Joint Board for Enrollment of Actuaries
Animal and Plant Health Inspection Service
Food and Nutrition Service
Natural Resources Conservation Service
Rural Utilities Service
National Foundation on the Arts and the Humanities
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Bonneville Power Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Substance Abuse and Mental Health Services Administration
Fish and Wildlife Service
Land Management Bureau
Reclamation Bureau
Antitrust Division
Justice Programs Office
Pension and Welfare Benefits Administration
Centers for Disease Control and Prevention
Food and Drug Administration
Substance Abuse and Mental Health Services Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Research and Special Programs Administration
Alcohol, Tobacco and Firearms Bureau
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.
Interim rule and request for comments.
We are amending the Oriental fruit fly regulations by quarantining a portion of Los Angeles and San Bernardino Counties, CA, and restricting the interstate movement of regulated articles from the quarantined area. This action is necessary on an emergency basis to prevent the spread of the Oriental fruit fly into noninfested areas of the United States.
This interim rule was effective October 2, 2002. We will consider all comments that we receive on or before December 9, 2002.
You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 02-096-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 02-096-1. If you use e-mail, address your comment to
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
Stephen A. Knight, Senior Staff Officer, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8039.
The Oriental fruit fly,
The Oriental fruit fly regulations, contained in 7 CFR 301.93 through 301.93-10 (referred to below as the regulations), were established to prevent the spread of the Oriental fruit fly into noninfested areas of the United States. Section 301.93-3(a) provides that the Administrator will list as a quarantined area each State, or each portion of a State, in which the Oriental fruit fly has been found by an inspector, in which the Administrator has reason to believe that the Oriental fruit fly is present, or that the Administrator considers necessary to regulate because of its proximity to the Oriental fruit fly or its inseparability for quarantine enforcement purposes from localities in which the Oriental fruit fly has been found. The regulations impose restrictions on the interstate movement of regulated articles from the quarantined areas. Quarantined areas are listed in § 301.93-3(c).
Less than an entire State will be designated as a quarantined area only if the Administrator determines that: (1) The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are substantially the same as those imposed on the interstate movement of regulated articles and (2) the designation of less than the entire State as a quarantined area will prevent the interstate spread of the Oriental fruit fly.
Recent trapping surveys by inspectors of California State and county agencies and by inspectors of the Animal and Plant Health Inspection Service reveal that a portion of Los Angeles and San Bernardino Counties, CA, is infested with the Oriental fruit fly. The Oriental fruit fly is not known to exist anywhere else in the continental United States.
State agencies in California have begun an intensive Oriental fruit fly eradication program in the quarantined area in Los Angeles and San Bernardino Counties. Also, California has taken action to restrict the interstate movement of regulated articles from the quarantined area.
Accordingly, to prevent the spread of the Oriental fruit fly into other States, we are amending the regulations in § 301.93-3 by designating a portion of Los Angeles and San Bernardino Counties, CA, as a quarantined area for the Oriental fruit fly. The quarantined area is described in the rule portion of this document.
This rulemaking is necessary on an emergency basis to prevent the Oriental fruit fly from spreading to noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the
We will consider comments that we receive during the comment period for this interim rule (
This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget
This rule amends the Oriental fruit fly regulations by adding a portion of Los Angeles and San Bernardino Counties, CA, to the list of quarantined areas. The regulations restrict the interstate movement of regulated articles from a quarantined area.
County records indicate there are approximately 1,500 acres of wine grapes, 200 acres of lemons and oranges, 50 acres of miscellaneous fruit, 20 garden centers, and 26 chain stores with nursery licenses within the quarantined area that may be affected by this rule. In addition, there are 13 production nurseries in the ZIP Code, although some may not be within the quarantined area.
We expect that any small entities located within the quarantined area that sell regulated articles do so primarily for local intrastate, not interstate, movement, so the effect, if any, of this rule on these entities appears to be minimal. The effect on any small entities that may move regulated articles interstate will be minimized by the availability of various treatments that, in most cases, will allow these small entities to move regulated articles interstate with very little additional cost.
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 program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (
This interim 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.
An environmental assessment and finding of no significant impact have been prepared for this interim rule. The site-specific environmental assessment provides a basis for the conclusion that the implementation of integrated pest management to eradicate the Oriental fruit fly will not have a significant impact on human health and the natural environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Copies of the environmental assessment and finding of no significant impact are available for review in our reading room (information on the location and hours of the reading room is listed under the heading
This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 7752, 7753, and 7754; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
(c) The areas described below are designated as quarantined areas:
Nuclear Regulatory Commission.
Final rule.
The U. S. Nuclear Regulatory Commission (NRC) is amending its regulations governing the disposal of high-level radioactive wastes in a
November 7, 2002.
The final rule and any related documents are available on NRC's rulemaking Web site at
The documents may also be examined at the NRC Public Document Room (PDR), Room O-1F23, 11555 Rockville Pike, Rockville, MD.
NRC maintains an Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through NRC's Public Electronic Reading Room on the Internet at
Timothy McCartin, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-7285, e-mail:
On November 2, 2001 (66 FR 55732), NRC published a final rule, 10 CFR part 63, governing disposal of high-level radioactive wastes in a potential geologic repository at Yucca Mountain, Nevada. We are now finalizing one particular matter that specifies a probability for unlikely features, events, and processes (FEPs). These are the regulations that the U.S. Department of Energy (DOE) must meet in any license application for construction and operation of a potential repository. As mandated by the Energy Policy Act of 1992, Pub. L. 102-486, NRC's rule adopts the radiation protection standards established by EPA in 40 CFR Part 197 (66 FR 32074; June 13, 2001). EPA's standards for disposal include an individual-protection standard (40 CFR 197.20); a human-intrusion standard (40 CFR 197.25); and ground-water protection standards (40 CFR 197.30). These EPA standards have been incorporated into NRC's regulations at 10 CFR 63.311, 63.321, and 63.331, respectively.
DOE's performance assessments are required to consider the naturally occurring features, events, and processes that could affect the performance of a geologic repository (
NRC published a proposed rule, “10 CFR Part 63: Specification of a Probability for Unlikely Features, Events, and Processes,” on January 25, 2002 (67 FR 3628), and requested public comments. That proposed rule defined the term “unlikely” in quantitative terms. This action was taken to allow NRC to implement EPA's final standards for a potential repository at Yucca Mountain, Nevada. The Commission was careful to point out that its specification for unlikely events was in the context of very specific assessments (
Unlike the broader purposes served by the performance assessment for the all-pathway individual-protection standard, the performance assessments used to determine compliance with the human-intrusion standard and the ground-water protection standards serve narrow, focused objectives. In the case of the performance assessment for human intrusion, the purpose is to evaluate the robustness of the repository system, assuming the occurrence of a prescribed human-intrusion scenario. In the case of the performance assessment for ground-water protection, the purpose is to evaluate potential degradation of the ground-water resource. Although EPA's final standards did not specify a numerical value to define unlikely FEPs in quantitative terms, the preamble to the standards stated that the exclusion of unlikely FEPs is intended to focus these assessments on the “expected” or “likely” performance of the repository.
From a probabilistic perspective, any FEP with an annual probability of 10
The 75-day comment period for the proposed rule closed on April 10, 2002. Comments were received from the following five organizations: EPA; State of Nevada and the Nevada Agency for Nuclear Projects; DOE; Nuclear Energy Institute (NEI); and Exelon Generation. Commenters differed on the quantitative values NRC should use for defining unlikely FEPs. Although some commenters supported the proposed values, others provided different numbers and associated rationales. In preparing the final rule, the NRC staff carefully reviewed and considered these comments. The commenters that suggested alternative values did not provide a convincing basis for rejecting NRC's proposed range and adopting a different range; therefore, the Commission has decided to finalize the rule as originally proposed. The NRC's consideration of each of the comments is provided below.
EPA has suggested that a probability value which represents the middle of a particular range (only when displayed on a logarithmic scale) contains some inherent justification for its selection. EPA also suggests that the NRC proposal, which is a factor of 10 less than an annual probability of 10
The Commission acknowledges that selection of a more conservative value (
There will be uncertainty in estimating performance of any geologic repository, including the uncertainty in estimating the probabilities of FEPs. NRC's regulation for Yucca Mountain contains specific requirements for addressing uncertainty in estimating performance, which includes uncertainty for estimating probabilities for FEPs. The Commission believes it is prudent to understand and evaluate the uncertainty in the probability estimates rather than set a more conservative screening value as a means to address uncertainty in estimating probabilities of FEPs. Reasonable expectation, as specified in EPA standards (40 CFR 197.14) and NRC regulations (10 CFR 63.304), in compliance with the postclosure standards of the repository, dictates that uncertainties be understood and evaluated even when they may be difficult to precisely quantify (
Ground water is an important resource, and potential contamination of ground water is evaluated in all three assessments (
Exclusion of igneous activity in the assessments for ground-water protection and human intrusion is not expected to have a significant effect on either assessment. The assessment for ground-water protection is not affected because the dose from an igneous event is predominately through the air pathway and not the ground-water pathway. The assessment for human intrusion is not affected because the assumed intrusion (
Another related issue is whether the stylized calculation should consider multiple intrusions. The final EPA standards resolve this issue in favor of a single intrusion. Moreover, in its findings and recommendations, NAS [National Academy of Sciences] argued against analyses of whether and how often exploratory drilling would occur at Yucca Mountain because of the complexities associated in such assessments. Simply stated, the NAS felt that no one can accurately predict the characteristics of future human society and their technology. In the context of human intrusion, estimating the probability of exploratory drilling for a given resource relies on an ability to predict certain economic and technical factors that influence supply of, and demand for, that resource. In fact, NAS noted that the continued advances in noninvasive geophysical techniques may, in fact, reduce the number and frequency of exploratory boreholes * * *
Consequently, any consideration for the drilling of multiple exploratory boreholes or later drilling of more boreholes further increases the speculative nature of the intrusion scenario with potentially little increase in understanding repository resilience.
The EPA standards provide for consideration of a single borehole at the earliest time that human intrusion into the waste package can occur without recognition by the drillers. The Commission believes this is an appropriate test for evaluating repository resilience. Moreover, the suggested alternative to evaluate multiple intrusions for the human intrusion calculation fails to reflect the purpose of the human intrusion calculation, that is to test the resilience of the repository, not to evaluate the speculative issue of frequency of the intrusion (66 FR 55761; November 2, 2001).
DOE supports NRC's proposed probability range for defining unlikely FEPs as a reasonable and conservative choice.
NEI supports NRC's proposed probability range for defining unlikely FEPs. NEI stated that the proposed definition of unlikely FEPs will facilitate a reasonable and prudently conservative analysis of these aspects of repository performance (
Exelon Generation supports NRC's proposed probability range for defining unlikely FEPs.
The word “should” has been replaced with the word “shall” to be consistent with the final EPA standard (40 CFR 197.36).
This section specifies how DOE will determine which features, events, and processes will be considered in the performance assessments described in subpart L of part 63.
The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this rule, NRC is establishing probability limits for unlikely FEPs at a potential geologic repository for high-level radioactive waste at Yucca Mountain, Nevada. This action does not constitute the establishment of a standard that contains generally applicable requirements.
Pursuant to section 121(c) of the Nuclear Waste Policy Act, this rule does not require the preparation of an environmental impact statement under section 102(2)(c) of the National Environmental Policy Act of 1969 or any environmental review under subparagraph (E) or (F) of section 102(2) of such act.
This rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995. (44 U.S.C. 3501
If a means used to impose an information collection requirement does not display a currently valid OMB control number, NRC may not conduct nor sponsor, and a person is not required to respond to, the information collection.
The Commission has prepared a regulatory analysis on this regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. It is available for inspection in the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852.
In accordance with the Regulatory Flexibility Act [5 U.S.C. 605(b)], the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule relates to the licensing of only one entity, DOE, which does not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
NRC has determined that the backfit rule does not apply to this rule and, therefore, that a backfit analysis is not required, because this rule does not involve any provisions that would impose backfits as defined in 10 CFR chapter 1.
In accordance with the Small Business Regulatory Enforcement Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Criminal penalties, High-level waste, Nuclear power plants and reactors, Nuclear materials, Reporting and recordkeeping requirements, Waste treatment and disposal.
Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat.1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-425, 96 Stat. 2213g, 2238, as amended (42 U.S.C. 10134, 10141); and Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851).
DOE's performance assessments shall not include consideration of very unlikely features, events, or processes,
For the Nuclear Regulatory Commission.
Board of Governors of the Federal Reserve System.
Final rule.
The Board is amending Regulation D, Reserve Requirements of Depository Institutions, to reflect the annual indexing of the low reserve tranche and the reserve requirement exemption for 2003, and announces the annual indexing of the deposit reporting cutoff level that will be effective beginning in September 2003. The amendments increase the amount of transaction accounts subject to a reserve requirement ratio of three percent in 2003, as required by section 19(b)(2)(C) of the Federal Reserve Act, from $41.3 million to $42.1 million of net transaction accounts. This adjustment is known as the low reserve tranche adjustment. The Board is increasing from $5.7 million to $6.0 million the amount of reservable liabilities of each depository institution that is subject to a reserve requirement of zero percent in 2003. This action is required by section 19(b)(11)(B) of the Federal Reserve Act, and the adjustment is known as the reservable liabilities exemption adjustment. The Board is also increasing the deposit cutoff level that is used in conjunction with the reservable liabilities exemption to determine the frequency of deposit reporting from $106.9 million to $112.3 million for nonexempt depository institutions. (Nonexempt institutions are those with total reservable liabilities exceeding the amount exempted from reserve requirements.) Thus, beginning in September 2003, nonexempt institutions with total deposits of $112.3 million or more will be required to report weekly while nonexempt institutions with total deposits less than $112.3 million may report quarterly, in both cases on form FR 2900. Exempt institutions with at least $6.0 million in total deposits may report annually on form FR 2910a.
Effective Date: November 7, 2002.
Heatherun Allison, Counsel (202/452-3565), Legal Division, or June O'Brien, Economist (202/452-3790), Division of Monetary Affairs; for user of Telecommunications Device for the Deaf (TDD) only, contact (202/872-4984); Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551.
Section 19(b)(2) of the Federal Reserve Act (12 U.S.C. 461(b)(2)) requires each depository institution to maintain reserves against its transaction accounts and nonpersonal time deposits, as prescribed by Board regulations. The required reserve ratio applicable to transaction account balances exceeding the low reserve tranche is 10 percent. Section 19(b)(2) also provides that, before December 31 of each year, the Board shall issue a regulation adjusting the low reserve tranche for the next calendar year. The adjustment in the tranche is to be 80 percent of the percentage increase or decrease in net transaction accounts at all depository institutions over the one-year period that ends on the June 30 prior to the adjustment.
Currently, the low reserve tranche on net transaction accounts is $41.3 million. Net transaction accounts of all depository institutions rose by 2.5 percent (from $596.7 billion to $611.4 billion) from June 30, 2001, to June 30, 2002. In accordance with section 19(b)(2), the Board is amending Regulation D (12 CFR part 204) to increase the low reserve tranche for transaction accounts for 2003 by $0.8 million to $42.1 million.
Section 19(b)(11)(B) of the Federal Reserve Act provides that, before December 31 of each year, the Board shall issue a regulation adjusting for the next calendar year the dollar amount of reservable liabilities exempt from reserve requirements. Unlike the adjustment for the low reserve tranche on net transaction accounts, which adjustment can result in a decrease as well as an increase, the change in the exemption amount is to be made only if the total reservable liabilities held at all depository institutions increase from one year to the next. The percentage increase in the exemption is to be 80 percent of the increase in total reservable liabilities of all depository institutions as of the year ending June 30. Total reservable liabilities of all depository institutions increased by 7.1 percent (from $2,317.7 billion to $2,481.7 billion) from June 30, 2001, to June 30, 2002. Consequently, the reservable liabilities exemption amount for 2003 under section 19(b)(11)(B) will be increased by $0.3 million from $5.7 million to $6.0 million.
The effect of the application of section 19(b) of the Federal Reserve Act to the change in the total net transaction accounts and the change in the total reservable liabilities from June 30, 2001, to June 30, 2002, is to increase the low reserve tranche to $42.1 million, to apply a zero percent reserve requirement on the first $6.0 million of net transaction accounts, and to apply a three percent reserve requirement on the remainder of the low reserve tranche.
For institutions that report weekly, the tranche adjustment and the reservable liabilities exemption adjustment will be effective for the fourteen-day reserve computation period beginning Tuesday, November 26, 2002, and for the corresponding fourteen-day reserve maintenance period beginning Thursday, December 26, 2002. For institutions that report quarterly, the tranche adjustment and the reservable liabilities exemption adjustment will be effective for the seven-day computation period beginning Tuesday, December 17, 2002, and for the corresponding seven-day reserve maintenance period beginning Thursday, January 16, 2003.
In order to reduce the reporting burden for small institutions, the Board has established a deposit reporting cutoff level to determine deposit reporting frequency. The Board has specified that the annual percentage increase in the nonexempt deposit cutoff be set equal to 80 percent of the growth rate of total deposits at all depository institutions over the one-year period ending on the most recent June 30.
From June 30, 2001, to June 30, 2002, total deposits increased 6.3 percent, from $5,602.3 billion to $5,955.9 billion. Accordingly, the nonexempt deposit cutoff level will increase by $5.4 million from $106.9 million in 2002 to $112.3 million in 2003. Based on the indexation of the reservable liabilities exemption, the cutoff level for total deposits above which reports of deposits must be filed will rise from $5.7 million to $6.0 million. Under the deposit reporting system, institutions are screened during each year to determine their reporting category beginning in the September of that year. Hence, the cutoff level would be used in the 2003 deposit report screening process and new deposit reporting panels will be implemented in September 2003.
Thus, effective in September 2003, all U.S. branches and agencies of foreign banks and Edge and Agreement corporations, regardless of size, and other institutions with total reservable liabilities exceeding $6.0 million (nonexempt institutions) and with total deposits at or above $112.3 million would be required to file weekly the Report of Transaction Accounts, Other Deposits and Vault Cash (form FR 2900). Nonexempt institutions with total deposits below $112.3 million could file the FR 2900 quarterly. Institutions that obtain funds from non-U.S. sources or that have foreign branches or IBFs would continue to be required to file the Report of Certain Eurocurrency Transactions (forms FR 2950/FR 2951) at the same frequency as they file the form FR 2900. Institutions with reservable liabilities at or below the exemption amount of $6.0 million (exempt institutions) and with at least $6.0 million in total deposits would be required to file the Annual Report of Total Deposits and Reservable Liabilities (form FR 2910a). Institutions with total deposits below the exemption level of $6.0 million would be excused from reporting if their deposits can be estimated from other data sources.
Finally, the Board may require a depository institution to report on a weekly basis, regardless of the cutoff level, if the institution manipulates its total deposits and other reservable liabilities in order to qualify for quarterly reporting. Similarly, any depository institution that reports quarterly may be required to report weekly and to maintain appropriate reserve balances with its Reserve Bank if, during its computation period, it understates its usual reservable liabilities or overstates the deductions allowed in computing required reserve balances.
The Board certifies that these amendments will not have a substantial economic impact on small depository institutions.
Banks, banking, Reporting and recordkeeping requirements.
12 U.S.C. 248(a), 248(c), 371a, 461, 601, 611, and 3105.
The following reserve ratios are prescribed for all depository institutions, Edge and Agreement corporations, and United States branches and agencies of foreign banks:
By order of the Board of Governors of the Federal Reserve System.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued to Atlantic Aero, Inc., P.O. Box 35408, Greensboro, North Carolina 27425-5408 for a Supplemental Type Certificate for the Raytheon Model 300, 300LW, B300 and B300C airplanes. This airplane will have novel and unusual design features when compared to the state of technology envisaged in the applicable airworthiness standards. These novel and unusual design features include the installation of an electronic flight instrument system (EFIS) display for which the applicable regulations do not contain adequate or appropriate airworthiness standards for the protection of these systems from the effects of high intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to the airworthiness standards applicable to these airplanes.
The effective date of these special conditions is September 25, 2002. Comments must be received on or before November 7, 2002.
Comments may be mailed in duplicate to: Federal Aviation Administration, Regional Counsel, ACE-7, Attention: Rules Docket Clerk, Docket No. CE189, Room 506, 901 Locust, Kansas City, Missouri 64106. All comments must be marked: Docket No. CE189. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Wes Ryan, Aerospace Engineer, Standards Office (ACE-110), Small Airplane Directorate, Aircraft Certification Service, Federal Aviation Administration, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone (816) 329-4123.
The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.
Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE189.” The postcard will be date stamped and returned to the commenter.
On May 17, 2002, Atlantic Aero, Inc., P.O. Box 35408, Greensboro, North Carolina 27425-5408, made application to the FAA for a new Supplemental Type Certificate for the Raytheon Model 300, 300LW, B300, and B300C airplanes. The Raytheon Model 300 series airplane is currently approved under TC No. A24CE. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of an EFIS, that is vulnerable to HIRF external to the airplane.
Under the provisions of 14 CFR part 21, § 21.101, Atlantic Aero, Inc. must show that the Raytheon Model 300, 300LW, B300, and B300C aircraft meet the following provisions, or the applicable regulations in effect on the date of application for the change to the Raytheon Model 300, 300LW, B300, and B300C: For those areas modified or impacted by the installation of the Collins FD 2000 EFIS system the following paragraphs as amended by Amendments 23-1 through 23-54 must be complied with: 23.305, 23.307, 23.365, 23.603, 23.609, 23.611, 23.613, 23.625, 23.627, 23.771, 23.773, 23.777, 23.1301, 23.1303, 23.1309, 23.1311, 23.1321, 23.1322, 23.1331, 23.1335, 23.1351, 23.1357, 23.1359, 23.1361, 23.1365, 23.1367, 23.1381, 23.1431, 23.1529, 23.1541, 23.1543, 23.1581 and the special conditions adopted by this rulemaking action.
If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane,
Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38 after public notice and become part of the type certification basis in accordance with § 21.101(b)(2).
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.
Atlantic Aero, Inc. plans to incorporate certain novel and unusual design features into an airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include EFIS, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.
Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.
Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.
The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.
These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:
(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:
(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.
A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.
Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.
As discussed above, these special conditions are applicable to Raytheon Model 300, 300LW, B300, and B300C airplanes. Should Atlantic Aero, Inc. apply at a later date for a supplemental type certificate to modify any other model on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has
Aircraft, Aviation safety, Signs and symbols.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Raytheon Model 300, 300LW, B300, and B300C airplanes modified by Atlantic Aero, Inc. to add an EFIS.
1.
2. For the purpose of these special conditions, the following definition applies:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective October 8, 2002. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 8, 2002.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The Flight Inspection Area Office which originated the SIAP; or,
4. The Office of Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: PO Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to part 97 is effective upon publication of each separate SIAM as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce,
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40113, 40120, 44701; and 14 CFR 11.49(b)(2).
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective October 8, 2002. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 8, 2002.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
4. The Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the Superintendent of Documents, US Government Printing Office, Washington, DC 20402.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK. 73125) telephone: (405) 954-4164.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective date of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary
The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAP and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executives Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
Issued in Washington, DC, on September 27, 2002.
49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C. 106(g): and 14 CFR 11.49(b)(2)
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, ISMLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPS, Identified as follows:
Department of Veterans Affairs.
Final rule.
This final rule amends the Department of Veterans Affairs (VA) regulations governing eligibility for interment or memorialization in national cemeteries and in State cemeteries receiving State cemetery grants from VA. The final rule concerns statutory provisions designed to ensure that the remains of certain persons who committed Federal or State capital crimes are not interred in such cemeteries and that the memory of such persons is not memorialized in such cemeteries.
Kimberly Wright, Program Analyst, Office of Field Programs (401A2), National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, or Karen Barber, Program Analyst, Legislative and Regulatory Division (402B3), (202) 273-5307 or (202) 273-5183, respectively. (These are not toll-free numbers).
On July 21, 2000, the National Cemetery Administration (NCA) published in the
We provided a 60-day comment period that ended September 19, 2000. We received one written response by e-mail during this period. The response included three comments. First, it suggested improving the proposed rule by using a “deliminating” date to this regulation for consideration of veterans who were convicted prior to 1997. Congress specified that 38 U.S.C. 2411 would apply to applications for interment or memorialization made on or after November 21, 1997. Accordingly, our implementing regulations must reflect this date of applicability. The second comment suggested that, for those cases where a person avoided conviction due to either flight or death, the standard for determining whether a person committed a capital crime should be beyond a reasonable doubt, not preponderance of the evidence. Congress specified that the standard of review for making decisions of this nature is “clear and convincing evidence” (38 U.S.C. 2411) and we have no authority to deviate from this standard of review.
The third comment asked whether there was a problem, in cemeteries where Native Americans and Prisoners of War (POWs) were interred, that might require individuals in these categories who had committed capital crimes to be disinterred. VA is not aware of any problems caused by the interment of Native Americans and POWs that relate to its implementation of the capital crimes prohibition. While such individuals are buried in certain VA national cemeteries, Public Law 105-116, which established the capital-crimes burial prohibition, is not retroactive to interment or memorialization requests predating November 21, 1997. Further, 38 CFR 1.621 provides that, interment in national cemeteries is considered “permanent and final,” and sets forth stringent prerequisites for disinterment. Further, it provides that disinterment proceedings are matters that VA may not initiate.
For these reasons, we believe it is not necessary to revise the rule based on the views expressed by the commenter.
Since November 1997, NCA cemetery directors have dealt with several benefit cases in which the capital crime ban came into play. The majority of the cases involved situations in which an individual avoided conviction either due to flight or death. Because of lessons learned through experience, we are amending § 1.618. Those modifications, which are described below, are procedural as opposed to substantive in nature.
First, when a cemetery director receives a request for burial and there is reason to believe that a capital crime may have taken place, the cemetery director is required to initiate an inquiry seeking information in order to make an initial decision on the case. Once made aware of this requirement, families often
Second, § 1.618(c)(2) as proposed included a provision on the number of days the family or other personal representative has to respond to a notice from the cemetery director stating that there appears to be clear and convincing evidence that a capital crime took place. This section has been revised to provide additional time for the family or other personal representative to respond. Upon receipt of the notice, the family or other personal representative will have 15 instead of 10 days to respond.
Third, the proposed version of § 1.618(c)(2) has been modified to include an additional option for the family or other personal representative. Initially, the family or other personal representative could: (1) Request a hearing on the matter, (2) submit a written statement, with or without supporting documentation, for inclusion in the record, or (3) waive these two options. There was no option for the family or other personal representative to end the process if so desired. Through experience, we have found that several families made alternate burial arrangements at a location other than a VA national cemetery. NCA did not receive any further communications regarding national cemetery burial from these families. This new option allows the family or other personal representative to end the benefit decision process at this point and avoid having a finding made by VA. Under the final rule, the family or other personal representative may notify the cemetery director that the request for interment or memorialization is withdrawn, thereby, ending the claim process. This provides the family a simple means of ending the inquiry process. Under the proposed rule, VA was required to complete the process even if the decedent were buried in a private cemetery.
Fourth, § 1.618(d), as proposed, authorized the cemetery director or his or her designee to act as the Hearing Official when the family or other personal representative requests a hearing. As it is not feasible for NCA to train all cemetery directors as Hearing Officials (for potentially a limited number of cases), this section has been modified. Under the final rule, the Director, Memorial Services Network will conduct the hearing.
Fifth, § 1.618(h), as proposed, required that appellate rights be provided even if the burial request was granted. This section has been revised to make clear that appellate rights need only be furnished when a request for burial or interment is denied. Notice of appellate rights accompanying a decision granting a request for burial or interment is unnecessary and may be confusing to the recipient of the notice.
In addition, because the regulations are clear as to their scope, the information included in the Note to § 1.617 is unnecessary. Therefore, the Note following that section has been removed.
Over the past four years NCA staff has closely monitored the processing of cases where the capital crimes prohibition might apply. The above changes are based upon NCA experience gathered during this time. These minor procedural modifications will reduce the burden on grieving families, improve clarity, reduce processing time, and increase efficiency.
Based on the rational set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule as a final rule without change except that we are making nonsubstantive changes for purposes of clarity and are making the changes discussed above.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.
The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance numbers for this rule are 64.201, 64.202, and 64.203.
Administrative practice and procedure, Cemeteries, Claims, Crimes, Criminal offenses.
Cemeteries, Grant programs-veterans, Veterans.
38 U.S.C. 501(a), unless otherwise noted.
(a) [
(b)
(a)
(1) Any person identified to the Secretary of Veterans Affairs by the United States Attorney General, prior to approval of interment or memorialization, as an individual who has been convicted of a Federal capital crime and sentenced to death or life imprisonment as a result of such crime.
(2) Any person identified to the Secretary of Veterans Affairs by an appropriate State official, prior to approval of interment or memorialization, as an individual who has been convicted of a State capital crime and sentenced to death or life imprisonment without parole as a result of such crime.
(3) Any person found under procedures specified in § 1.618 to have committed a Federal or State capital crime but have avoided conviction of such crime by reason of unavailability for trial due to death or flight to avoid prosecution.
(b)
(c)
(d)
(e)
(i) The United States Attorney General, in the case of a Federal capital crime, requesting notification of whether the deceased has been convicted of a Federal capital crime for which the deceased was sentenced to death or life imprisonment; or
(ii) An appropriate State official, in the case of a State capital crime, requesting notification of whether the deceased has been convicted of a State capital crime for which the deceased was sentenced to death or life imprisonment without parole.
(2) The cemetery director will defer decision on whether to approve interment or memorialization until after a response is received from the Attorney General or appropriate State official.
(f)
(g)
(a)
(b)
(2) If the personal representative elects for burial at a location other than a VA national cemetery, or makes alternate arrangements for burial at a location other than a VA national cemetery, the request for interment or memorialization will be considered withdrawn and action on the request will be terminated.
(c)
(2) The notice of procedural options will inform the personal representative
(i) Request a hearing on the matter;
(ii) Submit a written statement, with or without supporting documentation, for inclusion in the record;
(iii) Waive a hearing and submission of a written statement and have the matter forwarded immediately to the Under Secretary for Memorial Affairs for a finding; or
(iv) Notify the cemetery director that the personal representative is withdrawing the request for interment or memorialization, thereby, closing the claim.
(3) The notice of procedural options will also inform the personal representative that, if he or she does not exercise one or more of the stated options within the prescribed period, the matter will be forwarded to the Under Secretary for Memorial Affairs for a finding based on the existing record.
(d)
(e)
(1) If the cemetery director determines that it has not been established by clear and convincing evidence that the deceased committed a Federal or State capital crime of which he or she was not convicted due to death or flight to avoid prosecution, and the deceased remains otherwise eligible, the cemetery director will make a decision approving interment or memorialization; or
(2) If the cemetery director believes that there is clear and convincing evidence that the deceased committed a Federal or State capital crime of which he or she was not convicted due to death or flight to avoid prosecution, the cemetery director will forward a request for a finding on that issue, together with the cemetery director's recommendation and a copy of the record to the Under Secretary for Memorial Affairs.
(f)
(1) A finding that the deceased committed a crime referred to in paragraph (f) of this section must be based on clear and convincing evidence.
(2) The cemetery director will be provided with written notification of the finding of the Under Secretary for Memorial Affairs.
(g)
(h)
38 U.S.C. 2408.
(d) Any grant under this part made on or after November 21, 1997, is made on the condition that after the date of receipt of the grant the State receiving the grant, subject to requirements for receipt of notice in 38 U.S.C. 2408 and 2411, will prohibit in the cemetery for which the grant is furnished the interment of the remains of or the memorialization of any person:
(1) Who has been convicted of a Federal capital crime for which the person was sentenced to death or life imprisonment;
(2) Who has been convicted of a State capital crime for which the person was sentenced to death or life without parole; or
(3) Who has been found by an appropriate State official, under procedures to be established by the State, to have committed a Federal or State capital crime but to have not been convicted of such crime by reason of unavailability for trial due to death or flight to avoid prosecution.
(b) * * *
(1) Any cemetery established, expanded, or improved through assistance of this program shall be used exclusively for the interment or memorialization of eligible persons, as set forth in §§ 39.1(h) and 39.2(a), whose interment or memorialization is not contrary to the conditions of the grant (see § 39.2(d) and 38 U.S.C. 2408 and 2411).
Department of Veterans Affairs.
Final rule.
We are amending the Loan Guaranty Regulations to change the formula for calculating the net value of property securing VA guaranteed loans being terminated and to add criteria for granting preforeclosure debt waivers. The changes regarding net value appear necessary to more accurately reflect current costs. The changes regarding waivers appear necessary to more accurately reflect statutory intent.
Mr. Richard Fyne, Assistant Director for Loan Management (261), Loan Guaranty Service, Veterans Benefits Administration, Department of Veterans Affairs, Washington DC 20420, telephone (202) 273-7380.
In a document published in the
Under current law, when a VA guaranteed loan is reported as being in default, the Secretary is required to establish the “net value” of the property securing the guaranteed loan in default. “Net value” means the fair market value of the property minus certain costs that VA would incur to acquire, manage, and dispose of the property. The relationship between the net value of the property, the total indebtedness of the veteran at the time of loan termination, and the amount of VA's guaranty determines whether or not VA may acquire the property following foreclosure from the foreclosing loan holder. These factors also affect the Government's claim payment to the foreclosing holder under the guaranty. In addition, they will affect the amount of the veteran's debt to the Government under those circumstances where, by law, VA is entitled to establish a debt against a veteran. Moreover, they affect the VA's loss on the guaranty transaction which, in turn, will affect the veteran's ability to have previously-used entitlement restored.
Previously, under § 36.4301, VA computed “net value” using cost data for the proceeding three fiscal years. We proposed to change how VA computes “net value.” Instead of using three years’ data, we proposed to use data only from the most recent fiscal year.
We also proposed to make nonsubstantive changes to the definition of “net value” for purposes of clarification and conformance to statutory provisions.
The comment period ended October 2, 2000. We received comments from one commenter, an association that represents mortgage lenders. These comments are discussed below. Based on the rationale set forth in the proposed rule and this document, we have adopted the provisions of the proposed rule as a final rule with a change in the definition of “net value,” explained below.
Using data from 1995 through 2000, the commenter provided its fiscal analysis of the impact of the proposed rule on the mortgage industry if the proposed rule had been in effect. The analysis performed by the commenter revealed little change in using three years compared to one year. Even so, the commenter requested that VA not change the formula until after conducting a thorough analysis, including the impact on the number of
It is necessary to describe
If the difference between the loan indebtedness and the net value is greater than VA's maximum claim liability, VA cannot reduce its liability. In that case VA does not specify in advance a minimum amount to be credited to the loan account, and the holder cannot convey the property to VA. The industry typically calls such cases
When a holder receives advice that a case is a
After giving careful consideration to the comment we have determined that further analyses is not warranted. The argument that we should give consideration to anticipated changes in policies and procedures is not a basis for giving further analysis before establishing a rule change. Furthermore, even if such an analysis were possible, VA's primary goal for this rule was to more accurately reflect in any future year the cost of acquiring, managing, and disposing of properties. Using the most recent data available would provide a better predictor of costs in the coming year.
An example provided by the commenter of a policy change impacting net value was the potential cost of lead-based paint hazard reductions. The commenter expressed concern that moving from considering three years' data to one year's data would likely increase the number of no-bids immediately after VA implemented the lead-based paint procedures. However, as we stated above, VA's primary goal is to accurately reflect the cost to VA of acquiring, managing, and disposing of properties. In the case of lead-based paint procedures, VA has decided not to significantly change procedures and therefore there should be no real changes in costs attributable to them. Just as implementing a new procedure like lead paint abatement could show an immediate impact on no-bids, future cost savings by VA resulting from legislation, regulations, or management efficiencies would be recognized more quickly, to the advantage of loan holders by VA adopting the proposed rule. Therefore VA continues to believe, as the commenter noted, that moving to annualized cost data would have a neutral impact over time.
The definition of net value, in the proposed rule, requires VA to determine the costs of acquiring and disposing of property. One of the cost factors the proposed rule required VA to determine was losses on resale. The commenter requested that VA also include average resale gains in calculating a property's net value. The commenter asserted that this is consistent with the Department's stated goal of creating a net value that more accurately reflects current costs. Failure to recognize such gains would understate a property's net value and
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal government, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.
This document has been reviewed by the Office of Management and Budget under Executive Order 12866.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
The Secretary hereby certifies that the adoption of the final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The rule only affects VA guaranteed loan foreclosures. Such foreclosures represent only a small part of affected lenders' businesses. Moreover, the effect of the rule will be cost-neutral in almost all cases. Therefore, pursuant to 5 U.S.C. 605(b), the rule is exempt form the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance Program numbers are 64.114 and 64.118.
Condominiums, Flood insurance, Housing, Indians, Individuals with disabilities, Loan programs-housing and community development, Loan programs-Indians, Loan programs-veterans, Manufactured homes, Mortgage insurance, Reporting and recordkeeping requirements, Veterans.
38 U.S.C. 501, 3701-3704, 3707, 3710-3714, 3719, 3720, 3729, 3762, unless otherwise noted.
(3)
(A) Dividing the total cost for VA personnel and overhead salary and benefits costs by the average number of properties on hand and adjusting this figure based on the average holding time for properties sold during the preceding fiscal year; then
(B) Dividing the figure calculated in paragraph (3)(i)(A) of this definition by the VBA ratio of personal services costs to total obligations.
(ii) The three cost averages will be added to the average loss (or gain) on property sold during the preceding fiscal year (based on the average property purchase price) and the sum will be divided by the average fair market value at the time of acquisition for properties which were sold during the preceding fiscal year to derive the percentage to be used in estimating net value.
The addition and revisions read as follows:
(e) * * *
(1) * * *
(vi) The obligor being released is not the current titleholder to the property and there are no indications of fraud, misrepresentation, or bad faith on the obligor's part in obtaining the loan or disposing of the property or in connection with the loan default.
(4) Determinations made under paragraphs (e)(1) and (e)(2) of this section are intended for the benefit of the Government in reducing the amount of claim payable by VA and/or avoiding the establishment of uncollectible debts owing to the United States. * * *
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Because EPA received adverse comment, we are withdrawing the direct final rule for Municipal Solid Waste Landfill Location Restrictions for Airport Safety. We published the direct final rule on July 11, 2002 (67 FR 45915)
As of October 8, 2002, EPA withdraws the direct final rule published at 67 FR 45915, on July 11, 2002.
Mary Moorcones, Office of Solid Waste and Emergency Response, Office of Solid Waste, Municipal and Industrial Solid Waste Division (mail code 5305W), U.S. Environmental Protection Agency Headquarters (EPA HQ), 1200 Pennsylvania Avenue, NW, Washington, DC 20460; telephone: 540-338-1348; e-mail: <
Federal Communications Commission.
Final rule.
In this document, the Commission announces that it will terminate and close CC Docket No. 92-90. On September 12, 2002, the Commission adopted a Notice of Proposed Rulemaking (NPRM) on its rules implementing the Telephone Consumer Protection Act of 1991 (TCPA). The NPRM seeks comment on whether the Commission's rules governing unsolicited advertising using the telephone and facsimile machine need to be revised in order to more effectively carry out Congress's directives in the TCPA. The Commission will close and terminate CC Docket No. 92-90 and open a new docket to address the issues raised in this proceeding.
Effective October 8, 2002.
Erica H. McMahon or Richard D. Smith at 202-418-2512, Consumer & Governmental Affairs Bureau.
On September 12, 2002, the Commission adopted an NPRM and Memorandum Opinion and Order in CG Docket No. 02-278 and CC Docket No. 92-90, FCC 02-250. In the NPRM, the Commission seeks comment on whether to revise, clarify or adopt any additional rules pursuant to the TCPA on the use of telephone and facsimile machines to deliver unsolicited advertisements. The Commission also seeks comment on whether to reconsider the option of establishing a national do-not-call list. In the Memorandum Opinion and Order, the Commission notes that the telemarketing marketplace has undergone significant changes. In addition, the Commission has received thousands of complaints from consumers who allege violations of the TCPA and our rules and orders. Based on these complaints, the changes in the way telemarketing is conducted, and our decision to revisit the option of establishing a national do-not-call list, it is clear that the focus of this proceeding has changed significantly from when the
Telephone.
Federal Communications Commission.
Final rule.
The Commission, at the request of Young Broadcasting of Sioux Falls, Inc., licensee of station KPLO-TV, substitutes DTV channel 13 for DTV channel 14 at Reliance, South Dakota.
Effective October 25, 2002.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MB Docket No. 02-101, 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. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Digital television broadcasting, Television.
Part 73 of Title 47 of the Code of Federal Regulations is amended as follows:
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Commission, at the request of KB Prime Media LLC, substitutes DTV channel 42 for NTSC channel 62+ at Hammond, Louisiana.
Effective November 4, 2002.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MB Docket No. 02-131, adopted September 13, 2002, and released September 19, 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. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Digital television broadcasting, Television.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Correcting amendment.
The Federal Communications Commission published in the
Effective September 3, 2002.
Pam Blumenthal, Media Bureau, (202) 418-1600.
The FCC published a document in the
As published, the final regulations contain an error, which may prove to be misleading, and needs to be clarified.
Digital television broadcasting, Television.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Commission, at the request of Young Broadcasting of Sioux Falls, Inc., substitutes DTV channel 2 for DTV channel 25 at Florence, South Dakota.
Effective October 25, 2002.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MB Docket No. 02-102, 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. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Digital television broadcasting, Television.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
The Commission, at the request of Indiana Broadcasting LLC, licensee of station WANE-TV, substitutes DTV channel 31 for DTV channel 4 at Fort Wayne, Indiana.
Effective October 25, 2002.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MM Docket No. 01-302, 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. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Digital television broadcasting, Television.
47 U.S.C. 154, 303, 334 and 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Commercial quota adjustments.
NMFS announces adjustments to the 2002 commercial Atlantic bluefish quota for the States of Maryland and the Commonwealth of Virginia. This action complies with regulations implementing the Fishery Management Plan for Atlantic Bluefish (FMP), which require that landings in excess of a state's commercial quota be deducted from that state's quota the following year. The FMP also allows two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), to transfer or combine part or all of their annual commercial quota. The Regional Administrator must consider the criteria set forth in § 648.160(f)(1) in the evaluation of requests for quota transfers or combinations. The public is advised that quota adjustments have been made and is informed of the revised quotas for the affected states.
Effective October 7, 2002 through December 31, 2002.
Myles A. Raizin, Fishery Policy Analyst, 978-281-9104.
Regulations implementing Atlantic bluefish management measures are found at 50 CFR part 648, subpart J. The regulations require annual specification of a commercial quota that is apportioned among the Atlantic coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.160. The final specifications for the 2001 Atlantic bluefish fishery set a total commercial quota equal to 9.58 million lb (4.35 million kg)(66 FR 23625; May 9, 2001). Maryland and Virginia's quota shares were calculated to be 287,662 lb (130,518 kg) and
Section 648.160(e)(2) provides that all landings in a state shall be applied against that state's annual commercial quota. Any landings in excess of the state's quota must be deducted from that state's annual quota for the following year.
Based on dealer reports and other available information, NMFS has determined that, in 2001, the State of Maryland landed 130,451 lb (59,188 kg) and the Commonwealth of Virginia landed 790,477 lb (358,655 kg) of bluefish causing overages of 42,789 lb (19,414 kg) and 52,065 lb (23,623 kg) for Maryland and Virginia, respectively.
On June 6, 2002, final specifications for the 2002 commercial Atlantic bluefish became effective (67 FR 38909). Total commercial harvest was specified at 10.5 million lb (4.76 million kg). Maryland and Virginia's shares of the quota were 315,189 lb (142,967 kg) and 1,247,348 lb (565,787 kg), respectively. Consistent with the regulations regarding the disposition of overages, the 2002 Atlantic bluefish commercial quota for Maryland is hereby reduced by 42,789 lb (19,414 kg) to 272,400 lb (123,593 kg). The 2002 Atlantic bluefish commercial quota for Virginia is hereby reduced by 52,065 lb (23,623 kg) to 1,195,283 lb (541,833 kg).
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
Authority: 16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2002 Pacific cod total allowable catch (TAC) apportioned to vessels catching Pacific cod for processing by the offshore component of the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), October 3, 2002, until 2400 hrs, A.l.t., December 31, 2002.
Mary Furuness, 907-586-7228, or
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2002 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the offshore component in the Western Regulatory Area of the GOA is 1,685 metric tons (mt) as established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002 and 67 FR 34860, May 16, 2002).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2002 Pacific cod TAC apportioned to vessels catching Pacific cod for processing by the offshore component of the Western Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,385 mt, and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Western Regulatory Area of the GOA.
Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Rural Utilities Service, USDA.
Proposed rule.
The Rural Utilities Service (RUS) is proposing to amend its regulation on extensions of payments of principal and interest, to include a maximum interest rate a RUS Borrower can charge on deferments for programs relating to consumer loans. The maximum interest rate will not be more than 300 basis points above the average interest rate on the note(s) being deferred. This limit would allow the Borrower to offset all or part of the administrative costs involved. In addition, this proposed rule sets forth the procedure for RUS Borrowers to request a Section 12(a) extension for distributed generation projects. These changes are intended to clarify the procedures Borrowers are to follow when requesting extensions of payments of principal and interest.
Written comments must be received by RUS or carry a postmark or equivalent no later than December 9, 2002.
Written comments should be addressed to Al Rodgers, Deputy Assistant Administrator, Electric Program, U.S. Department of Agriculture, Rural Utilities Service, Room 4037 South Building, Stop 1560, 1400 Independence Avenue, SW., Washington, DC 20250-1560. Telephone (202) 720-9547. RUS requires a signed original and three copies of all comments (7 CFR Part 1700). All comments received will be made available for inspection in room 4037 South Building during regular business hours.
Gail P. Salgado, Management Analyst, Rural Utilities Service, Electric Program, Room 4024, South Building, Stop 1560, 1400 Independence Avenue, SW., Washington, DC 20250-1560. Telephone (202) 205-3660.
This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted; no retroactive effect will be given to this rule; and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)) administrative appeals procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.
The Administrator of RUS has determined that this rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), RUS invites comments on this information collection for which RUS intends to request approval from the Office of Management and Budget (OMB).
Comments on this notice must be received by December 9, 2002.
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 will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumption used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to F. Lamont Heppe, Jr., Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Ave., SW., Stop 1522, Room 4034 South Building, Washington, DC 20250-1522.
Copies of this information collection can be obtained from Michele Brooks, Program Development and Regulatory Analysis, at (202) 690-1078.
All responses to this information collection and recordkeeping notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
This rule contains no Federal mandates (under the regulatory provisions of title II of the Unfunded Mandates Reform Act) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.
The Administrator of RUS has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The program described by this rule is listed in the Catalog of Federal Domestic Assistance programs under number 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402-9325, telephone number (202) 512-1800.
This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034) advising that RUS loans and loan guarantees are not covered by Executive Order 12372.
On January 9, 2001, at 66 FR 1604, the Rural Utilities Service (RUS) published a proposed rule, 7 CFR Part 1721—Extensions of Payments of Principal and Interest, which proposed adding procedures and conditions under which Borrowers may request extensions of the payment of principal and interest. RUS Bulletins 20-5:320-2 and 20-23, which previously addressed extensions of principal and interest, were rescinded with the publication of the subsequent final rule, which was published in the
RUS recognizes that distributed generation projects using either renewable or non-renewable energy sources properly coordinated and dispersed throughout rural electric utility service territories have the potential to enhance rural development through the creation of new jobs to install, operate, and maintain systems.
Distributed generation projects strategically dispersed throughout a rural electric utility service area, near specific customers or load centers, can also be a cost-effective means of providing reliable electric service to distribution consumers. However, randomly installed distributed generation projects have the potential to negatively impact the electric system and to increase overall system costs, especially on rural electric distribution systems. RUS proposes to minimize these potential negative impacts by limiting individual unit capacity of consumer owned distributed generation projects eligible for this program. Distributed generation projects to be owned by distribution Borrowers would not be limited as proposed because such projects are expected to receive a more coordinated planning effort to benefit the entire system membership.
The intent of RUS in promulgating this proposed regulation is to create a readily available source of locally controlled financing to develop distributed generation projects, that, like the already eligible renewable energy projects, are designed and administered to be in the best interest of the member of the distribution Borrower, the Borrower requesting the deferment, and the local community without impairing RUS loan feasibility and security at either the power supply or distribution level.
Renewable energy is considered a type of distributed generation. Additional eligibility purposes for renewable energy is included in 7 CFR 1721.104(c).
RUS also proposes to establish a maximum interest rate a RUS Borrower can charge on deferments for programs relating to consumer loans. The maximum interest rate will not be more than 300 basis points above the average interest rate on the note(s) being deferred. This limit would be used to offset all or part of the Borrower's administrative costs.
7 CFR 1710 is being amended to add a new definition of “Distributed generation” and to remove and replace the definitions of “Off-grid renewable energy system,” “On-grid renewable energy system,” and “Renewable energy system.”
Electric power, Electric utilities, Loan programs—energy, Reporting and recordkeeping requirements, Rural areas.
Electric power, Loan programs—energy, Rural areas.
For the reasons set forth in the preamble, RUS proposes to amend 7 CFR chapter XVII as follows:
1. The authority citation for part 1710 continues to read:
7 U.S.C. 901
2. Amend § 1710.2(a) by adding a new definition of “Distributed generation” in alphabetical order and by revising definitions of “Off-grid renewable energy system,” “On-grid renewable energy system,” and “Renewable energy system” as follows:
3. The authority citation for part 1721 continues to read:
7 U.S.C. 901
4. Amend § 1721.103 by adding paragraph (c) to read as follows:
(c) The maximum interest rate a RUS Borrower can charge on deferments for programs relating to consumer loans,
5. Amend § 1721.104 by;
a. Revising paragraph (c)(1)(ii);
b. Redesignating paragraph (d) as (e); and
c. Adding a new paragraph (d).
This revision and addition are to read as follows:
(c) * * *
(1) * * *
(ii) Electric power system interfaces;
(d)
(1) A Borrower may request that RUS defer principal payments to enable the Borrower to finance distributed generation projects. Amounts deferred under this program can be used to cover costs to install all or part of a distributed generation system that:
(i) The Borrower will own and operate, or
(ii) The consumer owns, provided the system owned by the consumer does not exceed 5KW.
(2) A distributed generation project may include one or more individual systems.
7. Amend § 1721.105 by redesignating paragraph (d) as (e) and by adding a new paragraph (d) to read as follows:
(d)
(1) A letter from the Borrower's General Manager requesting an extension of principal payments for the purpose of financing distributed generation projects and describing the details of the project, and
(2) A copy of the board resolution establishing the distributed generation projects program.
8. Amend § 1721.106 by revising the heading of paragraph (b) to read as follows:
(b)
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to revise an existing airworthiness directive (AD), applicable to certain Boeing Model 757 series airplanes, that currently requires inspections, adjustments, and functional checks of the engine thrust reverser system; and modification of the engine thrust reverser directional control valve. The existing AD also requires installation of an additional thrust reverser locking feature and periodic functional tests of the locking feature following installation. This action would reduce the applicability in the existing AD. The actions specified by this AD are intended to prevent deployment of a thrust reverser in flight and subsequent reduced controllability of the airplane.
Comments must be received by November 22, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-341-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 Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport
John Vann, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1024; fax (425) 227-1181.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
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-341-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-341-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On January 3, 1994, the FAA issued AD 94-01-10, amendment 39-8792 (FR 59 FR 4558, February 1, 1994), applicable to certain Boeing Model 757 series airplanes, to require inspections, adjustments, and functional checks of the engine thrust reverser system; and modification of the engine thrust reverser directional control valve. That action also requires installation of an additional thrust reverser locking feature and periodic functional tests of the locking feature following installation. That action was prompted by results of a safety review of the thrust reverser system on these airplanes. The requirements of that AD are intended to prevent deployment of a thrust reverser in flight and subsequent reduced controllability of the airplane.
Since the issuance of AD 94-01-10, we have determined that the applicability in that AD (Boeing Model 757 series airplanes equipped with Pratt and Whitney PW2000 series engines) should be limited to Boeing Model 757-200 and -200PF series airplanes equipped with Pratt and Whitney PW2000 series engines. This determination was made because the intervals for the repetitive inspections of the engine thrust reverser system for Model 757-300 series airplanes, as required by the existing AD, have been included as a certification maintenance requirement in the airplane certification program.
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 revise AD 94-01-10 to continue to require the same actions specified in the existing AD, and would reduce the applicability.
Since this proposed AD would merely delete airplanes from the applicability of the proposed rule, it would add no additional costs, and would require no additional work to be performed by affected operators. The current costs associated with this amendment are reiterated below for the convenience of affected operators:
The FAA estimates that 270 airplanes of U.S. registry would be affected by this proposed AD.
It will take approximately 624 work hours per airplane to accomplish the modification required by AD 94-01-10, at an average labor rate of $60 per work hour. Required parts will be supplied by the manufacturer at no cost to operators. Based on these figures, the cost impact of the modification currently required by this AD is estimated to be $37,440 per airplane.
It will take approximately 1 work hour per airplane to accomplish the periodic functional tests required by AD 94-01-10, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the periodic functional tests currently required by this AD on U.S. operators is estimated to be $60 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 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
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-8792 ( FR 59 FR 4558, February 1, 1994), and by adding a new airworthiness directive (AD), to read as follows:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (g)(1) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent deployment of a thrust reverser in flight and subsequent reduced controllability of the airplane, accomplish the following:
(a) Within 14 days after September 16, 1991 (the effective date of AD 91-20-09, amendment 39-8043), accomplish either paragraph (a)(1) or (a)(2) of this AD.
(1) Accomplish both paragraphs (a)(1)(i) and (a)(1)(ii) of this AD:
(i) Inspect the thrust reverser Directional Control Valve (DCV) assemblies of both engines to determine the solenoid-driven pilot valve's part number, in accordance with Boeing Alert Service Bulletin 757-78A0027, dated September 9, 1991.
(A) If any DCV has a suspect pilot valve as specified in the service bulletin, prior to further flight, replace the DCV with a DCV that has a part number of a non-suspect solenoid-driven pilot valve, in accordance with the service bulletin.
(B) If a DCV has a non-suspect solenoid-driven pilot valve as specified in the service bulletin, that pilot valve does not need to be replaced.
(ii) Perform all tests and inspections of the engine thrust reverser control and indication system on both engines in accordance with Boeing Service Bulletin 757-78-0025, dated September 9, 1991. Prior to further flight, correct any discrepancy found in accordance with the service bulletin.
(2) Accomplish paragraph (a)(1) of this AD on one engine's thrust reverser and deactivate the other engine's thrust reverser, in accordance with Section 78-31-1 of Boeing Document D630N002, “Boeing 757 Dispatch Deviation Guide,” Revision 8, dated January 15, 1991.
(b) Within 24 days after September 16, 1991, the requirements of paragraph (a)(1) of this AD must be accomplished on both engines' thrust reverser systems.
(c) Repeat the tests and inspections specified in paragraph (a)(1)(ii) at intervals not to exceed 3,000 flight hours, and prior to further flight following any maintenance that disturbs the thrust reverser control system. Prior to further flight, correct any discrepancy found in accordance with Boeing Service Bulletin 757-78-0025, dated September 9, 1991.
(d) Within 5 years after March 3, 1994 (the effective date of AD 94-01-10, amendment 39-8792), install an additional thrust reverser system locking feature (sync lock installation), in accordance with Boeing Service Bulletin 757-78-0028, Revision 1, dated October 29, 1992, or Revision 2, dated January 14, 1993.
(e) Within 1,000 hours time-in-service after installing the sync lock required by paragraph (d) of this AD (either in production or by retrofit), or within 1,000 hours time-in-service after March 3, 1994, whichever occurs later; and thereafter at intervals not to exceed 1,000 hours time-in-service: Perform functional tests of the sync lock in accordance with the “Thrust Reverser Sync Lock Integrity Test” procedures specified below. If any discrepancy is found during any test, prior to further flight, correct it in accordance with procedures described in the Boeing 757 Maintenance Manual.
A. Use this procedure to test the integrity of the thrust reverser sync locks.
A. Prepare for the Thrust Reverser Sync Lock Test.
(1) Open the AUTO SPEEDBRAKE circuit breaker on the overhead circuit breaker panel, P11.
(2) Do the steps that follow to supply power to the thrust reverser system:
(a) Make sure the thrust levers are in the idle position.
(b) Make sure the thrust reverser halves are closed.
(c) Make sure the core cowl panels are closed.
(d) Put the EEC MAINT POWER switch or the EEC POWER L and EEC POWER R switches to the ALTN position.
(e) For the left engine:
(1) Put the EEC MAINT CHANNEL SEL L switch to the AUTO position.
(2) Put the L ENG fire switch to the NORM position.
(f) For the right engine:
(1) Put the EEC MAINT CHANNEL SEL R switch to the AUTO position.
(2) Put the R ENG fire switch to the NORM position.
(g) Make sure the EICAS circuit breakers (6 locations) are closed.
(h) Make sure these circuit breakers on the main power distribution panel, P6, are closed:
(i) Make sure these circuit breakers on the overhead circuit breaker panel, P11, are closed:
(j) For the left engine, make sure these circuit breakers on the P11 panel are closed:
(k) For the right engine, make sure these circuit breakers on the P11 panel are closed:
(l) Supply electrical power.
(m) Remove the pressure from the left (right) hydraulic system.
B. Do the Thrust Reverser Sync Lock Test.
(1) Move and hold the manual unlock lever on the center actuator on both thrust reverser sleeves to the unlock position.
(2) Make sure the thrust reverser sleeves did not move.
(3) Move the left (right) reverser thrust lever up and rearward to the idle detent position.
(4) Make sure both thrust reverser sleeves move aft (approximately 0.15 to 0.25 inch).
(5) Release the manual unlock lever on the center actuators.
(6) Pressurize the left (right) hydraulic system.
(7) Make sure the thrust reverser extends.
(8) Move the left (right) reverser thrust lever to the fully forward and down position to retract the thrust reverser.
C. Put the Airplane Back to its Usual Condition.
(1) Remove hydraulic pressure.
(2) Close the left and right fan cowls.
(3) Close the AUTO SPEEDBRAKE circuit breaker on the P11 panel.
(4) Remove electrical power if it is not necessary.
D. Repeat the Thrust Reverser Sync Lock Test on the other engine.”
(f) Installation of the sync lock, as required by paragraph (d) of this AD, constitutes terminating action for the requirements of paragraphs (a) through (c) of this AD.
(g)(1) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, Transport Airplane Directorate. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
(2) Alternative methods of compliance, approved previously in accordance with AD 91-20-09, amendment 39-8043; and AD 94-01-10, amendment 39-8792; are approved as alternative methods of compliance with the requirements of this AD.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(h) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Bureau of the Census, Department of Commerce.
Notice of proposed rulemaking and request for comments.
Following the 1970 decennial census and every decennial census thereafter, the Bureau of the Census (Census Bureau) has provided the opportunity for county, local, and tribal governments to obtain certified population and housing unit counts for areas in which their boundaries have changed from those used to tabulate the results of the immediately preceding decennial census. These changes might occur either as the result of newly created governmental units (incorporations), additions to existing governmental units (annexations), the combination of two existing governmental units (merger), or other circumstances. These governmental units are established by law for the purpose of implementing specified general-or special-purpose governmental functions; the certification process is available to both.
Most governmental units have legally established boundaries and names, and have officials (usually elected) who have the power to carry out legally prescribed functions, provide services for residents, and raise revenues. These are commonly referred to as general-purpose governmental units and typically include counties, boroughs, cities, towns, villages, townships, and federally recognized American Indian reservations. Special-purpose governmental units typically are limited to one function, such as school districts.
This update service was suspended on June 1, 1998, to accommodate the taking of the 2000 census and will resume in the fall of 2002. The Census Bureau is proposing this rule to reinstate the process by creating a centralized system for certifying population and housing counts and to establish a fee structure that accurately reflects the costs associated with this certification process. This service will be a permanent process, but one that will be temporarily suspended during future decennial censuses. Typically, the Census Bureau will suspend this service, and direct its resources to the decennial census, for a total of five years—the two years preceding the decennial census, the decennial census year, and the two years following it. The Census Bureau will issue notices in the
Written comments must be submitted on or before November 7, 2002.
Please direct all written comments on this proposed program to the Director, U.S. Census Bureau, Room 2049, Federal Building 3, Washington, DC 20233.
Requests for additional information on this proposed action should be directed to Rodger V. Johnson, Population Distribution Branch, Population Division, U.S. Census Bureau, Room 2324, Federal Building 3, Washington, DC 20233, (301) 763-2419, by fax (301) 457-2481, or e-mail (
The Census Bureau first began to certify decennial census population counts for updated governmental unit boundaries in 1972 in response to the request of local governments to establish eligibility for participation in the General Revenue Sharing Program, authorized under Public Law 92-152. At the time, the Census Bureau established a fee-based program, enabling governmental units with annexations to obtain updated decennial census population counts that included the population living in annexed areas. The Census Bureau also received funding from the U.S. Department of the Treasury to make those determinations for larger annexations that met prescribed criteria and for newly formed general-purpose governmental units. The General Revenue Sharing Program ended on September 30, 1986, but the certification program continued into 1988 with support from the Census Bureau. The program was suspended to accommodate the taking of the 1990 decennial census and resumed in 1992. The Census Bureau supported the program through fiscal year 1995 for cities with large annexations and through fiscal year 1996 for newly incorporated places. The program was continued on a fee-basis only until June 1, 1998, at which time it was suspended for the 2000 decennial census (see
Although there is no legal requirement that the Census Bureau provide this service, there is a demand by governmental units for Census 2000 population and housing counts certified to reflect boundary updates or the formation of new governmental units dated after January 1, 2000 (the legally effective date for boundaries used in tabulating Census 2000). Title 13, Section 8, allows the Census Bureau to continue this program by providing certain statistical materials (certified population and housing counts) upon payment of costs for the service. The Census Bureau is the sole provider of this service obtained through the processing of individual Census 2000 enumeration records protected by the confidentiality restrictions of Title 13, United States Code (U.S.C.).
A geographically updated population certification from the Census Bureau confirms that an official population count is an accurate retabulation of the Census 2000 population as configured for the new boundaries. A population certification may be needed for many reasons. For example, general-purpose governments may be required by state law to produce a Census Bureau population certification for funds disbursement from their respective states, or federally sponsored programs may require or honor a Census Bureau population certification for program eligibility. Special-purpose governmental units also may need official certification of census population and housing counts for other purposes.
The Census Bureau will reinstate a fee-based program that will use current geographic and demographic programs to support customer requests. The proposed fee structure reflects variations in resources needed to meet customer requirements for certifications of standard governmental units, as listed later in this notice (see paragraph (c) under section 50.60, “Request for Certification”). To create a consistent process to meet the anticipated demand for the service, the Census Bureau is proposing an amendment to Title 15 CFR part 50:
• Add a new section 50.60 containing the Census Bureau's certification process.
• Establish a consistent fee structure. The fees will depend on the degree of geographic processing tasks required to complete the certification request and on the urgency of the request. There are two types of fees, based upon whether the population certificate is generated through an annually scheduled geographic update process, or is expedited in order to meet customer needs. The annual and expedited certification fees further depend on whether or not additional geographic data must be acquired from the customer and reviewed, tracked, and processed. The lowest fee applies to customers whose geographic data have been collected as part of the annual geographic update process and whose schedules permit waiting until the annual processing has been completed. The highest fee applies to customers from whom additional geographic data must be acquired (over and above the normal annual process) and who also specify expedited processing.
• Require requests for certifications to contain information on Form BC-1869(EF), “Request for Geographically Updated Official Population Certificate.” (See the Census Bureau's Web site,<
A notice of proposed rulemaking is not required by Title 5 U.S.C. 553, or any other law, for this rule of agency organization, procedure and practice that involves a matter relating to public property, loans, grants, benefits, or contracts. Accordingly, it is exempt from the notice and comment provisions of the Administrative Procedure Act under 5 U.S.C. 553(a)(2) and 5 U.S.C. 553(b)(A). Therefore, the analytical requirements of the Regulatory Flexibility Act are not applicable (5 U.S.C. 601,
This rule has been determined to be not significant for purposes of Executive Order 12866. This rule does not contain policies with federalism implications as that term is defined in Executive Order 12612.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), Title 44, U.S.C., Chapter 35, unless that collection of information displays a current Office of Management and Budget control number. This notice does not represent a collection of information and is not subject to the PRA's requirements. The form referenced in the rule, Form BC-1869(EF), will collect only information necessary to process a certification request. As such, it is not subject to the PRA's requirements (5 CFR 1320.3(h)(1)).
Census data, Geographic updates, Population census, Seals and insignia, Statistics.
1. The authority citation for 15 CFR part 50 continues to read as follows:
Sec. 3, 49 Stat. 293, as amended; and 15 U.S.C. 192a. Interprets or applies sec. 1, 40 Stat. 1256, as amended; sec. 1, 49 Stat. 292; sec. 8, 60 Stat. 1013, as amended; 15 U.S.C. 192, 189a; and 13 U.S.C. 8.
2. Add section 50.60 to read as follows:
(a)
(1) The Census Bureau charges customers a preset fee for this service according to the amount of work involved in compiling the population and housing counts, as determined by the resources expended to meet customer requirements and the set cost
(2) [Reserved]
(b)
(1)
(i) The annual certification process also is available to standard governmental units that are not in the Boundary and Annexation Survey of that year. Governmental units electing participation in this process must draft the legal boundary updates upon Census Bureau-supplied maps. The legally effective dates of the boundaries may not be later than January 1 of the calendar year. The Census Bureau must receive the census maps annotated with the legally certified boundaries and associated address ranges by April 1 of the same calendar year. The Census Bureau will determine that the legal boundary updates are acceptable by verifying that the information is complete, legible, and usable, and that the legal boundaries on the maps have been attested by the governmental unit as submitted in accordance with state law or tribal authority.
(ii) [Reserved]
(2)
(A) Certification of boundary updates legally effective after January 1 of the current calendar year; or
(B) Certification of boundary updates reported to the Census Bureau after April 1 of the current calendar year; or
(C) Certification of boundary updates by the Census Bureau before October 1 of the current calendar year.
(ii) Governmental units electing participation in this option must draft the legal boundary updates upon Census Bureau-supplied maps. To allow sufficient processing time, the Census Bureau must receive acceptable census maps annotated with the legally certified boundaries and associated address ranges no later than three months before the date requested by the customer to receive the population certificate. The Census Bureau will determine that the legal boundary updates are acceptable by verifying that the information is complete, legible, and usable, and that the legal boundaries on the maps have been attested as submitted in accordance with state law or tribal authority.
(c)
(1) Federally recognized American Indian reservations and off-reservation trust land entities [tribal government]; this includes a reservation designated as a colony, community, Indian community, Indian village, pueblo, rancheria, reservation, reserve, and village.
(2) Counties and statistically equivalent entities, including the following: Counties in 48 states; boroughs, municipalities, and census areas in Alaska (state official); parishes in Louisiana; and municipios in Puerto Rico.
(3) Minor civil divisions as recognized in Census 2000 in the following 28 states: Arkansas, Connecticut, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, West Virginia, and Wisconsin.
(4) Incorporated places, including the following: boroughs in Connecticut, New Jersey, and Pennsylvania; cities in 49 states and the District of Columbia; cities, boroughs, and municipalities in Alaska; towns in 30 states (excluding towns in New England, New York, and Wisconsin, which are minor civil divisions); and villages in 20 states.
(5) Consolidated cities.
(6) School districts.
(d)
(e)
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing today to modify the designation of the Historic Area Remediation Site (HARS) to establish a HARS-specific worm tissue polychlorinated biphenyl (PCB) criterion of 113 parts per billion (ppb) for use in determining the suitability of proposed dredged material for use as Remediation Material. This amendment to the HARS designation would
Among other things, the September 27, 2000 MOA established an interim guidance value of 113 ppb for PCBs in the tissues of bioassayed worms, to be considered when determining whether proposed dredged material from the New York/New Jersey Harbor is acceptable for placement at the HARS. At the time of the MOA, the agencies agreed that, while the peer review was not complete, the science review warranted the implementation of this interim change. The September 2000 MOA selected PCBs from the other contaminants because PCBs were specifically mentioned in the HARS designation. This interim change is designed to keep remediation of the HARS current with the latest scientific information concerning PCBs.
Upon signing the MOA, EPA withdrew its concurrence (given prior to the MOA) for the U.S. Gypsum Corporation to place dredged material at the HARS as Remediation Material. U.S. Gypsum brought suit against the USACE and EPA, and in a July 10, 2002 decision, Judge Jed Rakoff of the U.S. District Court, Southern District of New York, held that the announcement of the 113 ppb interim value in the MOA was
1. October 28, 2002, at 7:00 P.M., Monmouth Beach, New Jersey.
2. October 29, 2002, at 2:00 PM., New York, New York.
2. Electronically: Submit your comments electronically to:
1. Monmouth Beach, New Jersey: Monmouth Beach Municipal Auditorium, 22 Beach Road, Monmouth Beach, New Jersey, 07750.
2. New York City, New York: Room 27D, EPA Region 2, 290 Broadway New York, New York 10007-1866.
Mr. Douglas Pabst, Team Leader, Dredged Material Management Team, U.S. Environmental Protection Agency Region 2, 290 Broadway, New York, NY 10007-1866 (E-mail
Entities potentially affected by this action include those who might have sought or will seek permits to place dredged material into ocean waters at the HARS for purpose of remediation, under the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. 1401
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your organization is affected by this action, you should carefully consider whether your organization is subject to the requirement to obtain an MPRSA permit in accordance with the Purpose and Scope provisions of 40 CFR 220.1, and you wish to use the site subject to today's proposal. If you have any questions regarding applicability of this action to a particular entity, please consult the person listed in the
Other entities potentially affected by today's proposal would include commercial and recreational fishing interests using New York Bight Apex fishing and shellfish grounds. However, by establishing a pass/fail interim PCB tissue criterion that is approximately 75 percent lower than the previously established 400 ppb worm tissue guideline for remediation of areas adversely impacted by historic disposal activities (see discussion below), any effects of today's proposal on fishery and shellfish resources would be expected to be positive.
In 1972, the Congress of the United States enacted the MPRSA to address and control the dumping of materials into ocean waters. Title I of MPRSA authorized EPA (and the USACE in the case of dredged material) to regulate dumping in ocean waters. Since the MPRSA was enacted, and through its subsequent amendments (including the Ocean Dumping Ban Act of 1988, which prohibited ocean dumping of sewage sludge and industrial waste), dumping in the New York Bight has been dramatically reduced.
Regulations implementing the MPRSA are set forth at 40 CFR Parts 220 through 229. With few exceptions, the MPRSA prohibits the transportation of material from the United States for the purpose of ocean dumping except as may be authorized by a permit issued under the MPRSA. The MPRSA divides permitting responsibility between EPA and the USACE. Under Section 102 of the MPRSA, EPA has responsibility for issuing permits for all materials other than dredged material (
Section 102(c) of the MPRSA also provides that EPA shall designate recommended times and sites for ocean dumping, and Section 103(b) further provides that the USACE shall use such EPA designated sites to the maximum extent feasible. EPA's ocean dumping regulations provide that EPA's designation of an ocean dumping site is accomplished by promulgation of a site designation in 40 CFR Part 228 specifying the site. On October 1, 1986, the Administrator delegated the authority to designate/de-designate ocean dumping sites for dredged material to the Regional Administrator of the Region in which the site is located. In accordance with that authority, EPA Region 2 designated the HARS in September 1997 for placement of dredged material suitable for use as Material for Remediation (40 CFR 228.15(d)(6) (62 FR 46142)). Pursuant to that designation, dredged material proposed for use at the HARS must be determined to be suitable for use as Remediation Material. Remediation Material is defined as uncontaminated dredged material (
The designation ensured that material be selected so that it will not cause significant undesirable effects including through bioaccumulation or unacceptable toxicity in accordance with 40 CFR 227.6. The HARS was designated for continuing use until EPA determines that the PRA (Primary Remediation Area: a nine square nautical mile area to be remediated) has been sufficiently capped with at least 1 meter of the Material for Remediation.
The HARS is being managed to reduce impacts of historical disposal activities at the site to acceptable levels (in accordance with 40 CFR 228.11 (c)). The HARS is being remediated with uncontaminated dredged material (
On September 27, 2000, EPA and the U.S. Army Corps of Engineers (USACE) entered into a Memorandum Of Agreement (MOA) that announced a schedule and a process by which EPA and USACE would review the science and the guidelines used in the evaluation of dredged material proposed for placement as Remediation Material at the HARS. Specifically, the Agencies committed to the shared objective of completing the scientific peer review process, initiated by EPA, and responding to the input from peer review and the public.
EPA is proposing today to modify the HARS designation (40 CFR 228.15(d)(6)) to establish a HARS-specific worm tissue PCB criterion of 113 ppb for dredged material proposed for use as Remediation Material, pursuant to 40 CFR 228.10 and 228.11(c). It should be noted that MPRSA site designation does not constitute or imply EPA's approval of actual placement of material at the site. Before placement of the Material for Remediation at the HARS may commence, the USACE must evaluate permit applications according to EPA's Ocean Dumping Regulations and obtain EPA's concurrence.
The need for remediating the HARS is described in detail in the HARS SEIS (EPA 1997a), associated proposed (62 FR 26267) and final (62 FR 46142) rulemaking, and the Response to Comments on the proposed rule (EPA, 1997b). In summary, the proposal to terminate and de-designate the MDS, and simultaneously redesignate the site and surrounding degraded areas as the HARS, is amply supported by the presence of toxic effects in the HARS (a Category III sediment characteristic), dioxin bioaccumulation exceeding Category I levels in worm tissue collected from the HARS (a Category II sediment characteristic), National Oceanic and Atmospheric Administration (NOAA) ER-L/ER-M exceedances in some HARS sediments, and PCB/TCDD contamination in area lobster stocks. While it is impossible to quantify how much of New York Bight Apex contamination is the direct result of past dredged material disposal, other ocean dumping activities (
Organisms living in or near these degraded surface sediments in near shore waters will be continually exposed to contaminants until the contaminants are buried by natural sedimentation, placement of Remediation Material, or otherwise isolated or removed. Exposed sediments can directly and indirectly impact benthic and pelagic organisms. Impacts to terrestrial organisms (including human beings) are also possible if the contaminants were to undergo trophic transfer.
NOAA tissue data from lobsters that were harvested in the New York Bight Apex in 1994 revealed that PCB concentrations in the hepatic tissue (tomalley) of the lobsters were above U.S. Food and Drug Administration consumption guidelines. It must be kept in mind that the lobsters analyzed in the NOAA study were harvested from wild stocks in the Apex, whose populations migrate seasonally through the region, including the HARS. Contamination of these animals cannot be definitively linked to specific areas of dredged
The evaluative framework used to determine suitability of dredged material for use as Remediation Material at the HARS was developed in 1996 for the MDS and revised in 1998 for the HARS. It is a framework for assessing the potential for human health and ecological effects by comparing bioaccumulation test results to guidance values. These guidance values were derived from researching the best available literature at the time. The 1996 framework continued the use of a PCB guidance value of 400 ppb for worm tissue based on the Matrix approach defined in the 1981 USACE guidance:
In 1998, EPA began the peer review process specified in the New York/New Jersey Harbor Estuary Program (HEP) Comprehensive Conservation and Management Plan (CCMP). A panel of 11 scientific peer reviewers submitted comments pertaining to the HARS evaluative framework and guidance values. For PCBs and the other matrix values, peer reviewers expressed concerns regarding the relevance of the Matrix approach developed in 1981, and recommended evaluating PCBs and the other matrix values, using human health and ecological risk assessment procedures (USEPA, 2000).
On September 27, 2000, EPA and the U.S. Army Corps of Engineers (USACE) entered into a Memorandum Of Agreement (MOA) that announced a schedule and a process by which EPA and USACE would review the science and the guidelines used in the evaluation of dredged material proposed for placement as Remediation Material at the HARS. Specifically, the Agencies committed to the shared objective of completing the scientific peer review process, initiated by EPA, and responding to the input from peer review and the public.
In addition, the MOA established an interim guidance value of 113 ppb for PCBs in the tissues of bioassayed worms, to be considered when determining whether proposed dredged material from the New York/New Jersey Harbor is acceptable for placement at the HARS. At the time of the MOA, the agencies agreed that, while the peer review was not complete, the science review warranted the implementation of the 113 ppb value on an interim basis. The September 2000 MOA addressed PCBs and not the other contaminants because PCBs were specifically mentioned in the HARS designation. In addition, experience in evaluating NY/NJ Harbor dredged material indicated that the PCB levels were often significant to the determination. This interim use of the 113 ppb value was intended to keep remediation of the HARS current with the latest scientific information concerning PCBs. The MOA states, “This change [PCBs] reflects current scientific developments and ensures that the agencies' approach remains consistent with the remedial objectives of the HARS designation. Notably, this change will result in improvements in the quality of HARS Remediation Material with respect to numerous parameters other than PCBs, because elevated PCB levels frequently are associated with elevated levels of other chemicals of concern.” The 113 ppb HARS-specific PCB value will improve the quality of HARS Remediation Material to reflect current scientific standards, and to provide for the continued management of the HARS to reduce impacts within the PRA to acceptable levels in accordance with 40 CFR 228.11(c), as required in 40 CFR 228.15(6)(A). The 113 ppb figure was understood to be an interim value, since the scientific processes and benchmark measures used to determine whether or not dredged material meets the remediation goals of the HARS were still under review. The review of the guidelines for the HARS has taken longer than anticipated in the MOA and is still underway.
Upon signing the MOA, EPA withdrew its concurrence (given prior to the MOA) for the U.S. Gypsum Corporation to place dredged material at the HARS as Remediation Material. U.S. Gypsum brought suit against the USACE and EPA, and in a July 10, 2002 decision, Judge Jed Rakoff of the U.S. District Court, Southern District of New York, held that the announcement of the 113 ppb interim value in the MOA was
This proposed HARS-specific worm tissue PCB value would remain in effect until EPA and the USACE develop a new HARS-specific evaluation process by evaluating and responding to the 2002 peer review comments on the human health proposal, conducting the scientific peer review on the ecological proposal, and responding to comments on the ecological proposal. In total, this effort may take up to 2 years to fully address and implement for all contaminants of concern.
In an effort to continuously incorporate and utilize the best available science to reduce adverse impacts that have occurred within the HARS (
This revision of the worm PCB Matrix value reflects EPA Region 2's interpretation and ongoing review of the science associated with responding to the 1998 peer review comments. This risk-based value was calculated using exposure assumptions chosen to represent specific conditions associated with consuming fish from the HARS. As
Uptake of HARS contaminants by marine organisms was assumed to occur through direct exposure to the sediments and/or through uptake from eating contaminated prey. For assessing ecological and human health risks, a simplified description of the food web was used to describe feeding relationships between species at the HARS. The New York Bight food web used in modeling transfer of contaminants was described by a simplified food chain consisting of three representative levels. These trophic levels were: bottom dwelling organisms, predators, and upper level predators.
For the purpose of evaluating risks to humans, it was assumed that fish consumption is the pathway of concern for humans to be exposed to contaminants in dredged material proposed for use as Remediation Material at the HARS, and that the fish consumed would be exposed through trophic transfer of contaminants from invertebrate prey. Because the HARS is located offshore and in open water, and because data shows that suspended and dissolved constituents of dredged material do not persist in the water column following release from the barge, pathways of human exposure other than consumption of seafood (
To determine whether a tested sediment would result in bioaccumulation that would cause significant undesirable effects with regard to human health, standard human health risk calculations were used to develop tissue values associated with specified levels of protection (cancer risk of 1×10
Evaluating human risks associated with contaminants in dredged material proposed for use at the HARS assumes that recreational anglers represent a reasonably maximally exposed (RME) population for assessing risks to humans. More explicitly stated, EPA Region 2 assumed that there is a subpopulation of anglers that fishes exclusively at the HARS and that all recreationally-caught fish reportedly consumed by this subpopulation of anglers are obtained by angling at the HARS. The assessment assumed that fish are filleted prior to being eaten. In addition, the assessment assumed that the consumed of fish did not use the HARS 100 percent of the time.
The following specific guideline measures and assumptions were applied to all human health risk/effects evaluations to estimate human exposure to HARS contaminants.
The regulations at 40 CFR 227.6 require that there be reasonable assurance that no significant undesirable effects will occur. The regulations further provide that such reasonable assurance be based on consideration of statistical significance of effects at the 95 percent confidence
Accordingly, for the purposes of this rule, to promote clarity and to address concerns that have been frequently and vigorously expressed by elected officials and members of the public, the 113 ppb PCB value would be applied directly to the arithmetic mean of the worm bioaccumulation tissue test results, as a pass/fail standard. In light of the unique nature of the HARS as a site with the purpose of remediating the area designated, this approach provides further assurance that no significant undesirable effects will occur, in accordance with 40 CFR 227.6 and will reduce impacts to acceptable levels in accordance with 40 CFR 228.11(c). As such, projects having arithmetic means of PCB worm concentrations above 113 ppb and whose bioaccumulation has been shown with 95% confidence to be statistically significant (as compared to accumulations in reference exposures) would be considered to be unsuitable for placement at the HARS as they would exceed the HARS-specific PCB tissue criterion necessary to achieve the remedial goal of the HARS.
As part of our overall review of the matrix values, including the ongoing peer review process, we are considering, among other things, whether and how statistical confidence limits should continue to be applied in evaluating bioaccumulation test results. This decision should not be understood as an indication that EPA will not continue to rely on statistical confidence limits in the future, for PCBs as well as for other contaminants of concern, after our ongoing scientific peer review of the HARS TEF is completed.
1. USEPA. 1997a. Supplement to the Environmental Impact Statement on the New York Dredged Material Disposal Site Designation for the Designation of the Historic Area Remediation Site (HARS) in the New York Bight Apex. May 1997.
2. USEPA. 1997b. Response to Comments on the May 13, 1997, Proposed Rule for the Simultaneous De-Designation and Termination of the Mud Dump Site (MDS) and Designation of the Historic Area Remediation Site (HARS). August 1997.
3. USEPA. 2000. Memorandum of Agreement: among the Department of the Army, the Environmental Protection Agency, and the U.S. Army Corps of Engineers. To Strengthen Environmental Protection of the Ocean Environment and to Promote Economic Progress in the Port of New York and New Jersey. September 27, 2000.
4. USEPA. 2000a. Proposed Changes to the Bioaccumulation Testing Evaluation Framework and Response to Scientific Peer Reviewers Comments on the Framework for Determining the Suitability of Dredged Material to be Placed at the Historic Area Remediation (HARS). October 19, 2000.
5. USEPA. 2000b. Memorandum to the File from Douglas Pabst. Subject: Modification of the Matrix Value for PCB in Worm Tissue. September 27, 2000.
1. Electronically. You may obtain electronic copies of this document and various support documents from the EPA home page at the
2. In person. The complete administrative record for this action has been established and includes supporting documentation as well as printed, paper versions of electronic comments. Copies of information in the record are available upon request. The official record of this rulemaking is available for inspection at the EPA Region 2 Library, 16th Floor, 290 Broadway, New York, NY 10007-1866. For access to the docket materials, call Rebecca Garvin at (212) 637-3185 between 9 am and 3:30 pm Monday through Friday, excluding legal holidays, for an appointment. The record is also available for viewing at EPA's Region 2 Field Office Library, 2890 Woodbridge Avenue, Building 209, MS-245, Edison, New Jersey 08837. For access to the docket materials at this facility, call Ms. Margaret Esser (732) 321-6762 between 9 am and 3:30 pm Monday through Friday, excluding legal holidays, for an appointment. The EPA public information regulation (40 CFR part 2) provides that a reasonable fee may be charged for copying.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.” It has been determined that this rule is not a “significant regulatory action” under the terms of the Executive Order 12866 and is therefore not subject to OMB review.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
After considering the economic impact of today's proposed rule on small entities, the Agency certifies that this action will not have a significant economic impact on a substantial number of small entities for reasons explained below.
For the purposes of assessing the impacts of today's rule on small entities,
EPA used current information concerning the potential universe of small entities that could be affected by the rule by obtaining information about all permits issued and any current permit applications. Since the HARS was first designated in 1997, the U.S. Army Corps of Engineers has received 17 permit applications for HARS placement, of which 14 permits were issued (Federal authorizations were not included in this analysis as the USACE is not a small entity), and there are currently 3 permit applications pending. As the HARS is anticipated to exist for a limited time, until the PRA has been remediated with at least one meter of Remediation Material, EPA believes it is reasonable to estimate that this universe of current and pending applications constitute the reasonable universe of entities affected by the proposed rule. Of the 17 permit applications, 4 (Castle Astoria Terminals, Inc., Port Imperial Marina, New York WaterWays, and International Matex Tank Terminals) are small entities, which is not a substantial number of small entities. Of the 4, 3 (Castle Astoria Terminals, Inc., Port Imperial Marina, and New York WaterWays) would have been affected by today's proposal, based upon past permitting information. Castle Astoria Terminals, Inc. has had a permit for HARS placement since 1999, but has not dredged to date. Port Imperial Marina, recently received a permit for HARS placement, but dredges very infrequently. New York WaterWays does not currently have a HARS placement permit, and has not dredged for many years. Further, these small entities are only a very small percentage of their SIC code.
In summary, based on past permit information, there would have been a small absolute number of small entities affected by the proposed rule, with very low impacts. As such, EPA concludes that the proposed rule will not have a significant impact on a substantial number of small entities.
This proposed rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal Mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under Section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. EPA estimated total annualized (post-tax) costs of compliance for the proposed rule to be $13.5 million. Of this total $13.5 million would be incurred by the private sector and $0 would be incurred by State and Local governments. Thus, this proposed rule is not subject to the requirements of Sections 202 and 205 of UMRA.
EPA also has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. This proposed rule would apply equally to all dredged material to be placed at the HARS, thus there would be no unique effect of the rule on small governments. This rule is not anticipated to result in significant expenditures for small governments based on the universe of permit holders and applicants for the HARS. Thus, the requirements of Section 203 of UMRA also do not apply to this rule.
Executive Order 13132, entitled “Federalism” (64
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus Executive Order 13132 does not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65
This proposed rule does not have Tribal implications. It would 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. EPA does not have information indicating that any Tribe would incur costs because of this rule. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045 (62
This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66
Section 12(d) of the National Technology Transfer Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency must conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.
No action from this proposed rule will have a disproportionately high and adverse human health and environmental effect on any segment of the population. In addition, this rule does not impose substantial direct compliance costs on those communities. Accordingly, the requirements of Executive Order 12898 do not apply.
Section 102(c) of the National Environmental Policy Act of 1969, Section 4321 et seq, (NEPA) requires Federal agencies to prepare environmental impact statements (EIS) for major Federal actions significantly affecting the quality of the human environment. The object of NEPA is to build into the Agency decision making process careful consideration of all environmental aspects of proposed actions. Although EPA ocean dumping program activities have been determined to be “functionally equivalent” to NEPA, EPA has voluntarily undertaken to follow NEPA procedures when designating ocean dumping sites.
In August 1982, EPA published a final EIS designation of the New York Dredged Material Disposal Site (Mud Dump Site).” The EIS assessed the environmental impacts of establishing an ocean disposal site for 100 million cubic yards (mcy) of dredged materials generated within the Port of New York and New Jersey. After completion of the EIS, EPA designated the Mud Dump Site as an Impact Category I disposal site (
Under Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), federal agencies are required to “insure that any action authorized, funded, or carried on by such agency * * * is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species * * *.” Under regulations implementing the Endangered Species Act, a federal agency is required to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (depending on the species involved) if the agency's action “may effect” endangered or threatened species or their critical habitat.
EPA initiated its consultation process with the U.S. Fish and Wildlife Service (USFWS) on April 6, 1995 for what was then the Mud Dump Site and surrounding areas. The consultation process was concluded with them on July 28, 1995, with the USFWS's concurrence that EPA's action was not likely to adversely affect federally listed
EPA initiated threatened and endangered species consultation with the National Marine Fisheries Service (NMFS) on April 4, 1996. As directed by the NMFS, EPA prepared a Biological Assessment (BA) to assess the impacts of the designation of the HARS on the Kemp's ridley and loggerhead sea turtles, and the humpback and fin whales. In May 1997, EPA sent the NMFS a copy of the BA, which concluded that the designation of the HARS is not likely to adversely affect the species in question; NMFS concurred with this conclusion. Since the BA utilized a PCB worm tissue matrix value of 400 ppb and this action proposes 113 ppb, any impacts to endangered or threatened species, or their critical habitats resulting from this action will be positive; the conclusion of the earlier consultation with NMFS is still valid.
The 1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) require the designation of essential fish habitat (EFH) for federally managed species of fish and shellfish. Pursuant to section 305(b)(2) of the MSFCMA, federal agencies are required to consult with the National Marine Fisheries Service (NMFS) regarding any action they authorize, fund, or undertake that may adversely affect EFH. An adverse effect has been defined by the Act as follows: “Any impact which reduces the quality and/or quantity of EFH. Adverse effects may include direct (
Executive Order 12866 requires each agency to write all rules in plain language. EPA has written this proposed rule in plain language to make this proposed rule easier to understand.
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to “expeditiously propose new science-based regulations, as necessary, to ensure appropriate levels of protection for the marine environment.” EPA may take action to enhance or expand protection of existing marine protected areas and to establish or recommend, as appropriate, new marine protected areas. The purpose of the Executive Order is to protect the significant natural and cultural resources within the marine environment, which means “those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands thereunder, over which the United States exercises jurisdiction, consistent with international law.”
Today's proposed rule implements Section 103 of the MPRSA which requires that permits for dredged material are subject to EPA review and concurrence. The proposed rule would amend 40 CFR 228.15(d)(6) by establishing a HARS-specific tissue PCB criterion of 113 ppb for dredged material proposed for use as Remediation Material.
As the HARS-specific PCB criterion of 113 ppb represents the lower of the non-cancer, cancer, and ecological PCB values, EPA expects that this proposed rule would afford additional protection of aquatic organisms at individual, population, community, or ecosystem levels of ecological structures, especially since the previous matrix value was 400 ppb. Therefore, EPA expects today's proposed rule would advance the objective of the Executive Order to protect marine areas.
Environmental protection, Water pollution control.
In consideration of the foregoing, EPA is proposing to amend part 228 of chapter I, title 40 of the Code of federal Regulations is amended as follows:
1. The authority citation for part 228 continues to read as follows:
33 U.S.C. 1412 and 1418.
2. Section 228.15 is amended by adding paragraph (d)(6)(v) (E) to read as follows:
(d) * * *
(6) * * *
(v) * * *
(E) HARS-specific Polychlorinated Biphenyl (PCB) Tissue Criterion:
PCB bioaccumulation worm test results for dredged material approved for use at the HARS as Remediation Material shall not exceed the HARS-specific PCB tissue criterion of 113 ppb. This HARS-specific PCB tissue criterion will be applied to the arithmetic mean concentration reported for the analyses of the worm tissue replicates exposed to the tested sediments, without the use of statistical confidence limits.
Federal Communications Commission.
Notice of proposed rulemaking.
In this document, the Commission seeks comment on whether to revise, clarify or adopt any additional rules in order to more effectively carry out Congress's directives in the Telephone Consumer Protection Act of 1991 (TCPA). New technologies have emerged that allow telemarketers to better target potential customers and make it more cost effective to market using telephones and facsimile machines. These new telemarketing techniques have also increased public concern about the effect on consumer privacy. Therefore, we seek comment on whether to revise or clarify our rules governing unwanted telephone solicitations and the use of automatic
Comments are due November 22, 2002 and reply comments are due December 9, 2002. Written comments by the public on the proposed information collections are due November 22, 2002. Written comments must be submitted by the Office of Managements and Budget (OMB) on the proposed information collection on or before December 9, 2002.
Parties who choose to file comment by paper must file an original and four copies to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. Comments may also be filed using the Commission's Electronic Filing System, which can be accessed via the Internet at
Erica H. McMahon or Richard D. Smith at 202-418-2512, Consumer & Governmental Affairs Bureau. For additional information concerning the information collection(s) contained in this document, contact Les Smith at 202-418-0217 or via the Internet at
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in CG Docket No. 02-278 and CC Docket No. 92-90, FCC 02-250, released September 18, 2002. The full text of this document is available on the Commission's Web site Electronic Comment Filing System and for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554.
This NPRM contains a modified information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collections contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due 60 days from date of publication of this NPRM in the
Only those proposals that might change an information collection requirement are discussed below.
In this NPRM, the Commission seeks comment on the current recordkeeping requirement on companies to maintain lists of telephone subscribers who do not wish to be contacted by telephone. Taking into account more recent estimates on the number of telemarketing calls made daily in the United States, we estimate that the requirement to maintain such lists may result in an additional 291,200 burden hours.
We estimate that any requirement on common carriers to notify telemarketers and consumers of a national do-not-call list will account for an additional burden of 396,400 hours.
The Commission also seeks comment on whether to adopt certain recordkeeping requirements that must be met before companies may avail themselves of any “safe harbor” protections for violating the do-not-call rules. Companies that conduct telemarketing already maintain their own do-not-call lists and many of them must reconcile their lists with state do-not-call lists. We believe that any additional recordkeeping burden as a result of specific “safe harbor” requirements, particularly the verifiable authorizations, would be minimal. We estimate that this requirement will account for one hour of recordkeeping burden per company, or an additional 30,000 hours.
1. It has been nearly ten years since the Commission adopted a broad set of rules to curb unwanted telephone solicitations in the
2. In evaluating the issues in this NPRM, we will be mindful of the constitutional standards applicable to governmental regulations of commercial speech articulated in
3. The TCPA directs the Commission to “compare and evaluate alternative methods and procedures . . . for their effectiveness in protecting [residential telephone subscribers'] privacy rights'' to avoid receiving unwanted telephone solicitations. In the
4. We now seek comment on the overall effectiveness of the company-specific do-not-call approach in providing consumers with a reasonable means to curb unwanted telephone solicitations. We recognize that some consumers may feel that receiving product and service information by telephone helps them reap the benefits of a competitive marketplace; such consumers may value the savings and convenience that telemarketing often provides. Other consumers may wish to limit, or even stop altogether, the number of telemarketing calls they receive. Given the volume of telemarketing calls, we seek comment on whether the company-specific do-not-call approach adequately balances the interests of those consumers who wish to continue receiving telemarketing calls, and of the telemarketers who wish to reach them, against the interests of those who object to such sales calls. We note that, under the company-specific do-not-call approach, consumers must repeat their request not to be called on a case-by-case basis as calls are received. We seek comment on whether this approach is unreasonably burdensome for consumers. We also seek comment on how effective such requests have been in practice in preventing unwanted telephone solicitations. For example, we seek comment on whether such requests are typically honored, whether consumers continue to receive calls for some period of time after requesting that they be placed on a do-not-call list, and whether some telemarketers hang up before consumers can assert their “do-not-call” rights. In addition, we seek comment on whether consumers with hearing and speech disabilities often may be unable to convey a request not to be called to telemarketers.
5. As discussed above, changes in the marketplace and technological innovations since the Commission adopted its TCPA rules in 1992 may have reduced the effectiveness of the company-specific approach. For example, the widespread use of predictive dialers and answering machine detection technology results in many “hang-up” or “dead air” calls in which the consumer has no opportunity to request that the telemarketer not call in the future. The FTC indicates that use of predictive dialers has increased dramatically in the past decade. The FTC notes that many consumers feel frightened, threatened, or harassed when receiving a pattern of such hang-up calls. In addition, there is no way for the consumer to determine whether such calls are placed by telemarketers or may be part of some illegitimate conduct. Such calls may also be particularly trying for the elderly and persons with disabilities who may have difficulty reaching the phone only to be disconnected. Such calls may also be disruptive to the increasing number of individuals who now work from home by tying up telephone lines or disconnecting telecommuters from the Internet. We seek comment on what, if any, legitimate business or commercial speech interest is promoted by these calls. We seek comment on these issues and any other impact that changes in the telemarketing industry over the last decade have had on the overall effectiveness of the company-specific approach.
6. In the
7. If the Commission concludes that it should retain the company-specific do-not-call lists, we seek comment on whether the Commission should consider any additional modifications that would allow consumers greater flexibility to register on such lists. For example, we seek specific comment on whether companies should be required to provide a toll-free number and/or a website that consumers can access to register their name on the do-not-call list. In addition, we seek comment on whether any additional measures should be taken to ensure that consumers with disabilities have the
8.
9. We seek comment broadly on the interplay between sections 222 and 227. For example, if an individual places her name on her carrier's do-not-call list under section 227 (or a national do-not-call list, if one were implemented), should such an express request not to be contacted by means of the telephone be honored even though the customer may also have provided implied (opt-out) consent under section 222 for use and disclosure of her CPNI? We believe that a consumer's request to be placed on a telecommunications carrier's do-not-call list limits that carrier's ability to market to that consumer over the telephone. The carrier, however, may still market to that consumer, using her CPNI, in other ways (
10. As discussed below, the Commission's rules permit an exemption for companies to deliver artificial or prerecorded message calls to consumers with whom they have an “established business relationship.” The Commission seeks comment on what effect the established business relationship exemption might have on the telecommunications industry, if a national do-not-call list is established. Should we consider modifying the definition of “established business relationship” so that a company that has a relationship with a customer based on one type of product or service may not call consumers on the do-not-call list to advertise a different service or product?
11. We seek comment on whether network technologies have been developed over the last decade that may allow consumers to avoid receiving unwanted telephone solicitations. If so, we seek comment on whether and how these technologies should influence our analysis of the merits of revising our company-specific do-not-call rules or possibly adopting a national do-not-call list. In particular, we seek comment on what factors the Commission should consider in deciding whether to rely on these technologies. In the 1992
12. Under the Commission's rules, with certain limited exceptions, common carriers using Signaling System 7 (SS7) and offering or subscribing to any service based on SS7 functionality are required to transmit the calling party number (CPN) associated with an interstate call to interconnecting carriers. As discussed in greater detail below, we take this opportunity to seek comment on whether the Commission should consider any additional “caller ID” requirements in the context of its review of the TCPA rules. Specifically, should the Commission require telemarketers to transmit the name and telephone number of the calling party, when possible, or prohibit them from blocking or altering the transmission of such information? We also seek comment on what impact any changes to our “caller ID” rules might have on existing state “caller ID” rules.
13.
14. The legislative history of the TCPA suggests that autodialer-generated calls are more intrusive to the privacy concerns of the called party than live solicitations. An autodialer can generate far more calls to residences than a telemarketer can manually. In addition, an autodialer is frequently used to send artificial or prerecorded messages, which the legislative history suggests are often a greater nuisance and invasion of privacy than calls placed by “live” persons. We seek comment on this reading of the legislative history and whether Congress intended the definition of “automatic telephone dialing system” to be broad enough to include any equipment that dials numbers automatically, either by producing 10-digit telephone numbers arbitrarily or generating them from a database of existing telephone numbers. The Commission recognizes that in the last decade new technologies have emerged to assist telemarketers in dialing the telephone numbers of potential customers. More sophisticated dialing systems, such as predictive dialers and other electronic hardware and software containing databases of telephone numbers, are now widely used by telemarketers to increase productivity and lower costs. Therefore, we ask commenters to provide information on the various technologies used to dial telephone numbers. We invite comment on the use of random and sequential number generators and whether an autodialer can generate phone calls from a database of existing numbers. If a particular technology generates numbers at random, how does a telemarketer comply with the law to avoid calling emergency phone lines, health care facilities, pager numbers, and wireless telephone numbers? In light of new technologies and the legislative history, is there a need to refine the definition in our rules to better balance the goal of limiting unsolicited advertising against the burdens on telemarketers and their interest in providing beneficial telemarketing services?
15.
16.
17.
18. Commission regulations require that a person or entity making a telephone solicitation must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted. The term “telephone solicitation” is defined to mean the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of * * * property, goods, or services * * * ”. The TCPA clearly imposes identification requirements upon artificial and prerecorded voice messages and our identification rules apply without limitation to “any telephone solicitation to a residential telephone subscriber.” Nonetheless, we seek comment on whether we should modify our rules to state expressly that the identification requirements apply to otherwise lawful artificial or prerecorded messages, as well as to live solicitation calls.
19. Under Commission rules, telemarketers who use autodialers to send artificial or prerecorded messages similarly must identify themselves by name and phone number or address. We seek comment on the Commission's identification requirement at 47 CFR 64.1200(d) and its applicability to predictive dialing and other circumstances involving abandoned telemarketing calls. We note that, in its discussion on predictive dialing, the FTC maintains that telemarketers who abandon calls are violating section 310.4(d) of the Telemarketing Sales Rule. The FTC states that, under its rules, when a telemarketer calls a consumer, the telemarketer is required to disclose identifying information to the person receiving the call. According to the FTC, the consumer is “receiving the call” when the consumer answers the telephone. Therefore, if a predictive dialer abandons the call before the telemarketer identifies himself or herself, the FTC proposes that the telemarketer is violating the Telemarketing Sales Rule. We seek comment on whether the Commission should reach a similar conclusion.
20. The TCPA and Commission rules prohibit telephone calls to residences using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is for emergency purposes or is specifically exempted. Commission rules exempt calls that are non-commercial as well as commercial calls that do not include the transmission of any unsolicited advertisement. The rules define “unsolicited advertisement” to mean “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.” While the Commission has declined to create specific categories of non-commercial exemptions (other than for tax-exempt nonprofit organizations, discussed below), it noted that messages that do not seek to sell a product or service do not tread heavily upon the consumer interests implicated by section 227. Therefore, the Commission determined that calls conducting research, market surveys, political polling, or similar activities which do not involve solicitation as defined by the rules are exempt from the prohibition on prerecorded messages. We note here that the exemption for non-commercial calls applies to a wide range of entities, some of which are engaged in political or religious discourse. This Commission does not intend in this NPRM to seek comment on the exemption as it applies to political and religious speech.
21. We specifically seek comment on artificial or prerecorded messages containing offers for free goods or services (including free estimates or free analyses) and messages with “information-only” about products. We also invite comment about calls seeking people to help sell or market a business' products (a kind of “help wanted” message). We note that, while these calls do not purport to sell something, they often contain messages advertising the quality of certain goods or services and are intended to generate future business. Such messages usually include phone numbers that consumers can call to obtain further information, at which time the seller offers additional goods or services for purchase. Such calls arguably have a dual purpose, as in the case when a business calls to inquire about a customer's satisfaction with a product or service already purchased, but is nevertheless motivated in part by the desire to ultimately sell additional goods or services. The Commission therefore seeks comment on whether our rules would better serve consumers and businesses if they more explicitly addressed those calls that include information about a product or service but do not immediately solicit a purchase. Would it balance the interests of consumers and telemarketers more effectively for us to clarify that calls containing offers for free goods or services are prohibited without the prior express consent of the called party? Would such action assist telemarketers in their efforts to comply with our rules, as well as reduce the number of unwanted telephone solicitations? Again, as stated above, we note that we are not seeking comment regarding political or religious speech.
22. Based on public inquiries, we also seek comment on prerecorded messages sent by radio stations or television broadcasters that encourage telephone subscribers to tune in at a particular time for a chance to win a prize or some similar opportunity. Does the Commission need to specifically address these kinds of telemarketing calls, and, if so, what rules might we adopt to appropriately balance consumers' interest in restricting unsolicited advertising with commercial freedoms of speech?
23. The TCPA excludes calls or messages by tax-exempt nonprofit organizations from the definition of “telephone solicitation.” In the
24. In the
25. We also seek comment on the interplay between the established business relationship exemption and a customer's request not to receive calls from a person or entity with which the customer has a prior business relationship. In the
26. In the
27. The TCPA prohibits the transmission of unsolicited advertisements by telephone facsimile machines and requires those sending any messages via telephone facsimile machines to identify themselves to message recipients. We seek comment on the continued effectiveness of these regulations and on any developing technologies, such as computerized fax servers, that might warrant revisiting the rules on unsolicited faxes. In considering any possible rule changes, we will take into account both the record developed during this proceeding, as well as the Commission's extensive enforcement experience regarding the rules on unsolicited fax advertisements.
28. The TCPA prohibits the sending of unsolicited advertisements to telephone facsimile machines. The Commission's rules define an unsolicited advertisement as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.” We seek comment on the need to clarify what constitutes prior express invitation or permission for purposes of sending an unsolicited fax. In the
29. We seek comment on the Commission's determination that a prior business relationship between a fax sender and recipient establishes the requisite consent to receive telephone facsimile advertisement transmissions. This determination has amounted to an effective exemption from the prohibition on sending unsolicited facsimile advertisements, although our rules do not expressly provide for such an exemption. We ask whether, in practice, the Commission's previous determination has served to protect ongoing business relationships and whether it has had any adverse impact on consumer privacy. If we were to preserve the “exemption,” should we amend our rules to expressly provide for it? We also seek comment on the need to clarify the scope of the “exemption.” For instance, should a company that has an established relationship with a customer based on one type of product or service also be allowed to send unsolicited faxes about a different service or product? We invite comment on a consumer's authority to stop faxes to his facsimile number from a business with which he has an established relationship. Is it necessary for the Commission to adopt rules to protect consumers from unsolicited faxes in such circumstances?
30. We seek comment on whether the Commission should address specifically in the rules the activities of “fax broadcasters” who transmit other entities' advertisements to a large number of telephone facsimile machines for a fee. In the
31. The TCPA and the Commission's rules specifically prohibit telephone calls using an autodialer or an artificial or prerecorded voice message to any telephone number assigned to a paging service, cellular telephone service, or any service for which the called party is charged for the call, except in emergencies or with the prior express consent of the called party. The Commission's rules also state that live telephone solicitations to residential telephone subscribers must comply with time of day restrictions and must institute procedures for maintaining do-not-call lists. The Commission has not opined on whether wireless subscribers or a subset thereof are “residential telephone subscribers” for purposes of these restrictions.
32. Since 1991, the commercial wireless industry has grown dramatically, both in the number of subscribers and the amount of usage for each subscriber. A USA Today/CNN/Gallop poll found that almost one in five mobile telephony users regard their wireless phone as their primary phone. Also, many wireless consumers purchase large “buckets” of minutes at a fixed rate, which may have an impact on the way consumers perceive the costs of making and receiving calls on their wireless phones.
33. We seek comment on the extent to which telemarketing to wireless consumers exists today. Specifically, we seek comment on whether consumers receive solicitations on their wireless phones, and the nature and frequency of such solicitations. We also seek comment on whether telemarketers are including or targeting wireless phone numbers in their telemarketing calls. Do telemarketers distinguish between wireless and wireline phone numbers and, if so, how?
34. In addition, we seek comment on whether the Commission's TCPA rules are sufficient to address any issues identified above, or whether any revisions are necessary. For example, should wireless telephone numbers or a subset thereof be considered “residential telephone numbers” for the purposes of the Commission's rules on telephone solicitations? If so, should there be any different rules that apply to solicitations to wireless telephone
35. We note that the TCPA permits the Commission to exempt from the restrictions on autodialer or prerecorded message calls to wireless phone numbers “calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect.” In the
36. Lastly, we seek comment on any developments anticipated in the near future that may affect telemarketing to wireless phone numbers. For example, when consumers are able to port numbers from their wireline phones to wireless phones, or are assigned numbers from a pool of numbers rather than from a full central office code, how will telemarketers identify wireless numbers in order to comply with the TCPA? We therefore seek comment on the availability of any technological tools that would allow telemarketers to recognize numbers that have been ported from wireline to wireless phones or to recognize wireless numbers that have been assigned from a pool of numbers that formerly were all wireline. For example, we note that the public safety community is finalizing plans that would enable Public Safety Answering Points to identify the type of phone from which the caller is making an emergency call. The Number Portability Administration Center administrator, Neustar, has, however, limited access to this Interactive Voice Response (IVR) system to service providers, authorized law enforcement, and public safety agencies. Telemarketers currently do not have access to the IVR system. Should telemarketers be given access to the IVR system, or should access to the IVR system continue to be restricted to service providers, law enforcement, and public safety agencies? If telemarketers are granted access, will the IVR system be sufficient to enable them to determine whether a number serves a wireline or wireless subscriber? If telemarketers should not be given access to the IVR system, or if this system will be insufficient to identify whether a number serves a wireless or wireline subscriber, should a different system be developed, perhaps based on the IVR system, for use by telemarketers?
37. Based on the statutory language, the Commission determined that “[a]bsent state law to the contrary, consumers may immediately file suit in state court if a caller violates the TCPA's prohibitions on the use of automatic dialing system and artificial or prerecorded voice messages.” The Commission also determined that the TCPA permits a consumer to file suit in state court if he or she has received more than one telephone call within any 12-month period by or on behalf of the same company in violation of the guidelines for making telephone solicitations. The Commission has continued to receive inquiries about a consumer's right to file suit against a person or entity that has made one phone call in violation of the TCPA rules. Should we clarify whether a consumer may file suit after receiving one call from a telemarketer who, for example, fails to properly identify himself or makes a call outside the time of day restrictions? In addition, telemarketers that are not common carriers are not currently subject to the informal complaint rules that require common carriers to reply to individual complaints upon notice of a complaint by the Commission. The Commission released an NPRM in February seeking comment on whether to extend the informal complaint rules to entities other than common carriers. We seek comment in this proceeding on whether the Commission should amend these informal complaint rules to apply to telemarketers.
38. In the TCPA, Congress provided a standard for preemption of state law on autodialers, artificial or prerecorded voice messages, and telephone solicitations. The TCPA does not preempt “any state law that imposes more restrictive intrastate requirements or regulations on, or which prohibits—(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements; (B) the use of automatic telephone dialing systems; (C) the use of artificial or prerecorded voice messages; or (D) the making of telephone solicitations.” The Commission seeks comment on whether and, if so, to what degree, state requirements should be preempted. Some courts have held that the TCPA does not necessarily preempt less restrictive state laws on telemarketing. We seek comment on this interpretation. In addition, we ask whether preemption should depend on whether the state law in question applies solely to intrastate telemarketing or to interstate telemarketing as well. What conflicts between state telemarketing laws and federal law might warrant preemption?
39. Pursuant to section 227(c)(3) of the TCPA, the Commission “may require the establishment and operation of a single national database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations, and to make that compiled list and parts thereof available for purchase.” In this section, we seek comment on whether the Commission should revisit its determination not to adopt a national do-not-call list. Persistent consumer complaints regarding unwanted telephone solicitations indicate that the time may now be ripe to revisit this issue. We note that a national list might provide consumers with a one-step method for preventing telemarketing calls. This option might be less burdensome than repeating requests on a case-by-case basis, particularly in light of the number of entities that conduct telemarketing today. A national list might also be less burdensome for telemarketers, who, under the company-specific approach, must retain do-not-call records for a period of ten years. We also seek comment on the options for possible Commission action in conjunction with the FTC's proposal to adopt a nationwide do-not-call list for those entities over which it has jurisdiction and the proliferation of state-adopted do-not-call lists. We acknowledge that the FTC has not yet adopted final rules based on its proposal, and we note that we have the option to seek further comment to fully address the interplay between final FTC rules and possible Commission action.
40. As discussed above, we invite comment in the context of our consideration of a national do-not-call list on the constitutional standards applicable to governmental regulation of commercial speech. Specifically, we seek comment on whether a national do-not-call list satisfies each of the standards articulated in
41. In declining to adopt a national do-not-call list in 1992, the Commission concluded that a national database would be costly and difficult to establish and maintain in a reasonably accurate form. The Commission found that frequent updates would be required, regional telemarketers would be forced to purchase a national database, costs might be passed on to consumers, and the information compiled would present problems in protecting consumer privacy. The Commission noted that, because nearly one-fifth of all telephone numbers change each year, any such database would require frequent updates to remain accurate. The Commission also noted concerns in protecting the privacy of telephone subscriber information including whether the confidentiality of subscribers having unpublished or unlisted numbers could be maintained.
42. We seek comment on any disadvantages to consumers or any other parties to establishing a national do-not-call list including whether the concerns noted by the Commission in declining to adopt a national do-not-call list in 1992 remain persuasive today. Specifically, we seek information regarding the potential costs of establishing and maintaining a national do-not-call database, the burdens on telemarketers of compliance with a national do-not-call database, and whether there should be any distinction on a national, regional, state, or local level or for small businesses. In particular, we seek comment on whether technological innovations in computers and software programs over the last ten years have mitigated, in any respect, concerns about the costs, accuracy, and privacy issues involved in establishing a national database. We also seek comment on how state commissions and parties involved in compiling and maintaining the state established do-not-call lists have dealt with each of these issues. The information and experience acquired by these parties in the actual operation of such databases may prove particularly useful in this analysis. We also seek comment on what effect, if any, some combination of efforts by the FTC, states, and this Commission would have on the cost and privacy issues involved in developing and maintaining a national do-not-call list. We seek comment on whether a national do-not-call list provides any advantages to telemarketers in identifying those consumers who do not wish to be contacted.
43. Section 227(c)(3) enumerates a number of specific requirements that the Commission must satisfy in adopting a national database. In relevant part, these include: (1) Specifying a method by which to select an entity to administer the database; (2) requiring each common carrier providing telephone exchange service to inform subscribers of the opportunity to object to receiving telephone solicitations; (3) specifying the methods by which subscribers may be informed, by the common carrier that provides service to the subscriber, of the subscriber's right to give or revoke a notification of an objection to receiving telephone solicitations; (4) specifying the methods by which such objections shall be collected and added to the database; (5) prohibiting any residential subscriber from being charged for giving or revoking such notification or being included in the database; (6) prohibiting any person from making or transmitting a telephone solicitation to the telephone number of any subscriber included in the database; (7) specifying the method by which any person desiring to make or transmit telephone solicitations will obtain access to the database and the costs to be recovered from such persons; (8) specifying the methods for recovering, from persons accessing the database, the cost involved in operating the database; (9) specifying the frequency with which the database will be updated and the method by which such updates will take effect; (10) designing the database to enable states to use it to administer or enforce state law; (11) prohibiting the use of the database for any purpose other than compliance with the requirements of section 227 and any such state law, and specifying methods for protection of the privacy rights of persons whose numbers are included in the database; and (12) requiring each common carrier providing services to any person for the purpose of making telephone solicitations to notify such persons of the requirements of this section and the regulations thereunder. We seek comment on what possible options the Commission might pursue that would satisfy the requirements listed above, as well as complement the FTC's proposal and the individual state do-not-call statutes and regulations. We note that while the FTC's proposal could incorporate some, if not all, of the twelve criteria above, the FTC is not required by statute to satisfy these requirements. Therefore, we ask whether these twelve requirements would preclude the Commission from adopting rules requiring common carriers and other entities under our TCPA jurisdiction to comply with a national do-not-call regime administered by the FTC, should the FTC adopt rules that are inconsistent with the TCPA.
44. We recognize that the effectiveness and value of any national do-not-call list would be contingent upon an informed public. As noted above, Congress provided that, should the Commission establish a national do-not-call list, each common carrier providing telephone exchange service shall be required to inform its subscribers of the opportunity to object to telephone solicitations and the option to register with a national do-not-call list. As part of our ongoing efforts to ensure that consumers are aware of their rights under the TCPA, we will continue to disseminate our own public notices, fact sheets, and other information to publicize the rules applicable to telemarketing calls. In addition, should we establish a national do-not-call list, we propose adopting rules that codify the statutory provisions requiring common carriers to notify their subscribers of the opportunity to place their telephone numbers on a national do-not-call list. We seek input on this proposal and any other suggestions to ensure that consumers are well informed.
45.
46. If the Commission should determine that a national do-not-call list is warranted, we seek comment on what actions the Commission could take to most efficiently, effectively, and consistently complement the FTC's proposal. The FTC indicates that its do-
47. The FTC's proposal also may allow some business and wireless telephone subscribers to register on the national database. The TCPA, however, only grants authority to the Commission to establish a national database for residential subscribers. We seek comment on the extent to which wireless subscribers may be considered “residential” for purposes of the TCPA. In addition, we seek comment on what, if any, conflict exists under the FTC's rules and proposals and the TCPA regarding inclusion of business consumers on the national do-not-call list. The FTC proposal also does not indicate whether consumers will be charged a fee for including their names on the national do-not-call database. We note that the TCPA prohibits the Commission from charging residential consumers to be included in the database. We seek comment on whether these and any other issues that commenters may identify raise potential areas of concern in coordinating the FTC's proposals with any Commission action. To the extent that any such inconsistencies exist, we seek suggestions as to how they could be reconciled to minimize the potential for confusion to consumers, telemarketers, and regulators in the administration and enforcement of any national do-not-call database established under the combined authority of the FTC and the Commission.
48. We also seek comment on whether the Commission should adopt any new rules or revise any of its existing rules to remain consistent with the proposals of the FTC. For example, the FTC proposes that consumers who have placed themselves on the national do-not-call registry “could allow telemarketing calls from or on behalf of specific sellers, or on behalf of charitable organizations, by providing express verifiable authorization to the seller, or telemarketer making calls on behalf of a seller or charitable organization, that the consumer agrees to accept calls from that seller or telemarketer.” The FTC also proposes adopting certain recordkeeping requirements that must be met before companies may avail themselves of the “safe harbor” protections for violating the do-not-call rules. In so doing, the FTC notes that the Commission's rules are silent as to any such requirements to reconcile names or numbers on a national registry because our rules relate only to company-specific lists. We seek comment on whether, if the Commission implements a national database with the FTC, the Commission should adopt recordkeeping or other rules that mirror those proposed by the FTC.
49. Finally, we note that the FTC has sought comment on establishing a national do-not-call registry for a two-year trial period, after which it may review the costs and benefits of the central registry in order to determine whether to modify or terminate its operation. We seek comment on how this could affect any Commission decision to establish a joint database with the FTC, including whether the Commission should commit to a similar review at the same time. We also seek comment on what, if any, disruptions this may cause consumers if the FTC determines at that time to terminate the operation of its national do-not-call database. Finally, we note that the FTC has released a Privacy Act Notice specifying the measures it intends to take to ensure the privacy of consumers in compiling and maintaining the national registry. In its Notice, the FTC proposes to collect certain information including, at a minimum, telephone numbers of individuals who do not wish to receive telemarketing calls. To the extent necessary, the FTC may collect other information such as date(s) and time(s) that the individual's telephone number was placed on the registry; the individual's specific telemarketing preferences; and other identifying information that individuals may provide voluntarily (
50.
51. If the Commission should establish a nationwide do-not-call list in conjunction with the FTC, we seek comment on the potential relationship of that database to state do-not-call laws. We seek comment on the potential role that states could play in administering and enforcing federal do-not-call requirements. We believe that many states have obtained valuable experience and insight into the administration of the do-not-call lists in their respective states. We therefore seek comment from the states, and any other interested parties, on the following options to incorporate state expertise in this process. We also invite additional suggestions on these or any alternative proposals.
52. First, we seek comment on whether those states that have adopted
53. We seek comment on whether this proposal is administratively feasible, including whether it is possible and/or necessary for regulators and consumers to distinguish intrastate from interstate telemarketing calls. We note that in comments filed in the FTC proceeding, the Attorneys General of all fifty states, Puerto Rico, and the Northern Mariana Islands, indicated that states have enforced their own do-not-call laws against telemarketers irrespective of whether such calls are intrastate or interstate in nature. The Attorneys General contend that states have historically enforced their consumer protection laws within, as well as across, state lines to prosecute out-of-state companies that have contacted their residents over the telephone. We seek comment on this interpretation of state authority to regulate telemarketing calls originating outside of the state.
54. Second, we seek comment on how we could work together with states that have adopted do-not-call lists. The state Attorneys General argue that the states have the authority to enforce their own no-call laws against telemarketers across the country. Although many states have adopted laws that differ in some respects from the FTC's proposal, these differences may be reflective of the particularized circumstances of consumers and telemarketers in that state. In this context, the federal do-not-call database could act either as a default mechanism for those states that have not adopted do-not-call laws or coexist with the state do-not-call laws to provide consumers with additional safeguards.
55. Under this approach, there would be no disruption to consumers in the administration and enforcement of the state regulations as applied to interstate calls. In this context, we seek comment on whether consumers in states that have adopted do-not-call laws should be restricted solely to registering on the state database or should also be allowed the option to register on any federal national do-not-call database. If consumers are allowed the option to register on both databases, we seek comment on whether the federal database should permit states to submit do-not-call requests from their own database and to obtain from the federal database any requests from their own state. As noted above, states have adopted a variety of do-not-call laws, some of which may be less restrictive of telemarketing activity than the regulations proposed by the FTC. We therefore seek comment on whether the administration of both a state and federal do-not-call database would be feasible, including whether this approach may lead to consumer confusion or duplicative administrative costs. In this regard, we seek suggestions on how the federal and state regulatory entities should coordinate their efforts, including providing adequate information to consumers.
56. Finally, we invite comment on additional proposals to reconcile the administration of any national do-not-call list with the various state lists. For example, the Commission has received inquiries regarding whether the Commission may also consider preempting the state do-not-call statutes, in whole or in part, under the theory that Congress has legislated comprehensively in this area, thus occupying the entire field of regulation and leaving no room for the states to supplement federal law. This issue has never been addressed on the Commission level, leading to uncertainty among states and telemarketers. In addition, the legislative history indicates that Congress believed the TCPA was necessary because states may lack jurisdiction to regulate interstate telemarketing calls. We seek comment on whether there are any advantages to a single national database over a collection of state do-not-call laws. Alternatively, we seek comment on whether the development of state do-not-call lists obviates the need for a national list. We also seek comment on whether preemption of state do-not-call lists would result in substantial confusion for those consumers that may have already registered in states that have adopted do-not-call lists. Similar to our discussion above, we seek comment in this context on whether the states could be allowed to “opt-in” and thereby co-administer and enforce the federal do-not-call rules in their respective states.
57. This is a non-restricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's rules.
58. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic effect on small entities by the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments on the NPRM provided below in the Comment Filing Procedures section. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the NPRM and IRFA (or summaries thereof) will be published in the
59. Since 1992, when the Commission adopted rules pursuant to the TCPA, telemarketing practices have changed significantly. New technologies have emerged that allow telemarketers to better target potential customers and make marketing using telephones and facsimile machines more cost-effective. At the same time, these new telemarketing techniques have heightened public concern about the effect on consumer privacy. The Commission has received numerous inquiries and complaints involving its rules on telemarketing and unsolicited fax advertisements. A growing number of states have passed or are considering legislation to establish statewide do-not-call lists, and the FTC has proposed establishing a national do-not-call registry. Congress provided in the TCPA that “individuals” privacy rights, public
60. The legal basis for any action that may be taken pursuant to this NPRM is contained in sections 1 thru 4, 227 and 303(r) of the Communications Act of 1934, as amended; 47 U.S.C. 151 thru 154 and 227; and 47 CFR 64.1200 and 1201 of the Commission's rules.
61. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).
62. The Commission's rules on telephone solicitation and the use of autodialers, artificial or prerecorded messages and telephone facsimile machines apply to a wide range of entities, including all telecommunications carriers and other entities that use the telephone or facsimile machine to advertise. Thus, we expect that the proposals in this proceeding could have a significant economic impact on a substantial number of small entities. In 1992, there were approximately 4.44 million small business firms in the United States, according to SBA data. The SBA has determined that “telemarketing bureaus” with $6 million or less in annual receipts qualify as small businesses. For 1997, there were 1,727 firms in this category, total, which operated for the entire year. Of this total, 1,536 reported annual receipts of less than $5 million.
63. Determining a precise number of small entities that would be subject to the requirements proposed in this NPRM is not readily feasible. Therefore, we invite comment about the number of small business entities that would be subject to the proposed rules in this proceeding. After evaluating the comments, the Commission will examine further the effect any rule changes might have on small entities, and will set forth our findings in the final Regulatory Flexibility Analysis.
64. We are seeking comment on whether to amend the Commission's TCPA rules and/or to revisit the option of establishing a national do-not-call list. The proposed rules will apply, with certain exceptions, to all entities making telephone solicitations or using automatic telephone dialing systems, prerecorded or artificial voice messages or telephone facsimile machines to send unsolicited advertisements. If we retain the company-specific do-not-call approach, we seek comment on whether to require companies to provide a toll-free number and/or website for consumers to register their names on the do-not-call lists. We also seek comment on whether additional measures should be taken to ensure that consumers with disabilities can register their do-not-call requests. Any such measures, if adopted, may involve additional costs to businesses. If we find that establishing a national do-not-call list is warranted, we must determine the entity that will maintain the list and the procedures for administering the list. For small businesses whose call lists are not automated, scrubbing lists could be more labor-intensive and thus, more time-consuming and costly. However, we do not anticipate that such recordkeeping will require the use of professional skills, including legal and accounting expertise. In this NPRM, we seek information regarding the burdens on telemarketers to comply with a national do-not-call database, including the requirements to obtain a national list of telephone numbers and to incorporate those numbers into telemarketers' individual do-not-call lists. Entities, especially small businesses, are encouraged to quantify the costs and benefits of a national do-not-call list, as well as the costs and benefits of any possible new rules regarding certain telemarketing technologies and practices. Finally, the TCPA under section 227(c)(3) provides that should the Commission adopt a national do-not-call list, common carriers shall be required to inform subscribers of the option to register on a national do-not-call list. We seek input on this proposal and any other suggestions to ensure the public is well-informed.
65. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
66. This NPRM invites comment on a number of alternatives to modify the existing TCPA rules on telephone solicitation and the use of autodialers, artificial or prerecorded messages, and telephone facsimile machines. The Commission also will consider additional significant alternatives developed in the record. We seek comment on the effectiveness of company-specific do-not-call lists and whether the benefits of individual company lists continue to outweigh the costs to telemarketers. We also seek comment on whether any network technologies have been developed over the last decade that could serve as alternatives to do-not-call lists. We ask whether any such technologies are effective, universally available, and
67. We also seek comment on options for possible Commission action in conjunction with the FTC's proposal to establish a national do-not-call registry. A national do-not-call list might provide consumers with a one step method to avoid unwanted sales calls and assist telemarketers in identifying those consumers who do not wish to be contacted. We seek information, however, about the potential costs of establishing and maintaining a national list and about the burdens on telemarketers of complying with a national do-not-call list. Specifically, we ask whether there should be any distinctions for small businesses that must comply with a national do-not-call registry. We also ask whether consumers listed on a national registry should be permitted to also provide express verifiable authorization to those businesses from whom they want to receive calls.
68. The Telemarketing Consumer Fraud and Abuse Prevention Act (“Telemarketing Act”), 15 U.S.C. 6101 thru 6108, and the Telemarketing Sales Rule (TSR) adopted by the FTC also address certain telemarketing acts or practices. The TCPA and Commission rules currently do not duplicate, overlap or conflict with the Telemarketing Act or TSR; however, there are provisions in the FTC's rules that mirror the Commission's rules, such as the calling time restrictions. It is difficult to determine at this time whether any of the proposals contained in this NPRM might conflict with any other federal rules, given that the FTC has undertaken a rulemaking proceeding of its own. Therefore, we ask in the NPRM whether any inconsistencies at the end of the rulemakings would create confusion regarding the applicability and enforcement of the do-not-call requirements to certain entities. For instance, the FTC proposes to extend its do-not-call requirements to telemarketing calls from “for-profit entities” that solicit charitable contributions; the Commission has concluded that its regulations apply only to commercial calls. The FTC's proposal also appears to allow some business and wireless telephone subscribers to register on the national database, while the TCPA grants authority to the Commission to establish a national database only for residential subscribers. Therefore, the Commission invites comment in this NPRM on whether we could adopt any new rules or revise any of our existing rules to remain consistent with the FTC's proposals.
69. We invite comment on the issues and questions set forth above. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before November 22, 2002, and reply comments on or before December 9, 2002. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.
70. Comments filed through the ECFS can be sent as an electronic file via the Internet to
71. Written comments by the public on the proposed and/or modified information collections are due on or before November 22, 2002. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed and/or modified information collections on or before December 9, 2002. In addition to filing comments with the Secretary, a copy of any comments on the information collection(s) contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
72. Accessible formats (computer diskettes, large print, audio recording and Braille) are available to persons with disabilities by contacting Brian Millin of the Consumer & Governmental Affairs Bureau, at (202) 418-7426, TTY (202) 418-7365, or at
73. The Notice of Proposed Rulemaking is adopted.
74. The Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
Telephone.
Research and Special Programs Administration (RSPA), and Federal Motor Carrier Safety Administration (FMCSA), DOT.
Supplemental advance notice of proposed rulemaking; extension of comment period.
The Research and Special Programs Administration (RSPA) and the Federal Motor Carrier Safety Administration (FMCSA) published a July 16, 2002 Advance Notice of Proposed Rulemaking (ANPRM) seeking comments on the feasibility of implementing security enhancement requirements for motor carriers transporting hazardous materials, and the potential costs and benefits of deploying such enhancements. After receiving a request from an industry association to put a procedure in place to protect potentially security-sensitive comments, we are informing commenters of the procedures currently set forth in RSPA's regulations for requesting confidential treatment. Thus, we are removing the sentence in the ANPRM indicating that “comments that include information that may compromise transportation security will be disqualified as beyond the scope of the rulemaking.” We will consider all comments received. All comments will be placed in the rulemaking docket unless they, or a portion thereof, are determined to be confidential and thereby protected from disclosure under the law. In this supplement to the ANPRM, we are also extending the comment period for an additional 31 days to November 15, 2002.
Submit comments on or before November 15, 2002. To the extent possible, we will consider late-filed comments as we consider further action.
Donna O'Berry, (202) 366-4400, Office of the Chief Counsel, Research and Special Programs Administration; Susan Gorsky, (202) 366-8553, Office of Hazardous Materials Standards, Research and Special Programs Administration; or William Quade, (202) 366-6121, Office of Enforcement and Compliance, Federal Motor Carrier Safety Administration.
RSPA and FMCSA published a July 16, 2002 ANPRM entitled “Security Requirements for Motor Carriers Transporting Hazardous Materials.”
Because the ANPRM addressed measures to enhance the security of hazardous materials in transportation, we urged commenters to carefully consider the information they submitted in response to the questions posed. After the ANPRM was published, we received an industry association letter indicating that it planned to file comments and stating “however, we are concerned that the public dissemination of these comments could compromise our national security by providing information that could later be exploited by terrorists with access to such information.” The association requested that we establish a procedure to safeguard those comments.
After reviewing this request, we have decided to supplement the ANPRM to inform the public of the procedures currently in RSPA's regulations for requesting confidentiality. (These procedural regulations were recently re-written in plain language and published on June 25, 2002 [67 FR 42948].) Under 49 CFR 105.30, if you submit information to us, you may ask us to keep the information confidential. This section explains the steps you should follow: (1) Mark “confidential” on each page of the original document you would like to keep confidential, (2) send us, along with the original document, a second copy of the original document with the confidential information deleted, and (3) explain why the information is confidential (for example, it is exempt from mandatory public disclosure under the Freedom of Information Act (FOIA) [5 U.S.C. 552] because it is confidential commercial information).
In your explanation, you should provide enough information to enable us to make a determination as to the confidentiality of the information provided. In addition, if you believe that certain laws or FOIA exemptions might apply to protect the information, you should reference those legal citations.
The FOIA requires that we release any nonexempt (not protected under FOIA) portions of information that can be reasonably segregated. Therefore, we ask that you identify the particular portions of information within your documents that you believe are confidential. If the non-confidential information is so intertwined with the confidential information that disclosing it would leave only meaningless words and phrases, the entire page or document may be withheld.
After reviewing your request for confidentiality and the information provided, we will analyze all applicable laws to decide whether or not to treat the information as confidential. We will notify you of our decision to grant or deny confidentiality at least five days before the information is publicly disclosed, and give you an opportunity to respond.
If, prior to submitting your request, you have any questions regarding RSPA's procedures for determining confidentiality, you may call one of the contact individuals above for more information.
The July 16 ANPRM included a statement that we would disqualify information received in comments that could compromise transportation security as beyond the scope of the rulemaking. In light of the fact that RSPA's regulations provide a process for requesting confidentiality, all comments will be part of the docket, unless comments or portions of comments are determined to be confidential and protected from disclosure under law. Information determined to be confidential will be redacted and the unredacted portions will be placed in the docket.
The ANPRM provided an October 15, 2002 deadline for filing comments. In conjunction with informing the public of our procedures for requesting confidentiality, we are also extending the comment period deadline to November 15, 2002 to provide commenters with an additional 30 days
Joint Board for the Enrollment of Actuaries.
Notice of Federal Advisory Committee meeting.
The Executive Director of the Joint Board for the Enrollment of Actuaries gives notice of a closed meeting of the Advisory Committee on Actuarial Examinations.
The meeting will be held on October 21, 2002, from 8:30 am to 5 pm.
The meeting will be held at the Wyatt Company, 303 West Madison Street, Board Room, Chicago, IL.
Patrick W. McDonough, Director of Practice and Executive Director of the Joint Board for the Enrollment of Actuaries, 202-694-1891.
Notice is hereby given that the Advisory Committee on Actuarial Examinations will meet at the Wyatt Company, 303 West Madison Street, Board Room, Chicago, IL on Monday, October 21, 2002, from 8:30 am to 5 pm.
The purpose of the meeting is to discuss topics and questions, which may be recommended for inclusion on future Joint Board examinations in actuarial mathematics, pension law and methodology referred to in 29 U.S.C. 1242(a)(1)(B).
A determination has been made as required by section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App., that the subject of the meeting falls within the exception to the open meeting requirement set forth in Title 5 U.S.C. 552b(c)(9)(B), and that the public interest requires that such meeting be closed to public participation.
Pursuant to the Federal Advisory Committee Act, notice is hereby given of the one hundred and thirty-fifth meeting of the Board for International Food and Agricultural Development (BIFAD). Notice may be published less than fifteen days prior to the meeting due to scheduling conflicts. The meeting will be held from 8 a.m. to 1 p.m. on October 17 , 2002 in the Oceanic A&B Meeting Rooms on the Concourse Level of the Ronald Reagan Building (RRB), 1300 Pennsylvania Avenue, NW, Washington, DC.
The program will be devoted to the inauguration of a new Board, a discussion of long-term training, and USAID Bureau reports on the status of agricultural or rural livelihoods and the involvement of universities.
The meeting is free and open to the public. Those wishing to attend the meeting or obtain additional information about BIFAD should contact Mr. Lawrence Paulson, the Designated Federal Officer for BIFAD. Write him in care of the U.S. Agency for International Development, Ronald Reagan Building, Office of Agriculture and Food Security, 1300 Pennsylvania Avenue, NW, Room 2.11-073, Washington, DC 20523-2110 or telephone him at (202) 712-1436 or fax (202) 216-3010.
Food and Nutrition Service, USDA.
Notice of meeting.
The Food and Nutrition Service, Food Distribution Division, will hold a meeting to discuss methods of value-pass-through of USDA donated commodities in food service management company fixed-rate-per-meal contracts in the National School Lunch Program. The purpose of this meeting is to offer State agencies, school food authorities, advocacy groups, food service management companies, and other interested parties the opportunity for dialogue prior to proposed rulemaking.
Thursday, October 24, 2002, 1 p.m. to 5 p.m.
Food and Nutrition Service, 3101 Park Center Drive, Conference Room 204-B, Alexandria, Virginia 22302.
In April 2002, the USDA Office of Inspector General issued Audit Report Number 27601-0027-CH titled “National School Lunch Program—Food Service Management Companies,” which found that, in the States reviewed by the Office of Inspector General, many school food authorities that maintained fixed-rate-per-meal contracts did not receive proper credit for USDA donated commodities. Federal regulations require that any USDA donated commodities received by a school food authority and made available to a food service management company shall be used solely for the school food authority's food service operation and that the full value of all USDA donated food must accrue to the benefit of the school food authority.
The discussion topics of this meeting will be limited to (a) the Office of Inspector General's recommended approach for crediting USDA donated commodities, (b) value-pass-through methods currently used by food service management companies and school food authorities in food service management
For those unable to attend the meeting or those who attend and have additional comments on the discussion topics, the contact person named below will accept written statements before the meeting and until Friday, November 8, 2002.
Suzanne Rigby, Branch Chief, Schools and Institutions Branch, Food Distribution Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 500, Alexandria, Virginia 22302,-(703) 305-2644. To confirm attendance, please contact Sherry Thackeray at (703) 305-2652 or e-mail
Natural Resources Conservation Service, USDA.
Notice of finding of no significant impact.
Pursuant to section 102 (2) (C) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Guidelines (40 CFR part 1500); and the Natural Resources Conservation Service Guidelines (7 CFR part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice that an environmental impact statement is not being prepared for Comprehensive Management of Nutria Herbivory Damage in Coastal Louisiana and the Coastwide Nutria Control Program (LA-03b), Coastal Louisiana.
Donald W. Gohmert, State Conservationist, Natural Resources Conservation Service, 3737 Government Street, Alexandria, Louisiana 71302; telephone (318) 473-7751.
The environmental assessment of the federally assisted action indicates that the action will not cause significant local, regional, or national impacts on the environment. As a result of these findings, Donald W. Gohmert, State Conservationist, has determined that preparation and review of an environmental impact statement is not needed for this project.
The recommended plan consists of (1) implementing an incentive payment program to encourage the harvest of up to 400,000 nutria annually from coastal Louisiana by payment of $4.00 per nutria tail to registered program participants (Coastwide Nutria Control Program LA-03b), (2) investigating techniques to promote revegetation of damaged sites with native vegetation, and (3) pursuing additional funding and/or funding sources to conduct more comprehensive revegetation. The goal of the recommended plan is to reestablish the ecological balance (plant and animal) that existed when the number of nutria harvested was high. It is predicted that the plan would reduce the conversion of fresh, intermediate, and brackish marsh to open water by about 15,000 acres over 20 years.
The Notice of Finding of No Significant Impact (FONSI) has been forwarded to the Environmental Protection Agency and to various federal, state, and local agencies and interested parties. A limited number of copies of the FONSI are available to fill single copy requests at the above address. Basic data collected during the environmental assessment are on file and may be reviewed by contacting Donald W. Gohmert.
No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
Natural Resources Conservation Service (NRCS), USDA.
Notice of availability of proposed changes in Section IV of the FOTG of the NRCS in Indiana for review and comment.
It is the intention of NRCS in Indiana to issue three revised conservation practice standards in Section IV of the FOTG. The revised standards are: Pond (378), Pipeline (516) and Forest Trails and Landings (655). These practices may be used in conservation systems that treat highly erodible land and/or wetlands.
Comments will be received for a 30-day period commencing with this date of publication.
Address all requests and comments to Jane E. Hardisty, State Conservationist, Natural Resources Conservation Service (NRCS), 6013 Lakeside Blvd., Indianapolis, Indiana 46278. Copies of this standard will be made available upon written request. You may submit your electronic requests and comments to
Jane E. Hardisty, 317-290-3200.
Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 states that after enactment of the law, revisions made to NRCS state technical guides used to carry out highly erodible land and wetland provisions of the law, shall be made available for public review and comment. For the next 30 days, the NRCS in Indiana will receive comments relative to the proposed changes. Following that period, a determination will be made by the NRCS in Indiana regarding disposition of those comments and a final determination of changes will be made.
Department of Commerce.
Notice.
Section 515 of Public Law 106-554, the Treasury and General Government Appropriations Act for Fiscal Year 2001, directs the Office of Management and Budget (OMB) to issue government-wide guidelines that “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.” The OMB guidelines require that agencies subject to the OMB guidelines must establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the OMB guidelines or the agency guidelines. The OMB final guidelines were published in the
The Department of Commerce published its draft guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of disseminated information on its Internet Web site on May 1, 2002 and in the
This document implements section 515 for the Department of Commerce and defines the Department of Commerce's information quality guidelines. It may be revised periodically, based on experience, evolving requirements in the Department of Commerce, and concerns expressed by the public.
Correspondence should be sent to Thomas N. Pyke, Jr., Chief Information Officer, Department of Commerce, 14th St. and Constitution Ave. NW, Room 5029B, Washington, DC 20230. Send e-mail to
Diana H. Hynek, Office of the Chief Information Officer, Department of Commerce, 14th St. and Constitution Ave. NW., Room 6625, Washington, DC 20230. Telephone (202) 482-0266 or by e-mail to
The U.S. Department of Commerce (“Commerce” or “Department”) is one of the most diverse Federal departments, both in terms of its mission and the information it provides to the public. We are responsible for daily weather reporting, facilitating the use of technology both at home and in the workplace, collecting statistics that assist the public and private sector, and supporting the environmental and economic health of U.S. communities. Our mission is to promote job creation and improve living standards for all Americans by creating an infrastructure that encourages economic growth, technological competitiveness, and sustainable development, conservation, and wise use of living marine resources.
To carry out this mission, three strategic goals have been identified. They are to provide the information and the framework to enable the economy to operate efficiently and equitably; provide the infrastructure for innovation to enhance U.S. competitiveness; and observe and manage the Earth's environment to promote sustainable growth.
Commerce provides the basic economic data necessary to develop sound business decisions, producing many of the commonly used economic statistics issued by the U.S. Government. The Department also produces information designed to encourage the use of science and technology in the production of consumer goods and services.
Commerce plays an important role in the nation's global business development. The Department develops and disseminates foreign market research and international trade opportunities through its offices in the United States and in 83 foreign countries. Commerce also monitors and enforces compliance with U.S. trade laws and agreements, and defends American firms from injurious foreign business practices by administering U.S. antidumping and countervailing duty laws.
The oceanic and atmospheric programs at Commerce improve the understanding and rational use of the natural environment to further the Nation's safety, welfare, security, and commerce. These responsibilities include predicting the weather, charting the seas, and protecting the oceans and coastal areas.
Domestically, Commerce's programs promote long-term business enterprises that create jobs for minority groups and in underdeveloped areas across the United States. These programs are supported by reports, publications, projections, and business expertise. The Department provides services to citizens and private business as well as to state, local, and tribal governments.
Given the broad responsibilities of the Commerce Department in scientific, technical, and statistical information, Commerce welcomes the opportunity provided by the issuance of the Office of Management and Budget information quality guidelines to demonstrate our thorough and professional approach to information release.
Our goal is to ensure and maximize the quality of the information we release to the public. We are committed to making the methods, models, and processes that produce our information transparent and rigorous. At the Commerce Department, we have a long tradition of producing relevant, credible, high quality information to the public at large, the academic community, and the private sector.
We believe that we uphold a high standard regarding information quality through the use of quality control procedures for statistical data collection and processing. The 2000 decennial census, conducted by the Census Bureau, was the most accurate census in the history of the Nation. Commerce has made significant strides in redesigning the national income and product accounts by improving the conceptual foundation and incorporating new estimating methods and other statistical improvements. Our scientific research incorporates both internal and external peer review as appropriate. The Department boasts two Nobel Prize winners in science. We operate supercomputers that rank in the Nation's top ten in processing power. These powerful computers allow us a high degree of model resolution that increases the number of data points
In summary, these Commerce guidelines are a continuation of our commitment to information quality. We have a proven track record in producing high quality information and welcome the opportunity to present our information quality guidelines.
Because of the diversity of Commerce's mission, we have taken a distributed approach to preparing our information quality guidelines. Outlined below are the responsibilities of the Department of Commerce and the responsibilities of the individual operating units of the Department.
The Department of Commerce Chief Information Officer (CIO) will prepare and submit reports annually to the Director of the Office of Management and Budget (OMB) regarding the number and nature of complaints received by the Department of Commerce regarding Department compliance with the OMB guidelines concerning the quality, objectivity, utility, and integrity of information and how such complaints were resolved, as required by section 515 of the Treasury and General Government Appropriations Act for FY 2001 (Public Law 106-554) and the OMB Guidelines.
The operating units of the Department are organizational entities outside the Office of the Secretary charged with carrying out specified substantive functions (
1. By October 1, 2002, document and make available to the public information quality standards that address the requirements of quality, objectivity, utility, and integrity for all non-exempt information disseminated by the operating unit.
2. By October 1, 2002, establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the operating unit on or after October 1, 2002, that does not comply with these Department guidelines and the OMB guidelines.
The operating unit will respond to all initial requests within 60 calendar days of receipt. If the request requires more than 60 calendar days to resolve, the operating unit will inform the complainant that more time is required and indicate the reason why and an estimated decision date. The operating unit will respond to all requests for appeals within 60 calendar days of receipt. If the request requires more than 60 calendar days to resolve, the operating unit will inform the complainant that more time is required and indicate the reason why and an estimated decision date.
In cases where the operating unit disseminates a study, analysis, or other information prior to the final operating unit action or information product, requests for correction will be considered prior to the final operating unit action or information product in those cases where the operating unit has determined that an earlier response would not unduly delay issuance of the operating unit action or information product and the complainant has shown a reasonable likelihood of suffering actual harm from the operating unit's dissemination if the operating unit does not resolve the complaint prior to the final operating unit action or information product.
The guidelines addressed in items 1 and 2 cover information disseminated on or after October 1, 2002, regardless of when the information was first disseminated, except that pre-dissemination review procedures shall apply only to information first disseminated on or after October 1, 2002. Covered information disseminated will comply with all applicable OMB Information Quality Guidelines as well as these Department of Commerce Information Quality Guidelines.
3. Beginning on October 1, 2002, demonstrate in the operating unit's Paperwork Reduction Act (PRA) submissions to OMB the “practical utility” of a proposed collection of information that the operating unit plans to disseminate. Additionally, for all proposed collections of information that will be disseminated to the public, demonstrate in the operating unit's PRA clearance submissions to OMB that the proposed collection of information will result in information that will be collected, maintained, and used in a way consistent with applicable information quality guidelines.
4. Assist the Department CIO in the preparation of annual reports to OMB by providing information requested by the Department CIO.
The Department and its operating units received eleven responses to the request for comments. Four responses were received from public interest groups; one was from a voluntary professional association; two were from a for-profit corporation; and four were from industry associations. Some of the comments contained in the submissions were addressed either to the entire Federal government or to agencies other than the Department. In this notice, the Department is responding only to comments relevant to its applicable information quality standards. In addition, the Department has received further guidance from OMB (OMB guidance, June 10) on the development of information quality guidelines, which helps the Department respond to some of the comments. A detailed analysis of the comments, and the Department's response based on both the comments and the OMB guidance, follows.
There are well-established procedural safeguards and rights to address the quality of adjudicatory decisions and to provide persons with an opportunity to contest decisions. These guidelines do not impose any additional requirements on agencies during adjudicative proceedings and do not provide parties to such adjudicative proceedings any additional rights of challenge or appeal (67 FR at 8454).
The Department agrees with this reasoning and has, therefore, retained the exemption for adjudicatory processes.
The Department's guidelines, including those of all the OUs, do not exempt information included in a rulemaking. However, the guidelines maintain the integrity of the rulemaking process by addressing requests for correction in a way that does not disrupt that process. This is in keeping with OMB's frequent reiteration, in its guidance, that disruption of existing processes is neither contemplated nor desired.
Further, the Department notes that the commenters may have misunderstood the language in its draft guidelines concerning such actions. Informal and formal rulemakings and Natural Resource Damage Assessment and Restoration Plans (NRDAR Plans) are subject to these guidelines. As such, the information quality standards remain applicable to information disseminated as part of a proposed rule or a proposed Natural Resource Plan.
As to the suggestion by some commenters that the SDWA criteria apply to NRDAR Plans, the Department points out that NRDAR Plans are based upon existing statutory, regulatory, and other guidance that may not be completely compatible with the SDWA criteria. A natural resource damage assessment (NRDA) addresses the adverse impacts of past unlawful releases of hazardous substances or oil to determine the liability of the person(s) responsible for those unlawful releases. This liability is measured by the cost of actions to restore the natural resources injured by the releases. Each NRDA is highly fact, site, and party-specific. The impact of an NRDA on one or a few persons' liability for past actions does not constitute the forward-looking impact intended to be included in the category of influential information or SDWA risk assessment. NRDAs are not risk assessments as that term is used in the SDWA or the OMB guidelines. The action to be taken as a result of a NRDA is mandated by law and designed to return the environment to the condition it would have been had the release not occurred. Thus, NRDAs are not analyses of the possible effects on the environment of taking or not taking some future action as are SDWA risk assessments.
In situations where public access to data and methods will not occur due to other compelling interests, agencies shall apply especially rigorous robustness checks to analytic results and document what checks were undertaken. Agency guidelines shall, however, in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed. Each agency is authorized to define the type of robustness checks, and the level of detail for documentation thereof, in ways appropriate for it given the nature and multiplicity of issues for which the agency is responsible.
Where an operating unit of the Department relies on information that cannot be disclosed to support influential information that it disseminates, it performs and discloses robustness checks according to the requirements set by OMB Guidelines and implemented in its own information quality guidelines.
The diverse operating units of the Department use such third-party information in varying ways. When used to develop information products or to form the basis of a decision or policy, this information is then subject to the OUs' guidelines. Thus, for an OU to use third-party information, it must be of known quality, and any limitations, assumptions, collection methods, or uncertainties concerning it must be taken into account.
Some commenters argued that the Department and its operating units definition of “affected person” resembles judicial requirement for “standing,” which neither Section 515 nor OMB's guidelines require. The commenters urged the Department to adopt a definition of “affected person” that includes “anyone who uses the information, benefits from it, or is harmed by it,” as well as trade associations and other groups who represent such persons.
In order to assist the Department in making a timely response, it has added to its guidelines a list of corrective actions that may be taken in response to a correction request, based on the nature and timeliness of the information involved, as well as factors such as the significance of the error on the use of the information, and the magnitude of the error. Actions contained in that list include: personal contacts via letter or telephone, form letters, press releases, and postings on an appropriate Web site.
The commenter urged that the Department's response to correction requests should be proportional to the significance and importance of the information in question to establish the necessary flexibility to set aside a request that has been superceded or is otherwise outdated. The commenter also stated that the Department should limit the mechanism to only what is required in Section 515 to avoid any possibility of creating new rights under administrative law. Finally, the commenter noted that the Department needs adequate procedural safeguards to avoid becoming mired down in minor data disputes, bad faith requests, and frivolous, repetitive, or non-timely claims.
Although the Department has not limited complaints to information that is not already subject to existing data quality programs and measures, the Department has designed its administrative mechanisms to take advantage of existing processes that are designed to ensure the quality of information, such as rulemakings. The Department agrees that requests for correction should be evaluated based on the evidence available at the time of dissemination. However, where it is possible, timely, appropriate, and cost-effective to make corrections based on later-acquired evidence that meets the Department's quality standards, the Department will consider correction.
The Department agrees that its response to correction requests should be proportional to the significance and importance of the information in question (among other factors). The Department believes its guidelines provide the necessary flexibility to deal with superceded or outdated requests. The Department notes that its guidelines provide that requests that are duplicative, repetitious, or frivolous may be rejected and that information need not be corrected if the correction would serve no useful purpose.
The Web sites that publish the Department of Commerce's information quality guidelines are noted below. The first site includes this document for the Department of Commerce. The remaining sites document the information quality guidelines for Commerce's operating units.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
1. Privileged foreign status (19 CFR 146.41) shall be elected on all foreign status fabric admitted to the subzone;
2. No activity under FTZ procedures shall be permitted and that would result in a change in textile quota category or country of origin, and/or alter applicable U.S. quota/visa requirements; and,
3. All FTZ activity shall be subject to § 146.63(d) of the U.S. Customs Service regulations (19 CFR part 146).
Pursuant to its authority under the Foreign-Trade Zones Act, of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Attest:
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board), by the Cleveland-Cuyahoga County Port Authority, grantee of Foreign-Trade Zone 40, requesting authority to expand its zone (Site 3) in the Cleveland, Ohio, area, within the Cleveland Customs port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR Part 400). It was formally filed on September 26, 2002.
FTZ 40 was approved on September 29, 1978 (Board Order 135, 43 FR 46886, 10/11/78) and expanded in June 1982 (Board Order 194, 47 FR 27579, 6/25/82); April 1992 (Board Order 574, 57 FR 13694, 4/17/92); February 1997 (Board Order 870, 62 FR 7750, 2/20/97; June 1999 (Board Order 1040, 64 FR 33242, 6/22/99) and April 2002 (Board Order 1224, 67 FR 20087, 4/15/02). The general-purpose zone project currently consists of the following sites in the Cleveland, Ohio, area:
The applicant is now requesting authority to expand existing Site 3 by adding the 42-acre Snow Road Industrial Park, 18901 Snow Road, Brook Park. The site is contiguous to the Cleveland Hopkins International Airport complex (Site 3). The facility was the former tire warehousing and distribution facility of Goodyear Corporation, and it is now owned by the Crow Holdings Industrial Trust which is redeveloping the site as an industrial complex. The site will provide public warehousing and distribution services to area businesses. No specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by-case basis.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment on the application is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
1. Submissions via Express/Package Delivery Services: Foreign-Trade Zones Board, U.S. Department of Commerce, Franklin Court Building-Suite 4100W, 1099—14th Street, NW., Washington, DC 20005.
2. Submissions via the U.S. Postal Service: Foreign-Trade Zones Board, U.S. Department of Commerce, FCB-
The closing period for their receipt is December 9, 2002. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to December 23, 2002).
A copy of the application and accompanying exhibits will be available during this time for public inspection at address Number 1 listed above, and at the U.S. Department of Commerce Export Assistance Center, 600 Superior Avenue East, Suite 700, Cleveland, OH 44114.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand the scope of authority under zone procedures within Subzone 61G on behalf of IPR Pharmaceuticals, Inc., is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 78-Site 7 is approved, subject to the Act and the Board's regulations, including § 400.28.
Attest:
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit for final results of antidumping duty administrative review.
The Department of Commerce (“the Department”) is extending the time limit for the final results of the review of stainless steel sheet and strip in coils from Taiwan. This review covers the period July 1, 2000 through June 30, 2001.
October 8, 2004.
Laurel LaCivita, Enforcement Group III—Office 9, Import Administration, International Trade Administration, U.S. Department of commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4243.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR part 351 (2001).
On October 1, 2001, the Department published a notice of initiation of this antidumping duty administrative review for the period of July 1, 2000 through June 30, 2001 (66 FR 49924). We published the preliminary results of review on July 9, 2002.
Section 751(a)(3)(A) of the Act states that if it is not practicable to complete the review within the time specified, the administering authority may extend the 120-day period, following the date of publication of the preliminary results, to issue its final results by an additional 60 days. Completion of the final results within the 120-day period is not practicable for the following reasons:
• This review involves certain complex issues which were raised by petitioners after the verification and after the preliminary results of review.
• The review involves a large number of transactions and complex adjustments.
Therefore, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time period for issuing the final results of review by 30 days until December 6, 2002.
This decision is made pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5 p.m. in Suite 4100W, U.S. Department of Commerce, Franklin Court Building, 1099 14th Street, NW., Washington, DC.
We know of no other instrument or apparatus of equivalent scientific value to the foreign instrument which is being manufactured in the United States.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of information; request for comments; reopening comment period.
On August 26, 2002, NMFS announced that new information is available that indicates fine-scaled stock structure of harbor seals in Alaska. NMFS invited the public to submit additional information or viewpoints related to harbor seal stock structure in Alaska. In response to a request from the public, NMFS is reopening the comment period for 14 days.
Comments must be received before close of business on October 22, 2002.
Comments should be forwarded to P. Michael Payne, Assistant Regional Administrator for Protected Resources, Alaska Regional Office, NMFS, Juneau, Alaska 99802.
Kaja Brix, Alaska Regional Office, NMFS, Juneau, Alaska, (907) 586-7824; or Thomas Eagle, Office of Protected Resources, NMFS, Silver Spring, MD, (301) 713-2322, ext. 105.
The original notice of availability and a map of the areas in Alaska where seal groupings appear discrete may be found at
NMFS issued a notice (67 FR 54792, August 26, 2002) that new information indicates that stock structure of harbor seals in Alaska may be more finely scaled than is currently recognized in marine mammal stock assessment reports compiled pursuant to section 117 of the Marine Mammal Protection Act. NMFS also advised in that notice that it is evaluating harbor seal stock structure through a co-management process with the Alaska Native Harbor Seal Commission. NMFS solicited additional information and viewpoints from the public that it should consider throughout the evaluation of harbor seal stock structure.
The Alaska Department of Fish and Game requested that NMFS extend the comment period for 2 weeks. In response to this request, NMFS is reopening the comment period for 2 weeks.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of cancellation of a public meeting.
The New England Fishery Management Council (Council) has cancelled the public meeting of its Monkfish Oversight Committee that was scheduled for Tuesday, October 8, 2002 at 9:30 a.m. at the Holiday Inn By The Bay, 88 Spring Street, Portland, ME 04101.
Paul J. Howard, Executive Director, New England Fishery Management Council; (978) 465-0492.
The initial notice published on September 13, 2002 (67 FR 59492). The meeting will be rescheduled at a later date and announced in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Michael A. Castellini, Ph.D., Institute of Marine Science, School of Fisheries and Ocean Sciences, University of Alaska, Fairbanks, AK 99775, has been issued a permit to take Weddell seals (
The permit and related documents are available for review upon written request or by appointment in the following office:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)713-0376;
Ruth Johnson or Carrie Hubard, (301)713-2289.
On August 5, 2002, notice was published in the
Permit No. 1033-1683 authorizes the Holder to capture, sample, instrument and release Weddell seals, incidentally harass crabeater seal (Lobodon carcinophagus), leopard seal (Hydrurga leptonyx), Ross seal (Ommatophoca rossii), southern elephant seal (Mirounga leonina), and Antarctic fur seal (Archtocephalus gazella), and import blood, feces and milk collected during research.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service will host a teleconference call to discuss, and answer question regarding, the recent Notice of Availability of Funds for a National Provider of Training and Technical Assistance to Corporation for National and Community Service Programs Using Service and Volunteers to Support Homeland Security, published in the
Teleconference call will take place on Thursday, October 10, 2002, 2:30-4 p.m. Eastern.
Our address is The Corporation for National and Community Service, 1201 New York Avenue, NW., Washington, DC 20525.
For further information, contact Gina Fulbright-Powell (202-606-5000, ext. 182), e-mail
Delaware River Basin Commission.
Notice of proposed rulemaking.
The Commission will hold a public hearing to receive comments on proposed amendments to the agency's
The public hearing will be held on Wednesday, October 16, 2002 during the Commission's regular business meeting, which will begin at 1:30 p.m. Persons wishing to testify are asked to register in advance with the Commission Secretary by phoning 609-
The public hearing will be held at the Commission's offices, 25 State Police Drive, West Trenton, NJ. Written comments should be addressed to the Commission Secretary at DRBC, P.O. Box 7360, West Trenton, NJ 08628-0360.
Please contact Pamela M. Bush, at 609-883-9500 ext. 203, with questions about the proposed rule change or the rulemaking process.
A draft resolution enacting the proposed amendments to Sections 2.5.5 and 2.5.6 of the
Department of Education.
Notice.
The Leader, Regulatory 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 December 9, 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 Leader, Regulatory 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,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Responses: 25,575.
Burden Hours: 20,704.
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 Kathy Axt at her e-mail address
Department of Education.
Notice.
The Leader, Regulatory 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 December 9, 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 Leader, Regulatory Management Group, Office of the Chief Information Officer, publishes that notice containing
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Responses: 612.
Burden Hours: 33,660.
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
Department of Education.
Notice.
The Leader, Regulatory Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 7, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the e-mail address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory 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 submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Katrina Ingalls at her e-mail address
Office of Fossil Energy, DOE.
Notice of application.
New York State Electric & Gas Corporation (NYSEG) has submitted an application to amend its authorization to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before November 7, 2002.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Import/Export (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-287-5736).
Xavier Puslowski (Program Office) 202-586-4708 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA)(16 U.S.C. 824a(e)).
On April 14, 1997, the Office of Fossil Energy (FE) of the Department of Energy (DOE) authorized NYSEG to transmit electric energy from the United States to Canada using the international electric transmission facilities owned by Niagara Mohawk Power Corporation and the New York Power Authority.
On September 17, 2002, NYSEG applied to amend its existing export authorization by adding to the list of authorized export points those international transmission facilities owned by Citizens Utilities Company, the Joint Owners of Highgate Project, and Vermont Electric Transmission Company. The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by NYSEG, as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Comments on the NYSEG application to export electric energy to Canada should be clearly marked with Docket EA-137-A. Additional copies are to be filed directly with Mr. John R. Tigue, Manager, Bulk Power Sales, New York State Electric & Gas Corporation, Corporate Drive, Kirkwood Industrial Park, Post Office Box 5224, Binghamton, New York 13902-5224 and Mr. William J. Cronin, Esq., Rosa Pietanza, Esq., Huber Lawrence & Abell, 605 Third Avenue, 27th Flr, New York, New York 10158.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy Home Page at
Idaho Operations Office, DOE.
Notice of availability of Solicitation Number DE-PS07-03ID14434 University Reactor Instrumentation (URI) Program.
The U.S. Department of Energy, Idaho Operations Office, is soliciting applications for special research grant awards that will upgrade and improve U.S. nuclear research and training reactors. It is anticipated that on October 1, 2002, a full text for Solicitation Number DE-PSO7-03ID14434 for the 2003 URI Program will be made available at the Industry Interactive Procurement System (IIPS) Web site at:
Kathleen Stallman, Contract Specialist at
The solicitation will be issued in accordance with 10 CFR part 600.6(b), eligibility for awards under this program will be restricted to U.S. colleges and universities having a duly licensed, operating nuclear research or training reactor because the purpose of the University Reactor Instrumentation (URI) program is to upgrade and improve the U.S. university nuclear research and training reactors and to contribute to strengthening the academic community's nuclear engineering infrastructure.
The statutory authority for this program is Pub. L. 95-91.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act (Pub. L. No 92-463, 86 Stat. 770) requires that public notice of these meeting be announced in the
Thursday, November 7, 2002, 9 a.m.-5 p.m.; Friday, November 8, 2002, 8:30 a.m.-4 p.m.
West Coast Hotel, 1101 North Columbia Center Boulevard, Kennewick, WA 99336.
Yvonne Sherman, Public Involvement Program Manager, Department of Energy Richland Operations Office, 825 Jadwin, MSIN A7-75, Richland, WA, 99352; Phone: (509) 376-6216; Fax: (509) 376-1563.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Methane Hydrate Advisory Committee. Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires notice of these meetings be announced in the
Wednesday, November 13, 2002, 8:30 a.m. to 5 p.m. and Thursday, November 14, 2002, 8:30 a.m. to 3 p.m.
Marriott at Metro Center, 775 12th Street NW, Washington, DC 20005.
Edith Allison, U.S. Department of Energy, Office of Natural Gas and Petroleum Technology, Washington, DC 20585. Phone: 202/586-1023.
• Welcome and Introductions—Mike Smith, Assistant Secretary for Fossil Energy and Arthur Johnson, Advisory Committee Chairman
• Joint meeting with the Interagency Coordinating Committee—8:30 to noon Briefings on Methane Hydrate Accomplishments, Future Activities and R&D Issues by Minerals Management Service; National Oceanic and Atmospheric Administration; National Science Foundation; Naval Research Laboratory; U.S. Geological Survey; and Department of Energy
• Presentation and discussion—Ocean Drilling Program Leg 204 to Hydrate Ridge
• Presentation and discussion—Mallik Well and other Arctic studies
Ten minutes will be allowed for questions and public comment after each presentation.
• Review of draft report to Congress on Hydrates and Global Climate Change
• Continue review and revision of report to Congress on Hydrates and Global Climate Change
• Discussion of additional recommendations to Department of Energy
• Public comment period
• Adjournment, about 3:00 p.m.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Coal Policy Committee of the National Coal Council. Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires notice of these meetings be announced in the
Tuesday, November 12, 2002, 10 a.m. to 2 p.m.
Chicago Hilton, 720 South Michigan Avenue, Chicago, IL.
Margie D. Biggerstaff, U.S. Department of Energy, Office of Fossil Energy, Washington, DC 20585. Phone: 202/586-3867.
• Call to order by Ms. Georgia Nelson, Chairwoman, Coal Policy Committee.
• Review and discuss the Council's document summarizing past Council reports that address energy security and mercury emissions control technology.
• Discussion of other business properly brought before the Coal Policy Committee.
• Public comment—10 minute rule.
• Adjournment.
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 Umatilla Generating Project into the Federal Columbia River Transmission System. This decision is based on input from public processes and information in the Umatilla Generating Project Environmental Impact Statement (DOE/EIS-0324, January 2002). The Umatilla Generating Project is a 550-megawatt gas-fired, combined-cycle, combustion-turbine power generation project, located near Hermiston, Oregon, which will help meet the short-term need and future demand for energy resources.
Copies of the Umatilla Generating Project ROD and the Umatilla Generating Project EIS may be obtained by calling BPA's toll-free document request line: 1-800-622-4520.
Inez S. Graetzer, KEC-4, Bonneville Power Administration, P.O. Box 3621, Portland, Oregon, 97208-3621, telephone number 503-230-3786; fax number 503-230-5699; e-mail
Take notice that on September 30, 2002, Alliance Pipeline L.P. (Alliance) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, First Revised Sheet No. 279, to become effective November 1, 2002.
Alliance states that Sheet No. 279 sets forth the available delivery points on its pipeline system. Alliance further states that it has added a delivery point located at Will County, Illinois for the purpose of delivering volumes of natural gas to Guardian Pipeline L.L.C. Alliance is submitting First Revised Sheet No. 279 to reflect the addition of the new delivery point to the list of delivery points available under its FERC Gas Tariff. Alliance states that its filing is made pursuant to the authority of section 4 of the Natural Gas Act, 15 U.S.C. 717c.
Alliance states that copies of its filing have been mailed to all customers, state commissions, and other interested parties.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2002, ANR Pipeline Company, (ANR) tendered for filing two negotiated rate agreements between ANR and Anadarko Energy Service Company pursuant to ANR's Rate Schedules ITS and ITS (Liquefiables). ANR tenders these agreements pursuant to its authority to enter into negotiated rate agreements. ANR requests that the Commission accept and approve the agreements to be effective October 1, 2002.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2002, Black Marlin Pipeline Company (Black Marlin) tendered for filing in its FERC Gas Tariff First Revised Volume No. 1, the tariff sheets listed on Attachment A to the filing. The tariff sheets are proposed to be effective November 1, 2002.
Black Marlin states that the purpose of the tariff filing is to: (1) Update the information in the tariff regarding whom customers and interested parties can contact; (2) replace references in the tariff to an electronic bulletin board with information regarding Black Marlin's Internet Web site; and (3) incorporate a cash-out mechanism for transportation gas imbalances.
Black Marlin states that copies of the filing are being mailed to affected customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2002, Columbia Gas Transmission Corporation (Columbia) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following revised tariff sheets, with a proposed effective date of November 1, 2002:
Fifty-ninth Revised Sheet No. 25
Fifty-ninth Revised Sheet No. 26
Fifty-ninth Revised Sheet No. 27
Twenty-sixth Revised Sheet No. 30A
Columbia states that this filing is being submitted pursuant to Stipulation I, Article I, Section E, True-up Mechanism, of the Settlement (Settlement) in Docket No. RP95-408,
Columbia states that copies of its filing have been mailed to all firm customers, interruptible customers, and affected state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered
Take notice that on September 30, 2002, Dominion Transmission Inc. (DTI) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following revised tariff sheets, with an effective date of November 1, 2002:
DTI states that the purpose of this filing is to update DTI's effective Transportation Cost Rate Adjustment (TCRA) through the mechanism described in GT&C Section 15.
DTI states that copies of the filing have been sent to DTI's customers and interested stated commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2002, High Island Offshore System, L.L.C. (HIOS) tendered for filing a Negotiated Rate Arrangement with BP Exploration and Production, Inc. (BP). HIOS requests that the Commission approve the Negotiated Rate Arrangement effective October 1, 2002.
HIOS states that the filed Negotiated Rate Arrangement reflects negotiated rates between HIOS and BP for transportation under Rate Schedule FT-2 beginning October 1, 2002.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2002, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Seventh Revised Sheet No. 4A. The proposed effective date of this revised tariff sheet is November 1, 2002.
Iroquois states that pursuant to Part 154 of the Commission's regulations and Section 12.3 of the General Terms and Conditions of its tariff, it is filing Fourth Revised Sheet No. 4A and supporting workpapers as part of its annual update of its Deferred Asset Surcharge to reflect the annual revenue requirement associated with its Deferred Asset for the amortization period commencing November 1, 2002.
Iroquois states that the revised tariff sheet reflects a decrease of $.0001 per Dth in Iroquois' effective Deferred Asset Surcharge for Zone 1 of $.0001 per Dth (from $.0007 to $.0006 per Dth), which results in a decrease in the Inter-Zone surcharge of $.0001 per Dth (from $.0011 to $.0010 per Dth).
Iroquois states that copies of its filing were served on all jurisdictional customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections
Take notice that on September 30, 2002, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing to its FERC Gas Tariff, First Revised Volume No. 1, Eighth Revised Sheet No. 4A, with an effective date of November 1, 2002.
Iroquois states that pursuant to Part 154 of the Commission's regulations and Section 12.5 of the General Terms and Conditions of its tariff, it is filing Eighth Revised Sheet No. 4A and supporting workpaper as part of its annual Transportation Cost Rate Adjustment filing to reflect changes in Account No. 858 costs for the twelve month period commencing November 1, 2002.
Iroquois states that copies of its filing were served on all jurisdictional customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 26, 2002, Maritimes & Northeast Pipeline, L.L.C. (Maritimes) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, First Revised Sheet No. 243, First Rev First Revised Sheet No. 265, and First Rev First Revised Sheet No. 295, to become effective on November 1, 2002.
In compliance, Maritimes proposes to revise its Index Price consistently throughout its tariff to be calculated as the monthly average of the Platts Gas Daily, Midpoint, Tennessee Zone 6 (delivered) price, less the 100% load factor Rate Schedule MN365 maximum recourse rate. The following sections of the General Terms & Conditions of Maritimes' FERC Gas Tariff, First Revised Volume No. 1, have been revised to reflect this Index Price: (i) Section 11.6(c) (Balancing, Index Price); (ii) Section 20.4 (Fuel Retainage Quantity, True Up); and (iii) Section 8.7 (Curtailment, Compensation).
Maritimes states that copies of this filing were mailed to all affected customers of Maritimes and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that on September 24, 2002, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to issue long-term notes or other evidences of indebtedness in an amount not to exceed $100 million.
Midwest also requests a waiver from the Commission's competitive bidding requirement at 18 CFR 34.2.
Any person desiring to intervene or to protest this filing should file with the
Take notice that on September 25, 2002, Mississippi River Transmission Corporation (MRT) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following revised tariff sheets to be effective November 1, 2002:
MRT states that the purpose of this filing is to adjust MRT's fuel percentages pursuant to section 22 of its General Terms and Conditions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 25, 2002, North Baja Pipeline, LLC (NBP) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, First Revised Sheet No. 6 and Original Sheet No. 8.
NBP states that these sheets are being filed to reflect two negotiated rate agreements in its tariff. NBP requests that these tariff sheets be made effective September 1, 2002.
NBP further states that a copy of this filing has been served on NBP's jurisdictional customers and interested state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 25, 2002, Northern Natural Gas Company (Northern) tendered for filing to become part of Northern's FERC Gas Tariff, Fifth Revised Volume No. 1, Eighth Revised Sheet No. 2, First Revised Sheet No. 492 and Sheet No. 493, proposed to be effective on October 28, 2002.
Northern states that the purpose of this filing is to submit a Master Netting and Setoff Agreement as a non-conforming agreement and to add a tariff sheet listing of non-conforming agreements.
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the
Take notice that on September 27, 2002, PG&E Gas Transmission, Northwest Corporation (GTN) tendered for filing revised tariff sheets to reflect modifications necessary to reinstate the rate ceiling for short-term capacity release transactions following the conclusion of FERC's two-year waiver period as provided for in Order No. 637. GTN requests an effective date of October 1, 2002, for these tariff sheets.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to be heard or to protest said filing should file amotion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 25, 2002, Reliant Energy Gas Transmission Company (REGT) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Tenth Revised Sheet No. 5, Tenth Revised Sheet No. 6, Eleventh Revised Sheet No. 7, and Second Revised Sheet No. 15, to be effective November 1, 2002.
REGT states that the purpose of this filing is to adjust REGT's fuel percentages and Electric Power Costs (EPC) Tracker pursuant to sections 27 and 28 of its General Terms and Conditions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2002, Tennessee Gas Pipeline Company, (Tennessee) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Substitute Ninth Revised Sheet No. 405A, with an effective date of September 16, 2002.
Tennessee states that the revised tariff sheet is being filed in order to comply with the Commission's September 13, 2002 Order in the referenced proceeding, which relates to Tennessee's previous filing to enhance the creditworthiness provisions of its FERC Gas Tariff, and also provides protection to Tennessee and its creditworthy and paying customers from the realistic potential of sudden changes in other customers' financial condition and payment status.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Section
Take notice that on September 20, 2002, Tennessee Gas Pipeline Company (Tennessee), tendered for filing its Negotiated Rate Tariff Filing.
Tennessee's filing requests that the Commission approve a negotiated rate arrangement between Tennessee and Calpine Energy Services, L.P. Tennessee requests that the Commission grant such approval effective November 1, 2002.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 26, 2002, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, certain revised tariff sheets, which sheets are enumerated in Appendix A attached to the filing.
Transco states that the purpose of the filing is to track rate and fuel percentage changes attributable to transportation service purchased from Texas Gas Transmission Corporations (Texas Gas) under its Rate Schedule FT, the costs of which are included in the rates and charges payable under Transco's Rate Schedule FT-NT. This filing is being made pursuant to tracking provisions under Section 4 of Transco's Rate Schedule FT-NT.
Transco states that included in Appendix B attached to the filing is the explanation of the rate changes and details regarding the computation of the revised FT-NT rates.
Transco states that copies of the filing are being mailed to affected customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on September 30, 2002, Transwestern Pipeline Company (Transwestern) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Eighteenth Revised Sheet No. 5B.05; Tenth Revised Sheet No. 5B.07; Seventh Revised Sheet No. 5B.08; and Second Revised Sheet No. 5B.12, to become effective October 1, 2002:
Transwestern states that the above sheets are being filed to implement a specific negotiated rate agreement with PNM Gas Services, to reflect a negotiated rate calculation change with Astra Power LLC, and to reflect the permanent capacity release by USGT/Aguila to BP Energy, in accordance with the Commission's Policy Statement on Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines. Transwestern states that the above referenced tariff sheets have been revised to reflect the new negotiated rate contract information.
Any person desiring to be heard or to protest said filing should file a motion
Take notice that on April 30, 2002, Williams Gas Pipelines Central, Inc. (Williams) tendered for filing a report of the amount of penalty revenue collected by Williams pursuant to the provisions of Article 9.6 of the General Terms and Conditions of its FERC Gas Tariff during Periods of Daily Balancing (PODB) occurring in the 1995-96 and 1996-97 winter heating seasons, and the proposed distribution of such penalty revenues.
Williams states that as a result of severe weather conditions and resulting high demand for gas in its major market areas, Williams imposed two PODBs pursuant to Article 9.4 of its tariff during the 1995-96 winter heating season and three PODBs during the 1996-97 winter heating season as further described in its report. Penalties were imposed for overruns of MDTQ and MDWQ, depletion of gas in storage, under receipts at receipt points and over deliveries at delivery points as provided in Article 9.6 of Williams' tariff. As a result, Williams has collected $869,052 in penalty revenues. Williams proposes to refund these penalty revenues plus accrued interest ($396,119 through April 30, 2002) to non-offending parties as shown herein.
Williams states that a copy of its filing was served on all jurisdictional customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before October 8, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on August 6, 2002, Williams Gas Pipelines Central, Inc. (Williams) tendered for filing a second revised page 6 of Schedule 1 to its report of penalty revenue collected during Periods of Daily Balancing (PODB), filed April 30, 2002 in Docket No. RP02-241-000, and the subsequent revised report filed July 23, 2002 in Docket No. RP02-241-001.
Williams states that it made a revised filing on July 23, 2002 to report the amount of penalty revenue collected pursuant to the provisions of Article 9.6 of the General Terms and Conditions of its FERC Gas Tariff during Periods of Daily Balancing (PODB) occurring in the 1995-96 and 1996-97 winter heating seasons, and the proposed distribution of such revenue. Williams' July 23, 2002 filing contained an inadvertent error related to an allocation of refunds to a party who should not have received a refund, as reflected on second revised page 6 of Schedule 1.
Williams states that a copy of its filing was served on all participants listed on the service list maintained by the Commission in the docket referenced above, as well as all of Williams' jurisdictional customers and interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before October 8, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site 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 26, 2002, Manchief Power Company, L.L.C. (Manchief Power), Manchief Holding Company (Manchief Holding), Mesquite Colorado Holdco, L.L.C. (Mesquite Colorado) Mesquite Investors, L.L.C. (Mesquite Investors) and Fulton Cogeneration Associates, L.P. (Fulton) (jointly, Applicants) filed with the Federal Energy Regulatory Commission an application pursuant to Section 203 of the Federal Power Act for authorization to effectuate a transfer of the member interests in Manchief Power (which constitutes and indirect change in control over Manchief Power's jurisdictional facilities) from Mesquite Colorado to Manchief Holding. Applicants also requested expedited consideration of the Application and privileged treatment for certain exhibits pursuant to 18 CFR 33.9 and 388.112. Fulton and Manchief are also requesting Section 203 approval, to the extent applicable, to separate their shared market-based rate tariff.
Take notice that on September 23, 2002, Entergy Services, Inc., on behalf of Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New Orleans, Inc., (collectively, the Entergy Operating Companies) tendered for filing a compliance refund report in accordance with the Commission's letter order in Docket Nos. ER01-1951-000, ER01-1951-001, ER01-1951-002, and EL01-112-000.
Take notice that on September 26, 2002, Duke Energy South Bay, LLC (DESB) tendered for filing certain revisions to Schedules A and B of its RMR Agreement (RMR Agreement) with the California Independent System Operator (CAISO). The revisions are proposed in light of an Offer of Settlement submitted in the above-referenced dockets.
DESB requests an effective date of January 1, 2002 for these revisions. Copies of the filing have been served upon each person designated on the official service list compiled by the Secretary in these proceedings.
Take notice that on September 27, 2002, Commonwealth Edison Company (ComEd) submitted for filing an unexecuted Agreement for Dynamic Scheduling of Transmission Service between ComEd and Wisconsin Electric Power Company (Wisconsin Electric) under ComEd's Open Access Transmission Tariff (OATT) in compliance with Commonwealth Edison Co., 100 FERC ¶ 61,231 (2002).
ComEd states that a copy of this filing has been served on Wisconsin Electric and the Illinois Commerce Commission.
Take notice that on September 27, 2002, the California Independent System Operator Corporation (ISO) submitted a filing in compliance with the directives contained in the Commission's August 30, 2002 order in the captioned docket concerning Amendment No. 46 to the ISO Tariff, 100 FERC ¶ 61,234.
The ISO has served this filing upon the Public Utilities Commission of the State of California, the California Energy Commission, the California Electricity Oversight Board, all parties with effective Scheduling Coordinator Service Agreements under the ISO Tariff, and all parties on the official service list for the captioned docket. In addition, the ISO has posted a copy of the filing on its Home Page.
Take notice that on September 24, 2002, Southern California Edison Company (SCE) tendered for filing with the Federal Energy Regulatory Commission (Commission), pursuant to Section 35.13 of the Commission's regulations and Section 205 of the Federal Power Act, the High Desert Power Project Tie-Line Facilities Rental Agreement (Tie-Line Agreement), dated September 10, 2002, between SCE and High Desert Power Trust, LLC (HDPT). The Tie-Line Agreement specifies, among other things, that SCE shall engineer, design, procure, construct, install, own, operate, and maintain a 230 kV transmission line and related facilities to connect the switchyard at the High Desert Power Project to interconnection facilities at SCE's Victor Substation (Tie-Line). Following the in-service date of the Tie-Line, SCE will lease the Tie-Line to HDPT.
SCE requests that the Tie-Line Agreement be accepted for filing effective September 25, 2002. In addition, SCE also filed with the Commission an application pursuant to Section 203 of the Federal Power Act requesting any authorizations deemed necessary by the Commission for a disposition of jurisdictional facilities, namely a lease of the Tie-Line to HDPT, pursuant to the terms and conditions of the Tie Line Agreement. SCE respectfully requests that this application be granted and authorization be obtained by September 25, 2002.
Copies of this filing were served upon the Public Utilities Commission of the State of California, HDPT and HDPP.
Take notice that on September 27, 2002, Sierra Pacific Power Company (Sierra) and Nevada Power Company (Nevada Power) tendered for filing pursuant to Section 205 of the Federal Power a revised Joint Open Access Transmission Tariff. This filing is intended to implement retail access in Nevada and to make certain other changes to reflect the current status of operations. Sierra and Nevada Power request that the revised tariff be made effective on November 1, 2002, which is
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
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Red Lake Gas Storage Project involving construction and operation of facilities by Red Lake Gas Storage, L.P. (RLGS) in Mohave County, Arizona.
If you are a landowner receiving this notice, you may be contacted by a RLGS representative about the acquisition of an easement to construct, operate, and maintain the proposed facilities. RLGS would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, RLGS could initiate condemnation proceedings in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice RLGS provided to landowners. This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
RLGS proposes to construct the underground gas storage facilities in Mohave County, Arizona to provide firm and interruptible gas storage and hub services in interstate commerce. RLGS seeks authority to construct and operate:
1. Two subsurface solution-mined salt caverns for gas storage;
2. 31.0 miles of 36-inch-diameter natural gas pipeline with a collocated fiber optic cable;
3. 4.7 miles of 6-inch-diameter natural gas pipeline;
4. 11.5 miles of 18-inch-diameter brine disposal pipeline;
5. 4.7 miles of 16-inch-diameter raw-water supply pipeline;
6. four raw water supply wells;
7. four brine disposal wells;
8. a 25,000-horsepower (hp) gas storage field compressor station;
9. a gas dehydration system;
10. a 4.9-mile-long access road;
11. electric power generators; and
12. an interconnecting facility containing a meter station, a 9,000-hp compressor station, and 18-inch-diameter interconnecting pipelines to El Paso Natural Gas Company (0.3-mile-long), Transwestern Pipeline Company (0.2-mile-long), and Questar Southern Trails Pipeline Company (0.4-mile-long).
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would require about 746.9 acres of land. Following construction, about 414.3 acres would be maintained as new aboveground facility sites and permanent right-of-way. The remaining 332.6 acres of land would be restored and allowed to revert to its former use.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
We will also evaluate possible alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section beginning on page 5.
We have already identified several issues that we think deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by RLGS. This preliminary list of issues may be changed based on your comments and our analysis.
Impact on habitats unique to ephemeral waterbodies;
Water use and brine disposal; and
Impact on protected species and/or Federal Species of Concern (SC) including:
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal (including alternative locations and/or routes), and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE, Room 1A, Washington, DC 20426.
Label one copy of the comments for the attention of Gas Hydro.
Reference Docket No. CP02-420-000.
Mail your comments so that they will be received in Washington, DC on or before October 31, 2002.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding.
If you do not want to send comments at this time but still want to remain on our mailing list, please return the Information Request (Appendix 4). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must provide 14 copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (see appendix 2).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
This notice is being sent to individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. It is also being sent to all identified potential right-of-way grantors. By this notice we are also asking governmental agencies, especially those in appendix 3, to express their interest in becoming cooperating agencies for the preparation of the EA.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
Take notice that the following application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Ms. Magalie Roman Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. Please include the project number (P-2210-082) on any comments or motions filed. Comments, protests, and interventions may be filed electronically via the internet in lieu of paper.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
The Commission's Rules of Practice and Procedure require all interveners filing a document with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
The Commission's Rules of Practice and Procedure require all interveners filing a document with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper;
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m.
n.
o.
p.
q.
r.
s.
The Federal Energy Regulatory Commission hereby gives notice that on October 9, 2002, members of its staff will attend the MISO-PJM-SPP Single Market Design Forum meeting, concerning the development of a joint and common wholesale energy market
For more information, contact Mike Gahagan, Vice President, Chief Information Officer & Chief Strategic Officer, Midwest Independent Transmission System Operator, Inc. at (317) 249-5450, or Lawrence R. Greenfield, Senior Attorney, Federal Energy Regulatory Commission at (202) 502-6415 or
Environmental Protection Agency, (EPA).
Notice of public meeting.
Under section 10(a)(2) of Pub. L. 92-423, “The Federal Advisory Committee Act,” notice is hereby given of the forthcoming meeting of the Small Systems Affordability Work Group, of the National Drinking Water Advisory Council, established under the Safe Drinking Water Act, as amended (42 U.S.C. S300f
The affordability work group will meet on October 21-22, 2002 (9 a.m.-5:30 p.m. on October 21 and 8:30 a.m.-3:30 p.m. on October 22).
The meeting will be held at RESOLVE Inc., 1255 23rd Street, NW., Suite 275, Washington, DC and is open to the public, but from past experience, seating will likely be limited.
For more information on the location and times of these meetings, or general background information please contact the Safe Drinking Water Hotline (phone: 800-426-4791 or (703)285-1093; e-mail:
As part of the 2002 appropriations process, Congress directed EPA to “begin immediately to review the Agency's affordability criteria and how small system variance and exemption programs should be implemented for arsenic” (Conference Report 107-272, page 175). Congress further directed the Agency to prepare a report, which EPA submitted (Report to Congress: Small System Arsenic Implementation Issues: EPA 815-R-02-003), “on its review of the affordability criteria and the administrative actions undertaken or planned to be undertaken by the Agency, as well as potential funding mechanisms for small community compliance and other legislative actions, which, if taken by the Congress, would best achieve appropriate extensions of time for small communities while also guaranteeing maximum compliance.” (Conference Report 107-272, page 175).
In evaluating treatment technologies for small systems, EPA currently uses an affordability threshold of 2.5% of median household income. EPA's national-level affordability criteria consist of two major components: an expenditure baseline and an affordability threshold. The expenditure baseline (derived from annual median household water bills) is subtracted from the affordability threshold (a share of median household income that EPA believes to be a reasonable upper limit for these water bills) to determine the expenditure margin (the maximum increase in household water bills that can be imposed by treatment and still be considered affordable). EPA compares the cost of treatment technologies against the available expenditure margin to determine if an affordable compliance technology can be identified. If EPA cannot identify an affordable compliance technology, then it attempts to identify a variance technology. Findings must be made at both the Federal and State level that compliance technologies are not affordable for small systems before a variance can be granted.
EPA is asking the NDWAC for advice on its national-level affordability criteria and the methodology used to establish these criteria. Taking into consideration the structure of the Safe Drinking Water Act and the limitations of readily available data and information sources, EPA is seeking the Council's opinion of the national level affordability criteria, methodology for deriving the criteria, and approach to applying those criteria to NPDWRs.
As part of the Council's review of EPA's national-level affordability criteria, the Agency is seeking input on (1) the Agency's overall approach, (2) alternatives, if any, to the use of median household income as a metric, (3) alternatives, if any, to 2.5% as a metric, (4) alternatives, if any, to calculating the expenditure baseline, (5) the usefulness of a separate criteria for ground and surface water systems, (6) including an evaluation of the potential availability of financial assistance, and (7) the need for making affordability determinations on a regional basis. Other issue areas may also be discussed. The meeting is open to the public; statements from the public will be taken at the close of the meeting. EPA is not soliciting written comments and is not planning to formally respond to comments.
This is the second work group meeting on this topic. At the first meeting held on September 11-12, the work group was briefed by EPA on the approach to affordability taken by the Agency. At the first meeting, the work group also devised an approach to answer the Agency's charge questions. In this second work group meeting, other technical experts have been invited to speak and the work group will continue with its deliberations.
Environmental Protection Agency.
Notice of availability of a final document.
The Environmental Protection Agency's (EPA) is announcing the availability of its
A limited number of copies of the
Dr. Michael McDonald, the National Health and Environmental Effects Research Laboratory's EMAP Program Manager, (MD-B-243-01), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: 919-541-7973; facsimile: 919-541-4621; e-mail:
In assessing environmental risk and determining restoration priorities, current environmental conditions must be known and rates of change must be measurable. Because of EPA's responsibilities under the Clean Water Act, the Environmental Monitoring and Assessment Program, within the Office of Research and Development, has focused on improving monitoring and assessment methodologies for aquatic ecosystems and their associated landscapes. EMAP has focused on developing indicators and unbiased statistical design frameworks to assess the status and trends of aquatic ecosystems at local, state, regional, and national scales. As is EMAP's primary mission, the goal of this Strategy is the development of sound scientific approaches to determine the health of the nation's aquatic ecosystems and the stressors most closely associated with impairment.
EMAP efforts ensure that comprehensive and comparable methods are being used at a national level, allowing meaningful assessments and the first regional comparisons of aquatic ecosystem conditions across the entire U.S. These results will significantly improve the quality of performance-based reporting to Congress and will better inform EPA national and regional decisions on priority issues and areas.
State managers and technical staff frequently struggle to balance local information needs with federal reporting requirements. EMAP will continue to work with State partners to develop cost-effective monitoring methodology to aid in decision-making. Results to date from EMAP approach applications in more than 30 States show cost-savings while producing full-coverage condition estimates. Often these cost-savings are used to address priority issues also identified through the EMAP process.
Finally, EMAP's approach and associated indicators serve the Agency and the public by contributing to scientifically based reports such as EPA's upcoming state of the environment report and the Heinz Center's “The State of the Nation's Ecosystems” report. EMAP's efforts help to fill important information needs at both national and at local levels. EMAP information will improve our ability assess our progress in environmental protection and provide valuable information for decision makers and the public.
This
Equal Employment Opportunity Commission.
Notice.
EEOC hereby announces the availability of its final information quality guidelines on its web site.
Effective Date: October 1, 2002.
Lizette Molina, Special Assistant to the Director, Office of Information Technology, (202) 663-4446, or Jay Friedman, Director of Strategic Planning and Management Controls Division, Office of Research, Information and Planning, (202) 663-4094.
The Equal Employment Opportunity Commission (EEOC) has finalized its Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the U.S. Equal Employment Opportunity Commission. These guidelines are currently published on EEOC's Web site
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to
Written comments should be submitted on or before November 7, 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, Federal Communications Commission, Room 1-C804, 445 12th Street, SW, DC 20554 or via the Internet to jboley@fcc.gov.
For additional information or copies of the information collection(s), contact Judith Boley Herman at 202-418-0214 or via the Internet at
OMB Control No.: 3060-0798.
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before November 7, 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 Les Smith, Federal Communications Commissions, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at
The Federal Communications Commissions, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before November 7, 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 Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to lesmith@fcc.gov.
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at lesmith@fcc.gov.
OMB Control Number: 3060-0888.
Federal Communications Commission.
The Federal Communications Commissions, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before November 7, 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 Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at
Petition for Reconsideration has been filed in the Commission's rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR 1.429(e). The full text of this document is available for viewing and copying in Room CY-A257, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Qualex International (202) 863-2893. Oppositions to this petition must be filed by October 23, 2002. See Section 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1)). Replies to an opposition must be filed within 10 days after the time for filing oppositions has expired.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Indiana (FEMA-1433-DR), dated September 25, 2002, and related determinations.
September 25, 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 25, 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:
I have determined that the damage in certain areas of the State of Indiana, resulting from severe storms and tornadoes on September 20, 2002, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (Stafford Act). I, therefore, declare that such a major disaster exists in the State of Indiana.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance in the designated areas and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for the Individual and Family Grant program will be limited to 75 percent of the total eligible costs. If Public Assistance and Hazard Mitigation are later requested and warranted, Federal funds provided under these two programs will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
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 William Lokey 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 Indiana to have been affected adversely by this declared major disaster:
Bartholomew, Blackford, Brown, Daviess, Decatur, Delaware, Fayette, Franklin, Gibson, Grant, Greene, Hamilton, Hancock, Hendricks, Henry, Jay, Johnson, Knox, Lawrence, Madison, Marion, Monroe, Morgan, Owen, Pike, Posey, Randolph, Rush, Shelby, Sullivan, Tipton, and Vanderburg for Individual Assistance.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the State of Indiana, (FEMA-1433-DR), dated September 25, 2002, and related determinations.
September 30, 2002.
Magda Ruiz, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or Magda.Ruiz@fema.gov.
The notice of a major disaster declaration for the State of Indiana is hereby amended to include Public Assistance for the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of September 25, 2002:
The counties of Johnson, Knox, Marion, Monroe, Morgan and Posey for Public Assistance (already designated for Individual Assistance).
All counties in the State of Indiana 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 Texas (FEMA-1434-DR), dated September 26, 2002, and related determinations.
September 26, 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 26, 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:
I have determined that the damage in certain areas of the State of Texas, resulting from Tropical Storm Fay on September 6, 2002, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act). I, therefore, declare that such a major disaster exists in the State of Texas.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance in the designated areas and Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and the Individual and Family Grant program will be limited to 75 percent of the total eligible costs. If Public Assistance is later requested and warranted, Federal funds provided under that program will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
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 Scott Wells 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 Texas to have been affected adversely by this declared major disaster:
Brazoria, Frio, Galveston, La Salle, Live Oak, Matagorda, Nueces, San Patricio, and Wharton Counties for Individual Assistance.
All counties within the State of Texas are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster for the State of Wisconsin (FEMA-1432-DR), dated September 10, 2002, and related determinations.
September 27, 2002.
Magda Ruiz, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that the incident period for this disaster is reopened. The incident period for this declared disaster is now September 2-6, 2002.
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 22, 2002.
Board of Governors of the Federal Reserve System, October 2, 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 (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
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 November 1, 2002.
In addition to this application, Midamerica Financial Corporation, Des Moines, Iowa, also has applied to become a bank holding company by acquiring Bankers Trust Company, N.A., Cedar Rapids, Iowa, a
Board of Governors of the Federal Reserve System, October 2, 2002.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 22, 2002.
Board of Governors of the Federal Reserve System, October 2, 2002.
This gives notice under the Federal Advisory Committee Act (Public Law 92-463) of October 6, 1972, that the Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, Centers for Disease Control and Prevention (CDC), Department of Health and Human Services, has been renewed for a 2-year period, through September 18, 2004.
Burma Burch, Committee Management Officer, Centers for Disease Control and Prevention, 1600 Clifton Road, NE., M/S E-72, Atlanta, Georgia 30333, telephone (404) 498-0090, fax (404) 498-0011.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The Director, Management and Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting.
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following Subcommittee Meeting.
Agenda items are subject to change as priorities dictate.
If you would like to attend the Subcommittee meeting, you are encouraged to register by providing your name, title, organization name, address, and telephone number to Jessica Porras (address below). If you would like to speak at the meeting, please notify Jessica Porras when you register. Written comments may be submitted until December 20, 2002; comments received after October 24, 2002, will be shared at future subcommittee meetings. Submitted comments will be posted on the Internet at
To submit electronic comments, send via e-mail to
Ms. Jessica Porras, Office on Smoking and Health, 200 Independence Ave., Suite 317-B, Washington, DC 20201, 202-205-8500 (telephone) or (202) 205-8313 (facsimile) or
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “The Evaluation of Long-Term Antibiotic Drug Therapy for Persons Involved in Anthrax Remediation” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by November 7, 2002.
Submit written comments on the collection of information to the Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW., rm. 10235, Washington, DC 20503, Attn: Stuart Shapiro, Desk Officer for FDA.
JonnaLynn P. Capezzuto, Office of Information Resources Management HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed
Under the statutory requirements contained in section 351 of the Public Health Service Act (42 U.S.C. 262), no blood, blood component, or derivative may move in interstate commerce unless: (1) It is propagated or manufactured and prepared at an establishment holding an unsuspended and unrevoked license; (2) the product complies with regulatory standards designed to ensure safety, purity, and potency; and (3) it bears a label plainly marked with the product's proper name, manufacturer, and expiration date. In addition, under the biologics licensing and quarantine provisions in sections 351 to 361 of the Public Health Service Act (42 U.S.C. 262 to 264) and the general administrative provisions under sections 501 to 503, 505 to 510, and 701 to 704 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 to 353, 355 to 360, and 371 to 374), FDA has the authority to issue regulations designed to protect the public from unsafe or ineffective biological products and to issue regulations necessary to prevent the introduction, transmission, or spread communicable diseases. The current good manufacturing practices (CGMP) and related regulations implement FDA's statutory authority to ensure the safety, purity, and potency of blood and blood components. The lookback regulations are intended to help ensure the continued safety of the blood supply by providing necessary information to users of blood and blood components and appropriate notification of recipients of transfusion at increased risk for transmitting human immunodeficiency virus (HIV) infection. The information collection requirements in the CGMP and lookback regulations provide FDA with the necessary information to perform its duty to ensure the safety, purity, and potency of blood and blood components. These requirements establish accountability and traceability in the processing and handling of blood and blood components and enables FDA to perform meaningful inspections. The recordkeeping requirements serve preventative and remedial purposes. The disclosure requirements identify the various blood and blood components and important properties of the product, demonstrate that the CGMP requirements have been met, and facilitate the tracing of a product back to its original source. The reporting requirements inform FDA of any deviations that occur and that may require immediate corrective action. In part 606 (21 CFR part 606), § 606.100(b) requires that written standard operating procedures (SOPs) be maintained for the collection, processing, compatibility testing, storage, and distribution of blood and blood components used for transfusion and manufacturing purposes. Section 606.100(c) requires the review of all pertinent records to a lot or unit of blood prior to release. Any unexplained discrepancy or failure of a lot or unit of final product to meet any of its specifications must be thoroughly investigated, and the investigation, including conclusions and followup, must be recorded. Section 606.110(a) requires a physician to certify in writing that the donor's health permits plateletpheresis or leukapheresis if a variance from additional regulatory standards for a specific product is used when obtaining the product from a specific donor for a specific recipient. Section 606.110(b) requires establishments to request prior Center for Biologics Evaluation and Research (CBER) approval for plasmapheresis of donors who do not meet donor requirements. Section 606.151(e) requires that records of expedited transfusions in life threatening emergencies be maintained. So that all steps in the collection, processing, compatibility testing, storage and distribution, quality control, and transfusion reaction reports and complaints for each unit of blood and blood components can be clearly traced, § 606.160 requires that legible and indelible contemporaneous records of each significant step be made and maintained for no less than 5 years. Section 606.165 requires that distribution and receipt records be maintained to facilitate recalls, if necessary. Section 606.170(a) requires records to be maintained of any reports of complaints of adverse reactions as a result of blood collection or transfusion. Each such report must be thoroughly investigated, and a written report, including conclusions and followup, must be prepared and maintained. Section 606.170(b) requires that fatal complications of blood collection and transfusions be reported to FDA as soon as possible and that a written report shall be submitted within 7 days. Section 610.46(a) (21 CFR 610.46(a)) requires blood establishments to notify consignees, within 72 hours, of repeatedly reactive tests results so that previously collected blood and blood components are appropriately quarantined. Section 610.46(b) requires blood establishments to notify consignees of licensed, more specific test results for HIV within 30 calendar days after the donors's repeatedly reactive test. Section 610.47(b) (21 CFR 610.47(b)) requires transfusion services not subject to Centers for Medicare and Medicaid Services (CMS) regulations to notify physicians of prior donation recipients or to notify recipients themselves of the need for HIV testing and counseling. In addition to the CGMPs in part 606, there are regulations in part 640 (21 CFR part 640) that require additional standards for certain blood and blood components as follows: Sections 640.3(a); 640.4(a); 640.25(b)(4) and (c)(1); 640.27(b); 640.31(b); 640.33(b); 640.51(b); 640.53(c); 640.56(b) and (d); 640.61; 640.63(b)(3), (e)(1), and (e)(3); 640.65(b)(2); 640.66; 640.71(b)(1); 640.72; 640.73; and 640.76(a) and (b). The information collection requirements and estimated burdens for these regulations are included in the part 606 burden estimates, as described below. Respondents to this collection of information are licensed and unlicensed blood establishments inspected by FDA, and other transfusion services inspected by CMS. Based on FDA's registration system, there are approximately 2,841 registered blood establishments inspected by FDA. Of these 2,841 establishments, approximately 1,349 perform pheresis, approximately 1,041 annually collect 27 million units of Whole Blood, blood components including Source Plasma, and Source Leukocytes and are required to follow FDA “lookback” procedures, and approximately 166 are registered transfusion services that are not subject to CMS's “lookback” regulations. Based on CMS records there are an estimated 4,980 transfusion services. The following reporting and recordkeeping estimates are based on information provided by industry, CMS, and FDA experience. In table 1 of this document, we estimate that there are approximately 3,500 repeat donors that will test reactive on a screening test for HIV. FDA estimates that each repeat donor has donated two previous times, and an average of three components were made from each donation. Under § 610.46(a) and (b), this estimate results in 21,000 (3,500 x 2 x 3) notifications of the HIV screening test results to consignees by collecting establishments for the purpose of quarantining affected blood and blood components, and another 21,000 (3,500 x 2 x 3) notifications to consignees of subsequent test results. Under
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an amendment to the notice of meeting of the Biological Response Modifiers Advisory Committee. This meeting was originally announced in the
Gail Dapolito or Rosanna L. Harvey, Center for Biologics Evaluation and Research (HFM-71), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852, 301-827-0314 or call the FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area), code 12389. Please call the Information Line for up-to-date information on this meeting.
In the
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to advisory committees.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (301) 443-7978.
The current emergency department (ED) sample supports estimates for the coterminous U.S. and 21 major metropolitan areas. Beginning in 2003, the DAWN case definition will be changed to obtain more consistent and reliable data on drug abuse cases and also will capture additional cases where drug use/misuse led to ED visits or deaths for conditions such as adverse drug reactions, underage drinking and malicious poisonings. To achieve better geographic and population coverage, the ED sample will be expanded to support estimates for the full U.S. and 48 metropolitan areas. By the end of 2005, the sample will include approximately 841 hospitals. To achieve complete coverage, approximately 66 non-participating ME/C jurisdictions in the 48 metropolitan areas targeted for the ED expansion will be added in lieu of a sample. Facilities (EDs and ME/Cs) will continue to use the current forms in early 2003 to complete reporting on events occurring through December 2002, but will use the revised forms for all events occurring from 1/1/2003 forward.
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: Allison Herron Eydt, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
Office of the Assistant Secretary for Public and Indian Housing.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Mildred M. Hamman, Reports Liaison Officer, Public and Indian Housing, Department of Housing & Urban Development, 451 7th Street, SW., Room 4249, Washington, DC 20410-5000.
Mildred M. Hamman, (202) 708-0614, extension 4128, for copies of the proposed forms and other available documents. (This is not a toll-free number). For hearing- and speech-impaired persons, this telephone number may be accessed via TTY (Text telephone) by calling the Federal Information Relay Services at 1-800-877-8339 (toll-free).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also Lists the following Information:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2577-0226) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; e-mail
Wayne Eddins, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1955, 44 U.S.C. 35, as amended.
Office of Indian Education Programs, Interior.
Notice of renewal of a currently approved information collection.
In compliance with the Paperwork Reduction Act, this notice announces that the Bureau of Indian Affairs is submitting an information collection to the Office of Management and Budget for renewal. The collection concerns the enrollment applications for two Bureau operated post secondary schools: Haskell Indian Nations University and Southwestern Indian Polytechnic Institute. We are requesting a renewal of clearance and requesting comments on this information collection.
Written comments must be submitted on or before November 7, 2002.
You are requested to send any comments to Attention: Desk Officer for the Department of the Interior, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503. Please send a copy of your written comments to Kenneth Whitehorn, Department of the Interior, Office of Indian Education Programs, Branch of Planning, MS Room 3512 MIB, 1849 C Street, NW., Washington, DC 20240. You may fax your written comments to (202) 208-3312.
Kenneth Whitehorn, (202) 208-4976.
This notice is published in exercise of authority delegated to the Assistant Secretary—Indian Affairs under 25 U.S.C. 2 and 9 and 209 DM 8.
The Bureau of Indian Affairs (BIA) is submitting the admission forms for Haskell Indian Nations University and the Southwestern Indian Polytechnic Institute for review by OMB. These admission forms are useful in determining program eligibility of American Indian and Alaska Native students for educational services. The forms have been changed to include a Paperwork Reduction Act and Public Burden statements, a Privacy Act statement, and an Effects of Non Disclosure statement.
These forms are utilized pursuant to Blood Quantum Act, Public Law 99-
A notice announcing the emergency clearance and requesting comments was published on April 23, 2002 (67 FR 19770). There were no comments received regarding that notice, however, the Department of the Interior invites comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden (including the hours and cost) of the proposed collection of information, including the validity of the methodology and assumption used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection. They also will become a matter of public record.
All written comments will be available for public inspection in Room 3512 of the Main Interior Building, 1849 C Street, NW., Washington, DC, from 7:45 a.m. to 4:15 p.m. EST, Monday through Friday, excluding legal holidays. If you wish to have your name or address withheld from public view, you must state this prominently at the beginning of your comments. We will honor your request to the extent allowed by law.
We will not request nor sponsor a collection of information, and you need not respond to such a request, if there is no valid Office of Management and Budget Control Number.
Fish and Wildlife Service, Interior.
Notice of receipt of application for endangered species permit.
The following applicants have applied for permits to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Written data or comments on these applications must be received, at the address given below, by November 7, 2002.
Documents and other information submitted with these applications are available for review,
Victoria Davis, Telephone: 404/679-4176; Facsimile: 404/679-7081.
If you wish to comment, you may submit comments by any one of several methods. You may mail comments to the Service's Regional Office (see
The applicant requests authorization to remove and reduce to possession cuttings and seeds of
The applicant requests authorization to take (survey, capture, and translocate) approximately 3,000 endangered fat pocketbook mussels (
The applicant requests authorization to take (survey, capture, and translocate) by clamshell dredging the endangered orangefoot (pearlymussel) pimpleback (
The applicant requests authorization to take (survey, handle, identify, examine, release, and collect voucher specimens and relics) the fat pocketbook mussel (
The applicant requests authorization to take (survey, capture, tag, mark, and release) the American burying beetle (
The applicant requests authorization to remove and reduce to possession seeds of
The applicant requests authorization to take (survey, capture, and release) the Kentucky cave shrimp (
The applicant requests authorization to take (survey, capture, and release) the fat threeridge mussel (
The applicant requests authorization to take (survey, capture, and release) the Cape Fear shiner (
The applicant requests authorization to remove and reduce to possession seeds of
The applicant requests authorization to remove and reduce to possession seeds of
The applicant requests authorization to take (survey, collect, and replace at point of collection) the endangered orangefoot (pearlymussel) pimpleback (
The applicant requests authorization to take (survey, collect, measure, count, and replace at point of collection) the endangered Tulotoma snail (
Fish and Wildlife Service, Interior.
Notice of intent; announcement of scoping meeting.
The Fish and Wildlife Service announces its intent to prepare an environmental impact statement regarding the proposed Gulf Highlands Area Habitat Conservation Plan (HCP) and issuance of two permits for the incidental take of the Alabama beach mouse. These permits are for the construction, occupancy, use, operation, and maintenance of two residential/recreational condominium projects-the Gulf Highlands Condominiums by Gulf Highlands LLC and Beach Club West by Fort Morgan Paradise Joint Venture on the Fort Morgan Peninsula, in Baldwin County, Alabama. We will also hold a public scoping meeting/hearing on
Written comments concerning our intent to prepare an EIS and concerning the HCP should be received on or before November 22, 2002. The scoping meeting will be held on October 29, 2002, from 4 p.m. to 8 p.m.
Persons wishing to review the application and HCP may obtain a copy by writing the Service's Southeast Regional Office at Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, GA 30345 (Attn: Endangered Species Permits,) or Field Office, U.S. Fish and Wildlife Service, 1208-B Main Street, Daphne, AL 36526 (Attn: Ms. Barbara Allen). Documents will be available for public inspection by appointment during normal business hours at the regional office. Written data or comments concerning the HCP and our notice of intent to prepare an EIS should be submitted to the Regional Office. Please reference permit numbers TE-007985-0 (Gulf Highlands) and TE-031307-0 (Fort Morgan Peninsula Joint Venture) in such comments, or in requests for documents.
The scoping meeting will be held at Gulf State Park, 20115 State Highway 135, Gulf Shores, Alabama. A court reporter will be present to record all comments, and all interested parties will be allowed to comment.
Mr. Aaron Valenta, Regional Permit Coordinator, (see
The proposed residential/recreational condominium developments will be located on approximately 196 acres in south Baldwin County, Alabama, between State Highway 180 and the Gulf of Mexico (Section 28, Township 9 South, Range 2 East) about twelve miles west of Highway 59 in Gulf Shores, Alabama, on the Fort Morgan Peninsula.
Some of the Applicants' future activities have the potential to impact species subject to protection under the Act, including the Alabama beach mouse
The Applicants have initiated and continued discussions with the Service regarding the possibility of Permits and an associated HCP for their activities on lands to be covered by the Permits. General activities proposed for permit coverage include residential, commercial and industrial development, construction, and maintenance activities.
The Service previously considered the Applicants' HCP in an Environmental Assessment and issued a Finding of No Significant Impact. 67 FR 17089 (Apr. 9, 2002). That environmental analysis was challenged in an action for judicial review brought by Sierra Club and Friends of the Earth. The United States District Court for the Southern District of Alabama granted a preliminary injunction against any take of the Alabama beach mouse pursuant to the permits previously issued to Applicants.
Subsequently, in light of the court's preliminary injunction, the Service determined to revisit the earlier NEPA analysis for this HCP and the issued permits. See Defendant's Motion for Voluntary Remand,
The environmental review will analyze the Applicants' proposed HCP as well as a full range of reasonable alternatives and the associated impacts of each. The Service is currently in the process of developing alternatives for analysis. The alternatives identified to date are as follows:
Persons wishing to provide relevant information and comments regarding this activity should submit these to the above address. For information, please contact the individual identified above in the section entitled
The environmental review of this project will be conducted in accordance with the requirements of the National Environmental Policy Act of 1969 as amended (42 U.S.C. 4321
Bureau of Land Management, Interior.
Emergency Closure of the Willow Valley Road in Klamath County, Oregon.
Notic is hereby given that the Willow Valley Road, (41-14E-13), at the Rock Creek Bridge, in T. 41 S., R. 15 E., Sec. 17, Willamette Meridan, Klamath County, Oregon is temporarily closed to vehicle operation from October 7, 2002 through November 29, 2002. The closure is made under the authority of 43 CFR 8364.1. The purpose of this emergency temporary closure is to protect persons from potential harm during bridge replacement.
Any person who fails to comply with the provisions of this closure order may be subject to the penalties provided in 43 CFR 8360.0.-7, which include a fine not to exceed $1,000 and/or imprisonment not to exceed 12 months, as well as the penalties provided under Oregon State law.
The public road temporarily closed to public use under this order will be posted with signs at points of public access.
This closure is effective from October 7, 2002 through November 29, 2002.
Copies of the closure order and map showing the location of the closed road is available for the Klamath Falls Resource Area Office, 2795 Anderson Avenue, Building 25, Klamath Falls, Oregon 97603.
Teresa A. Raml, Field Manager, Klamath Falls Resource Area Office at (541) 883-6916.
Bureau of Land Management, Interior.
Public Land Order.
This order revokes a public land order insofar as it affects approximately 304.18 acres of public lands withdrawn for military purposes for the Department of the Air Force at Port Moller Radio Relay Site, Alaska. The lands are no longer needed for the purpose for which they were withdrawn. This action also allows the conveyance of the lands to the State of Alaska, if such lands are otherwise available. Any lands described herein that are not conveyed to the State will continue to be subject to the terms and conditions of Public Land Order No. 5186, as amended, and any other withdrawal or segregation of record.
October 8, 2002.
Robbie J. Havens, Bureau of Land Management, Alaska State Office, 222 W. 7th Avenue, No. 13, Anchorage, Alaska 99513-7599, 907-271-5477.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), and by Section 17(d)(1) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1616(d)(1) (1994), it is ordered as follows:
1. Public Land Order No. 2374, which withdrew public lands for military purposes, is hereby revoked insofar as it affects the following described lands:
Three parcels more particularly described as:
Commencing at U.S.L.M.S. 1147, latitude 55°59′28″ N., longitude 160°34′29.374″ W., 1927 N.A.D.;
The area described contains 91.83 acres.
Commencing at U.S.L.M.S. 1147, latitude 55°59′28″ N., longitude 160°34′29.374″ W., 1927 N.A.D.;
The area described contains 189.39 acres.
Commencing at U.S.L.M.S. 1147, latitude 55°59′28″ N., longitude 160°34′29.374″ W., 1927 N.A.D.;
The area described contains 22.96 acres.
The areas described aggregate 304.18 acres.
2. The State of Alaska application for selection made under Section 6(b) of the Alaska Statehood Act of July 7, 1958, 48 U.S.C. note prec. 21 (1994), and under Section 906(e) of the Alaska National Interest Lands Conservation Act, 43 U.S.C. 1635(e)(1994), becomes effective without further action by the State upon publication of this public land order in the
Bureau of Land Management, Interior.
Public Land Order.
This order revokes a public land order insofar as it affects 55.31 acres of public land withdrawn for airport purposes for the Federal Aviation Administration. The land is no
October 8, 2002.
Robbie J. Havens, Bureau of Land Management, Alaska State Office, 222 W. 7th Avenue, No. 13, Anchorage, Alaska 99513-7599, 907-271-5477.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), and by Section 17(d)(1) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1616(d)(1) (1994), it is ordered as follows:
1. Public Land Order No. 2550, which withdrew public lands for airport purposes, is hereby revoked insofar as it affects the following described land:
The area described contains 55.31 acres.
2. The State of Alaska application for selection made under Section 6(b) of the Alaska Statehood Act of July 7, 1958, 48 U.S.C. note prec. 21 (1994), and under Section 906(e) of the Alaska National Interest Lands Conservation Act, 43 U.S.C. 1635(e)(1994), becomes effective without further action by the State upon publication of this public land order in the
Bureau of Land Management, Interior.
Public Land Order.
This order revokes a public land order insofar as it affects 30 acres of public land withdrawn for air navigation purposes for the Federal Aviation Administration at Talkeetna, Alaska. The land is no longer needed for the purpose for which it was withdrawn. The land is also classified for conveyance to Cook Inlet Region, Inc., under the Act of January 2, 1976, as amended. Any land described herein that is not conveyed will continue to be subject to the terms and conditions of Public Land Order No. 5186, as amended, and any other withdrawal or segregation of record.
October 8, 2002.
Robbie J. Havens, Bureau of Land Management, Alaska State Office, 222 W. 7th Avenue, No. 13, Anchorage, Alaska 99513-7599, 907-271-5477.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), and by Section 17(d)(1) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1616(d)(1) (1994), it is ordered as follows:
1. Public Land Order No. 2713, as amended, which withdrew public lands for air navigation purposes, is hereby revoked insofar as it affects the following described land:
The area described contains 30 acres.
2. Subject to valid existing rights, the land is classified for conveyance to Cook Inlet Region, Inc., under the Act of January 2, 1976, as amended, 43 U.S.C. 1611 (note) (1994). Any land not conveyed will continue to be subject to the terms and conditions of Public Land Order No. 5186, as amended, and any other withdrawal or segregation of record.
Bureau of Land Management, Interior.
Public Land Order.
This order modifies the Executive Order dated January 9, 1838 and transfers the administrative jurisdiction of 49.83 acres of land located at the Pensacola Naval Air Station from the Department of the Navy to the Department of Veterans Affairs for the expansion and operation of the Barrancas National Cemetery.
October 8, 2002.
Duane Winters, Jackson Field Office, 411 Briarwood Drive, Suite 404, Jackson, Mississippi 39206, 601-977-5403.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), it is ordered as follows:
1. Subject to valid existing rights, the Executive Order dated January 9, 1838, which withdrew public domain land for the benefit of the United States Navy, is hereby modified to transfer administrative jurisdiction of the following described land from the Department of the Navy to the Department of Veterans Affairs, to manage as part of the National Cemetery System:
The area described contains 49.83 acres in Escambia County.
2. The land described in Paragraph 1 remains withdrawn from all forms of appropriation and disposition under the public land laws, including the mining laws, but not from leasing under the mineral leasing laws.
Bureau of Reclamation, Department of the Interior.
Notice of extension of time for written comments on scope of environmental impact statement/environmental impact report (EIS/EIR).
The Bureau of Reclamation is extending the public review period to October 31, 2002, for written comments on the scope of the EIS/EIR for the South Delta Improvements Program. The notice of intent for the EIS/EIR was published in the
Written comments on the scope of the EIS/EIR should be submitted on or before October 31, 2002.
Written comments on the scope of the EIS/EIR should be sent to Mr. Dan Meier, Bureau of Reclamation, 2800 Cottage Way, MP-700, Sacramento, CA 95825.
Mr. Meier, Reclamation, at the above address, or by telephone at 916-978-5086 or TDD 1-800-735-2922; or Mr. Paul Marshall, Department of Water Resources, 1416 Ninth Street, Sacramento, CA 94236, or by telephone at 916-653-2118.
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 public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity from public disclosure, 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 make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.
Bureau of Reclamation, Interior.
Notice of intent to prepare an environmental impact statement.
On December 15, 2000, the 106th Congress passed the Dakota Water Resources Act of 2000, which was signed into law on December 21, 2000 (Public Law 106-554). Among other things, the Dakota Water Resources Act of 2000 (DWRA) states that, “the Secretary of the Interior shall conduct a comprehensive study of the water quality and quantity needs of the Red River Valley in North Dakota and possible options for meeting those needs” (Section 8(b)(1)). In addition, the DWRA states that, “pursuant to an agreement between the Secretary and State of North Dakota as authorized under section 19g) * * * the Secretary and the State of North Dakota shall jointly prepare and complete a draft environmental impact statement concerning all feasible options to meet the comprehensive water quality and quantity needs of the Red River Valley and the options for meeting those needs” (Section 8(c)(2)(A)).
Pursuant to section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, as amended, the Bureau of Reclamation (Reclamation) and the State of North Dakota (ND) will jointly prepare this environmental impact statement (EIS). The State of North Dakota (ND) has designated the Garrison Diversion Conservancy District (GDCD) to serve as the State lead in preparation of the EIS for the Red River Valley Water Supply Project. Reclamation, acting under the authority of the Secretary of the Interior, is the lead Federal agency. Cooperating agencies will be identified at a later date.
Reclamation and the GDCD will use the NEPA compliance process to ensure that the public has opportunities to review and comment on long-term water supply and management alternatives for the Red River Valley Water Supply Project. Public comments are invited and encouraged regarding both the scope of environmental and socioeconomic issues and alternative that should be evaluated in the EIS.
Reclamation and the GDCD have scheduled six public scoping meetings in which Federal, State, local and tribal government agencies, non-governmental organizations, the public, and the international community are invited to participate in the open exchange of information and to submit comments on the proposed scope of the EIS. Each meeting will be preceded by a 2-hour open house during which Reclamation staff, GDCD staff, and other study participants will provide information and answer questions.
Written comments on the scope of the issues and alternatives to be evaluated in the EIS will be accepted and should be postmarked or e-mailed no later than December 16, 2002, to be most effective.
Written comments should be submitted to: Bureau of Reclamation, Dakotas Area Office, P.O. Box 1017, Bismarck ND 58502.
Signe Snortland, Red River Valley Water Supply Project EIS, Bureau of Reclamation, Dakotas Area Office, P.O. Box 1017, Bismarck ND 58502; Telephone: (701) 250-4242 extension 3619; or FAX to (701) 250-4326. You may submit e-mail
In 1944, the U.S. Congress passed the Flood Control Act (the Missouri-Basin Pick Sloan Act), which authorized the construction of dams on the Missouri River and its tributaries. The Garrison Diversion Unit (GDU) was authorized in 1965, and construction began in 1967. The project was designed to divert Missouri River water to central and eastern ND for irrigation; fish and wildlife enhancement; municipal, rural, and industrial (MR&I) water supply; and recreation development. Most of the currently authorized principal supply works have been completed, except for about a 20-mile reach between the end of the Mccluskey Canal and beginning of the New Rockford Canal.
The project was reformulated in 1986 to reduce the emphasis on irrigation and increase the emphasis on meeting the MR&I water needs throughout ND. The 1986 Reformulation Act authorized a Sheyenne River water supply and release feature and water treatment plant capable of delivering 100 cubic feet per second of water to eastern ND.
The authorization for the GDU was amended again in December 2000 by DWRA. The DWRA requires that an EIS and feasibility-level study be prepared to aid decision-making on a preferred alternative for meeting water needs in the Red River Valley in North Dakota.
Development of a reliable water supply for the Red River Valley has been a subject of great interest to local residents, along with government agencies and entities concerned with water management and development. Although rivers in eastern ND such as the Red and Sheyenne rivers are prone to flooding and excessive runoff, they also experience low flow and drought conditions such as those that occurred in the 1930's and 1980's.
In 1994, Reclamation initiated an appraisal-level (preliminary) assessment of MR&I water needs in the Red River Valley as an outcome of the ND Water Management Collaborative Process. That study was completed in two phases. The first phase was further subdivided into parts A & B. Phase IA compared the existing and projected future MR&I water needs in the Red River Valley with the surface water flows and groundwater resources available to meet those needs. That report, completed in April 1998, concluded that significant shortages could occur during droughts if no action is taken.
The Phase IB report provided an evaluation of seasonal instream flow needs for water quality and maintenance of aquatic life in the Sheyenne and Red rivers. That report was finalized in August 1999.
The Phase II report presented a range of preliminary alternatives to meet the shortages identified in the Phase IA report. These alternatives included both in-basin and out-of-basin water supplies along with water conservation and a variety of management and operational techniques.
The Red River Valley Water Supply Project EIS will evaluate alternative ways to meet the comprehensive “water quality and quantity needs of the Red River Valley in North Dakota” [DWRA Section 8(b)(1)]. The needs are defined as municipal, rural, and industrial supplies; water quality; aquatic environment; recreation; and water conservation measures [Section 8(b)(2)].
As required by Council on Environmental Quality (CEQ) implementing regulations (40 CFR 1502.2[e]), a full range of reasonable alternatives will be evaluated in the EIS. These alternatives will include No Action and development of in-basin and out-of-basin water sources. The EIS will evaluate potential environmental impacts of specific alternatives together with engineering and socioeconomic considerations. A preferred alternative has not been identified at this time.
Eight preliminary alternatives, including No Action, were described in the Phase II Needs Assessment. These alternatives were:
• No Action. This alternative represents the reasonably foreseeable future condition if a Red River Valley Water Supply Project is not constructed.
• Construction of a new water supply reservoir on the Sheyenne River near Kindred.
• Raising the height of Baldhill Dam on the Sheyenne River near Valley City to increase water storage.
• Development of groundwater resources including purchase of existing rights, new well fields, desalinization, and aquifer storage and recovery.
• Importation of Missouri River water via a pipeline from Bismarck to Fargo.
• Importation of Missouri River water via a pipeline from Lake Oahe south of Bismarck to the vicinity of Wahpeton.
• Importation of Missouri River water to the upper Sheyenne River utilizing existing GDU principal supply works.
• Importation of Missouri River water via a system of closed pipelines from the GDU principal supply works to cities, industries, and rural water systems.
• Other potential water sources including Minnesota sub-basins and Devils Lake may be evaluated in detail in the EIS. Comments or suggestions on these alternatives or suggestions of other alternatives that should be considered are welcome.
The following issues have been tentatively identified for analysis in the EIS. This list is preliminary and is intended to facilitate public comment on the scope of this EIS. It is not intended to be all-inclusive nor does it imply any predetermination of potential impacts. Reclamation and the GDCD invite comments on this list:
• Impacts on streams and lakes, groundwater, floodplains, wetlands, and on water uses and quality.
• Impacts on aquatic and terrestrial plants and animals and their habitats including species that are federally or State-listed as threatened or endangered, proposed, candidate, or of special concern and/or critical habitat.
• Potential impacts from the transfer of biota, including parasites and pathogens, between the Missouri River basin and the Hudson Bay basin.
• Potential impacts to Canadian waters due to transfer of harmful iota or changes in water quality or quantity.
• Potential cumulative environmental impacts to the Missouri River from past, present, and foreseeable future withdrawals.
• Potential cumulative environmental impacts to the Sheyenne and Red rivers, including effects of the proposed Devils Lake outlet as well as other reasonably foreseeable discharges or withdrawals.
• Impacts on cultural resources such as historic, archaeological, architectural, or traditional properties.
• Socioeconomic impacts on affected communities related to long-term water supply and management.
• Environmental justice, particularly whether or not water management activities have a disproportionately high and adverse effect on minority and low-income populations.
• Compliance with all applicable Federal, State, and local statutes and regulations and with international agreements and required Federal and State environmental permits, consultations, and notifications.
• Compliance with all applicable Executive Orders.
Reclamation and the GDCD plan to issue the draft EIS by December 2005. Reclamation and the U.S. Environmental Protection Agency will separately publish notices of availability of the draft EIS in the Federal Register. Reclamation and GDCD will publicize the availability of the draft EIS in other media and will provide opportunities for Federal, State, local and tribal government agencies, non-governmental organizations, the general public, and the international community to participate in additional information forums and to submit comments.
Issues raised at the scoping meetings will be documented in the Scope of Statement (SOS) for the Red River Valley Water Supply Project EIS. The objectives of this report are to summarize the essence of the comments in a clear and concise manner and to accurately portray the scope of the EIS. The SOS will be distributed to public libraries near the meeting locations, posted on Reclamation's Red River Valley Water Supply Project EIS web page, and mailed upon request.
Comments received in response to this notice will become part of the administrative record for this project and are subject to public inspection. 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 public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity from public disclosure, 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 make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.
Notice is hereby given that on September 16, 2002, a proposed consent decree in
In this action, brought under Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9606, 9607, the United States sought reimbursement of response costs incurred by the U.S. Environmental Protection Agency (“EPA”) at the Buena Vista/Klau Mine Site near Paso Robles California, as well as civil penalties and treble damages arising from the failure of defendants Buena Vista Mines, Inc. (“BVMI”), Harold J. Biaggini, and Edward C. Biaggini, III to comply with an EPA administrative clean-up order. The consent decree provides for payments of $500,000 from the defendants and $100,000 from third-party defendant County of San Luis Obispo and in addition, provides that the United States will receive the major portion of all proceeds of any future BVMI land sales. In exchange for the settlement payments, the settling parties will receive a site-wide covenant-not-to-sue, subject to certain reservations.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The consent decree may be examined at the offices of U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, California 94105. A copy of the consent decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, or by faxing a request to Tonia Fleetwood, fax. no. (202) 514-0097, phone confirmation number (202) 514-1547. In requesting a copy, please enclose a check in the amount of $10.75 (25 cents per page reproduction cost) payable to the U.S. Treasury.
Pursuant to 28 CFR 50.7, notice is hereby given that on October 2, 2002, a Consent Decree in
Under this Consent Decree, Heritage Environmental Services LLC. (“Heritage”) will pay a penalty of $360,000 to the United States for violations of section 113(b) of the Clean Air Act, 42 U.S.C. 7413(b) as amended (“CAA”) and section 3008(a) of the Resource Conservation and Recovery Act, as amended (“RCRA” ), 42 U.S.C. 6928(a) as alleged in the Complaint in this action in connection with two of Heritage's hazardous waste treatment, storage, and disposal facilities located in Indianapolis, Indiana and Lemont, Illinois.
The Department of Justice will receive comments relating to the Consent Decree for a period of thirty (30) days from the date of this publication. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, Souther District of Indiana, United States Courthouse, 46 East Ohio Street, 5th Floor, Indianapolis, Indiana 46204, and at U.S. EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590. A copy of the Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611. In requesting a copy, please enclose a check in the amount of $6.75 (25 cents per page reproduction cost) payable to the U.S. Treasury.
Under 28 C.F.R. § 50.7 notice is hereby given that on September 16, 2002, a proposed Consent Decree in
The United States' complaint sought injunctive relief and civil penalties for Wolcottville's violations of the conditions and limitations of its National Pollutant Discharge Elimination System (“NPDES”) permit, issued by the State of Michigan pursuant to CWA Section 402, 33 U.S.C. 1342, at Wolcottville's limestone quarry in Milan, Monroe County, Michigan. Under the proposed consent decree, Wolcottville will modify its mining operations such that it will be able to eliminate all discharges at the quarry and surrender its National Pollution Discharge Elimination System permit. Wolcottville will also pay $75,000 to resolve the United States' claim for civil penalties, perform certain supplemental environmental projects at a cost of $360,000 in partial mitigation of the United States' civil penalty claims, and undertake two restoration projects in settlement of the citizen plaintiffs' claims.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, D.C. 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, Eastern District of Michigan, 211 W. Fort Street Detroit, Michigan 48226-3211 (contact Assistant United States Attorney Mary Rigdon, 313-226-9100), and at U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago Illinois (contact Assistant Regional Counsel Richard Clarizio (312-886-0559). A copy of the Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 or by faxing a request to Tonia Fleetwood, fax no. 202-616-6584, telephone confirmation number 202-514-1547. In requesting a copy, please enclose a check in the amount of $15.25 (25 cents per page reproduction cost) payable to the U.S. Treasury.
Notice is hereby given that, on August 28, 2002, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Bresson, Rupp, Lipa & Company, Ann Arbor, MI has changed its company name to Knovalent, Inc.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and National Center for Manufacturing Sciences, Inc. intends to file additional written notification disclosing all changes in membership.
On February 20, 1987, National Center for Manufacturing Sciences, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 3, 2002. A notice was published in the
60-day notice of information collection under review: reinstatement, with no change, of a previously approved collection for which approval has expired; Victim Assistance Grant Program Performance Report.
The Department of Justice (DOJ), Office of Justice Programs, has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until December 9, 2002. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Celetine Williams (202) 616-3565, Office for Victims of Crime, Office of Justice Programs, US Department of Justice, 810 Seventh Street NW., Washington, DC 20531.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Brenda E. Dyer, Department Deputy Clearance Officer, Information Management and Security Staff, Justice Management Division, Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, D.C. 20530.
60-day notice of information collection under review; new collection; Bureau of Justice Assistance, Southwest Border Prosecution Initiative.
The Department of Justice (DOJ), Office of Justice Programs, has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until December 9, 2002. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact, Robert Watkins Program Manager, Bureau of Justice Assistance, Office of Justice Programs, US Department of Justice, 810 Seventh Street NW., Washington, DC 20531 (202) 514-3447.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Brenda E. Dyer, Department
Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Justice.
Notice of meeting.
The Office of Juvenile Justice and Delinquency Prevention is announcing the meeting of the Coalition for Juvenile Justice. The purpose of this meeting is to discuss and adopt recommendations from members regarding the committee's responsibility to advise the OJJDP Administrator, the President, and the Congress, about state perspectives on the operation of OJJDP and Federal legislation pertaining to juvenile justice and delinquency prevention.
The meeting dates are:
1. Thursday, November 7, 2002, 9 a.m. to 4:30 p.m. (ET).
2. Friday, November 8, 2002, 9 a.m. to 4:15 p.m. (ET).
3. Saturday, November 9, 2002, 9 a.m. to 5 p.m. (ET)
4. Sunday, November 10, 2002, 8 a.m. to 1 p.m. (ET).
All meetings will be held at the Eden Roc Renaissance Resort, 4525 Collins Avenue, Miami Beach, Florida 33140; Telephone: 305-531-0000; Fax: 305-674-5537.
For information about how to attend this meeting (or to submit written questions (optional)), contact Freida Thomas, 810 7th Street, NW., Washington, DC 20531; Telephone: 202-307-5924 (This is not a toll-free number); Fax: 202-307-2819; e-mail:
The Coalition of Juvenile Justice, established pursuant to section 9 of the Federal Advisory Committee Act, (5 U.S.C. App. II), is meeting to carry out its advisory functions under section 5601 of the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C., as amended.
This meeting will be open to the public.
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
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
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.
If the proposed exemption is granted, the restrictions of section 406(a)(1)(A) through (D) of ERISA 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,
(a) Each Loan is made to the Plan in connection with the administration of a unitized fund (Unitized Fund) as defined in section III (e) in order to facilitate redemptions from the Unitized Fund.
(b) Each Line of Credit will be negotiated by Fidelity on behalf of the Plan with a bank, as defined under the Investment Advisers Act of 1940, as amended, having total assets of at least $5 billion (the Lender or Lenders);
(c) Each Loan is initiated, accounted for and administered by Fidelity, which will monitor the transactions on behalf of the Plans to ensure that the terms and conditions of the exemption are met at all times;
(d) The Line of Credit provides that each Loan thereunder, including accrued interest thereon, will be repaid by the Unitized Fund promptly in the ordinary course of business upon settlement of the transaction that triggered the need for the Loan;
(e) The maximum amount loaned with respect to a Unitized Fund on any business day that a Loan is initiated does not, after the Loan is made, exceed 25% of the total fair market value of the Unitized Fund (such value determined as of the most recent close of the New York Stock Exchange or as otherwise provided in the applicable Line of Credit, provided such determination is substantially contemporaneous with the Loan);
(f) The fair market value of the assets in the Unitized Fund is determined by an objective method specified in the Line of Credit;
(g) The Lender's recourse with respect to any Loan from a Unitized Fund is limited to the assets of such Unitized Fund. No commitment fees, or commissions are paid by the Plan and no compensating balance is required by the Lenders in connection with these loans. Any set-off will be limited to the assets of the Unitized Fund borrowing the funds;
(h) Interest payable by the Plan on each Loan is based on rates quoted to Fidelity by the Lenders under the Lines of Credit and accepted by Fidelity on behalf of the Plan in accordance with the Lines of Credit;
(i) The Plan enters into a written agreement with Fidelity pursuant to which Fidelity is authorized to borrow on behalf of the Plan. Prior to borrowing on behalf of a Plan pursuant to this exemption, Fidelity provides the Plan with written notice explaining the Line of Credit program. The notice shall state that Fidelity agrees to act as a fiduciary on behalf of the Plan in connection with the following activities involving the Line of Credit agreements with the Lenders: the negotiation of the Plan's participation in the Line of Credit agreements; the negotiation of interest rates; the terms of the Loans, and the terms of repayment under the Lines of Credit agreements. The notice shall set forth Fidelity's objective methodology for allocating favorable interest rates or credit availability equitably among those Unitized Funds seeking to borrow under the Line of Credit agreements on any given day,
(j) Fidelity, on behalf of the Plan, enters into a written agreement with each of the Lenders offering these Line of Credit Agreements to the Plan. The agreement shall address, among other things, the maximum Line of Credit available, the terms for the Loan and repayment, the formula or method for determining the interest rate payable with respect to each Loan, and the conditions for terminating the agreement;
(k) The Plan may elect to terminate participation in the Lines of Credit at any time, without penalty and subject to the Plan's repayment of any outstanding Loan;
(l) No later than 15 business days after month end, Fidelity shall provide the Plan Sponsor of each Plan that has any outstanding Loan during a calendar month with a written report showing the Plan's outstanding Loans on each day during such month, the amount repaid on each such day, the interest rate and the amount of interest paid on each such day, the aggregate balance of all Loans outstanding on the last business day of such month and the aggregate amount of interest paid during such month;
(m) The Loans are made on terms at least as favorable to the Plan as those the Plan could obtain in an arm's-length transaction with an unrelated party;
(n) Each Lender is not related to Fidelity and is a party in interest (including a fiduciary), solely by reason of providing services to the Plan, or solely by reason of a relationship to a service provider to the Plan described in section 3(14)(F), (G), (H) or (I) of the Act;
(o) The agreements and the any loans contemplated thereunder are not a part of an agreement, arrangement, or understanding designed to benefit any party in interest with respect to any plan;
(p) No fees, or other compensation are paid to Fidelity in connection with the Loans by either the Plan or the Lenders;
(q) Where a Unitized Fund covered by this exemption invests in employer securities, such securities constitute “qualifying employer securities” as defined in section 407(d)(5) of the Act (QES) for which market quotations are readily available from independent sources within the meaning of Rule 17a-7, of the Investment Advisers Act of 1940, 17 CFR 270.17a-7. The exemption shall also apply to convertible preferred stock that qualifies as QES and is convertible, under an objective formulation, into securities for which market quotations are readily available as described above.
(r) Where a Unitized Fund, other than an employer securities fund or a stable value fund, invests directly or indirectly in securities, no less than 75 percent of such securities are securities for which market quotations are readily available from independent sources, within the meaning of Rule 17a-7, of the Investment Advisers Act of 1940, 17 CFR 270.17a-7;
(s) Fidelity maintains for a period of six years, in a manner that is accessible for audit and examination, the records necessary to enable the persons described in paragraph (t) to determine whether the conditions of this exemption have been met, except that—
(1) A prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of Fidelity, such records are lost or destroyed prior to the end of such six year period; and
(2) No party in interest, other than Fidelity, shall be subject to the civil penalty that may be assessed under section 502(i) of the Act, or the taxes imposed by sections 4975(a) and (b) of the Code, if the records are not maintained, or are not available for examination as required by paragraph (t);
(t)(1) Except as provided in paragraph (t)(2) and notwithstanding anything to the contrary in sections 504(a)(2) and (b) of the Act, the records referred to in paragraph (s) are unconditionally available for examination during normal business hours by—
(A) Any duly authorized employees or representatives of the Department or the Internal Revenue Service;
(B) Any fiduciary of the Plan or any duly authorized employee or representative of such fiduciary;
(C) Any employer of participants and beneficiaries in the Plan and any employee organization whose members are covered by the Plan, or any authorized employee or representative of these entities; and
(D) Any participant or beneficiary of the Plan or any duly authorized employee or representative of such participant or beneficiary;
(2) None of the persons described above in paragraph (t)(1)(B), (C) or (D) shall be authorized to examine the trade secrets of Fidelity or commercial or financial information that is privileged or confidential;
(3) Should Fidelity refuse to disclose information on the basis that such information is exempt from disclosure pursuant to paragraph (t)(2) above, Fidelity shall, by the close of the thirtieth (30th) day following the request, provide a written or electronic notice advising that person (i) of the reasons for the refusal and (ii) that the Department may request such information.
(a) “Fidelity” refers to Fidelity Management Trust Company and its affiliates.
(b) “Affiliate” means (i) any person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such other person; (ii) any officer, director, or partner, employee or relative (as defined in section 3(15) of the Act) of such other person; and (iii) any corporation or partnership of which such other person is an officer, director or partner.
(c) “Control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(d) Fidelity is “related” to a Lender if the Lender (or a person controlling, or controlled by, the Lender) owns a five percent or more interest in Fidelity or if Fidelity (or a person controlling, or controlled by, Fidelity) owns a five percent or more interest in the Lender. For purposes of this definition:
(1) The term “interest” means with respect to ownership of an entity (A) the combined voting power of all classes of stock entitled to vote or the total value of the shares of all classes of stock of the entity if the entity is a corporation, (B) the capital interest or the profits interest of the entity if the entity is a partnership, or (C) the beneficial interest of the entity if the entity is a trust or unincorporated enterprise; and
(2) A person is considered to own an interest held in any capacity if the person has or shares the authority (A) to exercise any voting rights or to direct some other person to exercise the voting rights relating to such interest, or (B) to dispose or to direct the disposition of such interest.
(e) A “Unitized Fund” is a fund that, to facilitate trading and/or accounting, has established “units” representing undivided interests in all of the assets of such fund.
If the proposed exemption is granted, the exemption shall be effective as of the date the final exemption is published in the
1. Fidelity Management Trust Company, a Massachusetts trust company, is a subsidiary of FMR Corp., the parent of a group of companies known as Fidelity Investments®. Fidelity Investments is one of the nation's largest mutual fund companies and a leading provider of financial services. It provides a wide range of investment management, brokerage, administrative and other financial services and products to both retail and institutional customers. Fidelity Investments manages in the United States and Canada approximately 322 mutual funds with aggregate assets, as of December 31, 2001, in excess of $815 billion. In addition, it manages more than $68 billion of assets other than mutual funds, including separate accounts and collective investment funds. Fidelity provides trustee, custodial, investment management, participant recordkeeping and/or other related services to employee benefit plans, including the Plans.
2. The Plans are qualified plans under section 401(a) of the Code and are employee benefit plans within the meaning of section 3(3) of ERISA. Substantially all of the Plans are defined contribution plans that permit each Plan participant to allocate his or her account balance among a number of investment options available under the Plan. These options may include mutual funds, separately-managed accounts, bank-maintained collective investment funds (including so-called stable value funds) and/or company stock funds. Moreover, many of the Plans operate in a so-called “daily environment”;
3. The Applicant represents that from time to time, the Plans find themselves in the position where, incidental to their ordinary operation, there is a cash shortfall that creates a short-term liquidity problem. Most frequently this occurs when amounts are to be withdrawn from a unitized investment option (
4. It would be possible for a Unitized Fund to hold a larger percentage of its assets in “cash” in order to minimize the likelihood that there will be such a cash shortfall; however, such an approach will undermine the achievement of the investment objective of the investment option, especially those that are equity based. Moreover, according to the Applicant, it is simply not feasible, as a practical matter, to maintain enough “cash” in a Unitized Fund at all times to be certain that the Unitized Fund will always be in a position to meet the maximum potential need, especially during volatile market situations. Hence, it is inevitable that at least some liquidity shortfalls will occur from time to time.
5. Fidelity has negotiated the Lines of Credit with several banks that are not related to Fidelity, and anticipates that it may from time to time negotiate additional Lines of Credit. These Lines of Credit allow Fidelity to borrow, on the Plans' behalf, cash in order to meet the Unitized Funds' short-term cash shortfalls. Fidelity anticipates that there will be approximately three or four Lenders at any given time. It is also anticipated that the Lenders will be very large financial institutions with many affiliated companies and worldwide operations. In view of the size of such institutions and the number of Plans involved, Fidelity represents that it is very difficult for such institutions to determine whether they are parties in interest with respect to any of the Plans. Moreover, even if it were to be
6. Since Fidelity may not be able to determine in the ordinary course of business, whether a Lender is a party in interest with respect to each Plan, the Lines of Credit raise potential concerns under section 406(a) of the Act, absent an exemption. In this regard, given the size of the Lenders, the large number of Plans involved and the various conditions of the potentially available class exemptions (
7. The Applicant represents that each Line of Credit provides that (i) each Loan thereunder will be unsecured, (ii) recourse with respect to each Loan thereunder will be limited to the assets of the Unitized Fund that borrowed the funds, (iii) each Loan thereunder, including accrued interest thereon, will be repaid promptly in the ordinary course of business, generally in less than ten days and (iv) with respect to any Unitized Fund, the aggregate amount of Loans outstanding on any business day that a Loan is initiated will not, after such Loan is made, exceed 25% of the total fair market value of the Unitized Fund.
8. Interest rates will be quoted to Fidelity each business day by each Lender in accordance with the terms of the Line of Credit. The quoted interest rate will be based on a Federal funds rate (or other market rate) plus a spread, and will apply to any Loans from the Lender that are outstanding on such day. Because the quoted interest rate may fluctuate daily, the rate of interest being charged on any outstanding loan may also fluctuate daily.
9. In regard to these Lines of Credit, Fidelity will act as a fiduciary pursuant to a written agreement with the Plan. The agreement will provide that Fidelity will act as a fiduciary on behalf of the Plan in connection with the negotiation of the Plan's participation in the Line of Credit agreements, the negotiation of interest rates under the Line of Credit agreements, the Loans under the Line of Credit agreements, the ordering rules and limitations described below, and the terms of repayment of the Line of Credit agreements.
10. Fidelity will establish generally applicable ordering rules and limitations with respect to the use of the Lines of Credit. The need for such rules arises from several factors. For example, although not anticipated to be very likely, it is possible that the aggregate liquidity needs of all eligible Unitized Funds on any given day may exceed the total credit available under all of the credit lines then in place. In addition, and more relevant, the three or four Lenders that will be making advances available under the lines may, and likely will, quote different rates on a given day. If the aggregate demand for liquidity on a particular day exceeds the amount of credit available at the most favorable rate on that day, then it is necessary to allocate the opportunity to borrow at the most favorable rate(s) among the various Unitized Funds requiring liquidity on that day. Accordingly, on those days when the aggregate liquidity demand of the eligible Unitized Funds exceeds the amount available at the most favorable rate, Fidelity will implement a policy pursuant to which it will allocate the available credit among the Unitized Funds pursuant to a pre-established objective allocation methodology.
11. Fidelity will initiate, account for and administer each Loan and will monitor such transactions on behalf of the Plans to ensure that the terms and conditions of the exemption are met at all times.
12. Fidelity will provide the Plan Sponsor of each Plan that has any outstanding Loans during a calendar month with a written report showing the Plan's outstanding Loans on each day during such month, the amount repaid on each such day, the amount of interest paid on each such day, the interest rate and the aggregate balance of all Loans outstanding on the last business day of such month and the aggregate amount of interest paid during such month.
13. The Plan Sponsor of each Plan will be notified of the Lines of Credit that may be available to such Plan in advance of any Loan made pursuant to the exemption. Such notice will include a general description of the Lines of Credit and how they operate. Each Plan Sponsor may elect to “opt-out” of the program, in which event the Plan of such Plan Sponsor will not effect any Loans under the Lines of Credit. Moreover, a Plan Sponsor who has initially determined not to opt-out of the program may at any time thereafter elect to opt-out of the program without penalty, by written notice to Fidelity. Subsequent to its receipt of such a notice, Fidelity will not effect any further Loans on behalf of such Plan under the Lines of Credit. Any Loans outstanding at the time such notice is received will be repaid in accordance with the Lines of Credit.
14. Fidelity will not receive any fees or other compensation from the Plans in connection with the Lines of Credit. In addition, Fidelity will not receive any payment or other consideration from the Lenders in connection with the Loans. Fidelity represents that it will pay the Lender's cost of establishing the Lines of Credit. The Applicant represents that such up-front expenses are required to be paid by the borrower (the Plans on behalf of their Unitized Funds) under virtually all credit agreements. In this case, in order to induce the Lenders to enter into the proposed arrangements, and given the practical difficulty of allocating the up-front cost of establishing the arrangements among the many Unitized Funds that may ultimately participate in the credit arrangement, Fidelity has determined that it will pay these expenses on behalf of the Unitized Funds. Any out-of-pocket expenses incurred by a Lender in enforcing the agreement, however, will generally be paid by the applicable Unitized Fund, unless otherwise paid by the Plan Sponsor or Fidelity. The Applicant represents that lender expenses relating to enforcing the terms of the loan are required to be paid by the borrower (here the Plans on behalf of the Unitized Funds) under virtually all credit agreements.
15. As a general matter, Fidelity explains that its intent is that the credit program will be administered such that advances under the program will be used primarily in the context of settlement risk (
16. In addition, in order to maintain the integrity of the overall credit arrangement, Fidelity reserves the ability, in its sole discretion, to exclude a particular Plan or Plans from access to the Lines of Credit on a given day or days. Fidelity represents that it does not anticipate that it will exercise its exclusion power very often. The Applicant explains that, if there were circumstances giving rise to a material concern regarding the potential for default by a particular Plan, (such as, for example, an unanticipated bankruptcy of the Plan sponsor that triggers a suspension of trading in the Plan sponsor's stock or some other cause of extreme volatility in the Plan sponsor's stock value) Fidelity believes it is important that it have the power to avoid the risk of such default by excluding the Plan from borrowing under the Line of Credit program during the period of concern.
17. In summary, the applicant represents that the proposed Lines of Credit satisfy the criteria contained in section 408(a) of the Act for the following reasons:
(a) the Loan terms must be at least as favorable to the Plan as a similar third-party arm's-length transaction;
(b) each Loan will be initiated, accounted for and administered by Fidelity which will maintain written records of each Loan and monitor the terms and conditions of the exemption, on behalf of the affected Plan, at all times.
(c) the same Lines of Credit will generally be available pursuant to their terms for use by all of the Unitized Funds;
(d) the Lenders will not be “related” to Fidelity or “parties in interest” to the Plans other than by reason of being a service provider to the Plans or related to a service provider;
(e) the Plans will benefit from not having to maintain a larger cash buffer that undermines the achievement of the investment objective of the Unitized Funds;
(f) the Plans will further benefit from not having to delay withdrawals from the Unitized Funds in most situations until such time as there is sufficient cash to satisfy the cash shortfall and therefore will be able to better achieve the participants' expectation of a “daily environment;” and
(g) the sponsor of each Plan will be notified of the existence of the Lines of Credit that may be available to such Plan in advance of any Loan made pursuant to the exemption and will make an independent decision whether the Plan should participate in the program. In addition, the Plan Sponsor of a Plan that is participating in the program may elect to opt out at any time, without penalty.
Notice of the proposed exemption will be provided by first-class mail to each known Plan Sponsor within 25 days after the publication of the notice of proposed exemption in the
Ms. Andrea W. Selvaggio of the Department, telephone (202) 693-8540. (This is not a toll-free number.)
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). If the proposed exemption is granted, the restrictions of sections 406(a) and 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code shall not apply to: (1) The June 5, 2001 payment (the Payment) by Brightpoint of $108,738.85 (the Assessment Amount) to the Millennium Trust Company LLC (Millennium) on behalf of the Brightpoint, Inc. 401(k) Plan (the Plan) for the purpose of satisfying a court-ordered assessment against the assets of the Plan (the Assessment) that arose in connection with the $68,100,000.00 deficiency (the Deficiency) incurred by the Independent Trust Corporation (Intrust); and (2) the transfer by the Plan to Brightpoint (the Repayment) of certain assets recovered by PricewaterhouseCoopers LLP (the Receiver) in connection with the Deficiency, if the following conditions are met:
(A) In the event the Plan receives an amount of assets from the Receiver (a Recovery Amount) that is greater than the Assessment Amount, the Plan will not be required to pay Brightpoint that portion of the Recovery Amount that is in excess of the Assessment Amount;
(B) In the event the Plan receives a Recovery Amount that is less than the Assessment Amount, the Plan will not be required to pay Brightpoint the difference between the Assessment Amount and the Recovery Amount;
(C) The Plan will not pay any of the costs and/or fees associated with the Payment and the Repayment;
(D) The Deficiency did not arise in connection with any improper act undertaken by a Plan fiduciary (other than Intrust or its principals); and
(E) Upon notification of the Intrust losses, the Brightpoint Plan fiduciaries undertook, and will continue to undertake, any actions necessary to ensure that the assets of the Plan were, and are, adequately protected.
June 5, 2001.
1. Brightpoint is a Delaware corporation with its principal offices located in Indianapolis, Indiana. Brightpoint supports the global wireless telecommunications industry through the provision of, among other things, distribution, management, and business solution services.
2. Brightpoint is the sponsor of the Plan. The Plan is a defined contribution 401(k) plan having 480 participants and $2,648,775.39 in total assets as of March 31, 2001. The applicant represents that
The applicant states that from April 1, 1997 until April 13, 2001, Intrust acted as the trustee of the Plan.
3. On April 14, 2000, the Illinois Office of Banks and Real Estate (the State Regulator) discovered the Deficiency. In this regard, on that date, the State Regulator determined that a substantial cash shortage existed with respect to the amount of assets held in trust by Intrust. According to the applicant, it is presently believed that the Deficiency, the resolution of which is currently under litigation, resulted from the misappropriation by certain Intrust principals of assets held by Intrust. Specifically, the Deficiency involved cash taken from certain Intrust accounts. The applicant states, however, that cash was not misappropriated from the Plan's trust account with Intrust (the Intrust Plan Account). As a result, the applicant states that the amount of assets held in the Intrust Plan Account, being comprised primarily of the Plan Shares, was not affected or reduced by the misappropriation of Intrust assets (the Misappropriation).
The State Regulator initiated receivership proceedings under the jurisdiction of the Circuit Court of Cook County, Illinois (the Court). The Court appointed PricewaterhouseCoopers LLP as the receiver of Intrust and, with limited exceptions, the Court froze all of the trust assets held by Intrust, including those of the Plan.
4. On March 1, 2001, upon determining that the Deficiency totaled $68,100,000.00, the Court issued an order (the First Court Order) that apportioned the Deficiency among certain Intrust accounts (the Allocation). In this regard, after taking judicial notice of, among other things, various hearings, proceedings, testimony, arguments, and pleadings, the Court determined that it was not feasible to trace the Deficiency Amount to specific Intrust accounts. Rather, with certain exceptions not applicable to the Plan, the Court allocated the Deficiency among essentially all of the frozen former Intrust accounts on mostly a pro rata basis.
In this way, the Court allocated the Assessment Amount to the Millennium Plan Account. The applicant represents that such assessment had the effect of a $108,738.85 charge against the assets held in the Millennium Plan Account.
5. Each trust account affected by the Allocation, or a party on behalf of such account, was required to pay its allocated portion to Millennium by June 5, 2001.
6. Upon monitoring the legal actions associated with the Deficiency, the applicant states, Brightpoint determined that the Recovery Amount would likely be less than the Assessment Amount.
7. On September 8, 2001, the Receiver petitioned the court to amend the First Court Order. In this regard, the applicant states that for reasons unrelated to the Plan and the transactions described herein, the Receiver sought a procedural change with respect to the issuance of the certificates. As applied to the payment by Brightpoint of the Assessment Amount on behalf of the Plan, and contrary to the terms of the First Court Order, the requested amendment had the effect of requiring the Receiver to issue a certificate to the Plan, and not Brightpoint. The Court granted the motion on October 12, 2001 and, accordingly, the First Court Order was amended (the Amended Court Order).
Accordingly, the Plan received, and currently continues to hold, a certificate that was issued by the Receiver (the Certificate). The applicant states that, to date, the Plan has not received any amounts pursuant to its holding of the Certificate.
8. The applicant seeks relief for the Payment and the Repayment. In this regard, the applicant represents that as stated above, Brightpoint undertook the Payment in the belief that the Recovery Amount will likely be less than the Assessment Amount. The applicant notes that, in the event that the Recovery Amount does in fact turn out to be less than the Assessment Amount, the Plan will not be required to pay Brightpoint the amount representing the difference between the Assessment Amount and the Recovery Amount. In this way, the Plan will not incur a loss due to the court-ordered allocation of the Deficiency.
The applicant states further that the terms of the Repayment are also protective of the Plan. In this regard, the entitlement of Brightpoint to any recovery of the Deficiency pursuant to the holding of the Certificate by the Plan is limited to an amount not in excess of the Assessment Amount. Pursuant to the terms of the Repayment, in the event that the Recovery Amount turns out to be greater than the Assessment Amount, the portion of the Recovery Amount that exceeds the Assessment Amount will be retained by the Plan. In this way, Brightpoint may only receive up to $108,738.85, the amount Brightpoint paid to Millennium on behalf of the Plan, as a result of the Plan's holding of the Certificate.
9. The applicant states that Brightpoint acted in good faith in paying the Assessment Amount on behalf of the Plan. In this regard, the applicant represents that the fiduciaries of the Plan had no reason or opportunity to know in advance of the Deficiency since the Intrust shortage consisted solely of non-Plan assets. In addition, the applicant represents that Plan distributions processed through Intrust were done so properly and in a timely manner. According to the applicant, Brightpoint paid the Assessment Amount solely as a means of responding to an event that was potentially harmful to the Plan and its participants and beneficiaries.
10. In summary, the applicant represents that the Payment and Repayment satisfy the statutory criteria for an exemption under section 408(a) of the Act since:
(A) In the event the Plan receives a Recovery Amount that is greater than the Assessment Amount, the Plan will not be required to pay Brightpoint that portion of the Recovery Amount that is in excess of the Assessment Amount;
(B) In the event the Plan receives a Recovery Amount that is less than the Assessment Amount, the Plan will not be required to pay Brightpoint the difference between the Assessment Amount and the Recovery Amount;
(C) The Plan will not pay any of the costs and/or fees associated with the Payment and the Repayment;
(D) The Deficiency did not arise in connection with any improper act undertaken by a Plan fiduciary (other than Intrust or its principals); and
(E) Upon notification of the Intrust losses, the Brightpoint Plan fiduciaries undertook, and will continue to undertake, the actions necessary to ensure that the assets of the Plan were, and are, adequately protected.
Christopher Motta of the Department, telephone (202) 693-8544. (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 transactions are not less favorable to the Frazier Accounts than those which the Frazier Accounts would receive in an arm's length transaction with an unrelated party.
(b) The Sale is a one-time transaction for cash.
(c) The acquisition price that is paid by the Frazier Accounts for proportionate interests in the Property is not more than the fair market value of the Property as determined by a qualified, independent appraiser on the date of the Sale.
(d) The value of the proportionate interests in the Property that are acquired by each of the Frazier Accounts does not exceed 25% of each of the Frazier Accounts' assets at the time of the Sale nor throughout the duration of the Lease.
(e) The Frazier Accounts do not pay any real estate fees, commissions or other expenses with respect to the transactions.
(f) The rental amount under the Lease is no less than the fair market rental value of the Property, as determined by a qualified, independent appraiser on the date the Lease is entered into by the parties.
(g) The Lease is a triple net lease under which the Corporation, as lessee, pays, in addition to the base rent, all normal operating expenses of the Property, including taxes, insurance, maintenance, repairs and utilities.
(h) The Fraziers indemnify and hold the Plan and the Frazier Accounts harmless from any liability arising from the Sale, including, but not limited to, hazardous material found on the Property, violation of zoning, land use regulations or restrictions, and violations of federal, state or local environmental regulations or laws.
(i) The Sale is effected and the Lease commences only upon completion of the following transactions, which shall occur no later than sixty days after the granting of the final exemption: (1) The Fraziers and the Bucks County Industrial Development Corporation (BCIDC) fulfill all of their obligations to the Pennsylvania Industrial Development Authority (PIDA); (2) the Fraziers pay off their debt obligation to BCIDC in accordance with the terms of an installment sale agreement (the Installment Sale Agreement) and reacquire legal title to the Property; and (3) the lease agreement (the Original Lease) between the Fraziers and the Corporation is terminated.
1. The Plan is a defined contribution profit sharing plan, as described in section 401(a) of the Code, and is exempt from taxation under section 501 of the Code. The Plan was established by the Corporation on July 1, 1986. As of December 31, 2001, the Plan had 18 participants, including the Fraziers. The Plan provides for individually-directed accounts and each of the Fraziers maintains a directed investment account in such Plan. The Fraziers are trustees and fiduciaries of the Plan.
As of December 31, 2001, the Plan had total assets of approximately $1,945,224. As of the same date, the Thomas Frazier Account in the Plan had a fair market value of $919,472 and the Carol Frazier Account in the Plan had a fair market value of $537,520, for a combined total fair market value of $1,456,992.
2. The Corporation is an S corporation that is incorporated in the Commonwealth of Pennsylvania and maintains its principal place of business in Doylestown, Pennsylvania. The Corporation manufactures products for the automotive replacement glass market and sells its products to the
3. At present, BCIDC, a Pennsylvania non-profit corporation, holds legal title to certain improved, real property that is located at 17 Weldon Drive, Doylestown Township, Doylestown, Pennsylvania, of which the Fraziers are the equitable owners, as set forth in the Installment Sale Agreement. The Property consists of a 3.47 acre parcel of light industrially zoned land with an existing one story industrial building totaling approximately 10,000 square feet of space and adjoining parking facilities. The Fraziers originally acquired the Property, which was vacant land at the time, in 1988 for $212,000 in cash from Horsham Valley Development Corporation, an unrelated party. The Property is currently subject to an original lease (the Original Lease) between the Fraziers as the lessors, and the Corporation as the lessee. The Original Lease is a 15 year, triple net lease which commenced on April 5, 1990 and expires on April 1, 2005. The annual rental under the Original Lease is $80,000, payable in monthly installments of approximately $6,666.67. The Corporation does not own any other real estate contiguous to the Property, which is used solely by the Corporation in its business.
4. On April 5, 1990, legal title to the Property was transferred by the Fraziers to BCIDC by deed for consideration in the amount of $1.00. This enabled BCIDC to obtain a first mortgage loan (the Mortgage Loan) from PIDA, a Pennsylvania non-profit entity created under the Pennsylvania Industrial Development Authority Act (the PIDAA)
The Fraziers received the Mortgage Loan proceeds and simultaneously entered into the Installment Sale Agreement on April 5, 1990 with BCIDC to repurchase the Property for $314,822 and pay for it over a period of 15 years, which coincides with the term of the Mortgage Loan. Pursuant to the amortization schedule, such payments would be in monthly installments of $2,174.11, with interest at three percent per annum included in each payment.
The Fraziers used the Mortgage Loan proceeds exclusively for the industrial development project. Of the $314,822 received, $5,626.96 were used for settlement costs including counsel fees, title insurance, recording fees and real estate taxes. The balance of the Mortgage Loan proceeds was used to construct the industrial building. As of August 31, 2002, the Mortgage Loan and the Installment Sale Agreement had an outstanding principal balance of approximately $66,779.79.
As collateral for the Mortgage Loan, the Fraziers assigned the Original Lease to PIDA and BCIDC and the Installment Sale Agreement to PIDA. As additional security for the Mortgage Loan, the Fraziers gave their personal guarantee.
5. The Property has been appraised by Stuart S. Kingsbury, Jr., CCRA, CREA, CRB, GRI of Kingsbury Real Estate Appraisers, located in Doylestown, Pennsylvania. Mr. Kingsbury is an independent, certified general appraiser in the State of Pennsylvania. In an independent appraisal report dated April 6, 2002 (the 2002 Appraisal), Mr. Kingsbury updated a June 27, 2001 independent appraisal (the 2001 Appraisal) that was prepared by his firm, in which the Property's fair market value and annual fair market rental value were placed at $330,000 and $80,000, respectively, as of June 1, 2001. Utilizing the Market Data Approach to valuation in the 2002 Appraisal, Mr. Kingsbury determined that the fair market value of the Property as of March 19, 2002 was $350,000. As of the same date, Mr. Kingsbury also determined that the annual fair market rental value of the Property was $85,000 or $7,0883.33 per month on a triple net basis. Mr. Kingsbury will again update the appraisal on the date of the Sale and Lease transactions.
6. To enable the Frazier Accounts to diversify their assets by obtaining income-producing real estate, the applicants propose that the Frazier Accounts purchase the Property from the Fraziers for $350,000 or an amount that is not more than the fair market value of the Property on the date of the Sale. The Property will be allocated between the Frazier Accounts so that the Thomas Frazier Account acquires a 64 percent interest in the Property, representing approximately 24 percent of the fair market value of such Account's assets, and the Carol Frazier Account acquires a 36 percent interest in the Property, representing approximately 23 percent of the fair market value of that Account's assets.
Contemporaneously with their purchase of the Property, the Frazier Accounts will enter into the Lease with the Corporation. The Frazier Accounts will not be required to pay any real estate fees, commissions or other expenses in connection with their acquisition of the Property or with the administration of the Lease. Further, the Fraziers, who had a combined net worth of approximately $3 million as of September 21, 2002, will indemnify and hold the Plan and the Frazier Accounts harmless from any liability arising from the Sale, including, but not limited to, hazardous material found on the Property, violation of zoning, land use regulations or restrictions, and violations of federal, state or local environmental regulations or laws.
Accordingly, the applicants request an administrative exemption from the Department under the terms and conditions described herein.
7. The proposed Lease will be for a term of ten years and it will have no renewal options. The Lease provides that the Corporation will pay the Frazier Accounts an initial monthly rent of $7,083.33 per month, based upon Mr. Kingsbury's 2002 Appraisal of the fair market rental value of the Property, which will be updated at the time the Lease is entered into by the parties. Said rent will be allocated in proportion to each Account's ownership interest in the Property. The Lease will be a triple net lease under which the Corporation will pay all normal operating expenses of the Property, including taxes, insurance, maintenance, repairs and utilities. The applicant represents that on the third, sixth and ninth anniversaries of the date of commencement of the Lease (the Tri-Annual Adjustment Dates), the fair market rental value of the Property will be determined as of the Tri-Annual Adjustment Date, by a qualified, independent appraiser selected by the Fraziers in their capacity as trustees of their respective Accounts in the Plan. However, in no event will the rent be adjusted below the rental amount paid for the preceding year. In addition, during each year of the term of the Lease, the rental rate will be increased by an amount equal to the most recent percentage increase in the Consumer Price Index or three percent, whichever is greater.
8. In summary, it is represented that the proposed transactions will satisfy the statutory criteria for an exemption under section 408(a) of the Act because:
(a) The terms and conditions of the transactions will not be less favorable to the Frazier Accounts than those which the Frazier Accounts would receive in an arm's length transaction with an unrelated party.
(b) The Sale will be a one-time transaction for cash.
(c) The acquisition price that is paid by the Frazier Accounts for proportionate interests in the Property will be no more than the fair market value of the Property as determined by a qualified, independent appraiser on the date of the Sale.
(d) The value of the proportionate interests in the Property that are acquired by each of the Frazier Accounts will not exceed 25 percent of each of the Frazier Accounts' assets at the time of the transaction and throughout the duration of the Lease.
(e) The Frazier Accounts will not pay any real estate commissions, fees or other expenses with respect to the transactions.
(f) The rental amount of the Lease will be no less than the fair market rental value of the Property, as determined by a qualified, independent appraiser on the date the Lease is entered into by the parties.
(g) The Lease will be a triple net lease under which the Corporation, as lessee, will pay, in addition to the base rent, all normal operating expenses of the Property, including taxes, insurance, maintenance, repairs and utilities.
(h) The Fraziers will indemnify and hold the Plan and the Frazier Accounts harmless from any liability arising from the Sale, including, but not limited to, hazardous material found on the Property, violation of zoning, land use regulations or restrictions, and violations of federal, state or local environmental regulations or laws.
(i) The Sale will be effected and the Lease will commence only upon completion of the following transactions, which shall occur no later than sixty days following the granting of the exemption: (1) The Fraziers and BCIDC have fulfilled all of their obligations to PIDA; (2) the Fraziers have paid off their debt obligation to BCIDC in accordance with the Installment Sale Agreement and have reacquired legal title to the Property; and (3) the Original Lease between the Fraziers and the Corporation has been terminated.
The Fraziers will provide notice of the proposed exemption to all interested persons by personal delivery within ten 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.
Pension Plan (the Plan) Located in Milburn, New Jersey
[Prohibited Transaction Exemption 2002-47; Exemption Application No. D-10989]
The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the past sales by the Plan of certain securities (the Securities) to Investors Savings Bank, a party in interest with respect to the Plan, provided that the following conditions were satisfied: (1) Each sale was a one-time transaction for cash; (2) the Plan paid no commissions nor other expenses relating to the sales; (3) for each Security that was publicly traded, the Plan received an amount equal to the highest, as of the date of the sale, of (a) the Plan's cost, (b) the book value, or (c) the fair market value of the Security, as determined by an independent, third-party market source; and (4) for each Security that was not publicly traded, the Plan received an amount equal to its cost for the Security, which was in excess of the fair market value of the Security on the date of the sale.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on August 9, 2002 at 67 FR 51877.
The restrictions of section 406(a)(1)(A) through (D) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply, as of April 24, 2001, to
(a) The lending of securities, under certain “exclusive borrowing” arrangements, to
(1) Deutsche Bank AG (Deutsche Bank) (including the New York Branch of Deutsche Bank (DBNY)); or
(2) Its affiliates Deutsche Bank Securities Inc. (DBS), Deutsche Bank Trust Company Americas (DBT), the “Foreign Borrowers” (as defined in Section III), and any branch or affiliate of Deutsche Bank that, now or in the future, is a U.S. registered broker-dealer or a government securities broker or dealer or a U.S. bank (collectively, with Deutsche Bank, referred to as the “Borrowers,” as defined in Section III) by employee benefit plans (Plans), including commingled investment funds holding assets of such Plans, with respect to which the Borrowers are a party in interest; and
(b) the receipt of compensation by Deutsche Bank or its affiliates in connection with the securities lending transactions, provided that the conditions, set forth in Section II, are satisfied.
(a) For each Plan, neither the Borrower nor any affiliate has or exercises discretionary authority or control over the Plan's investment in the securities available for loan, nor do they render investment advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to those assets.
(b) The party in interest dealing with the Plan is a party in interest with respect to the Plan (including a fiduciary) solely by reason of providing services to the Plan, or solely by reason of a relationship to a service provider described in section 3(14)(F), (G), (H), or (I) of the Act.
(c) The Borrower directly negotiates an exclusive borrowing agreement (the Borrowing Agreement) with a Plan fiduciary that is independent of the Borrower and its affiliates.
(d) The terms of each loan of securities by a Plan to a Borrower are at least as favorable to such Plan as those of a comparable arm's length transaction between unrelated parties, taking into account the exclusive arrangement.
(e) In exchange for granting the Borrower the exclusive right to borrow certain securities, the Plan receives from the Borrower either (i) a flat fee (which may be equal to a percentage of the value of the total securities subject to the Borrowing Agreement from time to time), (ii) a periodic payment that is equal to a percentage of the value of the total balance of the outstanding borrowed securities, or (iii) any combination of (i) and (ii) (collectively,
(f) The Borrower may, but shall not be required to, agree to maintain a minimum balance of borrowed securities subject to the Borrowing Agreement. Such minimum balance may be a fixed U.S. dollar amount, a flat percentage, or other percentage determined pursuant to an objective formula.
(g) By the close of business on or before the day the loaned securities are delivered to the Borrower, the Plan receives from the Borrower (by physical delivery, book entry in a securities depository located in the United States, wire transfer, or similar means) collateral consisting of U.S. currency, securities issued or guaranteed by the U.S. Government or its agencies or instrumentalities, irrevocable bank letters of credit issued by a U.S. bank other than Deutsche Bank or any affiliate thereof, or any combination thereof, or other collateral permitted under Prohibited Transaction Exemption (PTE) 81-6 (46 FR 7527, January 23, 1981, as amended at 52 FR 18754, May 19, 1987) (and as further amended or superseded).
(h) The market value (or in the case of a letter of credit, the stated amount) of the collateral initially equals at least 102 percent of the market value of the loaned securities on the close of business on the day preceding the date of the loan and, if the market value of the collateral at any time falls below 100 percent (or such higher percentage as the Borrower and the independent fiduciary of the Plan may agree upon) of the market value of the loaned securities, the Borrower delivers additional collateral on the following day to bring the level of the collateral back to at least 102 percent. The level of the collateral is monitored daily by the Plan or its designee, which may be Deutsche Bank or any of its branches or affiliates, including DBT, which provides custodial or directed trustee services in respect of the securities covered by the Borrowing Agreement for the Plan. The Borrowing Agreement will provide the Plan with a continuing security interest in, and a lien on, the collateral, or will provide for the transfer of title to the collateral to the Plan.
(i) Before entering into a Borrowing Agreement, the Borrower furnishes to the Plan the most recent publicly available audited and unaudited statements of its financial condition, as well as any publicly available information which it believes is necessary for the independent fiduciary to determine whether the Plan should enter into or renew the Borrowing Agreement—provided, however, that in the case of a Borrower that is a branch of Deutsche Bank, the Borrower will furnish to the Plan the most recent publicly available audited and unaudited statement of Deutsche Bank's financial condition.
(j) The Borrowing Agreement contains a representation by the Borrower that, as of each time it borrows securities, there has been no material adverse change in its financial condition since the date of the most recently furnished statements of financial condition.
(k) The Plan receives the equivalent of all distributions made during the loan period, including, but not limited to, cash dividends, interest payments, shares of stock as a result of stock splits, and rights to purchase additional securities, that the Plan would have received (net of tax withholdings)
(l) The Borrowing Agreement and/or any securities loan outstanding may be terminated by either party at any time without penalty (except for, if the Plan has terminated its Borrowing Agreement, the return to the Borrower of a pro-rata portion of the Exclusive Fee paid by the Borrower to the Plan) whereupon the Borrower delivers 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 Plan within the lesser of five business days of written notice of termination or the customary settlement period for such securities.
(m) In the event that the Borrower fails to return securities in accordance with the Borrowing Agreement, the Plan or its agent will have the right under the Borrowing Agreement to purchase securities identical to the borrowed securities and apply the collateral to payment of the purchase price. If the collateral is insufficient to satisfy the Borrower's obligation to return the Plan's securities, the Borrower will indemnify the Plan in the United States with respect to the difference between the replacement cost of securities and the market value of the collateral on the
(n) Except as otherwise provided herein, all procedures regarding the securities lending activities, at a minimum, conform to the applicable provisions of PTE 81-6 (as amended or superseded), as well as to applicable securities laws of the United States, Germany, the United Kingdom, Japan, Canada, and/or Australia, as appropriate.
(o) Only 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 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 arrangements with the Borrowers, 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 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 Borrowers, 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 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.
(i) Has full investment responsibility with respect to plan assets invested therein; and
(ii) 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 is formed for the sole purpose of making loans of securities.)
(p) Prior to any Plan's approval of the lending of its securities to the Borrowers, a copy of this exemption (and the notice of pendency) is provided to the Plan, and the Borrower informs the independent fiduciary that the Borrower is not acting as a fiduciary of the Plan in connection with its borrowing securities from the Plan.
(q) The independent fiduciary of the Plan receives monthly reports with respect to the securities lending transactions, including, but not limited to, the information set forth in the following sentence, so that an independent Plan fiduciary may monitor such transactions with the Borrowers. The monthly report will list for a specified period all outstanding or closed securities lending transactions. The report will identify for each open loan position, the securities involved, the value of the security for collateralization purposes, the current value of the collateral, the rebate or premium (if applicable) at which the security is loaned, and the number of days the security has been on loan. At the request of the Plan, such a report will be provided on a daily or weekly basis, rather than a monthly basis. Also, upon request of the Plan, the Borrower will provide the Plan with daily notifications of securities lending transactions.
(r) In addition to the above conditions, all loans involving Foreign Borrowers must satisfy the following supplemental requirements:
(1) Such Foreign Borrower is subject to regulation by (i) the Bundesanstalt fuer Finanzdienstleistungsaufsicht (the BAFin) in Germany, (ii) the Financial Services Authority and the Securities and Futures Authority in the United Kingdom, (iii) the Ministry of Finance or the Financial Services Agency and the Tokyo Stock Exchange or the Osaka Stock Exchange in Japan, (iv) the Office of the Superintendent of Financial Institutions Canada, Ontario Securities Commission, and the Investment Dealers Association in Canada, or (v) the Australian Prudential Regulation Authority, Australian Securities and Investments Commission, and the Australian Stock Exchange Limited in Australia, or any governmental regulatory authority that is a successor in interest to any such regulator.
(2) Such Foreign Borrower is in compliance with all applicable provisions of Rule 15a-6 (17 C.F.R. 240.15a-6) under the Securities Exchange Act of 1934 (the 1934 Act) that provides foreign broker-dealers a limited exception from U.S. registration requirements;
(3) All collateral is maintained in U.S. dollars or in U.S. dollar-denominated securities or letters of credit, or other collateral permitted under PTE 81-6 (as amended or superseded);
(4) All collateral is held in the United States and the situs of the Borrowing Agreement 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 C.F.R. 2550.404(b)-1; and
(5) Prior to entering into a transaction involving a Foreign Borrower, the Foreign Borrower must:
(i) Agree to submit to the jurisdiction of the United States;
(ii) Agree to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(iii) Consent to the service of process on the Process Agent; and
(iv) Agree that enforcement by a Plan of the indemnity provided by the Foreign Borrower will occur in the U.S. courts.
(s) The Borrower 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
(2) No party in interest other than the Borrower 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 subsections (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
(i) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or the Securities and Exchange Commission (SEC);
(ii) Any fiduciary of a participating Plan or any duly authorized representative of such fiduciary;
(iii) Any contributing employer to any participating Plan or any duly authorized employee representative of such employer; and
(iv) Any participant or beneficiary of any participating Plan or any duly authorized representative of such participant or beneficiary.
(2) None of the persons described above in subparagraphs (t)(1)(ii)-(t)(1)(iv) are authorized to examine the trade secrets of Deutsche Bank or its affiliates or commercial or financial information which is privileged or confidential.
(a) An
(i) Any person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, the person. (For purposes of this paragraph, the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual);
(ii) Any officer, director, employee, or relative (as defined in section 3(15) of the Act) of any such other person or any partner in any such person; and
(iii) Any corporation or partnership of which such person is an officer, director, or employee, or in which such person is a partner.
(b) The term
(c) The term “Borrower” or “Borrowers” means DBS, DBNY, DBT, and the Foreign Borrowers, or any branch or affiliate of Deutsche Bank that, now or in the future, is a U.S. registered broker-dealer or a government securities broker or dealer or a U.S. bank.
Effective Date:The exemption is effective as of April 24, 2001.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on July 3, 2002 at 67 FR 44625.
The Department received one written comment with respect to the notice of proposed exemption (the Proposal). The comment was submitted by the applicant, who requested certain clarifying modifications and additions to the operative language in the final exemption, as well as to the Summary of Facts and Representations (the Summary) in the Proposal (see 67 FR 44625). The requested modifications and additions to both the operative language and the Summary, are discussed below.
1. The applicant wished to clarify that the term “Deutsche Bank” includes its branches, such as Deutsche Bank AG, New York Branch (DBNY), and to add Deutsche Bank Trust Company Americas (DBT) to the list of covered Borrowers.
Thus, Section I(a) of the Proposal (67 FR 44625, column 3) has been revised to read as follows (note deleted and italicized language):
(1) Deutsche Bank AG (Deutsche Bank) (
(2) its affiliates Deutsche Bank Securities Inc. (DBS), Deutsche Bank [delete “AG, New York Branch (DBNY)”]
2. Similarly, Section III(b) of the Proposal (67 FR 44628, center column) defining “Foreign Borrowers” has been revised to read as follows (note deleted and italicized language):
The term “Foreign Borrower” or “Foreign Borrowers” means
For an explanation regarding the “BAFin” and the italicized language added to the end of clause (v), above, see Comment 8, below.
3. Further, Section III(c) of the Proposal (67 FR 44628, center column) defining “Borrowers” has been revised to read as follows (note deleted and italicized language):
The term “Borrower” or “Borrowers” means [delete “Deutsche Bank”] DBS, DBNY,
4. The revisions in Comment 2, above, should also be made to the corresponding paragraph in Item 1 of the Summary (67 FR 44629, column 1) (note deleted and italicized language):
Deutsche Bank requests an individual exemption to cover
5. The second sentence of Section II(h) of the Proposal (67 FR 44626, center column) regarding monitoring of the collateral has been revised to read as follows (note deleted and italicized language):
The level of the collateral is monitored daily by the Plan or its designee, which may be Deutsche Bank or any of its
Further, the words ldquo;
6. The applicant wished to add the italicized language, below, to the first sentence of Section II(m) of the Proposal (67 FR 44626, column 3) regarding default by the Borrower. Thus, Section II (m) has been revised to read as follows:
In the event that the Borrower fails to return securities in accordance with the Borrowing Agreement, the Plan or its agent will have the right under the Borrowing Agreement to purchase securities identical to the borrowed securities and apply the collateral to payment of the purchase price.
Further, the same addition should be made to the corresponding first sentence in Item 15 of the Summary (67 FR 44632, center column).
7. The applicant stated that the use of the term “confirmations” in Section II(q) of the Proposal connotes confirmation slips described in Rule 10b-10 under the 1934 Act, which applies to securities transactions, not to securities lending transactions. Thus, the last sentence of Section II(q) (67 FR 44627, center column) has been revised to read as follows (note deleted and italicized language):
Also, upon request of the Plan, the Borrower will provide the Plan with daily [delete “confirmations”]
Further, the same revision should be made to the corresponding last sentence in Item 10 of the Summary (67 FR 44631, column 3).
8. The applicant stated that there has been a change in the identity of the governmental regulatory authority in Germany. Following the adoption on April 22, 2002 of the Law on Integrated Financial Services Supervision (Gesetz ueber die integrierte Finanzaufsicht—FinDAG), the Federal Authority for Financial Services Supervision (Bundesanstalt fuer Finanzdienstleistungsaufsicht—BAFin) was established on May 1, 2002. The functions of the former offices for banking supervision (Gundesaufsichtsamt fuer das Kreditwesen—BAKred), insurance supervision (Bundesaufsichtsamt fuer das Versicherungswesen—BAV), and securities supervision (Bundesaufsichtsamt fuer den Wertpapierhandel—BAWe) have been combined in 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 BAFin has been created to ensure a consistent regulation and supervision of the financial services and markets in Germany through one single authority. The applicant also noted generally that, in foreign jurisdictions, the authority to regulate securities transactions and securities lending transactions may change from agency to agency, from time to time, or the legal name of the appropriate regulator may change.
Thus, Section II(r)(1) of the Proposal (67 FR 44627, column 3), a supplemental requirement for Foreign Borrowers, has been revised to refer to the “BAFin,” as well as by adding the italicized language and the end of clause (v):
(1) Such Foreign Borrower is subject to regulation by (i) the [delete “Bundesaufsichtsamt fuer das Kreditwesen (the BAK) and the Deutsche Bundesbank”]
Further, consistent with the above (as well as Comments 2 & 4), paragraph (i) in Item 17 of the Summary (67 FR 44632, column 3), should be revised such that the Foreign Borrower may be a bank “
9. The applicant wished to correct duplicative references to Deutsche Bank, already included in the revised definitions of “Foreign Borrower” and “Borrower.”
Thus, the following revisions have been made to Section II(r)(5), (r)(5)(iv), and (s) of the Proposal (67 FR 44627, column 3) (note deleted language):
(5) Prior to entering into a transaction involving a Foreign Borrower, [delete “Deutsche Bank or“] the Foreign Borrower must * * *
(iv) Agree that enforcement by a Plan of the indemnity provided by [delete “Deutsche Bank or”] the Foreign Borrower will occur in the U.S. courts.
(s) [Delete “Deutsche Bank or”] The Borrower maintains, or causes to be maintained, within the United States for a period of six years * * *
Further, the same revision should be made to Footnote 8 in Item 4 of the Summary (67 FR 44630, column 1) as follows:
Under certain circumstances described in the April 9, 1997 No-Action Letter (
10. The applicant wished to make the following correction to the third paragraph in Item 1 of the Summary (67 FR 44628, column 3) (note deleted language):
(c) Morgan Grenfell & Co., Ltd., located in London, is subject to regulation in the United Kingdom by the Financial Services Authority [delete “in respect of prudential supervision”];
11. The applicant wished to add the following sentence after the first sentence in Item 7 of the Summary (67 FR 44630, column 3):
The form of the Borrowing Agreement to be used in foreign jurisdictions will reflect appropriate local industry or market standards. [FN 11]
[FN 11] For example, the form of the Borrowing Agreement to be used in the United Kingdom differs from the standard U.S. Borrowing Agreement. Under the form Borrowing Agreement to be used in the United Kingdom, the Plan receives title to (rather than a pledge of or a security interest in) the collateral.
12. The applicant wished to add a new Item 10 to follow Item 9 of the Summary (67 FR 44631, column 1), with the remaining items appropriately renumbered:
10. An independent fiduciary of the Plan may provide written instructions directing that the investment of any cash collateral, or any portion thereof, be managed by Deutsche Bank or any branch or affiliate thereof, or be invested in one or more mutual funds managed by Deutsche Bank or any branch or affiliate thereof. Deutsche Bank or such branch or affiliate, as applicable, may receive a reasonable and customary investment management fee, provided that the independent fiduciary of the Plan approves such compensation arrangement, after receiving written disclosure of the compensation arrangement to be paid to Deutsche Bank or such branch or affiliate, as applicable, in connection with such investment management. The independent fiduciary of the Plan may revoke such written instructions at any time. [FN 12]
[FN 12] This transaction is outside the scope of the proposed exemption. The Department notes that it is the responsibility of Deutsche Bank or such branch or affiliate to determine whether the conditions of section 408(b)(2) of the Act will be met with respect to the transaction (
13. Finally, the applicant requested that the third sentence in old Item 10 of the Summary (67 FR 44631, center column), to be renumbered as Item 11, be revised to be consistent with Section II(g) of this exemption (note deleted and italicized language):
For this purpose, the collateral may be held on behalf of the Plan [delete “by”]
The Department has modified the language of this exemption to reflect the applicant's clarifications to the record, as discussed above, and acknowledges such clarifications as they relate to the information contained in the Proposal, as published in the
Accordingly, based upon the information contained in the entire record, the Department has determined to grant the proposed exemption as modified herein.
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.
National Aeronautics and Space Administration (NASA).
Notice of intent to prepare an environmental impact statement (EIS) and conduct scoping meetings for the proposed International Space Research Park (ISRP) on the John F. Kennedy Space Center (KSC).
In compliance with the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
The EIS will address, among other matters, the environmental impacts of the development and operation of the research park at two possible locations on KSC.
Interested parties are invited to submit comments on environmental concerns in writing on or before December 9, 2002, to assure full consideration. In addition, interested parties may attend one or both of the two public scoping meetings to be held on October 24, 2002. The first meeting will be held at the KSC Visitors Complex at 9:30 a.m. The second meeting will be held at the Florida Solar Energy Center on the Cocoa Campus of the Brevard Community College at 7 p.m.
Written comments should be addressed to Mr. Mario Busacca, Environmental Program Office, Mail Code TA-C3, Kennedy Space Center, Florida, 32899. Comments may also be sent by electronic mail to:
Mr. Mario Busacca, Environmental Program Office, Mail Code TA-C3, Kennedy Space Center, Florida, 32899; 321-867-8456; fax, 321-867-8040; electronic mail:
Some of the key objectives of the KSC mission are to support development of the ISS and growth in the commercial space industry; promote and facilitate general commercial use and development of space; and continue to develop KSC as a world leader in spaceport and range technology development while maintaining the prominence in launch and landing operations of KSC and CCAFS, collectively known as the Cape Canaveral Spaceport (CCS). Towards these ends, KSC believes the development and operation of a commercial-based research park would attract and promote broad-based research and technology development activities. In addition, the development and testing activities would increase the availability of intellectual, physical, and financial resources to directly support the use and development of space and its commercial potential. This outcome would enable NASA to more efficiently perform its core research and exploration missions. Therefore, NASA is proposing to allow the State of Florida, through its FSA, to develop up to 160 hectares (400 acres) of land on KSC as a ISRP. This area would be developed and managed by the FSA for the life of the ISRP, which is up to 50 years. The FSA would seek tenants to build and operate commercial and educational facilities within the ISRP, which would be subdivided into about 24 available parcels ranging in size from approximately two to eight hectares (five to 20 acres) each.
Enterprises, both private and public wishing to engage in or support research and technology, space product development, or commercialized space services that are in alignment with the strategic direction and needs of the FSA would be invited to consider locating their laboratories and offices in the ISRP. The proposed ISRP would be unique and as such would be expected to attract a broad, but synergistic range of activities. Such activities may include university-sponsored research and education, commercial space experiment processing services, spaceport and range technology development and support activities, international laboratories and administrative support for NASA's global partners on the space station, technical and scientific support labs, space business assistance activities, space technology brokerage activities, and business support services required by ISRP tenants. NASA envisions the ISRP as a pedestrian-friendly campus, with features to encourage interaction and collaboration among its tenants. The ISRP would manage all utilities and services for the tenants. All tenants would be required to meet strict eligibility requirements to be allowed to build in the ISRP. Heavy manufacturing or large-scale assembly of space hardware, and any operations deemed hazardous or incompatible with other ISRP users, would not be allowed. Full build-out of the ISRP is not expected for 20 to 25 years. At full build-out, the ISRP would contain facilities that represent a combined floor space of more than 185,000 square meters (2 million square feet) of research and development and related facility space and a total estimated population of approximately 10,000 workers.
An initial Memorandum of Understanding (MOU) between KSC and FSA was signed in December 2001, describing the respective roles of the partners in planning the ISRP and establishing common understandings related to the subsequent implementation and operation of the ISRP. The MOU provides that NASA fund and lead the concept development study with FSA involvement, and FSA fund and manage follow-on engineering, technical, and business studies to prepare for ISRP implementation. The proposed management approach envisioned for the ISRP is that NASA would retain ownership of the property but convey land use and development rights to the FSA for up to 50 years. The FSA would enter into long-term arrangements with ISRP tenants to enable commercially financed space industry firms and academic institutions to build and operate in the ISRP.
NASA is planning to evaluate two locations as reasonable alternatives for the proposed ISRP on KSC: the first alternative site (Alternative 1) is located south of the KSC Visitor Complex and west of Kennedy Parkway, and the second alternative site (Alternative 2) is located east of Kennedy Parkway just to the north of the south gate entrance (Gate 2) to KSC. The EIS will also consider the No Action Alternative (
The EIS will consider the full range of potential environmental impacts associated with these alternatives. Environmental issues addressed will include, but not necessarily be limited to: land use, motor vehicle traffic, air and water quality, infrastructure and drainage, hazardous materials and site contamination, pollution prevention, geology, biological resources, noise, aesthetics, cultural resources, socioeconomic impacts (including environmental justice), and other issues identified for emphasis during the scoping process. NASA will consult with the State Historic Preservation Office during the planning process because Alternative 2 may potentially affect archeological and historic sites. NASA will also consult with the U.S. Fish and Wildlife Service regarding the potential for the ISRP to impact threatened and endangered species and critical habitat.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that four meetings of the Combined Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW, Washington, DC 20506 as follows:
The closed portions of these meetings are for the purpose of Panel review, discussion, evaluation, and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency by grant applicants. In accordance with the determination of the Chairman of May 2, 2002, these sessions will be closed to the public pursuant to (c)(4)(6) and (9)(B) of section 552b of Title 5, United States Code.
Any person may observe meetings, or portions thereof, of advisory panels that are open to the public, and, if time allows, may be permitted to participate in the panel's discussions at the discretion of the panel chairman and with the approval of the full-time Federal employee in attendance.
If you need special accommodations due to a disability, please contact the Office of AccessAbility, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW, Washington, DC 20506, 202/682-5532, TDY-TDD 202/682-5496, at least seven (7) days prior to the meeting.
Further information with reference to this meeting can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC, 20506, or call 202/682-5691.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that a meeting of the Leadership Initiatives Advisory Panel, AccessAbility Section, will be held by teleconference from 12 p.m.-12:30 p.m. on Tuesday, October 22, 2002 in Room 528 at the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW, Washington, DC, 20506.
This meeting is for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of May 2, 2002, these sessions will be closed to the public pursuant to subsection (c)(4),(6) and (9)(B) of section 552b of Title 5, United States Code.
Further information with reference to this meeting can be obtained from Ms. Kathy Plowitz-Worden, Panel Coordinator, National Endowment for the Arts, Washington, DC, 20506, or call 202/682-5691.
The NSF management officials having responsibility for the Oversight Council for the International Arctic Research Center (#9535) have determined that renewing this group for another year is necessary and in the public interest in connection with the performance of duties imposed upon the Director, National Science Foundation by 42 USC 1861 et seq. This determination follows consultation with the Committee Management Secretariat, General Services Administration.
For more information contact Susanne Bolton at (703) 292-7488.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended) the National Science Foundation announces the following meeting.
National Science Foundation.
Announcement of membership of the National Science Foundation's Senior Executive Service Performance Review Board.
This announcement of the membership of the National Science Foundation's Senior Executive Service Performance Review Board is made in compliance with 5 U.S.C. 4314(c)(4).
Comments should be addressed to Director, Division of Human Resource Management, National Science Foundation, Room 315, 4201 Wilson Boulevard, Arlington, VA 22230.
Mr. John F. Wilkinson, Jr., at the above address or (703) 292-8180.
The membership of the National Science Foundation's Senior Executive Service Performance Review Board is as follows:
National Science Foundation.
Announcement of membership of the National Science Foundation's Performance Review Board for Office of Inspector General Senior Executive Service positions.
This announcement of the membership of the National Science Foundation's Office of Inspector General Senior Executive Service Performance Review Board is made in compliance with 5 U.S.C. 4314(c)(4).
Comments should be addressed to Director, Division of Human Resource Management, National Science Foundation, Room 315, 4210 Wilson Boulevard, Arlington, VA 22230.
Mr. John P. Wilkinson, Jr., at the above address or (703) 292-8180.
The membership of the National Science Foundation's Office of Inspector General Senior Executive Service Performance Review Board is as follows: Mark S. Wrighton, Chairman, Audit and Oversight Committee, National Science Board, Chairperson Nathaniel Pitts, Director, Office of Integrative Activities Bruce Umminger, Senior Scientist, Office of Integrative Activities.
The U.S. Nuclear Regulatory Commission (the Commission) is
The proposed amendment would revise the Updated Safety Analysis Report (UFSAR) to allow lifting heavier loads with the reactor building crane during the Unit 1 refueling outage beginning in November 2002.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in Title 10 of the Code of Federal Regulations (10 CFR), § 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. The proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed changes will allow use of the reactor building crane at Quad Cities Nuclear Power Station (QCNPS) during power operations to lift heavy loads up to 125 tons for removal and re-installation activities for the reactor cavity shield blocks during the Unit 1 refueling outage (
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes allow use of the QCNPS reactor building crane for a limited duration to lift heavy loads up to a total of 125 tons during removal and re-installation activities for the reactor cavity shield blocks. The reactor building crane has additional margin for a lifted load of 125 tons with single failure-proof features if a DBE is not assumed. The probability of a DBE during the limited duration of the request is very small. Therefore, the single failure-proof features ensure that the proposed changes provide an equivalent level of safety and will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed changes do not involve a significant reduction in a margin of safety.
The reactor building crane is rated for lifting loads up to 125 tons. The NRC has approved qualification of the QCNPS reactor building crane as single failure-proof for loads of up to 110 tons. The proposed change allows use of the crane for a limited duration to lift loads up to 125 tons. Existing safety margins are enhanced when lifting loads up to 125 tons if a DBE is not assumed, and Exelon has demonstrated that the probability of a DBE during the limited duration of the request is very small. Therefore, it is concluded that the proposed changes do not result in a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By November 7, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.714,
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. Because of the continuing disruptions in delivery of mail to United States Government offices, it is requested that petitions for leave to intervene and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment dated October 1, 2002, which is available for public inspection at the Commission's PDR, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Weeks of October 7, 14, 21, 28, November 4, 11, 2002.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the Week of October 7, 2002.
There are no meetings scheduled for the Week of October 14, 2002.
There are no meetings scheduled for the Week of October 21, 2002.
This meeting will be webcast live at the Web address
There are no meetings scheduled for the Week of November 4, 2002.
There are no meetings scheduled for the Week of November 11, 2002.
The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292.
R. Michelle Schroll (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
On May 31, 2002, the American Stock Exchange LLC (“Amex or Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Amex proposed to amend Amex Rule 958, Commentary .10 relating to trading by regular members in Other Securities and Trust Issued Receipts. In its proposal, the Exchange noted that in 1992, the Commission approved Amex Rule 958, Commentary .10 relating to trading on the Floor in “derivative products,” index warrants, and currency warrants.
Pursuant to Amex Rule 958, Commentary .10, regular members trading derivative products, index warrants, and currency warrants as ROTs are subject to continuous market making obligations. As such, ROTs receive market maker margin. OPMs and LTPs are also permitted to trade derivative products pursuant to Article I, Section 3 and Article IV, Section 1(h), respectively, of the Amex Constitution, and, because their trading under Amex Rule 958 also requires ongoing market making obligations, OPMs and LTPs also receive market maker margin.
According to the Exchange, when it first authorized trading in derivative products by OPMs and LTPs in 1990, it specifically intended to encourage trading crowds and competitive market making to develop in such products as SuperTrust securities (which represented interests in actual portfolios of securities such as the S&P 500 Index) and SPDRS
The Exchange proposes to amend Amex Rule 958, Commentary .10 to clarify that “structured products” and Trust Issued Receipts (HOLDRS
The Exchange's proposal would amend Amex Rule 958, Commentary .10 to clarify that structured products and Trust Issued Receipts rules must be traded under Amex Rule 958 and only by registered traders who are regular (
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act
When an individual REMM, RET, or other regular member of the exchange registers under Amex Rule 958, he or she becomes a competing market maker with continuous affirmative market making obligations. The individual also receives “good faith” margin, which permits the individual to finance up to 100% of his or her securities positions' market value.
The Exchange does not permit either structured products or Trust Issued Receipts to be traded by OPMs or LTPs. OPMs and LTPs have authority to trade “derivative products,” as defined in the Amex Constitution and interpreted by the Amex Board of Governors. The Amex observes that when it proposed to allow OPMs and LTPs to trade derivative products, it explicitly stated that its proposal was not intended to expand OPM and LTP trading privileges beyond products that OPMs and LTPs were trading at that time. OPMs and LTPs were not trading structured products and Trust Issued Receipts; those products were not in existence when the Exchange proposed to allow OPMs and LTPs to trade derivative products. Moreover, the Amex represents that the definition of derivative products contemplates only products that are based on open-ended, managed indexes or portfolios registered under the Investment Company Act of 1940.
The Commission finds that it is within the Exchange's discretion to assign or limit trading rights based on type of product and class of membership, as long as the procedures adopted are not inconsistent with the purposes of the Act.
It is therefore ordered, 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)(1) of the Securities Exchange Act of 1934,
The Commission is publishing this notice to solicit comments on the proposed rule from interested persons.
The Exchange proposes to implement an interpretation of its Execution Guarantee Rule in response to Commission action regarding
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to add Paragraph .07 to the Interpretations and Policies section of Chapter II,
As of the implementation date of the Order, September 4, 2002, certain executions that take place according to the rules of the Exchange may be deemed violative of the provisions thereof. Accordingly, the Exchange is seeking to implement this proposed rule change to run commensurate with the pilot period outlined in the Order, or until such longer time as the Commission may deem appropriate in conjunction with any further related action concerning this issue.
In Chapter II,
As a result of the Commission's Order, certain primary market trades-through in ETFs will constitute exempt trades-through, but will still, under BSE Rules, trigger an obligation on the part of a BSE specialist to provide trade-through protection. However, the specialist will no longer be able to seek recourse to seek satisfaction through ITS from the primary market. Accordingly, the BSE specialist will be competitively disadvantaged if this section of its rules is strictly enforced, while the
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition.
The Exchange has neither solicited nor received comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the BSE. All submissions should refer to the File No. SR-BSE-2002-14 and should be
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to add a rule provision setting forth that each CBOE member and Option Trading Permit holder (until such permit expires) with trading rights on CBOE (i) is a member of OneChicago, LLC, and (ii) to the extent provided in OneChicago rules, becomes bound by OneChicago rules and subject to jurisdiction of OneChicago by accessing or entering any order into the OneChicago System.
Below is the text of the proposed rule change. Proposed new language is italicized and proposed deletions are in brackets.
RULE
RULE
(b) The Membership Committee may delegate to the Membership Department any of the authority that is granted to the Membership Committee under the Rules.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
OneChicago, LLC is a joint venture formed by CBOE, the Chicago Mercantile Exchange, and the Chicago Board of Trade to provide a market for trading security futures products. OneChicago has been conditionally designated by the Commodity Futures Trading Commission as a contract market under the Commodity Exchange Act and is in the process of registering with the Commission as a national securities exchange under section 6(g) of the Act.
One of CBOE's primary goals in participating in the formation of OneChicago was to provide CBOE's membership with access to a market for trading security futures products. Accordingly, OneChicago Rule 132
Additionally, OneChicago Rule 307(a) provides, in pertinent part, that by accessing, or entering any order into, the OneChicago System, and without any need for any further action, undertaking or agreement, a OneChicago member agrees (i) to be bound by, and comply with, OneChicago rules, the rules of any OneChicago clearing corporation, and applicable law, to the extent applicable to it, and (ii) to become subject to the jurisdiction of OneChicago with respect to any and all matters arising from, related to, or in connection with, the status, actions, or omissions of that OneChicago member.
In this regard, CBOE proposes to add a CBOE rule provision setting forth that each CBOE member and Option Trading Permit holder (until such permit expires) with trading rights on CBOE (i)
The primary purpose of this proposed rule change is two-fold. First, the right to trade on and to be a member of OneChicago is a benefit granted to CBOE members with trading rights on CBOE, and CBOE desires to provide notice of this benefit of CBOE membership in CBOE's rules. Second, CBOE desires to provide notice to CBOE members in the CBOE rules that by accessing or entering an order into the OneChicago System, a CBOE member will become bound by OneChicago rules and subject to the jurisdiction of OneChicago. In the absence of CBOE Rule 3.29, CBOE members would still be bound by OneChicago rules and subject to the jurisdiction of OneChicago by accessing or entering an order into the OneChicago System by virtue of OneChicago Rule 307(a). It is also the case that CBOE members will have notice of these provisions in the OneChicago rules and through other means such as circulars and educational sessions conducted in connection with the launch of trading on OneChicago. However, CBOE believes that it is important to also include notice of these provisions in CBOE's rules to further ensure that CBOE members, applicants for CBOE membership, and prospective CBOE members are aware of these provisions.
Although proposed CBOE Rule 3.29 would fall within the scope of the consent form that new CBOE members sign and that current CBOE members have previously signed to the effect that they agree to abide by CBOE rules as they shall be in effect from time to time, OneChicago would continue to be responsible for enforcing its own rules. It is not intended that CBOE would enforce OneChicago rules by virtue of adopting proposed CBOE Rule 3.29, and CBOE would not be assuming any responsibility or obligation to enforce OneChicago rules, or compliance by CBOE members with those rules, by virtue of this rule change. Nevertheless, OneChicago would be a third party beneficiary of proposed CBOE Rule 3.29 and would be able to rely upon the agreement by CBOE members to be subject to proposed CBOE Rule 3.29 in enforcing OneChicago rules, in addition to the authority granted by OneChicago rules themselves.
In this regard, proposed CBOE Rule 3.29 is similar to other CBOE rules which provide important notices to CBOE members and others by including those notices in CBOE's rules and in which other parties are third party beneficiaries of those CBOE rules. For example, CBOE Rule 24.14 sets forth disclaimers of warranty and liability that are applicable with respect to reporting authorities for index options that are traded on CBOE. In addition, CBOE Rule 6.7A generally provides that CBOE members may not institute a lawsuit against, among others, CBOE contractors for actions taken or omitted to be taken in connection with the official business of CBOE.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act
The Exchange 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.
Because the proposed rule change (1) does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for thirty days from September 9, 2002, the date on which it was filed, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
Under Rule 19b-4(f)(6)(iii), the Exchange is required to provide the Commission with written notice of its intent to file the proposed rule change at least five business days prior to the filing date or such shorter time as designated by the Commission. The CBOE provided the Commission with notice of intent to file at least five days prior to filing the proposed rule change.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to File No. SR-CBOE-2002-53 and should be submitted by [insert date 21 days from date of publication].
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 NYSE Rule 431 to permit self-clearing members and member organizations to margin listed, broad-based, market index options, index warrants and related exchange-traded funds according to a prescribed portfolio margin methodology relating to a portfolio margin account of a registered broker-dealer, any affiliate of a self-clearing member or member organization, certain qualified members of a national futures exchange, and any other person or entity that maintains account equity of at least $5 million.
The Exchange further proposes to amend NYSE Rule 726 to require that a disclosure statement and written acknowledgement for use with the proposed portfolio margining and cross-margining changes be furnished to customers.
The text of the proposed rule change is available at the Office of the Secretary, NYSE, at the Commission, and on the Commission's Web site.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NYSE Rule 431 generally prescribes minimum maintenance margin requirements for customer accounts held at members and member organizations. In April 1996, the Exchange established the Committee to assess the adequacy of NYSE Rule 431 on an ongoing basis, review margin requirements, and make recommendations for change. A number of proposed amendments resulting from the Committee's recommendations have been approved by the Exchange's Board of Directors since the Committee was established. Similarly, the proposed amendments discussed below have been recommended by the Committee and have been adopted by the Exchange in this proposal, as amended.
The Exchange proposes to amend NYSE Rule 431 to expand the scope of its margin rule by providing a portfolio margin methodology for listed, broad-based market index options, index warrants and related exchange-traded funds. The Exchange believes that the proposed amendments would allow clearing members and member organizations to extend to eligible customers portfolio margin methodology as an alternative to the current strategy-based margin requirements. The Exchange further believes that the proposed rule would also allow broad-based market index futures and options on such futures to be included in a portfolio margin account, thus providing a cross-margin capability. The Exchange proposes to introduce the amendments as a two-year pilot program that would be available on a voluntary basis to member organizations.
Portfolio margining is a margin methodology that sets margin requirements for an account based on the greatest projected net loss of all positions in a product class or group as determined by the Commission-approved options pricing model using multiple pricing scenarios. These scenarios are designed to measure the theoretical loss of the positions given changes in both the underlying price and implied volatility inputs to the model. Accordingly, the margin required is based on the greatest loss that would be incurred in a portfolio if the value of its components move up or down by a predetermined amount.
The Exchange represents that the purpose and benefit of portfolio margining is to efficiently set levels of margin that more precisely reflect actual net risk of all positions in the account. A customer benefits from portfolio margining in that margin requirements calculated on net position risk are generally lower than strategy-based margin methodologies currently in place. In permitting margin computation based on actual net risk, members and member organizations will no longer be required to compute margin requirement for each individual position or strategy in a customer's account.
However, as a pre-condition to permitting portfolio margining, the member or member organization would be required to establish procedures and guidelines to monitor credit risk to the member or member organization's capital, including intra-day credit risk, and stress testing of portfolio margin accounts. Further, members and member organizations would have to establish procedures for regular review and testing of these required risk analysis procedures.
In addition, the proposed rule change permits a clearing member or member organization to establish a separate portfolio margin account (securities margin account) exclusively for cross-margining. In this regard, related index futures and options on such futures would be allowed to be carried in the portfolio margin account, thus affording a cross-margin capability. In a portfolio margin account that is used exclusively for cross-margining, separate portfolios may be established containing index options, index warrants and exchange-traded funds structured to replicate the composition of the index underlying a particular portfolio, as well as related index futures and options on such futures.
To determine theoretical gains and losses, and resulting margin requirements, the same portfolio margin computation procedure will be applied to portfolio margin accounts that contain a cross-margin element.
Exchange Rule 726 prescribes requirements for the delivery of options disclosure documents concerning the opening of customer accounts. As proposed by the Exchange, members and member organizations would be required to provide every portfolio margin customer with a written risk disclosure statement at or prior to the initial opening of a portfolio margin account. The disclosure statement is divided into two sections, one dealing with portfolio margining, and the other with cross-margining.
The statement would disclose the risk and operation of portfolio margin accounts, including cross-margining, and the differences between portfolio margin and strategy-based margin requirements. The disclosure statement would also address who is eligible to open a portfolio margin account, the instruments that are allowed, and when deposits to meet margin and minimum equity are required.
Included within the portfolio margin section of the disclosure statement would be a list of certain of the risks unique to portfolio margin accounts, such as: increased leverage; shorter time for meeting margin; involuntary liquidation if margin not received; inability to calculate future margin requirements because of the data and calculations required; and that long positions are subject to a lien. The risks and operation of a cross-margin feature are delineated in the cross-margin section of the disclosure statement, and a list of certain of the risks associated with cross-margining will be included as well.
In addition, at or prior to the time a portfolio margin account is initially opened, members and member organizations would be required to obtain a signed acknowledgement regarding certain implications of portfolio margining (
The Exchange believes the proposed rule change, as amended, is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in the furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change, as amended.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, as amended, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NYSE. All submissions should refer to File No. SR-NYSE-2002-19 and should be submitted by October 21, 2002.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 [79 Stat. 985; 22 U.S.C.
For further information, including a list of exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, 202/619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW., Washington, DC 20547-0001.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julianne Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State, (telephone: 202/619-6529). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 [79 Stat. 985; 22 U.S.C. 2459], Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 [112 Stat. 2681,
For further information, including a list of exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, 202/619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW., Washington, DC 20547-0001.
Tennessee Valley Authority (TVA).
Notice of Meeting.
TVA will convene a meeting of the Regional Resource Stewardship Council (Regional Council) to obtain views and advice on the topic of planning for and use of TVA reservoir lands. Under the TVA Act, TVA is charged with the proper use and conservation of natural resources for the purpose of fostering the orderly and proper physical, economic and social development of the Tennessee Valley region. The Regional Council was established to advise TVA on its natural resource stewardship activities. Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2, (FACA).
The meeting agenda includes the following:
(1) Orientation to the second-term of the Regional Council.
(2) TVA reservoir lands—planning, management, and use.
(a) Panel presentations and discussion on the public land policies and practices of other public land management agencies.
(b) Briefing on TVA's reservoir land planning process and land management practices.
(c) Regional Council deliberation.
(3) Close out of business for the First Term Regional Council.
4. Public comments on the topic of TVA reservoir lands.
The Regional Council will hear opinions and views of citizens by providing a public comment session. The Public comment session will be held from 11 a.m. to Noon EST on October 24, 2002. Citizens who wish to express views and opinions on the topic of TVA reservoir lands may do so during the Public Comment portion of the agenda. Up to one hour will be allotted for the Public Comments with participation available on a first-come, first-served basis. Speakers addressing the Regional Council are requested to limit their remarks to no more than 5 minutes. Persons wishing to speak register at the door and are then called on by the Regional Council Chair during the public comment period. Handout materials should be limited to one printed page. Written comments are also invited and may be mailed to the Regional Resource Stewardship Council, Tennessee Valley Authority, 400 West Summit Hill Drive, WT 11A, Knoxville, Tennessee 37902.
The meeting will be held on Wednesday and Thursday, October 23 and 24, 2002, from 8:30 a.m. to 5 p.m. Eastern Standard Time each day.
The meeting will be held at the Downtown Radisson, 401 West Summit Hill Drive, Knoxville, Tennessee 37902, and will be open to the public. Anyone needing special access or accommodations should let the contact below know at least a week in advance.
Sandra L. Hill, 400 West Summit Hill Drive, WT 11A, Knoxville, Tennessee 37902, (865) 632-2333.
Office of the Secretary, Department of Transportation.
Notice ending waiting period.
United Air Lines and U.S. Airways have submitted agreements to the Department for review under 49 U.S.C. 41720. That statute requires certain types of agreements between major U.S. passenger airlines to be submitted to the Department at least thirty days before the agreements' proposed effective date and allows the Department to extend the waiting period for any such agreements. The Department has completed its review of the United/US Airways agreements and has determined to end the waiting period for the agreements. The Department has concluded that the competitive issues presented by the agreements do not presently require further investigation. In reaching this conclusion, the Department is relying on the terms of the agreements, the data provided in response to our requests, and the two airlines' acceptance of restrictions imposed by the Justice Department that are intended to limit the possibility of anti-competitive conduct.
Thomas Ray, Office of the General Counsel, 400 Seventh St. SW., Washington, DC 20590, (202) 366-4731.
On July 25 United and U.S. Airways submitted code-share and frequent flyer program reciprocity agreements to us for review under 49 U.S.C. 41720. After informally reviewing the agreements, we find that no formal investigation of the agreements is warranted at this time, and we have determined that we should end the waiting period. The two airlines have agreed to restrictions proposed by the Justice Department that are intended to limit the possibility of anti-competitive behavior, and each airline has represented to us that it will continue to compete independently on fares and service levels. To ensure that they abide by those representations, we will monitor closely their conduct in implementing the agreements.
Under 49 U.S.C. 41720, certain kinds of joint venture agreements among major U.S. passenger airlines must be submitted to us at least thirty days before their proposed implementation date. We may extend the waiting period by 150 days with respect to a code-sharing agreement and by sixty days for the other types of agreements covered by the advance-filing requirement. At the end of the waiting period (either the thirty-day period or any extended period implemented by us), the parties may implement their agreement.
The statute does not require the parties to obtain our approval before they implement an agreement. Blocking them from implementing their agreement would normally require our issuance of an order under 49 U.S.C. 41712 (formerly section 411 of the Federal Aviation Act) in a formal enforcement proceeding that determined that the agreement's implementation would be an unfair method of competition and thus a violation of that section. Our review of all agreements submitted under 49 U.S.C. 41720 has been informal. It is analogous to the review of major mergers and acquisitions conducted by the Justice Department and the Federal Trade Commission under the Hart-Scott-Rodino Act, 15 U.S.C. 18a, since we consider whether we should institute a formal proceeding for determining whether an agreement would violate section 41712.
While our review of the United/US Airways agreements has been informal, we established an opportunity for other parties to review redacted copies of the United/US Airways agreements and to submit comments due to the public interest in the agreements. 67 FR 50745 (August 5, 2002). We have carefully considered the comments filed on the agreements as well as the agreements themselves and other information
We have determined to end the waiting period for the United/US Airways agreements and take no action at this time to prevent the airlines from beginning to implement the agreements. At the present time, the material we have reviewed is not sufficient for us to conclude that an enforcement proceeding under 49 U.S.C. 41712 is warranted. However, we have a number of concerns about the United/US Airways agreements and the relationship being created by them. The two airlines together will have an industry market share of 23 percent, as measured by domestic revenue-passenger-miles (“RPMs”). In contrast, the largest airline, American, has a 17 percent market share. United has a 14 percent share, while U.S. Airways has a 9 percent share. U.S. Airways has also been the primary airline in the Northeast. We have a concern that the joint venture relationship being created by United and U.S. Airways may lead to lessening of competition between the two airlines in some markets. On the other hand, the joint venture will provide service benefits for a number of travellers and may increase competition in other markets, if United and U.S. Airways have strong incentives to compete with each other. While there is considerable overlap between the United and U.S. Airways route networks, the code-share arrangement will enable United and U.S. Airways to offer more integrated connecting services in markets not now served by either airline, which will benefit consumers traveling in those markets.
Legally and practically, the airlines' joint venture relationship will not be the equivalent of a merger, there will not be a significant integration of the airlines' operations, and each airline has represented that it will independently establish its fare levels and capacity levels in its city-pair markets. In addition, the fares paid by passengers on flights operated under the code-share arrangement will go to the airline operating the flight, even if the passenger bought the ticket under the other airline's code (the airline operating the flight is the operating carrier, while the other airline is the marketing carrier). This should give each airline an incentive to compete with its partner by operating its own flights, since it will obtain passenger revenues only when it is the operating carrier.
After examining the United/US Airways agreements, the Justice Department has determined that it will not challenge those agreements under the antitrust laws if United and U.S. Airways accept certain restrictions on their joint venture. The two airlines have accepted those restrictions, as set forth in a letter agreement with the Justice Department. These restrictions primarily bar the airlines from code-sharing on certain nonstop routes and engaging in certain pricing conduct that could provide a vehicle for signaling and collusion. The two airlines have also agreed with the Justice Department that each airline will independently establish the terms and conditions for its frequent flyer program. The terms of the parties' agreements, with restrictions set forth in the airlines' agreement with the Justice Department, appear at this time to address our immediate concerns with competition by United and U.S. Airways. In reaching our conclusion, we are expressly relying on the airlines' representations to us and on their strict compliance with the terms of their agreement with the Department of Justice.
Under the agreement with the Justice Department, United and U.S. Airways will not code-share on local traffic on routes where both offer nonstop service, including their hub-to-hub routes (Philadelphia-Los Angeles, for example). They will not code-share on local traffic on nonstop services operated to the same endpoint from either Dulles International Airport or Reagan Washington National Airport, except for Washington, DC-LaGuardia/Boston flights. On routes served by only one of the two airlines, the marketing carrier's fares must be the same as the operating carrier's fares. On routes served by both airlines where both have comparable service (connecting service, for example), each airline's fares for flights operated by the other airline must be the same as the fares for its own flights or the fares established by the airline operating the flights. The marketing airline thus must charge either the same fares as the operating airline or the fares charged by the marketing airline for its own flights. On routes where one airline offers nonstop service and the other airline offers connecting service, the latter airline's fares for the nonstop service must be the same as the operating carrier's fares. Finally, United and U.S. Airways must continue to act independently in establishing the terms and conditions of their frequent flyer programs and in bidding on corporate contracts, although when consistent with the antitrust laws they may offer customers the option of a joint bid.
As noted, we have considered the comments submitted on the agreements. While many of them support the United/US Airways joint venture, several of the comments argue that the joint venture will be anti-competitive and that we should institute a formal proceeding to investigate its competitive effects. At this time we are not persuaded that the joint venture or the agreements would, on their face, violate 49 U.S.C. 41712. We have not yet seen evidence that the agreements will unreasonably restrict either airline's incentives and ability to compete independently or would be likely to result in collusion on fares or service levels.
Given our strong concern that the agreements not have anti-competitive results, however, we intend to monitor closely their implementation by United and U.S. Airways. If we obtain evidence that the airlines' implementation of their joint venture is having an adverse impact on competition, we may take action under 49 U.S.C. 41712 at that time. Furthermore, if United and U.S. Airways at any future time decide that they will no longer comply with the restrictions agreed upon with the Justice Department, they will have created a new agreement which must be submitted to us under 49 U.S.C. 41720 and which therefore cannot be implemented until the end of a new waiting period. The same will be true if they materially modify the terms of the agreements submitted by them on July 25. Under our established interpretation of 49 U.S.C. 41720, airlines that significantly modify a joint venture agreement must submit the modified agreement to us under that statute.
We are continuing to examine the similar agreements submitted by Delta, Continental, and Northwest, which were filed one month after United and U.S. Airways submitted their agreements. 67 FR 56340 (September 3, 2002).
The following Agreements were filed with the Department of Transportation under the provisions of 49 U.S.C. sections 412 and 414. Answers may be filed within 21 days after the filing of the application.
Federal Aviation Administration (FAA), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before November 7, 2002. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Judy Street on (202) 267-9895.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention FAA Desk Officer.
Federal Aviation Administration (FAA), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before November 7, 2002. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Judy Street on (202) 267-9895.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention FAA Desk Officer.
Federal Aviation Administration (FAA), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before November 7, 2002. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Judy Street on (202) 267-9895.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention FAA Desk Officer.
Federal Aviation Administration (FAA) DOT.
Monthly Notice of PFC Approvals and Disapprovals. In August 2002, there were no applications approved. Twelve approved amendments to previously approved applications are listed.
The FAA publishes a monthly notice, as appropriate, of PFC approvals and disapprovals under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 190) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR part 158). This notice is published pursuant to paragraph (d) of § 158.29.
This notice grants the applications by five motorcycle manufacturers for either a temporary exemption of two years from a requirement of S5.2.1 (Table 1) of Federal Motor Vehicle Safety Standard No. 123
The manufacturers who have applied for a temporary exemption are CPI Motor Co. of Ta-Li City, Taiwan (CPI), for the Motorrad JT 125 (Moskito); American Suzuki Motor Corporation, Brea, California, on behalf of Suzuki Motor Corporation of Japan, for the Suzuki AN650, and Malaguti USA, Miami, Florida, on behalf of Malaguti S.p.A. of Bologna, Italy, for the Ciak 150 cc and F-18 150 cc motor scooters. The manufacturers who have applied for an extension of an existing exemption are Aprilia, U.S.A. Inc., Woodstock, Ga. for the Aprilia Scarabeo 150 (NHTSA Temporary Exemption No. 99-9, expiring October 1, 2002 (see 64 FR 44264, 65 FR 1225, and 66 FR 59519)); and American Honda Motor Company, Inc., Torrance, California, for the Honda NSS250(NHTSA Temporary Exemption No. EX 2000-2, expiring November 1, 2002, 65 FR 69130).
Because the safety issues raised by petitions for renewal of exemptions are identical to those raised in the initial petitions by these manufacturers, and because these issues are identical to those raised by the manufacturers petitioning for an exemption for the first time, we have decided to address all the petitions in a single notice. Further, given the opportunity for public comment on these issues in the years 1998-2001 (which resulted only in comments in support of the petitions), we have concluded that a further opportunity to comment on the same issues is not likely to result in any substantive submissions, and that we may proceed to decisions on these petitions. See, e.g., most recently Aprilia and Honda (66 FR 59519) and Aprilia (65 FR 1225).
The problem is one that is common to the motorcycles covered by the applications. If a motorcycle is produced with rear wheel brakes, S5.2.1 of Standard No. 123 requires that the brakes be operable through the right foot control, although the left handlebar is permissible for motor-driven cycles (Item 11, Table 1). Motor-driven cycles are motorcycles with motors that produce 5 brake horsepower or less. The five manufacturers petitioned to use the left handlebar as the control for the rear brakes of certain of their motorcycles whose engines produce more than 5 brake horsepower. The frame of each of these motorcycles has not been designed to mount a right foot operated brake pedal (i.e, these scooter-type vehicles which provide a platform for the feet and operate only through hand controls). Applying considerable stress to this sensitive pressure point of the frame could cause failure due to fatigue unless proper design and testing procedures are performed.
Absent an exemption, the manufacturers will be unable to sell the motorcycle models named above because the vehicles would not fully comply with Standard No. 123.
As required by statute, the petitioners have argued that the overall level of safety of the motorcycles covered by their petitions equals or exceeds that of a non-exempted motor vehicle for the following reasons. All vehicles for which petitions have been submitted are equipped with an automatic transmission. As there is no foot-operated gear change, the operation and use of a motorcycle with an automatic transmission is similar to the operation and use of a bicycle, and the vehicles can be operated without requiring special training or practice.
CPI is manufacturing the Moskito 125 (JT125) under contract with Motorrad und Zweiradwerk GmbH of Germany, which has completed certification testing of the vehicle. CPI will affix a certification of compliance with the Federal motor vehicle safety standards as the manufacturer of the Moskito 125, and then ship the motorcycles directly to Motorrad of North America for sale in the United States.
According to CPI, the JT125 provides an equivalent overall level of safety to a complying vehicle because its operation is similar to that of a bicycle, and the use of a left-hand lever for the rear brake is highly intuitive and easy to use. The use of the left handlebar for the rear brake control on scooters is more natural and quicker for a scooter rider than the rider's foot searching for the correct position on a pedal to operate the brakes. In addition, “additional benefit is provided by the reduced probability of inadvertent wheel locking in an emergency braking situation, which comes from increased sensitivity to brake feedback with the hand lever.”
American Suzuki informed us that its AN650 “can easily meet the braking performance requirements in FMVSS 122,” and enclosed a test report in support. It also compared the performance of the AN650 with the somewhat lighter GSF600S motorcycle, which is equipped with rear brakes that
Malaguti submitted its models to Clark Engineering for braking performance tests, and enclosed a test report in support of its petition. It asserted that the Ciak 150 cc and F-18 150 cc meet the braking requirements of ECE 93/14 as well.
In its earlier petitions, Aprilia cited tests performed by Carter Engineering on a similar Aprilia scooter to support its statement that “a motor vehicle with a hand-operated rear wheel brake provides a greater overall level of safety than a nonexempt vehicle.” See materials in Docket No. NHTSA 98-4357. According to Aprilia, a rear wheel hand brake control allows riders to brake more quickly and securely, it takes a longer time for a rider to find and place his foot over the pedal and apply force than it does for a rider to reach and squeeze the hand lever, and there is a reduced probability of inadvertent wheel locking in an emergency braking situation. Aprilia provided copies of its own test reports on a similar exempted model, the Habana, dated March 1, 2001, and May 1, 2001, which have been placed in Docket No. NHTSA-01-10257. In its latest petition, it stated that it has received no written complaints relating to the brake operation of the Scarabeo 150s which it has imported and sold under NHTSA Temporary Exemption No. 99-9.
Aprilia also pointed out that European regulations allow motorcycle manufacturers the option of choosing rear brake application through either a right foot or left handlebar control, and that Australia permits the optional locations for motorcycles of any size with automatic transmissions.
Honda informed us that “the NSS250 can easily meet the braking performance requirements of both FMVSS 122 and ECE 78,” and, therefore, that “This braking system provides the NSS250 with an overall safety level exceeding * * * nonexempted vehicles.” Honda will also offer the NSS250 with optional ABS for the purpose of a marketability evaluation.
In support of its petition, Honda enclosed copies of a second effectiveness service brake system test conducted in accordance with S5.3 of Standard No. 122, demonstrating that the NSS250 easily stopped within the maximum distances specified at speeds of 30 and 65 mph, as well as a test showing compliance with ECE 78.
CPI argued that its scooter is intended for low speed urban use and that it expects that these vehicles will be used mostly in congested traffic conditions. The JT125 provides a more natural braking response because of its automatic transmission and platform configuration. The vehicle provides “enhanced safety, environmentally clean and fuel efficient, safe, convenient urban transportation. The emissions of the JT125's “very small engine” have been demonstrated to be lower than large motorcycles, an alternative means of transportation.
American Suzuki argued that the level of safety of the AN650 is at least equal to that of vehicles certified to meet Standard No. 123. In its opinion, scooters like the AN650 “are of interest to the public [as] evidenced by * * * the favorable public comment on [similar] exemption requests and the number of scooters sold under the granted exemptions.”
In Malaguti's opinion, its scooters provide a “much more natural braking response by the rider than non-exempted vehicles.” The exemption would also be in the public interest “because Malaguti is promoting environmentally clean and efficient urban transportation.”
Aprilia asserted in its initial requires for exemption that “the public interest would be served with the granting of the exemption because the Scarabeo 150 provides enhanced safety as well as environmentally friendly, fuel-efficient, convenient urban transportation.” According to Aprilia, its initial assertion is supported by feedback from initial customers. It has enclosed comments from Scarabeo 150 customers touting the speed and handling of the motorcycle, and a magazine article commenting that it is “the perfect vehicle for stop-and-go traffic.”
An exemption would be in the public interest because the Scarabeo 150 is intended for low-speed urban use, and “it is expected that it will be used predominantly in congested traffic areas.” Further, the design of the vehicle has been tested by long use around the world, and “neither consumer groups nor government authorities have raised safety concerns about this design.” For this reason, Aprilia argues that an exemption would also be consistent with the objectives of motor vehicle safety.
In support of its argument that an exemption would be in the public interest and consistent with the objectives of motor vehicle safety, Honda reiterated its certainty “that the level of safety of the NSS250 is equal to similar vehicles certified under FMVSS No. 123. * * *”
It is evident that, unless Standard No. 123 is amended to permit or require the left handlebar brake control on motorscooters with more than 5 hp, the petitioners will be unable to sell their motorcycles if they do not receive a temporary exemption from the requirement that the right foot pedal operate the brake control. It is also evident from the previous grants of similar petitions by Aprilia, Honda, and others, that we have repeatedly found that the motorcycles exempted from the brake control location requirement of Standard No. 123 have an overall level of safety that equals or exceeds that of nonexempted motorcycles.
CPI argued that an exemption would be in the public interest because it would make available a low-emission, fuel efficient, convenient means of urban transportation in congested traffic conditions. Thus, it appears to us that use of the JT125 would reduce both pollution and congestion on city streets. We note its remark, too, that “neither consumer groups nor governmental authorities have raised any safety concerns as a result of this design.”
American Suzuki's argument that an exemption would be in the public interest because of the comments in support of previous exemption requests for similar scooter-type vehicles is a valid one, absent any data indicating that the overall level of safety is not at least equal to that of complying vehicles.
Malaguti's arguments are similar to those of other petitioners regarding braking response and enhancing the environment and urban transportation.
Aprilia's argument that an exemption for the Habana 150 would be in the public interest because of its probable use in congested urban areas is equally applicable to the Scarabeo 150, as is its arguments that use of such vehicles worldwide has raised no vehicle safety issues related to location of brake controls. Honda reiterated its belief that overall the NSS250 is as safe as a conforming motorcycle. We note that its original request in 2000 for exemption from Standard No. 123 for this model was supported by approximately 40 commenters (See 66 FR 69130). This response to our request for comments indicates a great public interest in scooter-type vehicles and a belief of the
In consideration of the foregoing, we hereby find that the petitioners have met their burden of persuasion that to require compliance with Standard No. 123 would prevent these manufacturers from selling a motor vehicle with an overall level of safety at least equal to the overall safety level of nonexempt vehicles. We further find that a temporary exemption is in the public interest and consistent with the objectives of motor vehicle safety. Therefore:
1. CPI Motor Co. is hereby granted NHTSA Temporary Exemption No. EX02-1 from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123
2. Suzuki Motor Corporation is hereby granted NHTSA Temporary Exemption No. EX02-2 from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123
3. Malaguti S.p.A. is hereby granted NHTSA Temporary Exemption No. EX02-3 from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123
4. NHTSA Temporary Exemption No. 99-9, exempting Aprilia USA Inc. from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123
5. NHTSA Temporary Exemption No. EX2001-8, exempting American Honda Motor Co., Inc., from the requirements of item 11, column 2, table 1 of 49 CFR 571.123 Standard No. 123
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Advisory Committee on Cemeteries and Memorials will be held October 28-31, 2002, at the Department of Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC. On October 28, the meeting will be held in Room 930 beginning at 9 a.m. and concluding at 3:30 p.m. On October 29 and 30, the meeting will be held in Room 630, and at several cemetery sites, beginning at 8 a.m. and concluding at 5 p.m. On October 31, the meeting will be held in Room 930 beginning at 8 a.m. and concluding at noon. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the administration of national cemeteries, soldiers' lots and plots, and the selection of new national cemetery sites, the erection of appropriate memorials, and the adequacy of Federal burial benefits. The Committee will make recommendations to the Secretary regarding these activities.
On October 28, new appointees to the Committee will receive an orientation briefing on the VA, the National Cemetery Administration (NCA), the Federal Advisory Committee Act (FACA), and their roles and responsibilities as Committee members. On October 29, the Committee will receive updates on NCA's “National Shrine Commitment” as it relates to historic preservation issues. The Committee will travel to Baltimore and Loudon Park National Cemeteries to view monuments and structures at those two historic cemeteries. On October 30, the Committee will be briefed on new cemetery construction, the State Cemetery Grants Program, legislative initiatives, and other issues related to the administration and maintenance of national cemeteries. The Committee will also visit Arlington National Cemetery. On October 31, the Committee will conclude with discussions of any unfinished business, make program recommendations, and future meeting sites and agenda topics.
Any member of the public wishing to attend the meeting is requested to contact Ms. Paige Lowther, Designated Federal Officer, at (202) 273-5164. The Committee will accept written comments. Comments can be transmitted electronically to the Committee at
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 that a meeting of the President's Task Force to Improve Health Care Delivery for Our Nation's Veterans is scheduled for Wednesday, October 9, 2002, beginning at 9 a.m. and adjourning at 5 p.m. The meeting will be held in the Jefferson Ballroom of the Radisson Hotel Old Town, 901 North Fairfax Street, Alexandria, VA and is open to the general public.
The purpose of the President's Task Force to Improve Health Care for Our Nation's Veterans is to:
(a) Identify ways to improve benefits and services for Department of Veterans Affairs (VA) beneficiaries and Department of Defense (DoD) military retirees who are also eligible for benefits from VA, through better coordination of the activities of the two departments;
(b) Identify opportunities to remove barriers that impede VA and DoD coordination, including budgeting processes, timely billing, cost accounting, information technology, and reimbursement; and
(c) Identify opportunities through partnership between VA and DoD, to maximize the use of resources and infrastructure, including buildings, information technology and data sharing systems, procurement of supplies, equipment and services.
The morning and afternoon sessions will be a discussion of format and issues for the Final Report to the President.
Interested persons can provide written comments to Mr. Dan Amon, Communications Director, President's
By Direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Veterans' Advisory Committee on Rehabilitation will be held on November 13-14, 2002, from 9 a.m. until 4:30 p.m. on both days at the Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC. On November 13, the meeting will be held in Room 730 and on November 14, the meeting will be held in Room 930. Both meeting sessions will be open to the public.
The purpose of the Committee is to provide advice to the Secretary of Veterans Affairs on the rehabilitation needs of disabled veterans and the administration of VA's rehabilitation programs.
On the morning of November 13th, the meeting will begin with presentation of Certificates of Appointments to newly appointed Committee members. Then, the Committee will receive an update regarding the current status of the Vocational Rehabilitation and Employment program. In the afternoon, the Committee will receive a briefing regarding Traumatic Brain Injury services available through the VA Physical Medicine and Rehabilitation program.
On the morning of November 14th, General Counsel will provide the Committee with a briefing on the Ethics Guidelines for Special Government Employees. Then, the Committee will receive a briefing regarding the Compensated Work Therapy, Incentive Therapy and Transitional Residence programs. In the afternoon, the Committee will receive a briefing concerning Blind Rehabilitation Services available though the Veterans Health Administration. The meeting will conclude with a discussion of future meeting dates, agenda items and recommendations.
Any member of the public wishing to attend the meeting should contact Ms. Alison O. Rosen, Department of Veterans Affairs, Veterans Benefits Administration (28), 810 Vermont Avenue, NW., Washington, DC 20420, at (202) 273-7208.
By direction of the Secretary:
Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury.
Treasury decision; temporary rule.
ATF amends the alcohol labeling and advertising rules to cross-reference the United States Department of Agriculture's (USDA) National Organic Program (NOP) rules. Any alcohol beverage labeled or advertised with an organic claim must comply with both NOP rules administered by USDA and the applicable rules administered by ATF. Elsewhere in this separate part, ATF invites comments on this temporary rule. We will accept comments during the 60-day period following publication of the rule.
The effective date is October 21, 2002.
Richard Evanchec, Bureau of Alcohol, Tobacco and Firearms, Alcohol Labeling and Formulation Division, 650 Massachusetts Avenue, NW., Washington, DC 20226; telephone 202-927-8140; e-mail
The Federal Alcohol Administration Act (FAA Act) at 27 U.S.C. 205(e) requires that alcohol beverage labels provide the consumer with adequate information about a product's identity and prohibits the use of deceptive information on such labels. At 27 U.S.C. 205(f), the FAA Act prohibits deceptive advertising. The FAA Act also authorizes ATF to issue regulations to carry out the Act's provisions. Regulations in 27 CFR parts 4, 5, and 7 set forth the rules for labeling and advertising of wine, distilled spirits, and malt beverages, respectively. Regulations in 27 CFR part 13 set forth rules for approval, denial, and revocation of labels and for appeals of our decisions on such issues.
Under the Organic Foods Production Act of 1990 (OFPA), 7 U.S.C. 6501
AMS regulations apply to all domestic and imported products that make organic claims. However, in drafting their rules, the AMS used terms specific to non-alcohol food labels, such as “principal display panel,” “information panel,” and “ingredient list” to refer to positions on the label. On the NOP Web site (
The OFPA and implementing regulations provide civil and criminal penalties for improper use of organic claims. AMS has sole authority to administer and enforce the NOP rules. Those rules became effective on February 20, 2001, and all labels and representations, including advertisements, that make organic claims must comply with the rules by October 21, 2002.
Before the NOP regulations were published, we allowed importers and producers to claim their alcohol beverage products were made from organically grown raw materials if the applicant for label approval provided documentation of organic certification by a recognized certifying agency or State or foreign government. We enunciated our organic claims policy in our publication, Compliance Matters 95-2 (
After publication of the NOP regulations, we announced a new policy on organic claims in our Alcohol & Tobacco Newsletter of March 2001 (
Based upon the NOP-required compliance date of October 21, 2002, approval of any label that makes organic claims but does not comply with such rules will be revoked by operation of regulations as of October 21, 2002.
We have entered into a Memorandum of Understanding with AMS on a number of questions related to the agencies' responsibilities with respect to alcohol beverage labels and advertising that contain organic claims. ATF will refer any Certificate of Label Approval (COLA) or Certificate of Exemption from Label Approval application that makes an organic claim to AMS for a determination as to whether the label complies with NOP rules. If AMS advises us that the label complies with its rules, we will complete our customary review of the COLA or Exemption application and take appropriate action. If AMS advises us that the label does not comply with its rules, we will return the COLA or Exemption application to the applicant for correction, since the label would mislead consumers.
When ATF approves a label, we presume the contents of the bottle that uses the label will be as described on the label. If the contents do not conform to the description on the label, the product is mislabeled in violation of the FAA Act and must not be sold in interstate commerce under ATF-administered rules. This has always been true for any label claim, and we want to confirm this policy as it applies to organic claims on labels. For example, if we approve a label for a beer made from organically grown barley and the grower of the barley loses its organic certification, the brewer must not use the approved label on beer made from barley that was grown after the grower lost its certification. We will take action on such violations under the FAA Act and will refer the labels and pertinent information to AMS. Aside from whether a label or advertisement conforms with the NOP, ATF will continue to review labels under existing regulations to ensure that organic claims, as presented, are not likely to mislead or deceive consumers as to the identity of the products.
There are certain situations when ATF does not issue a COLA or a Certificate of Exemption from Label
ATF also has jurisdiction over advertising of alcohol beverages, but does not require pre-approval of advertising. If we discover any misleading use of organic claims in alcohol beverage advertising, we will treat these violations the same as any other violations involving misleading information in advertising. We will also refer our findings to the NOP for its further action.
ATF amends its regulations in parts 4, 5, 7, and 13 to recognize the NOP's authority to regulate any organic claims on labels of alcohol beverages. We add 7 CFR 205 to the list of related regulations in each part. We add a new section to parts 4, 5, and 7 to confirm that we will allow organic claims in labeling and advertising of alcohol beverages as long as they conform to the requirements of the NOP.
In part 13, we add a section to reflect our reliance on AMS for determinations concerning organic claims on labels and to direct persons who wish to appeal any AMS determinations that affect labels to the proper office of AMS. We also amend § 13.51 to clarify that labels may be revoked by operation of laws and regulations other than the FAA Act and its implementing regulations. This has been ATF's policy, and the amendment to the regulation is a clarification rather than a change. Finally, we amend § 13.61 to note that we will disclose applications for approval of labels that make organic claims to the appropriate office of the USDA.
Each prohibited practices section of parts 4, 5, and 7 includes a prohibition on referring to standards or tests in a way that is misleading (§§ 4.39(a)(4), 5.42(a)(4), and 7.29(a)(4)). There is also a prohibition on the use of seals (§§ 4.39(g), 5.42(b)(7), and 7.29(d)), if they are misleading to consumers. Curative and therapeutic claims are prohibited under §§ 4.39(h), 5.42(b)(8), and 7.29(e). In its consumer information brochure on the organic rule (
The IRC only gives ATF authority to require labels that show compliance with the alcohol tax and qualification rules in chapter 51 of the Code. In parts 19, 24, and 25, we interpret this to mean the label must show the tax class, quantity, and responsible bottler. Because organic claims do not affect the tax classification or status of the product, we will not change the IRC regulations. Organic claims relating to alcohol beverage products that are exempt from FAA Act requirements will be entirely under the jurisdiction of the NOP.
Any approved labels that make organic claims but do not comply with the NOP rules are revoked by operation of law and regulations, effective October 21, 2002. For products that were made from ingredients grown before October 21, 2002, bottlers and importers may submit labels to ATF for approval only until supplies of such products are exhausted. The NOP policy is articulated at
Because this document merely cross-references the NOP rules as they relate to alcohol beverage labeling and because the compliance date for those rules is October 21, 2002, we find it to be impracticable to issue this Treasury Decision with notice and public procedure under 5 U.S.C. 553(b) or subject to the effective date limitation in § 553(d).
Because no notice of proposed rulemaking is required for this temporary rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because no new requirement for collection(s) of information is contained in these regulations.
We have determined that this regulation is not a significant regulatory action as defined by Executive Order 12866. Therefore, a regulatory assessment is not required.
Marjorie D. Ruhf of the Regulations Division, Bureau of Alcohol, Tobacco and Firearms, drafted this document. However, other employees of ATF, the Treasury Department, and the Department of Agriculture's Agricultural Marketing Service participated in developing the document.
Advertising, Customs duties and inspection, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Trade practices, Wine.
Advertising, Customs duties and inspection, Imports, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Trade practices.
Advertising, Beer, Customs duties and inspection, Imports, Labeling, Reporting and recordkeeping requirements, Trade practices.
Administrative practice and procedure, Alcohol and alcoholic beverages, Labeling.
Title 27, Code of Federal Regulations, is amended as follows:
27 U.S.C. 205, unless otherwise noted.
The following regulations also relate to this part:
(a) Use of the term “organic” is optional and is treated as “additional information on labels” under § 4.38(f).
(b) Any use of the term “organic” on a wine label or in advertising of wine must comply with the United States Department of Agriculture's (USDA) National Organic Program rules (7 CFR part 205) as interpreted by the USDA.
(c) This section applies to labels and advertising that use the term “organic” on and after October 21, 2002.
26 U.S.C. 5301, 7805, 27 U.S.C. 205.
The following regulations also relate to this part:
(a) Use of the term “organic” is optional and is treated as “additional information on labels” under § 5.33(f).
(b) Any use of the term “organic” on a distilled spirits label or in advertising of distilled spirits must comply with the United States Department of Agriculture's (USDA) National Organic Program rules, 7 CFR part 205, as interpreted by the USDA.
(c) This section applies to labels and advertising that use the term “organic” on and after October 21, 2002.
27 U.S.C. 205.
The following regulations also relate to this part:
(a) Use of the term “organic” is optional and is treated as “additional information on labels” under § 7.28(e).
(b) Any use of the term “organic” on a malt beverage label or in advertising of malt beverages must comply with the United States Department of Agriculture's (USDA) National Organic Program rules (7 CFR part 205) as interpreted by the USDA.
(c) This section applies to labels and advertising that use the term “organic” on and after October 21, 2002.
27 U.S.C. 205(e) and 26 U.S.C. 5301 and 7805.
* * * The appeal process in this part does not apply to organic claims on alcohol beverage labels. See § 13.101.
The following regulations also relate to this part:
ATF will not individually notify all holders of certificates of label approval, certificates of exemption from label approval, or distinctive liquor bottle approvals that their approvals have been revoked if the revocation occurs by operation of either ATF-administered law or regulation or applicable law or regulation of other agencies. * * *
(a)
(1)
(2)
To appeal a determination that an organic claim on a label does not comply with the National Organic Program rules in 7 CFR part 205, contact the Program Manager, National Organic Program (NOP), Agricultural Marketing Service, United States Department of Agriculture. See the NOP appeal process in 7 CFR 205.680.
Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury.
Notice of proposed rulemaking; request for comments.
ATF is proposing to finalize temporary regulations published elsewhere in this seperate part that amend the alcohol labeling and advertising rules to cross-reference the United States Department of Agriculture's (USDA) National Organic Program (NOP) rules. Any alcohol beverage labeled or advertised with an organic claim must comply with both NOP rules administered by the USDA and the applicable rules administered by ATF. In this notice of proposed rulemaking, we invite comments on the temporary rule.
Written comments must be received by December 9, 2002.
You may send comments to any of the following addresses—
• Chief, Regulations Division, Bureau of Alcohol, Tobacco and Firearms, PO Box 50221, Washington, DC 20091-0221 (Attn: Notice No. 954);
• 202-927-8525 (Facsimile);
•
•
See the “Public Participation” section of this notice for specific requirements, as well as information on how to request a public hearing.
Richard Evanchec, Alcohol Labeling and Formulation Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Avenue, NW., Washington, DC 20226; telephone 202-927-8140; e-mail
Please see the T.D. ATF-483 published in the “Rules and Regulations” section of today's issue of the
We request comments from anyone interested. We specifically request comments on the clarity of the temporary rule and how we could make it easier to understand. We will consider your comments if we receive them on or before the closing date. We will consider comments received after the closing date if we can.
You may view comments by appointment at the ATF Reading Room, Public and Governmental Affairs, room 6480, 650 Massachusetts Avenue, NW., Washington, DC 20226. You may also obtain copies at 20 cents per page. If you want to view or request copies of comments, telephone the ATF Librarian at 202-927-7890.
For your convenience, we will post comments received in response to this notice on the ATF Web site. All comments posted on our Web site will show the name of the commenter but not street addresses, telephone numbers, or e-mail addresses. We may also omit voluminous attachments or material that we consider unsuitable for posting. In all cases, the full comment will be available in the ATF Reading Room. To access online copies of the comments on this temporary rule, visit
We do not recognize any submitted material as confidential. We will disclose all information on comments and commenters. Do not enclose in your comments any material you consider confidential or inappropriate for disclosure.
You may submit comments in any of five ways.
•
•
(1) Be legible;
(2) Reference this Notice number;
(3) Be on 8.5-by 11-inch paper;
(4) Contain a legible, written signature; and
(5) Be five or less pages long. This limitation assures electronic access to our equipment. We will not accept faxed comments that exceed five pages.
•
(1) Contain your name, mailing address, and e-mail address; and
(2) Reference this Notice number on the subject line.
•
We issued the associated temporary rule without prior notice or public procedure under 5 U.S.C. 553(b) and without it being subject to the effective date limitation in section 553(d) for two reasons. First, the temporary rule merely cross-references and incorporates the NOP rules as they relate to alcohol beverage labeling. The mandatory compliance date for the NOP rules is October 21, 2002. Second, we are not imposing new requirements. By this notice, we are allowing interested persons an opportunity to comment.
A regulatory flexibility analysis is not required. Implementation of this proposed rule would not significantly impact a substantial number of small entities.
We do not endorse products when we approve labels that make organic claims. These regulations merely allow bottlers to more accurately describe their products to consumers and help consumers identify the alcohol beverages they purchase. Thus, any benefit derived from the use of an organic claim results from a proprietors' own efforts and from consumer acceptance of products that comply with the rules of the NOP.
We propose no requirement to collect information. Therefore, the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, and its implementing regulations, 5 CFR part 1320, do not apply.
We have determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, a regulatory assessment is not required.
Marjorie Ruhf of the Regulations Division, Bureau of Alcohol, Tobacco and Firearms, drafted this document. Employees of the Treasury Department and USDA, as well as other ATF employees, participated in its development.