
The National Park Service (NPS) intends to prepare an Environmental Impact Statement (EIS) for the Environmental Education Campus Development Program at Crane Flat pursuant to the National Environmental Policy Act of 1969. This conservation planning and environmental impact analysis effort could potentially result in a program that would redevelop and expand outdoor environmental education facilities at Crane Flat in Yosemite National Park. Pursuant to a 1971 cooperative agreement, Yosemite Institute currently operates the campus at Crane Flat, along the Tioga Road in Yosemite National Park, California.
The proposed expansion is intended to create a Environmental Education campus within Yosemite National Park that is in close proximity to Yosemite Valley and which enables Yosemite Institute to provide sustainable high-quality educational facilities and programs, overnight accommodations for students, and food service for students at a cost that is affordable for diverse and underserved audiences, ranging from school aged groups to adults. The current campus at Crane Flat is not able to sustain an environmental education program and the existing structures need rehabilitation or replacement.
The NPS will conduct a conservation planning and environmental impact analysis effort for the proposed
During the period when the
If individuals submitting comments request that their name or /and address be withheld from public disclosure, it will be honored to the extent allowable by law. Such requests must be stated prominently in the beginning of the comments. There also may be circumstances wherein the NPS will withhold a respondent's identity as allowable by law.As always: NPS will make available to public inspection all submissions from organizations or businesses and from persons identifying themselves as representatives or officials of organizations and businesses; and, anonymous comments may not be considered.
Updated information about this conservation planning and environmental impact analysis process will be distributed via mailings, regional and local news media, and the Yosemite National Park Web page (
Availability of the Draft EIS for review and written comment will be officially announced by Notice of Availability in the
National Park Service, Interior.
Notice of meeting of Concessions Management Advisory Board.
In accordance with the Federal Advisory Committee Act (Public Law 92-463, 86 Stat. 770, 5 U.S.C. App 1, Section 10), notice is hereby given that the Concessions Management Advisory Board will hold its next meeting October 22 and 23, 2002 in Yosemite National Park in California. The meeting will be held at the Ahwahnee Hotel in the Tudor Lounge. The Board meeting will convene at 8:30 a.m. and will adjourn at 4:30 p.m. daily.
The Concessions Management Advisory Board was established by Title IV, Section 409 of the National Parks Omnibus Management Act of 1998, November 13, 1998, (Pub. L. 105-391). The purpose of the Board is to advise the Secretary and the National Park Service on matters relating to management of concessions in the National Park System.
The proposed agenda for the meeting consists of the following:
The meeting will be open to the public, however, facilities and space for accommodating members of the public are limited, and persons will be accommodated on a first-come-first-served basis.
The Ahwahnee Hotel is designated as a National Historic Landmark and some of its meeting rooms are only accessible by stairs. Members of the public planning to attend and needing an auxiliary aid or service to participate in the meeting (
Anyone may file with the Board a written statement concerning matters to be discussed. The Board may also permit attendees to address the Board, but may restrict the length of the presentations, as necessary to allow the Board to complete its agenda within the allotted time.
Interested persons may make oral/written presentations to the Board during the business meeting or file written statements. Such requests should be made to the Director, National Park Service, attention: Manager, Concession Program, at lease 7 days prior to the meeting. Further information concerning the meeting may be obtained from National Park Service, Concession Program Division, 1849 C Street, NW, Room 7313, Washington, DC 20240, Telephone 202/565-1210.
Draft minutes of the meeting will be available for public inspection approximately 4 weeks after the meeting, in room 7313, Main Interior Building, 1849 C Street, NW., Washington, DC.
National Park Service, Interior.
Notice.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix (1988), that the National Preservation Technology and Training Board will meet on November 13 and 14, 2002, in Nachitoches, LA.
The Board was established by Congress to provide leadership, policy advice, and professional oversight to the National Center for Preservation Technology and Training (NCPTT), as required under the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470).
The Board will meet in the Nachitoches Room of Russell Hall, on the campus of Northwestern State University of Louisiana, Nachitoches, LA. Wednesday, November 13, the meeting will start at 9:00 a.m. and end no later than 5:00 p.m. On Thursday, November 14, the meeting will start at 9:00 a.m. and end no later than 12:00 p.m. Matters to be discussed will include National Park Service updates on fiscal year 2003 budget and administration issues, NCPTT work plan, reports from partners, the strategic and business plans of NCPTT, and new business.
The meeting is open to the public. Facilities and space for accommodating members of the public are limited, however, and persons will be accommodated on a first-come, first-served basis. Any member of the public may file a written statement concerning the matters to be discussed.
Persons wishing more information concerning this meeting, or who wish to submit written statements, may contact Mr. de Teel Patterson Tiller, Deputy Associate Director, Historic Preservation, Recreation, and Partnerships, 1849 C Street NW-3128 MIB, Washington, DC 20240, telephone (202) 208-7625. Increased security in the Washington, DC, area may cause delays in the delivery of U.S. Mail to Government offices. In addition to mail or commercial delivery, please fax a copy of the written submission to Mr. Tiller at (202) 208-7625.
Minutes of the meeting will be available for public inspection about 8 weeks after the meeting at the office of the Associate Director, Historic Preservation, Recreation, and Partnerships, 1849 C Street NW, Room 3128, Washington, DC.
National Park Service, Interior.
Notice of meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix, that the Presidential Commission for the National Museum of African American History and Culture will meet September on 24th and 25th, 2002, at the Radisson Hotel in Georgetown, at 2121 P Street, NW. Washington, D.C. The Commission will convene at 8 a.m. on the 24th and at 8 a.m. on the 25th. The Commission will adjourn at 5 p.m.
During the morning session on September 24th, 2002, the Executive Committee and the following subcommittees will present reports from their respective committees: Mission Role and Vision Committee; Site and Building Committee; Legislation, Public Liaison Committee; Fundraising, Finance and Budget Committee and the Governance and Organization Committee. During the afternoon session, the Commission will discuss the status of legislative initiatives surrounding Public Law 107-106, which established the Commission. The project's program and planning contractors”, Montage Inc.; E. Verner Johnson; and the Freelon Group, and The Taft Organization, the fundraising contractor, will also address the Commission. These contractors will discuss the status of research and studies being conducted to assist in the preparation of reports that the Commission will submit to the President and Congress.
On the morning of September 25th, the Commission will be briefed regarding alternate project locations for the Museum on or adjacent to the National Mall. Commissioners will tour the sites following the briefing. In the afternoon, the commissioners will reconvene to further discuss site and building alternatives and to determine which sites require additional evaluation.
Due to the unexpected cancellation of the original meeting space and the additional time required to locate an alternate site, this notice could not be published at least 15 days prior to the meeting date. The National Park Service regrets this delay, but is compelled to hold the meeting as scheduled because of the significant sacrifice rescheduling would require of Commissioners who have adjusted their schedules to accommodate the proposed meeting date.
The Commission meeting is open to the public. Space and facilities to accommodate the public are limited and attendees will be accommodated on a first-come basis.
The meeting site is accessible to individuals with disabilities. If you plan to attend and will need an auxiliary aid or service to participate in the meeting (
Anyone may file a written statement concerning the establishment of a National Museum for African American History and Culture with the Commission. The Commission may also permit attendees to address the assembled Commission, but may restrict the length of the presentations, as necessary to allow the Commission to complete its agenda within the allotted time.
Anyone who wishes further information concerning the meeting, or who wishes to submit a written statement, may contact Charlene Dwin Vaughn, Staff to the Commission, National Museum of African American History & Culture, National Park Service, 1849 C Street, NW., Washington, DC 20240—(telephone (202) 208-4227).
Draft minutes of the meeting will be available for public inspection approximately 12 weeks after the meeting, in room 3327, Main Interior Building, 1849 C Street, NW., Washington, DC.
Notice of hereby given in accordance with the Federal Advisory Committee Act, Public Law 92-463, that a meeting of the Trail of Tears National Historic Trail Advisory Council will be held October 15, 2002, 8 a.m., at the Holiday Inn City Center, 700 Rogers Avenue, Fort Smith, Arkansas, 72901.
The Trail of Tears National Historic Trail Advisory Council was established administratively under authority of Section 3 of public Law 91-383 (16 U.S.C. 1s-2(c)), to consult with the Secretary of the Interior on the implementation of a comprehensive plan and other matters relating to the Trail, including certification of sites and segments, standards for erection and maintenance of markers, preservation of trail resources, American Indian relations, visitor education, historical research, visitor use, cooperative management, and trail administration.
The matters to be discussed include:
• NPS work plan for Fiscal Year 2003.
• Trail budget.
• Comprehensive Management and Use Plan implementation strategies.
• Interpretive planning needs for the Trail of Tears National Historic Trail.
The meeting will be open to the public. However, facilities and space for accommodating members of the public are limited, and persons will be accommodated on a first-come, first-served basis. Any member of the public may file a written statement concerning the matters to be discussed with Jere Krakow, Acting Superintendent.
Persons wishing further information concerning this meeting, or who wish to submit written statements may contact the Superintendent, Long Distance Trails Group Office—Santa Fe, National Park Service, P.O. Box 728, Santa Fe, New Mexico 87504-0728, telephone (505) 988-6888. Minutes of the meeting will be available for public inspection at the Office of the Superintendent located in Room 1081, Paisano Building, 2968 Rodeo Park Drive West, Santa Fe, New Mexico.
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before September 7, 2002.
Pursuant to § 60.13 of 36 CFR Part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register Historic Places, National Park Service, 1849 C St. NW, NC400, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington DC 20005; or by fax, 202-343-1836. Written
A request for REMOVAL has been made for the following resources:
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before August 31, 2002. Pursuant to section 60.13 of 36 CFR Part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register Historic Places, National Park Service, 1849 C St. NW., NC400, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington DC 20005; or by fax, 202-343-1836. Written or faxed comments should be submitted by October 8, 2002.
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before August 24, 2002. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance
Department of the Interior, National Park Service, Potomac Heritage National Scenic Trail.
Availability of guidelines.
In 1983 Congress amended the National Trails System Act, designating a corridor for the Potomac Heritage National Scenic Trail between the mouth of the Potomac River and the Laurel Highlands in western Pennsylvania (16 U.S.C. 1244(a)(11)(2000)). The legislation authorizes the Secretary of the Interior to “designate” trails, outside of federally administered areas, as segments of the Potomac Heritage National Scenic Trail (the PHNST) based upon applications by local and state agencies. The
Comments and requests for copies of a document on which this notice is based should be addressed to: Superintendent, Potomac Heritage National Scenic Trail Office, Post Office Box B, Harpers Ferry, WV 25425. Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. There may also be circumstances in which we would withhold from the record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
Donald E. Briggs, Superintendent (Coordinator), Potomac Heritage National Scenic Trail, 304-535-4016 or
The Potomac River and upper Ohio River basins have nurtured communities, trade and migration for nearly 10,000 years—from ancient villages and trade routes established by American Indians to the pathways used by our Nation's founders, from the darkest days during the Civil War and to the beginnings of the modern conservation movement. Today, citizens groups, regional organizations, local and state government agencies and federal agencies in the Potomac River corridor and in southwestern Pennsylvania are seeking ways to make connections among the special places that reflect this history, to tell stories associated with the national significance of the region and to establish a network of recreational trails and related educational opportunities. Many have been drawn to the idea behind and legislation for the PHNST.
Acting upon information in a study completed by the Bureau of Outdoor Recreation in 1974, Congress in 1983 amended the National Trails System Act, establishing a federal interest in development of the PHNST (16 U.S.C. 1244(a)(11)(2000)).
The amendment:
• Designated a corridor for the PHNST along both sides of the Potomac River between the Chesapeake Bay and the vicinity of Cumberland, Md., and between Cumberland and the Laurel Highlands Trail in western Pennsylvania;
• Precluded designations in the State of West Virginia; and
• Authorized the Secretary of the Interior to “designate lands outside of federally administered areas as segments of the trail, only upon application from the States or local governmental agencies involved, if such segments meet the criteria established in this chapter and are administered by such agencies without expense to the United States.”
Authority for the “designation” of non-Federal segments of the PHNST is similar in intent and process to trail site and segment “certification” authority provided in 16 U.S.C. 1242(a)(3)(2000) for the administration of national historic trails.
Subsequent legislation, passed in 1986, directed the Secretary to recognize the 70-mile Laurel Highlands Hiking Trail (the LHHT), managed by the Pennsylvania Department of Conservation and Natural Resources, as a segment of the PHNST. In addition to the LHHT, the 184.5-mile C&O Canal Towpath, managed by C&O Canal National Historical Park, and the 17-mile Mount Vernon Trail, managed by George Washington Memorial Parkway, are recognized as segments of the PHNST.
Other trails, projects and programs in the corridor also contribute to the concept of the PHNST. Based on the 1974 study and 1983 amendment, local and state governments, regional authorities and federal agencies are creating a braided network of trails for hiking, bicycling, horseback riding and boating in the PHNST corridor. Some local governments and authorities have purchased and/or accepted lands and/or easements on lands for the purpose of building the PHNST segments. As more and more communities weave connections among local history, outdoor spaces and culture, they build upon the PHNST designation by linking local initiatives with elements of our national history. The developing physical and programmatic network increasingly provides residents and visitors with an experience in the PHNST corridor comprised of three related elements:
1. A regional system of trails for non-motorized travel, recreation and exploration;
2. A set of physical and conceptual “gateways” to local trail corridors and related resources and activities at various locations in the PHNST corridor; and
3. A range of active and passive educational opportunities associated with the national significance of the corridor.
Based on plans for the PHNST by local and state agencies, as well as consultations with regional authorities, citizen organizations and other federal agencies, these guidelines provide criteria for developing applications for designation of non-Federal trails as segments of the PHNST.
Designation of trails provides local and state agencies and others with opportunities to realize the following benefits:
• Coordination among citizens groups, local jurisdictions, state agencies and federal land managers seeking to conserve landscapes, to develop non-motorized transportation options and to develop outdoor educational opportunities and heritage tourism programs in the PHNST corridor;
• Use of the official the PHNST marker (trail logo) in marketing, information and educational programs;
• Priority consideration for funds to support the PHNST-related projects and partners through the NPS Challenge Cost-Share Program; and
• Technical assistance with:
• Corridor planning
• Project development and implementation
• Fund-raising
• Interpretive planning and educational program and project development
• Marketing and promotion
• Communications and public involvement
• Heritage tourism projects.
In consultation with the Superintendent, Potomac Heritage National Scenic Trail, National Park Service, applications by local and state agencies requesting the designation of a trail as a segment of the PHNST must meet the following criteria:
(1) The proposed trail corridor contains significant natural, historical
(a) The Potomac River and upper Ohio River tributaries as an East-West transportation corridor, especially George Washington's vision of a connection between the Atlantic Ocean and the Forks of the Ohio River;
(b) Migration, establishment and conflict of cultures; and evolution, stress on and restoration of river ecosystems.
2. The trail provides opportunities for at least one form of non-motorized travel (
3. The trail contributes to the quality of life for residents of communities in the trail corridor and to the experience of visitors to the trail corridor.
4. The trail acts as a primary route in and contributes to a developing network of trails for non-motorized travel between the Chesapeake Bay and the Laurel Highlands, providing a logical connection, on land or water, between public resources (
5. The applicant agrees to maintain some combination of regional informational exhibits (describing, among other points, the trail and its contribution to the PHNST), educational exhibits, and/or staffed visitor centers to serve as “gateways” to the trail corridor, to communities associated with the trail corridor and to the history and ecology of the region.
6. The trail will be administered at no additional cost to the federal government.
(7) The applicant, in partnership with the National Park Service, has completed a management plan which describes:
(a) The trail corridor, trail (including location) and the contribution, as a component of the region's infrastructure, that the trail makes to the quality of life for residents of and visitors to communities associated with the trail corridor;
(b) Permitted public uses and types of experiences provided by the trail;
(c) Policies, objectives, practices and agreements employed to maintain the trail and to conserve the trail corridor (
(d) Compliance with applicable Federal regulations;
(e) Related conservation and/or development plans (including plans to provide recreational, educational and interpretive opportunities); and
(f) A marking system used to identify the trail route.
Applications for designation of trails as segments of the PHNST should be sent to the Regional Director, National Capital Region, National Park Service, 1100 Ohio Drive SW., Washington, DC 20242, attn: Superintendent, Potomac Heritage National Scenic Trail.
International Trade Commission.
Correction of notice of investigation.
Due to a typographical error, the Commission's notice published in the
By order of the Commission.
Office of Justice Programs, National Institute of Justice, Justice.
Notice of meeting.
Announcement of a meeting of the Attorney General's Initiative on DNA Laboratory Backlog Working Group.
The working group meeting of the Attorney General's Initiative on DNA Laboratory Backlogs will take place beginning on October 21, 2002 at 1 p.m. Eastern Daylight Time and will continue on October 22, 2002 at 9 a.m. Eastern Daylight Time. The meeting will take place at the Courtyard by Marriott located at 2899 Jefferson Davis Highway, Arlington, Virginia. Phone: 703-549-3434.
This meeting will be open to the public.
Dr. Lisa Forman, Director, Investigative and Forensic Sciences Division, Office of Science and Technology, National Institute of Justice (202) 307-6608.
This action is authorized under the Omnibus Crime Control and Safe Streets Act of 1968, §§ 201-03, as amended, 42 U.S.C. 3721-23 (1994).
In accordance with Section 223 of the Trade Act of 1974, as amended, the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) issued during the period of August and September, 2002.
In order for an affirmative determination to be made and a certification of eligibility to apply for worker adjustment assistance to be issued, each of the group eligibility requirements of Section 222 of the Act must be met.
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, have become totally or partially separated,
(2) That sales or production, or both, of the firm or sub-division have decreased absolutely, and
(3) That increases of imports of articles like or directly competitive with articles produced by the firm or appropriate subdivision have contributed importantly to the separations, or threat thereof, and to the absolute decline in sales or production.
In each of the following cases the investigation revealed that criterion (3) has not been met. A survey of customers indicated that increased imports did not contribute importantly to worker separations at the firm.
In the following cases, the investigation revealed that the criteria for eligibility have not been met for the reasons specified.
Increased imports did not contribute importantly to worker separations at the firm.
The workers firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria (1) has not been met. A significant number or proportion of the workers did not become totally or partially separated from employment as required for certification.
The investigation revealed that criteria (2) has not been met. Sales or production did not decline during the relevant period as required for certification.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determination.
Also, pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance hereinafter called (NAFTA-TAA) and in accordance with Section 250(a), Subchaper D, Chapter 2, Title II, of the Trade Act as amended, the Department of Labor presents summaries of determinations regarding eligibility to apply for NAFTA-TAA issued during the months of August and September, 2002.
In order for an affirmative determination to be made and a certification of eligibility to apply for NAFTA-TAA the following group eligibility requirements of Section 250 of the Trade Act must be met:
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, (including workers in any agricultural firm or appropriate subdivision thereof) have become totally or partially separated from employment and either—
(2) That sales or production, or both, of such firm or subdivision have decreased absolutely, (3) that imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and that the increases imports contributed importantly to such workers' separations or threat of separation and to the decline in sales or production of such firm or subdivision; or
(4) That there has been a shift in production by such workers' firm or subdivision to Mexico or Canada of articles like or directly competitive with articles which are produced by the firm or subdivision.
In each of the following cases the investigation revealed that criteria (3) and (4) were not met. Imports from Canada or Mexico did not contribute importantly to workers' separations. There was no shift in production from the subject firm to Canada or Mexico during the relevant period.
The investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that workers of the subject firm did not produce an article within the meaning of Section 250(a) of the Trade Act, as amended.
The investigation revealed that criteria (2) has not been met. Sales or production did not decline during the relevant period as required for certification.
The investigation revealed that criteria (1) has not been met. A significant number or proportion of the workers in such workers' firm or an appropriate subdivision (including workers in any agricultural firm or appropriate subdivision thereof) did not become totally or partially separated from employment as required for certification.
I hereby certify that the aforementioned determinations were issued during the months of August and September, 2002. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
By letter of February 7, 20021, the United Steel Workers of America, District 10 requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance (TA-W-40,188) and NAFTA-Transitional Adjustment Assistance (NAFTA-05386). The denial notice were signed on December 31, 2001 and published in the
The petitioner believes that major customers are importing polyurethane foam and therefore requests that the Department of Labor survey all customers of the subject plant.
On review of the request for reconsideration, it has been determined that the Department will conduct a survey of the major declining customers of the subject plant.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on May 20, 2002, in response to a petition filed on behalf of workers at Agere Systems, Infrastructure Division, Breinigsville, Pennsylvania.
The petition has been deemed invalid. The petitioning group of three workers did not have the necessary three signatures sufficient to constitute a valid petition. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Notice of Certification Regarding Eligibility to Apply for Worker Adjustment Assistance on April 23, 2002, applicable to workers of Blauer Manufacturing Company, Inc., Cam Division, located in Chatom, Alabama. The notice was published in the
At the request of a petitioner, the Department reviewed the certification for workers of the subject firm. The company reports that a worker, Joe W. Perritt, worked at the Oxford, Mississippi plant of the subject firm, spending the vast majority of his time in support of the production of police outerwear and rainwear at the Chatom, Alabama plant. Mr. Perritt, is a resident of Tennessee, but was paid out of the Boston, Massachusetts, headquarters of Blauer Manufacturing.
The intent of the Department's certification is to include all workers of Blauer Manufacturing Company, Inc., who were affected by increased imports. Accordingly, the Department is amending the worker certification to include Joe Perritt, who was separated from the Oxford, Mississippi plant but in direct support of production at the Chatom, Alabama plant.
The amended notice applicable to TA-W-40,733 is hereby issued as follows:
All workers of CAM Division, Chatom, Alabama (TA-W-40,733), and Mr. Joe Perritt, Blauer Manufacturing Company, Inc., Oxford, Mississippi (TA-W-40,733A), who became totally or partially separated from employment on or after December 18, 2000, through April 23, 2004, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on May 6, 2002, applicable to workers of The Boeing Company, Commercial Airplane Division, Long Beach, California. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of large commercial aircraft.
New information shows that some workers separated from employment at the subject firm had their wages reported under a separate unemployment insurance (UI) tax account for McDonald/Douglas Corporation.
Accordingly, the Department is amending the certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of The Boeing Company, Commercial Airplane Division, Long Beach, California who were adversely affected by increased imports.
The amended notice applicable to TA-W-40,785 is hereby issued as follows:
All workers of The Boeing Company, McDonald/Douglas Corporation, Commercial Airplane Division, Long Beach, California, who became totally or partially separated from employment on or after February 25, 2002, through May 6, 2004, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than November 4, 2002.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment, at the address shown below, not later than November 4, 2002.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on May 20, 2002 in response to a worker petition, which was filed on behalf of workers at Johanna York, Inc., New York, New York.
The Department has been unable to locate or communicate with principals of the firm or otherwise obtain information to reach a determination on worker eligibility. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on June 24, 2002 in response to a petition filed by the Union on behalf of workers at Joy Mining Machinery, Mount Vernon, Illinois.
All workers were separated from the subject firm one year prior to the date of the petition. Section 223 of the Act specifies that no certification may apply to any worker whose last separation occurred more than one year before the date of the petition.
Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182) concerning transitional adjustment assistance, hereinafter called (NAFTA-TAA), and in accordance with Section 250(a), Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on July 23, 2002, in response to a petition filed on behalf of workers at Cooper Wiring Devices, Division of Cooper Industries, previously known as Eagle Electronic Manufacturing Company, Long Island City, New York.
The petitioning worker group is covered under an existing certification, NAFTA-4807. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
On August 12, 2002, the Department issued a Notice of Affirmative Determination Regarding Application for Reconsideration for NAFTA-TAA applicable to workers and former workers of the subject firm. The notice was published in the Federal Register on August 20, 2002 (67 FR 53975).
The initial NAFTA-TAA petition investigation for workers at Exide Technologies, Transportation Business Unit, Shreveport, Louisiana was denied based on the finding that the subject firm did not shift to Canada or Mexico its production of lead-acid batteries for cars and trucks nor did it import like or directly competitive products from Canada or Mexico during the relevant period. The investigation further revealed that customers of the subject firm did not increase their imports of lead-acid batteries from Canada and/or Mexico during the relevant period.
The petitioner supplied a list of additional customers they believed should be surveyed. On further review, the Department conducted a survey of these customers to determine if imports contributed importantly to the declines in employment at the subject plant.
On reconsideration, the Department conducted a survey of the additional major customers of the subject plant regarding their purchases of lead-acid batteries during the relevant period. The survey revealed that a major customer increased their imports of lead-acid batteries from Mexico, while decreasing their purchases from the subject plant during the relevant period.
After careful review of the additional facts obtained on reconsideration, I conclude that increased imports from Mexico of articles like or directly competitive with lead-acid batteries contributed importantly to the decline in sales or production and to the total or partial separation of workers of Exide Technologies, Transportation Business Unit, Shreveport, Louisiana. In accordance with the provisions of the Act, I make the following revised determination:
All workers of Exide Technologies, Transportation Business Unit, Shreveport, Louisiana who became totally or partially separated from employment on or after December 18, 2000, through two years from the date of this issuance, are eligible to apply for NAFTA-TAA under Section 250 of the Trade Act of 1974.
Pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance, hereinafter called NAFTA-TAA and in accordance with section 250(a), subchapter D, chapter 2, title II, of the Trade Act of 1974, as amended (19 U.S.C. 2273), an investigation was initiated on July 15, 2002 in response to a petition filed by the company on behalf of workers at Oki Data Americas, Inc., a subsidiary of Oki Data Corp., a subsidiary of Oki Electric Industry Co., Ltd., Mount Laurel, New Jersey.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation is terminated.
Petitions for transitional adjustment assistance under the North American Free Trade Agreement-Transitional Adjustment Assistance Implementation Act (P.L. 103-182), hereinafter called (NAFTA-TAA), have been filed with State Governors under Section 250(b)(1) of Subchapter D, Chapter 2, Title II, of the Trade Act of 1974, as amended, are identified in the Appendix to this Notice. Upon notice from a Governor that a FAFTA-TAA petition has been received, the Director of the Division of Trade Adjustment Assistance (DTAA), Employment and Training Administration (ETA), Department of Labor (DOL), announces the filing of the petition and takes action pursuant to
The purpose of the Governor's actions and the Labor Department's investigations are to determine whether the workers separated from employment on or after December 8, 1993 (date of enactment of P.L. 103-182) are eligible to apply for NAFTA-TAA under Subchapter D of the Trade Act because of increased imports from or the shift in production to Mexico or Canada.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing with the Director of DTAA at the U.S. Department of Labor (DOL) in Washington, D.C. provided such request if filed in writing with the Director of DTAA not later than November 4, 2002.
Also, interested persons are invited to submit written comments regarding the subject matter of the petitions to the Director of DTAA at the address shown below not later than November 4, 2002.
Petitions filed with the Governors are available for inspection at the Office of the Director, DTAA, ETA, DOL, Room C-5311, 200 Constitution Avenue, NW. Washington, DC 20210.
Pension and Welfare Benefits Administration, Labor.
Notice of proposed exemptions.
This document contains notices of pendency before the Department of Labor (the Department) of proposed exemptions from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
All interested persons are invited to submit written comments or requests for a hearing on the pending exemptions, unless otherwise stated in the Notice of Proposed Exemption, within 45 days from the date of publication of this Federal Register Notice. Comments and requests for a hearing should state: (1) The name, address, and telephone number of the person making the comment or request, and (2) the nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption. A request for a hearing must also state the issues to be addressed and include a general description of the evidence to be presented at the hearing.
All written comments and requests for a hearing (at least three copies) should be sent to the Pension and Welfare Benefits Administration (PWBA), Office of Exemption Determinations, Room N-5649, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attention: Application No. ___, stated in each Notice of Proposed Exemption. Interested persons are also invited to submit comments and/or hearing requests to PWBA via e-mail or FAX. Any such comments or requests should be sent either by e-mail to:
Notice of the proposed exemptions will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the Federal Register. Such notice shall include a copy of the notice of proposed exemption as published in the
The proposed exemptions were requested in applications filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Therefore, these notices of proposed exemption are issued solely by the Department.
The applications contain representations with regard to the proposed exemptions which are summarized below. Interested persons are referred to the applications on file with the Department for a complete statement of the facts and representations.
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32,836, 32,847, August 10, 1990). If the exemption is granted, the restrictions of section 406(a) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply to (1) the granting to BofA by the Westbrook Real Estate Fund III, L.P. (LP), a Delaware Limited Partnership, of a first, exclusive, and prior security interest in the capital commitments (Capital Commitments), reserve amounts (Reserve Amounts), and capital contributions (Capital Contributions), whether now owned or after-acquired, of certain employee benefit plans (Plans) investing in the LP; (2) the collateral assignment and pledge by the LP to BofA of its security interest in each Plan's limited partnership interest, whether now owned or after-acquired; (3) the granting by the LP of a first, exclusive, and prior security interest in a borrower collateral account to which all Capital Contributions will be deposited when paid (Borrower Collateral Account); (4) the granting to BofA by Westbrook Real Estate Partners Management III, L.L.C., a Delaware limited liability company and the general partner of the LP (the General Partner), of its right to make calls for cash contributions (Drawdowns) under the Amended and Restated Agreement of Limited Partnership of Westbrook Real Estate Fund III, L.P., dated as of June 10, 1998 (Agreement), where BofA is the representative of certain lenders (the Lenders) that will fund a so-called “credit facility” (Credit Facility) providing credit to the LP, and the Lenders are parties in interest with respect to the Plans; and (5) the execution of a partner agreement and estoppel (Estoppel) under which the Plans agree to honor the Drawdowns; provided that (i) the proposed grants, assignments, and Estoppels are on terms no less favorable to the Plans than those which the Plans could obtain in arm's-length transactions with unrelated parties; (ii) the decisions on behalf of each Plan to invest in the LP and to execute such Estoppels in favor of BofA, for the benefit of each Lender, are made by a fiduciary which is not included among, and is independent of and unaffiliated with, the Lenders and BofA; (iii) with respect to Plans that may invest in the LP in the future, such Plans will have assets of not less than $100 million
1. The LP is a Delaware limited partnership, the sole general partner of which is the General Partner. The General Partner is a separate affiliate of Westbrook Real Estate Partners, L.L.C.
2. The LP has been organized to establish an integrated, self-administered and self-managed real estate operating company (see rep. 11, below) to acquire a broad range of real estate-related assets, portfolios and companies. The LP believes that significant opportunities exist to achieve superior risk-adjusted returns in real estate and generally seeks compounded annual returns on its investments in excess of 18%.
3. Proceeds from the sale or refinancing of properties generally will not be reinvested. The proceeds will be distributed to the Limited Partners on at least a quarterly basis so that the LP will be self-liquidated.
4. The Agreement requires each Limited Partner to make initial contributions of capital up to a specified maximum. The Agreement requires Limited Partners to make Capital Contributions to fulfill this obligation upon receipt of notice from the General Partner. Under the Agreement, the General Partner may make Drawdowns up to the total amount of a Limited Partner's Capital Commitment upon 15 business days' notice, subject to certain limitations. The Limited Partners' Capital Commitments are structured as unconditional, binding commitments to contribute equity when Drawdowns are made by the General Partner. In the event of a default by a Limited Partner, the LP may exercise any of a number of specific remedies.
Among the Limited Partners and their investments in the LP are:
5. The applicant states that the LP will incur short-term indebtedness for the acquisition of particular investments and for working capital purposes (with the expectation that such acquisition indebtedness will be repaid from the Limited Partners' Capital Commitments and/or from mortgage debt). This indebtedness takes the form of the Credit Facility, a revolving credit agreement secured by, among other things, a pledge and assignment of each Limited Partner's Capital Commitment and by a pledge and assignment by the LP and the General Partner of the right to make Drawdowns of the Capital Commitments, and their security interests in the Limited Partners' limited partnership interests in the LP. This type of facility allows the LP to consummate investments quickly without having to finalize the debt/equity structure for an investment or having to arrange for interim or permanent financing prior to making an investment, and will have additional advantages to the Limited Partners and the LP. Under the Agreement, the General Partner may encumber Limited Partners' Capital Commitments, Reserve Amounts, and Capital Contributions, including the right to make Drawdowns, to one or more financial institutions as security for the Credit Facility. Each of the Limited Partners has appointed the General Partner as its attorney-in-fact to execute all documents and instruments of transfer necessary to implement the provisions of the Agreement. In connection with this Credit Facility, each of the Limited Partners is required to execute documents customarily required in secured financings, including an agreement to honor Drawdowns unconditionally.
6. BofA is the agent for a group of Lenders providing a $400 million revolving Credit Facility to the LP. BofA is also a participating Lender. Some of the Lenders may be parties in interest with respect to some of the Plans that invest in the LP by virtue of such Lenders' (or their affiliates’) provision of services to such Plans for assets other than the Plans' interests in the LP. BofA is requesting an exemption to permit the Plans to enter into security agreements with BofA, as the representative of the Lenders, whereby such Plans' Capital Commitments, Reserve Amounts, and Capital Contributions to the LP, as well as the Plans' limited partnership interests, are used as collateral for loans made by the Credit Facility to the LP, when such loans are funded by Lenders who are parties in interest to one or more of the Plans.
The Credit Facility is used to provide immediate funds for real estate acquisitions made by the LP, as well as for the payment of LP expenses. Repayments are secured generally by the Limited Partners' Capital Contributions, Reserve Amounts, Drawdowns on the Limited Partners' Capital Commitments, and the Limited Partners' limited partnership interests. The Credit Facility was originally intended to be available until 2001 and has been extended to May 9, 2003. The applicant has requested that the proposed exemption, if granted, be retroactive to July 30, 1998, which is the date the Credit Facility originally became effective. The LP can use its credit under the Credit Facility by direct or indirect borrowings or by requesting that letters of credit be issued. All Lenders participate on a pro rata basis with respect to all cash loans and letters of credit up to the maximum of the Lenders' respective commitments. All such loans and letters of credit are issued to or for the benefit of the LP or an entity in which the LP owns a direct or indirect interest (a Qualified Borrower), and not to any individual Limited Partner. All payments of principal and interest made by the LP or a Qualified Borrower are allocated pro rata among all Lenders.
7. The Credit Facility is a recourse obligation of the Partnership. To secure the Credit Facility, the LP has granted to BofA, for the benefit of each Lender, a first, exclusive, and prior: (1) Security interest and lien in and to the Capital Commitments, Reserve Amounts, and Capital Contributions of the Limited Partners; (2) collateral assignment and pledge of the LP's security interest in each Limited Partner's limited partnership interest; and (3) security interest and lien in the Borrower
8. Each Limited Partner has executed or will execute an agreement pursuant to which it acknowledges that the LP and the General Partner have pledged and assigned to BofA, for the benefit of each Lender which may be a party in interest (as defined in ERISA Section 3(14)) of such Limited Partner, all of their rights under the Agreement relating to Capital Commitments, Reserve Amounts, Drawdown notices, and Capital Contributions. Such agreement will include an acknowledgment and covenant by the Limited Partner that, if an event of default exists, such Limited Partner will, consistent with its obligations under the Agreement, honor any Drawdown made by BofA in accordance with the Agreement. Such an agreement and covenant by a Limited Partner effectively limits the assertion of any defense which the Limited Partner might have against the LP or the General Partner with respect to the funding of any Drawdown made by BofA.
9. The applicant represents that at the present time the following Plans are Partners in the LP:
(1)
The fiduciary of these Plans generally responsible for investment decisions in the real estate area for internally managed assets was the Ameritech Corporation Asset Management Committee, the Chief Investment Officer of Ameritech Corporation, and/or the Ameritech Corporation Investment Management Department's Real Estate Committee (comprised of the staff real estate professionals and another Investment Management Department Director), depending on the size and type of investment. The fiduciary responsible for reviewing and authorizing the Ameritech Pension Trust's investment in the partnership to which this proposed exemption relates, an internally managed asset of the Ameritech Pension Trust, was collectively the Chief Investment Officer of Ameritech Corporation, and the members of the Ameritech Corporation Investment Management Department's Real Estate Committee.
(2)
(3)
The fiduciary of these Plans generally responsible for investment decisions at the time of the investment was the Chief Executive Officer, BP America Inc. (the “Chief Executive Officer”). The fiduciary responsible for reviewing and authorizing the investment in the LP was also the Chief Executive Officer. The Investment Committee of BP Corporation North America Inc. is the successor fiduciary to the Chief Executive Officer.
(4)
The fiduciary of this Plan generally responsible for investment decisions is the Retirement Plans Committee, IBM Corporation. The fiduciary responsible for reviewing and authorizing the
(5)
Second is the United States Steel Corporation Plan for Non-Union Employee Pension Benefits As Amended (the U.S. Steel Non-Union EE Plan); type of plan—defined benefit; EIN: 25-0996816; Plan No. 100; number of plan participants—31,262. The approximate fair market value of the total assets of the U.S. Steel Non-Union EE Plan was $4.293 billion as of December 31, 1998.
The fiduciary of these Plans generally responsible for investment decisions is the United States Steel and Carnegie Pension Fund. The fiduciary responsible for reviewing and authorizing the investment in the LP is the United States Steel and Carnegie Pension Fund.
(6)
Second is the Petroleum Marketing Retirement Plan; type of plan—defined benefit; EIN: 31-1551430; Plan No. 001; approximate number of plan participants—11,548. The approximate fair market value of the total assets of the Petroleum Marketing Retirement Plan was $26.5 million as of January 1, 1998.
Third is the Marathon Ashland Petroleum LLC Retirement Plan (the Marathon Ashland Plan); type of plan—defined benefit; EIN: 31-1537655; Plan No. 001; number of plan participants—5,960. The approximate fair market value of the total assets of the Marathon Ashland Plan was $528 million as of December 31, 1998.
The fiduciary of these Plans generally responsible for investment decisions is the United States Steel and Carnegie Pension Fund. The fiduciary responsible for reviewing and authorizing the investment in the LP is the United States Steel and Carnegie Pension Fund.
(7)
10. The applicant represents that the Plans in the trusts (the Trusts) listed in Representation 9 are currently the only employee benefit Plans subject to the Act that are Limited Partners of the LP and will be included in this exemption. However, the applicant states that it is possible that one or more other Plans will become Limited Partners of the LP in the future. Thus, the applicant requests relief for any such Plan under this proposed exemption, provided the Plan meets the standards and conditions set forth herein. In this regard, such Plan must be represented by an independent fiduciary and the General Partner must receive from the Plan one of the following:
(1) a representation letter from the applicable fiduciary with respect to such Plan substantially identical to the representation letter submitted by the fiduciaries of the other Plans, in which case this proposed exemption, if granted, will apply to the investments made by such Plan if the conditions required herein are met; or
(2) evidence that such Plan is eligible for a class exemption or has obtained an individual exemption from the Department covering the potential prohibited transactions which are the subject of this proposed exemption.
11. BofA represents that the LP has obtained an opinion of counsel that the LP constitutes an “operating company” under the Department's plan asset regulations [
BofA represents that the security and Estoppel constitute a form of credit security which is customary among financing arrangements for real estate limited partnerships or limited liability companies, wherein the financing institutions do not obtain security interests in the real property assets of the partnership or limited liability companies. BofA also represents that the obligatory execution of the Estoppel by the Limited Partners for the benefit of the Lenders was fully disclosed in the Private Placement Memorandum as a requisite condition of investment in the LP during the private placement of the partnership interests. BofA represents that the only direct relationship between any of the Limited Partners and any of the Lenders is the execution of the Estoppel. All other aspects of the transaction, including the negotiation of all terms of the Credit Facility, are exclusively between the Lenders and the LP. BofA represents that the proposed execution of the Estoppel do not affect the abilities of the Trusts to withdraw from investment and participation in the LP. The only Plan assets to be affected by the proposed transactions are any funds which must be contributed to the LP in accordance with requirements under the Agreement to make Drawdowns to honor a Partner's Capital Commitments and the Plan's Limited Partnership interest in the LP.
12. BofA represents that neither it nor any Lender acts or has acted in any fiduciary capacity with respect to the Plans' investment in the LP. BofA is independent of and unrelated to the fiduciaries (the Trust Fiduciaries) responsible for authorizing and overseeing the Trusts' investments in the LP. The Trust Fiduciaries represent independently that their authorization of the Trusts' investments in the LP was free of any influence, authority or control by the Lenders. The Trust Fiduciaries represent that the Trusts'
13. In summary, the applicant represents that the proposed transactions satisfy the criteria of section 408(a) of the Act for the following reasons: (1) The Plans' investments in the LP were authorized and are overseen by the Fiduciaries, which are independent of the Lenders, and other Plan investments in the LP from other employee benefit Plans subject to the Act will be authorized and monitored by independent Plan fiduciaries; (2) none of the Lenders has any influence, authority or control with respect to any of the Trusts' investment in the LP or the Trusts' execution of the Estoppel; (3) each Fiduciary invested in the LP on behalf of a Plan with the knowledge that the Estoppel is required of all Limited Partners investing in the LP, and all other Plan fiduciaries that invest their Plan's assets in the LP will be treated the same as any other Limited Partners are currently treated with regard to the Estoppel; (4) any Plan which may invest in the LP in the future, which needs to avail itself of the exemption proposed herein, will have assets of not less than $100 million, and not more than 5% of the assets of any such Plan will be invested in the LP, and (5) the General Partner is unrelated to any Plan and any Lender.
Gary H. Lefkowitz of the Department, telephone (202) 693-8546. (This is not a toll-free number.)
Based on the facts and representations set forth in the application, the Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990).
(a) The terms and conditions of the Lease have been, and continue to be, no less favorable to the Plan than those obtainable by the Plan under similar circumstances when negotiated at arm's length with unrelated third parties.
(b) The Plan has been, and continues to be, represented for all purposes under the Lease, and during each renewal term, by a qualified, independent fiduciary.
(c) The Plan's independent fiduciary has negotiated, reviewed, and approved the terms and conditions of the Lease and the options to renew the Lease on behalf of the Plan and has determined that the transactions are appropriate investments for the Plan and are in the best interests of the Plan and its participants and beneficiaries.
(d) The rent paid to the Plan under the Lease, and during each renewal term, is no less than the fair market rental value of the Property, as established by a qualified, independent appraiser.
(e) The rent is adjusted annually to reflect changes in the Consumer Price Index (the CPI) and the Property is re-appraised at least every three years by a qualified, independent appraiser who is selected by the independent fiduciary to determine the appropriate fair market rental value (but in no event is the rental rate less than that established for the preceding rental term).
(f) The Lease is triple net, requiring all expenses for maintenance, taxes, utilities and insurance to be paid by the Employer, as lessee.
(g) The Plan's independent fiduciary has monitored, and continues to monitor, compliance with the terms of the Lease throughout the duration of the Lease and each renewal term, and is responsible for legally enforcing the payment of the rent and the proper performance of all other obligations of the Employer under the terms of the Lease.
(h) The Plan's independent fiduciary expressly approves any renewal of the Lease beyond the initial term.
(i) At all times throughout the duration of the Lease and each renewal term, the fair market value of the Property has not exceeded, and does not exceed, 25 percent of the value of the total assets of the Plan.
If granted, this proposed exemption will be effective as of May 1, 2002.
1. The Employer is a family owned and operated Pennsylvania corporation specializing in the field of exterior masonry restoration and preservation. The Employer performs work in the tri-state area of Pennsylvania, West Virginia and Ohio, while maintaining its principal place of business in Greensburg, Pennsylvania.
2. The Plan, which is sponsored and administered by the Employer, is a money purchase pension plan. The Plan covers three participants and had total assets of $1,170,999 as of December 31, 2001. The accounts in the Plan are participant-directed and the Employer serves as the Plan's named fiduciary.
3. Among the assets of the Plan is the Property, which consists of 6.679 acres of land improved by a warehouse, containing 6,150 square feet of space, and an office addition, containing 1,800 square feet of space. These structures were built by the Employer in 1986, with 726 feet of road frontage, located on Echo Valley Road (T/R 513) in Hempfield Township, Westmoreland County, Pennsylvania. The fair market value of the Property currently represents approximately 21.35 percent of the Plan's total assets. Further, the Property is not located in close proximity to other real estate that is owned by the Employer and/or its principals.
4. The Plan originally leased the Property to the Employer for an initial term of ten years, followed by an additional five-year renewal period, for a combined 15 years which expired on April 30, 2002, pursuant to the same terms and conditions used for the current Lease. In response to an exemption application filed by the Employer, the Department granted an exemption covering the original lease (the Original Lease): Prohibited Transaction Exemption 87-63 (PTE 87-63), 52 FR 24078 (June 26, 1987).
5. The parties request an administrative exemption from the Department in order to continue the Original Lease under the provisions of a new lease. The Lease has an initial term of five years, which commenced on May 1, 2002 and ends on April 30, 2007, with options to renew for two additional five year terms, only with the express approval of the Plan's independent fiduciary. The Lease is triple net and requires the Employer to pay all real estate taxes on the Property, as well as all expenses that are associated with insurance, maintenance and utilities. The applicant represents that the Plan's independent fiduciary will select a qualified, independent appraiser to reappraise the Property at least every three years to determine the appropriate fair market rental value. However, in no event will the rent be adjusted below the rental amount for the preceding Lease term. In addition, during each year of the initial term of the Lease and each renewal term, the rental rate will be increased by an amount equal to the most recent percentage increase in the CPI. Currently, the Employer is paying the Plan $4,550 per month in rent.
6. In an independent appraisal report dated July 16, 2001 (the 2001 Appraisal), H. Kenneth Gehr, a qualified, independent real estate broker/appraiser with Shrader & Gehr Real Estate Agency, of Jeannette, Pennsylvania, updated an August 26, 2000 independent appraisal that was prepared by his firm, in which the Property's fair market value, monthly fair market rental value, and annual fair market rental value were placed at $248,000, $3,500, and $42,000, respectively as of August 17, 2000. Mr. Gehr states that he is familiar with real estate sales of all types, including those for commercial and industrial properties in the Westmoreland County area, since he explains that he has sold and appraised real estate since 1947, and has given court testimony as an expert real estate witness. In addition, Mr. Gehr certifies that he has no interest in the Property, except as a fee appraiser, and that the fee he received for the 2001 Appraisal and the values reported therein were in no way related to, nor influenced by, any interested parties to the subject transactions.
In the 2001 Appraisal, Mr. Gehr determined that the Property had a fair market value of $250,000 as of July 31, 2001, utilizing the Replacement Cost Approach to valuation. As of the same date, Mr. Gehr also placed the monthly fair market rental value of the Property at $3,800 and its annual fair market rental value at $45,600.
7. An independent party, Mr. Lawrence W. Walter, has served as the Plan's independent fiduciary since he replaced the former independent fiduciary, Halliwell & Associates, on March 25, 1997. Mr. Walter represents that he is qualified to act as an independent fiduciary for the Plan because he is a Licensed Public Accountant, subject to the requirements of the CPA profession, as well as a Certified Financial Planner. Mr. Walter further states that he holds a Nasdaq Series Six License for securities, and has been licensed in the past to sell property/casualty and life insurance. Mr. Walter also asserts that many of his clients are involved in the real estate industry, and that, because he regularly serves as executor, estate administrator, or trustee for trusts and estates, he is experienced in acting in a fiduciary capacity. Mr. Walter confirms that he is not affiliated with the Employer, and derives less than one percent of his gross annual income from the Employer.
In addition, Mr. Walter states that, to the best of his knowledge, there was no period of time in which the interests of the Plan were not represented by an independent fiduciary, and that, since the inception of the Original Lease, the Employer has complied with all of the terms and conditions of the Original Lease and PTE 87-63.
8. Mr. Walter, acting as the Plan's independent fiduciary, represents that the transactions are feasible, in the interest of, and protective of, the Plan and its participants and beneficiaries. Mr. Walter certifies that the terms and conditions of the Lease, including CPI adjustments to the rent, are no less favorable to the Plan than those obtainable by the Plan in an arm's length transaction with unrelated third parties. In reaching this conclusion, Mr. Walter states that he has considered the terms of similar leases between unrelated parties, the Plan's overall investment portfolio, and the Plan's liquidity and diversification requirements.
Moreover, Mr. Walter believes that the transactions pose little risk to the Plan since the business of the Employer primarily involves restoration work on existing structures, which continues to be in high demand in the greater Pittsburgh area due to the relatively old age of the neighborhoods and structures.
Finally, Mr. Walter represents that he will monitor compliance with the Lease terms throughout the duration of such Lease, and each renewal term, and, if necessary, will take the appropriate actions to enforce the payment of the rent and the proper performance of all other obligations of the Employer under the terms of the Lease.
9. In summary, it is represented that the transactions have satisfied or will satisfy the statutory criteria for an exemption under section 408(a) of the Act because:
(a) The terms and conditions of the Lease have been, and will continue to be, no less favorable to the Plan than those obtainable by the Plan under similar circumstances when negotiated at arm's length with unrelated third parties.
(b) The Plan has been, and continues to be represented for all purposes under the Lease, by a qualified, independent fiduciary.
(c) The Plan's independent fiduciary has negotiated, reviewed, and approved the terms and conditions of the Lease and the options to renew the Lease on behalf of the Plan and has determined that the transactions are appropriate investments for the Plan and are in the best interests of the Plan and its participants and beneficiaries.
(d) The rent paid to the Plan under the Lease and during each renewal term will be no less than the fair market rental value of the Property, as established by a qualified, independent appraiser.
(e) The rent will be adjusted annually to reflect changes in the CPI and the Property and will be re-appraised at least every three years by a qualified, independent appraiser who has been selected by the independent fiduciary to determine the appropriate fair market rental value (but in no event will the rental rate be less than that established for the preceding rental term).
(f) The Lease is triple net, requiring all expenses for maintenance, taxes, utilities and insurance to be paid by the Employer.
(g) The Plan's independent fiduciary has monitored, and will continue to monitor, compliance with the terms of the Lease throughout the duration of the Lease and each renewal term, and is responsible for legally enforcing the payment of the rent and the proper performance of all other obligations of the Employer under the terms of the Lease.
(h) The Plan's independent fiduciary will expressly approve any renewal of the Lease beyond the initial term.
(i) The fair market value of the Property has not exceeded, and will not exceed, 25 percent of the value of the total assets of the Plan.
The Department of the Treasury has determined that if a transaction between a qualified employee benefit plan and its sponsoring employer (or affiliate thereof) results in the plan either paying less than or receiving more than fair market value, such excess may be considered to be a contribution by the sponsoring employer to the plan and, therefore, must be examined under applicable provisions of the Internal Revenue Code, including sections 401(a)(4), 404 and 415.
The Employer will provide notice of the proposed exemption to all interested persons by first class mail within three days of the date of publication of the notice of proposed exemption in the
Ms. Anna M.N. Mpras of the Department, telephone (202) 693-8565. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemptions, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemptions, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
Pension and Welfare Benefits Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
The restrictions of section 406(a)(1)(A) through (D) and 406(b)(1) and (2) of the Act, section 8477(c)(2)(A) and (B) of FERSA, and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to:
(a) The lending of securities to:
(1) Deutsche Bank Securities, Inc. (formerly DB Alex. Brown, Inc.), its successors or affiliates;
(2) Any current or future affiliate of DB,
(b) The receipt of compensation by the DB Lending Agent and the Lending Subagent in connection with these transactions.
Section I of this exemption applies only if the conditions of Section II are satisfied. For purposes of this exemption, any requirement that the approving fiduciary be independent of the DB Lending Agent or the Affiliated Borrower shall not apply in the case of an employee benefit plan sponsored and maintained by the DB Lending Agent and/or an affiliate for its own employees (a DB Plan) invested in a Commingled Fund, provided that at all times the holdings of all DB Plans in the aggregate comprise less than 10% of the assets of the Commingled Fund.
(a) For each Client Plan, neither the DB Lending Agent nor any affiliate (except as expressly permitted herein) has or exercises discretionary authority or control with respect to the investment of the assets of Client Plans involved in the transaction or renders investment advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to such assets, including decisions concerning a Client Plan's acquisition or disposition of securities available for loan.
This paragraph (a) will be deemed satisfied notwithstanding that the DB Lending Agent exercises discretionary authority or control or renders investment advice in connection with an Index Fund or Model-Driven Fund managed by the DB Lending Agent in which Client Plans invest.
(b) Any arrangement for the DB Lending Agent to lend securities is approved in advance by a Plan fiduciary who is independent of the DB Lending Agent (the Independent Fiduciary).
(c) The specific terms of the securities loan agreement (the Loan Agreement) are negotiated by the DB Lending Agent which acts as a liaison between the Lender and the Affiliated Borrower to facilitate the securities lending transaction. In the case of a Separate Account, the Independent Fiduciary of a Client Plan approves the general terms of the Loan Agreement between the Client Plan and the Affiliated Borrower as well as any material change in such Loan Agreement. In the case of a Commingled Fund, approval is pursuant to the procedure described in paragraph (i), below.
(d) The terms of each loan of securities by a Lender to an Affiliated Borrower are at least as favorable to such Separate Account or Commingled Fund as those of a comparable arm's length transaction between unrelated parties.
(e) A Client Plan, in the case of a Separate Account, may terminate the lending agency or sub-agency arrangement at any time, without penalty, on five business days notice. A Client Plan in the case of a Commingled Fund may terminate its participation in the lending arrangement by terminating its investment in the Commingled Fund no later than 35 days after the notice of termination of participation is received, without penalty to the Plan, in accordance with the terms of the Commingled Fund. Upon termination, the Affiliated Borrowers will transfer securities identical to the borrowed securities (or the equivalent thereof in the event of reorganization, recapitalization or merger of the issuer of the borrowed securities) to the Separate Account or, if the Plan's withdrawal necessitates a return of securities, to the Commingled Fund, within:
(1) The customary delivery period for such securities;
(2) Five business days; or
(3) The time negotiated for such delivery by the Client Plan, in a Separate Account, or by the DB Lending
(f) The Separate Account, Commingled Fund or another custodian designated to act on behalf of the Client Plan, receives from each Affiliated Borrower (either by physical delivery, book entry in a securities depository located in the United States, wire transfer or similar means) by the close of business on or before the day the loaned securities are delivered to the Affiliated Borrower, collateral consisting of U.S. currency, securities issued or guaranteed by the United States Government or its agencies or instrumentalities, irrevocable bank letters of credit issued by a U.S. bank, other than DB (or any subsequent parent corporation of the DB Lending Agent) or an affiliate thereof, or any combination thereof, or other collateral permitted under Prohibited Transaction Exemption 81-6 (46 FR 7527, January 23, 1981) (PTE 81-6) (as it may be amended or superseded) (collectively, the Collateral). The Collateral will be held on behalf of a Client Plan in a depository account separate from the Affiliated Borrower.
(g) The market value (or in the case of a letter of credit, a stated amount) of the Collateral on the close of business on the day preceding the day of the loan is initially at least 102 percent of the market value of the loaned securities. The applicable Loan Agreement gives the Separate Account or the Commingled Fund in which the Client Plan has invested a continuing security interest in, and a lien on or title to, the Collateral. The level of the Collateral is monitored daily by the DB Lending Agent. If the market value of the Collateral, on the close of trading on a business day, is less than 100 percent of the market value of the loaned securities at the close of business on that day, the Affiliated Borrower is required to deliver, by the close of business on the next day, sufficient additional Collateral such that the market value of the Collateral will again equal 102 percent.
(h)(1) For a Lender that is a Separate Account, prior to entering into a Loan Agreement, the applicable Affiliated Borrower furnishes its most recently available audited and unaudited statements to the DB Lending Agent which will, in turn, provide such statements to the Client Plan before the Client Plan approves the terms of the Loan Agreement. The Loan Agreement contains a requirement that the applicable Affiliated Borrower must give prompt notice at the time of a loan of any material adverse changes in its financial condition since the date of the most recently furnished financial statements. If any such changes have taken place, the DB Lending Agent will not make any further loans to the Affiliated Borrower unless an Independent Fiduciary of the Client Plan in a Separate Account is provided notice of any material change and approves the continuation of the lending arrangement in view of the changed financial condition.
(2) For a Lender that is a Commingled Fund, the DB Lending Agent will furnish upon reasonable request to an Independent Fiduciary of each Client Plan invested in the Commingled Fund the most recently available audited and unaudited financial statements of the applicable Affiliated Borrower prior to authorization of lending, and annually thereafter.
(i) In the case of Commingled Funds, the information described in paragraph (c) (including any information with respect to any material change in the arrangement) shall be furnished by the DB Lending Agent as lending fiduciary to the Independent Fiduciary of each Client Plan whose assets are invested in the Commingled Fund, not less than 30 days prior to implementation of the arrangement or material change to the lending arrangement as previously described to the Client Plan, and thereafter, upon the reasonable request of the Client Plan's Independent Fiduciary. In the event of a material adverse change in the financial condition of an Affiliated Borrower, the DB Lending Agent will make a decision, using the same standards of credit analysis the DB Lending Agent would use in evaluating unrelated borrowers, whether to terminate existing loans and whether to continue making additional loans to the Affiliated Borrower.
In the event any such Independent Fiduciary submits a notice in writing within the 30 day period provided in the preceding paragraph to the DB Lending Agent, as lending fiduciary, objecting to the implementation of, material change in, or continuation of the arrangement, the Plan on whose behalf the objection was tendered is given the opportunity to terminate its investment in the Commingled Fund, without penalty to the Plan, no later than 35 days after the notice of withdrawal is received. In the case of a Plan that elects to withdraw pursuant to the foregoing, such withdrawal shall be effected prior to the implementation of, or material change in, the arrangement; but an existing arrangement need not be discontinued by reason of a Plan electing to withdraw. In the case of a Plan whose assets are proposed to be invested in the Commingled Fund subsequent to the implementation of the arrangement, the Plan's investment in the Commingled Fund shall be authorized in the manner described in paragraph (c).
(j) In return for lending securities, the Lender either—
(1) Receives a reasonable fee, which is related to the value of the borrowed securities and the duration of the loan; or
(2) Has the opportunity to derive compensation through the investment of cash Collateral. (Under such circumstances, the Lender may pay a loan rebate or similar fee to the Affiliated Borrowers, if such fee is not greater than the fee the Lender would pay in a comparable arm's length transaction with an unrelated party.)
(k) Except as otherwise expressly provided herein, all procedures regarding the securities lending activities will, at a minimum, conform to the applicable provisions of PTE 81-6 and Prohibited Transaction Exemption 82-63 (46 FR 14804, April 6, 1982) (PTE 82-63), both as amended or superseded, as well as to applicable securities laws of the United States, the United Kingdom, Canada, Australia, Switzerland, Japan and Germany.
(l) If any event of default occurs, to the extent that (i) liquidation of the pledged Collateral or (ii) additional cash received from the Affiliated Borrower does not provide sufficient funds on a timely basis, the Client Plan will have the right to purchase securities identical to the borrowed securities (or their equivalent as discussed above) and apply the Collateral to the payment of the purchase price. If the Collateral is insufficient to accomplish such purchase, the Borrower will indemnify the Client Plan invested in a Separate Account or Commingled Fund in the United States with respect to the difference between the replacement cost of securities and the market value of the Collateral on the date the loan is declared in default, together with expenses incurred by the Client Plan plus applicable interest at a reasonable rate, including reasonable attorney's fees incurred by the Client Plan for legal action arising out of default on the loans, or failure by the Borrower to properly indemnify the Client Plan. The Borrower's indemnification will enable the Client Plan to collect on any indemnification from a U.S.-domiciled affiliate of DB.
(m) The Lender receives the equivalent of all distributions made to holders of the borrowed securities during the term of the loan, including but not limited to all interest and dividends on the loaned securities,
(n) Prior to any Client Plan's approval of the lending of its securities to any Affiliated Borrower, a copy of this exemption and the notice of proposed exemption (67 FR 9070, February 27, 2002) (the Notice) is provided to the Client Plan.
(o) The Independent Fiduciary of each Client Plan that is invested in a Separate Account is provided with (including by electronic means) quarterly reports with respect to the securities lending transactions, including, but not limited to, the information described in Representation 24 of the Summary of Facts and Representations of the Notice, so that the Independent Fiduciary may monitor such transactions with the Affiliated Borrower. The Independent Fiduciary invested in a Commingled Fund is provided with (including by electronic means) quarterly reports with respect to the securities lending transactions, including, but not limited to, the information described in Representation 24 of the Summary of Facts and Representations of the Notice, so that the Independent Fiduciary may monitor such transactions with the Affiliated Borrower. The DB Lending Agent may, in lieu of providing the quarterly reports described in this paragraph (o) to each Independent Fiduciary of a Client Plan invested in a Commingled Fund, provide such Independent Fiduciary with the certification of an auditor selected by the DB Lending Agent who is independent of the DB Lending Agent (but who may or may not be independent of the Client Plan) that the loans appear no less favorable to the Lender than the pricing established in the schedule described in Representation 16 of the Notice. Where the Independent Fiduciary of a Client Plan invested in a Commingled Fund is provided the certification of an auditor, such Independent Fiduciary shall be entitled to receive the quarterly reports upon request.
(p) Only Client Plans with total assets having an aggregate market value of at least $50 million are permitted to lend securities to the Affiliated Borrowers; provided, however, that—
(1) In the case of two or more Client Plans which are maintained by the same employer, controlled group of corporations or employee organization, whose assets are commingled for investment purposes in a single master trust or any other entity the assets of which are “plan assets” under 29 CFR 2510.3-101 (the Plan Asset Regulation), which entity is engaged in securities lending arrangement with the DB Lending Agent, the foregoing $50 million requirement shall be deemed satisfied if such trust or other entity has aggregate assets which are in excess of $50 million; provided that if the fiduciary responsible for making the investment decision on behalf of such master trust or other entity is not the employer or an affiliate of the employer, such fiduciary has total assets under its management and control, exclusive of the $50 million threshold amount attributable to plan investment in the commingled entity, which are in excess of $100 million.
(2) In the case of two or more Client Plans which are not maintained by the same employer, controlled group of corporations or employee organization, whose assets are commingled for investment purposes in a group trust or any other form of entity the assets of which are “plan assets” under the Plan Asset Regulation, which entity is engaged in securities lending arrangements with the DB Lending Agent, the foregoing $50 million requirement is satisfied if such trust or other entity has aggregate assets which are in excess of $50 million (excluding the assets of any Client Plan with respect to which the fiduciary responsible for making the investment decision on behalf of such group trust or other entity or any member of the controlled group of corporations including such fiduciary is the employer maintaining such Plan or an employee organization whose members are covered by such Plan). However, the fiduciary responsible for making the investment decision on behalf of such group trust or other entity—
(A) Has full investment responsibility with respect to plan assets invested therein; and
(B) Has total assets under its management and control, exclusive of the $50 million threshold amount attributable to plan investment in the commingled entity, which are in excess of $100 million.
In addition, none of the entities described above are formed for the sole purpose of making loans of securities.
(q) With respect to any calendar quarter, at least 50 percent or more of the outstanding dollar value of securities loans negotiated on behalf of Lenders will be to borrowers unrelated to the DB Lending Agent.
(r) In addition to the above, all loans involving foreign Affiliated Borrowers have the following requirements:
(1) The foreign Affiliated Borrower is a bank, supervised either by a state or the United States, a broker-dealer registered under the Securities Exchange Act of 1934 or a bank or broker-dealer that is supervised by (1) the SFA in the United Kingdom; (2) the BAFin in Germany; (3) the MOF and/or the Tokyo Stock Exchange in Japan; (4) the Ontario Securities Commission, the Investment Dealers Association and/or the Office of Superintendent of Financial Institutions in Canada; (5) the Swiss Federal Banking Commission in Switzerland; and (6) the Reserve Bank of Australia or the Australian Securities and Investments Commission and/or Australian Stock Exchange Limited in Australia;
(2) The foreign Affiliated Borrower is in compliance with all applicable provisions of Rule 15a-6 under the Securities Exchange Act of 1934 (17 CFR 240.15a-6) (Rule 15a-6) which provides foreign broker-dealers a limited exemption from United States registration requirements;
(3) All Collateral is maintained in United States dollars or U.S. dollar-denominated securities or letters of credit (unless an applicable exemption provides otherwise);
(4) All Collateral is held in the United States and the situs of the securities lending agreements is maintained in the United States under an arrangement that complies with the indicia of ownership requirements under section 404(b) of the Act and the regulations promulgated under 29 CFR 2550.404(b)-1 related to the lending of securities; and
(5) Prior to a transaction involving a foreign Affiliated Borrower, the foreign Affiliated Borrower—
(A) Agrees to submit to the jurisdiction of the United States;
(B) Agrees to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(C) Consents to service of process on the Process Agent; and
(D) Agrees that enforcement by a Client Plan of the indemnity provided by the Borrower may occur in the United States courts.
(s) The DB Lending Agent maintains, or causes to be maintained, within the United States for a period of six years from the date of such transaction, in a manner that is convenient and accessible for audit and examination, such records as are necessary to enable the persons described in paragraph (t)(1) to determine whether the conditions of the exemption have been met, except that—
(1) A prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of the DB Lending Agent and/or its affiliates, the records are lost or
(2) No party in interest other than the DB Lending Agent or its affiliates shall be subject to the civil penalty that may be assessed under section 502(i) of the Act, or to the taxes imposed by section 4975(a) and (b) of the Code, if the records are not maintained, or are not available for examination as required below by paragraph (t)(1).
(t)(1) Except as provided in subparagraph (t)(2) of this paragraph and notwithstanding any provisions of sections (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (s) are unconditionally available at their customary location for examination during normal business hours by:
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service or the Securities and Exchange Commission;
(B) Any fiduciary of a participating Client Plan or any duly authorized representative of such fiduciary;
(C) Any contributing employer to any participating Client Plan or any duly authorized employee or representative of such employer; and
(D) Any participant or beneficiary of any participating Client Plan, or any duly authorized representative of such participant or beneficiary.
(t)(2) None of the persons described above in paragraphs (t)(1)(B)-(t)(1)(D) are authorized to examine the trade secrets of the DB Lending Agent or its affiliates or commercial or financial information which is privileged or confidential.
(a)
(b)
(1) which is designed to track the rate of return, risk profile and other characteristics of an Index by either (i) replicating the same combination of securities which compose such Index or (ii) sampling the securities which compose such Index based on objective criteria and data;
(2) for which the DB Lending Agent or its affiliate does not use its discretion, or data within its control, to affect the identity or amount of securities to be purchased or sold;
(3) that contains “plan assets” subject to the Act, pursuant to the Department's Plan Asset Regulation; and,
(4) that involves no agreement, arrangement, or understanding regarding the design or operation of the Fund which is intended to benefit the DB Lending Agent or its affiliate or any party in which the DB Lending Agent or its affiliate may have an interest.
(c)
(1) which is composed of securities the identity of which and the amount of which are selected by a computer model that is based on prescribed objective criteria using independent third-party data, not within the control of the DB Lending Agent or an affiliate, to transform an Index;
(2) which contains “plan assets” subject to the Act, pursuant to the Department's Plan Asset Regulation; and
(3) that involves no agreement, arrangement or understanding regarding the design or operation of the Fund or the utilization of any specific objective criteria which is intended to benefit the DB Lending Agent, any affiliate of the DB Lending Agent, or any party in which the DB Lending Agent or any affiliate may have an interest.
(d)
(1) The organization creating and maintaining the index is—
(A) Engaged in the business of providing financial information, evaluation, advice or securities brokerage services to institutional clients,
(B) A publisher of financial news or information, or
(C) A public stock exchange or association of securities dealers;
(2) The index is created and maintained by an organization independent of DB; and
(3) The index is a generally accepted standardized index of securities which is not specifically tailored for the use of the DB Lending Agent or an affiliate.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice.
The Department received one comment letter, which was submitted by DB, with respect to the Notice. In the comment letter, DB requested several clarifications and changes to the proposed exemption.
DB requested that the Department amend section II(l) concerning the requirement for an indemnification of a Client Plan in the event of a default by the Borrower, to make it conform to other recent exemptions issued by the Department.
DB also requested in its comment letter that the Department clarify that the exemption applies when DB or an affiliate is the Lending Agent or subagent, as well as when DB is the Lending Agent and a third party is the subagent. In this regard, the third party subagent would have to follow all of the requirements of the exemption and be either a broker-dealer registered under the 1934 Act, an investment adviser registered under the Investment Advisers Act of 1940, or a bank as defined in section 202(a)(2) of the Investment Advisers Act of 1940. Any such third party subagent would also be subject to certain dollar minimums of equity capital and of value of securities loaned for which the subagent exercises authority. The Department has adopted this comment and has amended section I(a)(2) of the exemption accordingly.
DB also requested a change to the independent audit requirement in section II(o). DB believes that the requirement that the Independent Fiduciary of each Client Plan be provided with the certification of an
Finally, DB informed the Department that certain entities within DB have recently changed their names. Bankers Trust Company is now Deutsche Bank Trust Company Americas. DB Alex. Brown Securities, Inc. is now Deutsche Bank Securities, Inc., and Deutsche Banc Alex. Brown, Inc. is now also named Deutsche Bank Securities, Inc.
The Department has also been informed that there has been a change in the identity of the governmental regulatory authority in Germany. According to the applicant, following the adoption of the Law on Integrated Financial Services Supervision (Gesetz uber die integrierte Finanzaufsicht—FinDAG), the Federal Authority for Financial Services Supervision (Bundesanstalt fur Finanzdienstleistungsaufsicht—“BAFin”) was established in Germany on May 1, 2002. The functions of the former offices for banking supervision (Bundesaufsichtsamt fur das Kreditwesen—“the BAK”), along with other governmental authorities for insurance and securities supervision, have been combined into a single state regulator that supervises banks, financial services institutions and insurance undertakings across the entire financial market and comprises all the key functions of consumer protection and solvency supervision. The new Federal Authority for Financial Services Supervision has been created to ensure a consistent regulation and supervision of the financial services and markets in Germany through one single governmental authority.
Accordingly, based upon the information contained in the entire record, the Department has determined to grant the proposed exemption as modified herein.
The restrictions of section 406(a)(1)(A) through (D) and 406(b)(1) and (2) of the Act, section 8477(c)(2)(A) and (B) of FERSA, and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to:
(a) The lending of securities to:
(1) Barclays Capital Inc., its successors or affiliates (BC NY);
(2) Barclays Capital Securities Limited, its successors or affiliates (BC UK);
(3) Barclays Global Investors Services, its successors or affiliates (BGIS);
(4) Barclays Global Investors Services Canada Limited, its successors or affiliates (BGIS Canada); and
(5) Any future affiliate of BGI,
(b) The receipt of compensation by BGI in connection with these transactions.
Section I of this exemption applies only if the conditions of Section II are satisfied. For purposes of this exemption, any requirement that the approving fiduciary be independent of BGI or the Borrower shall not apply in the case of a Barclays Plan invested in a Commingled Fund, provided that at all times, the holdings of all Barclays Plans in the aggregate comprise less than 10% of the assets of the Commingled Fund.
(a) For each Client Plan, neither BGI nor any affiliate (except as expressly permitted herein) has or exercises discretionary authority or control with respect to the investment of the assets of Client Plans involved in the transaction or renders investment advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to such assets, including decisions concerning a Client Plan's acquisition or disposition of securities available for loan.
This paragraph (a) will be deemed satisfied notwithstanding that BGI exercises discretionary authority or control or renders investment advice in connection with an Index Fund or Model-Driven Fund managed by BGI in which Client Plans invest.
(b) Any arrangement for BGI to lend securities is approved in advance by a Plan fiduciary who is independent of BGI (the Independent Fiduciary).
(c) The specific terms of the securities loan agreement (the Loan Agreement) are negotiated by BGI which acts as a liaison between the Lender and the Borrower to facilitate the securities lending transaction. In the case of a Separate Account, the Independent Fiduciary of a Client Plan approves the general terms of the Loan Agreement between the Client Plan and the Borrower as well as any material change in such Loan Agreement. In the case of a Commingled Fund, approval is pursuant to the procedure described in paragraph (i), below.
(d) The terms of each loan of securities by a Lender to a Borrower are at least as favorable to such Separate Account or Commingled Fund as those of a comparable arm's length transaction between unrelated parties.
(e) A Client Plan, in the case of a Separate Account, may terminate the lending agency or sub-agency arrangement at any time, without penalty, on five business days notice. A Client Plan in the case of a Commingled Fund may terminate its participation in the lending arrangement by terminating
(1) The customary delivery period for such securities;
(2) Five business days; or
(3) The time negotiated for such delivery by the Client Plan, in a Separate Account, or by BGI, as lending agent to a Commingled Fund, and the Borrowers, whichever is least.
(f) The Separate Account, Commingled Fund or another custodian designated to act on behalf of the Client Plan, receives from each Borrower (either by physical delivery, book entry in a securities depository located in the United States, wire transfer or similar means) by the close of business on or before the day the loaned securities are delivered to the Borrower, collateral consisting of U.S. currency, securities issued or guaranteed by the United States Government or its agencies or instrumentalities, irrevocable bank letters of credit issued by a U.S. bank, other than Barclays Bank PLC (Barclays) (or any subsequent parent corporation of BGI, BC NY, BC UK, BGIS and BGIS Canada) or an affiliate thereof, or any combination thereof, or other collateral permitted under Prohibited Transaction Exemption 81-6 (46 FR 7527, January 23, 1981) (PTE 81-6) (as it may be amended or superseded) (collectively, the Collateral). The Collateral will be held on behalf of a Client Plan in a depository account separate from the Borrower.
(g) The market value (or in the case of a letter of credit, a stated amount) of the Collateral on the close of business on the day preceding the day of the loan is initially at least 102 percent of the market value of the loaned securities. The applicable Loan Agreement gives the Separate Account or the Commingled Fund in which the Client Plan has invested a continuing security interest in and a lien on or title to the Collateral. The level of the Collateral is monitored daily by BGI. If the market value of the Collateral, on the close of trading on a business day, is less than 100 percent of the market value of the loaned securities at the close of business on that day, the Borrower is required to deliver, by the close of business on the next day, sufficient additional Collateral such that the market value of the Collateral will again equal 102 percent.
(h)(1) For a Lender that is a Separate Account, prior to entering into a Loan Agreement, the applicable Borrower furnishes its most recently available audited and unaudited statements to BGI which will, in turn, provide such statements to the Client Plan before the Client Plan approves the terms of the Loan Agreement. The Loan Agreement contains a requirement that the applicable Borrower must give prompt notice at the time of a loan of any material adverse changes in its financial condition since the date of the most recently furnished financial statements. If any such changes have taken place, BGI will not make any further loans to the Borrower unless an Independent Fiduciary of the Client Plan in a Separate Account is provided notice of any material change and approves the continuation of the lending arrangement in view of the changed financial condition.
(2) For a Lender that is a Commingled Fund, BGI will furnish upon reasonable request to an Independent Fiduciary of each Client Plan invested in the Commingled Fund the most recently available audited and unaudited financial statements of the applicable Borrower prior to authorization of lending, and annually thereafter.
(i) In the case of Commingled Funds, the information described in paragraph (c) (including any information with respect to any material change in the arrangement) shall be furnished by BGI as lending fiduciary to the Independent Fiduciary of each Client Plan whose assets are invested in the Commingled Fund, not less than 30 days prior to implementation of the arrangement or material change to the lending arrangement as previously described to the Client Plan, and thereafter, upon the reasonable request of the Client Plan's Independent Fiduciary. In the event of a material adverse change in the financial condition of a Borrower, BGI will make a decision, using the same standards of credit analysis BGI would use in evaluating unrelated borrowers, whether to terminate existing loans and whether to continue making additional loans to the Borrower.
In the event any such Independent Fiduciary submits a notice in writing within the 30 day period provided in the preceding paragraph to BGI, as lending fiduciary, objecting to the implementation of, material change in, or continuation of the arrangement, the Plan on whose behalf the objection was tendered is given the opportunity to terminate its investment in the Commingled Fund, without penalty to the Plan, no later than 35 days after the notice of withdrawal is received. In the case of a Plan that elects to withdraw pursuant to the foregoing, such withdrawal shall be effected prior to the implementation of, or material change in, the arrangement; but an existing arrangement need not be discontinued by reason of a Plan electing to withdraw. In the case of a Plan whose assets are proposed to be invested in the Commingled Fund subsequent to the implementation of the arrangement, the Plan's investment in the Commingled Fund shall be authorized in the manner described in paragraph (c).
(j) In return for lending securities, the Lender either—
(1) Receives a reasonable fee, which is related to the value of the borrowed securities and the duration of the loan; or
(2) Has the opportunity to derive compensation through the investment of cash Collateral. (Under such circumstances, the Lender may pay a loan rebate or similar fee to the Borrowers, if such fee is not greater than the fee the Lender would pay in a comparable arm's length transaction with an unrelated party.)
(k) Except as otherwise expressly provided herein, all procedures regarding the securities lending activities will, at a minimum, conform to the applicable provisions of PTE 81-6 and Prohibited Transaction Exemption 82-63 (46 FR 14804, April 6, 1982) (PTE 82-63), both as amended or superseded, as well as to applicable securities laws of the United States, the United Kingdom and Canada.
(l) If any event of default occurs, to the extent that (i) liquidation of the pledged Collateral or (ii) additional cash received from the Borrower does not provide sufficient funds on a timely basis, the Client Plan will have the right to purchase securities identical to the borrowed securities (or their equivalent) and apply the Collateral to payment of the purchase price. If the Collateral is insufficient to accomplish such purchase, the Borrower will indemnify the Client Plan invested in a Separate Account or Commingled Fund in the United States with respect to the difference between the replacement cost of securities and the market value of the Collateral on the date the loan is declared in default, together with expenses incurred by the Client Plan plus applicable interest at a reasonable rate, including reasonable attorneys' fees incurred by the Client Plan for legal action arising out of default on the loans, or failure by the Borrower to
(m) The Lender receives the equivalent of all distributions made to holders of the borrowed securities during the term of the loan, including but not limited to all interest and dividends on the loaned securities, shares of stock as a result of stock splits and rights to purchase additional securities, or other distributions.
(n) Prior to any Client Plan's approval of the lending of its securities to any Borrower, a copy of this exemption and the notice of proposed exemption (67 FR 9082, February 27, 2002) (the Notice) is provided to the Client Plan.
(o) The Independent Fiduciary of each Client Plan that is invested in a Separate Account is provided with (including by electronic means) quarterly reports with respect to the securities lending transactions, including, but not limited to, the information described in Representation 24 of the Summary of Facts and Representations of the Notice, so that the Independent Fiduciary may monitor such transactions with the Borrower. The Independent Fiduciary of a Client Plan invested in a Commingled Fund is provided with (including by electronic means) quarterly reports with respect to the securities lending transactions, including but not limited to, the information described in Representation 24 of the Summary of Facts and Representations of the Notice, so that the Independent Fiduciary may monitor such transactions with the Borrower. BGI may, in lieu of providing the quarterly reports described in this paragraph (o) to each Independent Fiduciary of a Client Plan invested in a Commingled Fund, provide such Independent Fiduciary with the certification of an auditor selected by BGI who is independent of BGI (but who may or may not be independent of the Client Plan) that the loans appear no less favorable to the Lender than the pricing established in the schedule described in Representation 16 of the Notice. Where the Independent Fiduciary of a Client Plan invested in a Commingled Fund is provided the certification of an auditor, such Independent Fiduciary shall be entitled to receive the quarterly reports upon request.
(p) Only Client Plans with total assets having an aggregate market value of at least $50 million are permitted to lend securities to the Borrowers; provided, however, that—
(1) In the case of two or more Client Plans which are maintained by the same employer, controlled group of corporations or employee organization, whose assets are commingled for investment purposes in a single master trust or any other entity the assets of which are “plan assets” under 29 CFR 2510.3-101 (the Plan Asset Regulation), which entity is engaged in securities lending arrangement with BGI, the foregoing $50 million requirement shall be deemed satisfied if such trust or other entity has aggregate assets which are in excess of $50 million; provided that if the fiduciary responsible for making the investment decision on behalf of such master trust or other entity is not the employer or an affiliate of the employer, such fiduciary has total assets under its management and control, exclusive of the $50 million threshold amount attributable to plan investment in the commingled entity, which are in excess of $100 million.
(2) In the case of two or more Client Plans which are not maintained by the same employer, controlled group of corporations or employee organization, whose assets are commingled for investment purposes in a group trust or any other form of entity the assets of which are “plan assets” under the Plan Asset Regulation, which entity is engaged in securities lending arrangements with BGI, the foregoing $50 million requirement is satisfied if such trust or other entity has aggregate assets which are in excess of $50 million (excluding the assets of any Client Plan with respect to which the fiduciary responsible for making the investment decision on behalf of such group trust or other entity or any member of the controlled group of corporations including such fiduciary is the employer maintaining such Plan or an employee organization whose members are covered by such Plan). However, the fiduciary responsible for making the investment decision on behalf of such group trust or other entity:
(A) Has full investment responsibility with respect to plan assets invested therein; and
(B) Has total assets under its management and control, exclusive of the $50 million threshold amount attributable to plan investment in the commingled entity, which are in excess of $100 million.
In addition, none of the entities described above are formed for the sole purpose of making loans of securities.
(q) With respect to any calendar quarter, at least 50 percent or more of the outstanding dollar value of securities loans negotiated on behalf of Lenders will be to borrowers unrelated to BGI.
(r) In addition to the above, all loans involving foreign Borrowers have the following requirements:
(1) The foreign Borrower is registered as a broker-dealer subject to regulation by the Securities and Futures Authority of the United Kingdom (the SFA) or the Ontario Securities Commission of Ontario, Canada (the OSC);
(2) The foreign Borrower is in compliance with all applicable provisions of Rule 15a-6 under the Securities Exchange Act of 1934 (17 CFR 240.15a-6)(Rule 15a-6) which provides foreign broker-dealers a limited exemption from United States registration requirements;
(3) All Collateral is maintained in United States dollars or U.S. dollar-denominated securities or letters of credit (unless an applicable exemption provides otherwise);
(4) All Collateral is held in the United States and the situs of the securities lending agreements is maintained in the United States under an arrangement that complies with the indicia of ownership requirements under section 404(b) of the Act and the regulations promulgated under 29 CFR 2550.404(b)-1 related to the lending of securities; and
(5) Prior to a transaction involving a foreign Borrower, the foreign Borrower—
(A) Agrees to submit to the jurisdiction of the United States;
(B) Agrees to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(C) Consents to service of process on the Process Agent; and
(D) Agrees that enforcement by a Client Plan of the indemnity provided by the foreign Borrower may occur in the United States courts.
(s) BGI maintains, or causes to be maintained, within the United States for a period of six years from the date of such transaction, in a manner that is convenient and accessible for audit and examination, such records as are necessary to enable the persons described in paragraph (t)(1) to determine whether the conditions of the exemption have been met, except that—
(1) A prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of BGI and/or its affiliates, the records are lost or destroyed prior to the end of the six-year period; and
(2) No party in interest other than BGI or its affiliates shall be subject to the civil penalty that may be assessed under section 502(i) of the Act, or to the taxes imposed by section 4975(a) and (b) of the Code, if the records are not maintained, or are not available for
(t)(1) Except as provided in subparagraph (t)(2) of this paragraph and notwithstanding any provisions of sections (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (s) are unconditionally available at their customary location for examination during normal business hours by:
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service or the Securities and Exchange Commission;
(B) Any fiduciary of a participating Client Plan or any duly authorized representative of such fiduciary;
(C) Any contributing employer to any participating Client Plan or any duly authorized employee or representative of such employer; and
(D) Any participant or beneficiary of any participating Client Plan, or any duly authorized representative of such participant or beneficiary.
(t)(2) None of the persons described above in paragraphs (t)(1)(B)-(t)(1)(D) are authorized to examine the trade secrets of BGI or its affiliates or commercial or financial information which is privileged or confidential.
(a)
(b)
(1) Which is designed to track the rate of return, risk profile and other characteristics of an Index by either (i) replicating the same combination of securities which compose such Index or (ii) sampling the securities which compose such Index based on objective criteria and data;
(2) For which BGI or its affiliate does not use its discretion, or data within its control, to affect the identity or amount of securities to be purchased or sold;
(3) That contains “plan assets” subject to the Act, pursuant to the Department's Plan Asset Regulation; and,
(4) That involves no agreement, arrangement, or understanding regarding the design or operation of the Fund which is intended to benefit BGI or its affiliate or any party in which BGI or its affiliate may have an interest.
(c)
(1) Which is composed of securities the identity of which and the amount of which are selected by a computer model that is based on prescribed objective criteria using independent third-party data, not within the control of BGI or an affiliate, to transform an Index;
(2) Which contains “plan assets” subject to the Act, pursuant to the Department's Plan Asset Regulation; and
(3) That involves no agreement, arrangement or understanding regarding the design or operation of the Fund or the utilization of any specific objective criteria which is intended to benefit BGI, any affiliate of BGI, or any party in which BGI or any affiliate may have an interest.
(d) Index: a securities index that represents the investment performance of a specific segment of the public market for equity or debt securities in the United States and/or foreign countries, but only if—
(1) The organization creating and maintaining the index is—
(A) Engaged in the business of providing financial information, evaluation, advice or securities brokerage services to institutional clients,
(B) A publisher of financial news or information, or
(C) A public stock exchange or association of securities dealers;
(2) The index is created and maintained by an organization independent of Barclays; and
(3) The index is a generally accepted standardized index of securities which is not specifically tailored for the use of BGI.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption published on February 27, 2002 at 67 FR 9082.
The Department received two comment letters, both submitted by the applicants, with respect to the Notice. In the comment letters, the applicants requested several changes to the proposed exemption.
The applicants requested that the Department amend section II(l) concerning the requirement for indemnification of a Client Plan in the event of a default by the Borrower, to make it conform to other recent exemptions issued by the Department.
The applicants also requested that the Department amend section II(l) to state that indemnification would be provided only by the Borrower of securities and not by BGI, as lending agent. The applicants' position is that the proper indemnitor is the Borrower of the securities. The applicants noted that, in the case of a foreign Borrower, the exemption would require the Borrower to agree to submit to the jurisdiction of the United States and that any enforcement of the indemnity would occur in the United States courts. The Department concurs with the applicants' request provided that the Client Plans would not have to sue overseas to enforce any judgment obtained. The language of section II(l) has been revised to clarify that the indemnification provided by the Borrower must permit the Client Plan to collect on any indemnification from a U.S.-domiciled BGI affiliate. The language of section II(r)(5)(D) likewise has been revised to reflect that indemnification would be provided by the Borrower.
The applicants additionally requested a change to the independent audit requirement in section II(o). The applicants requested relief similar to that sought by Deutsche Bank AG (Deutsche Bank) in its comment with respect to Exemption Application No. D-10924. Deutsche Bank stated that the requirement that the Independent Fiduciary of each Client Plan be provided with the certification of an independent auditor, in addition to quarterly reports for securities lending transactions, would be duplicative and administratively burdensome for Deutsche Bank with respect to Client Plans invested in Separate Accounts. The Department concurred with Deutsche Bank's comment and modified section II(o) of the final exemption granted to Deutsche Bank. Accordingly, the Department has determined to modify section II(o) of this exemption as well.
As modified, section II(o) permits BGI to provide an Independent Fiduciary of a Client Plan invested in a Separate Account only with quarterly reports. In addition, the Independent Fiduciary of each Client Plan invested in a Commingled Fund can be provided with the certification of an independent auditor in lieu of the provision of quarterly reports. However, as indicated in the Notice, such Independent
Finally, BGI requested that the proposed exemption be amended and expanded to include a new affiliate, Barclays Global Investors Services Canada Limited (BGIS Canada), as an additional Borrower.
In this regard, BGI requested that the following be added to Item 1 of the Summary of Facts and Representations of the Notice with regard to BGIS Canada:
BGIS Canada is a broker-dealer located in Toronto, Ontario, Canada. BGIS Canada is subject to regulation in Canada by the Ontario Securities Commission (OSC) and the oversight of the Investment Dealers Association (IDA). BGIS Canada anticipates that in the future it will borrow securities in the ordinary course of its business.
BGI also requested the following representation be added to Item 27 of the Summary of Facts and Representations of the Notice:
BGIS Canada is subject to regulation in Canada by the OSC and the oversight of the IDA, a self-regulatory organization, and is, therefore, authorized to conduct an investment banking business in and from Canada as a broker-dealer. The applicants note that the Department has previously concluded, in connection with PTE 99-04 issued to Salomon Smith Barney, Inc. that the regulatory scheme applicable to broker-dealers in Canada is sufficiently similar to the regulatory scheme applicable to broker-dealers in the United States. The applicants make the following representation, substantially similar to the representation set forth in paragraph (2) of the Summary of Facts and Representations of the published application number D-10288 (63 FR 53703, October 6, 1998) submitted to the Department by Salomon Brothers, Inc. and granted to Salomon Smith Barney, Inc. as PTE 99-04.
The applicants represent that BGIS Canada is subject to regulation by the OSC, a Canadian governmental agency and the oversight of the IDA, which oversees BGIS Canada's operation on a day to day basis and monitors compliance with capital adequacy and record keeping requirements on a regular basis. The applicants further represent that registration of BGIS Canada with the OSC addresses regulatory concerns similar to those concerns addressed by registration of a broker-dealer with the SEC under the 1934 Act. The rules and regulations set forth by the OSC and the SEC share a common objective: the protection of the investor by the regulation of securities markets. Canada has comprehensive financial resource and reporting/disclosure rules concerning broker-dealers. Broker-dealers are required to demonstrate their capital adequacy. The reporting/disclosure rules impose requirements on broker-dealers with respect to risk management, internal controls, and records relating to counterparties. All such records must be produced at the request of the OSC or IDA at any time. The OSC's registration requirements for broker-dealers are enforced by fines and penalties and thus constitute a comprehensive disciplinary system for the violation of such rules.
BGI further requests that the Department amend the first two sentences of Item 28 of the Summary of Facts and Representations of the Notice to read as follows:
In addition to the protections afforded by registration with the SFA or the OSC, as applicable, the applicants represent that BC UK and BGIS Canada will comply with the applicable provisions of Rule 15a-6 (described below). The applicants represent that compliance by BC UK and BGIS Canada with the requirements of Rule 15a-6 will offer additional protections in lieu of registration with the SEC.
Finally, BGI requests that the Department reference BGIS Canada in the following sections of the proposed exemption: section I(a), section II(f), (k) and (r) and Items 1, 3, 12, 20, 21 and 29(e) and (g) of the Summary of Facts and Representations of the Notice. BGI states that in most cases this involves only the addition of “BGIS Canada” to the text. However, BGI requests that section II(r)(1) be amended to read as follows:
The foreign Borrower is registered as a broker-dealer subject to regulation by the Securities and Futures Authority of the United Kingdom (the SFA) or the Ontario Securities Commission of Ontario, Canada (the OSC);
The Department concurs with BGI's comments with regard to BGIS Canada and has made the requested revisions to the language of the final exemption.
Accordingly, after giving full consideration to the entire record, including the comments, the Department has determined to grant the exemption as modified above. For further information regarding the comments and other matters discussed herein, interested persons are encouraged to obtain copies of the exemption application file (Exemption Application No. D-10925) the Department is maintaining in this case. The complete application file, as well as the comments and all supplemental submissions received by the Department, are made available for public inspection in the Public Disclosure Room of the Pension and Welfare Benefits Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington DC 20210.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
Copyright Office, Library of Congress.
Notice requesting written proposals and announcing status conference.
The Copyright Office of the Library of Congress is requesting interested parties to submit written proposals governing data format and delivery for recordkeeping requirements to be established by the Copyright Office, under the authority of the Librarian of Congress, for the section 112 and section 114 statutory licenses. The Office will also conduct a status conference to discuss the formatting requirements.
Written proposals must be received in the Copyright Office by September 30, 2002. A status conference will be held on October 8, 2002 at 10 a.m.
An original and ten copies of written proposals should be brought to: Office of the General Counsel, Copyright Office, James Madison Memorial Building, Room LM-403, First and Independence Avenue, SE., Washington, DC; or mailed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. The October 8, 2002, status conference will be held in the CARP Hearing Room, Room LM-414, located on the fourth floor of the James Madison Memorial Building of the Library of Congress, First Street and Independence Avenue, SE., Washington, DC.
David O. Carson, General Counsel, or William J. Roberts, Jr., Senior Attorney, Copyright Arbitration Royalty Panel, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Telephone: (202) 707-8380. Telefax: (202) 252-3423.
The Copyright Act grants copyright owners of sound recordings the exclusive right to perform their works publicly by means of digital audio transmissions subject to certain limitations and exceptions. Among the limitations placed on the performance of sound recordings is a statutory license that permits certain eligible subscription, nonsubscription and satellite digital audio services to perform those sound recordings publicly by means of digital audio transmissions. 17 U.S.C. 114.
Similarity, copyright owners of sound recordings are granted the exclusive right to make copies of their works subject to certain limitations and exceptions. Among the limitations placed on the reproduction of sound recordings is a statutory license that permits certain eligible subscription, nonsubscription and satellite digital audio services to make ephemeral copies of those sound recordings to facilitate their digital transmission under the section 114 license. 17 U.S.C. 112(e).
Both the section 114 and 112 licenses require services to, among other things, report to copyright owners of sound recordings on the use of their works. Both licenses direct the Librarian of Congress to establish regulations to give copyright owners reasonable notice of the use of their works and create and maintain records of the use for delivery to copyright owners. 17 U.S.C. 114(f)(4)(A) and 17 U.S.C. 112(e)(4). The purpose of the exchange of data is to enable copyright owners of sound recordings to distribute royalties collected under the statutory licenses to the correct recipients.
In 1998, the Copyright Office issued interim notice and recordkeeping regulations for subscription digital audio transmission services that, at the time, were the only services eligible for the statutory licenses. The Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998), expanded the pool of digital audio services eligible for the licenses making additional notice and recordkeeping regulations necessary. On February 7, 2002, the Office published a Notice of Proposed Rulemaking (“NPRM”) using the 1998 interim regulations as the guidepost. The Office received public comments and, on May 10, 2002, the Office held a public meeting with representatives of copyright owners and users of the statutory licenses to assist in the formulation of regulations for notice and recordkeeping. Subsequently, the Office announced on the Copyright Office website that it would be announcing interim notice and recordkeeping regulations to establish transitional reporting requirements for services using the section 114 statutory license to perform sound recordings publicly by means of digital audio transmissions and the section 112 statutory license to make ephemeral recordings of sound recordings.
As the announcement on the Copyright Office website stated, these transitional requirements will require services using the statutory licenses to report the following information for a certain period of time during each calendar quarter:
1. The name of the service submitting the report;
2. The transmission category of the service [upon further analysis, the Office believes that the following categories need be designated: eligible nonsubscription services; preexisting satellite digital audio radio services; new subscription services; non-Corporation for Public Broadcasting, noncommercial broadcasters making transmissions covered by 37 CFR 261.3(a)(2)(i) and (ii);
3. For each sound recording transmitted by the service during the relevant period:
a. The featured recording artist;
b. The sound recording title;
c. The name of the record album containing the sound recording, if in the possession of the service, or supplied to the service, at or before the time of the performance;
d. The marketing label of the sound recording, if in the possession of the service, or supplied to the service, at or before the time of the performance; and
e. The total number of performances of the sound recording (
The transitional requirements will apply prospectively to reporting by qualified nonsubscription services (
It is anticipated that these interim requirements will be replaced after several months by final requirements, which are likely to require more comprehensive reporting. Moreover,
One of the issues that must be addressed in the interim regulations—and is the subject of today's request for written proposals—is the format in which recordkeeping data must be maintained by services using the statutory licenses, and the method or methods for delivery of the data to SoundExchange, which is the officially designated Receiving Agent for receiving section 114 and 112 royalty fees. See 37 CFR 261.4(b). As a preliminary matter, the Office has determined that data must be maintained in electronic format for delivery to SoundExchange; data in hard copy format is not acceptable. The issue, then, is the technical specifications of the electronic reports that will make the data stored therein usable.
By way of illustration, in the NPRM, the Office proposed the following format requirements, which included some data fields that are no longer being considered:
Format. Reports of Use should be provided on a standard machine-readable medium, such as a diskette, optical disc, or magneto-optical disc, and should conform as closely as possible to the following specifications:
(1) * * *
(2) * * *
(i) ASCII delimited format, using pipe characters as delimiter, with no headers or footers;
(ii) Field names should not be included as the first row of the file;
(iii) Carats (‸) should surround strings;
(iv) No carats (‸) should surround dates and numbers;
(v) Dates and times should be indicated by: DDMMYYYYhhmmss, where DD is the two-digit day of the log period; MM is the two-digit month of the log period; YYYY is the four-digit year of the log period; hh is the two-digit hour of the log period; mm is the two-digit minute of the log period; ss is the two-digit second of the period; single digit days, months, hours, minutes and seconds should be prepended with a zero; and times are local using a 24-hour clock;
(vi) A carriage return should be at the end of each line;
(vii) All data for one record should be on a single line;
(viii) All data for each month and each log type should be contained in a single file;
(ix) Files may be compressed in ZIP or GZ format; and
(x) Files should be named Service Name_Log Type_MMYYYY, where Log Type should be Play List, Listener or Ephemeral.
Formatting of recordkeeping data was addressed periodically at the May 10, 2002, public meeting, although mostly in the context of whether records have been maintained in electronic or hard copy format. The specifics of the proposed format regulation in the NPRM were not discussed.
Subsequent to the May 10 public meeting, the Office met with representatives of RIAA and SoundExchange and with representatives of broadcasters and webcasters to discuss format requirements in an effort to speed the process for issuing interim regulations that will begin reporting of data required by the section 114 and 112 licenses. It was apparent from both these meetings that the requirements proposed in the NPRM are not sufficiently detailed and will likely cause confusion and error in the reporting of recordkeeping data. Unfortunately, there was no consensus as to the specifics for formatting data.
In the interest of crafting data format regulations that are efficient, cost effective and reduce the incidences of reporting error, the Copyright Office is requesting both copyright owners and users of the section 114 and 112 licenses for digital audio transmissions to submit their written proposals for specifications to be included in regulations adopting the electronic format for recordkeeping data. Such proposals should include specific regulatory language along with a brief explanation of the reasons for adopting such language. Interested parties should also include in their written proposals acceptable means of data delivery (such as via e-mail attachment, delivery to an ftp site, physical delivery of a diskette,
Proposals should include requirements that are or can be compatible with software used by webcasters in connection with programming or reporting of performances of sound recordings. The interim regulations will also provide that webcasters be able to report on the use of sound recordings by recording the required information in spreadsheets in formats compatible with commonly used spreadsheet software. The Office intends to require that SoundExchange make templates for such spreadsheets available for downloading on its website and on the Copyright Office website. Proposals for formatting requirements should be compatible with this requirement and ideally should include samples of compatible spreadsheets.
Comments are also solicited on whether the reporting on the transmission category of the service should include only the categories set forth above,
The Office encourages copyright owners, broadcasters and webcasters to work together to agree on formatting requirements that will serve all of their needs, and to submit joint proposals or comments if possible.
Written proposals are due by September 30, 2002.
The Office will hold a status conference on October 8, 2002, at 10:00 a.m. in the CARP Hearing Room, Room LM-414, located on the fourth floor of the James Madison Memorial Building of the Library of Congress, First Street and Independence Avenue, SE, Washington, DC. The purpose of the status conference will be to discuss the formatting requirements for the notice and recordkeeping regulations.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces an open meeting of the NASA Advisory Council (NAC), Task Force on International Space Station Operational Readiness (IOR).
Wednesday, October 16, 2002, 1 p.m.-2 p.m. Eastern Standard Time.
This meeting will be conducted via teleconference; hence participation will require contacting Mr. Lee Pagel (202/358-4621) before 12 Noon Eastern, October 15, 2002, and leaving your name, affiliation, and phone number.
Mr. Lee Pagel, Code IH, National Aeronautics and Space Administration, Washington, DC 20546-0001, 202/358-4621.
This meeting will be open to the public up to the capability of the teleconferencing system. The agenda for the meeting is as follows:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
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 November 7, 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 301-837-3698 or by e-mail to
Larry Baume, Acting Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-1505. 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 Agriculture, Forest Service (N1-95-02-1, 4 items, 2
2. Department of Defense, National Imagery and Mapping Agency (N1-537-02-2, 2 items, 2 temporary items). Individual procurement appointment files relating to participants in purchase card programs. Also included are electronic copies of records created using word processing and electronic mail.
3. Department of Justice, Federal Bureau of Investigation (N1-65-02-5, 1 item, 1 temporary item). Hard copy fingerprint cards generated in connection with background investigations of military enlistees.
4. Department of Justice, National Drug Intelligence Center (N1-523-02-1, 8 items, 6 temporary items). Staff meeting files, firearms training records, and training materials that do not pertain to law enforcement. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of executive level meeting files and training materials for law enforcement training.
5. Department of Justice, National Drug Intelligence Center (N1-523-02-2, 6 items, 3 temporary items). Policy files that do not pertain to the agency's mission, including electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of mission-related policy files and records that pertain to agreements.
6. Department of the Navy, Agency-wide (N1-NU-02-03, 5 items, 4 temporary items). Records relating to international agreements accumulated by the International Programs Office. The records include Navy annexes to data exchange agreements, newsletters, and charts. Also included are electronic copies of records created using electronic mail and word processing. Recordkeeping copies of case files pertaining to agreements are proposed for permanent retention.
7. Department of the Navy, Agency-wide (N1-NU-02-04, 13 items, 13 temporary items). Records relating to security assistance policy accumulated by the International Programs Office. Included are budgetary documents, case files relating to such matters as foreign military sales and other assistance programs, and inter-service agreements for administrative services. Also included are electronic copies of records created using electronic mail and word processing.
8. Department of State, Bureau of Human Resources (N1-59-00-8, 23 items, 21 temporary items). Records accumulated by the Office of the Executive Director relating to administrative oversight and support. Included are such records as subject files, the personnel action handbook master, performance files, and several databases containing personnel data for employees, including Foreign Service Nationals. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention is the master file of the main personnel system and microfilm copies of employee service record cards from 1940 to 1975.
9. Department of State, Assistant Secretary for Intelligence and Research (N1-59-02-7, 2 items, 1 temporary item). Electronic copies of documents created using electronic mail and word processing that are associated with the office's subject files. Proposed for permanent retention are the recordkeeping copies of these files.
10. Department of State, Office of the Secretary of State (N1-59-02-8, 2 items, 1 temporary item). Electronic copies of documents created using electronic mail and word processing that pertain to memorandums of conversations. Recordkeeping copies of these files are proposed for permanent retention.
11. Department of State, Office of Information Technology Operations and Management for the Bureau of Educational and Cultural Affairs and the Coordinator of International Information Programs (N1-59-02-9, 26 items, 26 temporary items). Records relating to information technology operations and management, including such matters as the management of computer equipment and software, tape libraries, system backups, data security, and user support. Also included are electronic copies of records created using electronic mail and word processing.
12. Department of the Treasury, Financial Management Service (N1-425-02-2, 4 items, 4 temporary items). Electronic copies of documents created using electronic mail and word processing relating to foreign claim files and to closed court cases concerning forgery and alteration of government checks. This schedule also increases retention period for recordkeeping copies of these files, which were previously approved for disposal.
13. Court Service and Offender Supervision Agency, Community Supervision Services Division (N1-562-02-1, 3 items, 3 temporary items). Case files for offenders in the District of Columbia Superior Court system who are under parole, supervised release, and/or probation supervision. Included are electronic copies of documents created using electronic mail and word processing.
14. Peace Corps, Management Division (N1-490-02-1, 1 item, 1 temporary item). Electronic records accumulated by the Office of Information Resources Management that are used for tracking staff access to and use of agency automated systems.
Department of Energy, National Nuclear Security Administration.
Notice of intent.
The Department of Energy's (DOE) National Nuclear Security Administration (NNSA) is responsible for the safety and reliability of the U.S. nuclear weapons stockpile, including protection of production readiness to maintain that stockpile. Since 1989, the DOE has been without the capability to produce plutonium pits (the portion of a nuclear weapon which generates the fission energy to drive modern thermonuclear weapons). The NNSA, the Department of Defense (DOD), and Congress have highlighted the lack of long-term pit production capability as a national security issue requiring timely resolution. While an interim capability is currently being established at the Los Alamos National Laboratory (LANL), classified analyses indicate that this capability will not suffice to maintain, long-term, the nuclear deterrent that is a cornerstone of U.S. national security policy. Pursuant to the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
NNSA is inviting comments related to its intention to prepare a Supplement to the Programmatic EIS on SSM for a Modern Pit Facility. Comments should be submitted within November 22, 2002. Comments submitted during the 60-day comment period following publication of this NOI will assist the NNSA in developing the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility. Public scoping meetings to discuss issues and receive comments on the scope of the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility will be held in the vicinity of sites that may be affected by the proposed action, as well as in Washington, DC. The public scoping meetings will provide the public with an opportunity to present comments, ask questions, and discuss concerns with NNSA officials regarding the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility. The locations, dates, and times for these public scoping meetings are as follows:
The NNSA will publish additional notices on the dates, times, and locations of the scoping meetings in local newspapers in advance of the scheduled meetings. Any necessary changes will be announced in the local media. Any agency, state, pueblo, tribe, or unit of local government that desires to be designated a cooperating agency should contact Mr. Jay Rose at the address listed below by October 15, 2002.
General questions concerning this Notice of Intent for the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility can be asked by calling 1-800-832-0885, ext. 65484, or by writing to: Mr. Jay Rose, Supplement to the Programmatic EIS on SSM for a Modern Pit Facility Document Manager, NA-53, Forrestal Building, U.S. Department of Energy/NNSA, 1000 Independence Avenue, SW., Washington, D.C. 20585. Comments can be submitted to Mr. Rose at the address above; or faxed to: 1-202-586-5324; or e-mailed to
For general information on the NNSA NEPA process, please contact: Mr. James J. Mangeno, NNSA NEPA Compliance Officer, NA-3.6, Forrestal Building, U.S. Department of Energy/NNSA, 1000 Independence Avenue, SW., Washington, D.C. 20585; or telephone 1-800-832-0885, ext. 6-8395. For general information on the DOE NEPA process, please contact: Ms. Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance, EH-42, Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, telephone 202-586-4600, or leave a message at 1-800-472-2756.
Plutonium pits are essential components of nuclear weapons. Prior to the shutdown of its production activities in 1989, plutonium pits for the nuclear weapons stockpile were manufactured at the DOE Rocky Flats Plant in Colorado. No stockpile-certified pits have been produced by this country since that shutdown. During the mid-1990s, the DOE conducted a comprehensive analysis of the capability and capacity needs for the entire Nuclear Weapons Complex and evaluated alternatives for maintaining the Nation's nuclear stockpile in the Programmatic Environmental Impact Statement for Stockpile Stewardship and Management (SSM PEIS, DOE/EIS-0236). Issued in September 1996, the SSM PEIS looked extensively at pit manufacturing capability and capacity needs, and evaluated reasonable alternatives for re-establishing interim pit production capability on a small scale. A large pit production capacity—in line with the capacity planned for other manufacturing functions—was not evaluated in the PEIS “because of the small current demand for the fabrication of replacement pits, and the significant, but currently undefined, time period before additional capacity may be needed.” In the SSM PEIS Record of Decision (ROD) (61 FR 68014, December 26, 1996), the Secretary of Energy decided to re-establish an interim pit fabrication capability, with a small capacity, at LANL. That decision limited pit fabrication to a facility “sized to meet programmatic requirements over the next ten or more years.” In the ROD, DOE committed to “performing development and demonstration work at its operating plutonium facilities over the next several years to study alternative facility concepts for larger capacity.”
Subsequent to the SSM PEIS ROD, a number of citizen groups filed suit challenging the adequacy of the SSM PEIS. In August 1998, the SSM PEIS litigation was resolved. As a result of that litigation, DOE agreed to entry of a court order that required, “[p]rior to taking any action that would commit DOE resources to detailed engineering design, testing, procurement, or installment of pit production capability for a capacity in excess of the level that has been analyzed in the SSM PEIS [50 pits per year under routine conditions, 80 pits per year under multiple-shift operations], DOE shall prepare and circulate a Supplemental PEIS, in accordance with DOE NEPA Regulation 10 CFR 1021.314, analyzing the reasonably foreseeable environmental impacts of and alternatives to operating such an enhanced capacity, and shall issue a Record of Decision based thereon.” This Supplement to the SSM PEIS is being prepared in part to satisfy that obligation.
Following the SSM PEIS, in January 1999, the Department prepared the LANL Site-Wide EIS (SWEIS) (DOE/EIS-0238), which evaluated site-specific alternatives for implementing pit production at LANL. Consistent with the SSM PEIS ROD, the LANL SWEIS evaluated alternatives that would implement pit production with a capacity up to 50 pits per year under single-shift operations and 80 pits per year using multiple shifts. In the ROD for the LANL SWEIS (64 FR 50797, September 20, 1999), DOE decided to produce up to 20 pits per year at LANL,
Consistent with the 1996 SSM PEIS ROD and the 1999 LANL SWEIS ROD, NNSA has been re-establishing a small pit manufacturing capability at LANL. The establishment of the interim pit production capacity is expected to be completed in 2007. However, classified analyses indicate that the capability being established at LANL will not support either the projected capacity requirements (number of pits to be produced over a period of time), or the agility (ability to rapidly change from production of one pit type to another, ability to simultaneously produce multiple pit types, or the flexibility to produce pits of a new design in a timely manner) necessary for long-term support of the stockpile. In particular, any systemic problems that might be identified in an existing pit type or class of pits (particularly any aging phenomenon) could not be adequately addressed today, nor could it be with the capability being established at LANL. Although no such problems have been identified, the potential for such problems increases as pits age. NNSA's inability to respond to such issues is a matter of national security concern. NNSA is responsible for ensuring that appropriate pit production capacity and agility are available when needed, and this Supplement to the SSM PEIS is being undertaken to assist NNSA in discharging this responsibility.
Currently, the NNSA envisions the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility as a “programmatic document” that will support two decisions: (1) Whether to proceed with the MPF; and (2) if so, where to locate the MPF. A tiered, project-specific EIS is expected to be prepared after the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility if the Secretary decides to proceed with such a facility. That tiered EIS, which would utilize detailed design information to evaluate site-specific alternatives at any site selected as a potential location for a MPF, would ultimately support a decision for construction and operation of the MPF. As described below, the NNSA has developed preliminary alternatives for the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility.
The environmental impacts of constructing and operating the MPF, including the impacts that might occur at each potential site, will be addressed in the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility. These impacts will be presented along with environmental baseline information to enable the reader to discern the differences between alternatives. The NNSA has identified the following issues for analysis in the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility. Additional issues may be identified as a result of the scoping process.
2. Impacts from releases to air, water, and soil associated with constructing and operating the MPF.
3. Impacts to plants, animals, and habitats, including threatened or endangered species and their habitats, associated with constructing and operating the MPF.
4. The consumption of natural resources and energy associated with constructing and operating the MPF.
5. Socioeconomic impacts to affected communities from construction and operation of the MPF.
6. Environmental justice: Disproportionately high and adverse human health or environmental effects on minority and low-income populations associated with constructing and operating the MPF.
7. Impacts to cultural resources such as historic, archaeological, scientific, or culturally important sites associated with constructing and operating the MPF.
8. Impacts associated with transportation and storage of nuclear materials.
9. Status of compliance with all applicable Federal, state, and local statutes and regulations; required Federal, state, and tribe environmental consultations and notifications; and DOE Orders on waste management, waste minimization, and environmental protection.
10. Cumulative impacts from the proposed action and other past, present, and reasonably foreseeable actions at the alternative sites.
11. Potential irreversible and irretrievable commitments of resources associated with constructing and operating the MPF.
12. Pollution prevention and waste management practices, including characterization, storage, treatment and disposal of wastes associated with constructing and operating the MPF. NNSA anticipates that certain classified information will be utilized in preparing the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility and considered by the NNSA in deciding whether to construct and operate MPF, and if so, where the facility would be located. Accordingly, the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility will likely contain a classified appendix. To the extent allowable, the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility will summarize this information in an unclassified manner.
The proposed Supplement to the Programmatic EIS on SSM for a Modern Pit Facility schedule is as follows:
To assist in defining the appropriate scope of the Supplement to the Programmatic EIS on SSM for a Modern Pit Facility and to identify significant environmental issues to be addressed, NNSA representatives will conduct public scoping meetings at the dates, times, and locations described above under
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from certain requirements of 10 CFR 50.71(e)(4) for Facility Operating License Nos. DPR-19 and DPR-25, issued to Exelon Generation Company, LLC (the licensee), for operation of the Dresden Nuclear Power Station, Units 2 and 3, located in Grundy County, Illinois, and for Facility Operating License Nos. DPR-29 and DPR-30, issued to the licensee, for operation of the Quad Cities Nuclear Power Station, Units 1 and 2, located in Rock Island County, Illinois. Therefore, as required by 10 CFR 51.21, the NRC is issuing this environmental assessment and finding of no significant impact.
The proposed action would grant a schedular extension for Dresden Nuclear Power Station (Dresden), Units 2 and 3, and for Quad Cities Nuclear Power Station (Quad Cities), Units 1 and 2, for submittal of revised Updated Final Safety Analysis Reports (UFSARs) from the regularly scheduled dates. 10 CFR 50.71(e)(4) requires that subsequent revisions to the UFSAR be submitted periodically to the NRC provided that the interval between successive updates does not exceed 24 months. The Dresden and Quad Cities UFSAR revisions are currently submitted on a 24-month cycle. The next scheduled date for submittal of the revised UFSAR for Dresden is June 30, 2003, and for Quad Cities is October 20, 2003. However, the licensee plans to submit revised UFSARs along with Operating License Renewal Applications (LRAs) for Dresden and Quad Cities in January 2003. The licensee plans to resume the established schedule for submittal of the UFSAR revisions in 2005 for both stations. The licensee requests a one-time exemption to postpone submittal of the revised Dresden and Quad Cities UFSARs until 2005.
The proposed action is in accordance with the licensee's application dated August 9, 2002.
The licensee proposes to submit revised UFSARs with LRAs in January 2003, and to resume the established schedule for submittal of UFSAR revisions for Dresden on June 30, 2005, and for Quad Cities on October 20, 2005. An exemption is required because 10 CFR 50.71(e)(4) requires that subsequent revisions to the UFSAR be submitted periodically to the NRC provided that the interval between successive updates does not exceed 24 months.
The NRC has completed its evaluation of the proposed action and concludes that there are no significant adverse environmental impacts associated with the proposed action.
The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential nonradiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect nonradiological plant effluents and has no other environmental impact. Therefore, there are no significant nonradiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
The action does not involve the use of any different resource than those previously considered in the Final Environmental Statement for the Dresden Nuclear Power Station, Units 2 and 3, dated November 1973, and for the Quad Cities Nuclear Power Station, Units 1 and 2, dated September 1972.
On August 22, 2002, the staff consulted with the Illinois State official, Mr. F. Niziolek of the Department of Nuclear Safety, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the
For further details with respect to the proposed action, see the licensee's letter dated August 9, 2002. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site, http://www.nrc.gov/reading-rm/adams.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS, should contact the NRC PDR Reference staff by telephone at 1-800-397-4209 or 301-415-4737, or by e-mail to pdr@nrc.gov.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of amendments to Facility Operating Licenses DPR-77 and DPR-79 issued to the Tennessee Valley Authority (TVA or the licensee) for operation of the Sequoyah Nuclear Plant (SQN), Units 1 and 2, located in Hamilton County, Tennessee. Therefore, as required by Title 10, Code of Federal Regulations (10 CFR), Section 51.21, the NRC is issuing this environmental assessment and finding of no significant impact.
The proposed action would change SQN's Technical Specifications to allow TVA to irradiate up to 2256 tritium-producing burnable absorber rods (TPBARs) in each of SQN's two reactor cores. Irradiating the TPBARs in the reactor cores supports the U.S. Department of Energy (DOE) in maintaining the nation's tritium inventory. TVA will insert the TPBARs into positions in the reactor cores where conventional burnable poison rods would normally be located (conventional poison rods contain boron which reacts with neutrons making them unavailable for interacting with uranium atoms, thereby slowing fission and heat generation). TPBARs are not reactor fuel and do not generate thermal energy for generating electrical energy.
TPBARs use lithium rather than boron. Neutron irradiation in the reactor core converts the lithium in the TPBARs into tritium. After one operating cycle, TVA would remove the fuel assemblies containing TPBARs from the SQN cores and put them into the spent fuel pool. TVA would then, after several weeks (based on plant schedules rather than decay considerations), remove the irradiated TPBARs from the fuel assemblies and consolidate them into shipping casks for DOE to transport them to its tritium extraction facility at its Savannah River Site.
The proposed action is in accordance with the licensee's application dated September 21, 2001, as supplemented by letters of June 11, July 19, August 9, August 30, September 5, and September 12, 2002.
The proposed action would allow SQN to provide irradiation services for DOE to maintain the nation's tritium supply as prescribed by Public Law (PL) 106-65. Section 3134 of PL 106-65 directs the Secretary of Energy to produce new tritium at TVA's Watts Bar Nuclear Plant (WBN) or the SQN plant.
DOE's Environmental Impact Statement, DOE/EIS-0288, Final Environmental Impact Statement (EIS) for the Production of Tritium in a Commercial Light Water Reactor, dated March 1999, assessed the environmental impacts of producing tritium at WBN and SQN. TVA was a cooperating Federal agency in preparing this EIS and adopted the EIS in accordance with 40 CFR 1506.3(c) of the Council on Environmental Quality regulations. DOE also prepared a Tritium Production Core (TPC) Topical Report, NDP-98-181, Rev. 1, to address the safety and licensing issues associated with incorporating TPBARs in a reference pressurized-water reactor. The NRC used its Standard Review Plan (NUREG-0800) as the basis for evaluating the impact of the TPBARs on a reference plant. The NRC reviewed the TPC Topical Report and issued a Safety Evaluation Report, NUREG-1672, in May 1999. NUREG-1672 identified 17 plant-specific interface issues that a licensee would be required to address in support of a plant specific amendment to operate a tritium production core. TVA's application of September 21, 2001, and supplements, addressed these interface issues. The NRC staff is reviewing TVA's amendment request and will issue a safety evaluation documenting its review.
Tritium levels in the RCSs of large pressurized-water reactors have ranged as high as 4000 curies per year (Ci/yr) without exceeding regulatory limits. TVA estimated, as discussed in its June 11, 2002, letter, that the tritium level in the RCS of each SQN unit would be about 3126 Ci/yr with 2256 TPBARs in each unit's reactor. This increased tritium level could increase overall occupational exposure, but NRC data summarized in NUREG-0713, “Occupational Radiation Exposure at Commercial Nuclear Power Reactors and Other Facilities,” dated 1995, indicate tritium exposure is not an important contributor to overall occupational exposure.
TVA, in its letter dated June 11, 2002, stated that it does not expect the increased RCS activity at SQN to greatly affect normal RCS feed-and-bleed operation throughout the cycle. The NRC staff finds no reason to disagree with TVA's conclusion. Thus, primary coolant discharge volumes should be similar to current volumes.
The staff concludes that the additional dose rate from operating SQN with 2256 TPBARs in each reactor will not have a significant impact on TVA's ability to control worker radiation doses and keep them well within regulatory limits using the controls and practices in SQN's existing Radiation Protection Program.
If increased RCS feed and bleed is required, it may be necessary to temporarily store the increased volume of tritiated liquid onsite, or to dilute the tritiated liquid to ensure that 10 CFR Part 20 discharge limits are met. SQN has sufficient storage tanks to accommodate this additional liquid waste.
The SQN facility has waste-treatment systems designed to collect and process liquid waste that may contain radioactive material. The tritium in liquid effluents from SQN is diluted to a relatively low concentration before it reaches even the most highly exposed members of the public. TVA's submittal of June 11, 2002, shows that the total additional dose to the maximally-exposed member of the public is estimated to be less than 0.01 millirem per year (mrem/yr). This total dose, considering the minimal increase from tritium production, is less than 1.0 percent of the NRC 3-mrem/yr guideline for effluent exposure to the public. The staff concludes that the potential radiological impact from liquid effluents on plant workers, members of the public, and the environment from operation with the TPC complies with all regulatory dose limits.
A portion of the tritium might be released to the atmosphere. The amount would depend on plant conditions and the manner in which TVA operates SQN. Individuals could be exposed to tritium in a variety of pathways if it was released to the atmosphere. These pathways include inhalation and skin absorption, as well as consumption of meat, vegetables and milk. According to TVA, in its submittal of June 11, 2002, the calculated incremental increase in the gaseous emission dose to the most highly-exposed member of the public through all pathways because of the TPBARs would be about 1.7 percent of the NRC annual 15 mrem exposure guideline for airborne effluents.
Irradiation of TPBARs is expected to increase the number of curies and volume of solid radioactive waste, primarily because of disposal (offsite) of the associated base plates and thimble plugs, which become irradiated. The estimated increase in activity inventory from solid waste (assuming 2256 TPBARS) is approximately 2700 Ci/year and the estimated increase in volume is from 32,820 cubic feet/year to 32,853 cubic feet/year. As the result of this increase in solid waste, the estimated increase in total worker dose from handling the additional solid waste is approximately 1.7 person-rem (about 1.1 percent of the dose assessment estimate of record). Offsite shipment and disposal would be in accordance with established agreements between TVA and DOE.
The proposed amendments are not expected to significantly affect the doses to the workers in the fuel storage area. The TPBARs are designed to have minimal effect on plant operations, including refueling operations. Unirradiated TPBARs will produce no increase in exposure, occupational or public, because they are essentially non-radioactive. Possible increases in tritium airborne activity may increase dose to workers handling and consolidating radioactive TPBARs. However, TVA stated, in its submittal of June 11, 2002, that SQN's station dose assessment of record bounds the expected increase.
The proposal does not affect non-radiological plant effluents. The proposal does not result in any significant changes to land use or water use. It also does not result in any significant changes to the quantity or quality of effluents, and no effects on endangered or threatened species or on their habitats are expected. Therefore, no changes in, or different types of, non-radiological environmental impacts are expected as a result of the amendments.
TVA's submittal of June 11, 2002, discussed the effects of TPBARs on the possible consequences of the following postulated accidents discussed in SQN's Updated Final Safety Analysis Report (UFSAR):
a.
b.
TVA's submittal of September 21, 2001, stated that TPBARs could release additional hydrogen to the containment following a large-break LOCA (LBLOCA). SQN has emergency operating procedures in place to start a hydrogen recombiner train when the containment volumetric percentage of hydrogen reaches 3 percent. A previous analysis for a conventional (non-TPBAR) core in the SQN UFSAR indicated that for an LBLOCA, with no recombiners started, the containment hydrogen concentration reached 3.75 percent 4 days following event initiation. With additional hydrogen from the TPBARs, TVA's analysis indicated that the containment hydrogen concentration would only slightly increase 2 days following event initiation. If one recombiner train is started 24 hours after event initiation for the TPBAR core, the peak containment hydrogen concentration is limited to less than 4 percent for up to 6 days. Having up to 24 hours to place a recombiner train in service to maintain the containment hydrogen
The Commission has completed its evaluation of the proposed action. The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released offsite, and there is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential non-radiological impacts, the proposed action does not have a potential to affect historic sites. It does not affect non-radiological plant effluents and has no other environmental impact. Therefore, there are no significant non-radiological environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
DOE evaluated alternatives to the proposed action, including completing construction of one or both of the Bellefonte Nuclear Plant Units and construction of an accelerator facility at the Savannah River site and concluded that the proposed action has the least environmental impact of the options considered. The NRC has no reason to disagree with DOE's decision.
On September 16, 2002, the staff consulted with the Tennessee State official, Elizabeth Flannagan of the Tennessee Bureau of Radiological Health, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated September 21, 2001, as supplemented by letters dated June 11, July 19, August 9, August 30, September 5, and September 12, 2002. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Planning and Procedures will hold a meeting on October 9, 2002, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance, with the exception of a portion that may be closed pursuant to 5 U.S.C. 552b(c) (2) and (6) to discuss organizational and personnel matters that relate solely to internal personnel rules and practices of ACRS, and information the release of which would constitute a clearly unwarranted invasion of personal privacy.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss proposed ACRS activities and related matters. The purpose of this meeting is to gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Oral statements may be presented by members of the public with the concurrence of the Subcommittee Chairman; written statements will be accepted and made available to the Committee. Persons desiring to make oral statements should notify the Designated Federal Official named below five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
Further information regarding topics to be discussed, the scheduling of sessions open to the public, whether the meeting has been canceled or rescheduled, and the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted therefor can be obtained by contacting the Designated Federal Official, Mr. Sam Duraiswamy (telephone: 301/415-7364) between 7:30 a.m. and 4:15 p.m. (EDT). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes in the proposed agenda.
The ACRS Subcommittee on Reactor Fuels will hold a meeting on October 9,
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the high burnup fuel research activities as well as the application of regulatory criteria for reactivity insertion accidents. The Subcommittee will also discuss the staff's review of the Electric Power Research Institute topical report on reactivity insertion accidents. The purpose of this meeting is to gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Oral statements may be presented by members of the public with the concurrence of the Subcommittee Chairman; written standards will be accepted and made available to the Committee. Persons desiring to make oral statements should notify the Designated Federal Official named below five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
During the initial portion of the meeting, the Subcommittee, along with any of its consultants who may be present, may exchange preliminary views regarding matters to be considered during the balance of the meeting.
The Subcommittee will then hear presentations by and hold discussions with representatives of the NRC staff and its consultants, Electric Power Research Institute, and other interested persons regarding this review.
Further information regarding topics to be discussed, whether the meeting has been canceled or rescheduled, and the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted therefore can be obtained by contacting the Designated Federal Official, Dr. Medhat M. El-Zeftawy (Telephone 301/415-6889) between 7:30 a.m. and 4:15 p.m. (EDT). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes in the proposed agenda.
The ACRS Subcommittee on Plant License Renewal will hold a meeting on October 9, 2002, Room T-2B3, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the Duke Energy Corporation's license renewal application for McGuire Nuclear Station Units 1 and 2, and Catawba Nuclear Station Units 1 and 2, and the associated Safety Evaluation Report with open items. The purpose of this meeting is to gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Oral statements may be presented by members of the public with the concurrence of the Subcommittee Chairman; written statements will be accepted and made available to the Committee. Persons desiring to make oral statements should notify the Designated Federal Official named below five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
During the initial portion of the meeting, the Subcommittee, along with any of its consultants who may be present, may exchange preliminary views regarding matters to be considered during the balance of the meeting.
The Subcommittee will then hear presentations by and hold discussions with representatives of the NRC staff, Duke Energy Corporation, and other interested persons regarding this review.
Further information regarding topics to be discussed, whether the meeting has been canceled or rescheduled, and the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted therefore can be obtained by contacting the Designated Federal Official, Mr. Timothy Kobetz (telephone 301/415-8716) between 7:30 a.m. and 4:15 p.m. (EDT). Persons planning to attend this meeting are urged to contact one of the above named individuals at least two working days prior to the meeting to be advised of any potential changes in the proposed agenda.
Canadian 88 Energy Corporation, a Canada corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities and Exchange Act of 1934 (“Act”)
The Issuer stated in its application that it has met the requirements of Amex Rule l8 by complying with all applicable laws in effect in Canada, in which it is incorporated, and with the Amex's rule governing an issuer's voluntary withdrawal of a security from listing and registration.
The Board of Directors (“Board”) of the Issuer unanimously approved a resolution on September 5, 2002 to withdraw the Issuer's Security from listing on the Amex. In making the decision to withdraw its Security from the Amex, the Board states that Issuer sought to reduce its general and administrative costs. The Issuer states that it will continue listing on the Toronto Stock Exchange. The Issuer's application relates solely to the withdrawal of the Security from listing on the Amex and registration under
Any interested person may, on or before October 8, 2002, submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the Amex and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Host America Corporation, a Colorado corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Issuer stated in its application that it has complied with the Rules of the BSE that govern the removal of securities from listing and registration on the Exchange. In making the decision to withdraw the Security from listing and registration on the BSE, the Issuer considered the relative liquidity provided by the BSE versus other securities exchanges and the cost associated with maintaining multiple listings. The Issuer stated in its application that the Security has been listed on the Nasdaq SmallCap Market since July 27, 1998. The Issuer represented that it will maintain its listing on the Nasdaq SmallCap Market.
The Issuer's application relates solely to the Security's withdrawal from listing on the BSE and from registration under section 12(b) of the Act
Any interested person may, on or before October 8, 2002, submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the BSE and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend CBOE Rule 5.4 to permit the addition of a new series of individual equity option contracts that otherwise meet the maintenance listing standards except for the requirement that the market price per share of the underlying security be at least $3.00. The text of the proposed rule change is provided below. Proposed new language is italicized; deletions are in brackets.
Whenever the Exchange determines that an underlying security previously approved for Exchange option transactions does not meet the then current requirements for continuance of such approval or for any other reason should no longer be approved, the Exchange will not open for trading any additional series of options of the class covering that underlying security and therefore may prohibit any opening purchase transactions in series of options of that class previously opened, to the extent it deems such action necessary or appropriate; provided, however, that where exceptional circumstances have caused an underlying security not to comply with the Exchange's current approval maintenance requirements, regarding number of publicly held shares or publicly held principal amount, number of shareholders, trading volume or market price the Exchange, in the interest of maintaining a fair and orderly market or for the protection of investors, may determine to continue to open additional series of option contracts of
.01 The Board of Directors has established guidelines to be considered by the Exchange in determining whether an underlying security previously approved for Exchange option transactions no longer meets its requirements for the continuance of such approval. Absent exceptional circumstances, with respect to Paragraphs (a), (b), or (c) listed below, an underlying security will not be deemed to meet the Exchange's requirements for continued approval whenever any of the following occur:
(a) No Change.
(b) No Change.
(c) No Change.
(d)
(e) No Change.
(f) No Change.
(g) No Change.
.02 In connection with Paragraph (d) of Interpretation and Policy .01 above, the Exchange shall not open for trading any additional series of option contracts of the class covering an underlying security at any time when the market price per share of such underlying security is less than $3 in the primary market in which it is
.03 No Change.
.04 No Change.
.05 No Change.
.06 No Change.
.07 No Change.
.08 No Change.
.09 No Change.
.10 No Change.
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Interpretation .01 to Rule 5.4 provides the guidelines to be used in determining whether an underlying individual equity security, previously approved for options trading, meets the requirements for continued approval. Specifically, Interpretation .01(d) to Rule 5.4, provides that the Exchange may not list additional series for an option class if the market price per share of the underlying security closed below $3 on the previous trading day as measured by the closing price reported in the primary market in which the underlying security is traded.
In recent months, due to a general decline in market price per share of numerous underlying securities, the ability to trade an additional series of an approved options class may vary between exchanges depending on the timing in which a particular Exchange attempts to bring up a series in that class. As such, under the current application of Rule 5.4, the Exchange could be precluded from adding a series that is actively traded on one or more other securities exchanges.
The Exchange therefore proposes to amend Interpretations .01(d) and .02 to Rule 5.4 in order to permit the addition of any additional series of options contract of the class covering such underlying security regardless of the market price of the underlying security if such options series is traded on at least one other registered national securities exchange.
The Exchange believes that the satisfaction of all Exchange maintenance listing standards, other than price, assures that options will be listed and traded on the securities of companies that are financially sound. Accordingly, the Exchange will continue to apply the other maintenance listing guidelines which assure that: (1) The underlying security consists of a large number of outstanding shares held by non-affiliates of the issuer; (2) the underlying security is actively-traded; (3) there is a large number of holders of the underlying security; and (4) the underlying security continues to be listed on another national securities exchange or traded through the facilities of a national securities association.
The CBOE believes that the demands of options customers and the marketplace should determine the securities on which options continue to be traded. The Exchange represents that the use of the revised guidelines will continue to ensure that options will be traded on securities of companies that are financially sound and are still subject to adequate minimum standards.
The CBOE believes that this proposal is narrowly drafted to address the
Because the addition of an options series under the proposed alternative maintenance listing standard requires trading of such series on another options exchange, the CBOE believes that there would be no investor protection concerns with listing such additional options series on the CBOE. In addition, the Exchange believes that listing these options series on the CBOE would enhance competition and benefit investors.
The proposed rule change is consistent with and furthers the objectives of section 6(b)(5) of the Act
The CBOE does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to File No. SR-CBOE-2002-52 and should be submitted by October 15, 2002.
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, the requirements of section 6(b)(5) of the Act.
The CBOE has requested that the proposed rule change, as amended, be given accelerated approval pursuant to section 19(b)(2) of the Act.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
On August 15, 2002, NFA requested that the CFTC make a determination that review of the proposed rule change is not necessary. The CFTC made such a determination on August 26, 2002.
Section 15A(k) of the Act
NFA has prepared statements concerning the purpose of, and basis for, the proposed rule change, burdens on competition, and comments received from members, participants, and others. The text of these statements may be examined at the places specified in Item IV below. These statements are set forth in Sections A, B, and C below.
Section 15A(k)(2)(D) of the Act requires NFA to “have rules that ensure that members and natural persons associated with members meet such standards of training, experience, and competence necessary to effect transactions in security futures products and are tested for their knowledge of securities and security futures products.”
NFA, in partnership with the National Association of Securities Dealers and the Institute for Financial Markets, has developed a Web-based training program that will satisfy the training requirement. The program can be accessed through NFA's Web site, and there is no charge for completing the training program.
The proposed interpretive notice explains that current NFA Members and Associates will be able to satisfy their proficiency requirements for security futures by taking any training program that covers the subject matter included in a content outline that can be found on NFA's web site. New registrants can also qualify through training if they are registered no later than six months after the first retail, exchange-traded contract begins trading.
The proposed interpretive notice explains that in order to qualify as a designated security futures principal, current supervisors may take a portion of the training program devoted to supervisory issues as well as the portions intended for all Associates within six months after the first retail, exchange-traded contract begins trading. After the six-month period, individuals may qualify as a security futures principal by taking the training program in lieu of taking a supervisory proficiency examination, provided those individuals are qualified to act as a branch office manager no later than six months after the first retail, exchange-traded contract begins trading.
As indicated above, the proposed interpretive notice grandfathers in current registrants and those who take the Series 3 and/or Series 30 examination within six months after security futures begin trading, provided they take an appropriate training program before they begin soliciting for security futures transactions or supervising security futures activities. The grandfather provision would expire on December 31, 2006. Registrants who subsequently decide to engage in security futures activities will be required to first take the relevant examination.
The proposed interpretive notice states that NFA Members and Associates are not required to notify NFA that they have completed a training program, but Members must be able to demonstrate to NFA during an audit that those registered individuals who are engaging in security futures activities have completed the necessary training.
The rule change is authorized by, and consistent with, section 15A(k) of the Act.
The rule change will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act and the Commodity Exchange Act.
NFA did not publish the rule changes to the membership for comment. NFA did not receive comment letters concerning the rule changes.
Pursuant to section 19(b)(7)(B) of the Act,
Within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change conflicts with the Act. Persons making written submissions should file nine copies of the submission with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments also may be submitted electronically to the following e-mail address:
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Keith County and the contiguous counties of Arthur, Deuel, Garden, Lincoln, McPherson and Perkins in the State of Nebraska; and Sedgwick County in the State of Colorado constitute a disaster area as a result of severe storms and flooding that occurred on July 6, 2002. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on November 12, 2002 and for economic injury until the close of business on June 13, 2003 at the address listed below or other locally announced locations: Small Business Administration, Disaster Area 3 Office, 4400 Amon Carter Blvd., Suite 102, Ft. Worth, TX 76155.
The interest rates are:
The number assigned to this disaster for physical damage is 344111 for Nebraska and 344211 for Colorado. The number assigned to this disaster for economic injury is 9R5500 for Nebraska and 9R5600 for Colorado.
Lawrence County and the contiguous Counties of Butte, Meade and Pennington in the State of South Dakota; and Crook and Weston Counties in the State of Wyoming constitute an economic injury disaster loan area as a result of a forest fire that caused the evacuation of two communities in Lawrence County June 29 through July 4, 2002. Eligible small businesses and small agricultural cooperatives without credit available elsewhere may file applications for economic injury assistance as a result of this disaster until the close of business on June 17, 2003 at the address listed below or other locally announced locations:
The interest rate for eligible small businesses and small agricultural cooperatives is 3.5 percent.
The number assigned for economic injury for this disaster is 9R5300 for the State of South Dakota and 9R5400 for the State of Wyoming.
In accordance with a notice received from the Federal Emergency Management Agency, dated September 11, 2002, the above numbered declaration is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to September 30, 2002.
All other information remains the same,
Pursuant to section 2(b)(2) of the Migration and Refugee Assistance Act of 1961, as amended, 22 U.S.C. 2601(b)(2), and the functions and authorities delegated to the Secretary of State, or his or her delegate, by Presidential Determination 99-6 of November 30, 1998, and subsequently re-delegated to me by Delegation of Authority of January 5, 1999, I hereby designate refugees from Iraq as qualifying for assistance under section 2(b)(2) of that Act, and determine that such assistance will contribute to the foreign policy interests of the United States.
This determination shall be transmitted to the President and published in the
The Advisory Panel to the United States Section of the North Pacific Anadromous Fish Commission will meet on October 7, 2002, at the Hotel Hyundai, 29 Semenovskaya Street, Vladivostok, 690090, Russia. This session will involve discussion of the Tenth Annual Meeting of the North Pacific Anadromous Fish Commission, to be held on October 6-11, 2002. The discussion will begin at 8 a.m. and is closed to the public.
The members of the Advisory Panel will examine various options for the U.S. position at the Tenth Annual Meeting. These considerations must
Requests for further information on the meeting should be directed to Ms. Sally Cochran, International Relations Officer, Office of Marine Conservation (OES/OMC), Room 5806, U.S. Department of State, Washington, DC 20520-7818. Ms. Cochran can be reached by telephone on (202) 647-1073 or by FAX (202) 736-7350.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption, part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of a certain petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before October 14, 2002.
Send comment on the petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2002-12894 at the beginning of your comments. If you wish to receive confirmation that the FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to
Susan Boylon (425-227-1152), Transport Airplane Directorate (ANM-113), Federal Aviation Administration, 1601 Lind Ave SW., Renton, WA 98055-4056; or Vanessa Wilkins (202-267-8029), Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
The FAA is issuing this notice to advise the public that a meeting of the Federal Aviation Administration Air Traffic Procedures Advisory Committee (ATPAC) will be held to review present air traffic control procedures and practices for standardization, clarification, and upgrading of terminology and procedures.
The meeting will be held from October 7-10, 2002, from 1 p.m. to 4:30 p.m. on Monday, October 7, and from 9 a.m. to 4:30 p.m., Tuesday, October 8 to Thursday, October 10.
The meeting will be held at NATCA Headquarters, 1325 Massachusetts Avenue, NW., Washington, DC 20005.
Mr. David W. Madison, Acting Executive Director, ATPAC, Air Traffic Planning and Procedures, 800 Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-3725
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App.2), notice is hereby given of a meeting of the ATPAC to be held October 7 through October 10, 2002, at NATCA Headquarters, 1325 Massachusetts Avenue, NW., Washington, DC 20005.
The agenda for this meeting will cover: a continuation of the Committee's review of present air traffic control procedures and practices for standardization, clarification, and upgrading of terminology and procedures. It will also include:
1. Approval of Minutes.
2. Submission and Discussion of Areas of Concern.
3. Discussion of Potential Safety Items.
4. Report from Executive Director.
5. Items of Interest.
6. Discussion and agreement of location and dates for subsequent meetings.
Attendance is open to the interested public but limited to the space available. With the approval of the Chairperson, members of the public may present oral statements at the meeting. Persons desiring to attend and persons desiring to present oral statements should notify the person listed above not later than October 4, 2002. The next quarterly meeting of the FAA ATPAC is planned to be held from January 13-17, 2003, in Orlando, Florida.
Any member of the public may present a written statement to the Committee at any time at the address given above.
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Program Management Committee meeting.
The FAA is issuing this notice to advise the public of a meeting of the RTCA Program Management Committee.
The meeting will be held October 10, 2002 starting at 9 a.m.
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC 20036.
RTCA Secretariat, 1828 L Street, NW., Suite 850, Washington, DC 20036; telephone (202) 833-9339; fax (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (P.L. 92-463, 5 U.S.C., appendix 2), notice is hereby given for a Program Management Committee meeting. The agenda will include:
• October 10:
• Opening Session (Welcome and Introductory Remarks, Review/Approve Summary of Previous Meeting)
• Publication Consideration/Approval:
• Final Draft, Minimum Operational Performance Standards for Required Navigation Performance for Area Navigation, RTCA Paper No. 228-02/PMC-236, prepared by SC-181.
• Discussion:
• Special Committee Chairman's Reprots
• Action Item Review:
• Review/Status—All Open Action Items.
• Other Business:
• Discussion—Portable Electronic Devices.
• EUROCAE Activity—VDL Mode 4 Standardization
• Closing Session (Other Business, Document Production, Data and Place of Next Meeting, Adjourn).
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 intent to rule on application.
The FAA proposes to rule and invites public comment on the application to impose and use PFC revenue at Gallatin Field Airport under the provisions of 49 U.S.C. 40117 and part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before October 23, 2002.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: David S. Stelling, Manager; Helena Airports District Office, HLN-ADO; Federal Aviation Administration; FAA Building, Suite 2; 2725 Skyway Drive, Helena, Montana 59602-1213.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Ted Mathis, Airport Director: 850 Gallatin Field Road, Suite #6, Belgrade, Montana 59714.
Air carriers and foreign air carriers may submit copies of written comments previously provided to Gallatin Field Airport, under § 158.23 of part 158.
David S. Stelling, Manager; Helena Airports District Office, HLN-ADO; Federal Aviation Administration; FAA Building, Suite 2; 2725 Skyway Drive, Helena, Montana 59602-1213. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application 02-02-C-00-BZN to impose and use PFC revenue at Gallatin Field Airport, under the provisions of 49 U.S.C. 40117 and part 158 of the Federal Aviation Regulations (14 CFR part 158).
On September 12, 2002, the FAA determined that the application to impose and use the revenue from a PFC submitted by Gallatin Airport Authority, Gallatin Field Airport, Belgrade, Montana, was substantially complete with the requirements of § 158.25 of part 18. The FAA will approve or disapprove the application, in whole or in part, no later than December 12, 2002. The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Gallatin Field Airport.
Federal Aviation Administration, DOT.
Notice of availability for public comment.
This notice announces the availability of and requests comments on a proposed Advisory Circular (AC) about integrated modular avionics hardware elements (IMA). The proposed AC establishes an acceptable means to obtain Federal Aviation Administration's (FAA) airworthiness approval to install an Integrated Modular Avionics (IMA) System that uses hardware elements authorized under Technical Standard Order (TSO)-C153, Integrated Modular Avionics Hardware Elements.
Comments must be received on or before October 12, 2002.
Send all comments on the proposed AC to: Technical Programs & Continued Airworthiness Branch, AIR-120, Aircraft Engineering Division, Aircraft Certification Service,, Federal Aviation Administration, 800 Independence Avenue, SW., Room 835, Washington, DC 20591. Or deliver comments to: Federal Aviation Administration (FAA), Room 835, 800 Independence Avenue, SW., Washington, DC 20591. Comments must identify the AC file number.
Mr. John Lewis, Technical Programs & Continued Airworthiness Branch, AIR-120, Aircraft Engineering Division, Aircraft Certification Service, Federal Aviation Administration, 800 Independence Avenue, SW., Room 835, Washington, DC 20591; Telephone (202) 493-4841; Fax (202) 267-5340; e-mail address:
You are invited to comment on the proposed AC by submitting written data, views, or arguments to the above-specified address. Comments received on the proposed AC may be examined, before and after the comment closing date, in Room 835, FAA Headquarters Building (FOB-10A), 800 Independence Avenue, SW., Washington, DC 20591, weekdays except Federal holidays, between 8:30 a.m. and 4:30 p.m. The Director, Aircraft Certification Service will consider all communications received on or before the closing date before issuing the final AC.
Traditionally, avionics systems consisted of dedicated Line Replaceable Units (LRUs) which performed specific functions such as autoflight, flight management, and flight deck display. TSOs were written for these LRUs and their functions. Advancements in digital technology have created a trend toward higher levels of integration and modularity. In many modern integrated systems, software determines functionality, while hardware serves as a platform for input, output, data storage, and software execution. Since these basic attributes tend to be similar for various applications, efficiencies can be gained by using various types of generic airborne hardware elements to execute these functions.
This AC provides guidance on obtaining Federal Aviation Administration's (FAA) airworthiness approval to install Integrated Modular Avionics (IMA) systems that implement TSO-C153 authorized hardware elements. TSO-C153 refers to these hardware elements as “IMA hardware elements,” which includes modules, cabinets, or racks. A module may contain software to enable electronic part marking and/or future loading of functional software. These modules will not function without being installed in specific cabinets or racks. Module types may include data processing modules, power supply modules, communication and data bus modules, or others. Cabinets or racks are used to host IMA modules. These cabinets or racks may be simple mechanical enclosures, or they may incorporate active cooling elements, power supplies, communication interfaces, backplanes for data and power, or any combination of these features.
You may see and obtain a copy of the proposed AC through the FAA Web site at
You may inspect the RTCA documents at the FAA office location listed under
Federal Aviation Administration (FAA), DOT.
Notice of final policy statement; request for comments.
The Federal Aviation Administration (FAA) announces the availability of final policy concerning certification of strengthened flightdeck doors.
Send your comments on or before October 23, 2002.
Address your comments to the individual identified under
Jeff Gardlin, Federal Aviation Administration, Transport Airplane Directorate, Transport Standards Staff, Airframe/Cabin Safety Branch, ANM-115, 1601 Lind Avenue SW., Renton, WA 98055-4056; telephone (425) 227-2136; fax (425) 227-1320; e-mail:
The final policy is available on the Internet at the following address:
The FAA invites your comments on this final policy. We will accept your comments, data, views, or arguments by letter, fax, or e-mail. Send your comments to the person indicated in
Use the following format when preparing your comments.
• Organize your comments issue-by-issue.
• For each issue, state what specific change you are requesting to the final policy.
• Include justification, reasons, or data for each change you are requesting.
We also welcome comments in support of the final policy.
We will consider all communications received on or before the closing date for comments. We may change the final policy because of the comments received.
The final policy provides all transport airplane programs an acceptable method of compliance with 14 CFR part 25 for intrusion resistance and ballistic protection of flightdeck doors. The Frequently Asked Questions (FAQ) section has also been updated.
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public of its intent to initiate a planning study for a proposed highway project in the southwestern portion of Kentucky, located between Eddyville and Henderson, Kentucky.
Evan J. Wisniewski, Project Development Team Leader, Federal Highway Administration, 330 West Broadway, Frankfort, KY 40601, Telephone: (502) 223-6740, e-mail:
An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at
The I-69 project is part of a proposed “High Priority Corridor” of national significance (Corridor 18) that extends from the Canadian border at Port Huron, Michigan, to the Mexican border in the Lower Rio Grande Valley of Texas, in accordance with the legislative intent of the Intermodel Surface Transportation Efficiency Act (ISTEA) of 1991 and subsequent federal transportation legislation. Segments of the corridor across Kentucky are in various stages of project development. This study will address alternatives and issues related to the development of an interstate highway between Eddyville and Henderson that will improve travel within the study area and become a segment of the national I-69 corridor.
During this study, comments will be gathered from appropriate federal, state, and local agencies, as well as other interested persons and the general public, in accordance with requirements set forth in the National Environmental Policy Act (NEPA) of 1969 and subsequent federal regulations and guidelines developed by the Executive Office of the President's Council on Environmental Quality and the United States Department of Transportation for the implementation of the NEPA process.
This study will include a scoping process for the early identification of potential alternatives and environmental issues related to the proposed project. At this time, the level of environmental documentation that will ultimately be prepared is not known. However, if an Environmental Impact Statement (EIS) is prepared for the proposed project in the future, the information gained through the scoping process in this planning study may be used as input to the scoping process for the development of that EIS. If an EIS is prepared in the future, written comments on the scope of alternatives and impacts will still be considered at that time, after the filing of the Notice of Intent (NOI).
National Highway Traffic Safety Administration, DOT.
Notice of receipt of petition for decision that nonconforming 1997 BMW 850 Series passenger cars are eligible for importation.
This document announces receipt by the National Highway Traffic Safety Administration (NHTSA) of a petition for a decision that 1997 BMW 850 Series passenger cars that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards are eligible for importation into the United States because (1) they are substantially similar to vehicles that were originally manufactured for importation into and sale in the United States and that were certified by their manufacturer as complying with the safety standards, and (2) they are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is October 23, 2002.
Comments should refer to the docket number and notice number, and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. [Docket hours are from 9 a.m. to 5 p.m.].
Luke Loy, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety standards shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States,
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
J.K. Technologies, L.L.C. of Baltimore, Maryland (“J.K.”) (Registered Importer 90-006) has petitioned NHTSA to decide whether 1997 BMW 850 Series passenger cars are eligible for importation into the United States. The vehicles which J.K. believes are substantially similar are 1997 BMW 850 Series passenger cars that were manufactured for importation into, and sale in, the United States and certified by their manufacturer, Bayerische Motoren Werke, A.G., as conforming to all applicable Federal motor vehicle safety standards.
The petitioner claims that it carefully compared non-U.S. certified 1997 BMW 850 Series passenger cars to their U.S.-certified counterparts, and found the vehicles to be substantially similar with respect to compliance with most Federal motor vehicle safety standards.
J.K. submitted information with its petition intended to demonstrate that non-U.S. certified 1997 BMW 850 Series passenger cars, as originally manufactured for sale in Europe, conform to many Federal motor vehicle safety standards in the same manner as their U.S. certified counterparts, or are capable of being readily altered to conform to those standards.
Specifically, the petitioner claims that non-U.S. certified 1997 BMW 850 Series passenger cars are identical to their U.S. certified counterparts with respect to compliance with Standard Nos. 102
The petitioner states that because the vehicles are equipped with a factory installed anti-theft system, the are exempt from the parts marking requirements of the Theft Prevention Standard at 49 CFR part 541.
With regard to compliance with the Bumper Standard found in 49 CFR part 581, the petitioner claims that the vehicles are equipped with bumpers and support structures identical to those used on U.S. certified models.
The petitioner also contends that the vehicles are capable of being readily altered to meet the following standards, in the manner indicated:
Standard No. 101
Standard No. 108
Standard No. 110
Standard No. 111
Standard No. 114
Standard No. 208
The petitioner also states that a vehicle identification plate must be affixed to the vehicles near the left windshield post and a reference and certification label must be affixed in the area of the left front door post to meet the requirements of 49 CFR part 565.
Interested persons are invited to submit comments on the petition described above. Comments should refer to the docket number and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. (Docket hours are from 9 am to 5 pm). It is requested but not required that 10 copies be submitted.
All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action on the petition will be published in the
49 U.S.C. 30141(a)(1)(A) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
National Highway Traffic Safety Administration, DOT.
Notice of receipt of petition for decision that nonconforming 1993 Mercedes Benz S Series passenger cars are eligible for importation.
This document announces receipt by the National Highway Traffic Safety Administration (NHTSA) of a petition for a decision that 1993 Mercedes Benz S Series passenger cars
The closing date for comments on the petition is October 23, 2002.
Comments should refer to the docket number and notice number, and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. [Docket hours are from 9 a.m. to 5 p.m.].
Luke Loy, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety standards shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable Federal motor vehicle safety standards.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
Sunshine Car Import L.C. of Cape Coral, Florida (“SCI”) (Registered Importer 01-289) has petitioned NHTSA to decide whether 1993 Mercedes Benz S Series passenger cars are eligible for importation into the United States. The vehicles which SCI believes are substantially similar are 1993 Mercedes Benz S Series passenger cars that were manufactured for importation into, and sale in, the United States and certified by their manufacturer as conforming to all applicable Federal motor vehicle safety standards.
The petitioner claims that it carefully compared non-U.S. certified 1993 Mercedes Benz S Series passenger cars to their U.S.-certified counterparts, and found the vehicles to be substantially similar with respect to compliance with most Federal motor vehicle safety standards.
SCI submitted information with its petition intended to demonstrate that non-U.S. certified 1993 Mercedes Benz S Series passenger cars, as originally manufactured, conform to many Federal motor vehicle safety standards in the same manner as their U.S. certified counterparts, or are capable of being readily altered to conform to those standards.
Specifically, the petitioner claims that non-U.S. certified 1993 Mercedes Benz S Series passenger cars are identical to their U.S. certified counterparts with respect to compliance with Standard Nos. 102
In addition, the petitioner claims that the vehicles comply with the Bumper Standard found in 49 CFR part 581.
The petitioner also contends that the vehicles are capable of being readily altered to meet the following standards, in the manner indicated:
Standard No. 101
Standard No. 108
Standard No. 110
Standard No. 111
Standard No. 114
Standard No. 118
Standard No. 208
Standard No. 214
The petitioner states that a vehicle identification plate must be affixed to the vehicles near the left windshield post and a reference and certification label must be affixed in the area of the left front door post to meet the requirements of 49 CFR part 565.
Interested persons are invited to submit comments on the petition described above. Comments should refer to the docket number and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. (Docket hours are from 9 a.m. to 5 p.m.). It is requested but not required that 10 copies be submitted.
All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action on the petition will be published in the
49 U.S.C. 30141(a)(1)(A) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
On September 3, 2002, SF&L Railway, Inc. (SF&L) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon its entire line of railroad extending between milepost 194.5 at La Harpe and milepost 123.0 at Peoria, a distance of approximately 71.5 miles, in Hancock, McDonough, Fulton and Peoria Counties, IL. The line traverses United States Postal Zip Codes 61420, 61475, 61438, 61422, 61459, 61477, 61427, 61520, 61533, and 61547, serving the intermediate points of Blandinsville, Sciota, Good Hope, Bushnell, New Philadelphia, Smithfield, Cuba, Canton, Glasford, and Mapleton.
The line does not contain federally granted rights-of-way. Any documentation in SF&L's possession will be made available promptly to those requesting it.
In this proceeding, SF&L is proposing to abandon a line that constitutes its entire rail system. When issuing abandonment authority for a railroad line that constitutes the carrier's entire system, the Board does not impose labor protection, except in specifically enumerated circumstances.
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by December 20, 2002.
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each offer must be accompanied by a $1,100 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than October 15, 2002. Each trail use request must be accompanied by a $150 filing fee.
All filings in response to this notice must refer to STB Docket No. AB-448 (Sub-No.2X) and must be sent to: (1) Surface Transportation Board, 1925 K Street NW., Washington, DC 20423-0001, and (2) Fritz R. Kahn, 1920 N Street NW., 8th Floor, Washington, DC 20036-1601. Replies to the SF&L petition are due on or before October 15, 2002.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Services at (202) 565-1592 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 565-1552. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA will generally be within 30 days of its service.
Board decisions and notices are available on our Web site at “
By the Board, David M. Konschnik, Director, Office of Proceedings.
In order to comply with the mandate of section 999(a)(3) of the Internal Revenue Code of 1986, the Department of the Treasury is publishing a current list of countries which may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
On the basis of the best information currently available to the Department of the Treasury, the following countries may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
Financial Management Service, Treasury.
Notice.
Pursuant to 5 U.S.C. 552a, the Privacy Act of 1974, as amended, and the Office of Management and Budget (OMB) Guidelines on the Conduct of Matching Programs, notice is hereby given of the conduct by Financial Management Service (FMS) of matching programs.
October 23, 2002.
Comments or inquiries may be submitted to the Debt Management Services, Financial Management Service, 401 14th Street, SW., Room 448B, Washington, DC 20227.
Gerry Isenberg, Financial Program
FMS is the lead agency in the Federal Government for administrative debt collection, and collects delinquent non-tax debts owed to the Federal Government and delinquent debts owed to States, including past-due child support obligations being enforced by States. One of the key debt collection tools used by FMS is administrative offset. As amended by the Debt Collection Improvement Act of 1996 (DCIA), Pub. L. No. 104-134 (Apr. 26, 1996), 31 U.S.C. 3716 requires Federal disbursing officials to offset payments to collect delinquent debts submitted to FMS by Federal agencies for collection by offset. This process is known as “centralized administrative offset” or “centralized offset.” In addition, 31 U.S.C. 3716 authorizes the use of centralized offset to collect delinquent debts owed to States. Federal and state agencies submit delinquent debtor information to FMS, and FMS maintains information about individuals in a “system of records” for debt collection entitled “Debt Collection Operations System,” identified as Treasury/FMS .014.
To implement the centralized offset provisions of the DCIA, FMS matches records concerning federal payments with its debt collection records. To date, FMS has concentrated its efforts on offsetting Treasury-disbursed payments made by FMS. For this purpose, a comprehensive notice of computer matches was published in the
FMS is working with other Federal agencies authorized to disburse Federal payments, known as Non-Treasury Disbursing Officials (NTDOs), to implement centralized offset of payments disbursed by Federal agencies other than FMS. This notice concerns the computer matching programs used to facilitate administrative offset involving records from FMS' “Debt Collection Operations System” and records from the following systems maintained by NTDOs:
The DCIA provides authority for Treasury to waive subsections (o) and (p) of 5 U.S.C. 552a (relating to computer matching agreements and post-offset notification and verification) upon written certification by the head of a State or an executive, judicial, or legislative agency seeking to collect the claim that the requirements of subsection (a) of 31 U.S.C. 3716 have been met. Treasury has exercised its authority to waive the aforementioned requirements, and the waiver will be in effect prior to the commencement of the computer matching program(s) identified in this notice. Interested parties may obtain documentation concerning the waiver from the contact listed above.
United States Postal Service.
Financial Management Service.
These programs of computer matches will commence not earlier than the thirtieth day after this notice appears in the
The purpose of these programs of computer matches is to identify payments made to individuals who owe delinquent debts to the Federal Government or to State Governments, as well as individuals who owe past-due support being collected by State Governments, which will be collected by offset pursuant to 31 U.S.C. 3716, and to offset such payments where appropriate to satisfy those debts.
Authority for these programs of computer matches is granted under 31 U.S.C. 3716.
Individuals receiving payments from the Federal Government which are disbursed by the United States Postal Service; and individuals who owe debts to the United States and/or a State Government, or who owe past-due support being enforced by a State Government, and whose debts may be collected by offset in accordance with 31 U.S.C. 3716.
Included in these programs of computer matches is information concerning the debtor contained in the Debt Collection Operations System (Treasury/FMS .014) including name, taxpayer identification number, the amount of the indebtedness, the name and address of the State or Federal agency who is principally responsible for collecting the debt, and the name, phone number and address of a State or agency contact. Information contained in the following systems: United States Postal Service: Finance Records-Payroll System (USPS 050.020), United States Postal Service: Finance Records-Accounts Payable Files (USPS 050.060), which shall be included in these programs of computer matches, shall include name, taxpayer identification number, mailing address, and the amount and type of payment.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5305-SEP, Simplified Employee Pension-Individual Retirement Accounts Contribution Agreement.
Written comments should be received on or before November 22, 2002, to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing notice of proposed rulemaking, REG-209040-88, Qualified Electing Fund Elections (§ 1.1295).
Written comments should be received on or before November 22, 2002, to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, (202) 622-6665, or through the internet (
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
(b) In furtherance of the policy set forth in section 1 of this order, the Secretary of Transportation, in coordination with agencies as appropriate, shall advance environmental stewardship through cooperative actions with project sponsors to promote protection and enhancement of the natural and human environment in the planning, development, operation, and maintenance of transportation facilities and services.
(c) The Secretary of Transportation shall designate for the purposes of this order a list of high-priority transportation infrastructure projects that should receive expedited agency reviews and shall amend such list from time to time as the Secretary deems appropriate. For projects on the Secretary's list, agencies shall to the maximum extent practicable expedite their reviews for relevant permits or other approvals, and take related actions as necessary, consistent with available resources and applicable laws, including those relating to safety, public health, and environmental protection.
(b)
(b) Identifies substantive and procedural requirements of Federal, State, tribal, and local laws, regulations, and Executive Orders that are inconsistent with, duplicative of, or are structured so as to restrict their efficient implementation with other applicable requirements.
(c) Makes recommendations regarding those additional actions that could be taken to: (i) address the coordination and expediting of reviews of transportation infrastructure projects by simplifying and harmonizing applicable substantive and procedural requirements; and (ii) elevate and resolve controversies among Federal, State, tribal, and local agencies related to the review or impacts of transportation infrastructure projects in a timely manner.
(d) Provides any other recommendations that would, in the judgement of the Task Force, advance the policy set forth in section 1 of this order.
Federal Communications Commission.
Final rule.
This document revises the Commission's Table of Frequency Allocations (“Allocation Table”). Specifically, it updates the International Table of Frequency Allocations (“International Table”). In order to assist the Federal Register staff in codifying international footnotes and in order to prevent confusion to the public, we are updating the Commission's Allocation Table in its entirety in order to remove the “S” prefix from the international footnotes. We also take this opportunity to update the International Table within our rules to reflect the Table of Frequency Allocations as it is found in the ITU Radio Regulations. The Commission believes that this action will assist users of the Allocation Table with their spectrum planning.
Effective September 23, 2002.
Tom Mooring, (202) 418-2450, or Shameeka Parrott, (202) 418-2062, Policy and Rules Division, Office of Engineering and Technology.
This is a summary of the Commission's
1. This
2. The Commission's Allocation Table, which is codified at § 2.106 of our rules, consists of three tables: the International Table, the United States Table, and cross references to other parts of our rules.
3. For the allocation of frequencies, the ITU has divided the world into three Regions and codifies the allocations for these Regions in its Table of Frequency Allocations. In § 2.106 of our rules, the ITU's Table of Frequency Allocations has been re-named as the International Table. The International Table is subdivided into the Region 1 Table (column 1), the Region 2 Table (column 2), and the Region 3 Table (column 3). The International Table is included in our rules for informational purposes only.
4. The ITU
5. In order to assist the Federal Register in codifying international footnotes and in order to prevent confusion to the public, we are updating the Commission's Allocation Table in its entirety in order to remove the “S” prefix from the international footnotes. In addition, we take this opportunity to update the International Table within our rules to reflect the Table of Frequency Allocations as it is found in the ITU
6. In the United States, radio spectrum may be allocated to either Federal Government or non-Federal Government use exclusively, or for shared use. As such, the United States Table is subdivided into the Federal Government Table of Frequency Allocations (“Federal Government Table”) and the Non-Federal Government Table of Frequency Allocations (“Non-Federal Government Table”). The Federal Government Table (column 4) is administered by the National Telecommunications and Information Administration (“NTIA”), whereas the Non-Federal Government Table (column 5) is administered by the Commission.
7. Over the course of time, the Commission has adopted numerous international footnotes domestically and added them to the United States Table. We have reviewed each of these international footnotes. In order to update the International Table without making substantive changes to the United States Table, we have revised footnote US342 (which concerns the protection of the RAS in various frequency bands allocated to other services) and are re-numbering the existing versions of nine revised international footnotes as United States footnotes until such time as the Commission can consider these allocation changes to the United States Table.
8. The International Table and FCC rule part(s) are included in the Commission's rules for informational purposes only. The United States Table is amended herein by incorporating non-substantive, editorial revisions only. Therefore, there is good cause for not using notice and comment procedure in this case, and for shortening the effective date of the amendments from a date not less than 30 days after publication in the
9. Part 2 of the Commission's rules, 47 CFR part 2, IS AMENDED as set forth, effective September 23, 2002. This action is taken pursuant to authority found in §§ 4(i) and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and 303, and in §§ 0.31, 0.231(b) and 0.241 of the Commission's rules, 47 CFR 0.31, 0.231(b) and 0.241.
Radio, Reporting and recordkeeping requirements.
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
The International Radiocommunication Union
The revisions and additions read as follows:
The International Telecommunication Union has re-numbered international footnotes using a new numbering scheme and has substantively revised the text of certain of these international footnotes. These international footnotes shall be listed immediately below this note in I. Until such time as the Commission has considered the substantively revised international footnotes that have previously been adopted domestically, certain of the old international footnotes shall apply in the United States. These footnotes appear immediately after footnote 5.565 in II.
5.53 Administrations authorizing the use of frequencies below 9 kHz shall ensure that no harmful interference is caused thereby to the services to which the bands above 9 kHz are allocated.
5.54 Administrations conducting scientific research using frequencies below 9 kHz are urged to advise other administrations that may be concerned in order that such research may be afforded all practicable protection from harmful interference.
5.55
5.56 The stations of services to which the bands 14-19.95 kHz and 20.05-70 kHz and in Region 1 also the bands 72-84 kHz and 86-90 kHz are allocated may transmit standard frequency and time signals. Such stations shall be afforded protection from harmful interference. In Armenia, Azerbaijan, Belarus, Bulgaria, Georgia, Kazakstan, Mongolia, Uzbekistan, Kyrgyzstan, Slovakia, the Czech Rep., Russian Federation, Tajikistan, Turkmenistan and Ukraine, the frequencies 25 kHz and 50 kHz will be used for this purpose under the same conditions.
5.57 The use of the bands 14-19.95 kHz, 20.05-70 kHz and 70-90 kHz (72-84 kHz and 86-90 kHz in Region 1) by the maritime mobile service is limited to coast radiotelegraph stations (A1A and F1B only). Exceptionally, the use of class J2B or J7B emissions is authorized subject to the necessary bandwidth not exceeding that normally used for class A1A or F1B emissions in the band concerned.
5.58
5.59
5.60 In the bands 70-90 kHz (70-86 kHz in Region 1) and 110-130 kHz (112-130 kHz in Region 1), pulsed radionavigation systems may be used on condition that they do not cause harmful interference to other services to which these bands are allocated.
5.61 In Region 2, the establishment and operation of stations in the maritime radionavigation service in the bands 70-90 kHz and 110-130 kHz shall be subject to agreement obtained under No. 9.21 with administrations whose services, operating in accordance with the Table, may be affected. However, stations of the fixed, maritime mobile and radiolocation services shall not cause harmful interference to stations in the maritime radionavigation service established under such agreements.
5.62 Administrations which operate stations in the radionavigation service in the band 90-110 kHz are urged to coordinate technical and operating characteristics in such a way as to avoid harmful interference to the services provided by these stations.
5.64 Only classes A1A or F1B, A2C, A3C, F1C or F3C emissions are authorized for stations of the fixed service in the bands allocated to this service between 90 kHz and 160 kHz (148.5 kHz in Region 1) and for stations of the maritime mobile service in the bands allocated to this service between 110 kHz and 160 kHz (148.5 kHz in Region 1). Exceptionally, class J2B or J7B emissions are also authorized in the bands between 110 kHz and 160 kHz (148.5 kHz in Region 1) for stations of the maritime mobile service.
5.65
5.66
5.67
5.68
5.69
5.70
5.71
5.72 Norwegian stations of the fixed service situated in northern areas (north of 60° N) subject to auroral disturbances are allowed to continue operation on four frequencies in the bands 283.5-490 kHz and 510-526.5 kHz.
5.73 The band 285-325 kHz (283.5-325 kHz in Region 1) in the maritime radionavigation service may be used to transmit supplementary navigational information using narrow-band techniques, on condition that no harmful interference is caused to radiobeacon stations operating in the radionavigation service.
5.74
5.75
5.76 The frequency 410 kHz is designated for radio direction-finding in the maritime radionavigation service. The other radionavigation services to which the band 405-415 kHz is allocated shall not cause harmful
5.77
5.78
5.79 The use of the bands 415-495 kHz and 505-526.5 kHz (505-510 kHz in Region 2) by the maritime mobile service is limited to radiotelegraphy.
5.79A When establishing coast stations in the NAVTEX service on the frequencies 490 kHz, 518 kHz and 4 209.5 kHz, administrations are strongly recommended to coordinate the operating characteristics in accordance with the procedures of the International Maritime Organization (IMO) (see Resolution 339 (Rev.WRC-97)).
5.80 In Region 2, the use of the band 435-495 kHz by the aeronautical radionavigation service is limited to non-directional beacons not employing voice transmission.
5.82 In the maritime mobile service, the frequency 490 kHz is, from the date of full implementation of the GMDSS (see Resolution 331 (Rev.WRC-97)), to be used exclusively for the transmission by coast stations of navigational and meteorological warnings and urgent information to ships, by means of narrow-band direct-printing telegraphy. The conditions for use of the frequency 490 kHz are prescribed in Articles 31 and 52. In using the band 415-495 kHz for the aeronautical radionavigation service, administrations are requested to ensure that no harmful interference is caused to the frequency 490 kHz.
5.83 The frequency 500 kHz is an international distress and calling frequency for Morse radiotelegraphy. The conditions for its use are prescribed in Articles 31 and 52, and in Appendix 13.
5.84 The conditions for the use of the frequency 518 kHz by the maritime mobile service are prescribed in Articles 31 and 52 and in Appendix 13.
5.86 In Region 2, in the band 525-535 kHz the carrier power of broadcasting stations shall not exceed 1 kW during the day and 250 W at night.
5.87
5.87A
5.88
5.89 In Region 2, the use of the band 1605-1705 kHz by stations of the broadcasting service is subject to the Plan established by the Regional Administrative Radio Conference (Rio de Janeiro, 1988).
The examination of frequency assignments to stations of the fixed and mobile services in the band 1625-1705 kHz shall take account of the allotments appearing in the Plan established by the Regional Administrative Radio Conference (Rio de Janeiro, 1988).
5.90 In the band 1605-1705 kHz, in cases where a broadcasting station of Region 2 is concerned, the service area of the maritime mobile stations in Region 1 shall be limited to that provided by ground-wave propagation.
5.91
5.92 Some countries of Region 1 use radiodetermination systems in the bands 1606.5-1625 kHz, 1635-1800 kHz, 1850-2160 kHz, 2194-2300 kHz, 2502-2850 kHz and 3500-3800 kHz, subject to agreement obtained under No. 9.21. The radiated mean power of these stations shall not exceed 50 W.
5.93
5.96 In Germany, Armenia, Austria, Azerbaijan, Belarus, Denmark, Estonia, Finland, Georgia, Hungary, Ireland, Israel, Jordan, Kazakstan, Latvia, Liechtenstein, Lithuania, Malta, Moldova, Norway, Uzbekistan, Poland, Kyrgyzstan, Slovakia, the Czech Rep., the United Kingdom, the Russian Federation, Sweden, Switzerland, Tajikistan, Turkmenistan and Ukraine, administrations may allocate up to 200 kHz to their amateur service in the bands 1715-1800 kHz and 1850-2000 kHz. However, when allocating the bands within this range to their amateur service, administrations shall, after prior consultation with administrations of neighbouring countries, take such steps as may be necessary to prevent harmful interference from their amateur service to the fixed and mobile services of other countries. The mean power of any amateur station shall not exceed 10 W.
5.97 In Region 3, the Loran system operates either on 1850 kHz or 1950 kHz, the bands occupied being 1825-1875 kHz and 1925-1975 kHz respectively. Other services to which the band 1800-2000 kHz is allocated may use any frequency therein on condition that no harmful interference is caused to the Loran system operating on 1850 kHz or 1950 kHz.
5.98
5.99
5.100 In Region 1, the authorization to use the band 1810-1830 kHz by the amateur service in countries situated totally or partially north of 40° N shall be given only after consultation with the countries mentioned in Nos. 5.98 and 5.99 to define the necessary steps to be taken to prevent harmful interference between amateur stations and stations of other services operating in accordance with Nos. 5.98 and 5.99.
5.101
5.102
5.103 In Region 1, in making assignments to stations in the fixed and mobile services in the bands 1850-2045 kHz, 2194-2498 kHz, 2502-2625 kHz and 2650-2850 kHz, administrations should bear in mind the special requirements of the maritime mobile service.
5.104 In Region 1, the use of the band 2025-2045 kHz by the meteorological aids service is limited to oceanographic buoy stations.
5.105 In Region 2, except in Greenland, coast stations and ship stations using radiotelephony in the band 2065-2107 kHz shall be limited to class J3E emissions and to a peak envelope power not exceeding 1 kW. Preferably, the following carrier frequencies should be used: 2065.0 kHz, 2079.0 kHz, 2082.5 kHz, 2086.0 kHz, 2093.0 kHz, 2096.5 kHz, 2100.0 kHz and 2103.5 kHz. In Argentina and Uruguay, the carrier frequencies 2068.5 kHz and 2075.5 kHz are also used for this purpose, while the frequencies within the band 2072-2075.5 kHz are used as provided in No. 52.165.
5.106 In Regions 2 and 3, provided no harmful interference is caused to the maritime mobile service, the frequencies between 2065 kHz and 2107 kHz may be used by stations of the fixed service communicating only within national borders and whose mean power does not exceed 50 W. In notifying the frequencies, the attention of the Bureau should be drawn to these provisions.
5.107
5.108 The carrier frequency 2182 kHz is an international distress and calling frequency for radiotelephony. The conditions for the use of the band 2173.5-2190.5 kHz are prescribed in Articles 31 and 52 and in Appendix 13.
5.109 The frequencies 2187.5 kHz, 4207.5 kHz, 6312 kHz, 8414.5 kHz, 12577 kHz and 16804.5 kHz are international distress frequencies for digital selective calling. The conditions for the use of these frequencies are prescribed in Article 31.
5.110 The frequencies 2174.5 kHz, 4177.5 kHz, 6268 kHz, 8376.5 kHz, 12520 kHz and 16695 kHz are international distress frequencies for narrow-band direct-printing telegraphy. The conditions for the use of these frequencies are prescribed in Article 31.
5.111 The carrier frequencies 2182 kHz, 3023 kHz, 5680 kHz, 8364 kHz and the frequencies 121.5 MHz, 156.8 MHz and 243 MHz may also be used, in accordance with the procedures in force for terrestrial radiocommunication services, for search and rescue operations concerning manned space vehicles. The conditions for the use of the frequencies are prescribed in Article 31 and in Appendix 13.
The same applies to the frequencies 10003 kHz, 14993 kHz and 19993 kHz, but in each of these cases emissions must be confined in a band of ± 3 kHz about the frequency.
5.112
5.113 For the conditions for the use of the bands 2300-2495 kHz (2498 kHz in Region 1), 3200-3400 kHz, 4750-4995 kHz and 5005-5060 kHz by the broadcasting service, see Nos. 5.16 to 5.20, 5.21 and 23.3 to 23.10.
5.114
5.115 The carrier (reference) frequencies 3023 kHz and 5680 kHz may also be used, in accordance with Article 31 and Appendix 13 by stations of the maritime mobile service engaged in coordinated search and rescue operations.
5.116 Administrations are urged to authorize the use of the band 3155-3195 kHz to provide a common worldwide channel for low power wireless hearing aids. Additional channels for these devices may be assigned by administrations in the bands between 3155 kHz and 3400 kHz to suit local needs.
It should be noted that frequencies in the range 3000 kHz to 4000 kHz are suitable for hearing aid devices which are designed to operate over short distances within the induction field.
5.117
5.118
5.119
5.120 For the use of the bands allocated to the amateur service at 3.5 MHz, 7.0 MHz, 10.1 MHz, 14.0 MHz, 18.068 MHz, 21.0 MHz, 24.89 MHz and 144 MHz in the event of natural disasters, see Resolution 640.
5.122
5.123
5.125
5.126 In Region 3, the stations of those services to which the band 3995-4005 kHz is allocated may transmit standard frequency and time signals.
5.127 The use of the band 4000-4063 kHz by the maritime mobile service is limited to ship stations using radiotelephony (see No. 52.220 and Appendix 17).
5.128 In Afghanistan, Argentina, Armenia, Azerbaijan, Belarus, Botswana, Burkina Faso, the Central African Rep., China, Georgia, India, Kazakstan, Mali, Niger, Kyrgyzstan, Russian Federation, Tajikistan, Chad, Turkmenistan and Ukraine, in the bands 4063-4123 kHz, 4130-4133 kHz and 4408-4438 kHz, stations of limited power in the fixed service which are situated at least 600 km from the coast
5.129 On condition that harmful interference is not caused to the maritime mobile service, the frequencies in the bands 4063-4123 kHz and 4130-4438 kHz may be used exceptionally by stations in the fixed service communicating only within the boundary of the country in which they are located with a mean power not exceeding 50 W.
5.130 The conditions for the use of the carrier frequencies 4125 kHz and 6215 kHz are prescribed in Articles 31 and 52 and in Appendix 13.
5.131 The frequency 4209.5 kHz is used exclusively for the transmission by coast stations of meteorological and navigational warnings and urgent information to ships by means of narrow-band direct-printing techniques.
5.132 The frequencies 4210 kHz, 6314 kHz, 8416.5 kHz, 12579 kHz, 16806.5 kHz, 19680.5 kHz, 22376 kHz and 26100.5 kHz are the international frequencies for the transmission of maritime safety information (MSI) (see Appendix 17).
5.133
5.134 The use of the bands 5900-5950 kHz, 7300-7350 kHz, 9400-9500 kHz, 11600-11650 kHz, 12050-12100 kHz, 13570-13600 kHz, 13800-13870 kHz, 15600-15800 kHz, 17480-17550 kHz and 18900-19020 kHz by the broadcasting service is limited to single-sideband emissions with the characteristics specified in Appendix 11 or to any other spectrum-efficient modulation techniques recommended by ITU-R. Access to these bands shall be subject to the decisions of a competent conference.
5.136 The band 5900-5950 kHz is allocated, until 1 April 2007, to the fixed service on a primary basis, as well as to the following services: in Region 1 to the land mobile service on a primary basis, in Region 2 to the mobile except aeronautical mobile (R) service on a primary basis, and in Region 3 to the mobile except aeronautical mobile (R) service on a secondary basis, subject to application of the procedure referred to in Resolution 21 (Rev.WRC-95). After 1 April 2007, frequencies in this band may be used by stations in the above-mentioned services, communicating only within the boundary of the country in which they are located, on the condition that harmful interference is not caused to the broadcasting service. When using frequencies for these services, administrations are urged to use the minimum power required and to take account of the seasonal use of frequencies by the broadcasting service published in accordance with the Radio Regulations.
5.137 On condition that harmful interference is not caused to the maritime mobile service, the bands 6200-6213.5 kHz and 6220.5-6525 kHz may be used exceptionally by stations in the fixed service, communicating only within the boundary of the country in which they are located, with a mean power not exceeding 50 W. At the time of notification of these frequencies, the attention of the Bureau will be drawn to the above conditions.
5.138 The following bands:
5.139
5.140
5.141
5.142 The use of the band 7100-7300 kHz in Region 2 by the amateur service shall not impose constraints on the broadcasting service intended for use within Region 1 and Region 3.
5.143 The band 7300-7350 kHz is allocated, until 1 April 2007, to the fixed service on a primary basis and to the land mobile service on a secondary basis, subject to application of the procedure referred to in Resolution 21 (Rev.WRC-95). After 1 April 2007, frequencies in this band may be used by stations in the above-mentioned services, communicating only within the boundary of the country in which they are located, on condition that harmful interference is not caused to the broadcasting service. When using frequencies for these services, administrations are urged to use the minimum power required and to take account of the seasonal use of frequencies by the broadcasting service published in accordance with the Radio Regulations.
5.144 In Region 3, the stations of those services to which the band 7995-8005 kHz is allocated may transmit standard frequency and time signals.
5.145 The conditions for the use of the carrier frequencies 8291 kHz, 12290 kHz and 16420 kHz are prescribed in Articles 31 and 52 and in Appendix 13.
5.146 The bands 9400-9500 kHz, 11600-11650 kHz, 12050-12100 kHz, 15600-15800 kHz, 17480-17550 kHz and 18900-19020 kHz are allocated to the fixed service on a primary basis until 1 April 2007, subject to application of the procedure referred to in Resolution 21 (Rev.WRC-95). After 1 April 2007, frequencies in these bands may be used by stations in the fixed service, communicating only within the boundary of the country in which they are located, on condition that harmful interference is not caused to the broadcasting service. When using frequencies in the fixed service, administrations are urged to use the minimum power required and to take account of the seasonal use of frequencies by the broadcasting service published in accordance with the Radio Regulations.
5.147 On condition that harmful interference is not caused to the broadcasting service, frequencies in the bands 9775-9900 kHz, 11650-11700 kHz and 11975-12050 kHz may be used by stations in the fixed service communicating only within the boundary of the country in which they are located, each station using a total radiated power not exceeding 24 dBW.
5.148 The bands 9775-9900 kHz, 11650-11700 kHz, 11975-12050 kHz, 13600-13800 kHz, 15450-15600 kHz, 17550-17700 kHz and 21750-21850 kHz are allocated to the fixed service on
5.149 In making assignments to stations of other services to which the bands:
5.150 The following bands:
5.151 The bands 13570-13600 kHz and 13800-13870 kHz are allocated, until 1 April 2007, to the fixed service on a primary basis and to the mobile except aeronautical mobile (R) service on a secondary basis, subject to application of the procedure referred to in Resolution 21 (Rev.WRC-95). After 1 April 2007, frequencies in these bands may be used by stations in the above-mentioned services, communicating only within the boundary of the country in which they are located, on the condition that harmful interference is not caused to the broadcasting service. When using frequencies in these services, administrations are urged to use the minimum power required and to take account of the seasonal use of frequencies by the broadcasting service published in accordance with the Radio Regulations.
5.152
5.153 In Region 3, the stations of those services to which the band 15995-16005 kHz is allocated may transmit standard frequency and time signals.
5.154
5.155
5.155A In Armenia, Azerbaijan, Belarus, Bulgaria, Georgia, Kazakstan, Moldova, Mongolia, Uzbekistan, Kyrgyzstan, Slovakia, the Czech Rep., the Russian Federation, Tajikistan, Turkmenistan and Ukraine, the use of the band 21850-21870 kHz by the fixed service is limited to provision of services related to aircraft flight safety.
5.155B The band 21870-21924 kHz is used by the fixed service for provision of services related to aircraft flight safety.
5.156
5.156A The use of the band 23200-23350 kHz by the fixed service is limited to provision of services related to aircraft flight safety.
5.157 The use of the band 23350-24000 kHz by the maritime mobile service is limited to inter-ship radiotelegraphy.
5.160
5.161
5.162
5.162A
5.163
5.164
5.165
5.166
5.167
5.168
5.169
5.170
5.171
5.172
5.173
5.174
5.175
5.176
5.177
5.178
5.179
5.180 The frequency 75 MHz is assigned to marker beacons. Administrations shall refrain from assigning frequencies close to the limits of the guardband to stations of other services which, because of their power or geographical position, might cause harmful interference or otherwise place a constraint on marker beacons.
Every effort should be made to improve further the characteristics of airborne receivers and to limit the power of transmitting stations close to the limits 74.8 MHz and 75.2 MHz.
5.181
5.182
5.183
5.184
5.185
5.187
5.188
5.190
5.192
5.194
5.197
5.198
5.199 The bands 121.45-121.55 MHz and 242.95-243.05 MHz are also allocated to the mobile-satellite service for the reception on board satellites of emissions from emergency position-indicating radiobeacons transmitting at 121.5 MHz and 243 MHz (see Appendix 13).
5.200 In the band 117.975-136 MHz, the frequency 121.5 MHz is the aeronautical emergency frequency and, where required, the frequency 123.1 MHz is the aeronautical frequency auxiliary to 121.5 MHz. Mobile stations of the maritime mobile service may communicate on these frequencies under the conditions laid down in Article 31 and Appendix 13 for distress and safety purposes with stations of the aeronautical mobile service.
5.201
5.202
5.203 In the band 136-137 MHz, existing operational meteorological satellites may continue to operate, under the conditions defined in No. 4.4 with respect to the aeronautical mobile service, until 1 January 2002. Administrations shall not authorize new frequency assignments in this band to stations in the meteorological-satellite service.
5.203A
5.203B
5.204
5.205
5.206
5.207
5.208 The use of the band 137-138 MHz by the mobile-satellite service is subject to coordination under No. 9.11A.
5.208A In making assignments to space stations in the mobile-satellite service in the bands 137-138 MHz, 387-390 MHz and 400.15-401 MHz, administrations shall take all practicable steps to protect the radio astronomy service in the bands 150.05-153 MHz, 322-328.6 MHz, 406.1-410 MHz and 608-614 MHz from harmful interference from unwanted emissions. The threshold levels of interference detrimental to the radio astronomy service are shown in Table 1 of Recommendation ITU-R RA.769-1.
5.209 The use of the bands 137-138 MHz, 148-150.05 MHz, 399.9-400.05 MHz, 400.15-401 MHz, 454-456 MHz and 459-460 MHz by the mobile-
5.210
5.211
5.212
5.213
5.214
5.216
5.217
5.218
5.219 The use of the band 148-149.9 MHz by the mobile-satellite service is subject to coordination under No. 9.11A. The mobile-satellite service shall not constrain the development and use of the fixed, mobile and space operation services in the band 148-149.9 MHz.
5.220 The use of the bands 149.9-150.05 MHz and 399.9-400.05 MHz by the mobile-satellite service is subject to coordination under No. 9.11A. The mobile-satellite service shall not constrain the development and use of the radionavigation-satellite service in the bands 149.9-150.05 MHz and 399.9-400.05 MHz.
5.221 Stations of the mobile-satellite service in the band 148-149.9 MHz shall not cause harmful interference to, or claim protection from, stations of the fixed or mobile services operating in accordance with the Table of Frequency Allocations in the following countries: Albania, Algeria, Germany, Saudi Arabia, Australia, Austria, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Benin, Bosnia and Herzegovina, Brunei Darussalam, Bulgaria, Cameroon, China, Cyprus, Congo, Korea (Rep. of), Croatia, Cuba, Denmark, Egypt, the United Arab Emirates, Eritrea, Spain, Estonia, Ethiopia, Finland, France, Gabon, Ghana, Greece, Guinea, Guinea Bissau, Hungary, India, Iran (Islamic Republic of), Ireland, Iceland, Israel, Italy, Jamaica, Japan, Jordan, Kazakstan, Kenya, Kuwait, Latvia, The Former Yugoslav Republic of Macedonia, Lebanon, Libya, Liechtenstein, Lithuania, Luxembourg, Malaysia, Mali, Malta, Mauritania, Moldova, Mongolia, Mozambique, Namibia, Norway, New Zealand, Oman, Uganda, Uzbekistan, Pakistan, Panama, Papua New Guinea, Paraguay, the Netherlands, the Philippines, Poland, Portugal, Qatar, Syria, Kyrgyzstan, Slovakia, Romania, the United Kingdom, the Russian Federation, Senegal, Sierra Leone, Singapore, Slovenia, Sri Lanka, South Africa, Sweden, Switzerland, Swaziland, Tanzania, Chad, Thailand, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Ukraine, Viet Nam, Yemen, Yugoslavia, Zambia, and Zimbabwe.
5.222 Emissions of the radionavigation-satellite service in the bands 149.9-150.05 MHz and 399.9-400.05 MHz may also be used by receiving earth stations of the space research service.
5.223 Recognizing that the use of the band 149.9-150.05 MHz by the fixed and mobile services may cause harmful interference to the radionavigation-satellite service, administrations are urged not to authorize such use in application of No. 4.4.
5.224A The use of the bands 149.9-150.05 MHz and 399.9-400.05 MHz by the mobile-satellite service (Earth-to-space) is limited to the land mobile-satellite service (Earth-to-space) until 1 January 2015.
5.224B The allocation of the bands 149.9-150.05 MHz and 399.9-400.05 MHz to the radionavigation-satellite service shall be effective until 1 January 2015.
5.225
5.226 The frequency 156.8 MHz is the international distress, safety and calling frequency for the maritime mobile VHF radiotelephone service. The conditions for the use of this frequency are contained in Article 31 and Appendix 13.
In the bands 156-156.7625 MHz, 156.8375-157.45 MHz, 160.6-160.975 MHz and 161.475-162.05 MHz, each administration shall give priority to the maritime mobile service on only such frequencies as are assigned to stations of the maritime mobile service by the administration (see Articles 31 and 52, and Appendix 13).
Any use of frequencies in these bands by stations of other services to which they are allocated should be avoided in areas where such use might cause harmful interference to the maritime mobile VHF radiocommunication service.
However, the frequency 156.8 MHz and the frequency bands in which priority is given to the maritime mobile service may be used for radiocommunications on inland waterways subject to agreement between interested and affected administrations and taking into account current frequency usage and existing agreements.
5.227 In the maritime mobile VHF service the frequency 156.525 MHz is to be used exclusively for digital selective calling for distress, safety and calling. The conditions for the use of this frequency are prescribed in Articles 31 and 52, and Appendices 13 and 18.
5.229
5.230
5.231
5.232
5.233
5.234
5.235
5.237
5.238
5.240
5.241 In Region 2, no new stations in the radiolocation service may be authorized in the band 216-225 MHz. Stations authorized prior to 1 January 1990 may continue to operate on a secondary basis.
5.242
5.243
5.245
5.246
5.247
5.250
5.251
5.252
5.254 The bands 235-322 MHz and 335.4-399.9 MHz may be used by the mobile-satellite service, subject to agreement obtained under No. 9.21, on condition that stations in this service do not cause harmful interference to those of other services operating or planned to be operated in accordance with the Table of Frequency Allocations.
5.255 The bands 312-315 MHz (Earth-to-space) and 387-390 MHz (space-to-Earth) in the mobile-satellite service may also be used by non-geostationary-satellite systems. Such use is subject to coordination under No. 9.11A.
5.256 The frequency 243 MHz is the frequency in this band for use by survival craft stations and equipment used for survival purposes (see Appendix 13).
5.257 The band 267-272 MHz may be used by administrations for space telemetry in their countries on a primary basis, subject to agreement obtained under No. 9.21.
5.258 The use of the band 328.6-335.4 MHz by the aeronautical radionavigation service is limited to Instrument Landing Systems (glide path).
5.259
5.260 Recognizing that the use of the band 399.9-400.05 MHz by the fixed and mobile services may cause harmful interference to the radionavigation satellite service, administrations are urged not to authorize such use in application of No. 4.4.
5.261 Emissions shall be confined in a band of ±25 kHz about the standard frequency 400.1 MHz.
5.262
5.263 The band 400.15-401 MHz is also allocated to the space research service in the space-to-space direction for communications with manned space vehicles. In this application, the space research service will not be regarded as a safety service.
5.264 The use of the band 400.15-401 MHz by the mobile-satellite service is subject to coordination under No.
5.266 The use of the band 406-406.1 MHz by the mobile-satellite service is limited to low power satellite emergency position-indicating radiobeacons (see also Article 31 and Appendix 13).
5.267 Any emission capable of causing harmful interference to the authorized uses of the band 406-406.1 MHz is prohibited.
5.268 Use of the band 410-420 MHz by the space research service is limited to communications within 5 km of an orbiting, manned space vehicle. The power flux-density at the surface of the Earth produced by emissions from extra-vehicular activities shall not exceed −153 dB(W/m
5.269
5.270
5.271
5.272
5.273
5.274
5.275
5.276
5.277
5.278
5.279
5.281
5.282 In the bands 435-438 MHz, 1260-1270 MHz, 2400-2450 MHz, 3400-3410 MHz (in Regions 2 and 3 only) and 5650-5670 MHz, the amateur-satellite service may operate subject to not causing harmful interference to other services operating in accordance with the Table (see No. 5.43). Administrations authorizing such use shall ensure that any harmful interference caused by emissions from a station in the amateur-satellite service is immediately eliminated in accordance with the provisions of No. 25.11. The use of the bands 1260-1270 MHz and 5650-5670 MHz by the amateur-satellite service is limited to the Earth-to-space direction.
5.283
5.284
5.285
5.286 The band 449.75-450.25 MHz may be used for the space operation service (Earth-to-space) and the space research service (Earth-to-space), subject to agreement obtained under No. 9.21.
5.286A The use of the bands 454-456 MHz and 459-460 MHz by the mobile-satellite service is subject to coordination under No. 9.11A.
5.286B The use of the band 454-455 MHz in the countries listed in No. 5.286D, 455-456 MHz and 459-460 MHz in Region 2, and 454-456 MHz and 459-460 MHz in the countries listed in No. 5.286E, by stations in the mobile-satellite service, shall not cause harmful interference to, or claim protection from, stations of the fixed or mobile services operating in accordance with the Table of Frequency Allocations.
5.286C The use of the band 454-455 MHz in the countries listed in No. 5.286D, 455-456 MHz and 459-460 MHz in Region 2, and 454-456 MHz and 459-460 MHz in the countries listed in No. 5.286E, by stations in the mobile-satellite service, shall not constrain the development and use of the fixed and mobile services operating in accordance
5.286D
5.286E
5.287 In the maritime mobile service, the frequencies 457.525 MHz, 457.550 MHz, 457.575 MHz, 467.525 MHz, 467.550 MHz and 467.575 MHz may be used by on-board communication stations. Where needed, equipment designed for 12.5 kHz channel spacing using also the additional frequencies 457.5375 MHz, 457.5625 MHz, 467.5375 MHz and 467.5625 MHz may be introduced for on-board communications. The use of these frequencies in territorial waters may be subject to the national regulations of the administration concerned. The characteristics of the equipment used shall conform to those specified in Recommendation ITU-R M.1174 (see Resolution 341 (WRC-97)).
5.288 In the territorial waters of the United States and the Philippines, the preferred frequencies for use by on-board communication stations shall be 457.525 MHz, 457.550 MHz, 457.575 MHz and 457.600 MHz paired, respectively, with 467.750 MHz, 467.775 MHz, 467.800 MHz and 467.825 MHz. The characteristics of the equipment used shall conform to those specified in Recommendation ITU-R M.1174.
5.289 Earth exploration-satellite service applications, other than the meteorological-satellite service, may also be used in the bands 460-470 MHz and 1690-1710 MHz for space-to-Earth transmissions subject to not causing harmful interference to stations operating in accordance with the Table.
5.290
5.291
5.291A
5.292
5.293
5.294
5.296
5.297
5.298
5.300
5.302
5.304
5.305
5.306
5.307
5.309
5.311 Within the frequency band 620-790 MHz, assignments may be made to television stations using frequency modulation in the broadcasting-satellite service subject to agreement between the administrations concerned and those having services, operating in accordance with the Table, which may be affected (see Resolutions 33 (Rev.WRC-97) and 507). Such stations shall not produce a power flux-density in excess of the value −129 dB(W/m
5.312
5.314
5.315
5.316
5.317
5.317A Administrations wishing to implement International Mobile Telecommunications-2000 (IMT-2000) may use those parts of the band 806-960 MHz which are allocated to the mobile service on a primary basis and are used or planned to be used for mobile systems (see Resolution 224 (WRC-2000)). This identification does not preclude the use of these bands by any application of the services to which they are allocated and does not establish priority in the Radio Regulations.
5.318
5.319
5.320
5.321
5.322 In Region 1, in the band 862-960 MHz, stations of the broadcasting service shall be operated only in the African Broadcasting Area (see Nos. 5.10 to 5.13) excluding Algeria, Egypt, Spain, Libya, Morocco, Namibia, Nigeria, South Africa, Tanzania, Zimbabwe and Zambia, subject to agreement obtained under No. 9.21.
5.323
5.325
5.325A
5.326
5.327
5.328 The use of the band 960-1215 MHz by the aeronautical radionavigation service is reserved on a worldwide basis for the operation and development of airborne electronic aids to air navigation and any directly associated ground-based facilities.
5.328A
5.329 Use of the radionavigation-satellite service in the band 1215-1300 MHz shall be subject to the condition that no harmful interference is caused to, and no protection is claimed from, the radionavigation service authorized under No. 5.331. See also Resolution 606 (WRC-2000).
5.329A Use of systems in the radionavigation-satellite service (space-to-space) operating in the bands 1215-1300 MHz and 1559-1610 MHz is not intended to provide safety service applications, and shall not impose any additional constraints on other systems or services operating in accordance with the Table.
5.330
5.331
5.332 In the band 1215-1260 MHz, active spaceborne sensors in the Earth exploration-satellite and space research services shall not cause harmful interference to, claim protection from, or otherwise impose constraints on operation or development of the radiolocation service, the radionavigation-satellite service and other services allocated on a primary basis.
5.333 In the bands 1215-1300 MHz, 3100-3300 MHz, 5250-5350 MHz, 8550-8650 MHz, 9500-9800 MHz and 13.4-14.0 GHz, radiolocation stations installed on spacecraft may also be employed for the earth exploration-satellite and space research services on a secondary basis. (SUP-WRC-97)
5.334
5.335 In Canada and the United States in the band 1240-1300 MHz, active spaceborne sensors in the earth exploration-satellite and space research services shall not cause interference to, claim protection from, or otherwise impose constraints on operation or development of the aeronautical radionavigation service.
5.335A In the band 1260-1300 MHz, active spaceborne sensors in the Earth exploration-satellite and space research services shall not cause harmful interference to, claim protection from, or otherwise impose constraints on operation or development of the radiolocation service and other services allocated by footnotes on a primary basis.
5.337 The use of the bands 1300-1350 MHz, 2700-2900 MHz and 9000-9200 MHz by the aeronautical radionavigation service is restricted to ground-based radars and to associated airborne transponders which transmit only on frequencies in these bands and only when actuated by radars operating in the same band.
5.337A The use of the band 1300-1350 MHz by earth stations in the radionavigation-satellite service and by stations in the radiolocation service shall not cause harmful interference to, nor constrain the operation and development of, the aeronautical-radionavigation service.
5.338 In Azerbaijan, Bulgaria, Mongolia, Kyrgyzstan, Slovakia, the Czech Rep., Romania and Turkmenistan, existing installations of the radionavigation service may continue to operate in the band 1350-1400 MHz.
5.339 The bands 1370-1400 MHz, 2640-2655 MHz, 4950-4990 MHz and 15.20-15.35 GHz are also allocated to the space research (passive) and earth exploration-satellite (passive) services on a secondary basis.
5.340 All emissions are prohibited in the following bands:
5.341 In the bands 1400-1727 MHz, 101-120 GHz and 197-220 GHz, passive research is being conducted by some countries in a programme for the search for intentional emissions of extraterrestrial origin.
5.342
5.343 In Region 2, the use of the band 1435-1535 MHz by the aeronautical mobile service for telemetry has priority over other uses by the mobile service.
5.344
5.345 Use of the band 1452-1492 MHz by the broadcasting-satellite service, and by the broadcasting service, is limited to digital audio broadcasting and is subject to the provisions of Resolution 528 (WARC-92).
5.347
5.348 The use of the band 1492-1525 MHz by the mobile-satellite service is subject to coordination under No. 9.11A. However, no coordination threshold in Article 21 for space stations of the mobile-satellite service with respect to terrestrial services shall apply to the situation referred to in No. 5.343. With respect to the situation referred to in No. 5.343, the requirement for coordination in the band 1492-1525 MHz will be determined by band overlap.
5.348A In the band 1492-1525 MHz, the coordination threshold in terms of the power flux-density levels at the surface of the Earth in application of No. 9.11A for space stations in the mobile-satellite (space-to-Earth) service, with respect to the land mobile service use for specialized mobile radios or used in conjunction with public switched telecommunication networks (PSTN) operating within the territory of Japan, shall be -150 dB(W/m
5.349
5.350
5.351 The bands 1525-1544 MHz, 1545-1559 MHz, 1626.5-1645.5 MHz and 1646.5-1660.5 MHz shall not be used for feeder links of any service. In exceptional circumstances, however, an earth station at a specified fixed point in any of the mobile-satellite services may be authorized by an administration to communicate via space stations using these bands.
5.351A For the use of the bands 1525-1544 MHz, 1545-1559 MHz, 1610-1626.5 MHz, 1626.5-1645.5 MHz, 1646.5-1660.5 MHz, 1980-2010 MHz, 2170-2200 MHz, 2483.5-2500 MHz, 2500-2520 MHz and 2670-2690 MHz by the mobile-satellite service, see Resolutions 212 (Rev.WRC-97) and 225 (WRC-2000).
5.352A In the band 1525-1530 MHz, stations in the mobile-satellite service, except stations in the maritime mobile-satellite service, shall not cause harmful interference to, or claim protection from, stations of the fixed service in France and French overseas territories in Region 3, Algeria, Saudi Arabia, Egypt, Guinea, India, Israel, Italy, Jordan, Kuwait, Mali, Malta, Morocco, Mauritania, Nigeria, Oman, Pakistan, Philippines, Qatar, Syria, Tanzania, Viet Nam and Yemen notified prior to 1 April 1998.
5.353A In applying the procedures of Section II of Article 9 to the mobile-satellite service in the bands 1530-1544 MHz and 1626.5-1645.5 MHz, priority shall be given to accommodating the spectrum requirements for distress, urgency and safety communications of the Global Maritime Distress and Safety System (GMDSS). Maritime mobile-satellite distress, urgency and safety communications shall have priority access and immediate availability over all other mobile satellite communications operating within a network. Mobile-satellite systems shall not cause unacceptable interference to, or claim protection from, distress, urgency and safety communications of the GMDSS. Account shall be taken of the priority of safety-related communications in the other mobile-satellite services. (The provisions of Resolution 222 (WRC-2000) shall apply.)
5.354 The use of the bands 1525-1559 MHz and 1626.5-1660.5 MHz by the mobile-satellite services is subject to coordination under No. 9.11A.
5.355
5.356 The use of the band 1544-1545 MHz by the mobile-satellite service (space-to-Earth) is limited to distress and safety communications (see Article 31).
5.357 Transmissions in the band 1545-1555 MHz from terrestrial aeronautical stations directly to aircraft stations, or between aircraft stations, in the aeronautical mobile (R) service are also authorized when such transmissions are used to extend or supplement the satellite-to-aircraft links.
5.357A In applying the procedures of Section II of Article 9 to the mobile-satellite service in the bands 1545-1555 MHz and 1646.5-1656.5 MHz, priority shall be given to accommodating the spectrum requirements of the aeronautical mobile-satellite (R) service providing transmission of messages with priority 1 to 6 in Article 44. Aeronautical mobile-satellite (R) service communications with priority 1 to 6 in Article 44 shall have priority access and immediate availability, by pre-emption if necessary, over all other mobile-satellite communications operating within a network. Mobile-satellite systems shall not cause unacceptable interference to, or claim protection from, aeronautical mobile-satellite (R) service communications with priority 1 to 6 in Article 44. Account shall be taken of the priority of safety-related communications in the other mobile-satellite services. (The provisions of Resolution 222 (WRC-2000) shall apply.)
5.359
5.362A In the United States, in the bands 1555-1559 MHz and 1656.5-1660.5 MHz, the aeronautical mobile-satellite (R) service shall have priority access and immediate availability, by pre-emption if necessary, over all other mobile-satellite communications operating within a network. Mobile-satellite systems shall not cause unacceptable interference to, or claim protection from, aeronautical mobile-satellite (R) service communications with priority 1 to 6 in Article 44. Account shall be taken of the priority of safety-related communications in the other mobile-satellite services.
5.362B
5.362C
5.363
5.364 The use of the band 1610-1626.5 MHz by the mobile-satellite service (Earth-to-space) and by the radiodetermination-satellite service
5.365 The use of the band 1613.8-1626.5 MHz by the mobile-satellite service (space-to-Earth) is subject to coordination under No. 9.11A.
5.366 The band 1610-1626.5 MHz is reserved on a worldwide basis for the use and development of airborne electronic aids to air navigation and any directly associated ground-based or satellite-borne facilities. Such satellite use is subject to agreement obtained under No. 9.21.
5.367
5.368 With respect to the radiodetermination-satellite and mobile-satellite services the provisions of No. 4.10 do not apply in the band 1610-1626.5 MHz, with the exception of the aeronautical radionavigation-satellite service.
5.369
5.370
5.371
5.372 Harmful interference shall not be caused to stations of the radio astronomy service using the band 1610.6-1613.8 MHz by stations of the radiodetermination-satellite and mobile-satellite services (No. 29.13 applies).
5.374 Mobile earth stations in the mobile-satellite service operating in the bands 1631.5-1634.5 MHz and 1656.5-1660 MHz shall not cause harmful interference to stations in the fixed service operating in the countries listed in No. 5.359.
5.375 The use of the band 1645.5-1646.5 MHz by the mobile-satellite service (Earth-to-space) and for inter-satellite links is limited to distress and safety communications (see Article 31).
5.376 Transmissions in the band 1646.5-1656.5 MHz from aircraft stations in the aeronautical mobile (R) service directly to terrestrial aeronautical stations, or between aircraft stations, are also authorized when such transmissions are used to extend or supplement the aircraft-to-satellite links.
5.376A Mobile earth stations operating in the band 1660-1660.5 MHz shall not cause harmful interference to stations in the radio astronomy service.
5.377 In the band 1675-1710 MHz, stations in the mobile-satellite service shall not cause harmful interference to, nor constrain the development of, the meteorological-satellite and meteorological aids services (see Resolution 213 (Rev.WRC-95)
5.379
5.379A Administrations are urged to give all practicable protection in the band 1660.5-1668.4 MHz for future research in radio astronomy, particularly by eliminating air-to-ground transmissions in the meteorological aids service in the band 1664.4-1668.4 MHz as soon as practicable.
5.380 The bands 1670-1675 MHz and 1800-1805 MHz are intended for use, on a worldwide basis, by administrations wishing to implement aeronautical public correspondence. The use of the band 1670-1675 MHz by stations in the systems for public correspondence with aircraft is limited to transmissions from aeronautical stations and the use of the band 1800-1805 MHz is limited to transmissions from aircraft stations.
5.381
5.382
5.384
5.384A The bands, or portions of the bands, 1710-1885 MHz and 2500-2690 MHz, are identified for use by administrations wishing to implement International Mobile Telecommunications-2000 (IMT-2000) in accordance with Resolution 223 (WRC-2000). This identification does not preclude the use of these bands by any application of the services to which they are allocated and does not establish priority in the Radio Regulations.
5.385
5.386
5.387
5.388 The bands 1885-2025 MHz and 2110-2200 MHz are intended for use, on a worldwide basis, by administrations wishing to implement International Mobile Telecommunications-2000 (IMT-2000). Such use does not preclude the use of these bands by other services to which they are allocated. The bands should be made available for IMT-2000 in accordance with Resolution 212 (Rev.WRC-97). (See also Resolution 223 (WRC-2000).)
5.388A In Regions 1 and 3, the bands 1885-1980 MHz, 2010-2025 MHz and 2110-2170 MHz and, in Region 2, the bands 1885-1980 MHz and 2110-2160 MHz may be used by high altitude platform stations as base stations to provide International Mobile Telecommunications-2000 (IMT-2000), in accordance with Resolution 221 (WRC-2000). The use by IMT-2000 applications using high altitude platform stations as base stations does not preclude the use of these bands by any station in the services to which they are allocated and does not establish priority in the Radio Regulations.
5.389A The use of the bands 1980-2010 MHz and 2170-2200 MHz by the mobile-satellite service is subject to coordination under No. 9.11A and to the provisions of Resolution 716 (WRC-95)
5.389B The use of the band 1980-1990 MHz by the mobile-satellite service shall not cause harmful interference to or constrain the development of the fixed and mobile services in Argentina, Brazil, Canada, Chile, Ecuador, the United States, Honduras, Jamaica, Mexico, Peru, Suriname, Trinidad and Tobago, Uruguay and Venezuela.
5.389C The use of the bands 2010-2025 MHz and 2160-2170 MHz in Region 2 by the mobile-satellite service shall not commence before 1 January 2002 and is subject to coordination under No. 9.11A and to the provisions of Resolution 716 (WRC-95)
5.389D In Canada and the United States the use of the bands 2010-2025 MHz and 2160-2170 MHz by the mobile-satellite service shall not commence before 1 January 2000.
5.389E The use of the bands 2010-2025 MHz and 2160-2170 MHz by the mobile-satellite service in Region 2 shall not cause harmful interference to or constrain the development of the fixed and mobile services in Regions 1 and 3.
5.389F In Algeria, Benin, Cape Verde, Egypt, Iran (Islamic Republic of), Mali, Syria and Tunisia, the use of the bands 1980-2010 MHz and 2170-2200 MHz by the mobile-satellite service shall neither cause harmful interference to the fixed and mobile services, nor hamper the development of those services prior to 1 January 2005, nor shall the former service request protection from the latter services.
5.390 In Argentina, Brazil, Chile, Colombia, Cuba, Ecuador, Suriname and Uruguay, the use of the bands 2010-2025 MHz and 2160-2170 MHz by the mobile-satellite services shall not cause harmful interference to stations in the fixed and mobile services before 1 January 2005. After this date, the use of these bands is subject to coordination under No. 9.11A and to the provisions of Resolution 716 (WRC-95).
5.391 In making assignments to the mobile service in the bands 2025-2110 MHz and 2200-2290 MHz, administrations shall not introduce high-density mobile systems, as described in Recommendation ITU-R SA.1154, and shall take that Recommendation into account for the introduction of any other type of mobile system.
5.392 Administrations are urged to take all practicable measures to ensure that space-to-space transmissions between two or more non-geostationary satellites, in the space research, space operations and Earth exploration-satellite services in the bands 2025-2110 MHz and 2200-2290 MHz, shall not impose any constraints on Earth-to-space, space-to-Earth and other space-to-space transmissions of those services and in those bands between geostationary and non-geostationary satellites.
5.392A
5.393
5.394 In the United States, the use of the band 2300-2390 MHz by the aeronautical mobile service for telemetry has priority over other uses by the mobile services. In Canada, the use of the band 2300-2483.5 MHz by the aeronautical mobile service for telemetry has priority over other uses by the mobile services.
5.395 In France, the use of the band 2310-2360 MHz by the aeronautical mobile service for telemetry has priority over other uses by the mobile service.
5.396 Space stations of the broadcasting-satellite service in the band 2310-2360 MHz operating in accordance with No. 5.393 that may affect the services to which this band is allocated in other countries shall be coordinated and notified in accordance with Resolution 33 (Rev.WRC-97). Complementary terrestrial broadcasting stations shall be subject to bilateral coordination with neighbouring countries prior to their bringing into use.
5.397
5.398 In respect of the radiodetermination-satellite service in the band 2483.5-2500 MHz, the provisions of No. 4.10 do not apply.
5.399 In Region 1, in countries other than those listed in No. 5.400, harmful interference shall not be caused to, or protection shall not be claimed from, stations of the radiolocation service by stations of the radiodetermination satellite service.
5.400
5.402 The use of the band 2483.5-2500 MHz by the mobile-satellite and the radiodetermination-satellite services is subject to the coordination under No. 9.11A. Administrations are urged to take all practicable steps to prevent harmful interference to the radio astronomy service from emissions in the 2483.5-2500 MHz band, especially those caused by second-harmonic radiation that would fall into the 4990-5000 MHz band allocated to the radio astronomy service worldwide.
5.403 Subject to agreement obtained under No. 9.21, the band 2520-2535 MHz (until 1 January 2005 the band 2500-2535 MHz) may also be used for the mobile-satellite (space-to-Earth), except aeronautical mobile-satellite, service for operation limited to within national boundaries. The provisions of No. 9.11A apply.
5.404
5.405
5.407 In the band 2500-2520 MHz, the power flux-density at the surface of the Earth from space stations operating in the mobile-satellite (space-to-Earth) service shall not exceed −152 dB(W/(m
5.409 Administrations shall make all practicable efforts to avoid developing new tropospheric scatter systems in the band 2500-2690 MHz.
5.410 The band 2500-2690 MHz may be used for tropospheric scatter systems in Region 1, subject to agreement obtained under No. 9.21.
5.411 When planning new tropospheric scatter radio-relay links in the band 2500-2690 MHz, all possible measures shall be taken to avoid directing the antennae of these links towards the geostationary-satellite orbit.
5.412
5.413 In the design of systems in the broadcasting-satellite service in the bands between 2500 MHz and 2690 MHz, administrations are urged to take all necessary steps to protect the radio astronomy service in the band 2690-2700 MHz.
5.414 The allocation of the frequency band 2500-2520 MHz to the mobile-satellite service (space-to-Earth) shall be effective on 1 January 2005 and is subject to coordination under No. 9.11A.
5.415 The use of the bands 2500-2690 MHz in Region 2 and 2500-2535 MHz and 2655-2690 MHz in Region 3 by the fixed-satellite service is limited to national and regional systems, subject to agreement obtained under No. 9.21, giving particular attention to the broadcasting-satellite service in Region 1. In the direction space-to-Earth, the power flux-density at the Earth's surface shall not exceed the values given in Article 21, Table 21-4.
5.415A
5.416 The use of the band 2520-2670 MHz by the broadcasting-satellite service is limited to national and regional systems for community reception, subject to agreement obtained under No. 9.21. The power flux-density at the Earth's surface shall not exceed the values given in Article 21, Table 21-4.
5.418
5.418A In certain Region 3 countries listed in No. 5.418, use of the band 2630-2655 MHz by non-geostationary-satellite systems in the broadcasting-satellite service (sound) for which complete Appendix 4 coordination information, or notification information, has been received after 2 June 2000, is subject to the application of the provisions of No. 9.12A, in respect of geostationary-satellite networks for which complete Appendix 4 coordination information, or notification information, is considered to have been received after 2 June 2000, and No. 22.2 does not apply. No. 22.2 shall continue to apply with respect to geostationary-satellite networks for which complete Appendix 4 coordination information, or notification information, is considered to have been received before 3 June 2000. Use of the band by non-geostationary-satellite systems in the broadcasting-satellite service (sound) is subject to the provisions of Resolution 539 (WRC-2000), and such systems shall be in accordance with Resolution 528 (WARC-92).
5.418B Use of the band 2630-2655 MHz by non-geostationary-satellite systems for which complete Appendix 4 coordination information, or notification information, has been received after 2 June 2000, is subject to the application of the provisions of No. 9.12. Resolution 539 (WRC-2000) applies.
5.418C Use of the band 2630-2655 MHz by geostationary-satellite networks for which complete Appendix 4 coordination information, or notification information, has been received after 2 June 2000 is subject to the application of the provisions of No. 9.13 with respect to non-geostationary-satellite systems in the broadcasting-satellite service (sound), and No. 22.2 does not apply. Resolution 539 (WRC-2000) applies.
5.419 The allocation of the frequency band 2670-2690 MHz to the mobile-satellite service shall be effective from 1 January 2005. When introducing systems of the mobile-satellite service in this band, administrations shall take all necessary steps to protect the satellite systems operating in this band prior to 3 March 1992. The coordination of mobile-satellite systems in the band shall be in accordance with No. 9.11A.
5.420 The band 2655-2670 MHz (until 1 January 2005 the band 2655-2690 MHz) may also be used for the mobile-satellite (Earth-to-space), except aeronautical mobile-satellite, service for operation limited to within national boundaries, subject to agreement obtained under No. 9.21. The coordination under No. 9.11A applies.
5.420A
5.421
5.422
5.423 In the band 2700-2900 MHz, ground-based radars used for meteorological purposes are authorized to operate on a basis of equality with stations of the aeronautical radionavigation service.
5.424
5.425 In the band 2900-3100 MHz, the use of the shipborne interrogator-transponder system (SIT) shall be confined to the sub-band 2930-2950 MHz.
5.426 The use of the band 2900-3100 MHz by the aeronautical radionavigation service is limited to ground-based radars.
5.427 In the bands 2900-3100 MHz and 9300-9500 MHz, the response from radar transponders shall not be capable of being confused with the response from radar beacons (racons) and shall not cause interference to ship or aeronautical radars in the radionavigation service, having regard, however, to No. 4.9.
5.428
5.429
5.430
5.431
5.432
5.433 In Regions 2 and 3, in the band 3400-3600 MHz the radiolocation service is allocated on a primary basis. However, all administrations operating radiolocation systems in this band are urged to cease operations by 1985. Thereafter, administrations shall take all practicable steps to protect the fixed-satellite service and coordination requirements shall not be imposed on the fixed-satellite service.
5.435 In Japan, in the band 3620-3700 MHz, the radiolocation service is excluded.
5.438 Use of the band 4200-4400 MHz by the aeronautical radionavigation service is reserved exclusively for radio altimeters installed on board aircraft and for the associated transponders on the ground. However, passive sensing in the earth exploration-satellite and space research services may be authorized in this band on a secondary basis (no protection is provided by the radio altimeters).
5.439
5.440 The standard frequency and time signal-satellite service may be authorized to use the frequency 4202 MHz for space-to-Earth transmissions and the frequency 6427 MHz for Earth-to-space transmissions. Such transmissions shall be confined within the limits of ± 2 MHz of these frequencies, subject to agreement obtained under No. 9.21.
5.441 The use of the bands 4500-4800 MHz (space-to-Earth), 6725-7025 MHz (Earth-to-space) by the fixed-satellite service shall be in accordance with the provisions of Appendix 30B. The use of the bands 10.7-10.95 GHz (space-to-Earth), 11.2-11.45 GHz (space-to-Earth) and 12.75-13.25 GHz (Earth-to-space) by geostationary-satellite systems in the fixed-satellite service shall be in accordance with the provisions of Appendix 30B. The use of the bands 10.7-10.95 GHz (space-to Earth), 11.2-11.45 GHz (space-to-Earth) and 12.75-13.25 GHz (Earth-to-space) by a non-geostationary-satellite system in the fixed-satellite service is subject to application of the provisions of No. 9.12 for coordination with other non-geostationary-satellite systems in the fixed-satellite service. Non-geostationary-satellite systems in the fixed-satellite service shall not claim protection from geostationary-satellite networks in the fixed-satellite service operating in accordance with the Radio Regulations, irrespective of the dates of receipt by the Bureau of the complete coordination or notification information, as appropriate, for the non-geostationary-satellite systems in the fixed-satellite service and of the complete coordination or notification information, as appropriate, for the geostationary-satellite networks, and No. 5.43A does not apply. Non-geostationary-satellite systems in the fixed-satellite service in the above bands shall be operated in such a way that any unacceptable interference that may occur during their operation shall be rapidly eliminated.
5.442 In the bands 4825-4835 MHz and 4950-4990 MHz, the allocation to the mobile service is restricted to the mobile, except aeronautical mobile, service.
5.443
5.443A
5.443B
5.444 The band 5030-5150 MHz is to be used for the operation of the international standard system (microwave landing system) for precision approach and landing. The requirements of this system shall take precedence over other uses of this band. For the use of this band, No. 5.444A and Resolution 114 (WRC-95) apply.
5.444A
In the band 5091-5150 MHz, the following conditions also apply:
5.446
5.447
5.447A The allocation to the fixed-satellite service (Earth-to-space) is limited to feeder links of non-geostationary-satellite systems in the mobile-satellite service and is subject to coordination under No. 9.11A.
5.447B
5.447C Administrations responsible for fixed-satellite service networks in the band 5150-5250 MHz operated under Nos. 5.447A and 5.447B shall coordinate on an equal basis in accordance with No. 9.11A with administrations responsible for non-geostationary-satellite networks operated under No. 5.446 and brought into use prior to 17 November 1995. Satellite networks operated under No. 5.446 brought into use after 17 November 1995 shall not claim protection from, and shall not cause harmful interference to, stations of the fixed-satellite service operated under Nos. 5.447A and 5.447B.
5.447D The allocation of the band 5250-5255 MHz to the space research service on a primary basis is limited to active spaceborne sensors. Other uses of the band by the space research service are on a secondary basis.
5.448
5.448A The use of the frequency band 5250-5350 MHz by the earth exploration-satellite (active) and space research (active) services shall not constrain the future development and deployment of the radiolocation service.
5.448B The earth exploration-satellite (active) service operating in the band 5350-5460 MHz shall not cause harmful interference to, or constrain the use and development of, the aeronautical radionavigation service.
5.449 The use of the band 5350-5470 MHz by the aeronautical radionavigation service is limited to airborne radars and associated airborne beacons.
5.450
5.451
5.452 Between 5600 MHz and 5650 MHz, ground-based radars used for meteorological purposes are authorized to operate on a basis of equality with stations of the maritime radionavigation service.
5.453
5.454
5.455
5.456
5.458 In the band 6425-7075 MHz, passive microwave sensor measurements are carried out over the oceans. In the band 7075-7250 MHz, passive microwave sensor measurements are carried out. Administrations should bear in mind the needs of the Earth exploration-satellite (passive) and space research (passive) services in their future planning of the bands 6425-7025 MHz and 7075-7250 MHz.
5.458A In making assignments in the band 6700-7075 MHz to space stations of the fixed-satellite service, administrations are urged to take all practicable steps to protect spectral line observations of the radio astronomy service in the band 6650-6675.2 MHz from harmful interference from unwanted emissions.
5.458B The space-to-Earth allocation to the fixed-satellite service in the band 6700-7075 MHz is limited to feeder links for non-geostationary satellite systems of the mobile-satellite service and is subject to coordination under No. 9.11A. The use of the band 6700-7075 MHz (space-to-Earth) by feeder links for non-geostationary satellite systems in the mobile-satellite service is not subject to No. 22.2.
5.458C Administrations making submissions in the band 7025-7075 MHz (Earth-to-space) for geostationary-satellite systems in the fixed-satellite service after 17 November 1995 shall consult on the basis of relevant ITU-R Recommendations with the administrations that have notified and brought into use non-geostationary-satellite systems in this frequency band before 18 November 1995 upon request of the latter administrations. This consultation shall be with a view to facilitating shared operation of both geostationary-satellite systems in the fixed-satellite service and non-geostationary-satellite systems in this band.
5.459
5.460
5.461
5.461A The use of the band 7450-7550 MHz by the meteorological-satellite service (space-to-Earth) is limited to geostationary-satellite systems. Non-geostationary meteorological-satellite systems in this band notified before 30 November 1997 may continue to operate on a primary basis until the end of their lifetime.
5.461B The use of the band 7750-7850 MHz by the meteorological-satellite service (space-to-Earth) is limited to non-geostationary satellite systems.
5.462A In Regions 1 and 3 (except for Japan), in the band 8025-8400 MHz, the earth exploration-satellite service using geostationary satellites shall not produce a power flux-density in excess of the following provisional values for angles of arrival (θ), without the consent of the affected administration:
These values are subject to study under Resolution 124 (WRC-97).
5.463 Aircraft stations are not permitted to transmit in the band 8025-8400 MHz.
5.465 In the space research service, the use of the band 8400-8450 MHz is limited to deep space.
5.466
5.467
5.468
5.469
5.469A In the band 8550-8650 MHz, stations in the earth exploration-satellite service (active) and space research service (active) shall not cause harmful interference to, or constrain the use and development of, stations of the radiolocation service.
5.470 The use of the band 8750-8850 MHz by the aeronautical radionavigation service is limited to airborne Doppler navigation aids on a centre frequency of 8800 MHz.
5.471
5.472 In the bands 8850-9000 MHz and 9200-9225 MHz, the maritime radionavigation service is limited to shore-based radars.
5.473
5.474 In the band 9200-9500 MHz, search and rescue transponders (SART) may be used, having due regard to the
5.475 The use of the band 9300-9500 MHz by the aeronautical radionavigation service is limited to airborne weather radars and ground-based radars. In addition, ground-based radar beacons in the aeronautical radionavigation service are permitted in the band 9300-9320 MHz on condition that harmful interference is not caused to the maritime radionavigation service. In the band 9300-9500 MHz, ground-based radars used for meteorological purposes have priority over other radiolocation devices.
5.476 In the band 9300-9320 MHz in the radionavigation service, the use of shipborne radars, other than those existing on 1 January 1976, is not permitted until 1 January 2001.
5.476A In the band 9500-9800 MHz, stations in the earth exploration-satellite service (active) and space research service (active) shall not cause harmful interference to, or constrain the use and development of, stations of the radionavigation and radiolocation services.
5.477
5.478
5.479 The band 9975-10025 MHz is also allocated to the meteorological-satellite service on a secondary basis for use by weather radars.
5.480
5.481
5.482 In the band 10.6-10.68 GHz, stations of the fixed and mobile, except aeronautical mobile, services shall be limited to a maximum equivalent isotropically radiated power of 40 dBW and the power delivered to the antenna shall not exceed −3 dBW. These limits may be exceeded subject to agreement obtained under No. 9.21. However, in Saudi Arabia, Armenia, Azerbaijan, Bahrain, Bangladesh, Belarus, China, the United Arab Emirates, Georgia, India, Indonesia, Iran (Islamic Republic of), Iraq, Japan, Kazakstan, Kuwait, Latvia, Lebanon, Moldova, Nigeria, Uzbekistan, Pakistan, the Philippines, Qatar, Syria, Kyrgyzstan, Russian Federation, Tajikistan, Turkmenistan and Ukraine, the restrictions on the fixed and mobile, except aeronautical mobile, services are not applicable.
5.483
5.484 In Region 1, the use of the band 10.7-11.7 GHz by the fixed-satellite service (Earth-to-space) is limited to feeder links for the broadcasting-satellite service.
5.484A The use of the bands 10.95-11.2 GHz (space-to-Earth), 11.45-11.7 GHz (space-to-Earth), 11.7-12.2 GHz (space-to-Earth) in Region 2, 12.2-12.75 GHz (space-to-Earth) in Region 3, 12.5-12.75 GHz (space-to-Earth) in Region 1, 13.75-14.5 GHz (Earth-to-space), 17.8-18.6 GHz (space-to-Earth), 19.7-20.2 GHz (space-to-Earth), 27.5-28.6 GHz (Earth-to-space), 29.5-30 GHz (Earth-to-space) by a non-geostationary-satellite system in the fixed-satellite service is subject to application of the provisions of No. 9.12 for coordination with other non-geostationary-satellite systems in the fixed-satellite service. Non-geostationary-satellite systems in the fixed-satellite service shall not claim protection from geostationary-satellite networks in the fixed-satellite service operating in accordance with the Radio Regulations, irrespective of the dates of receipt by the Bureau of the complete coordination or notification information, as appropriate, for the non-geostationary-satellite systems in the fixed-satellite service and of the complete coordination or notification information, as appropriate, for the geostationary-satellite networks, and No. 5.43A does not apply. Non-geostationary-satellite systems in the fixed-satellite service in the above bands shall be operated in such a way that any unacceptable interference that may occur during their operation shall be rapidly eliminated.
5.485 In Region 2, in the band 11.7-12.2 GHz, transponders on space stations in the fixed-satellite service may be used additionally for transmissions in the broadcasting-satellite service, provided that such transmissions do not have a maximum e.i.r.p. greater than 53 dBW per television channel and do not cause greater interference or require more protection from interference than the coordinated fixed-satellite service frequency assignments. With respect to the space services, this band shall be used principally for the fixed-satellite service.
5.486
5.487 In the band 11.7-12.5 GHz in Regions 1 and 3, the fixed, fixed-satellite, mobile, except aeronautical mobile, and broadcasting services, in accordance with their respective allocations, shall not cause harmful interference to, or claim protection from, broadcasting-satellite stations operating in accordance with the provisions of the Regions 1 and 3 Plan in Appendix 30.
5.487A
5.488 The use of the band 11.7-12.2 GHz by geostationary-satellite networks in the fixed-satellite service in Region 2 is subject to the provisions of Resolution 77 (WRC-2000). For the use of the band 12.2-12.7 GHz by the broadcasting-satellite service in Region 2, see Appendix 30.
5.489
5.490 In Region 2, in the band 12.2-12.7 GHz, existing and future terrestrial radiocommunication services shall not cause harmful interference to the space services operating in conformity with the broadcasting-satellite Plan for Region 2 contained in Appendix 30.
5.491
5.492 Assignments to stations of the broadcasting-satellite service which are in conformity with the appropriate regional Plan or included in the Regions 1 and 3 List in Appendix 30 may also be used for transmissions in the fixed-satellite service (space-to-Earth), provided that such transmissions do not cause more interference, or require more protection from interference, than the broadcasting-satellite service transmissions operating in conformity with the Plan or the List, as appropriate.
5.493 The broadcasting-satellite service in the band 12.5-12.75 GHz in Region 3 is limited to a power flux-density not exceeding −111 dB(W/(m
5.494
5.495
5.496
5.497 The use of the band 13.25-13.4 GHz by the aeronautical radionavigation service is limited to Doppler navigation aids.
5.498A The Earth exploration-satellite (active) and space research (active) services operating in the band 13.25-13.4 GHz shall not cause harmful interference to, or constrain the use and development of, the aeronautical radionavigation service.
5.499
5.500
5.501
5.501A The allocation of the band 13.4-13.75 GHz to the space research service on a primary basis is limited to active spaceborne sensors. Other uses of the band by the space research service are on a secondary basis.
5.501B In the band 13.4-13.75 GHz, the Earth exploration-satellite (active) and space research (active) services shall not cause harmful interference to, or constrain the use and development of, the radiolocation service.
5.502 In the band 13.75-14 GHz, an earth station in the fixed-satellite service shall have a minimum antenna diameter of 4.5 m and the e.i.r.p. of any emission should be at least 68 dBW and should not exceed 85 dBW. In addition the e.i.r.p., averaged over one second, radiated by a station in the radiolocation or radionavigation services shall not exceed 59 dBW. The protection of assignments to receiving space stations in the fixed-satellite service operating with earth stations that, individually, have an e.i.r.p. of less than 68 dBW shall not impose constraints on the operation of the radiolocation and radionavigation stations operating in accordance with the Radio Regulations. No. 5.43A does not apply. See Resolution 733 (WRC-2000).
5.503 In the band 13.75-14 GHz, geostationary space stations in the space research service for which information for advance publication has been received by the Bureau prior to 31 January 1992 shall operate on an equal basis with stations in the fixed-satellite service; after that date, new geostationary space stations in the space research service will operate on a secondary basis. Until those geostationary space stations in the space research service for which information for advance publication has been received by the Bureau prior to 31 January 1992 cease to operate in this band:
Automatic power control may be used to increase the e.i.r.p. density in the 6 MHz band in this frequency range to compensate for rain attenuation, to the extent that the power flux-density at the fixed-satellite service space station does not exceed the value resulting from use
5.503A Until 1 January 2000, stations in the fixed-satellite service shall not cause harmful interference to non-geostationary space stations in the space research and Earth exploration-satellite services. After that date, these non-geostationary space stations will operate on a secondary basis in relation to the fixed-satellite service. Additionally, when planning earth stations in the fixed-satellite service to be brought into service between 1 January 2000 and 1 January 2001, in order to accommodate the needs of spaceborne precipitation radars operating in the band 13.793-13.805 GHz, advantage should be taken of the consultation process and the information given in Recommendation ITU-R SA.1071.
5.504 The use of the band 14-14.3 GHz by the radionavigation service shall be such as to provide sufficient protection to space stations of the fixed-satellite service.
5.505
5.506 The band 14-14.5 GHz may be used, within the fixed-satellite service (Earth-to-space), for feeder links for the broadcasting-satellite service, subject to coordination with other networks in the fixed-satellite service. Such use of feeder links is reserved for countries outside Europe.
5.508
5.509
5.510 The use of the band 14.5-14.8 GHz by the fixed-satellite service (Earth-to-space) is limited to feeder links for the broadcasting-satellite service. This use is reserved for countries outside Europe.
5.511
5.511A The band 15.43-15.63 GHz is also allocated to the fixed-satellite service (space-to-Earth) on a primary basis. Use of the band 15.43-15.63 GHz by the fixed-satellite service (space-to-Earth and Earth-to-space) is limited to feeder links of non-geostationary systems in the mobile-satellite service, subject to coordination under No. 9.11A. The use of the frequency band 15.43-15.63 GHz by the fixed-satellite service (space-to-Earth) is limited to feeder links of non-geostationary systems in the mobile-satellite service for which advance publication information has been received by the Bureau prior to 2 June 2000. In the space-to-Earth direction, the minimum earth station elevation angle above and gain towards the local horizontal plane and the minimum coordination distances to protect an earth station from harmful interference shall be in accordance with Recommendation ITU-R S.1341. In order to protect the radio astronomy service in the band 15.35-15.4 GHz, the aggregate power flux-density radiated in the 15.35-15.4 GHz band by all the space stations within any feeder-link of a non-geostationary system in the mobile-satellite service (space-to-Earth) operating in the 15.43-15.63 GHz band shall not exceed the level of -156 dB(W/m2) in a 50 MHz bandwidth, into any radio astronomy observatory site for more than 2% of the time.
5.511C Stations operating in the aeronautical radionavigation service shall limit the effective e.i.r.p. in accordance with Recommendation ITU-R S.1340. The minimum coordination distance required to protect the aeronautical radionavigation stations (No. 4.10 applies) from harmful interference from feeder-link earth stations and the maximum e.i.r.p. transmitted towards the local horizontal plane by a feeder-link earth station shall be in accordance with Recommendation ITU-R S.1340.
5.511D Fixed-satellite service systems for which complete information for advance publication has been received by the Bureau by 21 November 1997 may operate in the bands 15.4-15.43 GHz and 15.63-15.7 GHz in the space-to-Earth direction and 15.63-15.65 GHz in the Earth-to-space direction. In the bands 15.4-15.43 GHz and 15.65-15.7 GHz, emissions from a non-geostationary space station shall not exceed the power flux-density limits at the Earth's surface of −146 dB(W/(m
5.512
5.513
5.513A Spaceborne active sensors operating in the band 17.2-17.3 GHz shall not cause harmful interference to, or constrain the development of, the radiolocation and other services allocated on a primary basis.
5.514
5.515 In the band 17.3-17.8 GHz, sharing between the fixed-satellite service (Earth-to-space) and the broadcasting-satellite service shall also be in accordance with the provisions of § 1 of Annex 4 of Appendix 30A.
5.516 The use of the band 17.3-18.1 GHz by geostationary-satellite systems in the fixed-satellite service (Earth-to-space) is limited to feeder links for the broadcasting-satellite service. The use of the band 17.3-17.8 GHz in Region 2 by systems in the fixed-satellite service (Earth-to-space) is limited to geostationary satellites. For the use of the band 17.3-17.8 GHz in Region 2 by feeder links for the broadcasting-satellite service in the band 12.2-12.7 GHz, see Article 11. The use of the bands 17.3-18.1 GHz (Earth-to-space) in Regions 1 and 3 and 17.8-18.1 GHz (Earth-to-space) in Region 2 by non-geostationary-satellite systems in the fixed-satellite service is subject to application of the provisions of No. 9.12 for coordination with other non-geostationary-satellite systems in the fixed-satellite service. Non-geostationary-satellite systems in the fixed-satellite service shall not claim protection from geostationary-satellite networks in the fixed-satellite service operating in accordance with the Radio Regulations, irrespective of the dates of receipt by the Bureau of the complete coordination or notification information, as appropriate, for the non-geostationary-satellite systems in the fixed-satellite service and of the complete coordination or notification information, as appropriate, for the geostationary-satellite networks, and No. 5.43A does not apply. Non-geostationary-satellite systems in the fixed-satellite service in the above bands shall be operated in such a way that any unacceptable interference that may occur during their operation shall be rapidly eliminated.
5.517 In Region 2, the allocation to the broadcasting-satellite service in the band 17.3-17.8 GHz shall come into effect on 1 April 2007. After that date, use of the fixed-satellite (space-to-Earth) service in the band 17.7-17.8 GHz shall not claim protection from and shall not cause harmful interference to operating systems in the broadcasting-satellite service.
5.518
5.519
5.520 The use of the band 18.1-18.4 GHz by the fixed-satellite service (Earth-to-space) is limited to feeder links of geostationary-satellite systems in the broadcasting-satellite service.
5.521
5.522A The emissions of the fixed service and the fixed-satellite service in the band 18.6-18.8 GHz are limited to the values given in Nos. 21.5A and 21.16.2, respectively.
5.522B The use of the band 18.6-18.8 GHz by the fixed-satellite service is limited to geostationary systems and systems with an orbit of apogee greater than 20 000 km.
5.522C In the band 18.6-18.8 GHz, in Algeria, Saudi Arabia, Bahrain, Egypt, the United Arab Emirates, Jordan, Lebanon, Libya, Morocco, Oman, Qatar, Syria, Tunisia and Yemen, fixed-service systems in operation at the date of entry into force of the Final Acts of WRC-2000 are not subject to the limits of No. 21.5A.
5.523A The use of the bands 18.8-19.3 GHz (space-to-Earth) and 28.6-29.1 GHz (Earth-to-space) by geostationary and non-geostationary fixed-satellite service networks is subject to the application of the provisions of No. 9.11A and No. 22.2 does not apply. Administrations having geostationary-satellite networks under coordination prior to 18 November 1995 shall cooperate to the maximum extent possible to coordinate pursuant to No. 9.11A with non-geostationary-satellite networks for which notification information has been received by the Bureau prior to that date, with a view to reaching results acceptable to all the parties concerned. Non-geostationary-satellite networks shall not cause unacceptable interference to geostationary fixed-satellite service networks for which complete Appendix 4 notification information is considered as having been received by the Bureau prior to 18 November 1995.
5.523B The use of the band 19.3-19.6 GHz (Earth-to-space) by the fixed-satellite service is limited to feeder links for non-geostationary-satellite systems in the mobile-satellite service. Such use is subject to the application of the provisions of No. 9.11A, and No. 22.2 does not apply.
5.523C No. 22.2 shall continue to apply in the bands 19.3-19.6 GHz and 29.1-29.4 GHz, between feeder links of non-geostationary mobile-satellite service networks and those fixed-satellite service networks for which complete Appendix 4 coordination information, or notification information, is considered as having been received by the Bureau prior to 18 November 1995.
5.523D The use of the band 19.3-19.7 GHz (space-to-Earth) by geostationary fixed-satellite service systems and by feeder links for non-geostationary-satellite systems in the mobile-satellite service is subject to the application of the provisions of No. 9.11A, but not subject to the provisions of No. 22.2. The use of this band for other non-geostationary fixed-satellite service systems, or for the cases indicated in Nos. 5.523C and 5.523E, is not subject to the provisions of No. 9.11A and shall continue to be subject to Articles 9 (except No. 9.11A) and 11 procedures, and to the provisions of No. 22.2.
5.523E No. 22.2 shall continue to apply in the bands 19.6-19.7 GHz and 29.4-29.5 GHz, between feeder links of non-geostationary mobile-satellite service networks and those fixed-satellite service networks for which complete Appendix 4 coordination information, or notification information, is considered as having been received by the Bureau by 21 November 1997.
5.524
5.525 In order to facilitate interregional coordination between networks in the mobile-satellite and fixed-satellite services, carriers in the mobile-satellite service that are most susceptible to interference shall, to the extent practicable, be located in the
5.526 In the bands 19.7-20.2 GHz and 29.5-30 GHz in Region 2, and in the bands 20.1-20.2 GHz and 29.9-30 GHz in Regions 1 and 3, networks which are both in the fixed-satellite service and in the mobile-satellite service may include links between earth stations at specified or unspecified points or while in motion, through one or more satellites for point-to-point and point-to-multipoint communications.
5.527 In the bands 19.7-20.2 GHz and 29.5-30 GHz, the provisions of No. 4.10 do not apply with respect to the mobile-satellite service.
5.528 The allocation to the mobile-satellite service is intended for use by networks which use narrow spot-beam antennas and other advanced technology at the space stations. Administrations operating systems in the mobile-satellite service in the band 19.7-20.1 GHz in Region 2 and in the band 20.1-20.2 GHz shall take all practicable steps to ensure the continued availability of these bands for administrations operating fixed and mobile systems in accordance with the provisions of No. 5.524.
5.529 The use of the bands 19.7-20.1 GHz and 29.5-29.9 GHz by the mobile-satellite service in Region 2 is limited to satellite networks which are both in the fixed-satellite service and in the mobile-satellite service as described in No. 5.526.
5.530 In Regions 1 and 3, the allocation to the broadcasting-satellite service in the band 21.4-22 GHz shall come into effect on 1 April 2007. The use of this band by the broadcasting-satellite service after that date and on an interim basis prior to that date is subject to the provisions of Resolution 525 (WARC-92).
5.531
5.532 The use of the band 22.21-22.5 GHz by the Earth exploration-satellite (passive) and space research (passive) services shall not impose constraints upon the fixed and mobile, except aeronautical mobile, services.
5.533 The inter-satellite service shall not claim protection from harmful interference from airport surface detection equipment stations of the radionavigation service.
5.534
5.535 In the band 24.75-25.25 GHz, feeder links to stations of the broadcasting-satellite service shall have priority over other uses in the fixed-satellite service (Earth-to-space). Such other uses shall protect and shall not claim protection from existing and future operating feeder-link networks to such broadcasting satellite stations.
5.535A The use of the band 29.1-29.5 GHz (Earth-to-space) by the fixed-satellite service is limited to geostationary-satellite systems and feeder links to non-geostationary-satellite systems in the mobile-satellite service. Such use is subject to the application of the provisions of No. 9.11A, but not subject to the provisions of No. 22.2, except as indicated in Nos. 5.523C and 5.523E where such use is not subject to the provisions of No. 9.11A and shall continue to be subject to Articles 9 (except No. 9.11A) and 11 procedures, and to the provisions of No. 22.2.
5.536 Use of the 25.25-27.5 GHz band by the inter-satellite service is limited to space research and Earth exploration-satellite applications, and also transmissions of data originating from industrial and medical activities in space.
5.536A Administrations installing Earth exploration-satellite service earth stations cannot claim protection from stations in the fixed and mobile services operated by neighbouring administrations. In addition, earth stations operating in the Earth exploration-satellite service should take into account Recommendation ITU-R SA.1278.
5.536B In Germany, Saudi Arabia, Austria, Belgium, Brazil, Bulgaria, China, Korea (Rep. of), Denmark, Egypt, United Arab Emirates, Spain, Estonia, Finland, France, Hungary, India, Iran (Islamic Republic of), Ireland, Israel, Italy, Jordan, Kenya, Kuwait, Lebanon, Libya, Liechtenstein, Lithuania, Moldova, Norway, Oman, Uganda, Pakistan, the Philippines, Poland, Portugal, Syria, Slovakia, the Czech Rep., Romania, the United Kingdom, Singapore, Sweden, Switzerland, Tanzania, Turkey, Viet Nam and Zimbabwe, earth stations operating in the Earth exploration-satellite service in the band 25.5-27 GHz shall not claim protection from, or constrain the use and deployment of, stations of the fixed and mobile services.
5.537 Space services using non-geostationary satellites operating in the inter-satellite service in the band 27-27.5 GHz are exempt from the provisions of No. 22.2.
5.537A In Bhutan, Indonesia, Iran (Islamic Republic of), Japan, Maldives, Mongolia, Myanmar, Pakistan, the Dem. People's Rep. of Korea, Sri Lanka, Thailand and Viet Nam, the allocation to the fixed service in the band 27.5-28.35 GHz may also be used by high altitude platform stations (HAPS). The use of the band 27.5-28.35 GHz by HAPS is limited to operation in the HAPS-to-ground direction and shall not cause harmful interference to, nor claim protection from, other types of fixed-service systems or other co-primary services.
5.538
5.539 The band 27.5-30 GHz may be used by the fixed-satellite service (Earth-to-space) for the provision of feeder links for the broadcasting-satellite service.
5.540
5.541 In the band 28.5-30 GHz, the earth exploration-satellite service is limited to the transfer of data between stations and not to the primary collection of information by means of active or passive sensors.
5.541A Feeder links of non-geostationary networks in the mobile-satellite service and geostationary networks in the fixed-satellite service operating in the band 29.1-29.5 GHz (Earth-to-space) shall employ uplink adaptive power control or other methods of fade compensation, such that the earth station transmissions shall be conducted at the power level required to meet the desired link performance while reducing the level of mutual interference between both networks. These methods shall apply to networks for which Appendix 4 coordination information is considered as having been received by the Bureau after 17 May 1996 and until they are changed by a future competent world radiocommunication conference. Administrations submitting Appendix 4 information for coordination before this date are encouraged to utilize these techniques to the extent practicable.
5.542
5.543 The band 29.95-30 GHz may be used for space-to-space links in the Earth exploration-satellite service for telemetry, tracking, and control purposes, on a secondary basis.
5.543A In Bhutan, Indonesia, Iran (Islamic Republic of), Japan, Maldives, Mongolia, Myanmar, Pakistan, the Dem. People's Rep. of Korea, Sri Lanka, Thailand and Viet Nam, the allocation to the fixed service in the band 31-31.3 GHz may also be used by high altitude platform stations (HAPS) in the ground-to-HAPS direction. The use of the band 31-31.3 GHz by systems using HAPS shall not cause harmful interference to, nor claim protection from, other types of fixed-service systems or other co-primary services, taking into account No. 5.545. The use of HAPS in the band 31-31.3 GHz shall not cause harmful interference to the passive services having a primary allocation in the band 31.3-31.8 GHz, taking into account the interference criteria given in Recommendations ITU-R SA.1029 and ITU-R RA.769. The administrations of the countries listed above are urged to limit the deployment of HAPS in the band 31-31.3 GHz to the lower half of this band (31-31.15 GHz) until WRC-03.
5.544 In the band 31-31.3 GHz the power flux-density limits specified in Article 21, Table 21-4 shall apply to the space research service.
5.545
5.546
5.547 The bands 31.8-33.4 GHz, 37-40 GHz, 40.5-43.5 GHz, 51.4-52.6 GHz, 55.78-59 GHz and 64-66 GHz are available for high-density applications in the fixed service (see Resolutions 75 (WRC-2000) and 79 (WRC-2000)). Administrations should take this into account when considering regulatory provisions in relation to these bands. Because of the potential deployment of high-density applications in the fixed-satellite service in the bands 39.5-40 GHz and 40.5-42 GHz, administrations should further take into account potential constraints to high-density applications in the fixed service, as appropriate (see Resolution 84 (WRC-2000)).
5.547A Administrations should take practical measures to minimize the potential interference between stations in the fixed service and airborne stations in the radionavigation service in the 31.8-33.4 GHz band, taking into account the operational needs of the airborne radar systems.
5.547B
5.547C
5.547D
5.547E
5.548 In designing systems for the inter-satellite and radionavigation services in the band 32-33 GHz, and for the space research service (deep space) in the band 31.8-32.3 GHz, administrations shall take all necessary measures to prevent harmful interference between these services, bearing in mind the safety aspects of the radionavigation service (see Recommendation 707).
5.549
5.550
5.551 Radars located on spacecraft may be operated on a primary basis in the band 35.5-35.6 GHz. (SUP—WRC-97)
5.551A In the band 35.5-36.0 GHz, active spaceborne sensors in the earth exploration-satellite and space research services shall not cause harmful interference to, claim protection from, or otherwise impose constraints on operation or development of the radiolocation service, the meteorological aids service and other services allocated on a primary basis.
5.551AA In the bands 37.5-40 GHz and 42-42.5 GHz, non-geostationary-satellite systems in the fixed-satellite service should employ power control or other methods of downlink fade compensation of the order of 10 dB, such that the satellite transmissions are at power levels required to meet the desired link performance while reducing the level of interference to the fixed service. The use of downlink fade compensation methods are under study by the ITU-R (see Resolution 84 (WRC-2000)).
5.551F
5.551G In order to protect the radio astronomy service in the band 42.5-43.5 GHz, the aggregate power flux-density in the 42.5-43.5 GHz band produced by all the space stations in any non-geostationary-satellite system in the fixed-satellite service (space-to-Earth) or in the broadcasting-satellite service (space-to-Earth) system operating in the 41.5-42.5 GHz band shall not exceed—167 dB(W/m
5.552 The allocation of the spectrum for the fixed-satellite service in the bands 42.5-43.5 GHz and 47.2-50.2 GHz for Earth-to-space transmission is greater than that in the band 37.5-39.5 GHz for space-to-Earth transmission in order to accommodate feeder links to broadcasting satellites. Administrations are urged to take all practicable steps to reserve the band 47.2-49.2 GHz for feeder links for the broadcasting-satellite service operating in the band 40.5-42.5 GHz.
5.552A The allocation to the fixed service in the bands 47.2-47.5 GHz and 47.9-48.2 GHz is designated for use by high altitude platform stations. The use of the bands 47.2-47.5 GHz and 47.9-48.2 GHz is subject to the provisions of Resolution 122 (WRC-97)
5.553 In the bands 43.5-47 GHz and 66-71 GHz, stations in the land mobile service may be operated subject to not causing harmful interference to the space radiocommunication services to which these bands are allocated (see No. 5.43).
5.554 In the bands 43.5-47 GHz, 66-71 GHz, 95-100 GHz, 123-130 GHz, 191.8-200 GHz and 252-265 GHz, satellite links connecting land stations at specified fixed points are also authorized when used in conjunction with the mobile-satellite service or the radionavigation-satellite service.
5.555
5.555A The band 50.2-50.4 GHz is also allocated, on a primary basis, to the fixed and mobile services until 1 July 2000.
5.556 In the bands 51.4-54.25 GHz, 58.2-59 GHz and 64-65 GHz, radio astronomy observations may be carried out under national arrangements.
5.556A Use of the bands 54.25-56.9 GHz, 57-58.2 GHz and 59-59.3 GHz by the inter-satellite service is limited to satellites in the geostationary-satellite orbit. The single-entry power flux-density at all altitudes from 0 km to 1000 km above the Earth's surface produced by a station in the inter-satellite service, for all conditions and for all methods of modulation, shall not exceed −147 dB(W/(m
5.556B
5.557
5.557A In the band 55.78-56.26 GHz, in order to protect stations in the Earth exploration-satellite service (passive), the maximum power density delivered by a transmitter to the antenna of a fixed service station is limited to −26 dB(W/MHz).
5.558 In the bands 55.78-58.2 GHz, 59-64 GHz, 66-71 GHz, 122.25-123 GHz, 130-134 GHz, 167-174.8 GHz and 191.8-200 GHz, stations in the aeronautical mobile service may be operated subject to not causing harmful interference to the inter-satellite service (see No. 5.43).
5.558A Use of the band 56.9-57 GHz by inter-satellite systems is limited to links between satellites in geostationary-satellite orbit and to transmissions from non-geostationary satellites in high-Earth orbit to those in low-Earth orbit. For links between satellites in the geostationary-satellite orbit, the single entry power flux-density at all altitudes from 0 km to 1000 km above the Earth's surface, for all conditions and for all methods of modulation, shall not exceed −147 dB(W/(m
5.559 In the band 59-64 GHz, airborne radars in the radiolocation service may be operated subject to not causing harmful interference to the inter-satellite service (see No. 5.43).
5.559A The band 75.5-76 GHz is also allocated to the amateur and amateur-satellite services on a primary basis until the year 2006.
5.560 In the band 78-79 GHz radars located on space stations may be operated on a primary basis in the Earth exploration-satellite service and in the space research service.
5.561 In the band 74-76 GHz, stations in the fixed, mobile and broadcasting services shall not cause harmful interference to stations of the fixed-satellite service or stations of the broadcasting-satellite service operating in accordance with the decisions of the appropriate frequency assignment planning conference for the broadcasting-satellite service.
5.561A The 81-81.5 GHz band is also allocated to the amateur and amateur-satellite services on a secondary basis.
5.561B In Japan, use of the band 84-86 GHz, by the fixed-satellite service (Earth-to-space) is limited to feeder links in the broadcasting-satellite service using the geostationary-satellite orbit.
5.562 The use of the band 94-94.1 GHz by the Earth exploration-satellite (active) and space research (active) services is limited to spaceborne cloud radars.
5.562A In the bands 94-94.1 GHz and 130-134 GHz, transmissions from space stations of the Earth exploration-satellite service (active) that are directed into the main beam of a radio astronomy antenna have the potential to damage some radio astronomy receivers. Space agencies operating the transmitters and the radio astronomy stations concerned should mutually plan their operations so as to avoid such occurrences to the maximum extent possible.
5.562B In the bands 105-109.5 GHz, 111.8-114.25 GHz, 155.5-158.5 GHz and 217-226 GHz, the use of this allocation is limited to space-based radio astronomy only.
5.562C Use of the band 116-122.25 GHz by the inter-satellite service is limited to satellites in the geostationary-satellite orbit. The single-entry power flux-density produced by a station in the inter-satellite service, for all conditions and for all methods of modulation, at all altitudes from 0 km to 1000 km above the Earth's surface and in the vicinity of all geostationary orbital positions occupied by passive sensors, shall not exceed −148 dB(W/(m
5.562D
5.562E The allocation to the Earth exploration-satellite service (active) is limited to the band 133.5-134 GHz.
5.562F In the band 155.5-158.5 GHz, the allocation to the Earth exploration-satellite (passive) and space research (passive) services shall terminate on 1 January 2018.
5.562G The date of entry into force of the allocation to the fixed and mobile services in the band 155.5-158.5 GHz shall be 1 January 2018.
5.562H Use of the bands 174.8-182 GHz and 185-190 GHz by the inter-satellite service is limited to satellites in the geostationary-satellite orbit. The single-entry power flux-density produced by a station in the inter-satellite service, for all conditions and for all methods of modulation, at all altitudes from 0 to 1000 km above the Earth's surface and in the vicinity of all geostationary orbital positions occupied by passive sensors, shall not exceed −144 dB(W/(m
5.563
5.563A In the bands 200-209 GHz, 235-238 GHz, 250-252 GHz and 265-275 GHz, ground-based passive atmospheric sensing is carried out to monitor atmospheric constituents.
5.563B The band 237.9-238 GHz is also allocated to the Earth exploration-satellite service (active) and the space research service (active) for spaceborne cloud radars only.
5.565 The frequency band 275-1000 GHz may be used by administrations for experimentation with, and development of, various active and passive services. In this band a need has been identified for the following spectral line measurements for passive services:
Future research in this largely unexplored spectral region may yield additional spectral lines and continuum bands of interest to the passive services. Administrations are urged to take all practicable steps to protect these passive services from harmful interference until the date when the allocation Table is established in the above-mentioned frequency band.
US342 In making assignments to stations of other services to which the following bands:
US356 In the band 13.75-14 GHz, an earth station in the fixed-satellite service shall have a minimum antenna diameter of 4.5 m and the e.i.r.p. of any emission should be at least 68 dBW and should not exceed 85 dBW. In addition the e.i.r.p., averaged over one second, radiated by a station in the radiolocation service towards the geostationary-satellite orbit shall not exceed 59 dBW. Receiving space stations in the fixed-satellite service shall not claim protection from radiolocation transmitting stations operating in accordance with the United States Table of Frequency Allocations. ITU Radio Regulation No. 5.43A does not apply.
US369
US370 The band 5000-5150 MHz is to be used for the operation of the international standard system (microwave landing system) for precision approach and landing. The requirements of this system shall take precedence over other uses of this band. For the use of this band, ITU Radio Regulation No. 5.444A and Resolution 114 (WRC-95) apply.
US371 In the bands 134-142 GHz and 190-191.8 GHz, satellite links connecting land stations at specified fixed points are also authorized when used in conjunction with the mobile-satellite service or the radionavigation-satellite service.
US372
US373 In the bands 116-134 GHz, 174.8-182 GHz and 185-190 GHz, stations in the aeronautical mobile service may be operated subject to not causing harmful interference to the inter-satellite service (see ITU Radio Regulation No. 5.43).
US374 In the band 126-134 GHz, airborne radars in the radiolocation service may be operated subject to not causing harmful interference to the inter-satellite service (see ITU Radio Regulation No. 5.43).
US375 The frequency band 275-400 GHz may be used by administrations for experimentation with, and development of, various active and passive services. In this band a need has been identified for the following spectral line measurements for passive services:
Future research in this largely unexplored spectral region may yield additional spectral lines and continuum bands of interest to the passive services. Administrations are urged to take all practicable steps to protect these passive services from harmful interference until the next competent world radiocommunication conference.
US376 In the bands 95-100 GHz, 134-142 GHz, 190-200 GHz and 252-265 GHz, stations in the land mobile service may be operated subject to not causing harmful interference to the space radiocommunication services to which these bands are allocated (see No. 5.43).
US377 In the band 84-86 GHz, stations in the fixed, mobile and broadcasting services shall not cause harmful interference to broadcasting-satellite stations operating in accordance with the decisions of the
NG143 In the band 11.7-12.2 GHz, protection from harmful interference shall be afforded to transmissions from space stations not in conformance with ITU Radio Regulation 5.488 only if the operations of such space stations impose no unacceptable constraints on operations or orbit locations of space stations in conformance with 5.488.
Bureau of Industry and Security, Commerce.
Final rule.
This final rule amends the Export Administration Regulations (EAR) to clarify what “space qualified” items are controlled on the Commerce Control List (CCL) and are therefore subject to the EAR. This rule also removes the License Exception eligibility and amends the CCL for certain “space qualified” items. In addition, this rule adds “regional stability” as the reason for control for certain items. The Department of State is publishing in the
This rule is effective: September 23, 2002.
Gene Christiansen in the Office of Strategic Trade and Foreign Policy Controls, Bureau of Industry and Security, U.S. Department of Commerce at (202) 482-1837.
Section 1513(a) of the National Defense Authorization Act for FY 1999 (NDAA FY99) mandated the transfer of satellites and “related items” from the Department of Commerce, Commerce Control List (CCL) to the Department of State, United States Munitions List (USML). The transfer of “related items” has engendered confusion concerning licensing authority for certain “space qualified” items—
This rule clarifies the licensing jurisdiction of certain “space qualified” items. This rule is consistent with the existing licensing jurisdiction for items specifically designed or modified for items with military applications. Such items are under the licensing jurisdiction of the Department of State. Items on the USML are exclusively controlled for export or reexport by the Department of State and are not within the scope of the Export Administration Regulations.
This rule is the result of extensive review of the affected “space qualified” items by the Departments of Commerce, Defense, and State. It provides for the transfer of “space qualified” atomic frequency standards (formerly controlled by Export Control Classification Number (ECCN) 3A002.g.2), solid state detectors (formerly ECCN 6A002.a.1), imaging sensors (formerly ECCN 6A002.b.2.b.1), cryocoolers (formerly ECCN 6A002.d.1), optical systems parts (formerly ECCN 6A004.c) and optical control equipment (formerly ECCN 6A004.d.1) from the CCL to the USML. This rule also provides criteria governing the split jurisdiction between the Departments of Commerce and State over “space qualified” traveling wave tubes (ECCN 3A001.b.1.a.4.c), photovoltaic arrays (ECCN 3A001.e.1.c), telecommunications equipment for use on board satellites (ECCN 5A001.a.2 and a.3), and the technology to develop and produce telecommunications equipment for use on board satellites (ECCN 5E001.b.1). Finally, this rule confirms Department of Commerce jurisdiction of “space qualified” tape recorders (ECCN 3A002.a.3.b), data recorders (ECCN 3A992.b.3), laser radar (ECCN 6A008.j.1), and focal plane arrays and the technology to make focal plane arrays (ECCN 6A002.e).
Please note, that software for “space qualified” cryocoolers remains on the U.S. Munitions List (22 CFR 121.1) under Category XV, Space Systems and Associated Equipment.
Pursuant to consultations with the Department of State, this rule adds regional stability controls (RS Column 1) for “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment, including “space qualified” LIDAR equipment specially designed for surveying or for meteorological observation (ECCN 6A998.b, software therefor 6D991, technology therefor 6E991), “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) (6A008.j.1, software therefor 6D001 and 6D002, technology therefor 6E001), and focal plane arrays (ECCN 6A002.e, software therefor 6D991, technology therefor 6E001 and 6E002). The expansion of RS controls for this equipment is described in a report to the Congress, dated August 19, 2002.
This rule supercedes any commodity classification decisions and advisory opinions issued by the Department of Commerce prior to the effective date of this rule concerning items which this rule either (i) transfers to State Department jurisdiction or (ii) retains under Commerce Department jurisdiction but removes from eligibility for export or reexport under License Exception authorization or without a license. Items licensed by the Department of Commerce as of September 23, 2002, including those already exported, remain subject to the EAR and the licenses remain in effect in accordance with their terms.
Specifically, this rule makes revisions to the following ECCNs:
In Category 3, Electronics:
• 3A001 is amended by:
(1) Revising the Related Controls paragraph to specify that the following items are now subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121):
(A) “Space qualified” helix tubes (traveling wave tubes), or derivatives thereof operating at frequencies higher than 31 GHz and defined in 3A001.b.1.a.4.c;
(B) “Space qualified” microwave solid state amplifiers operating at frequencies higher than 31 GHz defined in 3A001.b.4.b;
(C) “Space qualified” microwave “assemblies” capable of operating at frequencies exceeding 31 GHz and defined in 3A001.b.6;
(D) “Space qualified” microwave power amplifiers operating at frequencies higher than 31 GHz and defined in 3A001.b.8.; and
(E) “Space qualified” and radiation hardened photovoltaic arrays as defined in 3A001.e.1.c (
(2) Adding a definition for photovoltaic arrays to the Related Definitions section.
• 3A002 is amended by revising the Related Controls paragraph to note that “space qualified” atomic frequency standards defined in 3A002.g.2 are now subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121).
• 3D001 is amended by revising:
(1) The Related Controls paragraph to note that “software” specially designed for the “development” or “production” of the following equipment is under the export licensing authority of the
(2) Revising TSR eligibility under the License Exception section of 3D001, to note the removal of “software” specially designed for the “development” or “production” of Traveling Wave Tube Amplifiers described in 3A001.b.8 having operating frequencies exceeding 18 GHz from License Exception TSR eligibility.
(3) The Related Definitions section to add a definition for photovoltaic arrays.
• 3E001 is amended by:
(1) Revising the Related Controls paragraph to note that “Technology” according to the General Technology Note for the “development” or “production” of the following equipment is under the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121): (1.) When operating at frequencies higher than 31 GHz and “space qualified”: helix tubes (traveling wave tubes (TWT)) defined in 3A001.b.1.a.4.c; microwave solid state amplifiers defined in 3A001.b.4.b; microwave “assemblies” defined in 3A001.b.6; and traveling wave tube amplifiers (TWTA) defined in 3A001.b.8; (2.) “Space qualified” and radiation hardened photovoltaic arrays defined in 3A001.e.1.c (
(2) Revising TSR eligibility under the License Exception section of 3D001, to note the removal of “technology” specially designed for the “development” or “production” of Traveling Wave Tube Amplifiers described in 3A001.b.8 having operating frequencies exceeding 18 GHz from License Exception TSR eligibility.
(3) Revising the Related Definitions section to add a definition for photovoltaic arrays.
In Category 5, Telecommunications and “Information Security”, Part I (Telecommunications):
• 5A001 is amended by revising the Related Controls paragraph to note that telecommunications equipment defined in 5A001.a.1 through 5A001.a.3 for use on board satellites is now subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121).
• 5A991 is amended by:
(1) Adding a Related Control note that states telecommunication equipment defined in 5A991 for use on board satellites is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121).
(2) Adding references to related controls in 5E101 and 5E991.
(3) Removing from the List of Items controlled the note under paragraph 5A991.b.1 that reads, “5A991.b.1 does not control equipment specially designed to be integrated and operated in any satellite system for civil use.”
• 5E001 is amended by revising:
(1) The Related Controls paragraph to note that “technology” defined in 5E001.b.1, 5E001.b.2, 5E001.b.4, and 5E001.c for use on board satellites is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121). Technology defined in 5E001.b.1 for
In Category 6, Sensors and Lasers:
• 6A002 is amended by:
(1) Moving the notes contained in the Related Definitions paragraph to the Related Controls paragraph;
(2) Revising the Related Controls paragraph to note that:
(a) The following commodities are now subject to the export licensing authority of U.S. Department of State, Office of Defense Trade Controls (22 CFR part 121): “space qualified” solid-state detectors defined in 6A002.a.1, “space qualified” imaging sensors (
(b) “Space qualified” “focal plane arrays” defined in 6A002.e remain subject to the export licensing authority of the Department of Commerce, Bureau of Industry and Security, but are removed from License Exception eligibility; and
(c) Exporters may apply for a commodity jurisdiction request with the Department of State, Office of Defense Trade Controls for “space qualified” solid-state detectors defined in 6A002.a.1 and “imaging sensors” (
(3) Adding RS Column 1 controls for 6A002.e, “space qualified” “focal plane arrays.”
• 6A004 is amended by revising the Related Controls paragraph to note that “space qualified” components for optical systems defined in 6A004.c and optical control equipment defined in 6A004.d.1 are subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121).
• 6A008 is amended by:
(1.) Revising the License Exception section to note that equipment defined in 6A008.j.1 (“space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment) is no longer eligible for License Exception LVS;
(2.) Revising the License Requirement section to add RS Column 1 controls to 6A008.j.1 (“space qualified” “laser” radar or Light Detection and Ranging (LIDAR));
(3.) Revising the “Related Controls” paragraph to note specifically that LIDAR equipment specially designed for surveying or for meteorological observation is controlled under ECCN 6A998.b
• 6A998 is amended by:
(1) Revising the heading;
(2) Moving the airborne radar equipment from the heading to 6A998.a; and (3) Adding the “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment specially designed for surveying or for meteorological observation, released from control under the note in 6A008.j, to 6A998.b; and controlling them under regional stability controls (RS column 1) and antiterrorism (AT Column 1).
• 6D001 is amended by:
(1) Revising the License Requirements to add regional stability as a reason for control to software for equipment controlled by 6A008.j.1.
(2) Revising the License Exception section to note that “software” for the “development” or “production” of equipment defined in 6A008.j.1 is not eligible for License Exception TSR; and
(3) Revising the Related Controls paragraph in the List of Items Controlled section to note that “software” specially designed for the “development” or “production” of the following commodities is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121): “space qualified” components for optical systems defined in 6A004.c and “space qualified” optical control equipment defined in 6A004.d.1.
• 6D002 is amended by:
(1) Revising the License Requirements section to add regional stability as a reason for control to software for equipment controlled by 6A008.j.1.
(2) Revising the License Exception section to note that “software” for the “use” of equipment defined in 6A008.j.1 is not eligible for License Exception TSR; and
(3) Revising the Related Controls paragraph in the List of Items Controlled section to note that “software” specially designed for the “use” of “space qualified” “imaging sensors” (
• 6D104 is amended by revising the Related Controls paragraph in the List of Items Controlled section to note that “software” specially designed for the “use” of “space qualified” solid-state (optical) detectors defined in 6A002.a.1 is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121), unless, on or after September 23, 2002, the Department of State issues a commodity jurisdiction determination assigning the export licensing authority to the Department of Commerce, Bureau of Industry and Security.
• 6D991 is amended by:
(1) Revising the header to include 6A002.e; and
(2) Adding regional stability controls (RS column 1) to “software” for equipment controlled by 6A002.e and 6A998.b.
• 6E001 is amended by:
(1) Revising the Reason for Control section to add regional stability as a reason for control for technology for items controlled by 6A002.e, 6A003.b.4, or 6A008.j.1.
(2) Revising the License Exception section to note that “technology” for the “development” of commodities defined in 6A002.e or 6A008.j.1; and “software” for commodities defined in 6A002.e or 6A008.j.1 and controlled in 6D001, 6D002, or 6D104 are no longer eligible for License Exception TSR; and
(3) Revising the Related Controls paragraph in the List of Items Controlled section to note that “Technology” according to the General Technology Note for the “development” of the following commodities is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121): “Space qualified”
(1) Components for optical systems defined in 6A004.c and optical control equipment defined in 6A004.d.1.;
(2) Solid-state detectors defined in 6A002.a.1, “imaging sensors” (
• 6E002 is amended by:
(1) Revising the Reason for Control section to add regional stability as a reason for control for technology for items controlled by 6A002.e, 6A003.b.4, or 6A008.j.1.
(2) Revising the License Exception section to note that “technology” for the “production” of commodities defined in 6A002.e or 6A008.j.1 is no longer eligible for License Exception TSR.
(3) Revising the Related Controls paragraph in the List of Items Controlled section to note that “Technology” according to the General Technology Note for the “production” of the following commodities is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121): (1) Components for optical systems defined in 6A004.c and optical control equipment defined in 6A004.d.1.; (2) Solid-state detectors defined in 6A002.a.1, sbull I11“imaging sensors” (
• 6E991 is amended by adding regional stability controls (RS column 1) for “technology” for equipment controlled by 6A998.b.
In addition to the revisions made to the CCL, this rule adds a restriction that applies to all License Exceptions in section 740.2. Specifically, this rule adds paragraph (a)(6) to this section, which removes the following items from License Exception eligibility: Commodities defined in 3A001.b.8 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6A002.e, 6A008.j.1, or 6A998.b; “software” for commodities defined in 3A001.b.8 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6A002.e, 6A008.j.1, or 6A998.b and controlled under ECCNs 3D001 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6D001, 6D002, 6D104, 6D991; and “technology” for commodities defined in ECCNs 3A001.b.8 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6A002.e, 6A008.j.1, or 6A998.b and controlled under ECCNs 3E001, 6E001, 6E002, 6E101, 6E102, 6E991.
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001 (66 FR 44025 (August 22, 2001)), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.
Shipments of items which this rule either (i) transfers to State Department jurisdiction or (ii) retains under Commerce Department jurisdiction but removes from eligibility for export or reexport under License Exception authorization or without a license (“NLR”—no license required) that were on dock for loading, on lighter, laden aboard an exporting carrier or en route aboard a carrier to a port of export on September 23, 2002, pursuant to actual orders for export to that destination, may proceed to that destination under the previous License Exception or NLR authorization provision so long as they have been exported from the United States before October 21, 2002. Any such items not actually exported before midnight October 21, 2002 require a license in accordance with this regulation.
1. This final rule has been determined to be not significant for purposes of E.O. 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply
3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this interim rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Exports, Foreign trade, Reporting and recordkeeping requirements.
Exports, Foreign trade.
1. The authority citation for 15 CFR part 740 is revised to read as follows:
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
(a) * * *
(7)
(a) * * *
(1) As indicated in the CCL and in RS Column 1 of the Country Chart (see Supplement No. 1 to part 738 of the EAR), a license is required to all destinations, except Canada, for items described on the CCL under ECCNs 6A002.a.1, a.2, a.3, .c, or .e; 6A003.b.3 and b.4; 6A008.j.1; 6A998.b; 6D001 (only “software” for the “development” or “production” of items in 6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4; or 6A008.j.1); 6D002 (only “software” for the “use” of items in 6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4; or 6A008.j.1); 6D991 (only “software” for the “development,” “production,” or “use” of equipment controlled by 6A002.e or 6A998.b); 6E001 (only “technology” for “development” of items in 6A002.a.1, a.2, a.3, and .c or .e, 6A003.b.3 and b.4, or 6A008.j.1); 6E002 (only “technology” for “production” of items in 6A002.a.1, a.2, a.3, .c, or .e, 6A003.b.3 or b.4, or 6A008.j.1); 6E991 (only “technology” for the “development,” ldquo;production,” or “use” of equipment controlled by 6A998.b); 7D001 (only “software” for “development” or “production” of items in 7A001, 7A002, or 7A003); 7E001 (only “technology” for the “development” of inertial navigation systems, inertial equipment, and specially designed components therefor for civil aircraft); 7E002 (only “technology” for the “production” of inertial navigation systems, inertial equipment, and specially designed components therefor for civil aircraft); 7E101 (only “technology” for the “use” of inertial navigation systems, inertial equipment, and specially designed components for civil aircraft).
a. Revising the
b. Revising the License Exceptions and List of Items Controlled sections of ECCNs 3D001 and 3E001, to read as follows:
Unit: * * *
Related Controls: (1.) The following commodities are under the export licensing authority of the Department of State, Office of Defense
Trade Controls (22 CFR part 121) when “space qualified” and operating at frequencies higher than 31 GHz: helix tubes (traveling wave tubes (TWT)) defined in 3A001.b.1.a.4.c; microwave solid state amplifiers defined in 3A001.b.4.b; microwave “assemblies” defined in 3A001.b.6; traveling wave tube amplifiers (TWTA) defined in 3A001.b.8; and derivatives thereof; 2.) “Space qualified” and radiation hardened photovoltaic arrays, as defined in 3A001.e.1.c, having silicon cells or having single, dual or triple junction solar cells that have gallium arsenide as one of the junctions, are subject to the export licensing authority of the Department of Commerce. All other “space qualified” and radiation hardened photovoltaic arrays defined in 3A001.e.1.c and spacecraft/satellite concentrators and batteries are under the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121). See also 3A101, 3A201, and 3A991
Items:
Unit: * * *
Related Controls: “Space qualified” atomic frequency standards defined in 3A002.g.2 are subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121). See also 3A292 and 3A992.
Related Definitions: N/A
Items:
CIV: N/A
TSR: Yes, except for “software” specially designed for the “development” or “production” of Traveling Wave Tube Amplifiers described in 3A001.b.8 having operating frequencies exceeding 18 GHz.
Unit: $ value.
Related Controls: “Software” specially designed for the “development” or “production” of the following equipment is under the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121): (a) When operating at frequencies higher than 31 GHz and “space qualified”: Helix tubes (traveling wave tubes (TWT)) defined in 3A001.b.1.a.4.c; microwave solid state amplifiers defined in 3A001.b.4.b; microwave “assemblies” defined in 3A001.b.6; and traveling wave tube amplifiers (TWTA) defined in 3A001.b.8; (b) “Space qualified” and radiation hardened photovoltaic arrays defined in 3A001.e.1.c (
Related Definitions: For purposes of photovoltaic arrays in 3A001.e.1.c, an array predominately consists of: a substrate; solar cells having silicon cells or having single, dual, and or triple junction solar cells that have gallium arsenide as one of the junctions; coverglass; ultra-violet coating(s); and bonding agent(s). Spacecraft/satellite: solar concentrators, power conditioners and or controllers, bearing and power transfer assembly, and or deployment hardware/systems are controlled under the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121).
Items:
The list of items controlled is contained in the ECCN heading.
CIV: N/A
TSR: Yes, except N/A for MT, and “technology” specially designed for the “development” or “production” of Traveling Wave Tube Amplifiers described in 3A001.b.8 having operating frequencies exceeding 18 GHz.
Unit: N/A
Related Controls: (1.) See also 3E101 and 3E201. (2.) 3E001 does not control “technology” for the “development” or “production” of: (a) Microwave transistors operating at frequencies below 31 GHz; (b) Integrated circuits controlled by 3A001.a.3 to a.12, having all of the following: 1. Using “technology” of 0.7 micrometer or more, AND 2. Not incorporating multi-layer structures. (3.) The term multi-layer structures in this entry does not include devices incorporating a maximum of two metal layers and two polysilicon layers. (4.) “Technology” according to the General Technology Note for the “development” or “production” of the following commodities is under the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121): (a) When operating at frequencies higher than 31 GHz and “space qualified”: helix tubes (traveling wave tubes (TWT)) defined in 3A001.b.1.a.4.c; microwave solid state amplifiers defined in 3A001.b.4.b; microwave “assemblies” defined in 3A001.b.6; or traveling wave tube amplifiers (TWTA) defined in 3A001.b.8; (b) “Space qualified” and radiation hardened photovoltaic arrays defined in 3A001.e.1.c (
The list of items controlled is contained in the ECCN heading.
Related Definitions: N/A
Items:
a. Any type of telecommunications equipment having any of the following characteristics, functions or features:
a.1. Specially designed to withstand transitory electronic effects or electromagnetic pulse effects, both arising from a nuclear explosion;
a.2. Specially hardened to withstand gamma, neutron or ion radiation; or
a.3. Specially designed to operate outside the temperature range from 218 K (−55° C) to 397 K (124° C).
5A001.a.3 applies only to electronic equipment.
5A001.a.2 and 5A001.a.3 do not apply to equipment on board satellites.
b. Telecommunication transmission equipment and systems, and specially designed components and accessories therefor, having any of the following characteristics, functions or features:
b.1 Being underwater communications systems having any of the following characteristics:
b.1.a. An acoustic carrier frequency outside the range from 20 KHz to 60 KHz;
b.1.b. Using an electromagnetic carrier frequency below 30 KHz; or
b.1.c. Using electronic beam steering techniques;
b.2. Being radio equipment operating in the 1.5 MHz to 87.5 MHz band and having any of the following characteristics:
b.2.a. Incorporating adaptive techniques providing more than 15 dB suppression of an interfering signal; or
b.2.b. Having all of the following:
b.2.b.1. Automatically predicting and selecting frequencies and “total digital transfer rates” per channel to optimize the transmission; and
b.2.b.2. Incorporating a linear power amplifier configuration having a capability to support multiple signals simultaneously at an output power of 1 kW or more in the 1.5 MHz to 30 MHz frequency range or 250 W or more in the 30 MHz to 87.5 MHz frequency range, over an “instantaneous bandwidth” of one octave or more and with an output harmonic and distortion content of better than −80 dB;
b.3. Being radio equipment employing “spread spectrum” techniques, including “frequency hopping” techniques, having any of the following characteristics:
b.3.a. User programmable spreading codes; or
b.3.b. A total transmitted bandwidth which is 100 or more times the bandwidth of any one information channel and in excess of 50 KHz;
5A001.b.3.b does not control radio equipment specially designed for use with civil cellular radio-communications systems.
5A001.b.3 does not control equipment operating at an output power of 1.0 Watt or less.
b.4. Being digitally controlled radio receivers having all of the following:
b.4.a. More than 1,000 channels;
b.4.b. A “frequency switching time” of less than 1 ms;
b.4.c. Automatic searching or scanning of a part of the electromagnetic spectrum; and
b.4.d. Identification of the received signals or the type of transmitter; or
5A001.b.4 does not control radio equipment specially designed for use with civil cellular radio-communications systems.
b.5. Employing functions of digital “signal processing” to provide voice coding at rates of less than 2,400 bit/s.
c. Optical fiber communication cables, optical fibers and accessories, as follows:
c.1. Optical fibers of more than 500 m in length specified by the manufacturer as being capable of withstanding a proof test tensile stress of 2 × 10
Proof Test: on-line or off-line production screen testing that dynamically applies a prescribed tensile stress over a 0.5 to 3 m length of fiber at a running rate of 2 to 5 m/s while passing between capstans approximately 150 mm in diameter. The ambient temperature is a nominal 293 K (20° C) and relative humidity 40%. Equivalent national standards may be used for executing the proof test.
c.2. Optical fiber cables and accessories designed for underwater use.
5A001.c.2 does not control standard civil telecommunication cables and accessories.
d. “Electronically steerable phased array antennae” operating above 31 GHz.
5A001.d does not control “electronically steerable phased array antennae” for landing systems with instruments meeting ICAO standards covering microwave landing systems (MLS).
Unit: * * *
Related Definitions: * * *
Items:
a. Any type of telecommunications equipment, not controlled by 5A001.a, specially designed to operate outside the temperature range from 219 K (−54 °C) to 397 K (124 °C).
b. Telecommunication transmission equipment and systems, and specially designed components and accessories therefor, having any of the following characteristics, functions or features:
Telecommunication transmission equipment:
a. Categorized as follows, or combinations thereof:
1. Radio equipment (e.g., transmitters, receivers and transceivers);
2. Line terminating equipment;
3. Intermediate amplifier equipment;
4. Repeater equipment;
5. Regenerator equipment;
6. Translation encoders (transcoders);
7. Multiplex equipment (statistical mutiplex included);
8. Modulators/demodulators (modems);
9. Transmultiplex equipment (see CCITT Rec. G701);
10. “Stored program controlled” digital crossconnection equipment;
11. “Gateways” and bridges;
12. “Media access units”; and
b. Designed for use in single or multi-channel communication via any of the following:
1. Wire (line);
2. Coaxial cable;
3. Optical fiber cable;
4. Electromagnetic radiation; or
5. Underwater acoustic wave propagation.
b.1. Employing digital techniques, including digital processing of analog signals, and designed to operate at a “digital transfer rate” at the highest multiplex level exceeding 45 Mbit/s or a “total digital transfer rate” exceeding 90 Mbit/s;
b.2. Modems using the “bandwidth of one voice channel” with a “data signaling rate” exceeding 9,600 bits per second;
b.3. Being “stored program controlled” digital cross connect equipment with “digital transfer rate” exceeding 8.5 Mbit/s per port.
b.4. Being equipment containing any of the following:
b.4.a. “Network access controllers” and their related common medium having a “digital transfer rate” exceeding 33 Mbit/s; or
b.4.b. “Communication channel controllers” with a digital output having a “data signaling rate” exceeding 64,000 bit/s per channel;
If any uncontrolled equipment contains a “network access controller”, it cannot have any type of telecommunications interface, except those described in, but not controlled by 5A991.b.4.
b.5. Employing a “laser” and having any of the following characteristics:
b.5.a. A transmission wavelength exceeding 1,000 nm; or
b.5.b. Employing analog techniques and having a bandwidth exceeding 45 MHz;
5A991.b.5.b does not control commercial TV systems.
b.5.c. Employing coherent optical transmission or coherent optical detection techniques (also called optical heterodyne or homodyne techniques);
b.5.d. Employing wavelength division multiplexing techniques; or
b.5.e. Performing “optical amplification”;
b.6. Radio equipment operating at input or output frequencies exceeding:
b.6.1. 31 GHz for satellite-earth station applications; or
b.6.2. 26.5 GHz for other applications;
5A991.b.6. does not control equipment for civil use when conforming with an International Telecommunications Union (ITU) allocated band between 26.5 GHz and 31 GHz.
b.7. Being radio equipment employing any of the following:
b.7.a. Quadrature-amplitude-modulation (QAM) techniques above level 4 if the “total digital transfer rate” exceeds 8.5 Mbit/s;
b.7.b. QAM techniques above level 16 if the “total digital transfer rate” is equal to or less than 8.5 Mbit/s; or
b.7.c. Other digital modulation techniques and having a “spectral efficiency” exceeding 3 bit/sec/Hz;
1. 5A991.b.7 does not control equipment specially designed to be integrated and operated in any satellite system for civil use.
2. 5A991.b.7 does not control radio relay equipment for operation in an ITU allocated band:
a. Having any of the following:
a.1. Not exceeding 960 MHz; or
a.2. With a “total digital transfer rate” not exceeding 8.5 Mbit/s; and
b. Having a “spectral efficiency” not exceeding 4 bit/sec/Hz.
b.8. Providing functions of digital “signal processing” as follows:
b.8.a. Voice coding at rates less than 2,400 bit/s;
b.8.b. Employing circuitry that incorporates “user-accessible programmability” of digital “signal processing” circuits exceeding the limits of 4A003.b.
c. “Stored program controlled” switching equipment and related signaling systems, having any of the following characteristics, functions or features, and specially designed components and accessories therefor:
Statistical multiplexers with digital input and digital output which provide switching are treated as “stored program controlled” switches.
c.1. “Data (message) switching” equipment or systems designed for “packet-mode operation” and assemblies and components therefor, n.e.s.
c.2. Containing “Integrated Services Digital Network” (ISDN) functions and having any of the following:
c.2.a. Switch-terminal (e.g., subscriber line) interfaces with a “digital transfer rate” at the highest multiplex level exceeding 192,000 bit/s, including the associated signaling channel (e.g., 2B+D); or
c.2.b. The capability that a signaling message received by a switch on a given channel that is related to a communication on another channel may be passed through to another switch.
5A991.c does not preclude the evaluation and appropriate actions taken by the receiving switch or unrelated user message traffic on a D channel of ISDN.
c.3. Routing or switching of “datagram” packets;
c.4. Routing or switching of “fast select” packets;
The restrictions in 5A991.c.3 and c.4 do not apply to networks restricted to using only “network access controllers” or to “network access controllers” themselves.
c.5. Multi-level priority and pre-emption for circuit switching;
5A991.c.5 does not control single-level call preemption.
c.6. Designed for automatic hand-off of cellular radio calls to other cellular switches or automatic connection to a centralized subscriber data base common to more than one switch;
c.7. Containing “stored program controlled” digital crossconnect equipment with “digital transfer rate” exceeding 8.5 Mbit/s per port.
c.8. “Common channel signaling” operating in either non-associated or quasi-associated mode of operation;
c.9. “Dynamic adaptive routing”;
c.10. Being packet switches, circuit switches and routers with ports or lines exceeding any of the following:
c.10.a. A “data signaling rate” of 64,000 bit/s per channel for a “communications channel controller”; or
5A991.c.10.a does not control multiplex composite links composed only of communication channels not individually controlled by 5A991.b.1.
c.10.b. A “digital transfer rate” of 33 Mbit/s for a “network access controller” and related common media;
5A991.c.10 does not control packet switches or routers with ports or lines not exceeding the limits in 5A991.c.10.
c.11. “Optical switching”;
c.12. Employing “Asynchronous Transfer Mode (“ATM”) techniques.
d. Optical fibers and optical fiber cables of more than 50 m in length designed for single mode operation;
e. Centralized network control having all of the following characteristics:
e.1. Receives data from the nodes; and
e.2. Process these data in order to provide control of traffic not requiring operator decisions, and thereby performing “dynamic adaptive routing”;
5A991.e does not preclude control of traffic as a function of predictable statistical traffic conditions.
f. Phased array antennae, operating above 10.5 GHz, containing active elements and distributed components, and designed to permit electronic control of beam shaping and pointing, except for landing systems with instruments meeting International Civil Aviation Organization (ICAO) standards (microwave landing systems (MLS)).
g. Mobile communications equipment, n.e.s., and assemblies and components therefor; or
h. Radio relay communications equipment designed for use at frequencies equal to or exceeding 19.7 GHz and assemblies and components therefor, n.e.s.
Unit: $ value.
Related Controls: Technology defined in 5E001.b.1, 5E001.b.2, 5E001.b.4, or 5E001.c for use on board satellites is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121). See also 5E101 and 5E991
Related Definitions: N/A.
Items:
a. “Technology” according to the General Technology Note for the “development”, “production” or “use” (excluding operation) of equipment, functions or features or “software” controlled by 5A001, 5B001 or 5D001.
b. Specific “technologies”, as follows:
b.1. “Required” “technology” for the “development” or “production” of telecommunications equipment specially designed to be used on board satellites;
b.2. “Technology” for the “development” or “use” of “laser” communication techniques with the capability of automatically acquiring and tracking signals and maintaining communications through exoatmosphere or sub-surface (water) media;
b.3. “Technology” for the “development” of digital cellular radio systems;
b.4. “Technology” for the “development” of “spread spectrum” techniques, including “frequency hopping” techniques.
c. “Technology” according the General Technology Note for the “development” or “production” of any of the following telecommunication transmission or “stored program controlled” switching equipment, functions or features:
c.1. Equipment employing digital techniques, including “Asynchronous Transfer Mode” (“ATM”), designed to operate at a “total digital transfer rate” exceeding 1.5 Gbit/s;
c.2. Equipment employing a “laser” and having any of the following:
c.2.a. A transmission wavelength exceeding 1750 nm;
c.2.b. Performing “optical amplification” using praseodymium-doped fluoride fiber amplifiers (PDFFA);
c.2.c. Employing coherent optical transmission or coherent optical detection techniques (also called optical heterodyne or homodyne techniques);
c.2.d. Employing wavelength division multiplexing techniques exceeding 8 optical carriers in a single optical window; or
c.2.e. Employing analog techniques and having a bandwidth exceeding 2.5 GHz;
5E001.c.2.e. does not control “technology” for the “development” or “production” of commercial TV systems.
c.3. Equipment employing “optical switching”; or
c.4. Radio equipment having any of the following:
c.4.a. Quadrature-amplitude-modulation (QAM) techniques above level 128; or
c.4.b. Operating at input or output frequencies exceeding 31 GHz; or
5E001.c.4.b. does not control “technology” for the “development” or “production” of equipment designed or modified for operation in any frequency band which is “allocated by the ITU” for radio-communications services, but not for radio-determination.
c.5. Equipment employing “common channel signaling” operating in either non-associated or quasi-associated mode of operation.
a. Revising the License Requirements section, and the Related Controls and Related Definitions paragraphs in the List of Items Controlled section of ECCN 6A002;
b. Revising ECCNs 6A008, 6A998, 6D001, 6D002, 6D991, 6E001, 6E002, and 6E991; and
c. Revising the Related Controls paragraph in the List of Items Controlled section of ECCNs 6A004 and 6D104, to read as follows:
Reason for Control: NS, MT, CC, RS, AT, UN.
Unit: * * *
Related Controls: The following commodities are subject to the export licensing authority of U.S. Department of State, Office of Defense Trade Controls (22 CFR part 121): 1.) “Image intensifiers” defined in 6A002.a.2 and “focal plane arrays” defined in 6A002.a.3 specially designed, modified, or configured for military use and not part of civil equipment; 2.) “Space qualified” solid-state detectors defined in 6A002.a.1, “space qualified” imaging sensors (
Exporters may apply for a commodity jurisdiction request with the Department of State, Office of Defense Trade Controls for “space qualified” solid-state detectors defined in 6A002.a.1 and imaging sensors (
Related Definitions: N/A
Items:
Unit: * * *
Related Controls: “Space qualified” components for optical systems defined in 6A004.c and optical control equipment defined in 6A004.d.1 are subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121). See also 6A994
Related Definitions: * * *
Items: * * *
Reason for Control: NS, MT, RS, AT.
LVS: $5000; N/A for MT and for 6A008.j.1 and 6A008.1.3
GBS: Yes, for 6A008.b, .c, and l.1 only.
CIV: Yes, for 6A008.b, .c, and l.1 only.
Unit: $ value.
Related Controls: This entry does not control: Secondary surveillance radar (SSR); Car radar designed for collision prevention; Displays or monitors used for Air Traffic Control (ATC) having no more than 12 resolvable elements per mm; Meteorological (weather) radar. See also 6A108 and 6A998. ECCN 6A998 controls,
Related Definitions: N/A.
Items:
a. Operating at frequencies from 40 GHz to 230 GHz and having an average output power exceeding 100 mW;
b. Having a tunable bandwidth exceeding ±6.25% of the center operating frequency;
The center operating frequency equals one half of the sum of the highest plus the lowest specified operating frequencies.
c. Capable of operating simultaneously on more than two carrier frequencies;
d. Capable of operating in synthetic aperture (SAR), inverse synthetic aperture (ISAR) radar mode, or sidelooking airborne (SLAR) radar mode;
e. Incorporating “electronically steerable phased array antennae”;
f. Capable of heightfinding non-cooperative targets;
6A008.f does not control precision approach radar (PAR) equipment conforming to ICAO standards.
g. Specially designed for airborne (balloon or airframe mounted) operation and having Doppler “signal processing” for the detection of moving targets;
h. Employing processing of radar signals using any of the following:
h.1. “Radar spread spectrum” techniques; or
h.2. “Radar frequency agility” techniques;
i. Providing ground-based operation with a maximum “instrumented range” exceeding 185 km;
6A008.i does not control:
a. Fishing ground surveillance radar;
b. Ground radar equipment specially designed for en route air traffic control, provided that all the following conditions are met:
1. It has a maximum “instrumented range” of 500 km or less;
2. It is configured so that radar target data can be transmitted only one way from the radar site to one or more civil ATC centers;
3. It contains no provisions for remote control of the radar scan rate from the en route ATC center; and
4. It is to be permanently installed;
c. Weather balloon tracking radars.
j. Being “laser” radar or Light Detection and Ranging (LIDAR) equipment, having any of the following:
j.1. “Space-qualified”; or
j.2. Employing coherent heterodyne or homodyne detection techniques and having an angular resolution of less (better) than 20 μr (microradians);
6A008.j does not control LIDAR equipment specially designed for surveying or for meteorological observation.
k. Having “signal processing” sub-systems using “pulse compression”, with any of the following:
k.1. A “pulse compression” ratio exceeding 150; or
k.2. A pulse width of less than 200 ns; or
1. Having data processing sub-systems with any of the following:
1.1. “Automatic target tracking” providing, at any antenna rotation, the predicted target position beyond the time of the next antenna beam passage;
6A008.1.1 does not control conflict alert capability in ATC systems, or marine or harbor radar.
1.2. Calculation of target velocity from primary radar having non-periodic (variable) scanning rates;
1.3. Processing for automatic pattern recognition (feature extraction) and comparison with target characteristic data bases (waveforms or imagery) to identify or classify targets; or
1.4. Superposition and correlation, or fusion, of target data from two or more “geographically dispersed” and “interconnected radar sensors” to enhance and discriminate targets.
6A008.1.4 does not control systems, equipment and assemblies designed for marine traffic control.
Reason for Control: RS, AT
LVS: N/A
GBS: N/A
CIV: N/A
Unit: $ value.
Related Controls: N/A.
Related Definitions: N/A.
Items:
a. Airborne radar equipment, n.e.s., and specially designed components therefor.
b. “Space-qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment specially designed for surveying or for meteorological observation.
Reason for Control: NS, MT, NP, RS, AT.
CIV: N/A
TSR: Yes, except for the following:
(1) Items controlled for MT reasons;
(2) “Software” specially designed for the “development” or “production” of “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment defined in 6A008.j.1; or
(3) Exports or reexports to destinations outside of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom of “software” specially designed for the “development” or “production” of equipment controlled by 6A008.1.3 or 6B008.
Unit: $ value.
Related Controls: “Software” specially designed for the “development” or “production” of “space qualified” components for optical systems defined in 6A004.c and “space qualified” optical control equipment defined in 6A004.d.1 is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121). See also 6D991, and ECCNs 6E001 (“development”) and 6E102 (“use”) for “technology” for items controlled under this entry.
Related Definitions: N/A.
Items:
The list of items controlled is contained in the ECCN heading.
CIV: N/A
TSR: Yes, except N/A for the following
(1) Items controlled for MT reasons; or
(2) “Software” specially designed for the “use” of “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment defined in 6A008.j.1.
Unit: $ value.
Related Controls: “Software” specially designed for the “use” of “space qualified” imaging sensors (
Related Definitions: N/A.
Items:
The list of items controlled is contained in the ECCN heading.
Related Controls: “Software” specially designed for the “use” of “space qualified” solid-state (optical) detectors defined in 6A002.a.1 is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121), unless, on or after September 23, 2002, the Department of State issues a commodity jurisdiction determination assigning the export licensing authority to the Department of Commerce, Bureau of Industry and Security.
Related Definitions: * * *
Items: * * *
Reason for Control: RS, AT
CIV: N/A
TSR: N/A
Unit: $ value.
Related Controls: N/A.
Related Definitions: N/A.
Items:
The list of items controlled is contained in the ECCN heading.
CIV: N/A
TSR: Yes, except for the following:
(1) Items controlled for MT reasons;
(2) “Technology” for commodities controlled by 6A002.e, 6A004.e, or 6A008.j.1;
(3) “Technology” for “software” specially designed for “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment defined in 6A008.j.1 and controlled by 6D001 or 6D002;
(4) Exports or reexports to destinations outside of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom of “technology” for the “development” of the following: (a) Items controlled by 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.5, 6A001.a.2.b, 6A001.a.2.e., 6A002.a.1.c, 6A008.l.3, 6B008, 6D003.a; (b) Equipment controlled by 6A001.a.2.c or 6A001.a.2.f when specially designed for real time applications; or (c) “Software” controlled by 6D001 and specially designed for the “development” or “production” of equipment controlled by 6A008.l.3 or 6B008.
Unit: N/A
Related Controls: “Technology” according to the General Technology Note for the “development” of the following commodities is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121): “Space qualified” (1.) Components for optical systems defined in 6A004.c and optical control equipment defined in 6A004.d.1.; (2.) Solid-state detectors defined in 6A002.a.1, “imaging sensors” (e.g., “monospectral imaging sensors” and “multispectral imaging sensors”) defined in 6A002.b.2.b.1, and cryocoolers defined in 6A002.d.1 unless on or after September 23, 2002, the Department of State issues a commodity jurisdiction determination assigning the export licensing authority to the Department of Commerce, Bureau of Industry and Security. See also 6E101, 6E201, and 6E991.
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
CIV: N/A
TSR: Yes, except for the following:
(1) Items controlled for MT reasons;
(2) “Technology” for commodities controlled by 6A002.e, 6A004.e, 6A008.j.1; or
(3) Exports or reexports to destinations outside of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom of “technology” for the “development” of the following: (a) Items controlled by 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.5, 6A001.a.2.b, and 6A001.a.2.c; and (b) Equipment controlled by 6A001.a.2.e and 6A001.a.2.f when specially designed for real time applications; or (c) “Software” controlled by 6D001 and specially designed for the “development” or “production” of equipment controlled by 6A002.a.1.c, 6A008.l.3 or 6B008.
Unit: N/A
Related Controls: “Technology” according to the General Technology Note for the “production” of the following commodities is subject to the export licensing authority of the Department of State, Office of Defense Trade Controls (22 CFR part 121) when intended for use on a satellite: “Space qualified” (1.) Components for optical systems defined in 6A004.c and optical control equipment defined in 6A004.d.1.; (2.) Solid-state detectors defined in 6A002.a.1, “imaging sensors” (e.g., “monospectral imaging sensors” and “multispectral imaging sensors”) defined in 6A002.b.2.b.1, and cryocoolers defined in 6A002.d.1 unless on or after September 23, 2002, the Department of State issues a commodity jurisdiction determination assigning the export licensing authority to the Department of Commerce, Bureau of Industry and Security. See also 6E992.
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
Reason for Control: RS, AT
CIV: N/A.
TSR: N/A.
The list of items controlled is contained in the ECCN heading.
Department of State.
Final rule.
The Department of State is revising Category XV—Spacecraft Systems and Associated Equipment—of the U.S. Munitions List (USML). This regulation clarifies that certain “space qualified” items are covered by the USML within the International Traffic in Arms Regulations (ITAR).
September 23, 2002.
Ms. Ann Ganzer, Office of Defense Trade Controls, Department of State, Telephone 202-663-27009 or FAX 202-261-8199. ATTN: Regulatory Change, USML Part 121, Category XV.
The Departments of Commerce, Defense, State and the National Security staff recently completed a review of licensing jurisdiction for “space qualified” items. This amendment specifies the relevant details and technical parameters associated with those “space qualified” items covered by Category XV-Spacecraft Systems and Associated Equipment of the USML, which are under the jurisdiction of the Department of State. The Department of Commerce will also be publishing a final rule addressing which “space qualified” items are covered by the Commerce Control List (CCL). Consequently, this will permit State to resume responding to requests for commodity jurisdiction determinations related to space technology, which have been deferred pending inter-agency agreement on the broader question of which agency has jurisdiction over which “space qualified” items.
This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866; but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant application of Executive Orders Nos. 12372 and 13123. However, affected U.S. persons are invited to submit written comments to the Department of State, Office of Defense Trade Controls, ATTN: Ann Ganzer, Regulatory Change, USML Part 121, Category XV, 12th Floor, SA-1, Washington, DC 20522-0112.
Arms and munitions, Exports.
Sec. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2278, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2658; Pub. L. 105-261, 112 Stat. 1920.
(e) All specifically designed or modified systems or subsystems, components, parts, accessories, attachments, and associated equipment for the articles in this category, including the articles identified in section 1516 of Public Law 105-261: satellite fuel, ground support equipment, test equipment, payload adapter or interface hardware, replacement parts, and non-embedded solid propellant orbit transfer engines (see also Categories IV and V in this section).
This coverage by the U.S. Munitions List does not include the following unless specifically designed or modified for military application (see § 120.3 of this subchapter): (For controls on these items see the Export Administration Regulations, Commerce Control List (15 CFR Parts 730 through 799).)
(1) Space qualified travelling wave tubes (also known as helix tubes or
TWTs), microwave solid state amplifiers, microwave assemblies, and travelling wave tube amplifiers operating at frequencies equal to or less than 31GHz.
(2) Space qualified photovoltaic arrays having silicon cells or having single, dual, triple junction solar cells that have gallium arsenide as one of the junctions.
(3) Space qualified tape recorders.
(4) Atomic frequency standards that are not space qualified.
(5) Space qualified data recorders.
(6) Space qualified telecommunications systems, equipment and components not designed or modified for satellite uses.
(7) Technology required for the development or production of telecommunications equipment specifically designed for non-satellite uses.
(8) Space qualified focal plane arrays having more than 2048 elements per array and having a peak response in the wavelength range exceeding 300nm but not exceeding 900nm.
(9) Space qualified laser radar or Light Detection and Ranging (LIDAR) equipment.
Administration for Native Americans ACF, HHS.
Announcement of availability of competitive financial assistance for projects in competitive areas administered by the Administration for Native Americans for American Indians, Native Hawaiians, Alaska Natives and Native American Pacific Islanders.
The Administration for Native Americans (ANA) announces the anticipated availability of fiscal year 2003 funds in two competitive areas:
Financial assistance provided by ANA in support of projects in these two areas is intended to promote the goal of self-sufficiency for Native Americans. The printed Federal Register notice is the only official program announcement. Although all reasonable efforts are taken to assure that the files on the ANA World Wide Web Page containing electronic copies of this Program Announcement are accurate and complete, they are provided for information only. The applicant bears sole responsibility to assure that the copy downloaded and/or printed from any other source is accurate and complete. Copies of this program announcement and many of the required forms may be obtained electronically at the ANA World Wide Web address
Contact the ANA Applicant Help Desk at 202-690-7776 or toll free at 1-877-922-9262 for assistance.
The purpose of this program announcement is to announce the anticipated availability of fiscal year 2003 funds, authorized under the Native American Programs Act of 1974 (Act), as amended, to promote the goal of social and economic self-sufficiency for American Indians, Alaska Natives, Native Hawaiians, and Native American Pacific Islanders in two competitive areas. Funding authorization is provided under sections 803(a), of the Native American Programs Act of 1974, as amended (Pub. L. 93-644, 88 Stat. 2324, 42 U.S.C. 2991b).
The Administration for Native Americans assists eligible applicants for the two competitive areas to undertake 12 to 36 month development projects that are part of long-range comprehensive plans to move toward governance, social, and/or economic self-sufficiency.
In order to streamline the application process for eligible applicants under two competitive areas, ANA is issuing a single program announcement for fiscal year 2003 funds. Information regarding ANA's mission, policy, goals, application requirements, review criteria and closing dates for the two competitive areas are included in this announcement.
The Administration for Native Americans promotes the goal of self-sufficiency in Native American communities primarily through Social and Economic Development Strategies (SEDS) projects. This program announcement is being issued in anticipation of the appropriation of funds for fiscal year 2003 and the availability of funds for these competitive areas is contingent upon sufficient final appropriations. Proposed projects are reviewed on a competitive basis against the specific evaluation criteria presented under each competitive area in this announcement.
The Division of Children and Families has several initiatives that support and foster strong families and healthy communities. Four of those initiatives the ANA is particularly interested in are access for faith-based and community programs, support for rural communities, prevention and intervention services for youth, and the promotion of healthy relationships and strengthening families.
Healthy Relationships and Strengthening Families Initiative: Because of the benefits of marriage for children, adults, and society, ANA is interested in promoting healthy marriage and responsible fatherhood among the populations it serves. The funds may be used to provide premarital programs and marriage education and enrichment programs to couples. These programs should provide the knowledge and skills necessary to form and sustain a healthy marriage. It may be appropriate to develop partnerships with other agencies and organizations that have experience in the field of marriage education, preparation and enrichment.
This program announcement consists of three parts.
Provides general information about ANA's policies and goals for these two competitive areas. This section contains information pertaining to all applicants.
Describes the competitive areas under which ANA is requesting applications:
Competitive Area (1): Governance, Social and Economic Development (SEDS); Competitive Area (2): Governance, Social and Economic Development (AK-SEDS) for Alaska Natives.
Each competitive area includes the following sections, which provide information to be used to develop an application:
Provides important information and guidance that applies to all competitive areas and must be taken into account in developing an application for either of the two competitive areas.
The mission of the Administration for Native Americans (ANA) is to promote the goal of social and economic self-sufficiency for American Indians, Alaska Natives, Native Hawaiians, and other Native American Pacific Islanders.
The Administration for Native Americans believes that a Native American community is self-sufficient when it can generate and control the resources necessary to meet its social and economic goals, and the needs of its members.
The Administration for Native Americans also believes that the responsibility for achieving self-sufficiency resides with the governing bodies of Indian tribes, Alaska Native villages, and in the leadership of Native American groups. A community's progress toward self-sufficiency is based on its efforts to plan, organize, and direct resources in a comprehensive manner, which is consistent with its established long-range goals.
The Administration for Native Americans' policy is based on three interrelated goals:
1. Governance: To assist tribal and Alaska Native village governments, Native American institutions, and local leadership to exercise local control and decision-making over their resources.
2. Social Development: To support local access to, control of, and coordination of services and programs which safeguard the health, well-being and culture of people, provide support services and training so people can work, and which are essential to a thriving and self-sufficient community in the spirit of respect for indigenous peoples' cultural and intellectual property rights.
3. Economic Development: To foster the development of stable, diversified local economies and economic activities that will provide jobs and promote economic well being.
Applicants must comply with the following ANA administrative policies:
• ANA continues a variety of requirements directed towards enforcing its policy that an eligible grant recipient may only have one active ANA grant awarded from a competitive area at any time. Therefore, while eligible applicants may compete for a grant in each of the competitive areas, an applicant may only submit one application per competitive area and no applicant may receive more than one grant in each competitive area, including any existing ANA grant. In addition, an Alaska Native entity may not submit an application under both Competitive Areas 1 and 2 for the May closing date. Alaska Native entities may receive a grant under either competitive area 1 or 2, but not under both.
• Current grantees whose project period extends beyond September 29, 2003, or who have requested an extension of the project period beyond that date, are not eligible to apply for a grant under the same program area. The Project Period is noted in Block 9 of the Financial Assistance Award document.
• Applicants for any competitive area may propose 12 to 36 month projects.
• Applicants must describe a locally determined strategy to carry out a proposed project with fundable objectives and activities.
• Local long-range planning must consider the maximum use of all available resources, how the resources will be directed to development opportunities, and present a strategy for overcoming the local issues that hinder movement toward self-sufficiency in the community.
• An application from a Tribe, Alaska Native Village or Native American organization must be from the governing body.
• ANA will not accept applications from tribal components, which are tribally authorized divisions of the tribe, unless the application includes a Tribal resolution which clearly demonstrates the Tribe's support of the project and the Tribe's understanding that the applicant's project supplants the Tribe's authority to submit an application under that specific competitive area both for the current competition and for the duration of the approved project period, should the application be funded.
• Under each competitive area, ANA will accept only one application that serves or impacts a reservation, Tribe, or Native American community.
• For the May closing, applications for SEDS grants from Alaska Native entities may be submitted under either Competitive Area 1 or Competitive Area 2, but not both.
• Any non-profit organization submitting an application must submit proof of its non-profit status in the application at the time of submission. The non-profit agency can accomplish this by (1) Providing a copy of the applicant's listing in the Internal Revenue Service's (IRS) most recent list of tax exempt organizations described in Section 501(c)(3) of the IRS code or (2) providing a copy of the currently valid IRS tax exemption certificate, or (3) providing a copy of the articles of incorporation bearing the seal of the State or federally-recognized Tribe in which the corporation or association is domiciled. Organizations incorporating in American Samoa are cautioned that the Samoan government relies exclusively upon IRS determinations of non-profit status; therefore, articles of incorporation approved by the Samoan government do not establish non-profit status for these organizations for the purpose of eligibility for ANA funds.
• An applicant, other than a Federally-recognized tribe or an Alaska Native Village government, proposing a project benefiting Native Americans must provide assurance that its duly elected or appointed board of directors is representative of the community identified to be served. To establish compliance with the requirement, applicants should provide information establishing that at least a majority of the individuals serving on the non-profit's governing board fall into one or more of the following categories: (1) A current or past member of the community to be served; (2) a prospective participant or beneficiary of the project to be funded; or (3) have a cultural relationship with the community to be served.
• An applicant must provide a 20% non-federal share match of the approved project costs.
• An applicant must submit an itemized budget detailing the applicant's Federal and non-Federal share with source(s) cited.
• A request for a waiver of the non-Federal share requirement may be submitted in accordance with 45 CFR 1336.50(b)(3) of the Native American Program Regulations. Applications originating from American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands are covered under section 501(d) of Public Law 95-134, as amended (48 U.S.C. 1469a) under which HHS waives any requirement for matching funds under
The competitive areas under this Part describe ANA's funding authorities, priorities, special initiatives, special application requirements, and review criteria. The standard requirements necessary for each application, as well as standard ANA program guidance and technical guidance are described in Part III of this announcement.
This competitive area promotes the goal of social and economic self-sufficiency for American Indians, Alaska Natives, Native Hawaiians, and Native American Pacific Islanders through locally developed social and economic development strategies (SEDS). Approximately $20 million of financial assistance is anticipated to be available under this priority area for governance, social, and economic development projects. ANA anticipates awarding approximately 150 competitive grants ranging from $50,000 to $1,000,000.
A community's movement toward self-sufficiency could be jeopardized if a careful balance between governmental, social and economic development is not maintained. For example, expansion of social services, without providing opportunities for employment and economic development, could lead to dependency on social services. Conversely, inadequate support services and training could seriously impede productivity and local economic development. Additionally, the necessary infrastructures must be developed or expanded at the community level to support social and economic development and growth. In designing their social and economic development strategies, ANA encourages an applicant to use or leverage all available human, natural, financial, and physical resources. ANA encourages the development and maintenance of comprehensive strategic plans, which are an integral part of attaining and supporting the balance necessary for successful activities that lead to self-sufficiency.
ANA assists tribal and village governments, and Native American organizations, in their efforts to develop and implement community-based, long-term governance, social, and economic development strategies. These strategies must promote the goal of self-sufficiency in local communities. The SEDS approach is based on ANA's program goals and incorporates two fundamental principles:
1. The local community and its leadership are responsible for determining goals, setting priorities, and planning and implementing programs aimed at achieving those goals. The local community is in the best position to apply its own cultural, political, and socio-economic values to its long-term strategies and programs.
2. Governance and social and economic development are interrelated. In order to move toward self-sufficiency, development in one area should be balanced with development in the others. Consequently, comprehensive development strategies should address all aspects of the governmental, economic, and social infrastructures needed to promote self-sufficient communities.
These definitions should be kept in mind as a local social and economic development strategy is developed as part of a grant application. ANA's SEDS policy uses the following definitions:
Governmental infrastructure includes the constitutional, legal, and administrative development requisite for independent governance.
Social infrastructure includes those components through which health, economic well being and culture are maintained within the community and that support governance and economic goals.
Economic infrastructure includes the physical, commercial, technological, industrial and/or agricultural components necessary for a functioning local economy, which supports the life-style, embraced by the Native American community.
This section provides descriptions of activities, which are consistent with the SEDS philosophy. Proposed activities should be tailored to reflect the governance, social and economic development needs of the local community and should be consistent and supportive of the proposed project objectives. The types of projects which ANA may fund include, but are not limited to, the following:
• Improvements in the governmental, judicial and/or administrative infrastructures of tribal and village governments (such as strengthening or streamlining management procedures or the development of tribal court systems);
• Increasing the ability of tribes, villages, and Native American groups and organizations to plan, develop, and administer a comprehensive program to support community social and economic self-sufficiency (including strategic planning);
• Increasing awareness of and exercising the legal rights and benefits to which Native Americans are entitled, either by virtue of treaties, the Federal trust relationship, legislative authority, executive orders, administrative and court decisions, or as citizens of a particular state, territory, of the United States;
• Status clarification activities for Native groups seeking Federal tribal recognition. Activities such as performing research, responding to deficiencies cited by the Bureau of Acknowledgment and Research (BAR) or any other function necessary to submit a petition for Federal acknowledgment to the Department of Interior. Applicants should submit a copy of their Letter of Intent to Petition and indicate their progress within the BIA process; and
• Development of and/or amendments to tribal constitutions, court procedures and functions, by-laws or codes, and council or executive branch duties and functions.
• Development of a community economic infrastructure that will result in businesses, jobs, and an economic support structure;
• Establishment or expansion of businesses and jobs in areas such as tourism, specialty agriculture, energy development, light and/or heavy manufacturing, technology and Internet activities, fabrication and construction companies, housing and fisheries or aqua-culture
• Stabilizing and diversifying a Native community's economic base through business development and enterprise zone ventures.
• Enhancing tribal capabilities to design or administer programs aimed at strengthening the social environment desired by the local community;
• Developing local and intertribal models related to comprehensive planning and delivery of services;
• Developing programs or activities to preserve and enhance tribal heritage and culture; and
• Establishing programs, which involve extended families or tribal
• Address welfare reform initiatives such as moving families to work.
• Help ensure child support from both parents.
• Create access to affordable childcare for low income working families.
• Reach and help enroll children in quality pre-school programs to promote full development, including Head Start, Early Head Start and Child Care.
• Provide safety, permanency and well-being for children and double the number of adoptions from the public child welfare system.
Applications from the Republic of Palau are no longer eligible for assistance under ANA programs. Palau ceased to be a Trust Territory of the United States by virtue of the compact of Free Association Act.
The following are eligible to apply under this competitive area:
• Federally recognized Indian Tribes;
• Consortia of Indian Tribes;
• Incorporated non-federally recognized Tribes;
• Incorporated non-profit multi-purpose community-based Indian organizations;
• Urban Indian Centers;
• National or regional incorporated non-profit Native American organizations with Native American community-specific objectives;
• Alaska Native villages as defined in the Alaska Native Claims Settlement Act (ANCSA) and/or non-profit village consortia;
• Incorporated nonprofit Alaska Native multi-purpose community-based organizations;
• Nonprofit Alaska Native Regional Corporations/Associations in Alaska with village specific projects;
• Nonprofit Native organizations in Alaska with village-specific projects;
• Public and nonprofit private agencies serving Native Hawaiians (The populations served may be located on these islands or on the continental United States);
• Public and nonprofit private agencies serving native peoples from Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands. (The populations served may be located on these islands or in the United States); and
• Tribally-controlled community colleges, Tribally-controlled post-secondary vocational institutions, colleges and universities located in Hawaii, Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands which serve Native American Pacific Islanders.
• Non-profit Alaska Native community entities or tribal governing bodies (Indian Reorganization Act or traditional Councils) as recognized by the Bureau of Indian Affairs.
Grantees must provide at least 20 percent of the total approved cost of the project. The total approved cost of the project is defined as the sum of the Federal request and the non-Federal share. The non-Federal share may be met by cash or in-kind contributions, although applicants are encouraged to meet their match requirements through cash contributions. For example, a project requesting $100,000 in Federal funds must provide a non-federal share match of at least $25,000 (20% total approved project cost or 25% of federal request).
Grantees will be held accountable for the commitments of non-Federal resources as proposed, even if over the amount of the required match. Failure to provide the amount will result in disallowance of Federal match. As per 45 CFR Part 74.2, in-kind contributions are defined as the value of non-cash contributions provided by non-Federal third parties. Third party in-kind contributions may be in the form of real property, equipment, supplies and other expendable property, and the value of goods and services directly benefiting and specifically identifiable to the project or program.
In addition, an applicant may include other Federal funding sources where legislation authorizes use of funds for match and provided the source relates to the ANA project; examples are: Indian Child Welfare funds, through the Department of Interior; Indian Self-Determination and Education Assistance funds, through the Department of Interior and the Department of Health and Human Services; and Community Development Block Grant funds, through the Department of Housing and Urban Development. (Under 45 CFR 74.23(a) (5) use of funds under another Federal Program for non-federal match must be authorized by statute)
A proposed project should reflect the purposes of ANA's SEDS policy and program goals described in the Background section of this competitive area; include a social and economic development strategy which reflects the needs and specific circumstances of the local community; and address the specific developmental steps that the tribe or Native American community is undertaking toward self-sufficiency. The evaluation criteria are closely related to each other and are considered as a whole in judging the overall quality of an application.
Points are awarded only to applications, which are responsive to this competitive area and these criteria. Proposed projects will be reviewed on a competitive basis using the following evaluation criteria.
Long-range goal(s) and a strategy. The applicant provides:
• The specific governance, social, or economic, long-range community goal(s) that the project relates to;
• How the community intends to achieve the goal(s) (Inclusion of the community's entire development plan is not necessary);
• The relationship between the community's goals and plans, and the applicant's proposed plan; and
• A clearly delineated social and economic development strategy (SEDS).
• A description of what constitutes the applicant's specific community.
• The application identifies and documents pre-existing involvement and support of the community in the planning process.
• Describes how the community will be involved in the implementation of the proposed project. Except for those communities, such as Hawaii and the Pacific Islands, where the systems of governance make such involvement inappropriate.
Applicants must document the community's support for the proposed project and explain the role of the community in the planning process and implementation of the proposed project. For tribes, a current signed resolution from the governing body of the tribe supporting the project proposal and stating that there has been community involvement in the planning of this project will suffice as evidence of community support/involvement.
The type of community you serve and nature of the proposal being made will influence the type of documentation necessary. For example, a Federally-recognized Tribe may choose to address this requirement by submitting a resolution stating that community involvement has occurred in the project planning or may determine that
In the discussion of community-based, long-range goals, non-Federally recognized and off-reservation groups are strongly encouraged to include a description of what constitutes their specific community.
Applications from National and Regional Indian and Native organizations must clearly demonstrate a need for the project, explain how the project was originated, state who the intended beneficiaries will be, and describe how the recipients will actually benefit from the project. National Indian and Native organizations should define their membership and describe how the organization operates.
In discussing the goals, strategy, and problems being addressed in the application, include sufficient background and/or history of the community concerning these issues and/or progress to date, as well as the size of the population to be served. This material will assist the reviewers in determining the appropriateness and potential benefits of the proposed project.
For all other eligible applicants, the type of community you serve will determine the type of documentation necessary. For example, an Inter-tribal organization may submit resolutions supporting the project proposal from each of its member's tribes, as well as a resolution from the applicant organization. Other examples of documentation include: community surveys; minutes of community meetings; questionnaires; tribal presentations; and/or discussion/position papers that make specific reference to the proposed project submitted for funding.
(b) Available resources (other than ANA request and the non-Federal share) which will assist, and be coordinated with the project are described. Non-ANA resources should be leveraged to strengthen and broaden the impact of the proposed project in the community. Project designs should explain how those parts of projects which ANA does not fund will be financed through other sources. For example, ANA does not fund construction. Applicants must show the relationship of non-ANA funded activities to those objectives and activities that are funded with ANA grant funds.
In the proposal narrative section, “Resources Available to the Proposed Project” the applicant should describe any specific financial circumstances which may impact on the project, such as any monetary or land settlements made to the applicant, and any restrictions on the use of those settlements. When the applicant appears to have other resources to support the proposed project and chooses not to use them, the applicant should explain why it is seeking ANA funds and not using these resources for the project.
(a) Organizational capabilities are described.
• The management structure of the applicant is explained. Evidence of the applicant's ability to successfully manage projects of similar scope as the proposed project is demonstrated by the organization, and/or by the individuals designated to manage the project.
• The administrative structure of the applicant is explained. Where the proposed ANA project will fit within the current organizational structure is described. A project staffing pattern is presented.
(b) Position descriptions and qualifications of current and/or proposed staff are presented.
• Position descriptions and/or resumes of personnel, including those of consultants, are presented. Resumes must be included if individuals have been identified for positions in the application.
• The position descriptions and/or resumes relate specifically to the staff proposed in the Objective Work Plan and in the proposed budget.
• Position descriptions clearly describe each position's duties and clearly relate to the personnel staffing pattern required to achieve the project objectives.
• Resumes and/or proposed position descriptions demonstrate that the proposed staff are or will be qualified to carry out the project activities. Either the position descriptions or the resumes contain the qualifications and/or specialized skills necessary for overall quality management of the project.
Applicants are strongly encouraged to give preference to Native Americans in hiring project staff and in contracting services under an approved ANA grant.
The application provides a narrative on the overall approach and operation of proposed project throughout entire project period.
(a) The application proposes a specific project Objective Work Plan (OWP). The OWP includes project objectives and specific activities for each budget period proposed and demonstrates that each of the objectives and its activities:
• Is measurable and/or quantifiable in terms of outcomes;
• Supports the community's social and economic development strategy;
• Clearly relates to the community's long-range goals;
• Can be accomplished with the available or expected resources during the proposed project period;
• Indicates when the objective, and major activities under each objective, will be accomplished;
• Specifies who will conduct the activities under each objective; and
• The approach supports a project that will be completed, or self-sustaining, or financed by other than ANA funds at the end of the project period.
The Objective Work Plan proposed should be of sufficient detail to become a monthly staff guide for project responsibilities. Applicants are encouraged to follow the recommended ANA application kit format however, it is not a requirement. The relevant information included in an Objective Work Plan should indicate what is to be achieved, how, by whom, when and indicators of evaluation.
(b) Completion of the proposed objectives will result in specific, measurable outcomes.
• The application shows how the expected outcomes will help the community meet its long-range goals.
• The specific information provided in the narrative and objective work plans on expected outcomes for each objective is the standard upon which its achievement can be evaluated at the end of each budget year.
Detailed Federal and Non-federal share budgets and detailed budget justifications are provided for each budget period requested. The budget includes a line item justification for each requested budget category as listed in Section B of the Budget Categories Section on the SF 424A. The budget includes the necessary details to facilitate the determination of allowable costs and the relevance of these costs to
• The non-federal share budget should identify the source and is supported by letters of commitment.
• Applicants from American Samoa, Guam, and the Northern Mariana Islands are not required to provide a 20% match since the level of funding would not invoke a required match for grants to these insular areas. Therefore, applicants from these insular areas may not have points reduced for the lack of matching funds. However, they are expected to coordinate and organize the delivery of any non-ANA resources they propose for the project.
• If an applicant plans to charge or otherwise seek credit for indirect costs in its ANA application, a current copy of its Indirect Cost Rate Agreement must be included in the application.
• The budget includes sufficient funds for principal representatives, such as the chief financial officer or project director from the applicant organization to travel to one ANA post-award grant training and technical assistance workshop. This expenditure is mandatory for new grant recipients and optional for grantees that have had previous ANA grant awards. This travel and training should occur as soon as practical.
• For business development projects, the proposal demonstrates that the expected return on the funds used to develop the project provides a reasonable operating income and return within a future specified period.
• If a profit-making venture is being proposed, profits must be reinvested in the business in order to decrease or eliminate ANA's future participation. Such revenue must be reported as general program income. A decision will be made at the time of grant award regarding appropriate use of program income. (See 45 CFR part 74 and part 92.)
• The budget may include an employee fringe benefit that provides grant-funded employees with a retirement plan in addition to Social Security. The applicant is strongly encouraged to provide a retirement plan fringe benefit for grant-funded employees' salaries up to five (5) percent. ANA supports a retirement plan as a necessary, reasonable and allowable cost in accordance with OMB rules. Minimum recommended standards for a retirement fringe benefit plan are (1) the plan exists for the exclusive benefit of the participants; funds are to be used for retirement and certain other pre-retirement needs, not for the organization's needs. (2)The plan must have a vesting schedule that does not exceed the initial budget period of the ANA grant. (3) Other alternatives may be submitted for review and approval during grant award negotiations. Alternate proposals may include the use of Individual Retirement Accounts, Money Purchase Pension Plans, Defined Benefit Pension Plans, Combination Plans, etc.
The closing dates for submission of applications under this Competitive Area 1 area: January 17, 2003 and May 2, 2003.
Contact the ANA Applicant Help Desk at 202-690-7776 or toll free at 1-877-922-9262 for assistance.
This competitive area funds Alaska Native social and economic development projects. Approximately $2.0 million is anticipated to be available for Alaska Native governance, social and economic development projects. ANA plans to award approximately 10-15 grants under this competitive area. For individual village projects, the funding level for a budget period of 12 months will be up to $125,000; for regional nonprofit and village consortia, the funding level for a budget period of 12 months will be up to $175,000, commensurate with approved multi-village objectives.
Based on the ANA goals described in Part I, ANA implemented a special Alaska Social and Economic Development initiative in fiscal year 1984. This special effort was designed to provide financial assistance at the village level or for village-specific projects aimed at improving a village's governance capabilities and for social and economic development. This competitive area continues to implement this special initiative. ANA believes both the non-profit and for-profit corporations in Alaska can play an important supportive role in assisting individual villages to develop and implement their own locally determined strategies which capitalize on opportunities afforded to Alaska Natives under the Alaska Native Claims Settlement Act (ANCSA), Public Law 92-203.
While the Administration for Native Americans does not fund objectives or activities for the core administration of an organization. ANA will consider funding core administrative capacity building projects at the village government level if the village does not have governing systems in place.
Examples of the types of projects that ANA may fund include but are not limited to, projects that will:
• Initiate demonstration programs at the regional level to allow Native people to become involved in developing strategies to maintain and develop their economic subsistence base;
• Assist villages in developing land use capabilities and skills in the areas of land and natural resource management and protection, resource assessment and conducting environmental impact studies;
• Assist village consortia in the development of tribal constitutions, ordinances, codes and tribal court systems;
• Develop agreements between the State and villages that transfer programs jurisdictions, and/or control to Native entities;
• Strengthen village government control of land management, including land protection, through coordination of land use planning with village corporations and cities, if appropriate;
• Assist in status clarification activities;
• Initiate village level mergers between village councils, village corporations and others to coordinate programs and services which safeguard the health, well being and culture of a community and its people;
• Strengthen local governance capabilities through the development of village consortia and regional IRAs (Indian Reorganization Act councils organized under the Indian Reorganization Act, 25 U.S.C. 473a);
• Assist villages in preparing and coordinating plans for the development and/or improvement of water and sewer systems within the village boundaries;
• Assist villages in establishing initiatives through which youth may participate in the governance of the community and be trained to assume leadership roles in village governments; and
• Consider strategies and plans to protect against, monitor, and assist when catastrophic events occur, such as oil spills or earthquakes.
• Assist in developing training and education programs for local jobs in education, government, and health-related fields; and work with these agencies to encourage job replacement of non-Natives by trained Natives;
• Develop local models related to comprehensive planning and delivery of social services;
• Develop new service programs, initially established with ANA funds, which will be funded by local communities or the private sector for continued operation after the ANA grant expires.
• Develop or coordinate with State-funded projects, activities designed to decrease the incidence of child abuse and neglect, fetal alcohol syndrome, and/or suicides;
• Assist in obtaining licenses to provide housing or related services from State or local governments; and
• Develop businesses to provide relief for caretakers needing respite from human service-related care work.
• Develop and implement researched-based programs to sustain healthy relationships and communities.
• Assist villages in developing businesses and industries which: (1) Use local materials; (2) create jobs for Alaska Natives; (3) are capable of high productivity at a small scale of operation; and (4) complement traditional and necessary seasonal activities;
• Substantially increase and strengthen efforts to establish and improve the village and regional business infrastructure and the capabilities to develop and manage resources in a highly competitive cash-economy system;
• Assist villages, or consortia of villages, in developing subsistence compatible industries that will retain local dollars in villages;
• Assist in the establishment or expansion of native-businesses; and
• Assist villages in labor export;
The following organizations are eligible to apply under this competitive area:
• Federally recognized Indian Tribes in Alaska;
• Alaska Native villages as defined in the Alaska Native Claims Settlement Act (ANCSA) and/or nonprofit village consortia;
• Incorporated nonprofit Alaska Native multi-purpose community-based organizations;
• Nonprofit Alaska Native Regional Corporations/Associations in Alaska with village specific projects; and
• Nonprofit Native organizations in Alaska with village specific projects.
Although for-profit regional corporations established under ANCSA are not eligible applicants, individual villages and Indian communities are encouraged to use for-profit regional corporations as subcontractors and to collaborate with them in joint-venture projects for promoting social and economic self-sufficiency. ANA encourages the for-profit corporations to assist the villages in developing applications and to participate as subcontractors in a project.
For purposes of this announcement, ANA is using the Bureau of Indian Affairs' list of Federally recognized Indian tribes which includes non-profit Alaska Native community entities and tribal governing bodies (IRA or traditional councils). Other Federally recognized Indian tribes, which are not included on this list (
Further information on eligibility requirements is presented in PART I, ANA Policy and Goals.
Grantees must provide at least 20 percent of the total approved cost of the project;
A proposed project should reflect the purposes of ANA's SEDS policy and goals as described in the Background section of this competitive area. Points are awarded only to applications, which are responsive to this competitive area and these criteria. Proposed projects are reviewed on a competitive basis using the following evaluation criteria:
Further information on requirements is in PART II SEDS, section F, Review Criteria.
The closing date for submission of applications under this competitive area is May 2, 2003. Applicants are reminded that for this May closing, applications for SEDS grants from Alaska Native entities may be submitted under either Competitive Area 1 or Competitive Area 2, but not both. The cover page of the application must clearly indicate the correct competitive area.
Contact the ANA Applicant Help Desk at 202-690-7776 or toll free at 1-877-922-9262 for assistance.
Funding areas in this program announcement are based on the following definitions:
The Administration for Native Americans does not fund:
• Projects that operate indefinitely or require ANA funding on a recurring basis.
• Projects in which a grantee would provide training and/or technical assistance (T/TA) to other tribes or Native American organizations which are otherwise eligible to apply to ANA (third party T/TA). However, the purchase of T/TA by a grantee for its own use or for its members' use (as in the case of a consortium), where T/TA is necessary to carry out project objectives, is acceptable.
• The support of on-going social service delivery programs or the expansion, or continuation, of existing social service delivery programs.
• ANA will not fund the purchase of real property.
• ANA will not fund construction.
• ANA will not fund objectives or activities for the support of core administration of an organization. (exception Alaska-SEDS)
• Costs of fund raising, including financial campaigns, endowment drives, solicitation of gifts and bequests, and similar expenses incurred solely to raise capital or obtain contributions are unallowable under an ANA grant award. However, even though these costs are unallowable for purposes of computing charges to Federal awards, they must be treated as direct costs for purposes of determining indirect cost rates and be allocated their share of the organization's indirect costs if they represent activities which (1) include the salaries of personnel, (2) occupy space, and (3) benefit from the organization's indirect costs.
Projects or activities that generally will not meet the purposes of this announcement are further discussed in Part III, Section G, General Guidance to Applicants, below.
A multi-year project is a project on a single theme that requires more than 17 months to complete and affords the applicant an opportunity to develop and address more complex and in-depth strategies than can be completed in one year. Applicants are encouraged to develop multi-year projects. A multi-year project cannot be a series of unrelated objectives with activities presented in chronological order over a two or three year period. Awards, on a competitive basis, will be for a one-year budget period, although project periods may be for up to three years. Applications for continuation grants funded under these areas beyond the one-year budget period, but within a two-to-three year project period, will be entertained in subsequent years on a non-competitive basis, subject to the availability of funds, satisfactory progress of the grantee and determination that continued funding would be in the best interest of the Government. Therefore, this program announcement does not apply to current ANA grantees with multi-year projects that apply for continuation funding for their second or third year budget periods.
Applicants proposing multi-year projects must fully describe each year's project objectives and activities. Separate Objective Work Plans (OWPs) must be presented for each project year and a separate itemized budget of the Federal and non-Federal costs of the project for each budget period must be included.
Applicants for multi-year projects must justify the entire time-frame of the project (
This program is not covered by Executive Order 12372 or 45 CFR part 100.
One original, signed by an authorized representative, and two copies of the grant application, including all attachments, must be mailed on or before the specific closing date of each ANA competitive area to: U.S. Department of Health and Human Services, Administration for Children and Families, ACYF/Office of Grants Management, 370 L'Enfant Promenade, SW., Mail Stop: Aerospace Center 8th Floor-West, Washington, DC 20447-0002, Attention: Lois B. Hodge, ANA No. 93612-2003.
One original signed by an authorized representative, and two copies of the grant application, including all attachments may be hand delivered. Applications are accepted between the hours of 8 a.m. to 4:30 p.m., Monday through Friday. They are either received on or before the deadline date or postmarked on or before the established closing date at: Administration for
Applicants are encouraged to request a legibly dated receipt from a commercial carrier or U.S. Postal Service as proof of timely mailing.
ACF cannot accommodate transmission of applications by fax or through other electronic media. Therefore, applications transmitted to ACF electronically will not be accepted regardless of date or time of submission and time of receipt.
The ANA Commissioner determines the final action on each grant application received under this program announcement. The Commissioner's funding decision is based on the review panel's analysis of the application, recommendation and comments of ANA staff, State and Federal agencies having contract and grant performance related information, and other parties. The Commissioner makes grant awards consistent with the purpose of the Act, all relevant statutory and regulatory requirements, this program announcement, and the availability of funds.
The Administration for Native Americans funds projects that demonstrate the strongest prospects for addressing the stated purposes of this program announcement. All applicants should consider the following points: incomplete applications and applications that do not conform to this announcement will not be accepted for review. ANA will notify applicants in writing of any such determination.
(a) An incomplete application is one that is:
• Missing Form SF 424
• Does not have an authorized signature on the SF 424. The Standard Form 424 must be signed by an individual authorized (1) to act for the applicant tribe or organization, and (2) to assume the applicant's obligations under the terms and conditions of the grant award, including Native American Program statutory and regulatory requirements.
• Does not include proof of non-profit status, if applicable.
(b) Complete applications that conform to all the requirements of this program announcement are subject to a competitive review and evaluation process (discussed in section G below). Independent review panels consisting of reviewers familiar with American Indian Tribes and Native American communities and organizations, as appropriate, evaluate each application using the published criteria in each competitive area. As a result of the review, a normalized numerical score will be assigned to each application. A normalized score reflects the average score from the reviewers, adjusted to reflect the average score from the panels.
Successful applicants are notified through an official Financial Assistance Award (FAA) document. The FAA will state the amount of Federal funds awarded, the purpose of the grant, the terms and conditions of the grant award, the effective date of the award, the project period, the budget period, and the amount of the non-ACF matching share requirement.
Each tribe, Native American organization, or other eligible applicant may compete for a grant award however, no applicant may receive more than one SEDS grant. The Administration for Native Americans will accept only one application per competitive area from any one applicant. If an eligible applicant sends in two applications for the same competitive area, the one with the earlier postmark will be accepted for review unless the applicant withdraws the earlier application.
Applications for SEDS grants from Alaska Native entities may be submitted under either Competitive Area 1 or Competitive Area 2, but not both at the same time.
Applications submitted by the closing date and verified by the postmark under this program announcement will undergo a pre-review screening to determine that:
• The applicant is eligible in accordance with the Eligible Applicants Section of this announcement; and
• The application is signed and submitted by the deadline explained in section G, Application Due Date, in each competitive area of this announcement.
• The application narrative, forms and materials submitted are adequate to allow the review panel to undertake an in-depth evaluation and the project described is an allowable type. (All required materials and forms are listed in the Grant Application Checklist in the Application Kit).
Applications subjected to the pre-review described above which fail to satisfy one or more of the listed requirements will be ineligible or otherwise excluded from competitive evaluation.
Applications which pass the pre-review will be evaluated and rated by an independent review panel on the basis of the specific evaluation criteria listed in Part II. These criteria are used to evaluate the quality of a proposed project, and to determine the likelihood of its success.
ANA staff cannot respond to requests for information regarding funding decisions prior to the official notification to the applicants. After the Commissioner has made decisions on all applications, unsuccessful applicants are notified in writing within 30 days. The notification will be accompanied by a critique including recommendations for improving the application.
Projects will not be ranked based on general financial need.
Applicants, who are initially excluded from competitive evaluation because of ineligibility, may appeal an ANA decision of applicant ineligibility. Likewise, applicants may also appeal an ANA decision that an applicant's proposed activities are ineligible for funding consideration. The appeals process is stated in the final rule published in the
The following information is provided to assist applicants in developing a competitive application.
• Applications from National Indian and Native American organizations must demonstrate a need for the project, explain how the project was originated, state who the intended beneficiaries will be, and describe how the recipients will actually benefit from the project.
• An application should describe a clear relationship between the proposed project, the social and economic development strategy and the community's long-range goals or plan.
• The project application, including the Objective Work Plans, must clearly identify in measurable terms the expected results, benefits or outcomes of the proposed project, and the positive or continuing impact that the project will have on the community.
• Supporting documentation, including letters of support, if available, or other specific testimonies from concerned interests other than the applicant should be included to demonstrate support for the feasibility
• Applicants proposing an Economic Development project should address the project's feasibility. A business plan describing the project's feasibility and approach for the implementation and marketing of the business is recommended.
• Applications, which were not funded under a previous closing date and revised for resubmission, should refer to the changes, or reasons for not making changes, in their current application.
Application Kit (OMB# 0980-0204, expires April 30, 2003). The Application Kit contains the necessary forms and instructions to apply for a grant under this program announcement. Application kits may be obtained from ANA training and technical assistance providers. It is strongly encouraged that the applicants follow the ANA application kit to develop an application. The Kit provides practical information and helpful suggestions, and is an aid to help applicants prepare ANA applications.
Training and Technical Assistance (T/TA): ANA employs contractors to provide short-term training and technical assistance to eligible applicants. T/TA is available under these contracts for a wide range of needs however, the contractors are not authorized to write applications. The T/TA is provided at no cost to the eligible entity. To obtain an application kit and/or, training and technical assistance, applicants are encouraged to contact the T/TA provider within the appropriate service area. To locate the T/TA provider currently serving the region you are located in you may call the ANA Help Desk at 1-877-922-9262; or visit the ANA Web site at: http://www.acf.hhs.gov/programs/ana/.
• The Cover Page (included in the Kit) should be the first page of an application, followed by the one-page abstract.
• The SF 424, Block 13, must specify the entire project period length requested and not just the length of the first budget period. Should the application narrative propose one length of project period and the SF 424 specify a conflicting length of project period, ANA will consider the project period specified on the SF 424 as the official request.
• The SF 424, line 15a, must specify the Federal funds requested for the first Budget Period only and not the entire Project Period.
• For purposes of developing an application, applicants should plan for a project start date approximately 120 days after the closing deadline date.
• The Administration for Native Americans will not fund essentially identical projects serving the same constituency.
• If other Federal funding sources could support a project, the applicant should fully explain its reasons for not pursuing other Federal funds for the project.
• The Administration for Native Americans will critically evaluate applications in which the acquisition of equipment is a major component of the Federal share of the budget. During negotiation, ANA may delete such expenditures from the budget of an otherwise approved application, if not fully justified by the applicant and deemed not appropriate to the needs of the project.
• The Administration for Native Americans recommends that the pages of the application be numbered sequentially and that a table of contents is provided. Simple tabbing of the criterion sections of the application is also helpful.
• Applicants may propose a 17-month budget and project period. However, the budget period for the first year of a multi-year project may only be 12 months.
• Projects that request funds for feasibility studies, business plans, marketing plans or written materials, such as manuals, that are not an essential part of the applicant's long-range development plan. As an objective of a larger project, business plans are allowable. ANA expects written evidence of the solid investment of time and consideration on the part of the applicant with regard to the development of business plans. Business plans should be developed based on market analysis and feasibility studies regarding the potential success to the business prior to the submission of the application.
• Core administration functions, or other activities, which essentially support only the applicant's on-going administrative functions. However, under Competitive Area 2, ANA will consider funding core administrative capacity building projects at the village government level if the village does not have governing systems in place.
• Project goals, which are not responsive to one or more of the funding competitive areas.
• Proposals from consortia of tribes that are not specific with regard to support from, and roles of, member tribes. ANA expects an application from a consortium to have goals and objectives that will create positive impacts and outcomes in the communities of its members. Proposals from consortia of tribes should have individual objectives, which are related to the larger goal of the proposed project. Project objectives may be tailored to each consortia member, but within the context of a common goal for the consortia. In situations where both a consortia of tribes and the tribes who belong to the consortia receive ANA funding, ANA expects that consortia groups will not seek funding that duplicates activities being conducted by their member tribes.
• Projects that will not be completed, self-sustaining, or supported by other than ANA funds, at the end of the project period. All projects funded by ANA must be completed, or self-sustaining or supported with other than ANA funds at the end of the project period. Completed means that the project ANA funded is finished, and the desired outcome(s) have been attained. Self-sustaining means that a project will continue without outside resources. Supported by other than ANA funds means that the project will continue beyond the ANA project period, but will be supported by funds other than ANA's.
• ANA will not fund investment capital for purchase or takeover of an existing business, for purchase or acquisition of a franchise, or for purchase of stock or other similar investment instruments.
• Renovation or alteration unless it is essential for the project.
• Projects originated and designed by consultants whom provide a major role for themselves in the proposed project and are not members of the applicant organization, tribe or village.
Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, the Department is required to submit to the Office of Management and Budget (OMB) for review and approval any reporting and record keeping requirements in regulations including program announcements. This program announcement does not contain information collection requirements beyond those approved for ANA grant applications under the Program Narrative Statement by OMB approval number 0980-0204.
Mailed applications shall be considered as meeting an announced deadline if they are either received on or before the deadline date or sent on or before the deadline date and received by ACF in time for the independent review.
Applicants are encouraged to request a legibly dated U.S. Postal Service postmark or to obtain a legibly dated receipt from a commercial carrier or the U.S. Postal Service. Private metered postmarks shall not be acceptable as proof of timely mailing.
Applications hand carried by applicants, applicant couriers, or by overnight/express mail couriers shall be considered as meeting an announced deadline if they are received on or before the deadline date or postmarked on or before the deadline date. Applicants are encouraged that express/overnight mail services do not always deliver as agreed.
No additional material will be accepted, or added to an application, unless it is postmarked by the deadline date. Applications and related materials postmarked after the closing date are classified as late.
Applications, which do not meet the Deadline criteria, are considered late applications. ACF shall notify each late applicant that its application will not be reviewed in the current competition.
The Administration for Children and Families may extend an application deadline for applicants affected by acts of God such as floods and hurricanes, or when there is a widespread disruption of the mails. A determination to extend or waive deadline requirements rests with the Chief Grants Management Officer.
Securities and Exchange Commission (the “Commission”).
Proposed rule.
The Commission is proposing for comment amendments to the formula for determination of customer reserve requirements of broker-dealers under the Securities Exchange Act of 1934 in response to the anticipated trading of security futures products. The proposed amendments would permit a broker-dealer to include margin related to security futures products written, purchased or sold in customer securities accounts required and on deposit with a registered clearing agency or a derivatives clearing organization as a debit item in calculating its customer reserve requirement.
Comments must be received on or before October 23, 2002.
To help us process and review your comments more efficiently, comments should be sent by one method only.
Comments should be submitted in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Comments also may be submitted electronically at the following e-mail address:
Michael A. Macchiaroli, Associate Director, at (202) 942-0132; Thomas K. McGowan, Assistant Director, at (202) 942-4886; Bonnie L. Gauch, Attorney, at (202) 942-0765; or Matthew B. Comstock, Attorney, at (202) 942-0156, Division of Market Regulation, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-1001.
The Commission is proposing amendments to Rule 15c3-3a.
The CFMA, which became law on December 21, 2000, amended the Commodity Exchange Act (“CEA”) and the Securities Exchange Act of 1934 (“Exchange Act”) to permit the trading of single stock and narrow-based index futures (“securities futures”) and established a framework for the regulation of security futures products (“SFPs”).
A person who holds an SFP in a securities account would be a customer under Exchange Act Rule 15c3-3.
Rule 15c3-3 seeks to inhibit a broker-dealer's use of customer assets in its business by prohibiting the use of those assets except for designated purposes.
A clearing and carrying broker-dealer
(i) enables each party to the agreement, contract, or transaction to substitute, through novation or otherwise, the credit of the derivatives clearing organization for the credit of the parties;
(ii) arranges or provides, on a multilateral basis, for the settlement or netting of obligations resulting from such agreements, contracts, or transactions executed by participants in the derivatives clearing organization; or
(iii) otherwise provides clearing services or arrangements that mutualize or transfer among participants in the derivatives clearing organization the credit risk arising from such agreements, contracts, or transactions executed by the participants.
As part of the clearance and settlement process for customer SFP transactions, a Clearing Agency or DCO, pursuant to its rules, will require the broker-dealer carrying customer SFP accounts to post margin at the Clearing Agency or DCO. The Clearing Agency or DCO collects this margin to protect itself if a broker-dealer defaults on its obligations related to SFPs. The broker-dealer, in turn, must collect margin from the customer engaging in the SFP transaction.
The Commission proposes to amend Rule 15c3-3a to delineate the treatment of customer margin deposited with a Clearing Agency or DCO related to SFPs for Reserve Formula purposes. Specifically, the Commission proposes to redesignate Item 14 as Item 15, add a new Item 14 and new Note G, amend Item B and amend newly redesignated Item 15, as described below. Generally, these proposed changes would permit a broker-dealer to include the amount of customer SFP margin required and on deposit at a Clearing Agency or DCO as a debit in the Reserve Formula.
Proposed new Item 14 would permit the broker-dealer to include a debit in its Reserve Formula computation to the extent of customer SFP margin required and on deposit with a Clearing Agency or a DCO, subject to the conditions in proposed Note G. Recordation of the debit reflects the broker-dealer's use of firm assets for customer purposes.
Subparagraph (b) of proposed Note G would permit a broker-dealer to include a debit for customer SFP margin required and on deposit at a Clearing Agency or DCO under Item 14 only if it uses a Clearing Agency or DCO that meets specified criteria. Under subparagraph (b)(1) of proposed Note G, a broker-dealer could include customer SFP margin as a debit item only if the Clearing Agency or DCO has sufficient financial resources, as set forth in the proposed rule. In particular, a broker-dealer could include this debit only if the registered Clearing Agency or DCO either: (1) Maintains the highest investment-grade rating from a nationally recognized statistical rating organization (“NRSRO”), or (2) maintains security deposits from clearing members in connection with regulated options or futures transactions of least $500 million and retains additional assessment power over member firms of at least $1.5 billion.
These standards for financial resources are consistent with the customer protection function of Rule 15c3-3 and are necessary because of the unsecured nature of the debits. Requiring the highest investment-grade rating from an NRSRO provides the strongest protection against losses to margin deposited at a Clearing Agency or DCO, regardless of changing market conditions. With a lower credit rating, a Clearing Agency or DCO may not have the financial ability to meet its obligations to broker-dealers during times of market stress, which may compromise investor protection. Similarly, setting the security deposit level at $500 million and the assessment power at $1.5 billion should help to ensure that a Clearing Agency or DCO maintains liquidity and financial resources sufficient to protect customer margin on deposit. The Commission set the rating requirement, the amount of the security deposit and the assessment power at these levels based upon the Commission staff's experience and their discussions with the industry.
The term “security deposits” in subparagraph (b)(1) of Note G refers to a general fund consisting of cash or securities held by a Clearing Agency or DCO. The Clearing Agency or DCO may use this fund to secure its general obligations to creditors. The security deposit is in addition to, and separate from, performance bonds and margin deposited with the Clearing Agency or DCO. The term “assessment power” included in the proposed rule relates to a Clearing Agency or DCO's ability, under its rules, to assess its members in excess of amounts required for a security deposit to meet emergency funding needs.
Under subparagraph (b)(2) of proposed Note G, a broker-dealer could include customer SFP margin as a debit in the Reserve Formula only if the Clearing Agency or DCO at which the margin is deposited in turn deposits the margin in a bank, as that term is defined under section 3(a)(6) of the Exchange Act. Furthermore, a broker-dealer could include the debit only if the Clearing Agency or DCO with which the customer SFP margin is deposited obtains certification from the bank, in writing, that the bank, or any person claiming through the bank, cannot place a lien against, or otherwise attach, the customer margin. The purpose of these conditions is to prevent the commingling of customer property with non-customer property and, thus, help to ensure that customer property is readily available to each customer if a Clearing Agency or DCO fails.
Furthermore, a broker-dealer could include a debit item in the Reserve Formula for customer SFP margin required and on deposit with a Clearing Agency or DCO only if that clearing house, in compliance with Rule 15c3-
Under subparagraph (b)(4) of proposed Note G, a broker-dealer could include a debit in the Reserve Formula for customer SFP margin deposited at a DCO not otherwise registered with the Commission only if the DCO has provided an undertaking to the Commission. In the undertaking, the DCO would agree to examination by the Commission for compliance with proposed subparagraphs (b)(1) through (b)(3) of proposed Note G. With the undertaking, the Commission is assured of having the ability to examine a DCO to determine if customer property is protected in the manner that Rule 15c3-3 requires.
The Commission also proposes other, related amendments to Rule 15c3-3a. First, based upon existing criteria in Note F, proposed subparagraph (a) of Note G would harmonize the type of collateral acceptable for deposit as customer SFP margin for purposes of proposed Item 14 with the type of collateral acceptable for deposit as customer options margin under Note F for purposes of Item 13. Note F currently permits inclusion of a debit in the Reserve Formula under Item 13 only if a broker-dealer deposits cash, proprietary qualified securities or letters of credit with OCC as customer options margin.
Second, the Commission proposes to amend Note B to extend to SFPs the same Reserve Formula treatment currently afforded a letter of credit collateralized by customer securities deposited with OCC for options margin purposes. Under current Note B to the Reserve Formula, a broker-dealer that posts a letter of credit collateralized by customer securities at OCC as customer options margin must include the amount of that letter of credit as a credit item in its Reserve Formula computation, to the extent of the margin requirement. Recordation of the credit reflects the broker-dealer's use of customer assets to secure the letter of credit. A firm must include both the credit under Note B and the debit under Item 13 to set the customer reserve requirement at the appropriate level.
Similarly, the proposed amendment to Note B would require a broker-dealer to include a letter of credit collateralized by customer securities deposited with a Clearing Agency or DCO as customer SFP margin as a credit item in its Reserve Formula calculation. As with options margin, inclusion of the credit reflects use of customer assets to secure the letter of credit.
Third, the Commission proposes to amend Rule 15c3-3a to redesignate current Item 14 as proposed Item 15. Proposed Item 15 would be amended to include proposed Item 14 relating to customer SFP margin in the computation of debits under the Reserve Formula.
We invite interested persons to submit written comments on all aspects of the proposed amendments, in addition to the specific requests for comments included in the release. Further, we invite comment on other matters that might have an effect on the proposals contained in the release, including any competitive impact.
We invite comments on proposed Note G to the Reserve Formula. A broker-dealer may include customer SFP margin required and on deposit at a Clearing Agency or DCO as a debit in the Reserve Formula only if the clearing house: (1) Either maintains the highest investment-grade rating from an NRSRO, or (2) maintains security deposits from clearing members of at least $500 million and assessment power over member firms of $1.5 billion. Are these conditions necessary to help ensure the creditworthiness of those entities? Should we consider different or additional criteria to determine creditworthiness?
We also invite comment on subparagraph (b)(2) of proposed Note G. Specifically, is the requirement that customer margin be deposited in a bank as defined in section 3(a)(6) of the Act a sufficient means to segregate customer margin from non-customer property? Should we permit a broker-dealer to include customer SFP margin as a debit in the Reserve Formula if a Clearing Agency or DCO holds that margin in places other than in a bank as defined under section 3(a)(6) of the Act? Should customer SFP margin represented by securities be held in a location different from customer SFP margin represented by cash?
Furthermore, we invite comment on subparagraph (b)(3) of proposed Note G. To include a debit in the Reserve Formula for customer SFP margin, a broker-dealer must use a Clearing Agency or DCO that establishes, documents and maintains: (1) A system to safeguard the handling, transfer and delivery of cash and securities; (2) provisions for fidelity bond coverage of its employees and agents; and (3) provisions for periodic examination by independent public accountants. Would these conditions protect customer assets that a broker-dealer deposits at a Clearing Agency or DCO by aiding the clearing house in addressing internal risk? Should we consider other or additional tools to measure this risk? Are any of these criteria unnecessary?
We also invite comment on the requirement in proposed subparagraph (b)(4) that a broker-dealer obtain an undertaking from a DCO not otherwise registered with the Commission. The undertaking will clarify that representatives of, or designees to, the Commission may examine the DCO for compliance with the requirements of Rule 15c3-3a. Is the undertaking an appropriate means to help protect customers under Rule 15c3-3?
Certain provisions of the proposed amendments to Rule 15c3-3a contain “collection of information requirements” within the meaning of the Paperwork Reduction Act of 1995.
As discussed, the proposed amendments to Rule 15c3-3a would permit a broker-dealer that clears and carries customer SFPs in securities accounts on behalf of customers to include certain credits and debits in its Reserve Formula calculation relating to SFP margin required and on deposit with a Clearing Agency or a DCO. The amendments would permit a broker-dealer to include as a debit the amount of customer SFP margin required and on deposit with a Clearing Agency or DCO only if that entity: maintains sufficient liquid capital; deposits customer SFP margin in a Reserve Bank Account to ensure the ready availability of those funds; and maintains a system for safeguarding the handling, transfer and delivery of SFPs. In addition, the amendments require a broker-dealer to obtain from a DCO not otherwise registered with the Commission an executed undertaking in which the DCO agrees to examination by the Commission to monitor the DCO's compliance with the applicable conditions set forth in the amendments to Rule 15c3-3a.
The Commission, self-regulatory organizations (“SROs”) and other securities regulatory authorities would use the information collected under the proposed amendments to Rule 15c3-3a to determine whether a broker-dealer is in compliance with Rule 15c3-3 and with other, related customer protection requirements. The Commission, SROs and other securities regulatory authorities also would use this information to monitor whether a Clearing Agency or DCO properly has safeguarded customer funds.
The proposed amendments to Rule 15c3-3a would apply only to those broker-dealers that clear and carry SFPs in securities accounts for the benefit of customers. Moreover, these provisions would apply only to broker-dealers that carry customer funds, securities or property and do not claim an exemption from Rule 15c3-3a. As of October 31, 2001, there were 412 clearing firms. As of March 31, 2001, 90 broker-dealers were registered with the CFTC as FCMs, 63 of which are clearing and carrying firms. Based upon conversations between the Commission and industry representatives about the number of firms that may conduct SFP business, the staff estimates that the number of firms likely to engage in this business, in addition to the broker-dealers already registered with the CFTC as FCMs, is 10% of the clearing and carry firms not presently registered with the CFTC.
Under the proposed amendments to add new Item 14, amend and redesignate Item 15, amend Note B and add new Note G to Rule 15c3-3a, a broker-dealer that clears and carries SFPs in securities accounts for the benefit of customers may include customer SFP margin required and on deposit at a Clearing Agency or DCO as a debit item in the Reserve Formula. The Commission staff estimates that broker-dealers that engage in an SFP business will spend approximately 490 hours (or 5 hours each x 98 clearing broker-dealers) to modify software to accommodate changes in the calculation of the Reserve Formula pursuant to the proposed amendment to Note B and proposed new Item 14, and amended and redesignated Item 15. This will be a one-time burden. The Commission staff also estimates that broker-dealers will spend approximately 24.5 hours per week (or 0.25 hours × 98 clearing broker-dealers), for a yearly total of 1,274 hours (24.5 hours × 52 weeks), to verify and input the information required under the proposed amendment to Note B and proposed new Item 14.
Furthermore, broker-dealers that clear and settle SFP transactions through DCOs not otherwise registered with the Commission would spend time verify that the DCO has made the undertaking to the Commission under subparagraph (b) to Note G. The Commission staff estimates these broker-dealers will spend 24.5 hours (or 0.25 hours x 98 clearing broker-dealers) to obtain the undertakings. This will be a one-time burden unless a broker-dealer changes clearing DCOs.
The collection of information is mandatory if a broker-dealer clears and carries SFPs in securities accounts on behalf of customers and wants to record customer margin required and on deposit with a Clearing Agency or DCO as a debit item in its Reserve Formula calculation.
The collection of information under the proposed amendments to Rule 15c3-3a would be provided to the Commission and SROs, but not subject to public availability.
Rule 17a-4(b)(8)(xiii) requires broker-dealers to preserve information related to possession and control requirements under Rule 15c3-3 for three years, the first two years in an accessible place.
Under 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information would have practical utility;
(ii) Evaluate the accuracy of the Commission's estimate of the burden of the proposed collection of information;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those required to respond, including through the use of automated collection techniques or other forms of information technology.
Persons who desire to submit comments on the collection of information requirements should direct them to the OMB, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and should also send a copy of their comments to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609, and refer to File No. S7-34-02. OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication of this document in the
Passage of the CFMA in December of 2000 permitted the trading of SFPs and established a framework for the Commission and CFTC to regulate SFPs jointly. This framework was necessary because the CFMA defined an SFP to be both a security and a future
The proposed amendments to Rule 15c3-3a would enhance the customer protection function of Rule 15c3-3. In particular, proposed Note G would help to protect customer property by requiring that a broker-dealer, if it wishes to include customer SFP margin as a debit item in the Reserve Formula, use only a Clearing Agency or DCO that has significant financial resources to clear and settle its customer SFP transactions. Proposed Note G would further protect customer property by conditioning the debit treatment on requirement that a broker-dealer use only a Clearing Agency or DCO that deposits customer SFP margin in a Reserve Bank Account that is for the exclusive benefit of SFP customers. The Reserve Bank Account would protect customer property from being commingled with non-customer property. The internal risk management system contemplated under proposed Note G would protect a broker-dealer and its customers by helping its Clearing Agency or DCO to monitor whether customer margin is protected from both default and use in other areas of the entities' business. These proposed enhanced customer protections would make it less likely that there would be a need to use the SIPC fund.
Proposed amended Note B, new Item 14 and new Note G are designed to help a broker-dealer that clears and carries SFPs in securities accounts on behalf of customers to calculate the appropriate customer reserve requirement under the Reserve Formula. Without amended Note B, a broker-dealer's Reserve Formula computation would not include a credit to reflect the firm's use of customer assets to secure a letter of credit, which is then used as customer SFP margin deposit with a Clearing Agency or DCO. Similarly, without proposed Item 14 and Note G, a broker-dealer's Reserve Formula computation would not include a debit to reflect the firm's use of assets for customer purposes to meet its customer SFP margin deposit requirements. In that case, a broker-dealer's regulatory costs would be higher.
Proposed amended Note B, new Item 14 and new Note G would permit a broker-dealer to include the amount of customer SFP margin required and on deposit at a Clearing Agency or DCO as a debit in the Reserve Formula. Without the proposed changes to Rule15c3-3a, the broker-dealer would be required to fund its customer reserve requirement at least in part with proprietary assets, which would require the broker-dealer to maintain two reserves to cover the same customer property, one reserve in the Reserve Bank Account and the second with the Clearing Agency or DCO. As a result, the costs of engaging in a customer SFP business would increase. Thus, proposed amended Note B, new Item 14 and new Note G lower the costs of clearing and carrying SFPs in customer securities accounts and potentially spur the growth of the SFP markets.
The amendments were drafted to reduce the burden of the Reserve Formula on broker-dealers by allowing a broker-dealer to include the amount of customer SFP margin required and on deposit at a Clearing Agency or DCO as a debit in the Reserve Formula. This treatment would permit a broker-dealer that clears and carries SFPs in securities accounts on behalf of customers to calculate the appropriate customer reserve requirement.
Proposed amended Note B would require broker-dealers to include certain customer SFP margin required and on deposit with a Clearing Agency or DCO as a credit item in the Reserve Formula. Proposed new Item 14 would permit broker-dealers to include customer SFP margin required and on deposit with a Registered Clearing Agency or DCO as a debit item. A broker-dealer would incur a one-time cost to re-program software that performs Reserve Formula calculations to include proposed Note B and Item 14 in those calculations. Based on the paperwork costs described above, the Commission staff preliminarily estimates total reprogramming costs would be $25,320.
Under proposed Note B and proposed Item 14, the broker-dealer also would incur minimal, annual costs to verify and input debit item amounts into its customer reserve requirement calculation. We estimate the yearly paperwork burden to be 1,274 hours to complete these tasks. Therefore, the Commission staff preliminarily estimates the annual paperwork cost to broker-dealers would be $53,508 (1274 hours × $42.00 per hour for an operations specialist).
Moreover, a broker-dealer that clears SFP transactions through a DCO would incur costs to obtain an undertaking from the DCO as proposed Note G requires. The Commission staff estimates the paperwork cost to the broker-dealer of obtaining the undertaking required under Note G would be $3,822.
Section 3(f) of the Exchange Act
Furthermore, the proposed amendments to Rule 15c3-3a are designed to help a broker-dealer avoid depositing proprietary assets unnecessarily in the Reserve Bank Account to meet its obligations under the Reserve Formula. We preliminarily believe that the proposals would permit broker-dealers to direct a greater portion of their assets to their businesses and, therefore, promote capital formation.
As discussed, the proposed amendments to Rule 15c3-3a would permit a broker-dealer that clears and carries SFPs in securities accounts on behalf of customers to include customer SFP margin required and on deposit with a Clearing Agency or DCO as a debit item for purposes of calculating its customer reserve requirement under the Reserve Formula. Furthermore, we note that the proposed amendments would permit this treatment regardless of whether the broker-dealer clears customer SFP transactions through a Clearing Agency or DCO, provided the Clearing Agency or DCO meets certain minimum financial standards and segregates customer SFP margin funds. Thus, we preliminarily believe that the proposed amendments to Rule 15c3-3a do not impose any competitive burden that is not necessary and appropriate in furtherance of the purposes of the Exchange Act.
The Commission requests comment on whether the proposed amendments are expected to promote efficiency, competition, and capital formation.
The Commission hereby certifies, pursuant to 5 U.S.C. § 605(b), that the proposed amendments to Rule 15c3-3a, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed amendments to Rule 15c3-3a would apply only to broker-dealers that clear and carry SFPs in securities accounts for the benefit of customers. The Commission's Office of Economic Analysis has determined that as of March 31, 2001, 90 broker-dealers were also registered with the CFTC as FCMs. None of those broker-dealers is a small entity.
The proposed amendments to Rule 15c3-3a would affect only those broker-dealers that clear and carry customer SFP transactions in securities accounts for the benefit of customers. The proposed amendment to Note B, proposed new Item 14 and proposed new Note G would permit a broker-dealer that clears and carries SFPs in customer securities accounts to include customer SFP margin required and on deposit with a Clearing Agency or DCO as a debit item for Reserve Formula purposes. As noted, these proposed amendments would allow a broker-dealer to calculate the appropriate level of the customer reserve requirement under the Reserve Formula. Thus, the proposed amendments to Rule 15c3-3, if adopted, actually would reduce the burden these entities face in meeting the customer protection requirements of the Exchange Act. Accordingly, we do not believe that the proposed amendments to Exhibit A to Exchange Act Rule 15c3-3 would have a significant economic impact on a substantial number of small entities.
We encourage written comments regarding this certification. We request that commenters describe the nature of any impact on small entities and provide empirical data to support the extent of the impact.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, or “SBREFA,''
• An annual effect on the economy of $100 million or more (either in the form of an increase or a decrease);
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effect on competition, investment or innovation.
If a rule is “major,” its effectiveness will generally be delayed for 60 days pending Congressional review. We request comment on the potential impact of the proposed regulation on the economy on an annual basis. Commenters are requested to provide empirical data and other factual support for their view to the extent possible.
The Commission is proposing amendments to Rule 15c3-3a under the Exchange Act pursuant to the authority conferred by the Exchange Act, including Sections 15 and 17.
Brokers, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, the Commission hereby proposes that Title 17, Chapter II of the Code of Federal Regulation be amended as follows.
1. The authority citation for Part 240 continues to read, in part, as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-l, 78k, 78k-1, 78
2. Section 240.15c3-3a is amended by:
a. In the chart, redesignating Item No. 14 as Item No. 15;
b. Adding new Item No. 14;
c. Revising newly redesignated Item No. 15;
d. Revising Note B; and
e. Adding Note G
The revisions and additions read as follows:
Item 2 shall include the amount of options-related or security futures product-related Letters of Credit obtained by a member of a registered clearing agency or a derivatives clearing organization which are collateralized by customers' securities, to the extent of the member's margin requirement at the registered clearing agency or derivatives clearing organization.
(a) Item 14 shall include the amount of margin required and on deposit with a clearing agency registered with the Commission under section 17A of the Act (15 U.S.C. 17q-1) or a derivatives clearing organization registered with the Commodity Futures Trading Commission under section 5b of the Commodity Exchange Act (7 U.S.C. 5b) for customer accounts to the extent that the margin is represented by cash, proprietary qualified securities, and letters of credit collateralized by customers' securities.
(b) Item 14 shall apply only if:
(1) The registered clearing agency or derivatives clearing organization maintains:
(i) The highest investment-grade rating from a nationally recognized statistical rating organization; or
(ii) Security deposits from clearing members in connection with regulated options or futures transactions of at least $500 million and retains assessment power over member firms of at least $1.5 billion; and
(2) The registered clearing agency or derivatives clearing organization deposits customer margin in a bank as defined in section 3(a)(6) of the Act (15 U.S.C. 78c(a)(6)) in an account designated as a “Special Account for the Exclusive Benefit of Securities Customers.” The bank must acknowledge in writing that the customer margin on deposit is not subject to any right, charge, security interest, lien or claim of any kind in favor of the bank or any person claiming through the bank; and
(3) The registered clearing agency or derivatives clearing organization establishes, documents, and maintains:
(i) Safeguards in the handling, transfer and delivery of cash and securities;
(ii) Provisions for fidelity bond coverage of the employees and agents of the registered clearing organization or derivatives clearing organization or other subsidiary organization; and
(iii) Provisions for periodic examination by independent public accountants; and
(iv) The derivatives clearing organization, if it is not otherwise registered with the Commission, has provided the following undertaking to the Commission:
With respect to the clearance and settlement of the customer security futures products of [BD], the undersigned hereby undertakes to permit representatives or designees of the Securities and Exchange Commission to examine it for compliance with the requirements set forth in Rule 15c3-3a, Note G. (b)(1) through (3) at any time or from time to time during business hours, and promptly to furnish to the Commission or its designees all information that the Commission reasonably deems necessary to determine that compliance.
By the Commission.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations on the definition of private activity bonds applicable to tax-exempt bonds issued by state and local governments for output facilities. These regulations affect issuers of tax-exempt bonds and provide needed guidance for applying the private activity bond restrictions to output facilities.
Rose M. Weber (202) 622-3980 (not a toll-free number).
This document amends the Income Tax Regulations (26 CFR part 1) under section 141 by providing special rules for tax-exempt bonds issued for output facilities. On January 18, 2001, temporary regulations (TD 8941) (the temporary regulations) were published in the
The temporary regulations contain a benefits and burdens test for determining whether the purchase of output of an output facility is taken into account under the private business tests. In particular, the temporary regulations provide that the purchase by a nongovernmental person of available output of an output facility is taken into account under the private business tests if it has the effect of transferring substantial benefits of owning the facility and substantial burdens of paying the debt service on bonds used to finance the facility. Under this test, an output contract transfers substantial benefits of owning a facility if it gives the purchaser (directly or indirectly) rights to capacity of the facility on a basis that is preferential to the rights of the general public. An output contract transfers substantial burdens of paying debt service under this test to the extent that the issuer reasonably expects that it is substantially certain that payments will be made under the terms of the contract (disregarding default, insolvency, or other similar circumstances).
Commentators were generally critical of the benefits and burdens test in the temporary regulations. Some commentators stated that preferential rights is not an adequate concept for determining whether substantial benefits of ownership are passed through an output contract. Some commentators suggested that a substantial certainty of payment by a purchaser does not necessarily constitute a transfer of substantial burdens of paying debt service. Other commentators recommended that any sale of output by a municipal utility outside of its traditional service territory should result in private business use.
The final regulations amend the benefits and burdens test. Under the revised provision, an output contract is taken into account under the private business tests if it has the effect of transferring to a nongovernmental person the benefits of owning the facility and the burdens of paying the debt service on bonds issued to finance the facility. This test is met if a nongovernmental person agrees to purchase available output of a facility pursuant to (1) a take contract (that is, a contract under which the purchaser agrees to pay for the output if the facility is capable of providing it), or (2) a take or pay contract (that is, a contract under which the purchaser agrees to pay for the output, whether or not the facility is capable of providing it). In addition, as discussed below, certain requirements contracts may satisfy the benefits and burdens test. The final regulations define
The temporary regulations provide that a requirements contract under which a nongovernmental person agrees to purchase all or part of its output requirements is taken into account under the private business tests to the extent that, based on all the facts and circumstances, it meets the benefits and burdens test in those regulations. Relevant factors in making this determination include whether the purchaser's customer base has significant indicators of stability, whether the contract covers historical (rather than only projected) requirements, and whether the purchaser agrees not to construct or acquire other resources. A requirements contract that is not a sale at wholesale (a retail requirements contract) generally does not meet the benefits and burdens test in the temporary regulations, except to the extent it obligates the purchaser to have requirements or to make payments that are not contingent on its requirements. Reasonable and customary damages and termination provisions do not cause a requirements contract to meet the benefits and burdens test under the temporary regulations.
Most commentators were critical of the treatment of requirements contracts in the temporary regulations. Some commentators stated that the factors for analyzing requirements contracts are not administrable and do not necessarily indicate whether a purchaser has acquired substantial benefits of ownership or burdens of debt service. Other commentators requested that the regulations be amended to specify that requirements contracts with power marketers or with purchasers located outside the service territory of a municipal utility result in private business use.
The final regulations provide two rules under which a requirements contract may satisfy the benefits and burdens test. First, a requirements contract (retail or wholesale) generally meets the benefits and burdens test to the extent that it contains contractual terms that obligate the purchaser to
Under the temporary regulations, payments under an output contract that is pledged as security for an issue are taken into account under the private business tests even if they are not substantially certain to be made. A contract is pledged for this purpose only if the bond documents prohibit substantial amendments of the contract without the consent of bondholders.
Some commentators suggested that this provision adds undue complexity and is unnecessary in light of the benefits and burdens test. The final regulations adopt this comment and delete the provision.
The temporary regulations provide that an output contract is not taken into account under the private business tests if the average annual payments under the contract that are substantially certain to be made do not exceed 0.5 percent of the average annual debt service on all outstanding tax-exempt bonds issued to finance the facility, determined as of the effective date of the contract.
Some commentators recommended that the 0.5 percent threshold be increased to one percent, and that the exception refer to guaranteed minimum, rather than substantially certain, payments. Other commentators recommended that the exception be deleted. The final regulations increase the 0.5 percent threshold to one percent and specify that all payments to be made under the contract are taken into account.
The temporary regulations contain an exception under which an output contract with a nongovernmental person is not taken into account under the private business tests if: (1) The term of the contract, including all renewal options, does not exceed one year; (2) the compensation under the contract is based on generally applicable and uniformly applied rates or represents a negotiated, fair market price; and (3) the facility is not financed for a principal purpose of serving that nongovernmental person.
Most commentators recommended that this exception be expanded to permit contracts of a longer duration. These commentators stated that longer-term contracts are required in order to transfer benefits of ownership and burdens of debt service with respect to an output facility. Other commentators suggested that the exception should be narrower in scope. These commentators recommended that the exception take into account the entire anticipated period of ongoing sales, irrespective of the term of any contracts or renewal options.
The final regulations retain and amend the exception for short-term output sales. In order to exclude from the private business tests output contracts that do not transfer the benefits of ownership and the burdens of debt service, the final regulations increase the one-year period to three years.
The temporary regulations provide that certain agreements to swap or pool output do not result in private business use to the extent that: (1) The swapped output is reasonably expected to be approximately equal in value, determined over periods of one year or less; and (2) the agreement is entered into for a qualifying purpose, such as enhancing reliability.
Some commentators recommended that the exception be expanded to apply to transactions in which the value of the swapped output is not approximately equal, but the governmental person is a net importer of power. The final regulations do not adopt this recommendation because such transactions may not in substance constitute power swaps, and are more appropriately analyzed under the benefits and burdens test.
The final regulations retain the exception for swapping and pooling arrangements, but increase the one-year period to three years.
The temporary regulations provide that, if an issuer reasonably expects on the issue date that persons that are treated as private business users will purchase more than 20 percent of the actual output of the facility, the Commissioner may determine the number of units produced or to be produced by the facility in one year on a reasonable basis other than by reference to nameplate capacity, such as the average expected annual output of the facility.
Commentators suggested that the 20 percent threshold be increased to 30 percent in order to be consistent with longstanding IRS ruling positions that pre-dated the issuance of regulations under section 141 for output facilities (
The temporary regulations contain an exception to private business use for certain purchases of output of an electric generating facility if: (1) The contract term does not exceed three years; (2) the issuer does not utilize tax-exempt financing to increase the generating capacity of its system by more than three percent during the contract term; (3) the governmental owner offers certain non-discriminatory, open access transmission tariffs; (4) all of the output sold is attributable to excess capacity resulting from the offer of the open access tariffs; and (5) all payments received by the governmental owner under the contract (other than the portion allocable to operation and maintenance expenses described in § 1.141-4(c)(2)(C)) are applied as promptly as is reasonably practical to redeem tax-exempt bonds in a manner consistent with § 1.141-12.
Some commentators stated that this exception contains overly restrictive requirements that significantly limit its usefulness. These commentators recommended that the exception be expanded to apply to: (1) Sales in anticipation of open access or retail competition; (2) sales to native load customers if open access is in effect or reasonably expected to commence within a reasonable time period; and (3) contracts with terms in excess of three
These suggested changes raise a number of administrability issues. For example, in many cases it may be difficult to predict the nature and extent of an issuer's future participation in open access or to determine whether a particular sale is made in anticipation of open access. In light of these administrability concerns and the expansion of the short-term contract exception to three years as described above, the final regulations delete the special exception for excess capacity-related sales.
Under the temporary regulations, the use of electric generation, transmission or distribution facilities by a nongovernmental person may result in private business use under the benefits and burdens test. In addition, the use of electric facilities under arrangements other than output contracts may constitute private business use under the general rules of § 1.141-3.
The temporary regulations do not contain specific provisions for determining whether the use of electric output facilities by a regional transmission organization (RTO), independent system operator (ISO) or other independent transmission operator results in private business use. However, the preamble to the temporary regulations states that the rules for management contracts under section 141, including Revenue Procedure 97-13 (1997-1 C.B. 632), apply in this regard.
Commentators stated that the management contract guidelines in Revenue Procedure 97-13 are not well-tailored to address the use of electric facilities by an RTO or an ISO. They requested additional guidance concerning the circumstances in which an RTO or an ISO will not be treated as a private business user. The final regulations provide that a contract for the operation of an electric transmission facility by an independent entity, such as an RTO or an ISO (
The temporary regulations contain two special exceptions under which certain actions involving electric transmission or distribution facilities are not treated as deliberate actions under § 1.141-2(d). The first exception applies to certain contracts entered into in response to, or in anticipation of, an order by the FERC to wheel power under the Federal Power Act, or by a state authority under comparable state law. The second exception applies to certain actions to implement the offering of non-discriminatory, open access tariffs in a manner consistent with certain FERC rules under the Federal Power Act or comparable state law. The final regulations retain these special exceptions.
Commentators requested additional guidance regarding the circumstances in which electric transmission and distribution facilities that are available for use on a non-discriminatory, open access basis will not be used for a private business use. The final regulations provide that the use of an electric transmission or distribution facility by a nongovernmental person pursuant to an output contract does not result in private business use if: (1) The facility is owned by a governmental person; (2) the facility is available for use on a nondiscriminatory, open access basis (a transmission facility meets this requirement if it is operated by a qualifying independent transmission operator); and (3) the facility is not financed for a principal purpose of serving that nongovernmental person.
The temporary regulations provide guidance on the special $15 million limitation on output facilities of section 141(b)(4). In general, this limitation is based on the nonqualified amount of an issue or issues that finance a single project.
The temporary regulations provide that facilities having different purposes or serving different customer bases are not ordinarily part of the same project. For example, a peaking unit and a baseload unit generally are not part of the same project.
The temporary regulations also provide that, in the case of generation and related facilities, project means property located at the same site. However, separate generating units are not part of the same project if one unit is reasonably expected, on the issue date of each issue that finances the facilities, to be placed in service more than three years before the other.
Some commentators noted that there is an ambiguity in the temporary regulations regarding whether a peaking unit and a baseload unit that are located at the same site and placed in service within the same three-year period are part of the same project. The final regulations clarify that a peaking unit and a baseload unit generally are not part of the same project, even if they are located at the same site and placed in service within the same three-year period.
Congress passed the Energy Policy Act of 1992, Public Law 102-486 (106 Stat. 2776), to encourage restructuring of the electric power industry. Since that time, the FERC and many states have adopted policies to provide open access to transmission and distribution facilities. Treasury and the IRS are aware that these initiatives have caused many changes in the electric power industry, and that restructuring efforts are ongoing. The temporary regulations were published in order to provide immediate guidance under section 141 regarding the effect on the tax-exempt status of bonds of certain restructuring transactions necessary for utilities to participate in a restructured electric utility industry.
Commentators stated that the lack of final regulations addressing these issues has hindered public power systems in undertaking long-term planning. Commentators also stated that uncertainty regarding the characterization under the private business tests of certain open access transactions has hampered participation by public power systems in open access plans. The final regulations are being issued at this time in order to address these concerns, notwithstanding that restructuring initiatives continue to evolve. It is anticipated that the special rules in the final regulations for open access transactions will not result in a significant increase in the volume of tax-exempt bonds for output facilities. In the event that such an increase does occur, Treasury and the IRS may reconsider relevant aspects of the regulations and propose additional limitations on the use of tax-exempt financing for such facilities.
The final regulations apply to bonds sold on or after November 22, 2002.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the rule does not impose a collection of information on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The principal authors of these regulations are Bruce M. Serchuk and Rose M. Weber, Office of Chief Counsel (Tax-exempt and Government Entities), Internal Revenue Service, and Stephen J. Watson, Office of Tax Legislative Counsel, Department of the Treasury. However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
(a) Overview.
(b) Definitions.
(1) Available output.
(2) Measurement period.
(3) Sale at wholesale.
(4) Take contract and take or pay contract.
(5) Requirements contract.
(6) Nonqualified amount.
(c) Output contracts.
(1) General rule.
(2) Take contract or take or pay contract.
(3) Requirements contract.
(4) Output contract properly characterized as a lease.
(d) Measurement of private business use.
(e) Measurement of private security or payment.
(f) Exceptions for certain contracts.
(1) Small purchases of output.
(2) Swapping and pooling arrangements.
(3) Short-term output contracts.
(4) Certain conduit parties disregarded.
(g) Special rules for electric output facilities used to provide open access.
(1) Operation of transmission facilities by nongovernmental persons.
(2) Certain use by nongovernmental persons under output contracts.
(3) Ancillary services.
(4) Exceptions to deliberate action rules.
(5) Additional transactions as permitted by the Commissioner.
(h) Allocations of output facilities and systems.
(1) Facts and circumstances analysis.
(2) Illustrations.
(3) Transmission and distribution contracts.
(4) Allocation of payments.
(i) Examples.
(a) In general.
(1) General rule.
(2) Reduction in $15 million output limitation for outstanding issues.
(3) Benefits and burdens test applicable.
(b) Definition of project.
(1) General rule.
(2) Separate ownership.
(3) Generating property.
(4) Transmission and distribution.
(5) Subsequent improvements.
(6) Replacement property.
(c) Examples.
(f) Effective dates for certain regulations relating to output facilities.
(1) General rule.
(2) Transition rule for requirements contracts.
(g) Refunding bonds for output facilities.
(h) Permissive retroactive application.
(i) Permissive application of certain regulations relating to output facilities.
(d) * * *
(3) * * *
(ii) * * *
(B) * * * See § 1.141-7(g)(4).
(a)
(b)
(1)
(i)
(ii)
(B)
(iii)
(iv)
(2)
(3)
(4)
(5)
(6)
(c)
(2)
(3)
(ii)
(iii)
(B)
(1) The term of the contract is substantial relative to the term of the issue or issues that finance the facility; and
(2) The amount of output to be purchased under the contract represents a substantial portion of the available output of the facility.
(C)
(1) The term of the contract, including all renewal options, does not exceed the lesser of 5 years or 30 percent of the term of the issue; or
(2) The amount of output to be purchased under the contract (and any other requirements contract with the same purchaser or a related party with respect to the facility) does not exceed 5 percent of the available output of the facility.
(iv)
(4)
(d)
(e)
(f)
(2)
(i) The swapped output is reasonably expected to be approximately equal in value (determined over periods of three years or less); and
(ii) The purpose of the agreement is to enable each of the parties to satisfy different peak load demands, to accommodate temporary outages, to diversify supply, or to enhance reliability in accordance with prudent reliability standards.
(3)
(i) The term of the contract, including all renewal options, is not longer than 3 years;
(ii) The contract either is a negotiated, arm's-length arrangement that provides for compensation at fair market value, or is based on generally applicable and uniformly applied rates; and
(iii) The output facility is not financed for a principal purpose of providing that facility for use by that nongovernmental person.
(4)
(g)
(ii)
(A) The facility is owned by a governmental person;
(B) The operation of the facility by the independent transmission operator is approved by the FERC under one or more provisions of the Federal Power Act (16 U.S.C. 791a through 821c) (or by a state authority under comparable provisions of state law);
(C) No portion of the compensation of the independent transmission operator is based on a share of net profits from the operation of the facility; and
(D) The independent transmission operator does not bear risk of loss of the facility.
(2)
(A) The facility is owned by a governmental person;
(B) The facility is operated by an independent transmission operator in a manner that satisfies paragraph (g)(1)(ii) of this section; and
(C) The facility is not financed for a principal purpose of providing that facility for use by that nongovernmental person.
(ii)
(A) The facility is owned by a governmental person;
(B) The facility is available for use on a nondiscriminatory, open access basis by buyers and sellers of electricity in accordance with rates that are generally applicable and uniformly applied within the meaning of § 1.141-3(c)(2); and
(C) The facility is not financed for a principal purpose of providing that facility for use by that nongovernmental person (other than a retail end-user).
(3)
(4)
(A) The contract is entered into in response to (or in anticipation of) an order by the United States under sections 211 and 212 of the Federal Power Act (16 U.S.C. 824j and 824k) (or a state regulatory authority under comparable provisions of state law); and
(B) The terms of the contract are bona fide and arm's-length, and the consideration paid is consistent with the provisions of section 212(a) of the Federal Power Act.
(ii)
(iii)
(A) The action is described in paragraph (g)(4)(i) or (ii) of this section;
(B) The bonds of the issue are current refunding bonds that refund bonds originally issued before February 23, 1998; and
(C) The weighted average maturity of the refunding bonds is not greater than the remaining weighted average maturity of the prior bonds.
(5)
(h)
(i) The extent to which it is physically possible to deliver output to or from a particular facility or system.
(ii) The terms of a contract relating to the delivery of output (such as delivery limitations and options or obligations to deliver power from additional sources).
(iii) Whether a contract is entered into as part of a common plan of financing for a facility.
(iv) The method of pricing output under the contract, such as the use of market rates rather than rates designed to pay debt service of tax-exempt bonds used to finance a particular facility.
(2)
(i)
(ii)
(iii)
(iv)
(3)
(4)
(i)
(ii) Under paragraph (d) of this section, the amount of reasonably expected private business use under this contract is approximately 15 percent (30 MW × 24 hours × 365 days × 10 years, or 2,628,000 MWh) of the available output. Accordingly, the issue meets the private business use test. J reasonably expects that the amount to be paid for an average of 30 MW of power (less the operation and maintenance costs directly attributable to generating that 30 MW of power), will be more than 10 percent of debt service on the issue on a present-value basis. Accordingly, the issue meets the private security or payment test because J reasonably expects that payment of more than 10 percent of the debt service will be indirectly derived from payments by T. The bonds are private activity bonds under paragraph (c) of this section. Further, if 15 percent of the sale proceeds of the issue is greater than $15 million and the issue meets the private security or payment test with respect to the $15 million output limitation, the bonds are also private activity bonds under section 141(b)(4). See § 1.141-8.
(ii) The facts are the same as in paragraph (i) of this
(ii) Company A is located in D's service territory. In 2004, Power Supplier E, a nongovernmental person, enters into a 10-year contract with A to supply A's electricity requirements. The electricity supplied by E to A will be transmitted over D's transmission and distribution facilities. D's distribution facilities are available for use on a nondiscriminatory, open access basis by buyers and sellers of electricity in accordance with rates that are generally applicable and uniformly applied within the meaning of § 1.141-3(c)(2). D's facilities are not financed for a principal purpose of providing the facilities for use by E. Under paragraph (g)(2) of this section, the contract between A and E does not result in private business use of D's facilities.
(a)
(i) More than $15 million of the proceeds of the issue to be used with respect to an output facility are to be used for a private business use. Investment proceeds are disregarded for this purpose if they are not allocated disproportionately to the private business use portion of the issue.
(ii) The payment of the principal of, or the interest on, more than $15 million of the sale proceeds of the portion of the issue used with respect to an output facility is (under the terms of the issue or any underlying arrangement) directly or indirectly—
(A) Secured by any interest in an output facility used or to be used for a private business use (or payments in respect of such an output facility); or
(B) To be derived from payments (whether or not to the issuer) in respect of an output facility used or to be used for a private business use.
(2)
(ii)
(A) That bond is outstanding on the issue date of the later issue;
(B) That bond will not be redeemed within 90 days of the issue date of the later issue in connection with the refunding of that bond by the later issue; and
(C) 5 percent or more of the sale proceeds of the earlier issue financed an output facility that is part of the same project as the output facility that is financed by 5 percent or more of the sale proceeds of the later issue.
(3)
(ii)
(b)
(i) Generation, transmission and distribution facilities;
(ii) Separate facilities designed to serve wholesale customers and retail customers; and
(iii) A peaking unit and a baseload unit (regardless of the location of the units).
(2)
(i) With bonds of different issuers; and
(ii) Without a principal purpose of avoiding the limitation in this section.
(3)
(ii)
(4)
(5)
(ii)
(6)
(i) The need to replace the property was not reasonably expected on the issue date or the need to replace the property occurred more than 3 years before the issuer reasonably expected (determined on the issue date of the bonds financing the property) that it would need to replace the property; and
(ii) The bonds that finance (and refinance) the output facility have a weighted average maturity that is not greater than 120 percent of the reasonably expected economic life of the facility.
(c)
(i) Power Authority K, a political subdivision, intends to issue a single issue of tax-exempt bonds at par with a stated principal amount and sale proceeds of $500 million to finance the acquisition of an electric generating facility. No portion of the facility will be used for a private business
(ii) The maximum amount of tax-exempt bonds that may be issued for the acquisition of an interest in the facility in paragraph (i) of this
(a)
(f)
(2)
(i) The extension of the term of a contract causes the contract to be treated as entered into on the first day of the additional term;
(ii) The exercise by a party of a legally enforceable right that was provided under a contract before September 19, 2002, on terms that were fixed and determinable before such date, is not treated as an amendment of the contract. For example, the exercise by a purchaser after September 19, 2002 of a renewal option that was provided under a contract before that date, on terms identical to the original contract, is not treated as an amendment of the contract; and
(iii) An amendment that increases the amount of requirements covered by the contract by reason of a change in the method for determining such requirements is treated as a separate contract that is entered into as of the effective date of the amendment, but only with respect to the increased output to be provided under the contract.
(g)
(1) The refunding bonds are subject to section 1301 of the Tax Reform Act of 1986 (100 Stat. 2602); and
(2)(i) The weighted average maturity of the refunding bonds is longer than—
(A) The weighted average maturity of the refunded bonds; or
(B) In the case of a short-term obligation that the issuer reasonably expects to refund with a long-term financing (such as a bond anticipation note), 120 percent of the weighted average reasonably expected economic life of the facilities financed; or
(ii) A principal purpose for the issuance of the refunding bonds is to make one or more new conduit loans.
(h)
(1) Outstanding bonds that are sold before November 22, 2002, and subject to section 141; or
(2) Refunding bonds that are sold on or after November 22, 2002, and subject to section 141.
(i)
Internal Revenue Service (IRS), Treasury.
Advance notice of proposed rulemaking.
This document describes and illustrates rules the IRS and Treasury Department expect to propose in a notice of proposed rulemaking with respect to the issuance of tax-exempt bonds for the government use portion of an output facility that is used for both a government use and a private business use. This document also invites comments from the public regarding these rules. Issuers may rely on this advance notice of proposed rulemaking for issues sold before the notice of proposed rulemaking is issued.
Written and electronic comments must be submitted by December 23, 2002.
Send submissions to: CC:ITA:RU (REG-142599-02), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered between the hours of 8 a.m. and 5 p.m. to: CC:ITA:RU (REG-142599-02), courier's desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC. Alternatively, submissions may be made electronically to the IRS Internet site at
Concerning submissions, Guy Traynor, (202) 622-7180; concerning the proposals, Rose M. Weber, (202) 622-3980 (not toll-free numbers).
In general, under section 103 of the Internal Revenue Code, gross income does not include the interest on any State or local bond. However, this exclusion generally does not apply to private activity bonds. Section 141(a)(1) defines a private activity bond as any bond issued as part of an issue that meets either (1) the private business use test in section 141(b)(1) and the private security or payment test in section 141(b)(2) (the private business tests) or (2) the private loan financing test in section 141(c).
The private business use test is met if more than 10 percent of the proceeds of an issue are to be used for any private business use. Section 141(b)(6) defines private business use as use directly or indirectly in a trade or business that is carried on by any person other than a governmental unit. Section 141(b)(7) defines government use as any use other than a private business use.
The private security or payment test is met if the payment of the principal of, or the interest on, more than 10 percent of the proceeds of an issue is directly or indirectly (1) secured by an interest in property used or to be used for a private business use, (2) secured by an interest in payments in respect of such property, or (3) to be derived from payments, whether or not to the issuer, in respect of property, or borrowed money, used or to be used for a private business use.
Section 1.141-7 of the Income Tax Regulations provides rules under which the purchase pursuant to a contract by a nongovernmental person of available output of an output facility (output contract) may be taken into account under the private business tests. Section 1.141-1(b) defines
Section 141(b)(4) contains a special limitation under which an issue five percent or more of the proceeds of which are to be used with respect to any output facility (other than a facility for the furnishing of water) will be treated as meeting the private business tests if the nonqualified amount for the issue exceeds the excess of $15 million, over the aggregate nonqualified amounts with respect to all prior tax-exempt issues 5 percent or more of the proceeds of which are or will be used with respect to such facility (or any other facility which is part of the same project). Section 141(b)(8) defines
The Conference Committee Report to the Tax Reform Act of 1986, H.R. Conf. Rep. No. 841, 99th Cong., 2d Sess. II-690 (1986), 1986-3 (Vol. 4) C.B. 686 (the Conference Report), contains an example that illustrates the treatment under section 141(b)(4) of an output facility the output of which is sold for both a government use and a private business use (a mixed use output facility), but the amount of private business use and private payments would cause bonds to be private activity bonds if they financed the entire facility. In the Conference Report example, a single issue of tax-exempt bonds is contemplated to finance the acquisition of a $500 million electric generating facility. Ten percent of the output of the facility will be sold to an investor-owned utility under an output contract that gives rise to private business use. The Conference Report example concludes that $465 million of tax-exempt bonds may be used to acquire the facility, $450 million for the 90 percent of the facility that is used for a government use, plus $15 million for the allowable private business use portion under section 141(b)(4). Section 1.141-8(c) contains an example that is substantially the same as the example contained in the Conference Report.
The IRS and Treasury Department are reviewing the application of section 141 to mixed use output facilities. This Announcement describes and illustrates rules that the IRS and Treasury Department expect to propose in a notice of proposed rulemaking (the proposed regulations) as part of the 2002-2003 Guidance Priority Plan. The proposed regulations will provide guidance regarding the issuance of tax-exempt bonds for the government use portion of a mixed use output facility without the bonds being characterized as private activity bonds.
The proposed regulations will provide that tax-exempt bonds may be issued to finance costs attributable to the government use portion of a mixed-use output facility (plus any costs attributable to
The proposed regulations will provide that, in the case of a mixed use output facility, output contracts that result in private business use (including any payments thereunder) are allocated first to the portion of the facility that is
The provisions of the proposed regulations described above are illustrated by the following examples (although the examples involve only an electric transmission facility, the principles illustrated apply equally to all output facilities):
Authority is a governmental person that owns and operates an electric transmission facility. Prior to 2003, Authority incurred capital costs of $500 million for the facility. None of those costs was financed with tax-exempt bonds. In 2003, Authority needs to make repairs, upgrades and improvements to the facility in the amount of $50 million. On April 10, 2003, Authority issues an issue with proceeds of $30 million and uses those proceeds to pay capital costs of the facility. As part of the same plan of financing, Authority also uses $20 million of its own funds which are not derived from a borrowing to pay capital costs of the facility. With respect to the 2003 issue, 46 percent of the available output (as determined under § 1.141-7) of the facility is sold under output contracts that result in private business use. Thus, of the $50 million of new capital costs, $27 million (54 percent) are attributable to government use and $23 million (46 percent) are attributable to private business use. In general, output contracts that result in private business use are allocated first to the portion of the output facility that is financed with equity. Therefore, of the $23 million of costs attributable to private business use, $20 million are allocable to Authority's equity and $3 million are allocable to the 2003 issue. Thus, $27 million (90 percent) of the proceeds of the issue are used for a government use. The issue does not consist of private activity bonds.
The facts are the same as in
Before the notice of proposed rulemaking is issued, consideration will be given to any written comments that are submitted timely (preferably a signed original and eight copies) to the IRS. All comments will be available for public inspection and copying. In addition to comments regarding allocation and accounting rules for mixed use output facilities, comments are also invited on allocation and accounting rules under section 141 for other facilities that are used for both a government use and a private business use.
Issuers may rely on the rules described in this Announcement with respect to any issue that is sold before the date the proposed regulations are published in the
The principal authors of this advance notice of proposed rulemaking are Bruce M. Serchuk and Rose M. Weber, Office of Chief Counsel (Tax-exempt and Government Entities), Internal Revenue Service, and Stephen J. Watson, Office of Tax Legislative Counsel, Department of the Treasury. However, other personnel from the IRS and Treasury Department participated in its development.