Agricultural Marketing Service
Farm Service Agency
Forest Service
Rural Business-Cooperative Servic
Rural Housing Service
Rural Utilities Service
Census Bureau
Economic Development Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Federal Energy Regulatory Commission
Presidential Documents
Food and Drug Administration
Health Resources and Services Administration
Fish and Wildlife Service
Land Management Bureau
Minerals Management Service
Reclamation Bureau
Employment and Training Administration
Employment Standards Administration
Food and Drug Administration
Health Resources and Services Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Comptroller of the Currency
Customs Service
Thrift Supervision Office
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.
Farm Service Agency, Agriculture.
Final Rule.
This rule takes two actions to reflect new law enacted in the Farm Security and Rural Investment Act of 2002 (2002 Act). First, rules for the now terminated (as to 2002 and subsequent crops) marketing quota program for peanuts are removed. Second, the “reserve stock level” for flue-cured tobacco (used to set quotas) is changed. These two actions simply implement new law and in that sense are ministerial only.
October 9, 2002.
Daniel J. Stevens, USDA, Farm Service Agency, STOP 0514, 1400 Independence Avenue, SW., Washington, DC 20250-0514, telephone 202-720-5291. Electronic mail:
This final rule has been determined to be not significant for purposes of Executive Order 12866 and has not been reviewed by OMB.
The title and number of the Federal Assistance Program, as found in the Catalog of Federal Domestic Assistance, to which this rule applies are: Commodity Loans and Loan Deficiency Payments—10.051.
This final rule has been reviewed in accordance with Executive Order 12988. The provisions of this final rule do not preempt State laws, are not retroactive, and do not involve administrative appeals.
Section 1601(c) of the 2002 Act provides that the promulgation of regulations and the administration of Title I of the 2002 Act shall be done without regard to chapter 5 of title 44 of the United States Code, the Paperwork Reduction Act. Accordingly, these regulations and the forms and other information collection activities need to administer the program authorized by these regulations are not subject to review by the Office of Management and Budget under the Paperwork Reduction Act. Further, this rule does not contain new information collections or revise those collection currently approved by OMB.
The Regulatory Flexibility Act is not applicable to this final rule because FSA is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking for the subject of this rule.
This rule contains no Federal mandates for State, local, and tribal governments or the private sector as defined under the regulatory provisions of Title II of the Unfunded Mandate Reform Act (UMRA). Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
Sections 1309 and 1310 of the 2002 Act terminated, beginning with the 2002 crop, the long standing marketing quota and price support program for peanuts. New and differing peanut programs were enacted in the same legislation. This rule removes, because of the new law, the marketing quota regulations in Chapter VII of Title 7 of the Code of Federal Regulations (CFR), specifically those at 7 CFR part 729. Removal of the price support regulations contained in Chapter XIV of Title 7 of the CFR will be covered by separate notice as will rules for the new program enacted in the 2002 Act. The revised text of 7 CFR part 729 will not affect the 2001 and preceding crops. Those crops remain subject to the previous rules.
Second, in the law that preceded the 2002 Act, the reserve stock level for flue cured tobacco was set to be the greater of 100,000 pounds (farm sales weight) or 15 percent of the national quota for that tobacco for the marketing year immediately preceding the marketing year for which the determination is being made. Section 1610 of the 2002 Act changed 100,000 pounds to 60,000 pounds and 15 percent to 10 percent. This rule implements that change too. Reserve stock levels serve a function in the calculation of national tobacco quotas.
Agricultural commodities, Marketing quotas, Price support programs, Tobacco
Agricultural commodities, Marketing quotas, Price support programs
7 U.S.C. 1301
(a) * * *
(3) Reserve stock level adjustment. The total calculated by adding the sums of paragraphs (a)(1) and (a)(2) of this section may be adjusted by the Director as necessary to maintain inventories of producer loan associations for burley and flue-cured tobacco at the reserve stock level. For burley, the reserve stock level is the larger of 50 million pounds farm sales weight or 15 percent of the previous year's national market quota. For flue-cured, the reserve stock level is the larger of 60 million pounds or 10 percent of the previous year's quota. The Director shall consider supply conditions when making any adjustment and a downward adjustment for burley tobacco may not exceed either 35 million pounds farm sales weight or 50 percent of the amount by which loan inventories exceed the reserve stock
3. 7 CFR Part 729 is revised to read as follows:
7 U.S.C. 7271; 15 U.S.C. 714b-c; 7 U.S.C. 7959.
Sections 1309 and 1310 of the Farm Security Rural Investment Act of 2002 terminated, beginning with the 2002 crop, the marketing quota and price support program for peanuts. However, 7 CFR part 729, revised as of January 1, 2002 continues to apply to the 1996 through 2001 crops of peanuts.
Nuclear Regulatory Commission.
Final rule: correction.
This document corrects a final rule appearing in the
October 24, 2002.
Anthony Tse, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6233; e-mail
In rule FR Doc. 02-9663 published April 24, 2002, (67 FR 20250) make the following corrections:
1. On page 20253, third column, second paragraph, tenth line, the word “Specialities” should read “Specialties.”
2. On page 20260, first column, second complete paragraph, tenth line, the word “Specialities” should read “Specialties.”
3. On page 20342, second column, 14th line, “2120 L Street NW. (Lower Level), Washington, DC” should read “One White Flint North, 11555 Rockville Pike, Room O-1F21, Rockville, MD 20852.”
4. On page 20350, first column, 25th line, insert the word “contains” after the word “INFORMATION.”
5. In § 20.1002, 19th line, the comma after the word “released” should be deleted.
6. In § 20.1003, Occupational dose, 15th line, the comma after the word “released” should be deleted.
7. In § 20.1003, Public dose, 12th line, the comma after the word “released” should be deleted.
8. In § 20.1301(a)(1), tenth line, the comma after the word “released” should be deleted.
9. In § 32.72, last line, after “35.55(b)”, insert the words “or, prior to October 25, 2004, 10 CFR 35.980(b).”
10. In § 35.6(c), fifth line, the word “license” should read “licensee.”
11. In § 35.12(c)(1)(i), second line, the word “Licens” should read “License.”
12. In § 35.13(b)(1), fifth line, “35.910, 35.920, 35.930, 35.932, 35.934, 35.940, 35.941, 35.950, or 35.960” should read “35.910(a), 35.920(a), 35.930(a), 35.940(a), 35.950(a), or 35.960(a)”.
13. In § 35.13(b)(2), fourth line, “35.980” should read “35.980(a).”
14. In § 35.13(b)(3), third line, “35.961” should read “35.961(a) or (b).”
15. In § 35.40(a), fourth line, the word “Megabequerels” should read “Megabecquerels.”
16. In § 35.51(b)(1), eighth line, the words “an individual who meets the requirements for” should be deleted.
For the Nuclear Regulatory Commission.
Office of the Comptroller of the Currency (OCC), Treasury.
Final rule; technical correction.
This final rule makes a correction to the final rule that the OCC published in the
This final rule is effective on October 9, 2002.
Michele Meyer, Counsel, Legislative and Regulatory Activities Division, 202-874-5090.
On November 16, 2001, the OCC published a final rule in the
However, the September 11, 2002 final rule also restored erroneously 12 CFR 8.2(a)(7), which had been removed in a prior rulemaking. 66 FR 29890 (June 1, 2001). Today's final rule again removes that provision from the regulation.
This final rule takes effect immediately. The OCC has concluded that the notice and comment procedures prescribed by the Administrative
National banks, Reporting and recordkeeping requirements.
12 U.S.C. 93a, 481, 482, 1867, 3102, and 3108; 15 U.S.C. 78c and 78l; and 26 D.C. Code 102.
(a) * * *
(1) Every national bank falls into one of the ten asset-size brackets denoted by Columns A and B. A bank's semiannual assessment is composed of two parts. The first part is the calculation of a base amount of the assessment, which is computed on the assets of the bank up to the lower endpoint (Column A) of the bracket in which it falls. This base amount of the assessment is calculated by the OCC in Column C.
(2) The second part is the calculation by the bank of assessments due on the remaining assets of the bank in excess of Column E. The excess is assessed at the marginal rate shown in Column D.
(3) The total semiannual assessment is the amount in Column C, plus the amount of the bank's assets in excess of Column E times the marginal rate in Column D: Assessments = C+[(Assets − E) × D].
(4) Each year, the OCC may index the marginal rates in Column D to adjust for the percent change in the level of prices, as measured by changes in the Gross Domestic Product Implicit Price Deflator (GDPIPD) for each June-to-June period. The OCC may at its discretion adjust marginal rates by amounts less than the percentage change in the GDPIPD. The OCC will also adjust the amounts in Column C to reflect any change made to the marginal rate.
(5) The specific marginal rates and complete assessment schedule will be published in the “Notice of Comptroller of the Currency Fees”, provided for at § 8.8 of this part. Each semiannual assessment is based upon the total assets shown in the bank's most recent “Consolidated Report of Condition (Including Domestic and Foreign Subsidiaries)” (Call Report) preceding the payment date. The assessment shall be computed in the manner and on the form provided by the Comptroller of the Currency. Each bank subject to the jurisdiction of the Comptroller of the Currency on the date of the second or fourth quarterly Call Report required by the Office under 12 U.S.C. 161 is subject to the full assessment for the next six-month period.
(6)(i) Notwithstanding any other provision of this part, the OCC may reduce the semiannual assessment for each non-lead bank by a percentage that it will specify in the Notice of Comptroller of the Currency Fees described in § 8.8.
(ii) For purposes of this paragraph (a)(6):
(A)
(B)
(C)
Commodity Futures Trading Commission.
Final rules.
The Commodity Futures Trading Commission (Commission or CFTC) is adopting a number of technical amendments to its rules implementing the Commodity Futures Modernization Act of 2000 with respect to trading facilities and clearing organizations. The rules add new categories of exchange rules or rule amendments that need not be approved by or self-certified to the Commission; amend the definitions of “rule” and “dormant contract;” add new definitions of “dormant contract market,” “dormant derivatives transaction execution facility,” and “dormant derivatives clearing organization”; and add a procedure for listing or relisting products for trading on a registered entity that has become dormant.
November 8, 2002.
Nancy E. Yanofsky, Assistant Chief Counsel, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5260. e-mail:
The Commission, on August 10, 2001, promulgated rules implementing the provisions of the Commodity Futures Modernization Act of 2000 (CFMA) relating to trading facilities.
The CFMA profoundly altered federal regulation of commodity futures and option markets. The new statutory framework established two categories of markets subject to Commission regulatory oversight, designated contract markets (contract markets) and registered derivatives transaction execution facilities (DTFs), and two categories of exempt markets, exempt boards of trade and, under section 2(h)(3) of the Commodity Exchange Act (Act), exempt commercial markets. The Commission's rules relating to trading facilities established administrative procedures necessary to implement the CFMA, interpreted certain of the CFMA's provisions and provided guidance on compliance with various of its requirements. In addition, the Commission, under its exemptive authority, in a limited number of instances, provided relief from, or
On April 26, 2002, the Commission proposed a limited number of amendments responding to initial issues that had arisen in administering its implementing rules, or which are technical in nature. 67 FR 20702. The Commission received three comment letters, all from contract markets. The commenters generally supported the proposed rules, but expressed concern about the intended scope of the proposed amendments relating to self-certification of exchange fees. The Commission agrees with these comments, and is amending rule 40.6(c) to better describe those categories of exchange fees that will be subject to the self-certification requirement and those that will not. In all other respects, the Commission is adopting the rules as proposed.
The Commission has long required boards of trade, before relisting a dormant contract for trading, to demonstrate that the contract continues to meet the Act's requirements. See 17 CFR 5.2. This requirement was based upon the premise that contracts that have been dormant for a significant period of time may not have been updated to reflect intervening changes in cash-market practices, and therefore may no longer meet applicable statutory and regulatory requirements. Accordingly, the relisting of a dormant contract was treated in some respects similarly to the designation of a new contract.
Part 40 of the Commission's rules implementing the CFMA retains the concept that the Act's requirements for listing a new product for trading should also be applicable when relisting a dormant contract for trading. Specifically, Commission rule 40.2 requires that, before either listing a contract or relisting a dormant contract for trading, registered entities certify that the product complies with the Act. The Commission proposed amending its part 40 requirements relating to dormant contracts in two ways.
First, the Commission proposed to revise the exemptive period in the definition of “dormant contract” in rule 40.1 from the time following “initial listing” to the time following initial exchange certification or Commission approval. The Commission originally used “initial listing” to mark the beginning of the exemptive period based upon its belief that registered entities routinely would certify products to the Commission shortly before trading was imminent as permitted by rule 40.2. However, many exchanges have continued their prior practice of fulfilling regulatory requirements well in advance of a product's anticipated listing date. In addition, some exchanges have certified to the Commission, but have never listed for trading, a number of new products. Accordingly, the Commission proposed that the exemptive period under the dormant contract definition begin running from the time of certification or Commission approval. Second, in light of the far greater rapidity with which markets innovate and change today compared to when the dormant contract rule was first promulgated and the lessened burden of a simple self-certification compared to the previous requirement that dormant contracts be approved by the Commission prior to relisting, and for consistency with the operation of other rules, the Commission proposed to amend rule 40.1 to reduce the grace period during which a new contract is exempt from being defined as dormant from 60 to 36 complete calendar months.
The Commission also proposed to amend rule 40.2 so that it would apply in instances where the registered entity itself has become dormant. Prior to enactment of the CFMA, the term “designated contract market” denoted the Commission-approved products traded on a board of trade.
The Commission is also adopting, as proposed, two technical amendments related to continuing goodstanding designation or registration status. The first makes clear that the notification procedure available to contract markets to operate as a DTF applies only to active contract markets. Accordingly, before using this notification procedure, dormant contract markets must reinstate their active contract market status. Of course, they could also become a registered DTF by application. The second provides that, upon a change of ownership of a contract market or DTF, the new owners must certify that the facility continues to meet the respective designation or registration requirement.
No comments were received concerning these proposed amendments on dormant markets and products and the Commission is adopting the rules as proposed.
Contract markets or DTFs may request that the Commission review and approve new products and new rules or rule amendments. The Commission proposed amending rules 40.3 and 40.5 to include a provision similar to that for applications for contract market designation and DTF registration, that the applicant or submitting entity identify with particularity information in the submission that will be subject to a request for confidential treatment and support that request for confidential treatment with reasonable justification.
No comments were received concerning these proposed amendments on product approval procedures and the Commission is adopting the rules as proposed.
The terms and conditions of products eligible for trading by self-certification must be made publicly available by the contract market (Core Principle 7), or the DTF (Core Principle 4), and will be available from the Commission, at the time that the exchange legally could commence trading—the beginning of the business day following certification to the Commission.
The Commission also proposed to amend rules 40.1, 40.4 and 40.6 explicitly to address the procedures applicable to the imposition or amendment of exchange fees. The Commission's proposed rules provided that fees related to delivery of an enumerated agricultural commodity would be subject to the prior-approval requirements of the Act, and that all other fees would be subject only to the certification requirement. The Commission's proposed rules further provided that fees or fee changes of any type of less than $1.00 would be exempt from the certification requirement (or the prior-approval requirement, if applicable) as
The three contract markets that commented expressed concern that the Commission's proposed rule could be read to require the exchanges to certify all fees and fee changes of $1.00 or more, including fees established by an independent third party and fees that are administrative in nature. The Commission did not intend this result and accordingly is revising rule 40.6 to clarify the treatment of rules relating to fees. Under the final rules, certification will still be required for fees or fee changes that are related to delivery, trading, clearing and dispute resolution and that are $1.00 or more.
The Commission proposed to amend the definition of “rule” in part 40.1
Section 15 of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. Section 15 does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, section 15 simply requires the Commission to “consider the costs and benefits” of its
The Commission's proposal contained an analysis of its consideration of these costs and benefits and solicited public comment thereon. 67 FR 20704. The Commission specifically invited commenters to submit any data that they may have quantifying the costs and benefits of the proposed rules.
After considering the costs and benefits of these rules, the Commission had decided to adopt them as discussed above.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
In the proposed rules, the Commission solicited comment on whether the rules as proposed would have a significant economic impact on a substantial number of small entities. The Commission received no comments in response to this request. The Commission hereby determines that the rules, as adopted herein, will not have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the proposed amendments will not have a significant economic impact on a substantial number of small entities.
This rulemaking contains information-collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Commission submitted a copy of this section to the Office of Management and Budget (OMB) for its review. No comments were received in response to the Commission's invitation in the notice of proposed rulemaking to comment on any potential paperwork burden associated with these rules.
Commodity futures, Commodity Futures Trading Commission.
Commodity futures, Commodity Futures Trading Commission.
Commodity futures, Consumer protection.
Commodity futures, Contract markets, Designation application, Reporting and recordkeeping requirements.
7 U.S.C. 2, 5, 6, 6c, 6(c), 7a and 12a, as amended by Appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
2. Section 37.2 is revised to read as follows:
Contracts, agreements or transactions traded on a derivatives transaction execution facility registered as such with the Commission under section 5a of the Act, the facility and the facility's operator are exempt from all Commission regulations for such activity, except for the requirements of this part 37 and §§ 1.3, 1.31, 1.59(d), 1.63(c), 15.05, 33.10, part 40, part 41 and part 190 of this chapter, and as applicable to the market, parts 15 through 21 of this chapter, which are applicable to a registered derivatives transaction execution facility as though they were set forth in this section and included specific reference to derivatives transaction execution facilities.
(a)
(i) Comply with the core principles for operation under section 5a(d) of the Act and the provisions of this part 37; and
(ii) Notify the Commission of its intent to so operate by filing with the Secretary of the Commission at its Washington, DC, headquarters a copy of the facility's rules (which may be trading protocols) or a list of the designated contract market's rules that apply to operation of the derivatives transaction execution facility, and a certification by the contract market that it meets:
(A) The requirements for trading of section 5a(b) of the Act; and
(B) The criteria for registration under section 5a(c) of the Act.
(2) Before using the notification procedure of paragraph (a) of this section for registration as a derivatives transaction execution facility, a dormant contract market as defined in § 40.1 of this chapter must reinstate its designation under § 38.3(a)(2) of this chapter.
(b)
(i) The application demonstrates that the applicant satisfies the requirements for trading and the criteria for registration of sections 5a(b) and 5a(c) of the Act, respectively;
(ii) The submission is labeled “Application for DTF Registration”;
(iii) The submission includes:
(A) The derivatives transaction execution facility's rules, which may be trading protocols;
(B) Any agreements entered into or to be entered into between or among the facility, its operator or its participants, technical manuals and other guides or instructions for users of such facility, descriptions of any system test procedures, tests conducted or test results, and descriptions of the trading mechanism or algorithm used or to be used by such facility, to the extent such documentation was otherwise prepared; and
(C) To the extent that compliance with the requirements for trading or the criteria for recognition is not self-evident, a brief explanation of how the rules or trading protocols satisfy each of the conditions for registration;
(iv) The applicant does not amend or supplement the application for recognition, except as requested by the Commission or for correction of typographical errors, renumbering or other nonsubstantive revisions, during that period;
(v) The applicant identifies with particularity information in the application that will be subject to a request for confidential treatment and supports that request for confidential treatment with reasonable justification; and
(vi) The applicant has not instructed the Commission in writing at the time of submission of the application or during the review period to review the application pursuant to the time provisions of and procedures under section 6 of the Act.
(2)
(f)
(a)
(b)
(2)
(i) At least thirty days prior to commencing or recommencing operations, the applicant for registration or for reinstatement of registration must file (during the business hours defined in § 40.1 of this chapter) with the Secretary of the Commission at its Washington, DC, headquarters, either separately or with the application required by § 37.5, a submission that includes:
(iii) If it appears that the applicant has failed to make the requisite showing, the Commission will so notify the applicant at the end of that period. Upon commencement or recommencement of operations by the derivatives transaction execution facility, such a notice may be considered by the Commission in a determination to issue a notice of violation of core principles under section 5c(d) of the Act.
(c)
(2)
7 U.S.C. 2, 5, 6, 6c, 7 and 12a, as amended by Appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
Agreements, contracts, or transactions traded on a designated contract market under section 6 of the Act, the contract market and the contract market's operator are exempt from all Commission regulations for such activity, except for the requirements of this part 38 and §§ 1.3, 1.12(e), 1.31, 1.37(c)-(d), 1.38, 1.52, 1.59(d), 1.63(c), 1.67, 33.10, part 9, parts 15 through 21,
(a)(1)
(i) The application demonstrates that the applicant satisfies the criteria for designation of section 5(b) of the Act, the core principles for operation under section 5(d) of the Act and the provisions of this part 38;
(ii) The application is labeled as being submitted pursuant to this part 38;
(iii) The application includes:
(A) A copy of the applicant's rules and any technical manuals, other guides or instructions for users of, or participants in, the market, including minimum financial standards for members or market participants;
(B) A description of the trading system, algorithm, security and access limitation procedures with a timeline for an order from input through settlement, and a copy of any system test procedures, tests conducted, test results and the nature of contingency or disaster recovery plans;
(C) A copy of any documents pertaining to the applicant's legal status and governance structure, including governance fitness information;
(D) A copy of any agreements or contracts entered into or to be entered into by the applicant, including partnership or limited liability company, third-party regulatory service, member or user agreements, that enable or empower the applicant to comply with a designation criterion or core principal; and
(E) To the extent that any of the items in § 38.3(a)(1)(iii)(A)-(D) raise issues that are novel, or for which compliance with a condition for designation is not self-evident, a brief explanation of how that item and the application satisfies the conditions for designation;
(iv) The applicant does not amend or supplement the designation application, except as requested by the Commission or for correction of typographical errors, renumbering or other nonsubstantive revisions, during that period;
(v) The applicant identifies with particularity information in the application that will be subject to a request for confidential treatment and supports that request for confidential treatment with reasonable justification; and
(vi) The applicant has not instructed the Commission in writing at the time of submission of the application or during the review period to review the application pursuant to procedures under section 6 of the Act.
(2)
(a) Request for Commission approval of rules and products. (1) * * *
(2) Notwithstanding the forty-five day review period for voluntary approval under §§ 40.3(b) and 40.5(b) of this chapter, the operating rules and the terms and conditions of products submitted for voluntary Commission approval under § 40.3 or § 40.5 of this chapter that have been submitted at the same time as an application for contract market designation or an application under § 38.3(a)(2) to reinstate the designation of a dormant contract market as defined in § 40.1 of this chapter, or while one of the foregoing is pending, will be deemed approved by the Commission no earlier than the facility is deemed to be designated or reinstated.
(c) Upon a change of ownership of an existing designated contract market, the new owner shall file with the Secretary of the Commission at its Washington, DC, headquarters, a certification that the designated contract market meets all of the requirements of sections 5(b) and 5(d) of the Act and the provisions of this part 38.
7 U.S.C. 7b as amended by Appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
(c)
7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a, 8 and 12a, as amended by appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
(6) Delivery standards and procedures, including fees related to delivery or the delivery process, alternatives to delivery and applicable penalties or sanctions for failure to perform;
(a) * * *
(4) The submission identifies with particularity information in the submission, except for the product's terms and conditions which are made publicly available at the time of submission, that will be subject to a request for confidential treatment and supports that request for confidential treatment with reasonable justification; and
(5) The submission includes the fee required under appendix B to this part.
(b) * * *
(5) Changes required to comply with a binding order of a court of competent jurisdiction, or of a rule, regulation or order of the Commission or of another Federal regulatory authority;
(6) Corrections of typographical errors, renumbering, periodic routine updates to identifying information about approved entities and other such nonsubstantive revisions of a product's terms and conditions that have no effect on the economic characteristics of the product;
(7) Fees or fee changes of less than $1.00; and
(8) Any other rule, the text of which has been submitted to the Secretary of the Commission at least ten days prior to its implementation at its Washington, DC, headquarters and that has been labeled “Non-material Agricultural Rule Change,” and with respect to which the Commission has not notified the contract market during that period that the rule appears to require or does require prior approval under this section.
(a) * * *
(1) * * *
(v) Note and briefly describe any substantive opposing views expressed with respect to the proposed rule that were not incorporated into the proposed rule prior to its submission to the Commission;
(vi) Identify any Commission regulation that the Commission may need to amend, or sections of the Act or Commission regulations that the Commission may need to interpret in order to approve the proposed rule. To the extent that such an amendment or interpretation is necessary to accommodate a proposed rule, the submission should include a reasoned analysis supporting the amendment to the Commission's rule or interpretation; and
(vii) Identify with particularity information in the submission (except for a product's terms and conditions, which are made publicly available at the time of submission) that will be subject to a request for confidential treatment and support that request for confidential treatment with reasonable justification.
(c) * * *
(2) * * *
(iii)
(iv)
(v)
(3) * * *
(ii) * * *
(B)
(C)
(D)
(E)
(b) * * *
(1) Relate to, but do not substantially change, the quantity, quality, or other delivery specifications, procedures, or obligations for delivery, cash settlement, or exercise under an agreement, contract or transaction approved for trading by the Commission; daily settlement prices; clearing position limits; requirements or procedures for governance of a registered entity; procedures for transfer trades; trading hours; minimum price fluctuations; and maximum price limit and trading suspension provisions;
Any information required to be made publicly available by a registered entity under sections 5(d)(7), 5a(d)(4) and 5b(c)(2)(L) of the Act, respectively, will be treated as public information by the Commission at the time an order of designation or registration is issued by the Commission, a registered entity is deemed to be designated or registered, a rule or rule amendment of the registered entity is approved or deemed to be approved by the Commission or can first be made effective the day following its certification by the registered entity.
(5) * * *
(ii) The total capitalization, number of stocks (including the number of unaffiliated issuers if different from the number of stocks), and weighting of the stocks by capitalization and, if applicable, by price in the index as well as the combined weighting of the five highest-weighted stocks in the index;
(iii) Procedures and criteria for selection of individual securities for inclusion in, or removal from, the index, how often the index is regularly reviewed, and any procedures for changes in the index between regularly scheduled reviews;
(iv) Method of calculation of the cash-settlement price and the timing of its public release;
(v) Average daily volume of trading by calendar month, measured by share turnover and dollar value, in each of the underlying securities for a six-month period of time and, separately, the dollar value of the average daily trading volume of the securities comprising the lowest weighted 25% of the index for the past six calendar months, calculated pursuant to Sec. 41.11;
(vi) If applicable, average daily futures trading volume; and
(vii) A statement that the index is not a narrow-based security index as defined in section 1a(25) of the Act.
U.S. Customs Service, Department of the Treasury.
Final rule.
This document adopts as a final rule, with minor revisions, the interim rule amending the Customs Regulations that was published in the
Final rule effective on October 9, 2002. This final rule is applicable to products that are entered or withdrawn from warehouse for consumption on or after October 4, 2000.
Richard Wallio, Office of Field Operations, (202-927-9704).
The Caribbean Basin Economic Recovery Act (19 U.S.C. 2701-2707) (CBERA) establishes an economic recovery program for nations of the Caribbean and Central America. Under
A beneficiary country under the CBI refers to any country listed in 19 U.S.C. 2702(b) with respect to which there is in effect a proclamation by the President designating the country as a beneficiary country for purposes of the CBI (19 U.S.C. 2702(a)(1)(A)). A rule of origin specifies under what conditions an article will be considered to be a product of a beneficiary country—in brief, the article must be wholly the growth, product or manufacture of a beneficiary country, or must be a new or different article of commerce that has been grown, produced, or manufactured in the beneficiary country (19 U.S.C. 2703(a)).
Sections 10.191 through 10.198b of the Customs Regulations (19 CFR 10.191-10.198b) currently implement the duty-free aspects of the CBI.
In pertinent part, in order to be entitled to duty-free treatment under the CBI, an article otherwise eligible for such treatment must be imported directly from a beneficiary country into the customs territory of the United States (19 U.S.C. 2703(a)(1)(A); 19 CFR 10.193).
Before passage of the United States-Caribbean Basin Trade Partnership Act (Title II of Pub. L. 106-200, 114 Stat. 275, enacted on May 18, 2000) (CBTPA), in the case of rum produced in a beneficiary country and then imported into Canada for processing into a rum beverage, the beverage would not have been eligible for duty-free treatment under the CBI because it was not imported directly from a beneficiary country into the United States. At the same time, the beverage would also have been ineligible for duty-free treatment under the North American Free Trade Agreement Implementation Act (19 U.S.C. 3301
Section 212 of the CBTPA added a new paragraph (a)(6) to section 213(a) of the CBERA (19 U.S.C. 2703(a)(6)), in order to provide for duty-free entry under specified conditions for certain beverages that are produced in the territory of Canada from rum that is the growth, product, or manufacture either of a beneficiary country under the CBI or of the U.S. Virgin Islands.
Specifically, under 19 U.S.C. 2703(a)(6), a beverage that is imported directly into the customs territory of the United States from the territory of Canada and that is classifiable under subheading 2208.90 or 2208.40, Harmonized Tariff Schedule of the United States (HTSUS), is entitled to duty-free entry under the CBERA if such beverage is produced in the territory of Canada from rum, provided that the rum: (1) Is the growth, product, or manufacture of a beneficiary country or of the U.S. Virgin Islands; (2) is imported directly into the territory of Canada from a beneficiary country or from the U.S. Virgin Islands; and (3) accounts for at least 90 percent by volume of the alcoholic content of the beverage.
Accordingly, by a document published in the
In addition, the Interim (a)(1)(A) List set forth as an Appendix to part 163, Customs Regulations (19 CFR part 163, Appendix), that lists the records required for the entry of merchandise, was revised to add a reference to the requirement in § 10.199 that an importer possess those documents that are necessary for the duty-free entry of the beverages, including the declaration of the Canadian processor and related supporting information. Also, part 178, Customs Regulations (19 CFR part 178), containing the list of approved information collections, was revised to include an appropriate reference to the documentary requirements in § 10.199.
One comment was received in response to the interim rule. The commenter requested clarification as to the effective date for according duty-free treatment to those imported beverages that were made with Caribbean rum under 19 U.S.C. 2703(a)(6). The interim rule stated that it would be applicable to products entered or withdrawn from warehouse for consumption on or after February 9, 2001. However, the commenter asserted that Presidential Proclamation No. 7351 specified an effective date of October 2, 2000.
Presidential Proclamation No. 7351 of October 2, 2000 (65 FR 59329) dealt with the implementation of the amendments made to the CBERA by the CBTPA. While effective on the date signed (October 2, 2000), the Proclamation also made clear that modifications to the HTSUS were necessary to implement any preferential tariff treatment afforded by the amendments; and that these modifications were set forth in an Annex to the Proclamation that would be effective on the date announced by the United States Trade Representative (USTR) in a notice to be published in the
The notice setting forth the Annex was published in the
Therefore, as already indicated above under the
Consequently, for entries of eligible rum beverages that were made on or after October 4, 2000, and prior to February 9, 2001, importers or their agents may make use of either the Supplemental Information Letter or Post Entry Amendment procedure prior to liquidation of the entry, or they may file a timely protest under 19 U.S.C. 1514, to obtain duty-free treatment for these qualifying beverages. Such claims must be made at the port where the original entry was filed.
It is noted that the beverages entitled to duty-free treatment under 19 U.S.C. 2703(a)(6) are specifically described as spirituous beverages and liqueurs classifiable under HTSUS subheading 2208.40 or 2208.90. However, in further consideration of the interim rule, Customs noted that neither of these HTSUS subheadings in fact applies to liqueurs. Rather, liqueurs are provided for in HTSUS subheading 2208.70 which is not included within section 2703(a)(6). Thus, liqueurs are not entitled to duty-free treatment under this statutory enactment. For this reason, Customs is deleting any reference to liqueurs set forth in interim § 10.199 in this final rule. For the sake of editorial clarity and convenience, § 10.199, as revised, is republished below in its entirety, together with a related revision to the (a)(1)(A) List in the Appendix to part 163.
After careful consideration of the comment received and further review of the matter, Customs has concluded that the interim rule amending parts 10, 163 and 178, Customs Regulations (19 CFR parts 10, 163 and 178) that was published in the
Pursuant to the provisions of 5 U.S.C. 553(b)(B), public notice is inapplicable to this final rule because it was determined that good cause existed for dispensing with prior public notice and comment procedures. To this end, the final rule affords a preferential tariff benefit to the importing public; it reflects, and provides a necessary and reasonable means for enforcing, statutory requirements that are already in effect; and it closely parallels existing regulatory provisions that implement similar trade preference programs. Also, for these same reasons, there is no need for a delayed effective date under 5 U.S.C. 553(d). Because this document is not subject to the requirements of 5 U.S.C. 553, as noted, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The collection of information involved in this final rule document has already been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned OMB Control Number 1515-0194 (Documentation requirements for articles entered under various special tariff treatment provisions). This collection includes a claim for duty-free entry of eligible articles under the Caribbean Basin Initiative. This rule does not present any substantive changes to the existing approved information collection. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.
Customs duties and inspection, Exports, Foreign relations, Imports, International traffic, Preference programs, Reporting and recordkeeping requirements, Shipments, Trade agreements (Caribbean Basin Initiative, Generalized System of Preferences, U.S.-Canada Free Trade Agreement, etc.).
Administrative practice and procedure, Customs duties and inspection, Imports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Collections of information, Imports, Paperwork requirements, Reporting and recordkeeping requirements.
19 U.S.C. 66, 1202 (General Note 22, Harmonized Tariff Schedule of the United States (HTSUS)), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314.
Sections 10.191 through 10.199 also issued under 19 U.S.C. 2701
(a)
(1) Is the growth, product, or manufacture either of a beneficiary country or of the U.S. Virgin Islands;
(2) Was imported directly into the territory of Canada from a beneficiary country or from the U.S. Virgin Islands; and
(3) Accounts for at least 90 percent of the alcoholic content by volume of the spirituous beverage.
(b)
(1) The rum used to produce the beverage is the growth, product or manufacture either of a beneficiary country or of the U.S. Virgin Islands;
(2) The rum was shipped directly from a beneficiary country or from the U.S. Virgin Islands to Canada;
(3) The beverage was produced in Canada;
(4) The rum accounts for at least 90% of the alcohol content of the beverage; and
(5) The beverage was shipped directly from Canada to the United States.
(c)
(1) “Imported directly” into the customs territory of the United States from Canada means:
(i) Direct shipment from the territory of Canada to the U.S. without passing through the territory of any other country; or
(ii) If the shipment is from the territory of Canada to the U.S. through the territory of any other country, the spirituous beverages do not enter into the commerce of any other country while en route to the U.S.; or
(iii) If the shipment is from the territory of Canada to the U.S. through the territory of another country, and the invoices and other documents do not show the U.S. as the final destination, the spirituous beverages in the shipment are imported directly only if they:
(A) Remained under the control of the customs authority of the intermediate country;
(B) Did not enter into the commerce of the intermediate country except for the purpose of sale other than at retail, and the port director is satisfied that the importation results from the original commercial transaction between the importer and the producer or the latter's sales agent; and
(C) Were not subjected to operations other than loading and unloading, and other activities necessary to preserve the products in good condition.
(2) “Imported directly” from a beneficiary country or from the U.S. Virgin Islands into the territory of Canada means:
(i) Direct shipment from a beneficiary country or from the U.S. Virgin Islands into the territory of Canada without passing through the territory of any non-beneficiary country; or
(ii) If the shipment is from a beneficiary country or from the U.S. Virgin Islands into the territory of Canada through the territory of any non-beneficiary country, the rum does not enter into the commerce of any non-beneficiary country while en route to Canada; or
(iii) If the shipment is from a beneficiary country or from the U.S. Virgin Islands into the territory of Canada through the territory of any non-beneficiary country, the rum in the shipment is imported directly into the territory of Canada only if it:
(A) Remained under the control of the customs authority of the intermediate country;
(B) Did not enter into the commerce of the intermediate country except for the purpose of sale other than at retail; and
(C) Was not subjected to operations in the intermediate country other than loading and unloading, and other activities necessary to preserve the product in good condition.
(d)
(2)
(e)
(2)
(ii)
(f)
I, ____ declare that the spirituous beverages here specified are the products that were produced by me (us), as described below, with the use of rum that was received by me (us); that the rum used in producing the beverages was received by me (us) on
____ (date), from ____ (name and address of owner or exporter in the beneficiary country or in the U.S. Virgin Islands, as applicable); and that such rum accounts for at least 90 percent of the alcoholic content by volume, as shown below, of each spirituous beverage so produced.
(2)
(i) The receipt of the rum by the Canadian processor, including the date of receipt and the name and address of the party from whom the rum was received (the owner or exporter in the beneficiary country or the U.S. Virgin Islands); and
(ii) For each lot of beverage produced and included in the declaration, the specific identification of the production lot(s) involved; the quantity of qualifying rum that is used in producing the finished beverage, including a description of the processing and of the finished products; the alcoholic content by volume of the finished beverage; and the alcoholic content by volume of the finished beverage, expressed as a percentage, that is attributable to the qualifying rum.
(g)
(1) The origin of the rum;
(2) The direct shipment of the rum from a beneficiary country or from the U.S. Virgin Islands to Canada;
(3) The alcohol content of the finished beverage imported from Canada; and
(4) The direct shipment of the finished beverage from Canada to the United States.
(h)
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
IV. * * *
Department of State.
Interim final rule; request for comments.
This rule amends the Schedule of Fees for Consular Services. Specifically, it raises from $65 to $100 the fee charged for the processing of an application for a nonimmigrant visa (MRV) or a combined nonimmigrant visa and border crossing card (BCC). The Department of State is raising the fee as an emergency measure to ensure that sufficient resources are available to meet the costs of processing nonimmigrant visas, the demand for which has dropped at the same time that the processing of nonimmigrant visa applications has become more labor intensive because of the increased security screening of visa applicants in the aftermath of the September 11, 2001 attacks on New York and Washington and in Pennsylvania. This rule further corrects the item listed as the “border crossing card” for minors under age 15 by deleting reference to a 5-year period of validity.
Written comments may be submitted to the Office of the Executive Director, Bureau of Consular Affairs, U.S. Department of State, Suite H1004, 2401 E Street NW., Washington, DC 20520, or by e-mail to
Susan Abeyta, Office of the Executive Director, Bureau of Consular Affairs, Department of State; phone: 202-663-2505, telefax: 202-663-2499; e-mail:
The majority of the Department of State's consular fees are established pursuant to the general user charges statute, 31 U.S.C. 9701 (which directs that certain government services be self-sustaining to the extent possible), and/or U.S.C. 4219, which as implemented through Executive Order 10718 of June
Consistent with OMB Circular A-25 guidelines, the Department conducted a cost-of-service study from September 1999 to October 2001 to update the Schedule of Fees for Consular Services. The results of that study were the foundation of the current Schedule, which was published as a final rule on May 16, 2002, at Volume 67, No. 95 FR 34831. The Schedule went into effect on June 1, 2002.
The $65 MRV/BCC fee that went into effect on June 1, 2002 was based on worldwide nonimmigrant visa operations' total costs distributed over an anticipated applicant level of approximately 10.5 million per year. It is now clear, however, that the estimate of the number of nonimmigrant visa applicants was too high. Visa demand worldwide has dropped by approximately 19.6% overall for the current fiscal year, which has been affected by international economic conditions and the events of September 11, 2001. The trend is continuing downward: nonimmigrant visa demand was down 26% during the normally peak season of June 1 to August 31. In August 2002, visa demand was down 32.9%. There has been no corresponding decline in the Department's costs of administering nonimmigrant visa services; such costs have remained the same in part because the processing of each application has become more time consuming and labor intensive as a result of enhanced security screening requirements for applicants instituted since September 11, 2001. Thus, the Department is facing a critical revenue shortfall because its nonimmigrant visa application processing costs can no longer be recovered by MRV revenues generated by the MRV fee when set at $65. Taking the 2001 Cost of Service Study's figures as a baseline, but now distributing the costs of nonimmigrant visa application processing services over a smaller number of applicants, based on the smaller number of applicants that the Department has seen in the current fiscal year, the Department has determined that an MRV fee of $100 will be required to recover the full cost of processing nonimmigrant visa applications during the anticipated period of the current Schedule of Fees. Given the uncertainty with respect to when the applicant volume will recover, it is reasonable and appropriate to raise the fee now. Failing to do so could jeopardize the Department's ability to continue critical programs, including enhanced border security measures recently undertaken.
The Department is publishing this rule as an interim rule, with a provision for post-promulgation comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The rule will not take effect, however, until November 1, 2002. Publishing the rule in this way, with a post-promulgation opportunity for comment, will allow the Department to make the rule effective at the earliest reasonable opportunity. Allowing a full 30-day comment period followed by a publication of the final rule with a further 30 days before its effective date is not practicable or in the public interest. That process would delay imposition of the new fee notwithstanding the critical need for the Department to recover its costs and to have sufficient resources to conduct activities that are dependent on MRV fee revenues, including the enhanced security screening of visa applicants and other measures being taken in the aftermath of the September 11, 2001 terrorist attacks on the United States. By setting the new fee through an interim final rule, the Department will have sufficient time to make necessary provisions to implement the new fee as early in Fiscal Year 2003 as is feasible. Comments received before the end of the comment period will be addressed in a subsequent final rule.
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and import markets.
The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.
This regulation 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
This rule does not impose any new reporting or record-keeping requirements. It will affect OMB collection number 1405—by increasing the public cost burden.
Consular services, Fees, Passports and visas.
Accordingly, 22 CFR part 22 is amended as follows:
8 U.S.C. 1153 note, 1351, 1351 note; 10 U.S.C. 2602 (c); 22 U.S.C. 214, 2504(a), 4201, 4206, 4215, 4219; 31 U.S.C. 9701; Pub. L. 105-277, 112 Stat. 2681
Internal Revenue Service, Treasury.
Final rule.
In accordance with the requirements of the Privacy Act of 1974, as amended, the Department of the Treasury gives notice of a final rule to exempt an Internal Revenue Service system of records entitled “Employee Complaint and Allegation Referral Records—Treasury/IRS 00.007” from certain provisions of the Privacy Act.
October 9, 2002.
Jim D'Elia, Commissioner's Complaint Processing and Analysis Group, N:ADC:C , 1111 Constitution Avenue, NW., Washington, DC 20224, Phone 202-622-5212.
The Department of the Treasury published a notice of a proposed rule exempting a system of records from certain provisions of the Privacy Act of 1974, as amended. The Internal Revenue Service (IRS) published the system notice in its entirety at 67 FR 36963-36964 (May 28, 2002 ), and the proposed rule at 67 FR 40253-40254 (June 12, 2002).
Under 5 U.S.C. 552a(k)(2), the head of an agency may promulgate rules to exempt any system of records within the agency from certain provisions of the Privacy Act of 1974, as amended, if the system is investigatory material compiled for law enforcement purposes. The “Employee Complaint and Allegation Referral Records—Treasury/IRS 00.007”, contains investigatory material compiled for law enforcement purposes.
The proposed rule requested that public comments be sent to the Director, Commissioner's Processing and Analysis Group, Internal Revenue Service, 1111 Constitution Ave., N:ADC:C, NW., Washington, DC 20224, no later than July 12, 2002.
The IRS did not receive comments on the proposed rule. Accordingly, the Department of the Treasury is hereby giving notice that the system of records entitled “Employee Complaint and Allegation Referral Records—Treasury/IRS 00.007”, is exempt from certain provisions of the Privacy Act.
The provisions of the Privacy Act from which the system of records is exempt pursuant to 5 U.S.C. 552a(k)(2) are as follows: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H) and (e)(4)(I), and (f).
As required by Executive Order 12866, it has been determined that this proposed rule is not a significant regulatory action, and therefore, does not require a regulatory impact analysis.
The regulation will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, it is hereby certified that these regulations will not significantly affect a substantial number of small entities. The final rule imposes no duties or obligations on small entities.
In accordance with the provisions of the Paperwork Reduction Act of 1995, the Department of the Treasury has determined that this final rule would not impose new record keeping, application, reporting, or other types of information collection requirements.
Privacy.
5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552 as amended. Subpart C also issued under 5 U.S.C. 552a.
(g) * * *
(1) * * *
(viii) * * *
Department of Veterans Affairs.
Final rule.
VA's medical regulations captioned “Enrollment—Provision of Hospital and Outpatient Care to Veterans” implement a national enrollment system to manage the delivery of inpatient hospital care and outpatient medical care. Prior to October 1, 2002, veterans were eligible to be enrolled based on seven priority categories. In this final rule we add veterans awarded the Purple Heart to priority category 3 to implement new statutory requirements. We also delete the copayment provisions from priority category 4 to clarify statutory requirements. In addition, we divide priority category 7 into two new priority categories (7 and 8) to implement new statutory requirements, using the subpriorities for former category 7 for these new categories. Further, we state principles for placing veterans in enrollment categories to help ensure clarity and fairness in making priority category determinations. Finally, we change the VA officials who can make enrollment decisions and provide an additional address for sending a request for voluntary disenrollment.
Effective Date: November 8, 2002.
Amy Hertz, Office of Policy and Planning (105D), at (202) 273-8934 or Roscoe Butler, Chief Policy & Operations, Health Administration Service (10C3), at (202) 273-8302. These individuals are in the Veterans Health Administration of the Department of Veterans Affairs, and are located at 810 Vermont Avenue, NW., Washington, DC 20420.
In a document published in the
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.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
This document has been reviewed by the Office of Management and Budget under Executive Order 12866.
The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. This amendment would not directly affect any small entities. Only individuals 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 the programs affected by this document are 64.005, 64.007, 64.008, 64.009, 64.010, 64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 64.019, 64.022, and 64.025.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
38 U.S.C. 501, 1721, unless otherwise noted.
The revisions and additions read as follows:
(a) * * *
(2) Except as provided in paragraph (a)(3) of this section, a veteran enrolled under this section and who, if required by law to do so, has agreed to make any applicable copayment is eligible for VA hospital and outpatient care as provided in the “medical benefits package” set forth in § 17.38.
(b) * * *
(4) Veterans who receive increased pension based on their need for regular aid and attendance or by reason of being permanently housebound and other veterans who are determined to be catastrophically disabled by the Chief of Staff (or equivalent clinical official) at the VA facility where they were examined.
(7) Veterans who agree to pay to the United States the applicable copayment determined under 38 U.S.C. 1710(f) and 1710(g) if their income for the previous year constitutes “low income” under the geographical income limits established by the U.S. Department of Housing and Urban Development for the fiscal year that ended on September 30 of the previous calendar year. For purposes of this paragraph, VA will determine the income of veterans (to include the income of their spouses and dependents) using the rules in §§ 3.271, 3.272, 3.273, and 3.276. After determining the veterans' income and the number of persons in the veterans' family (including only the spouse and dependent children), VA will compare their income with the current applicable “low-income” income limit for the public housing and section 8 programs in their area that the U.S. Department of Housing and Urban Development publishes pursuant to 42 U.S.C. 1437a(b)(2). If the veteran's income is below the applicable “low-income” income limits for the area in which the veteran resides, the veteran will be considered to have “low income” for purposes of this paragraph. To avoid a hardship to a veteran, VA may use the projected income for the current year of the veteran, spouse, and dependent children if the projected income is below the “low income” income limit referenced above. This category is further prioritized into the following subcategories:
(i) Noncompensable zero percent service-connected veterans; and
(ii) All other priority category 7 veterans.
(8) Veterans not included in priority category 4 or 7, who are eligible for care only if they agree to pay to the United States the applicable copayment determined under 38 U.S.C. 1710(f) and 1710(g). This category is further prioritized into the following subcategories:
(i) Noncompensable zero percent service-connected veterans; and
(ii) All other priority category 8 veterans.
(d)
(3)
(i) Veterans will be placed in priority categories whether or not veterans in that category are eligible to be enrolled.
(ii) A veteran will be placed in the highest priority category or categories for which the veteran qualifies.
(iii) A veteran may be placed in only one priority category, except that a veteran placed in priority category 6 based on a specified disorder or illness will also be placed in priority category 7 or priority category 8, as applicable, if the veteran has previously agreed to pay the applicable copayment, for all matters not covered by priority category 6.
(iv) A veteran who had been enrolled based on inclusion in priority category 5 and became no longer eligible for inclusion in priority category 5 due to failure to submit to VA a current VA Form 10-10EZ will be changed automatically to enrollment based on inclusion in priority category 6 or 8 (or more than one of these categories if the previous principle applies), as applicable, and be considered continuously enrolled. To meet the criteria for priority category 5, a veteran must be eligible for priority category 5 based on the information submitted to VA in a current VA Form 10-10EZ. To be current, after VA has sent a form 10-10EZ to the veteran at the veteran's last known address, the veteran must return the completed form (including signature) to the address on the return envelope within 60 days from the date VA sent the form to the veteran.
(v) Veterans will be disenrolled, and reenrolled, in the order of the priority categories listed with veterans in priority category 1 being the last to be disenrolled and the first to be reenrolled. Similarly, within priority categories 7 and 8, veterans will be disenrolled, and reenrolled, in the order of the priority subcategories listed with veterans in subcategory (i) being the last to be disenrolled and first to be reenrolled.
(5)
(i) The veteran submits to a VA medical center or the VA Health Eligibility Center, 1644 Tullie Circle, Atlanta, Georgia 30329, a signed document stating that the veteran no longer wishes to be enrolled; or
Department of Veterans Affairs.
Final rule; correction.
In a document published in the
Caroll McBrine, M.D., Consultant, Policy and Regulations Staff (211B), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 273-7230.
In rule FR Doc. 02-19331, published on July 31, 2002 (67 FR 49590), on page 49595, in column 1, the first paragraph, the phrase “a 30-percent evaluation calls for recurrent debilitating episodes at least four times during the past 12-month period despite ongoing immunosuppressive therapy” is corrected to read “a 30-percent evaluation calls for recurrent debilitating episodes at least four times during the past 12-month period, and requiring intermittent systemic immunosuppressive therapy.”
Environmental Protection Agency (EPA).
Direct final rule.
EPA is announcing it is approving revisions to the Iowa State Implementation Plan (SIP). The SIP revisions, regarding the state's construction permitting rules as they pertain to industrial anaerobic lagoons and anaerobic lagoons for animal feeding operations in Iowa, will help ensure Federal enforceability of the state's air program.
This direct final rule will be effective December 9, 2002, unless EPA receives adverse comments by November 8, 2002. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Comments may be mailed to Lynn M. Slugantz, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Copies of documents relative to this action are available for public inspection during normal business hours at the above-listed Region 7 location. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.
Lynn M. Slugantz at (913) 551-7883.
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
What is an SIP?
What is the Federal approval process for an SIP?
What does Federal approval of a state regulation mean to me?
What is being addressed in this action?
Have the requirements for approval of an SIP revision been met?
What action is EPA taking?
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of
Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
The Iowa Department of Natural Resources (IDNR) has requested that EPA approve changes to Iowa Administrative Code, Chapter 22, “Controlling Pollution,” as a revision to the Iowa SIP. The changes were adopted by the Environmental Protection Commission on March 15, 1999, and became effective on May 12, 1999. Our approval of these revisions is consistent with our past approval of Iowa construction permitting regulations for these types of lagoons. While the revisions to IAC chapter 22 reference IAC chapter 65, the state of Iowa did not request EPA approval of the chapter 65 requirements since it includes requirements (for example odor controls) not pertaining to the requirements of section 110 of the Clean Air Act.
The following is a description of the changes to Chapter 22 of the Iowa Administrative Code which are the subject of this approval action:
1.
2.
3.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
We are approving amendments to Iowa Administrative Code, Chapter 22, subrules 22.1(3), 22.1(3)“c”(3) and 22.3(2). We are processing this action as a final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 9, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
On March 21, 2002, EPA published a notice of proposed rulemaking (NPR) that proposed approval of revisions to Utah's state air quality implementation plan (SIP). The revisions update Utah's vehicle inspection and maintenance (I/M) programs. On August 14, 2001 and on August 15, 2001, the Governor of Utah submitted revisions to the SIP affecting the State's motor vehicle I/M programs. The August 14, 2001, submittal revised Utah's Rule R307-110-33, which incorporates by reference Section X, Vehicle Inspection and Maintenance Program, Part C, Salt Lake County to allow Salt Lake County to take 100% credit for their test and repair vehicle I/M network, rather than the previously required EPA default of a 50% emissions reduction credit. The August 15, 2001, submittal revises Utah's Rule R307-110-31, which incorporates by reference Section X, Vehicle Inspection and Maintenance Program, Part A, General Requirements and Applicability to require mandatory implementation of the inspection of vehicle On-Board Diagnostic (OBD) systems starting January 1, 2002. In this action, EPA is approving the revisions to Utah's Rule R307-110-33 and Rule R307-110-31.
November 8, 2002.
Richard R. Long, Director, Air and Radiation Program, Mail code 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202. Copies of the documents relevant to this action are available for public inspection during normal business hours at the United States Environmental Protection Agency, Region VIII, Air and Radiation Program, 999 18th Street, Suite 300, Denver, Colorado 80202 and copies of the Incorporation by Reference material are available at the United States Environmental Protection Agency, Air and Radiation Docket and Information Center, 401 M Street, SW., Washington, DC 20460. Copies of the State documents relevant to this action are available for public inspection at the Utah Department of Environmental Quality, Division of Air Quality, 150 North 1950 West, Salt Lake City, Utah 84114.
Jeffrey Kimes, EPA, Region VIII, (303) 312-6445.
Throughout this document, wherever “we,” “our,” or “us” is used, we mean EPA.
Throughout this document wherever “R307-110-33” is used alone it is
We are approving revisions to the SIP that were submitted by the Governor of Utah on August 14, 2001 and August 15, 2001. The August 14, 2001, submittal updates Utah's Rule R307-110-33. Specifically, this revision allows Salt Lake County to receive full credit (100%) for its test and repair vehicle Inspection and Maintenance (I/M) network. Salt Lake County has demonstrated that its test and repair I/M network is as effective as a test only I/M network and is eligible to take full emission reduction credit rather than the previously required EPA default of a 50% emissions reduction credit. The revised rule R307-110-33 being approved in this action supersedes and replaces the existing State rule.
The August 15, 2001, submittal updates Utah's Rule R307-110-31. This revision required the mandatory implementation of the inspection of vehicle On-Board Diagnostic (OBD) systems starting January 1, 2002 in all areas implementing an I/M program. Therefore, this requirement is applicable for Davis County, Salt Lake County, Utah County, and Weber County. As a convenience to vehicle owners, Davis, Utah, and Weber Counties are already implementing this program. Salt Lake County began implementing the program on January 1, 2002. The revised rule R307-110-33 being approved in this action supersedes and replaces the existing R307-110-33 rule.
Section 110(k) of the Clean Air Act (CAA) addresses our actions on submissions of revisions to a State Implementation Plan (SIP). The CAA requires states to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted by the State, after reasonable notice and public hearing, and prior to the revision being submitted by a state to us.
The Utah Air Quality Board (UAQB) held a public hearing on June 21, 2001, to include in the Salt Lake County SIP element a demonstration that Salt Lake County's test and repair I/M network is as effective as a test only I/M network, and allow the County to claim 100% credit instead of 50% credit in emissions reduction. The UAQB adopted the revisions to R307-110-33, on August 1, 2001. This SIP revision became State effective on August 2, 2001, and was submitted by the Governor of Utah to us on August 14, 2001.
The UAQB held a public hearing on June 21, 2001, to consider amendments to postpone the Federally required inspection of the OBD systems on newer vehicles, because the Federal implementation date had been postponed until January 1, 2002 (66 FR 18156). The UAQB adopted the revisions to R307-110-31 on August 1, 2001. This SIP revision became State effective on August 2, 2001, and was submitted by the Governor of Utah to us on August 15, 2001.
We have evaluated the Governor's submittals and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. As required by section 110(k)(1)(B) of the CAA, we reviewed these SIP revision materials for conformance with the completeness criteria in 40 CFR part 51, appendix V and determined that the Governor's submittals were administratively and technically complete. Our completeness determination was sent on October 18, 2001, through a letter from Jack W. McGraw, Acting Regional Administrator, to Governor Michael O. Leavitt.
We have thoroughly reviewed the Utah rules that are the subject of this rulemaking and have found the revisions to meet all applicable requirements. A detailed evaluation of the rule revisions submitted by the State can be found in the notice of proposed rulemaking (NPR) for these rules found at 57 FR 9425, March 1, 2001. The NPR provided a detailed evaluation of how the State submittal meets the CAA requirements and the entire evaluation is not repeated here. The evaluation below is a limited summary of the evaluation found in the NPR.
In this action, we are approving revisions to Utah's Rule R307-110-33, as adopted by the UAQB on August 1, 2001, and State effective on August 2, 2001. The Salt Lake County vehicle I/M program is in place to reduce vehicle emissions so that the Federal carbon monoxide National Ambient Air Quality Standard (NAAQS) and the Federal 1-hour ozone NAAQS are not exceeded. The changes in Rule R307-110-33 involve a demonstration that Salt Lake County's test and repair I/M network is as effective as a test only I/M network.
Section 182(b)(4) of the CAA requires that Salt Lake County implement an I/M program at least as effective as EPA's Basic Performance Standard as specificied in 40 CFR 51.352. Our July 24, 2000, rulemaking (see 65 FR 45526) deleted our prior requirement of an automatic 50% emission credit discount for decentralized test and repair I/M programs if it can be demonstrated that the test and repair I/M network is as effective as a test only I/M network.
We are approving Utah's SIP revision to Rule R307-110-33, Section X, Vehicle Inspection and Maintenance Program, Part C, Salt Lake County. Salt Lake County's test and repair network was demonstrated to be as effective as a test-only network.
In this action, we are also approving SIP revisions to Utah's Rule R307-110-
The Governor had previously submitted a revision to Rule R307-110-31 on February 22, 1999, that we did not take action on. The February 22, 1999 submittal committed the State of Utah to implement testing of vehicle OBD systems by January 1, 2001, as was required by the 40 CFR part 51 subpart S Inspection/Maintenance Program Requirements. On April 5, 2001, we extended the Federal date for mandatory implementation of the inspection of vehicle OBD systems, in 40 CFR part 51 Subpart S, to January 1, 2002 (
No public comment was received in response to the EPA's proposed rulemaking on these Utah SIP revisions.
In this Final Rulemaking Action, we are approving revisions to the SIP affecting the State's motor vehicle I/M programs submitted by the Governor of Utah. The approved revisions include the August 14, 2001, submittal revising Utah's Rule R307-110-33, which incorporates by reference Section X, Vehicle Inspection and Maintenance Program, Part C, Salt Lake County and the August 15, 2001, submittal revising Utah's Rule R307-110-31 which incorporates by reference, Section X, Vehicle Inspection and Maintenance Program, Part A, General Requirements and Applicability to require mandatory implementation of the inspection of vehicle On-Board Diagnostic (OBD) systems starting January 1, 2002. The final rule is effective November 8, 2002.
Section 110(l) of the Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable progress towards attainment of a National Ambient Air Quality Standard (NAAQS) or any other applicable requirements of the Act. This SIP revision is consistent with Federal requirements and does not interfere with any applicable requirements of the Act. Therefore, we conclude that our approval of Utah's Rule R307-110-33 and R307-110-31 meets the requirements of section 110(l) of the Act.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 9, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(48) On August 14, 2001, the Governor of Utah submitted a revision to Utah's SIP to update UACR R307-110-33, Section X, Vehicle Inspection and Maintenance Program, Part C, Salt Lake County. The changes involve a demonstration that Salt Lake County's test and repair I/M network is as effective as a test only I/M network.
(i) Incorporation by reference.
(A) UACR R307-110-33, which incorporates by reference Utah SIP, Section X, Vehicle Inspection and Maintenance Program, Part C, Salt Lake County and appendices 1.a, 1.b, and 1.c, adopted by the UAQB August 1, 2001 and State effective on August 2, 2001.
(49) On August 15, 2001, the Governor of Utah submitted a revision to Utah's SIP to update UACR R307-110-31, Section X, Vehicle Inspection and Maintenance Program, Part A, General Requirements and Applicability. This revision required the mandatory implementation of the inspection of vehicle On-Board Diagnostic (OBD) systems starting January 1, 2002 in all areas implementing an I/M program.
(i) Incorporation by reference.
(A) UACR R-307-110-31 which incorporates by reference Utah SIP, Section X, Vehicle Inspection and Maintenance Program, Part A, General Requirements and Applicability adopted by the UAQB on August 1, 2001 and State effective on August 2, 2001.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving the Sections 111(d)/129 State Plan originally submitted by the Massachusetts Department of Environmental Protection (MA DEP) on January 11, 1999, and revised on November 16, 2001. This State Plan is for implementing and enforcing provisions at least as protective as the federal Emission Guidelines (EGs) applicable to existing Municipal Waste Combustors (MWCs) units with capacity to combust more than 250 tons/day of municipal solid waste (MSW).
This final rule will become effective on November 8, 2002.
Documents which EPA has incorporated by reference for previous rulemaking are available for public inspection at the Air and Radiation Docket and Information Center, Environmental Protection Agency, Room B102, 1301 Constitution Avenue NW., Washington, DC 20460. You may examine copies of materials the MA DEP submitted to EPA relative to this action during normal business hours at the following locations:
The interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the day of the visit.
John Courcier at (617) 918-1659, or by e-mail at
EPA is approving the above referenced State Plan with revisions. EPA finds the State Plan to be at least as protective as EPA's Emission Guidelines.
This rulemaking was originally published as a direct final notice in the July 14, 1999
As mentioned under section II above, EPA published its direct final and proposed approval of the State's MWC Plan, including the MWC rule, on July 14, 1999. The plan was to become effective on September 13, 1999, unless EPA received adverse comment by August 13, 1999. Subsequently, we did receive timely comments objecting to the State's Plan and EPA's approval of it. Following the September 1, 1999 withdrawal of EPA's proposed direct final approval, EPA received additional adverse comments as well as supportive comments. The adverse comments received include the following:
• The MA DEP's mercury limit is arbitrary and has not been demonstrated to be consistently achievable.
• There are no test methods that have been validated at the 28 μg/dscm level.
• MA DEP did not provide the public with adequate notice and opportunity to comment, in that MA DEP modified the mercury standard to be more stringent after the close of the public comment period, and did not provide further opportunity for comment.
The full text of written comments and EPA's responses can be found in the docket located at EPA's Boston office.
EPA does not find the mercury limit to be arbitrary. Units equipped with fabric filters and carbon injection have been shown to be capable of meeting the limit. Although some MWC units equipped with electrostatic precipitators (ESPs) have not been shown to be able to achieve the limit consistently, MA DEP can reasonably determine that well-controlled units should be able to meet the 28 μg/dscm level. MA DEP has addressed the issue of mercury spikes based on MSW content by allowing facilities to average four quarterly test results to achieve the standard. In addition, the Plan allows ESP-controlled sources unable to meet the standard within the first year to apply for a limited waiver for periods of up to five years, to provide time to install and test additional control measures.
The more stringent numerical limit, and the elimination of the 85% reduction option, are not contrary to Clean Air Act requirements. Section 129(b)(2) of the Act requires a State to submit a plan that is “at least as protective” as EPA's EGs. By proposing a more stringent mercury standard, MA DEP has provided a standard that is at least as protective as the federal mercury standard. The provisions of sections 111(d) and 129 do not prevent a State from submitting emission limits that are more stringent than the federal EGs. Even if the State's limit has not been consistently achieved by all ESP-controlled units in the past, the State may require such units to achieve a level of control that has been shown to be achievable by other municipal waste combustors.
One commenter indicated that there are no approved test methods available for measuring mercury at and below the 28 μg/dscm level. This commenter believes EPA can not approve a limit for which there is no validated test method. It is correct that Method 29 (the approved EPA test method for measuring mercury) has not been validated at a large MWC at the MA DEP's mercury level. However, Method 29 has been validated at both smaller MWCs and at power plants at the low levels being discussed here. Therefore, EPA has no reason to believe that Method 29 is not an appropriate test method to use in this situation.
As required by 40 CFR 60.23(c), the State conducted public hearings and received comments on the State Plan. One of the comments to EPA is that the State should have conducted a further public process before adopting a standard that differed from the standard it had proposed in the notice of public hearing. In particular, the commenter claimed that the State was required to provide further opportunity for comment before adopting a mercury standard that differed from the proposal in eliminating the compliance option of 85% reduction by weight. EPA believes that the State has met EPA's requirement that it provide a public hearing on the State Plan prior to adoption. With respect to the adequacy of the public hearing process under Massachusetts law, the Massachusetts Attorney General's Office has stated that the procedures were adequate under the Massachusetts Administrative Procedure Act. Accordingly, EPA is satisfied that the State has demonstrated that it provided an adequate public hearing process, and that it has adequate legal authority to enforce the standard, in accordance with 40 CFR 60.26(a).
EPA's approval of MA DEP's State Plan is based on our findings that:
(1) MA DEP provided adequate public notice of, and held public hearings for the proposed rule-making, and Massachusetts may carry out and enforce its provisions which are at least as protective as the EGs for large MWCs, and
(2) MA DEP demonstrated legal authority to adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require record keeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and make emission data publicly available.
This final rule is effective on November 8, 2002, without further notice. The Federal Plan is an interim action. On the effective date of this action, the Federal Plan will no longer apply to MWC units covered by the State Plan.
All existing large MWC units in the Commonwealth of Massachusetts must now be in compliance with these requirements. The final compliance date was December 19, 2000.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This action also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing section 111(d) State Plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS),
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 9, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides, Waste treatment and disposal .
42 U.S.C. 7401-7671q.
(a)
(b) The plan was officially submitted as follows:
(1) Control of metals, acid gases, organic compounds and nitrogen oxide emissions from existing municipal waste combustors, originally submitted on January 11, 1999 and amended on November 16, 2001. The Plan does not include: the site assignment provisions of 310 CMR 7.08(2)(a); the definition of “materials separation plan” at 310 CMR 7.08(2)(c); and the materials separation plan provisions at 310 CMR 7.08(2)(f)(7).
(2) [Reserved]
(c)
(1) Municipal waste combustors.
(2) [Reserved]
(a) The plan applies to the following existing municipal waste combustor facilities:
(1) Fall River Municipal Incinerator in Fall River.
(2) Covanta Haverhill, Inc., in Haverhill.
(3) American Ref-Fuel of SEMASS, L.P. in Rochester.
(4) Wheelabrator Millbury Inc., in Millbury.
(5) Wheelabrator Saugus, J.V., in Saugus.
(6) Wheelabrator North Andover Inc., in North Andover.
(b) [Reserved]
Federal Emergency Management Agency (FEMA).
Interim final rule; correction.
We, FEMA, published an interim final rule on September 30, 2002, 67 FR 61446, concerning Federal disaster assistance to individuals and households. There were a number of errors that were misleading and need clarification. This document corrects those errors.
September 30, 2002.
Michael Hirsch; Response and Recovery Directorate; (202) 646-4099, or (e-mail) at
On September 30, 2002 we published an interim final rule on, 67 FR 61446, concerning Federal disaster assistance to individuals and households. There were a number of inadvertent errors in that rule, and this document corrects those errors.
In the interim final rule (FR Doc. 02-24773), published September 30, 2002, 67 FR 61446, make the following corrections:
1. On page 61448, in the second line of the third column, correct the reference “206.110” to read “206.101”.
2. Subpart D is amended by revising the heading and adding §§ 206.110 through 206.120 to read as follows:
National Highway Traffic Safety Administration (NHTSA), DOT.
Final Rule; correction.
The final rule adopting fees beginning on page 60596 in the
This correction is effective October 1, 2002.
Coleman Sachs, Office of Chief Counsel, NHTSA (202-366-5238).
NHTSA published a final rule on September 26, 2002 (67 FR 60596) adopting fees for Fiscal Year (FY) 2003, and until further notice, as authorized by 49 U.S.C. 30141, relating to the registration of importers and the importation of motor vehicles not certified as conforming to the Federal motor vehicle safety standards. This correction corrects that document.
1. On page 60599 in the first column, under Amendatory Instruction 2 to section 594.6, paragraph D is corrected to read as follows: “D. Revising the last sentence of paragraph (h).”
2. On page 60599 in the first column, under Amendatory Instruction 2 to section 594.6, the following paragraph is added: “F. Revising paragraph (d).”
3. On page 60599 in the second column, after paragraph (b), add paragraph (d) to read as follows:
(d) That portion of the initial annual fee attributable to the remaining activities of administering the registration program on and after October 1, 2002, is set forth in paragraph (i) of this section. This portion shall be refundable if the application is denied, or withdrawn before final action upon it.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for
This rule is effective November 8, 2002.
Comments and materials received, as well as supporting documentation used in the preparation of this final rule are available for inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service Office, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521.
Bruce Halstead, Project Leader, Arcata Fish and Wildlife Office, at the above address (telephone 707/822-7201; facsimile 707/822-8411).
Serano Watson (1882) first described
Plant communities in Kneeland Prairie include the following: California annual and introduced perennial grasslands; seasonal and perennial wetlands; and mixed oak/Douglas-fir
Little is known about the reproductive biology of
The only known occurrence of
In 1997, the largest colony contained an estimated 10,840 plants (SHN 1997); this estimate was later corrected to 9,919 plants (SHN 2001). The sizes of the other two colonies known in 1997 were 140 and 40 plants (SHN 1997); therefore, the total revised estimate in 1997 was 10,099 plants. In 2001, the total number of
Historically, several land use activities probably altered the distribution and abundance of
Construction of the county road, airstrip, and helitack base bisected and fragmented the two largest patches of suitable habitat into four relatively isolated patches and also reduced the total available habitat by approximately 50 percent. No data are available on the distribution or number of individuals prior to this habitat alteration. However, these colonies probably occupied a larger area or formed one large colony prior to these construction activities, based on anecdotal evidence. The impacts on population or community processes from this habitat loss and possible population reduction are unknown. In general, smaller serpentine outcrops support a higher number of alien species (Harrison 1999). Smaller outcrops may also be more vulnerable to recreational impacts, trampling, and modification of the unique serpentine soil chemistry as a result of enrichment from the surrounding meadow system (SHN 2001). Patch size influences fruit and flower production in
In 2001, all known colonies occupied an estimated 0.3 ha (0.8 ac), divided among five colonies as follows: 0.29 ha (0.72 ac); 0.02 ha (0.05 ac); 0.008 ha (0.02 ac); 0.004 ha (0.01 ac); and 0.002 ha (0.005 ac). The five known colonies occur on three separate serpentine outcrops, but they currently occupy only about 29 percent of the suitable habitat on these three outcrops (total area 1.1 ha (2.8 ac)). In addition to the three occupied outcrops, fourteen unoccupied serpentine outcrops occur on Ashfield Ridge, ranging in size from 0.01 ha (0.02 ac) to 0.2 ha (0.6 ac) (combined area of 0.9 ha (2.2 ac)). The distances between the outcrops range from 10 m to 85 m (33 ft to 279 ft). These patches are located within 400 m (1,312 ft) of the largest
Historic records for
The next nearest known serpentine outcrops to Kneeland Prairie occur approximately 6.4 km (4 mi) southeast of Ashfield Ridge at Iaqua Buttes. The serpentine outcrops at Iaqua Buttes support the more widespread
Federal Government actions for
We published revised NORs on February 21, 1990 (55 FR 6184) and September 30, 1993 (58 FR 511440). In both notices, we included
On February 12, 1998 (63 FR 7112), we published a proposal to list
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) such designation of critical habitat would not be beneficial to the species. At the time
A series of court decisions for a variety of species overturned our determinations that designation of critical habitat would not be prudent (
On June 17, 1999, our failure to issue final rules for listing
On October 24, 2001, we published a proposed rule to designate critical habitat for
In the proposed rule published on October 24, 2001 (66 FR 53756), we requested that all interested parties submit comments that might contribute to the development of the final rule. The first comment period closed on December 24, 2001 (66 FR 53756). Appropriate Federal and State agencies, county governments, scientific organizations, and other interested parties were contacted and requested to comment. An announcement was posted on the Service website October 24, 2001, and an article was published in the Times-Standard newspaper on October 29, 2001, inviting general public comment. We reopened the comment period on May 7 to June 6, 2002, to allow for comments on the draft economic analysis of the proposed critical habitat (67 FR 30643).
We received a total of seven written comments during the two comment periods, including three from designated peer reviewers. Of the four comments from private individuals, three opposed and one was neutral on the proposed action. We reviewed all comments received for substantive issues and new information regarding critical habitat and
(1)
(2)
(1)
(2)
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from five knowledgeable individuals with expertise in botany. Three of the five peer reviewers provided comments that are summarized in the previous section and incorporated in the final rule; all three reviewers supported the proposal. None of the reviewers provided new information about the biology or distribution of
One peer reviewer stated that the methods and criteria used in the proposed rule are “* * * sound in light of current conservation biology theory and the information known about the taxonomy and ecology of the species”. The reviewer also stated that the “* * * inclusion of unoccupied habitat * * * on the serpentine outcrops and adjunct prairie is needed to ensure ecological functions of the species” and “the definition of primary constituent elements * * * is comprehensive and well planned.”
A second peer reviewer stated that the “proposed actions, were, even without complete data, reasonable and based on solid scientific assumptions.” The reviewer recommended a monitoring strategy that includes establishment of permanent plots and marking individuals. In 2002, we established permanent grids and mapped individual plants in order to monitor life history and species composition.
The third peer reviewer suggested that herbivory on the known population and the survey of potential habitat on Six Rivers National Forest lands should be discussed. Discussions of these issues were added to the final rule. The reviewer also stated that the “* * * inclusion of unoccupied habitat and primary constituent elements * * *” was supported by the literature.
Critical habitat is defined in section 3, paragraph (5)(A) of the Act as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Areas outside the geographic area currently occupied by the species shall be designated as critical habitat only when a designation limited to its present range would be inadequate to ensure the conservation of the species.
Conservation is defined in section 3(3) of the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which listing under the Act is no longer necessary. Regulations under 50 CFR 424.02(j) define special management considerations or protection to mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of listed species.
Habitat included in a critical habitat designation must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat
When we designate critical habitat at the time of listing, as required under section 4 of the Act, or under short court-ordered deadlines, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us.
We will designate only currently known essential areas. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If information available at the time of designation does not show an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. We will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), that provide essential life cycle needs of the species.
Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species” (50 CFR 424.12(e)). Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best scientific and commercial data demonstrate that the unoccupied areas are essential for the conservation needs of the species.
Our Policy on Information Standards Under the Endangered Species Act, published on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires that our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, and biological assessments, unpublished materials, and expert opinion or personal knowledge.
As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12), we used the best available scientific information in determining which areas were essential for the conservation of
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These include, but are not limited to: space for individual and population growth, and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for germination, or seed dispersal; and habitats protected from disturbance or which are representative of the historic geographical and ecological distributions of a species.
The long-term probability of conservation of
Based on our knowledge of this species to date, the primary constituent elements of critical habitat for
(1) Thin rocky soils that have developed on exposures of serpentine substrates (SHN 2001);
(2) Plant communities that support a relatively sparse assemblage of serpentine indicator or facultative-serpentine indicator species, including various native forbs and grasses but not trees or shrubs, such that competition for space and water (both above and below ground), and light is reduced, compared to the surrounding habitats (SHN 2001). Known associated species include:
(3) Serpentine substrates that contain 15 percent or greater (by surface area) of exposed gravels, cobbles, or larger rock fragments, which may contribute to alteration of factors of microclimate, including surface drainage and moisture availability, exposure to wind and sun, and temperature (SHN 2001); and
(4) Prairie grasslands and oak woodlands located within 30 m (100 ft) of the serpentine outcrop area on Ashfield Ridge. Protection of these habitats is essential to the conservation of the
In our delineation of the critical habitat unit, we selected areas to provide for the conservation of
We first mapped all known
We also mapped grasslands and oak woodlands surrounding the serpentine outcrops. These areas provide connectivity between all serpentine outcrops; maintain the hydrologic and edaphic integrity of the serpentine sites; and support biological agents of pollination and seed dispersal necessary for the conservation of the species. Inclusion of the grasslands and oak woodlands will also minimize impacts to serpentine outcrops resulting from external peripheral influences, such as erosion, grazing, or the spread of exotic species.
At this time, we are not designating as critical habitat any serpentine outcrops within Kneeland Prairie, other than the outcrops on Ashfield Ridge. A draft recovery plan is in preparation, which does not call for establishment of
We considered ownership status in delineating areas as critical habitat.
We used a geographic information system (GIS) to facilitate identification of critical habitat areas. We used information from recent biological surveys and reports; discussions with botanical experts; and locations of serpentine soils to create GIS data layers. Serpentine soil sites were derived from a geologic map, infrared color digital orthophotos, and global positioning system data collected in the field during 2000 and 2001. These data layers were created on a base of 1:24,000 scale USGS 3.75', infrared, color digital, orthophotographic, quarter quadrangle images. We used these data layers to map the primary constituent elements. We defined boundaries of the designated critical habitat unit by overlaying this map with a 100-m Universal Transverse Mercator (UTM) North American Datum of 1927 (NAD27) grid and removing all NAD27 grid cells that did not contain the primary constituent elements.
In selecting the critical habitat area, we attempted to avoid developed areas and other lands unlikely to contribute to the conservation of
As noted in the Critical Habitat section, “special management considerations or protection” is a term that originates in the definition of critical habitat. We believe the critical habitat area may require special management considerations or protection because
Additional special management is not required if adequate management or protection is already in place. Adequate special management considerations or protection are provided by a legally operative plan or agreement that addresses the maintenance and improvement of the primary constituent elements important to the species and manages for the long-term conservation of the species. Currently, no plans meeting these criteria have been developed for
The critical habitat area described below includes all the primary constituent elements discussed above, and constitutes our best assessment at this time of the areas needed for the species' conservation. Critical habitat is designated for
We are designating one unit of critical habitat, comprising 30 ha (74 ac), surrounding Kneeland Airport and roughly bisected by Mountain View Road. The unit includes all 5 known colonies and all other serpentine outcrops in close proximity to the colonies. All of the critical habitat unit for
The unit contains approximately 2 ha (5 ac) of serpentine soils. Approximately 16 percent (0.3 ha (0.8 ac)) of the serpentine soils are known to be occupied. However, undetected colonies may exist on the serpentine soils within the unit. The approximate area, by land ownership, of this unit is shown in Table 1. Approximately 5 percent (2 ha (4 ac)) of this area consists of State lands, while County lands comprise approximately 11 percent (3 ha (8 ac)), and private lands comprise approximately 84 percent (25 ha (62 ac)). No Federal lands are within the critical habitat unit. This species is not known to occur or to have occurred historically on Federal lands.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, permit, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the conservation of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory.
We may issue a formal conference report if requested by a Federal agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if the species was listed or critical habitat were designated. We may adopt the formal conference report as the biological opinion when the species is listed or critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (50 CFR 402.10 (d)).
If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the Federal action agency would ensure that the permitted actions do not jeopardize the species or destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide “reasonable and prudent alternatives” to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed if those actions may affect designated critical habitat, or adversely modify or destroy proposed critical habitat.
If
Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat would be those that alter the primary constituent elements to the extent that the value of critical habitat for the conservation of
(1) Ground disturbance of serpentine outcrops and grassland and oak woodland areas, including but not limited to grading, ripping, tilling, and paving;
(2) Alteration of serpentine outcrops, including but not limited to removal of boulders, mining, and quarrying;
(3) Removing, destroying, or altering vegetation in the critical habitat unit,
(4) Hydrologic changes or other activities that alter surface drainage patterns resulting in erosion of serpentine outcrops or adjacent areas, including but not limited to water diversion, groundwater pumping, irrigation, and erosion control;
(5) Construction or maintenance activities that destroy or degrade critical habitat, including but not limited to road building, building construction, airport expansion, drilling, and culvert maintenance or installation;
(6) Application or runoff of pesticides, herbicides, fertilizers, or other chemical or biological agents; and
(7) Emergency response and clean-up of fuel or other contaminant spills.
To properly understand the effects of critical habitat designation, we must first compare the requirements pursuant to section 7 of the Act for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 of the Act prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on the survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. Designation of critical habitat in areas occupied by
Designation of critical habitat could affect the following agencies and/or actions: Development on private, State, or county lands requiring permits or funding from Federal agencies, such as the U.S. Army Corps of Engineers, the Department of Housing and Urban Development, the FAA, or the Federal Highway Administration; construction of communication sites licensed by the Federal Communications Commission; and authorization of Federal grants or loans. These actions would be subject to the section 7 process. Where federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans submitted by the applicant to secure a permit to take according to section 10(a)(1)(B) of the Act would be subject to the section 7 consultation process.
If you have questions regarding whether specific activities would constitute adverse modification of critical habitat, contact the Project Leader, Arcata Fish and Wildlife Office (
Subsection 4(b)(2) of the Act allows us to exclude areas from the critical habitat designation where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in extinction of the species. As discussed in this final rule and our economic analysis for this rulemaking, we have determined that no significant adverse economic effects will result from this critical habitat designation. We believe the areas included in this designation are essential for the conservation of
No habitat conservation plans (HCPs) currently exist that include
In most instances, we believe that the benefits of excluding HCPs from critical habitat designations will outweigh the benefits of including them. In the event that future HCPs covering
Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider the economic and other relevant impacts of designating a particular area as critical habitat. Following the publication of the proposed critical habitat designation, a draft economic analysis was prepared by Economic & Planning Systems, Inc. for the Service. The draft analysis was made available for review on May 7, 2002 (67 FR 30643). The public comment on the draft analysis was open until June 6, 2002, however, we did not receive any comments.
Our economic analysis evaluated the potential future effects associated with the listing of
Upon identifying section 7 impacts, the analysis proceeds to consider the subset of impacts that can be attributed exclusively to the critical habitat designation. The upper-bound estimate includes both jeopardy and critical habitat impacts. The subset of section 7 impacts likely to be affected solely by the designation of critical habitat represents the lower-bound estimate of the analysis. The categories of potential costs considered in the analysis included costs associated with: (1) Identifying the effect of the designation on a particular parcel or land use activity (
The only reasonably foreseeable activity that will require consultation is the County's proposed Kneeland Airport improvement project. The analysis estimates economic costs for two possible outcomes from this consultation. Both estimates conclude that the costs are attributable co-extensively to the listing of
Based on our economic analysis, we concluded that the designation of critical habitat would result in little additional regulatory burden or associated significant additional costs above and beyond those attributable to the listing of
The economic analysis concludes that the only existing or reasonably foreseeable activity that will require consultation is the proposed Kneeland Airport improvement project. The most likely outcome of the consultation would be approval of the proposal as presented or a recommendation to implement minor project modifications. The precise nature of any recommended project modifications is difficult to predict in advance of the actual consultation, however, the economic analysis estimates that the type of minor modification that may be associated with a consultation may cost around $113,000. The analysis also estimated the potential cost to the economy under the extreme assumption that the improvement project was found to jeopardize the species or adversely modify critical habitat and that the Service is unable to identify any reasonable and prudent alternatives that would allow the project to proceed in another form. Cost associated with this scenario are estimated to range between $169,000 and $4.2 million depending on how the County's chooses to address the airport maintenance or whether or not they construct a replacement airport.
Because of
A copy of the final economic analysis and supporting documents are included in our administrative record and may be obtained by contacting the Arcata Fish and Wildlife Office (see
In accordance with Executive Order 12866, this document is a significant rule and has been reviewed by the Office of Management and Budget (OMB), as OMB determined that this rule may raise novel legal or policy issues. The Service prepared an economic analysis of this action. The Service used this analysis to meet the requirement of section 4(b)(2) of the Endangered Species Act to determine the economic consequences of designating the specific areas as critical habitat. The draft EA was made available for public comment, and we considered comments on it during the preparation of this rule.
Under the Regulatory Flexibility Act (5 U.S.C. 601
According to the Small Business Administration, small entities include
To determine if the rule would affect a substantial number of small entities, the Service considered the number of small entities affected within particular types of economic activities (
The economic analysis identified the Kneeland Airport improvement project as the activity most likely to be affected by this rulemaking. The analysis estimated that a future section 7 consultation could cost all involved parties a total of $20,300 and that likely mitigation could cost about $113,000. Kneeland Airport is owned by Humboldt County, which has a population of approximately 126,000. Because SBREFA defines a “small government jurisdiction” as “governments of cities, counties * * * with a population of less than fifty thousand.” (U.S.C. 601), Humboldt County was not considered a small entity for purposes of this analysis, even though the analysis did consider the potential effects of the airport improvement project. Similarly, the other private landowners are not considered small businesses under the scope of SBREFA.
The economic analysis did, however, consider whether the activities of these landowners have any Federal involvement because designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation. No Federal lands occur within the designated critical habitat unit. Land use within the majority of the unit, outside of the existing developed areas, consists of livestock grazing and unforested lands surrounding timber lands. None of these activities is likely to trigger a future section 7 consultation. The likelihood of future development in these areas is low, with the exception of the future airport expansion under consideration. If the proposed airport expansion proceeds, the Federal Aviation Administration will likely be required to consult with the Service under section 7 of the Act on activities that agency funds, permits, or implements that may affect
Should the airport expansion or another federally funded, permitted, or implemented project be proposed that may affect designated critical habitat, we will work with the Federal action agency and any applicant, through section 7 consultation, to identify ways to implement the proposed project while minimizing or avoiding any adverse effect to the species or critical habitat. In our experience, the vast majority of such projects can be successfully implemented with at most minor changes that avoid significant economic impacts to project proponents. The area designated as critical habitat is small, less than 30 ha (74 ac), and we have identified fewer than a half-dozen landowners. The scale of the designation ensures that the “substantial number of small entities” threshold of the Regulatory Flexibility Act will not be met.
Designation of critical habitat could result in an additional economic burden on small entities due to the requirement to reinitiate consultation for ongoing Federal activities. However, the Service is unaware of any ongoing Federal activities that affect this species, and since
Therefore, we certify that the designation of critical habitat for
As discussed above, this rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act (SBREFA). This final designation of critical habitat: (a) does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. As discussed in the draft economic analysis, no small entities as defined by SBREFA will potentially be affected by the designation of critical habitat.
Proposed and final rules designating critical habitat for listed species are issued under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply,
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This rule, as designated, will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will only be affected to the extent that they must ensure that any programs involving Federal funds, permits or other authorized activities will not adversely affect the critical habitat. In our economic analysis, we found the direct and indirect costs associated with critical habitat designation to be small in relation to any small governments potentially affected.
(b) This rule will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating 30 ha (74 ac) of lands in Humboldt County, California, as critical habitat for
In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policies, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in California. We will continue to coordinate any future changes in the designation of critical habitat for
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We designate critical habitat in accordance with the provisions of the Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of
This rule does not contain any new or revised information collections for which Office of Management and Budget approval is required under the Paperwork Reduction Act. Information collections associated with Act permits are covered by an existing OMB approval, and are assigned clearance No. 1018-0094, with an expiration date of July 31, 2004. The Service may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The Service has determined that it does not need to prepare an Environmental Assessment or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 (NEPA) in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. The Service published a notice outlining its reasons for this determination in the
In accordance Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities and the Endangered Species Act” June 5, 1997), with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no Tribal lands essential for the conservation of
A complete list of all references cited in this final rule is available upon request from the Arcata Fish and Wildlife Office (
The primary author of this document is Robin Hamlin (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and Transportation.
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
(h) * * *
3. Amend § 17.96(a) by adding an entry for
(a) Flowering plants.
Family Brassicaceae:
(1) A critical habitat unit is depicted for Humboldt County, California, on the map below.
(2) The primary constituent elements of critical habitat for
(i) Thin rocky soils that have developed on exposures of serpentine substrates;
(ii) Plant communities that support a relatively sparse assemblage of serpentine indicator, or facultative-serpentine indicator, species, including various native forbs and grasses, but not trees or shrubs, such that competition for space and water (both above and below ground) and light is reduced, compared to the surrounding habitats. Known associated species include the following:
(iii) Serpentine substrates that contain 15 percent or greater (by surface area) of exposed gravels, cobbles, or larger rock fragments, which may contribute to alteration of factors of microclimate, including surface drainage and moisture availability, exposure to wind and sun, and temperature; and
(iv) Prairie grasslands and oak woodlands located within 30 m (100 ft) of the serpentine outcrop area on Ashfield Ridge. Protection of these habitats is essential to the conservation of
(3) Existing features and structures within the boundaries of mapped critical habitat units, such as buildings, roads, airports, and other paved areas will not contain one or more of the primary constituent elements. Federal actions limited to those areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.
(4) Critical habitat unit. Humboldt County, California.
(i) From USGS. 1:24,000 scale Iaqua Buttes quadrangle, land bounded by the following UTM Zone 10 NAD27 coordinate pairs (East, North): 421800, 4507300; 422100, 4507800; 422100, 4507300; 422200, 4507600; 421700, 4507400; 421800, 4507500; 421600, 4507500; 421800, 4507900; 421800, 4507800; 421900, 4507900
(ii) Map follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the D season allowance of the pollock total allowable catch (TAC) for Statistical Area 610 of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), October 5, 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.
Within any fishing year, underage or overage of a seasonal allowance may be added to or subtracted from subsequent seasonal allowances in a manner to be determined by the Administrator, Alaska Region, NMFS (Regional Administrator), provided that the sum of the revised seasonal allowances does not exceed 30 percent of the annual TAC apportionment for the Central and Western Regulatory Areas in the GOA (§ 679.20(a)(5)(ii)(C)). For 2002, 30 percent of the annual TAC for the Central and Western Regulatory Areas is 15,187 metric tons (mt). For 2002, the Regional Administrator has determined that within each area for which a seasonal allowance is established, any overage or underage of harvest from the previous season(s) shall be subtracted from or added to the seasonal allowance of the following season provided that the resulting sum of seasonal allowances in the Central and Western Regulatory Areas does not exceed 15,187 mt in any single season. The D season allowance of the pollock TAC in Statistical Area 610 of the GOA is 5,949 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). The C season allowance in Statistical Area 610 was under harvested by 110 mt, therefore the Regional Administrator, in accordance with § 679.20(a)(5)(ii)(C), is increasing the D season pollock TAC in Statistical Area 610 by 110 mt to 6,059 mt.
In accordance with § 679.20(d)(1)(i), the Regional Administrator, has determined that the D season allowance of the pollock TAC in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 6,009 mt, and is setting aside the remaining 50 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 pollock in Statistical Area 610 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 section 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Bureau of the Census, Commerce.
Notice for proposed rulemaking and request for comments.
The U.S. Census Bureau (Census Bureau) is amending the Foreign Trade Statistics Regulations (FTSR) to incorporate requirements for the mandatory Automated Export System (AES)/AESDirect filing for items identified on the Department of Commerce's Commerce Control List (CCL) and the Department of State's United States Munitions List (USML). The AES is the electronic method to file the Shipper's Export Declaration (SED) and the ocean manifest information directly with the U.S. Customs Service (Customs). AESDirect is the Census Bureau's free Internet-based system for filing SED information with the Customs' AES. Further references to AES covers both AES and AESDirect. You are only required to file information via AES for those items that require a SED. This rule will, among other things, provide provisions for AES mandatory filing in the FTSR.
Submit written comments on or before December 9, 2002.
Please direct all written comments on this proposed rule to the Director, U.S. Census Bureau, Room 2049, Federal Building 3, Washington, DC 20233.
C. Harvey Monk, Jr., Chief, Foreign Trade Division, U.S. Census Bureau, Room 2104, Federal Building 3, Washington, D.C. 20233-6700, (301) 763-2255, by fax (301) 457-2645, or by e-mail:
On July 26, 2001, the Census Bureau published a program notice in the
The Census Bureau is responsible for collecting, compiling, and publishing trade statistics for the United States under the provisions of Title 13, United States Code (U.S.C.), Chapter 9, Section 301. The paper SED and the AES are the primary media used for collecting such trade data, and the information contained therein is used by the Census Bureau for statistical purposes only. This information is exempt from public disclosure under the provisions of Title 13, U.S.C., Chapter 9, Section 301(g). The SED and AES records also are used for export control purposes under Title 50, U.S.C., and Title 22, U.S.C., to detect and prevent the export of certain critical technology and commodities to unauthorized destinations or end users.
Under the current rules and regulations, export information is compiled from both paper and electronic transactions filed by the export community with Customs and the Census Bureau. The AES is an electronic method by which the U.S. principal party in interest or the authorized agent can transmit the required export information. For purposes of completing the SED or AES record, the U.S. principal party in interest (USPPI) is the person in the United States that receives the primary benefit, monetary or otherwise, from the export transaction. The authorized agent is the person in the United States who is authorized by power of attorney or written authorization by the USPPI or the foreign principal party in interest to prepare and file the SED or AES record. A paper SED or the electronic equivalent AES record is required, with certain exceptions, for exports of merchandise valued at more than $2,500 from the United States, Puerto Rico, and the United States Virgin Islands to foreign countries or exports between U.S. Virgin Islands and Puerto Rico and the United States. The SED or AES record also is required for all exports under a Bureau of Industry and Security (BIS) or Department of State (State Department) export license or State Department license exemption, regardless of value, unless exempted from the requirement for an SED or AES record by the State Department (
For export data filed via a paper SED, the USPPI or freight forwarder must present the SED to the exporting carrier when the cargo is tended to the carrier. The vessel, air or rail carrier must present the manifest and supporting documentation to the Customs Port Director at the port of export within four days after departure if a bond is posted with Customs. However, this rule does not apply to SEDs or AES shipments subject to BIS or State Department licenses or State Department license exemptions. If the information is filed in the AES, an exemption legend is included on the vessel, air, or rail manifest, or other commercial loading document indicating that no SED is attached, with a transaction identification number or unique identifier to identify the electronic AES record. If no manifest is required or the manifest is electronically filed, the paper SEDs or the electronically filed AES exemption legends are presented directly to Customs.
Electronic filing strengthens the U.S. Government's ability to control the export of critical goods and technologies and weapons of mass destruction to prohibited and unauthorized end-users and affords the government the ability to significantly improve the quality, timeliness, and coverage of export statistics. Currently, fifty (50) percent of the paper SEDs submitted contain one or more errors in export reporting, accounting for a significant percentage of unreported exports. Reporting on the AES has demonstrated that, compared to paper filing, the error rate is reduced substantially and coverage is improved. Currently, the error rate for export transactions filed through the AES is approximately six (6) percent. At this time, the electronic AES filing of the required export information under Title 13, U.S.C., Section 301, is strictly voluntary for the export of any item.
On November 29, 1999, the President signed H.R. 3194, the Consolidated
As authorized by Section 1252(b) of Pub. L. 106-113, the Census Bureau proposes to amend the FTSR to specify the mandatory provisions for electronically filing SEDs as well as the time and place requirements for filing. In addition, the Census Bureau proposes to amend the FTSR to specify: (1) The requirements for the filing of SEDs through the electronic AES and the provisions and responsibilities of parties exporting items identified on the CCL and USML via the AES; (2) the provision by the Department of Commerce for the establishment of on-line assistance services to be available for those individuals who must use the AES; (3) the provision by the Department of Commerce for ensuring that an individual required to use the AES is able to print out from the AES a validated record of the individual's submission, including the date of submission and a transaction number or unique identifier, where appropriate, for the export transaction; and (4) a requirement that the Department of Commerce print out and maintain on file a paper copy or other acceptable back-up record of the individual's submission at a location selected by the Secretary of Commerce. This rule defines the regulatory revisions that would be made to implement this legislation. The Census Bureau also proposes to amend the FTSR to specify how electronic export information is identified on the manifest by mode of transportation and define the carrier's responsibilities. In addition to proposing regulations on the provisions for the mandatory filing via the AES, this Notice of Proposed Rulemaking proposes to amend §§ 30.63 (14)-(21) to collect additional data through the AES to meet the State Department's requirements. Finally, this notice proposes to add to the paper SED the requirement to enter the freight forwarder's Employer Identification Number (EIN) when required. This requirement applies to filers who are not required to file through AES and who choose to file a paper SED, rather than filing voluntarily through AES.
One additional revision the Census Bureau proposes for the FTSR is the removal of AES Filing Option 3. Option 3 allows the filer to provide partial pre-departure information and complete information five (5) working days from the date of exportation. The Census Bureau identified four (4) specific reasons for making Option 3 inactive. Option 3 has shown to be underutilized by the AES filers. Option 3 filers have frequently shown noncompliance with timely filing for both the pre-departure and post departure filings and, therefore, the data collected are often incomplete and inaccurate because of missing post departure filings. Lastly, Option 3 has shown to be a burden by requiring filers to transmit twice for one shipment. Of the 734,916 total average AES shipment transactions collected per month, Option 3 filings average only 28,739 or 3.9 percent. Additionally, of the 5,000 plus AES filers, only 53 filers are using Option 3 and of those, only 7 use Option 3 exclusively.
The mandatory compliance date for these regulatory requirements would be 90 days after issuance of any final rule.
In order to comply with the requirements of Pub. L. 106-113, the Census Bureau proposes amending the appropriate sections of the FTSR to specify the requirements for the AES mandatory filing and the revision to the paper SED. For purposes of this rule, all references to filing mandatory AES shipments do not apply to the paper SED.
The Census Bureau proposes revising the following sections of the FTSR: (a) Section 30.1 to specify the general requirements for filing items identified on the CCL and USML, that require the SED, via the AES; (b) Section 30.7 to add instructions for filing the address of the USPPI, the freight forwarder's EIN on the paper SED, the transportation reference number, instructions for filing the gross shipping weight for air, vessel, truck and rail modes of transportation via paper and the AES and delete references to “marks and numbers”; (c) Section 30.12 to specify the instructions regarding the time and place for presenting SED information; (d) Section 30.21 to specify the departing carrier's responsibility for filing export and manifest data via paper and the AES; (e) Section 30.22 to specify the responsibilities of the departing carrier to deliver to the Customs Port Director at the time of exportation, the required documentation for electronically filed items; (f) Section 30.23 to amend the requirements for the pipeline carrier when the item is identified on the CCL or USML; (g) Section 30.60 is amended to specify participation requirements in the AES; (h) Section 30.61 to specify the electronic filing options required for mandatory filing and to delete references to Option 3; (i) Section 30.62 is amended to update the specifications for certification, qualification and standards for AES and AESDirect; (j) Section 30.63 to revise the requirements for entering a USPPI's profile in AES and to add data elements required in the AES to validate State Department's Office of Defense Trade Controls (ODTC) licensed or license-exempt shipments and to delete references to Option 3; (k) Section 30.65 to specify the requirements for annotating the proper exemption legends when exports are filed through the AES; (l) Section 30.66 to specify requirements as stated in Section 1252(b)(2) of Pub. L. 106-113, which pertains to record keeping and documentation requirements; (m) revise Appendix A to amend the instructions for the Letter of Intent; (n)
The State Department and the Department of Treasury concur with the provisions contained in this notice of proposed rulemaking.
This proposed rule is exempt from all requirements of Section 553 of the Administrative Procedure Act, because it deals with a foreign affairs function of the United States (5 U.S.C. 553(a)(1)). However, this rule is being published as a proposed rule with an opportunity for public comment, because of the importance of the issues raised by this rulemaking.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant impact on a substantial number of small entities. This action requires that exporters file export information through the AES for items identified on the CCL and USML that currently require the SED. Currently, 85 percent of all export transactions are voluntarily filed electronically and the remaining 15 percent are filed on paper SEDs.
Based on year 2000 data, the Census Bureau estimates there were 128,000 exporters who were considered small entities under the Small Business Act—because they had less than 500 employees—and that filed one or more export shipments. Of these 128,000 exporters, 90 percent used a forwarding agent to file export documentation, the SED, on their behalf. Although, it is not possible to determine how many of the 128,000 small businesses exported merchandise identified on the CCL or the USML and that are currently required to file an SED, the Census Bureau anticipates that the new requirement would not significantly affect the small businesses who must now file through AES. It is unlikely that the regulations that require mandatory use of AES to file export information would affect a substantial number of small entities because 90 percent of all exporters who are considered small entities already use a forwarding agent to file export documentation.
In addition, those small exporters that do not currently use a forwarding agent to file export documentation will not be significantly impacted by this regulation. We can safely assume that small businesses involved in exporting items on the CCL and USML are electronically sophisticated, and would have access to a computer and the Internet. The Census Bureau has provided a free Internet-based system, AESDirect, especially for small businesses to submit their export information electronically. The implementation of AESDirect was the primary criteria required in order for Section 1252 of Pub. L. 106-113 to become effective. Therefore, it is not necessary for small businesses to purchase software for this task. Small businesses currently filing paper and who will now be required to file electronically will be able to continue to use their current forwarding agent who will be required to file the export information electronically on their behalf or the exporters can use AESDirect and file directly for themselves.
This rule has been determined to be not significant for purposes of Executive Order 12866. It has been determined that this rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
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), unless that collection of information displays a current, valid Office of Management and Budget (OMB) control number. In accordance with the PRA, 44 U.S.C., Chapter 35, OMB approved on April 26, 2002, with control number 0607-0512, the collection of all information associated with the AES and SED under this rule. We estimate that each electronic SED will take approximately 3 minutes to complete; we estimate that each paper SED will take approximately 11 minutes to complete.
Economic statistics, Foreign trade, Exports, Reporting and record keeping requirements.
For the reasons set out in the preamble, it is proposed that Part 30 be amended as follows:
1. Revise the authority citation for part 30 to read as follows:
5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization Plan No. 5 of 1950 (3 CFR 1949-1953 Comp., 1004); and Department of Commerce Organization Order No. 35-2A, July 22, 1987, as amended.
2. In Part 30, revise all references to the “Bureau of Export Administration” to read the “Bureau of Industry and Security” and revise all reference to “BXA” to read “BIS.”
3. Revise the heading of Subpart A to read as follows:
4. Amend § 30.1 to revise all references to “exporters or their authorized agents” to read “U.S. principal party in interest or the authorized agent,” in paragraph (a), revise paragraph (b) and paragraph (c) to read as follows:
(b) Export information that is required to be filed for items identified on the Commerce Control List (CCL) of the Export Administration Regulations (EAR) (15 CFR Supplement No. 1 to Part 774) or the U.S. Munitions List (USML) of the International Traffic in Arms Regulations (ITAR) (22 CFR, part 121) is to be filed electronically through AES. This requirement to file information via AES applies to those items that require a Shipper's Export Declaration. Exemptions from these requirements and exceptions to some of the provisions of these regulations for particular types of transactions are found in subparts C and D of this part.
(c) In lieu of filing paper SEDs as provided elsewhere in this Section, the U.S. principal party in interest or the authorized agent is required to file shippers' export information, when required, electronically through the AES for the export of items identified on the CCL of the EAR (15 CFR Supp. No. 1 to part 774) or the USML of the ITAR (22 CFR, part 121) as provided for in
5. Amend § 30.7 as follows:
a. Add paragraph (d)(3).
b. Revise the first sentence of paragraph (e).
c. Remove and reserve paragraph (k).
d. Revise paragraphs (j) and (o).
e. Add a sentence after the second sentence in paragraph (l).
The additions and revisions read as follows:
(d) * * *
(3)
(e)
(j)
(1)
(2)
(3)
(4)
(k) [Reserved]
(l) * * * Include marks, numbers or other identification shown on packages and the number and kinds of packages (
(o)
6. Revise § 30.12 to read as follows:
The following conditions govern the time and place to present paper SEDs or the AES transaction identification number that identifies the electronic record. It is the duty of the principal party in interest or the authorized agent to deliver the required number of copies of the SED or the exemption legends when the cargo is tendered to the exporting carrier. Information on items identified on the Commerce Control List (CCL) of the EAR (15 CFR Supp. No. 1 to part 774) or the U.S. Munitions List (USML) of the International Traffic in Arms Regulations (ITAR) (22 CFR, Part 121) that require an SED, must be filed through the AES. Information for items identified on the USML, including those exported under an export license exemption, must be filed electronically prior to export, unless exempted from the SED filing requirements by the State Department. For State Department USML shipments, refer to the ITAR (22 CFR, Parts 120-130) for more specific requirements concerning the AES exemption legend and filing time requirements. Failure of the U.S. principal party in interest or the authorized agent of either the U.S. principal party in interest or foreign principal party in interest to comply with these requirements constitutes a violation of the provisions of these regulations, and renders such principal party or the authorized agent subject to the penalties provided for in § 30.95 of this part.
(a)
(b)
(c)
(d)
7. Revise § 30.21 to read as follows:
Carriers transporting merchandise via vessel, aircraft, or rail are required to file an outbound manifest (along with the required SEDs, supporting documentation and/or the exemption statement) to the Customs Port Director at the port of exportation. Outbound vessel manifests may be filed via paper or electronically through the vessel transportation module, a component of the AES, as provided in U.S. Customs Service Regulations, 19 CFR 4.63 and 4.76. SEDs may be filed via paper or electronically via the AES.
(a)
(b)
(c)
(d)
(e)
(f)
(1)
(i)
(ii)
(2)
(3)
(4)
8. Amend § 30.22 by adding a sentence to the end of paragraph (a), adding a sentence after the first sentence in paragraph (b), and adding paragraph (f) to read as follows:
(a) * * * When the export information for a shipment is filed via the AES, the carrier is responsible for presenting the proper AES exemption legend as provided in § 30.65 of this part and the ITAR (22 CFR part 121) for U.S. Munitions List (USML) shipments.
(b) * * * If the export information is filed electronically via the AES, the carrier is responsible for providing the Customs Port Director at the port of exportation with the proper AES exemption legend as provided in § 30.65 of this part and the ITAR (22 CFR, part 121) for U.S. Munitions List (USML) shipments.
(f) Information on items identified on the Commerce Control List of the EAR (15 CFR Supp. No. 1 to part 774) or the U.S. Munitions List of the ITAR (22 CFR part 121) that require an SED, must be filed through AES. The exporting carrier must not accept paper SEDs or cargo that does not have the appropriate AES filing exemption legend as set forth in § 30.65 of this part and the ITAR (22 CFR part 121) for U.S. Munitions List (USML) shipments. Acceptance of paper SEDs or cargo without the appropriate exemption legend constitutes a violation of the provisions of these regulations, and renders such carrier subject to the penalties provided for in § 30.95 of this part.
9. Amend § 30.23 by adding a sentence to the end of the paragraph to read as follows:
* * * If the merchandise transported by pipeline is identified on the Commerce Control List of the EAR (15 CFR Supplement No.1 to part 774) or the U.S. Munitions List of the ITAR (22 CFR, part 121), and requires an SED, the data regarding the shipment must be filed electronically through the AES.
10. Amend 30.60 to revise paragraph (a) to read as follows:
(a)
11. Amend § 30.61 to revise the introductory text, remove paragraph (b), and redesignate paragraph (c) as paragraph (b) to read as follows:
As an alternative to filing paper Shipper's Export Declaration forms (Option 1), two electronic filing options (Option 2 and 4) for transmitting shipper's export information are available to U.S. principal parties or the authorized filing agent. The electronic filing Option 4 takes into account that complete information concerning export shipments is not always available prior to exportation. Information on the export of items identified on the Commerce Control List of the EAR (15 CFR Supplement No. 1 to part 774) or the U.S. Munitions List of the ITAR (22 CFR, part 121) that require an SED can be filed using Options 2 or 4. Option 4 may only be used when the appropriate licensing agency has granted the U.S. principal party in interest or the authorized agent authorization to use this option. The available AES electronic filing options are as follows:
12. Revise § 30.62 to read as follows:
Certification for AES filing will apply to the U.S. principal party in interest, authorized forwarding agent, carrier, non-vessel operating common carriers (NVOCC), consolidator, port authority, software vendor, or service center transmitting export information electronically using the AES.
(a)
(1) The date that filers may begin transmitting “live” data electronically using AES;
(2) Reporting instructions; and
(3) Examples of the required AES exemption legends.
(b) AES
(c)
(d)
(1) AES
(2) Registered companies are responsible for those persons having a user name and password. If an employee with access to the user name
(3) Antivirus software must be installed and set to run automatically on all computers that access AES
13. Amend § 30.63 by revising paragraph (a)(1), (b)(11), (b)(13), and (c), and by adding paragraphs (b)(14) through (b)(21) to read as follows:
(a) * * *
(1)
(ii)
(b) * * *
(11)
(i)
(ii)
(iii)
(iv)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(c)
14. Revise § 30.65 to read as follows:
(a) Items identified on the U.S. Munitions List (USML), must meet the predeparture reporting requirements identified in the ITAR (22 CFR Parts 120-130) for the State Department requirements concerning AES exemption legends and time and place of filing.
(b) For shipments other than USML, the U.S. principal party in interest or the authorized agent is responsible for annotating the proper exemption legend on the bill of lading, air waybill, or other commercial loading document for presentation to the carrier prior to export. The carrier is responsible for providing the proper exemption legend to the Customs Port Director at the port of exportation as stated in § 30.21 of this Part. The exemption legend will identify that the shipment information has been accepted as transmitted and electronically filed using the AES. The exemption legend must appear on the bill of lading, air waybill, or other commercial loading documentation and the manifest and must be clearly visible and include either of the following:
(1) For shipments other than USML, the exemption legend will include the statement, “NO SED REQUIRED—AES,” followed by the filer's identification number and a unique shipment reference number referred to as the “XTN” or the returned confirmation number provided by AES when the transmission is accepted, referred to as the “ITN.” Items on the USML must meet the pre-departure reporting requirements in the ITAR (22 CFR parts 102-130).
(2) For U.S. principal parties in interest who have been approved to participate in Filing Option 4, the exemption statement, “NO SED REQUIRED—AES4,” followed by the U.S. principal party's in interest employer identification number followed by the filer's identification number if other than the U.S. principal party in interest files the data.
15. Revise § 30.66 to read as follows:
(a)
(b)
(c)
16. Amend Appendix A as follows:
a. Add an introductory paragraph;
b. Revise items A.5, A.6, and A.10;
c. Remove item A.6(i) and redesignate items A.6(ii) and A.6(iii) as A.6(i) and A.6(ii), respectively;
d. Revise paragraphs B and C;
e. Add paragraph D.
The additions and revisions read as follows:
The first requirement for participation in AES is a Letter of Intent. The Letter of Intent is a written statement of a company's desire to participate in AES. It must set forth a commitment to develop, maintain, and adhere to Customs and Census performance requirements and operations standards. Once the letter of intent is received, a U.S. Customs Client Representative and U.S. Census Bureau Client Representative will be assigned to the company. Census will forward additional information to prepare the company for participation in AES.
A. Letters of Intent should be on company letterhead and must include:
5. Computer Site Location Address, City, State, Postal Code (Where transmissions will be initiated)
6. Type of Business—U.S. Principal Party in Interest, Freight Forwarder/Broker, Carrier, NVOCC, Port Authority, Software Vendor, Service Center, etc. (Indicate all that apply)
(i) Freight Forwarders/Brokers, indicate the number of U.S. principal parties in interest for whom you file export information (SEDs)
(ii) U.S. Principal Parties in Interest, indicate whether you are applying for AES Option 2 or Option 4
* * *
10. Filer Code—EIN, SSN or SCAC (Indicate all that apply)
B. The following self-certification statement, signed by an officer of the company, must be included in your letter of intent: “We (COMPANY NAME) certify that all statements made and all information provided herein are true and correct. I understand that civil and criminal penalties, including forfeiture and sale, may be imposed for making false or fraudulent statements herein, failing to provide the requested information or for violation of U.S. laws on exportation (13 U.S.C. Sec. 305; 22 U.S.C. Sec. 401; 18 U.S.C. Sec. 1001; 50 U.S.C. App. 2410.”
C. The AES Option 4 privilege allows a U.S. principal party in interest to send no data prior to exportation and complete data within 10 working days after exportation. Participants will be reviewed by several government agencies prior to acceptance into the Option 4 program.
D. Send AES or Option 4 Letter of Intent to : Chief, Foreign Trade Division, U.S. Census Bureau, Washington, DC 20233. Or, the copy can be faxed to : 301-457-1159.
17. [Removed] Remove and reserve Appendix B.
Federal Energy Regulatory Commission.
Notice of public conference.
On February 9, 2000, the Commission issued Order No. 636, amending its regulations in response to growing development of more competitive markets for natural gas and the transportation of natural gas (65 FR 10156, February 25, 2000). The Commission is holding a public conference to engage industry members and the public in a dialogue about policy issues facing the natural gas industry today and the Commission's regulation of the industry of the future.
Office of the Secretary, Federal Energy Regulatory Commission, 888 First street, NE., Washington, DC 20426.
Kenneth P. Niehaus, Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC, (202) 502-6398,
1. The Federal Energy Regulatory Commission (FERC) will hold a conference on October 25, 2002, to engage industry members and the public in a dialogue about policy issues facing the natural gas industry today and the Commission's regulation of the industry for the future. The Commission expects a wide ranging discussion that will help the Commission establish its regulatory goals for an industry that anticipates long term growth to reach 30-Tcf annually. The Commission anticipates exploring issues concerning: (1) Supply and demand; (2) the application of the Commission's open access polices to liquefied natural gas (LNG) import facilities; (3) the Commission's Outer Continental Shelf (OCS) gathering policy; and (4) the flexibility pipelines need to serve historical load as well as new demand. In addition, the Commission will provide an opportunity for market participants and other interested persons to raise issues and make policy recommendations for Commission consideration.
2. In 1997, the Commission held a conference to revisit its approach to natural gas regulation in light of significant changes in the structure of the natural gas industry that occurred as a result of Order No. 636.
3. In Order No. 637,
4. The increasing demands placed on pipelines by new electric generation load may impact the flexibility pipelines currently have in meeting the service demands of historical customers. In its Annual Energy Outlook 2002, Energy Information Administration (EIA) forecasts that natural gas for power generation will grow 4.6 percent annually, reaching from 9.65 to 10.36 Tcf in 2020 depending on economic growth (consumption in 2000 was 4.24 Tcf).
5. The economy, mild weather patterns, and major developments in the financial foundation and structure of the energy industry may also have important repercussions on long term markets, supplies, and investment in infrastructure. Reduction in market capitalization of many major energy players, substantial layoffs, the exiting and restructuring of many companies' energy trading business, bankruptcies, the sale of major assets by major energy players, and the cancellation of many future gas-fired generation projects all may potentially affect natural gas markets and the infrastructure it depends upon.
6. Even with the nation's current economic slowdown, however, natural gas demand continues to grow. Overall, EIA projects that the natural gas market will grow from the 22.83 Tcf consumed in 2000 to between 30.02 to 32.63 Tcf in 2015, with projections for 2020 from 32.03 to 34.99 Tcf, depending on economic growth. All the above mentioned events may impact the industry's ability to prepare for and meet the future anticipated demand.
7. The purpose of this conference is to discuss short and long term issues that may impact the Commission's regulation of the natural gas industry. The Commission wants to explore whether the Commission's current regulatory approach in natural gas fosters or impedes supply production and investment in development of the infrastructure needed to meet the anticipated long term growth to 30-Tcf annually. In addition to providing an open forum for communicating with the Commissioners, the Commission wishes to address the following topics.
8. EIA projects that natural gas consumption could reach 34.99 Tcf annually in 2020. Decreasing gas prices have resulted in a reduction in capital expenditures for development in natural gas production. Evidence indicates that production in traditional supply regions, including onshore gas production in the Permian Basin and offshore in the shallow shelf of the Gulf of Mexico, is in decline. At the same time, Canadian imports have been falling while domestic exports to Mexico have been increasing. Additionally, concerns have been raised relating to potential barriers that may restrict the domestic producing community's ability to meet the projected demand. The Commission wishes to explore natural gas supply issues and their impact on the infrastructure needed to meet forecasted demand.
9. In the 1970's the Commission authorized the construction and operation of several LNG import terminals to provide a needed supplemental source of gas supplies to U.S. markets.
10. The Commission recognizes that LNG imports are expected to become a key supply source in the U.S. over the next ten years. We believe it is time to reexamine our existing policy in light of the changes that have occurred in the gas industry since that time. While the Commission recently denied a request to disclaim jurisdiction over the siting, construction, and operation of LNG facilities,
11. In
12. Natural gas is now the fuel of choice for new power generation due to the efficiency of technology, low initial investment costs, relative ease of siting new plants, and lower pollutant emissions. Electric generation load is more variable through a given day than a traditional pipeline customer load.
13. In addition to addressing the above mentioned issues, the Commission also seeks to encourage industry representatives and interested individuals to raise other issues for the Commission to consider in shaping its future regulatory policies concerning the natural gas industry. The Commission envisions that the conference will consist of panels and an open forum that will give all interested individuals an opportunity to raise issues.
14. The conference will be held on October 25, 2002 at FERC, 888 First Street, NE., in Washington, DC in the Commission Meeting Room. The public is invited to attend. Anyone interested in participating should contact Ken Niehaus at 202-502-6398 or at
15. The conference will be transcribed. Those interested in acquiring the transcript should contact Ace Reporters at 202-347-3700 or 800-336-6646. Transcripts will be placed in the public record ten days after the Commission receives the transcripts. Additionally, Capitol Connection offers the opportunity for remote listening and viewing of the conference. It is available for a fee, live or over the Internet, via C-Band Satellite. Persons interested in receiving the broadcast, or who need information on making arrangements should contact David Reininger or Julia Morelli at Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection website at
Customs Service, Treasury.
Notice of proposed rulemaking.
This document proposes to amend the Customs Regulations to increase the hourly percentage rate of charge for reimbursable Customs services. In a previous document published in the
Further, this document proposes to increase the percentage rate of charge for administrative overhead costs associated with providing overtime
Comments must be received on or before December 9, 2002.
Written comments may be addressed to, and inspected at, U.S. Customs Service, Office of Regulations and Rulings—Regulations Branch, 1300 Pennsylvania Avenue, NW., Washington, DC 20229. Written comments may be inspected at U.S. Customs Service, 799 9th Street, NW., Washington, DC. during regular business hours. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 572-8768.
Dennis Lomax, Revenue Branch, National Finance Center, Indianapolis, IN 46278; telephone (317) 298-1200, ext. 1404.
Under certain circumstances, Customs provides inspectional and supervisory services to parties-in-interest who request such Customs services during regular hours of duty or on an overtime basis. When these Customs services are provided, however, the party-in-interest is required to reimburse the Government for the Customs employee's compensation and other chargeable expenses. Customs authority to charge these expenses is contained at 31 U.S.C. 9701, which provides, in part, that each government service provided to identifiable persons is to be as self-sustaining as possible and that the fees and charges established by the agency are to be based on the costs to the Government in providing the service.
The amount of compensation and expenses chargeable to parties-in-interest for reimbursable Customs services performed during regular hours of duty is presently based on a computational formula that yields an hourly percentage rate of charge that is provided for in the introductory text of § 24.17(d) of the Customs Regulations (19 CFR 24.17(d)), plus a reimbursable charge for Medicare compensation that is provided for at § 24.17(f), and a reimbursable charge for administrative overhead costs that is provided for at § 24.21. The rate of charge for reimbursable Customs services performed on an overtime or outside the basic 40-hour workweek basis is provided for at other sections in part 24 of the Customs Regulations (
The charge currently provided for the reimbursable services of a Customs employee performed on a regular workday during a basic 40-hour workweek, pursuant to § 24.17(d), is computed at a rate that is equal to 137 percent of the hourly rate of regular pay of the particular employee (plus additional charges for any night pay differential). This charge is based on a five-factor formula that computes an hourly percentage rate of charge that is intended to recover the estimated costs of various employee benefits such as leave, holidays, retirement, and life and health insurance and is only used to determine the costs of providing reimbursable Customs services during a basic 40-hour workweek.
In addition to the base 137 percent rate of charge for reimbursable Customs services performed during a basic 40-hour workweek, § 24.21 provides that 15 percent of the compensation and/or expenses of the Customs employee performing the reimbursable service is chargeable to parties-in-interest for administrative overhead costs. This 15 percent rate of charge for administrative overhead costs has been in effect for nearly 20 years.
In addition to the base 137 percent rate of charge set forth in § 24.17(d) and the 15 percent rate of charge set forth in § 24.21, § 24.17(f) further provides that parties-in-interest are also required to reimburse Customs for its share of Medicare costs for the employee. Section 24.17(f) currently provides that 1.35 percent of the reimbursable compensation expenses incurred will be the payment for Medicare costs. However, the regulations are incorrect because, pursuant to 26 U.S.C. 3111(b), Medicare compensation costs are to be recovered at a rate of charge that is equal to 1.45 percent of the reimbursable compensation expenses incurred.
On February 1, 2001, Customs published a Notice of Proposed Rulemaking (Notice) in the
Comments were solicited on this proposed rulemaking from interested parties with a response date of April 2, 2001. Five comments were timely received: three were from trade associations and two were from express consignment operators. All of the comments expressed general concern about the added increase in costs if the proposed increase in the hourly percentage rate of charge is adopted. Based on these comments, a review of the estimated costs of providing reimbursable Customs services during a basic 40-hour workweek was undertaken.
The comments and the results of Customs review of the computational formula and the additional charges for administrative overhead and Medicare costs associated with providing reimbursable Customs services during a basic 40-hour workweek are addressed below.
A third commenter stated that if the numbers utilized for annual and sick leave were 50 percent of those being proposed, the computational formula would more accurately reflect the actual figures for work and non-work time, and thus provide a more accurate invoice for reimbursable charges. Noting that express carriers are responsible for reimbursement of Customs fees at double the normal rate of charge, it was stated that when benefits and administrative fees are added and then doubled the actual cost to an express operator for each $1.00 of salary cost is $3.04 under the current provisions and would be increased to $3.46 under the proposed rule. This commenter states that this 13.8 percent increase is significant and creates a real economic burden; however, if the numbers utilized for annual and sick leave were reduced by 50 percent the impact on express operators would be reduced from a 13.8 percent increase to only 5.3 percent, a far more realistic and acceptable increase.
These commenters urged Customs not to adopt the proposed rule; to completely review the Notice regarding the issues raised; and expressed a strong preference for eliminating entirely the current system under which reimbursable charges are assessed, preferring a system that is transparent and simple. Specifically, these commenters advocated a system funded on a transaction-based fee,
Customs now addresses the comment regarding express carriers being responsible for reimbursement of Customs fees at double the normal hourly rate of charge and that if the numbers utilized for annual and sick leave were reduced by 50 percent of those being proposed the computational formula would more accurately reflect the actual figures for work and non-work time, providing a more accurate invoice for reimbursable charges. Customs does not agree with this comment. First, Customs does not charge for non-work time (
Further, any increase in the hourly rate of charge percentage must represent reimbursement to the Government for actual expenses. Accordingly, Customs cannot adopt an artificial number,
It is also noted that the impact of the proposed increase in the hourly rate of charge percentage contained in this document (discussed below) is less than 1 percent of what is currently billed.
Regarding the comment proposing a system funded on a transaction-based fee,
Customs agrees that the current system is not transparent and simple. While there is a computational formula set forth in the introductory paragraph of § 24.17(d) for determining reimbursable charges for Customs services, the actual billing practice to collect the fees for Customs services provided entails billing for costs and expenses that are not included in the formula, but are found in various sections of the Customs Regulations: §§ 24.16, 24.17 (other than the introductory paragraph of paragraph (d)), and 24.21. To remedy this situation, Customs is proposing in this document a new formula basis that would consolidate various regulatory provisions for clarity and be more accurate in providing reimbursement to Customs for the actual costs and expenses associated with providing requested Customs services.
Based upon the comments received to the initial Notice published on February 1, 2001, and upon further consideration of the factors employed in the computational formula to represent reimbursement to Customs for the costs and expenses associated with providing requested Customs services, Customs has decided to no longer use the five-factor computational formula that is presently used to determine the hourly percentage rate of charge for reimbursable Customs services. The computational formula currently provided at § 24.17(d) contains outdated cost factors and other factors that do not capture the actual costs to Customs of providing inspectional and supervisory services. Customs now believes that a straight comparison of actual costs based on data every other year—beginning with fiscal year 2000—yields an hourly percentage rate of charge that provides Customs with a firm basis for determining the fees it needs to charge for reimbursable Customs services. Further, Customs believes that consolidating the various regulatory provisions that comprise all the costs and expense factors used to charge parties-in-interest for requested Customs services will provide the trade community with the clarity it needs to understand how Customs arrives at the percentage rate charged.
This document sets forth a new proposed methodology for determining the rate of charge for reimbursable Customs services performed on a regular workday during a basic 40-hour workweek, and, based on that methodology, proposes that the rate of charge be increased to a single rate of 154 percent of the hourly rate of regular pay of the employee performing the service. This new proposed hourly percentage rate of charge employs an updated computational formula that is based on the ratio of actual benefits to salary for personnel in the Office of Field Operations who performed
For the Office of Field Operations for fiscal year 2000, the ratio of benefits to salary was determined as follows:
Thus, the benefits rate of charge is calculated to be 24 percent. In determining this benefits ratio, Medicare costs are included. Medicare costs are not considered within the 137 percent rate of charge currently set forth in the regulations at § 24.17(d); they are added on to the 137 percent pursuant to § 24.17(f).
Because the Medicare compensation cost is directly factored into the proposed percentage rate of charge, it is proposed to revise paragraph (f) of § 24.17 to limit its application to provisions other than the provision providing for reimbursable Customs services during a regular workweek. Also, the reference to 1.35 percent is removed, as the rate was changed to 1.45 percent in 1986 by the Federal Insurance Contributions Act (FICA), which establishes this compensation charge.
Currently, in addition to the charge of 137 percent and the Medicare charge, Customs charges for administrative overhead for services performed during the regular workweek. Administrative overhead is provided for at § 24.21 of the Customs Regulations. In this document, Customs is proposing to consolidate the administrative overhead charge for work during a regular workweek into the hourly percentage rate of charge.
Section 24.21(a) provides, in part, that an additional charge for administrative overhead costs must be collected from parties-in-interest who are required to reimburse Customs for compensation and/or expenses of Customs officers performing reimbursable and overtime services for the benefit of such parties under either § 24.16 or § 24.17. This charge is currently represented by the flat rate of charge of 15 percent. The flat rate of charge was adopted in 1984 because at that time Customs did not have a formal accounting system for determining the indirect costs of administrative overhead and chose to adopt the Treasury Department's recommendation that 15 percent of the identified costs of providing such services be used. See T.D. 84-231.
To determine whether the 15 percent administrative overhead charge truly represented reimbursement to the government, Customs took the actual indirect costs of administrative overhead expenses during regular hours of duty (not costs for overtime or services delivered outside the basic workweek) for the Office of Field Operations for fiscal year 2000 and found the following relationship:
Thus, the charge for administrative overhead is determined to be 30 percent of the compensation and/or expenses of the Customs officers performing the services. Combining the direct benefit and the indirect administrative overhead rates of charge gives a single rate of charge percentage that is calculated as follows:
Taking these tabulations into consideration, Customs in this document is proposing to amend § 24.17(d) to reflect that the charges for the services of a Customs employee on a regular workweek during a basic 40-hour workweek will be computed at 154 percent of the hourly rate of regular compensation for the particular Customs employee performing the services.
Because the administrative overhead cost is directly factored into the proposed percentage rate of charge for work during a regular workweek, Customs is proposing to amend § 24.21(a) to remove the references to reimbursable services and § 24.17.
Customs also examined the relationship between administrative overhead expenses for overtime services and the compensation and/or expenses of the Customs officers performing overtime services. Customs took the actual indirect costs of administrative overhead expenses associated with providing Customs services on an overtime basis for the Office of Field Operations for fiscal year 2000 and found the following relationship:
This 30 percent rate more accurately reflects the Government's cost in providing administrative overhead services to parties-in-interest. Accordingly, it is proposed to amend § 24.21(a) to reflect that the rate of charge for administrative overhead for Customs officers performing overtime services will be 30 percent of the compensation and/or expenses of the Customs officers performing the service. A conforming change is proposed to § 24.17(e).
With the proposed amendments to part 24 of the Customs Regulations, Customs believes that the calculation of the percentage charges for Customs services provided on either a reimbursable or overtime basis is more transparent and simple to compute.
The proposed new percentage rates of charge set forth in this document more accurately reflects the Government's actual costs in providing these services to parties-in-interest and will be reviewed biennially using the actual costs and expenses associated with providing requested reimbursable Customs services from the preceding fiscal year.
In § 101.6, it is proposed to amend paragraph (a) by updating the list of national holidays on which Customs offices are closed by adding the third Monday in January, and the heading of paragraph (b) by correcting a typographical error.
Before adopting these proposed regulations as a final rule, consideration will be given to any written comments timely submitted to Customs, including comments on the clarity of this proposed rule and how it may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552), § 1.5 of the Treasury Department Regulations (31 CFR 1.5), and § 103.11(b) of the Customs Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9:00 a.m. and 4:30 p.m. at the Regulations Branch, Office of Regulations and Rulings, U.S. Customs Service, 799 9th Street, NW., Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 572-8768.
The proposed amendments are intended to conform the Customs regulations with statutory laws, which provide for ten legal public holidays and allow Customs to assess reimbursable charges to those parties-in-interest who require Customs services on either a reimbursable or overtime basis. Further, in the case of reimbursable charges for Customs services performed during regular hours of duty, because the proposed increases in the percentage rates of charge yield a combined increase that is so small (an increase of only .55 percent), pursuant to provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The principal author of this document was Gregory R. Vilders, Attorney, Regulations Branch, Office of Regulations and Rulings. However, personnel from other offices participated in its development.
Accounting, Customs duties and inspection, Fees, Financial and accounting procedures, Reimbursable charges, Reporting and recordkeeping requirements, Wages.
Customs duties and inspection, Organization and functions (Government agencies), Reimbursable charges, Reporting and recordkeeping requirements, Wages.
For the reasons set forth above, it is proposed to amend parts 24 and 101 of the Customs Regulations (19 CFR parts 24 and 101), as set forth below:
1. The general authority citation for part 24 continues to read, and the specific authority for § 24.17 is revised to read, as follows:
5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 23, Harmonized Tariff Schedule of the United States), 1505, 1624; 26 U.S.C. 4461; 4462; 31 U.S.C. 9701.
Section 24.17 also issued under 5 U.S.C. 6103; 19 U.S.C. 267, 1450, 1451, 1452, 1456, 1524, 1557, 1562; 46 U.S.C. 2110, 2111, 2112;
2. In § 24.17:
a. The introductory text of paragraph (d) is revised and the table following the introductory text is removed;
b. Paragraph (e) is revised; and
c. Paragraph (f) is revised.
The revisions to paragraphs (d), (e), and (f) read as follows:
(d)
(e) The reimbursable charge for Customs services performed on an overtime basis shall be computed in accordance with §§ 24.16 and 24.21(a).
(f)
3. In § 24.21, the heading and paragraph (a) are revised to read as follows:
(a)
1. The general authority citation for part 101 is revised to read as follows:
5 U.S.C. 301, 6103; 19 U.S.C. 2, 66, 1202 (General Note 23, Harmonized Tariff Schedule of the United States), 1623, 1624, 1646a.
2. In § 101.6:
a. Paragraph (a) is revised; and
b. Paragraph (b) is amended by removing the word “hgurs” in the heading and adding, in its place, the word “hours”.
The revision reads as follows:
(a)
(i) January 1;
(ii) The third Monday in January;
(iii) The third Monday in February;
(iv) The last Monday in May;
(v) July 4;
(vi) The first Monday in September;
(vii) The second Monday in October;
(viii )November 11;
(ix) The fourth Thursday in November; and
(x) December 25.
(2)
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the state of Iowa. The SIP revisions, regarding the State's construction permitting rules as they pertain to industrial anaerobic lagoons and anaerobic lagoons for animal feeding operations in Iowa, will help ensure Federal enforceability of the state's air program. In the final rules section of the
Comments on this proposed action must be received in writing by November 8, 2002.
Comments may be mailed to Lynn Slugantz, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Lynn Slugantz at (913) 551-7883.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for
We are soliciting data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise this proposal to incorporate or address new information received during the comment period.
We will accept comments until December 9, 2002. Public hearing requests must be received by November 25, 2002.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:
(1) You may submit written comments and information to the Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
(2) You may also send comments by electronic mail (e-mail) to
(3) You may hand-deliver comments to our Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
Rick Farris, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766; facsimile 805/644-3958). Information regarding this proposal is available in alternate formats upon request.
Little is known of the habitat requirements of
Despite the lack of information available from historical collections, the best description we have of the habitat of
Like the habitat requirements, little is known about the reproductive biology of
Wilken and Wardlaw (2001) concluded that seed production in
Low survivorship of seedlings and young plants observed in
The exact location of the type locality of
In the five decades following its discovery,
Barneby (1964) believed that
Based upon searches for
In 1987, botanists searched specifically for
The single known population of
The proposed measures for conservation on the site would be to establish a 2 ha (5 ac) preserve that would be dominated by highly disturbed soils. The buffers between the development and preserve areas would be 15 meters (m) (50 feet (ft)). According to a comprehensive review of rare plant preserve design compiled by the Conservation Biology Institute (2000), buffers of that size are insufficient to protect a rare plant species because indirect effects (
The Service was not involved in the agreements between the developer and local and State officials because our regulatory authority does not extend to listed plants on private land unless there is a Federal nexus, such as a Federal permit or funding. No nexus existed on the site and our role was strictly advisory.
A sooty fungus was found on the leaves of
In 1997, the seeds of
Because of its small population size, the only natural population is also threatened by competition with non-native plant species.
Efforts to conserve
Research populations have been introduced in two locations within the historical range of
In 1997, the population of
Wilken and Wardlaw (2001) state that the total number of adult plants declined between 1997 and 2000. Although 46 of 80 seedlings that germinated in the 2000 growing season were still present in October 2000, the total number of surviving adult plants in 2000 was estimated at 39. Many are believed to have succumbed to herbivory from snails and brush rabbits. Other losses are unexplained, sudden mortalities (Wilken and Wardlaw 2001). Following efforts to control snails in 2000 (
Federal actions for this taxon began pursuant to section 12 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
On June 16, 1976, the Service published a proposed rule in the
We published an updated Notice of Review (NOR), Review of Plant Taxa for Listing as Endangered and Threatened Species on December 15, 1980 (45 FR 82480). This notice included
The Service maintained
A proposed rule to list
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exists: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) such designation of critical habitat would not be beneficial to the species. At the time
Despite this finding regarding critical habitat at the time of listing, the CBD lawsuit also sought to cause the Service to prepare a final rule designating critical habitat for
Section 3 defines critical habitat as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of proposed critical habitat.
Critical habitat also provides non-regulatory benefits to the species by informing public and private interest groups of areas that are important for species recovery and where conservation actions would be most effective. Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features essential for the conservation of that species, and can alert the public as well as land-managing agencies to the importance of those areas. Critical habitat also identifies areas that may require special management considerations or protection, and may help provide protection to areas where significant threats to the species have been identified, by helping people to avoid causing accidental damage to such areas.
In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known, and using the best scientific and commercial data available, habitat areas that provide at least one of the physical or biological features essential to the conservation of the species (primary constituent elements, as defined at 50 CFR 424.12(b)). Section 3(5)(C) of the Act states that not all areas that can be occupied by a species should be designated as critical habitat unless the Secretary determines that all such areas are essential to the conservation of the species. Our regulations (50 CFR 424.12(e)) also state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” Accordingly, we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that unoccupied areas are essential for the conservation needs of the species.
Section 4(b)(2) of the Act requires that we take into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.
Our Policy on Information Standards Under the Endangered Species Act, published in the
Section 4 of the Act requires that we designate critical habitat based on what we know at the time of designation. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for
As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the conservation of
Much of the critical habitat description is derived from Wilken and Wardlaw (2001) which represents the most complete information to date regarding the biology and habitat of
Determining what constitutes habitat for
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These include, but are not limited to: space for individual and population growth, and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for reproduction, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the known historical geographical and ecological distributions of a species.
Much of what is known about the specific physical and biological requirements of
We believe the long-term probability of the conservation of
(1) Vegetation cover of at least 50 percent but not exceeding 75 percent, consisting primarily of known associated native species, including but not limited to,
(2) Low densities of non-native annual plants and shrubs, not exceeding 25 percent cover (combined with the minimum 50 percent native cover requirement, total cover of natives and non-natives should not exceed 75 percent);
(3) The presence of a high water table, either fresh or brackish, as evidenced by the presence of channels, sloughs, or depressions that may support stands of
(4) Soils that are fine-grained, composed primarily of sand with some clay and silt, yet are well-drained; and
(5) Soils that do not exhibit a white crystalline crust that would indicate saline or alkaline conditions.
Critical habitat being proposed for
For sites not currently occupied by
By examining aerial photographs and reviewing pertinent literature, and through discussions with knowledgeable individuals, we identified areas where habitat similar to that at the currently occupied site and where habitat similar to that occupied by the closest relative,
The boundaries of the units were identified on aerial photographs and U.S. Geological Survey topographical maps and refined based upon adjacent land uses. For example, one unit is bordered on three sides by urban areas and on the final side by the Pacific Ocean. We decided that due to the limited suitable habitat available, the patchiness of such habitat, and the lack of information on related ecosystem functions that would support
Within the historical range of
For critical habitat outside of the historical range, we considered areas from Gaviota State Beach, Santa Barbara County, south to San Diego County. We have included only one critical habitat unit (Carpinteria Marsh) that could be considered outside of the known range of the species in this critical habitat proposal. That location is included because of its proximity to the historical distribution, the initial success of efforts to establish a population there, and the presence of primary constituent elements. Data to support designation of critical habitat elsewhere outside the historic range of
In selecting areas of proposed critical habitat we made an effort to avoid developed areas, such as housing developments, that are unlikely to contain the primary constituent elements or otherwise contribute to the conservation of
In summary, we selected critical habitat areas that provide for the conservation of
It is essential to manage the critical habitat areas in a manner that provides for the conservation of
Of paramount importance is the maintenance of a pollinator community as
Because only one extant population of
(1) The experimental areas should be free from human incursion, except by researchers and monitors. Exclusion can be accomplished by signs, fencing, and enforcement;
(2)
(3) Plants should be grown in containers for transplant into experimental population areas, with emphasis on larger containers (one gallon minimum);
(4) Seeds should be collected from as many different plants as possible each year to establish a diverse genetic pool, and propagate individuals from many different collections;
(5) Transplantation of new container stock, germinated yearly, should occur once per year for at least 3 years to achieve a balanced age structure in the new population and to compensate for fluctuating mortality rates; and
(6) A monitoring program should be implemented to achieve specific goals defined prior to introduction of
The proposed critical habitat areas described below constitute our best assessment at this time of the areas essential for the conservation of
The only site occupied by a natural population of
Also, our evaluation of
In summary, we propose to designate approximately 170 ha (420 ac) of land in three units as critical habitat for
The proposed critical habitat areas constitute our best assessment at this time of the areas that are essential for the conservation of
The Mandalay Unit is located on both sides of Harbor Boulevard and north of Fifth Street in the city of Oxnard, Ventura County. On the east side of Harbor Boulevard, the unit extends north from Fifth Street to the Edison Canal, and east from Harbor Boulevard to the Edison Canal. The western portion on Mandalay State Beach includes the area north of Fifth Street, west of Harbor Boulevard, east of an access road that bisects the park, and south of a point halfway between where Harbor Boulevard crosses the Edison Canal and Fifth Street. This unit covers 62 ha (152 ac) and is important because it contains the only known location where
The eastern portion of this unit is part of a pending development called the North Shore at Mandalay. The project includes a 2-ha (5-ac) preserve for
The portion of this unit on Mandalay State Beach is identified by Wilken and Wardlaw (2001) as a potential site for establishing a new population of
We discussed designation of critical habitat in this area with the CDPR. Because the area is currently operated by that agency and is public land, there is opportunity to work with the state to develop strategies to introduce
As discussed above, currently unoccupied areas (or those with research populations) that support the primary constituent elements are essential for the conservation of
The site within McGrath Beach State Park is adjacent to McGrath Lake on the leeward side of the southern end of the lake, between the lake and Harbor Boulevard. A second site to the north, just south of the existing camping facilities, was examined but considered unsuitable by Wilken and Wardlaw (2001) due to frequent use by the public and large stands of non-native vegetation. The unit covers 25 ha (62 ac), of which 14 ha (35 ac) is privately owned.
Of the sites they examined, Wilken and Wardlaw (2001) identify the McGrath Lake area as having the best combination of characteristics similar to that of the extant population of
The CDPR agreed to allow the CDFG and the RSABG to establish a research population on this site. The effort is still in its early stages and no conclusive data has yet been retrieved. We also discussed the proposed designation with representatives of the CDPR. Because part of this unit is currently operated by the CDPR and is public land, there is opportunity to work with
As discussed above, currently unoccupied units (or those with research populations underway) are essential for the conservation of
The Carpenteria Salt Marsh Unit extends from the Southern Pacific Railroad tracks south and west to Sand Point Drive and Santa Monica Creek. It lies north and west of Sandyland Cove Road and north of Avenue del Mar. The area is identified on the U.S.G.S. 7.5-minute Carpinteria quadrangle as “El Estero” and covers 83 ha (206 ac), which is all State-owned.
Much of this area may be saltmarsh habitat that is unsuitable for
This site in Santa Barbara County is near the range of the species as predicted by the historical collections and described by Skinner and Pavlik (1994), who list the known counties as Ventura, Los Angeles, and Orange. The regulations state that we do not designate critical habitat in areas outside the geographic area occupied by the species unless the best available scientific and commercial data demonstrate that the unoccupied areas are essential for the conservation needs of the species (50 CFR 424.12(e)). We have included it here because of the high potential for successful establishment of a new population per Wilken and Wardlaw's (2001) findings. Also, given the limited availability of suitable sites within the known range and uncertainty surrounding the success of any attempt to establish new populations of a rare plant where it does not already occur, we believe this site is essential for the conservation of
As discussed above, additional, currently unoccupied, units (or those with research populations) are essential for the conservation of
Section 7(a) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, permit, or carry out do not destroy or adversely modify critical habitat. Destruction or adverse modification of critical habitat occurs when a Federal action directly or indirectly alters critical habitat to the extent that it appreciably diminishes the value of critical habitat for the conservation of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist Federal agencies in eliminating conflicts that may be caused by their proposed actions. The conservation measures in a conference report are advisory.
We may issue a formal conference report, if requested by the Federal action agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if the species was listed or critical habitat designated. We may adopt the formal conference report as the biological opinion when the species is listed or critical habitat designated, if no substantial new information or changes in the action alter the content of the opinion (50 CFR 402.10(d)).
If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the Federal action agency would ensure that the permitted actions do not destroy or adversely modify critical habitat.
If we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide “reasonable and prudent alternatives” to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species, or resulting in the destruction or adverse modification of critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions under certain circumstances, including instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat, or adversely modify or destroy proposed critical habitat.
We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (
Activities on Federal lands that may affect
We recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) of the Act jeopardy standard and the prohibitions of section 9 of the Act, as determined on the basis of the best available information at the time of the action. Critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.
To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 ensures that actions funded, authorized, or carried out by Federal agencies are not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify the listed species' critical habitat. Actions likely to jeopardize the continued existence of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to destroy or adversely modify critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on the recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. Designation of critical habitat in the only area occupied by
Section 4(b)(8) of the Act requires us to evaluate briefly and describe, in any proposed or final regulation that designates critical habitat, those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat would be those that alter the primary constituent elements to the extent that the value of critical habitat for the conservation of
Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat of
(1) Alteration of existing hydrology by lowering the groundwater table through surface changes or pumping of groundwater, or redirection of freshwater sources through diverting surface waters (
(2) Compaction of soil through the establishment of trails or roads;
(3) Placement of structures or hardscape (
(4) Removal of native vegetation that reduces native plant cover to below 50 percent;
(5) Introduction of non-native vegetation or creation of conditions that encourage the growth of non-natives, such as irrigation, landscaping, soil disturbance, addition of nutrients, etc.;
(6) Use of pesticides or other chemicals that can directly affect
(7) Introduction of non-native snails or Argentine ants or creation of conditions favorable to these species, through landscaping with non-native groundcover plants such as iceplant, irrigation, or other activities that encourage populations of these non-native species that have been detrimental to the existing population;
(8) Activities that isolate the plants or their populations from neighboring vegetation or open space and thus interfere with ecological processes that rely upon connectivity with adjacent habitat, such as maintaining pollinator populations and seed dispersal; and
(9) Soil disturbance that damages or interferes with the seedbank of the species, such as discing, tilling, grading, removal, or stockpiling.
Designation of critical habitat could affect the following agencies and/or actions: development on private lands requiring permits from Federal agencies, such as authorization from the Corps, pursuant to section 404 of the Clean Water Act, or a section 10(a)(1)(B) permit from the Service, or some other Federal action that includes Federal funding that will subject the action to the section 7 consultation process (
Several other species that are listed under the Act have been documented to occur in the same general areas as the current distribution of
If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office (
Currently, no HCPs exist that include
In the event that future HCPs are developed within the boundaries of proposed or designated critical habitat, we will work with applicants to ensure that the HCPs provide for protection and management of habitat areas essential for the conservation of this species. This will be accomplished by either directing development and habitat modification to nonessential areas, or appropriately modifying activities within essential habitat areas so that such activities will not adversely modify the primary constituent elements. The HCP development process would provide an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by
We will provide technical assistance and work closely with applicants throughout the development of any future HCPs to identify lands essential for the long-term conservation of
Section 4(b)(2) of the Act requires that we designate critical habitat on the basis of the best scientific and commercial information available, and that we consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat designation if the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species.
We will conduct an analysis of the economic impacts of designating these proposed areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the
We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments are sought particularly concerning:
(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species due to designation;
(2) Specific information on the amount and distribution of
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;
(5) Economic and other values associated with designating critical habitat for
(6) The methodology we might use, under section 4(b)(2) of the Act, in determining if the benefits of excluding an area from critical habitat outweigh the benefits of specifying the area as critical habitat; and
(7) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods: (1) You may mail comments to the Field Supervisor at the address provided in the
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the
We will consider all comments and information received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination may differ from this proposal.
The Endangered Species Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the
Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the notice in the
Send a copy of any comments that concern how we could make this notice easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to this address:
In accordance with Executive Order 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB). The Service is preparing a draft economic analysis of this proposed action. The Service will use this analysis to meet the requirement of section 4(b)(2) of the Act to determine the economic consequences of designating the specific areas as critical habitat and excluding any area from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of specifying such areas as part of the critical habitat, unless failure to designate such area as critical habitat will lead to the extinction of
This discussion is based upon the information regarding potential economic impact that is available to the Service at this time. This assessment of economic effect may be modified prior to final rulemaking based upon development and review of the economic analysis being prepared pursuant to section 4(b)(2) of the Act and E.O. 12866. This analysis is for the purposes of compliance with the Regulatory Flexibility Act and does not reflect the position of the Service on the type of economic analysis required by
Under the Regulatory Flexibility Act (5 U.S.C. 601
According to the Small Business Administration (
In determining whether this rule could “significantly affect a substantial number of small entities,” we consider the number of small entities affected within particular types of economic activities and whether critical habitat could potentially affect a “substantial number” of small entities in counties supporting critical habitat areas. While SBREFA does not explicitly define “substantial number,” the Small Business Administration, as well as other Federal agencies, have interpreted this to represent an impact on 20 percent or greater of the number of small entities in any industry. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation.
Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation if they lack a Federal nexus. In areas where the species is present, Federal agencies funding, permitting, or implementing activities are already required to avoid jeopardizing the continued existence of
In unoccupied areas, or areas of uncertain occupancy, designation of critical habitat could trigger additional review of Federal activities under section 7 of the Act, and may result in additional requirements on Federal activities to avoid destroying or adversely modifying critical habitat. Because
The majority of the areas proposed for critical habitat are state-managed public lands, for which projected land uses are resource protection, recreation, research, and education. Additionally, the private lands under consideration include the proposed North Shore development in the Mandalay unit. On non-federal lands, activities that lack federal involvement would not be affected by the critical habitat designation. Activities of an economic nature that are likely to occur on non-federal lands in the area encompassed by this proposed designation are primarily commercial or residential development. None of the developments recently approved by the local jurisdictions have any Federal involvement, and we are not aware of a significant number of future activities on any of the proposed units that would require Federal permitting or authorization; therefore, we conclude that the proposed rule would not affect a substantial number of small entities.
In general, two different mechanisms in section 7 consultations could lead to additional regulatory requirements. First, if we conclude, in a biological opinion, that a proposed action is likely to jeopardize the continued existence of a species or adversely modify its critical habitat, we can offer “reasonable and prudent alternatives.” Reasonable and prudent alternatives are alternative actions that can be implemented in a manner consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid jeopardizing the continued existence of listed species or resulting in adverse modification of critical habitat. A Federal agency and an applicant may elect to implement a reasonable and prudent alternative associated with a biological opinion that has found jeopardy or adverse modification of critical habitat. An agency or applicant could alternatively choose to seek an exemption from the requirements of the Act or proceed without implementing the reasonable and prudent alternative. However, unless an exemption were obtained, the Federal agency or applicant would be at risk of violating section 7(a)(2) of the Act if it chose to proceed without implementing the reasonable and prudent alternatives.
Second, if we find that a proposed action is not likely to jeopardize the continued existence of a listed animal species, we may identify reasonable and prudent measures designed to minimize the amount or extent of take and require the Federal agency or applicant to implement such measures through non-discretionary terms and conditions. However, the Act does not prohibit the take of listed plant species or require terms and conditions to minimize adverse effect to critical habitat. We may also identify discretionary conservation recommendations designed to minimize or avoid the adverse effects of a proposed action on listed species or critical habitat, help implement recovery plans, or develop information that could contribute to the recovery of the species.
Based on our experience with section 7 consultations for all listed species, virtually all projects—including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures, by definition, must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. As we have no consultation history for
As required under section 4(b)(2) of the Act, we will conduct an analysis of the potential economic impacts of this proposed critical habitat designation, and will make that analysis available for public review and comment before finalizing this designation. However, court deadlines require us to publish this proposed rule before the economic analysis can be completed. In the absence of this economic analysis, we have reviewed our previously published analyses of the likely economic impacts of designating critical habitat for other California plant species, such as
We believe that the economic effects of the proposed rule for
Efforts to establish
In summary, we have concluded that this proposed rule would not result in a significant economic effect on a substantial number of small entities. The proposed designation includes one privately-owned parcel for which a project has been proposed and for which there is no Federal involvement or section 7 consultation required. This rule would result in project modifications only when proposed Federal activities would destroy or adversely modify critical habitat. While this may occur, it is not expected to affect any small entities. Even if a small entity is affected, we do not expect it to result in a significant economic impact, as the measures included in reasonable and prudent alternatives must be economically feasible and consistent with the proposed action. The kinds of measures we anticipate we would recommend can usually be implemented at low cost. Therefore, we are certifying that the proposed designation of critical habitat for
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
The Service will use the economic analysis to evaluate consistency with the Unfunded Mandates Reform Act (2 U.S.C. 1501
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing to designate approximately 170 ha (420 ac) of lands in Santa Barbara and Ventura counties, California as critical habitat for
In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in California. The designation of critical habitat in areas currently occupied by
The designation may have some benefit to the CDPR in that the areas essential to the conservation of this species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of this species are specifically identified. While this definition and identification does not alter where and what Federally sponsored activities may occur, it may assist local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).
In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
We have determined that an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act, as amended. A notice outlining our reason for this determination was published in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with Federally recognized Tribes on a Government-to-Government basis. The proposed designation of critical habitat for
A complete list of all references cited herein, as well as others, is available upon request from the Ventura Fish and Wildlife Office (
The primary author of this proposed rule is Rick Farris, Ventura Fish and Wildlife Office (
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, the Service hereby proposes to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4205; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. In § 17.12(h) revise the entry for
(h) * * *
3. In § 17.96, amend paragraph (a) by adding an entry for
(a) * * *
(1) Critical habitat units are depicted for Santa Barbara and Ventura counties, California, on the maps below.
(2) The primary constituent elements of critical habitat for
(i) Vegetation cover of at least 50 percent but not exceeding 75 percent, consisting primarily of known associated native species, including but not limited to,
(ii) Low densities of non-native annual plants and shrubs, not exceeding 25 percent cover (combined with the minimum 50 percent native cover requirement, total cover of natives and non-natives should not exceed 75 percent);
(iii) The presence of a high water table, either fresh or brackish, as evidenced by the presence of channels, sloughs, or depressions that may support stands of
(iv) Soils that are fine-grained, composed primarily of sand with some clay and silt, yet are well-drained; and
(v) Soils that do not exhibit a white crystalline crust that would indicate saline or alkaline conditions.
(3) Critical habitat does not include existing features and structures, such as buildings, roads, aqueducts, railroads, airport runways and buildings, other paved areas, lawns, and other urban landscaped areas not containing one or more of the primary constituent elements.
(4) Critical Habitat Map Units.
(i) Data layers defining map units were created on a base of USGS 7.5′ quadrangles, and proposed critical habitat units were then mapped using Universal Transverse Mercator (UTM) coordinates.
(5)
(i) Mandalay Unit A. From USGS 1:24,000 quadrangle map Oxnard, lands bounded by the following UTM zone 11 NAD83 coordinates (E,N): 293381, 3786370; 293036, 3787170; 292994, 3787290; 292974, 3787330; 292995, 3787330; 293017, 3787330; 293122, 3787270; 293269, 3787190; 293331, 3787150; 293362, 3787140; 293399, 3787130; 293570, 3787080; 293640,
(ii)
(iii)
(iv) Map of McGrath and Mandalay Units Follows:
(6)
(i)
(ii)
(iii)
(iv)
(v) Map of Carpinteria Salt Marsh Unit Follows:
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (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 assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Agricultural Marketing Service, USDA.
Notice.
In accordance with the Federal Advisory Committee Act, as amended, the Agricultural Marketing Service (AMS) is announcing a forthcoming meeting of the National Organic Standards Board (NOSB).
The meeting dates are: October 19, 2002, 8 a.m. to 6:30 p.m.; and October 20, 2002, 8 a.m. to 6 p.m. Requests from individuals and organizations wishing to make an oral presentation at the meeting are due by the close of business on October 9, 2002.
The meeting will take place at the Radisson Barceló Hotel, Board Room, 2121 P Street, NW., Washington, DC. Requests to make an oral presentation at the meeting may be sent to Ms. Katherine Benham at USDA-AMS-TMD-NOP, 1400 Independence Avenue, SW., Room 4008-So., Ag Stop 0268, Washington, DC 20250-0200. Requests to make an oral presentation at the meeting may also be sent electronically to Ms. Katherine Benham at
The October NOSB meeting agenda is available at
Richard Mathews, Program Manager, National Organic Program, (202) 720-3252.
Section 2119 (7 U.S.C. 6518) of the Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. Section 6501
In August of 1994, the NOSB provided its initial recommendations for the National Organic Program (NOP) to the Secretary of Agriculture. Since that time, the NOSB has submitted 42 addenda to its recommendations and reviewed more than 241 substances for inclusion on the National List of Allowed and Prohibited Substances. The last meeting of the NOSB was held on September 17-19, 2002, in Washington, DC.
The Department of Agriculture (USDA) published its final National Organic Program regulation in the
The principal purposes of the meeting are to provide an opportunity for the
The Materials Committee will report on current petitions' statuses, and report on EPA List 3 and 4 Inerts. The Materials Committee will also present for NOSB consideration 10 materials for possible inclusion on the National List of Allowed and Prohibited Substances. The Livestock Committee will present for NOSB consideration its recommendations on “dairy herd replacements”, and the scope of review for excipients and other materials. The Processing Committee will discuss the ion exchange production process, present a recommendation for the scope of materials review, and present a recommendation for when handling becomes processing for producers and retailers. The Crops Committee will present its recommendations for hydroponic production, planting stock, and application of the 20% sodium nitrate annotation. The Accreditation Committee will report on the review of NOP accreditation procedures and present its recommendation for grower group certification criteria. Finally, the International Committee will discuss and present its recommendation on US/EU equivalency.
Materials to be reviewed at the meeting by the NOSB are as follows:
For further information,
The meeting is open to the public. The NOSB has scheduled time for public input on Saturday, October 19, 2002, from 8:15 a.m. until 10:15 a.m., and Sunday, October 20, 2002, from 8 a.m. until 9 a.m., at the Radisson Barcelo
Written comments must be submitted to Ms. Benham, prior to or after the meeting, at USDA-AMS-TMD-NOP, 1400 Independence Avenue, SW., Room 4008-So., Ag Stop 0268, Washington, DC 20250-0200. Persons submitting written comments at the meeting are asked to provide 30 copies.
Interested persons may visit the NOSB portion of the NOP Web site
Forest Service, USDA.
Cancellation of notice of intent to prepare an environmental impact statement (EIS).
The Forest Service is canceling the Notice of Intent for the Comet Administrative Study EIS—Klamath National Forest that was published in
Margaret J. Boland, Forest Supervisor, Klamath National Forest, USDA Forest Service, 1312 Fairlane Road, Yreka, California 96097.
Rural Utilities Service, USDA.
Notice of availability of a record of decision.
Notice is hereby given that the Rural Utilities Service (RUS), has issued a Record of Decision (ROD) for the Southern Intertie Project. The decision of RUS is that the National Environmental Policy Act process is satisfied with respect to a request for financing assistance from Golden Valley Electric Association (GVEA) for its share of the cost of constructing the Southern Intertie Project. The project being proposed by the Intertie Participants Group (IPG), of which GVEA is a member, is the construction of a 138 kilovolt (kV) transmission line between the Kenai Peninsula and Anchorage, Alaska. The construction of the project will be undertaken in accordance with the FEIS.
Lawrence R. Wolfe, Senior Environmental Protection Specialist, Engineering and Environmental Staff, USDA Rural Utilities Service, Stop 1571, 1400 Independence Avenue, SW., Washington, DC 20250-1571, telephone (202) 720-1784, fax (202) 720-0820. The e-mail address is:
The RUS preferred alternative, the Tesoro Route, would connect the Bernice Lake Substation on the Kenai Peninsula with the Pt. Woronzof Substation in Anchorage. This alternative would parallel the Tesoro Pipeline from the Captain Cook State Recreational Area to Pt. Possession (Route A). At Pt. Possession three options are available to cross the Turnagain Arm and terminate at the Pt. Woronzof Substation. Route Option B crosses the Turnagain Arm via Fire Island to the Pt. Woronzof Substation. Route Option C crosses the Turnagain Arm directly from Pt. Possession to a landing at the Pt. Woronzof Substation. Route Option D would cross the Turnagain Arm from Pt. Possession to Pt. Campbell. From the Pt. Campbell landing, this alternative would continue to parallel the Tesoro pipeline through Kincaid Park and
As stated in the Final Environmental Impact Statement (FEIS), the RUS preferred alternative route between Pt. Possession and Anchorage is Route Option D/N. However, RUS considers both Route Options B and C acceptable alternatives.
Notices of availability of the FEIS were published in the
The RUS is the lead Federal agency in the environmental review process. The U.S. Fish and Wildlife Service (USFWS) and the U.S. Army Corps of Engineers (USACE) are serving as cooperating agencies. The USFWS' ROD was issued on September 11, 2002. The USACE's ROD is pending.
Agencies, persons, and organizations on the FEIS mailing list will receive a copy of each agency's ROD. The RUS' ROD is available online at
Extension of a currently approved collection, comment request.
The Department of Commerce (DoC) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Information gathered through CEDS is needed by EDA to ensure that areas served by an EDA-supported planning organization have or are developing a continuous community-based planning process and have thoroughly thought out what type of economic development is needed in the area to alleviate unemployment, underemployment, and/or depressed incomes. This information is required under the Public Works and Economic Development Act of 1965, as amended, including the comprehensive amendments by the Economic Development Administration Reform Act of 1998, Public Law 105-393, (PWEDA). Additionally, information is used by EDA to determine: if statutory requirements are met on eligibility for projects for public works and economic adjustment (except for strategy/planning); district designation requirements; and if planning requirements are met. CEDS is the foundation for most of EDA's programs. CEDS is a continuous, broad based and diverse process put in place to describe and to address economic distress through a particular economic development project(s) activity(es).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, U.S. Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230, or via Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results and rescission, in part, of antidumping duty administrative review.
In response to requests by the Stainless Steel Cookware Committee (the Committee), the petitioner, and two manufacturers/exporters of the subject merchandise, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on top-of-the-stove stainless steel cooking ware from Korea. The period of review (POR) is January 1, 2001, through December 31, 2001.
We preliminarily determine that certain manufacturers/exporters sold subject merchandise at less than normal value (NV) during the POR. If these preliminary results are adopted in the final results of this administrative review, we will instruct the U.S. Customs Service (Customs) to assess antidumping duties on all appropriate entries. We invite interested parties to comment on the preliminary results. Parties who submit comments in this proceeding should also submit with the argument(s): (1) A statement of the issue(s) and (2) a brief summary of their argument (not to exceed five pages).
October 9, 2002.
Ronald M. Trentham and Thomas F. Futtner, AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; (202) 482-6320 and (202) 482-3814, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations at 19 CFR part 351 (2001).
The Department published an antidumping duty order on top-of-the-stove stainless steel cooking ware (cookware) from Korea on January 20, 1987 (52 FR 2139). On January 2, 2002, the Department published a notice of “Opportunity to Request an Administrative Review” of the antidumping duty order on cookware from Korea (67 FR 56) covering the period January 1, 2001, through December 31, 2001.
On January 31, 2002, in accordance with 19 CFR 351.213(b), the Committee, whose members are Regal Ware, Inc., The West Bend Company, New Era Cookware and Vita-Craft Corporation, requested that we conduct an administrative review of twenty-six specific manufacturers/exporters of cookware from Korea: Daelim Trading Co., Ltd. (Daelim), Dong Won Metal Co., Ltd. (Dong Won), Chefline Corporation, Sam Yeung Ind. Co., Ltd., Namyang Kitchenflower Co., Ltd., Kyung-Dong Industrial Co., Ltd., Ssang Yong Ind. Co., Ltd., O. Bok Stainless Steel Co., Ltd., Dong Hwa Stainless Steel Co., Ltd., Il Shin Co., Ltd., Hai Dong Stainless Steel Ind. Co., Ltd., Han II Stainless Steel Ind. Co., Ltd., Bae Chin Metal Ind. Co., East One Co., Ltd., Charming Art Co., Ltd., Poong Kang Ind. Co., Ltd., Won Jin Ind. Co., Ltd., Wonkwang Inc., Sungjin International Inc., Sae Kwang Aluminum Co., Ltd., Hanil Stainless Steel Ind. Co., Ltd., Seshin Co., Ltd., Pionix Corporation, East West Trading Korea, Ltd., Clad Co., Ltd., and B.Y. Enterprise, Ltd. On January 31, 2002, Daelim and Dong Won requested that the Department conduct reviews of their exports of the subject merchandise to the United States. In accordance with 19 CFR 351.221(b), we published a notice of initiation of the review on February 26, 2002 (67 FR 8780).
On March 25, 2002 and on April 4, 2002, we issued Section A antidumping questionnaires to each of the twenty-six manufacturers/exporters listed above.
The following twenty-four companies failed to respond to the Department's Section A questionnaire: Chefline Corporation, Sam Yeung Ind. Co., Ltd., Kyung-Dong Industrial Co., Ltd., Ssang Yong Ind. Co., Ltd., O. Bok Stainless Steel Co., Ltd., Il Shin Co., Ltd., Hai Dong Stainless Steel Ind. Co., Ltd., Han II Stainless Steel Ind. Co., Ltd., Bae Chin Metal Ind. Co., East One Co., Ltd., Charming Art Co., Ltd., Poong Kang Ind. Co., Ltd., Won Jin Ind. Co., Ltd., Wonkwang Inc., Sungjin International Inc., Sae Kwang Aluminum Co., Ltd., Hanil Stainless Steel Ind. Co., Ltd., Seshin Co., Ltd., East West Trading Korea, Ltd., Clad Co., Ltd., B.Y. Enterprise, Ltd., Pionix Corporation, Namyang Kitchenflower Co., Ltd., and Dong Hwa Stainless Steel Co., Ltd. On August 1, 2002 and August 2, 2002, we informed each of these companies that because they failed to respond to the Department's questionnaire, we may use facts available (FA) to determine their dumping margins. In response, the following manufacturers/exporters reported that they had no sales or shipments during the POR: Hai Dong Stainless Steel Co., Ltd, Sungjin International, Inc., Seshin Co., Ltd., Sae Kwang Aluminum Co, Ltd., Dong Hwa Stainless Steel Co, Ltd., Pionix Corporation, Il Shin Co., Ltd., and Wonkwang Inc. We confirmed using U.S. Customs (Customs) data that there were no entries of subject merchandise from these firms during the POR. Accordingly, we are preliminarily rescinding the review with respect to these manufacturers/exporters.
On April 16, 2002 and April 19, 2002, respectively, Dong Won and Daelim responded to Section A of the antidumping questionnaire. On May 13, 2002, the Department issued Sections B, C and D of the Department's questionnaire to these two companies. Dong Won and Daelim filed narrative responses to Sections B, C and D on July 8, 2002. On July 12, 2002, Daelim and Dong Wong submitted electronic databases and calculation worksheets for Sections B, C, and D of the Department's questionnaire.
On August 12, 2002 and August 13, 2002, respectively, the Department issued Section A through D supplemental questionnaires to Dong Won and Daelim. The responses to these supplemental questionnaires were received on September 3, 2002 and on September 4, 2002.
The Department is conducting this administrative review in accordance with section 751 of the Act.
The merchandise subject to this antidumping order is top-of-the-stove stainless steel cookware from Korea. The subject merchandise is all non-electric cooking ware of stainless steel which may have one or more layers of aluminum, copper or carbon steel for more even heat distribution. The subject merchandise includes skillets, frying pans, omelette pans, saucepans, double boilers, stock pots, dutch ovens, casseroles, steamers, and other stainless steel vessels, all for cooking on stove top burners, except tea kettles and fish poachers. Excluded from the scope of the order are stainless steel oven ware and stainless steel kitchen ware. The subject merchandise is currently classifiable under Harmonized Tariff Schedule (HTS) item numbers 7323.93.00 and 9604.00.00. The HTS item numbers are provided for convenience and Customs purposes only. The written description remains dispositive.
The Department has issued several scope clarifications for this order. The Department found that certain stainless steel pasta and steamer inserts (63 FR 41545, August 4, 1998), certain stainless steel eight-cup coffee percolators (58 FR 11209, February 24, 1993), and certain stainless steel stock pots and covers are within the scope of the order (57 FR 57420, December 4, 1992). Moreover, as a result of a changed circumstances review, the Department revoked the order on Korea in part with respect to certain stainless steel camping ware (1) made of single-ply stainless steel having a thickness no greater than 6.0 millimeters; and (2) consisting of 1.0, 1.5, and 2.0 quart saucepans without handles and with lids that also serve as fry pans (62 FR 3662, January 24, 1997).
Section 776(a)(2) of the Act provides that if any interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information by the deadlines for submission of the information or in the form or manner requested; (C) significantly impedes an antidumping investigation; or (D) provides such information but the information cannot be verified, the Department shall, subject to section 782(d) of the Act, use facts otherwise available in making its determination.
As stated above, on March 25, 2002 and on April 4, 2002, we issued Section A questionnaires to twenty-six manufacturers/exporters of the subject merchandise. Eight companies ultimately advised the Department that they did not sell subject merchandise to the United States during the POR. The following sixteen companies failed to respond to the Department's Section A questionnaire: Chefline Corporation, Sam Yeung Ind. Co., Ltd., Kyung-Dong Industrial Co., Ltd., Ssang Yong Ind. Co., Ltd., O. Bok Stainless Steel Co., Ltd., Han II Stainless Steel Ind. Co., Ltd., Bae Chin Metal Ind. Co., East One Co., Ltd., Charming Art Co., Ltd., Poong Kang Ind. Co., Ltd., Won Jin Ind. Co., Ltd., Hanil Stainless Steel Ind. Co., Ltd., East West Trading Korea, Ltd., Clad Co., Ltd., B.Y. Enterprise, Ltd., and Namyang Kitchenflower Co., Ltd. On August 2, 2002, we informed each of these companies that because they failed to respond to the Department's questionnaire, we may use FA to determine their dumping margins.
Because these sixteen companies failed to provide any of the necessary information requested by the Department, pursuant to section 776(a)(2)(B) of the Act, we must establish the margins for these companies based totally on facts otherwise available.
In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information.
Section 776(b) of the Act authorizes the Department to use as AFA information derived from the petition, the final determination from the less than fair value (LTFV) investigation, a previous administrative review, or any other information placed on the record.
Section 776(c) of the Act requires the Department to corroborate, to the extent practicable, secondary information used as facts available. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
The SAA further provides that the term “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value (
The rate used as AFA in this segment was originally calculated using verified information from the investigative segment of this proceeding.
As to the relevance of the margin used for AFA, the courts have stated that “[b]y requiring corroboration of adverse inference rates, Congress clearly intended that such rates should be reasonable and have some basis in reality.”
The rate selected is the rate currently applicable to certain companies, including fifteen of the sixteen companies that failed to respond to the Department's questionnaires in this POR.
To determine whether sales of cookware from South Korea to the United States were made at less than NV, we compared the export price (EP) to the NV for Daelim and EP and constructed export price (CEP) to the NV for Dong Won, as specified in the
Where Daelim and Dong Won sold merchandise directly to unaffiliated purchasers in the United States, we used EP, in accordance with section 772(a) of the Act, as the price to the United States. For both respondents, we calculated EP using the packed prices charged to the first unaffiliated customer in the United States (the starting price).
We made deductions from the starting price for movement expenses in accordance with section 772(c) of the Act. Movement expenses included, where appropriate, brokerage and handling, international freight, and marine insurance, in accordance with section 772(c)(2)(A) of the Act. For Dong Won, we disallowed a duty drawback adjustment to the starting price.
For Dong Won, we calculated CEP, in accordance with subsection 772(b) of the Act, for those sales to unaffiliated purchasers that took place after importation into the United States. We based CEP on the packed FOB prices to unaffiliated purchasers in the United States. Where appropriate, we made deductions for discounts. We also made deductions for movement expenses in accordance with 772(c)(2)(A) of the Act. Movement expenses included foreign inland freight, ocean freight, marine insurance, U.S. brokerage and handling, U.S. Customs duties, and U.S. inland freight. In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses, inventory carrying costs, and other indirect selling expenses. Also, we made an adjustment for profit in accordance with section 772(d)(3) of the Act.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
In the review segment of this proceeding that was most recently completed prior to initiating this review, we disregarded home market sales found to be below the cost of production (COP) for Daelim and Dong Won.
In accordance with section 773(b)(3) of the Act, we calculated, respectively, COP based on the sum of Daelim and Dong Won's cost of materials and fabrication (COM) for the foreign like product, plus amounts for selling, general, and administrative (SG&A) expenses, including financial expenses, and packing costs. For the preliminary results, we relied on Daelim's and Dong Won's submitted information without adjustment.
We compared COP to foreign market sale prices of the foreign like product, as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard foreign market sales made at prices below the COP, we examined whether such sales were made (1) within an extended period of time in substantial quantities, and (2) at prices which permitted the recovery of all costs within a reasonable period of time, in accordance with sections 773(b)(1)(A) and (B) of the Act. On a product-specific basis, we compared the COP to foreign market prices, less any applicable movement charges, discounts and rebates, and selling expenses.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in substantial quantities. Where 20 percent or more of the respondent's sales of a given product during the POR were at prices less than the COP, we determined such sales to have been made in substantial quantities within an extended period of time, within the meaning of section 773(b)(2)(B) of the Act. Because we compared prices to POR or fiscal year average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found, looking at Dong Won's and Daelim's home market sales, that both firms made sales at below COP prices within an extended period of time in substantial quantities. Further, we found that these sales prices did not permit for the recovery of costs within a reasonable period of time. Therefore, we excluded these sales from our analysis and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
In accordance with section 771(16) of the Act, we considered all products sold in the relevant foreign markets meeting the description in the “Scope of the Review” section of this notice, above, for purposes of determining appropriate product comparisons to U.S. sales. Where there were no sales of identical merchandise in the foreign markets made in the ordinary course of trade (
In accordance with section 773(a)(7)(A) of the Act, if the Department compares a U.S. sale at one LOT to NV sales at a different LOT, we will adjust the NV to account for the difference in LOT if the difference affects price comparability as evidenced by a pattern of consistent price differences between sales at the different LOTs in the market in which NV is determined.
Section 351.412(c)(2) of the Department's regulations states that the Secretary will determine that sales are made at different LOTs if they are made at different marketing stages (or their equivalent). To make this determination, the Department reviews such factors as selling functions, classes of customer, and the level of selling expenses for each type of sale. Different stages of marketing necessarily involve differences in selling functions, but differences in selling functions, even if substantial, are not alone sufficient to establish a difference in the LOT. Similarly, while customer categories such as “distributor” and “wholesaler” may be useful in identifying different LOTs, they are insufficient in themselves to establish that there is a difference in the LOT.
In determining whether separate LOTs actually existed in the foreign and U.S. markets for each respondent, we examined whether the respondent's sales involved different marketing stages (or their equivalent) based on the channel of distribution, customer categories, and selling functions (or services) offered to each customer or customer category, in both markets.
Dong Won reported home market sales through one channel of distribution, sales made by Dong Won to unaffiliated distributors/wholesalers and retailers. Upon review of the record, we found that Dong Won performed the same selling functions at the same degree for all home market sales. Therefore, we preliminarily determined that Dong Won made all home market sales at one LOT for purposes of our antidumping analysis.
For the U.S. market, Dong Won reported both EP and CEP sales. After reviewing the U.S. market selling functions reported by Dong Won, and after deducting the CEP selling expenses incurred by Dong Won's U.S. affiliate, we found that Dong Won provided a qualitatively different degree of services on EP sales than for CEP sales. We therefore found the selling functions were sufficiently different to warrant a preliminary determination that two separate LOTs exist in the United States.
When we compared EP sales to home market sales, we found that Dong Won provided a qualitatively different degree of services on home market sales than on EP sales. In addition, the differences in selling functions performed for home market and EP transactions indicate that home market sales involved a more advanced stage of distribution than EP sales. Our preliminary analysis demonstrates that the home market LOT is different from, and constitutes a more advanced stage of distribution than the EP LOT because, the home market LOT includes significantly more selling functions at a higher level of service with greater selling expenses than the EP LOT.
Section 773(a)(7)(A) of the Act describes the LOT adjustment. Section 351.412(a) of the Department's regulations states that the Secretary is authorized to adjust NV to account for the effect on the comparability of U.S. and home market prices when sales in the two markets are not made at the same LOT. Section 351.412(d) of the Department's regulations states that the Secretary will determine that a difference in LOT has an effect on price comparability only if it is established that there is a pattern of consistent price differences between sales at the LOT of the EP or CEP and the LOT at which NV is determined. Section 351.412(d)(2) states that the Secretary will make the determination under section 351.412(d)(1) on the basis of sales of the foreign like product by the producer, or when this is not possible, on sales of different or broader product lines, sales by other companies, or on any other reasonable basis.
As discussed above, we found that there is only one LOT in the market in which NV is determined. Therefore, it is not possible to determine a pattern of price differences on the basis of sales of the foreign like product by the producer. Furthermore, we do not have information on the record in this review to determine a pattern of price differences on the basis of sales of different or broader product lines, sales by other companies, or on any other reasonable basis. As such, no LOT adjustment is possible for comparison to Dong Won's EP transactions.
For CEP sales, Dong Won performed fewer selling functions than in the home market. In addition, the differences in selling functions performed for home market and CEP transactions indicate that home market sales involved a more advanced stage of distribution than CEP sales. Our preliminary analysis demonstrates that the home market LOT is different from, and constitutes a more advanced stage of distribution than, the CEP LOT because, after making the CEP deductions under section 772(d) of the Act, the home market LOT includes significantly more selling functions at a higher level of service with greater selling expenses than the CEP LOT.
Section 773(a)(7)(B) of the Act provides for a CEP offset to NV when NV is established to be at a LOT which constitutes a more advanced LOT than the LOT of the CEP transaction, but the data available do not provide an appropriate basis upon which to determine a LOT adjustment. Since NV is established at a LOT which constitutes a more advanced LOT than the LOT of the CEP transaction, and, as discussed above, the data do not provide an appropriate basis upon which to determine a LOT adjustment, we conclude that Dong Won is entitled to a CEP offset to NV.
Daelim reported sales through two channels of distribution for its home market sales. The first channel of distribution was sales through its affiliate in the home market, Living Star. The second channel of distribution was direct sales to home market customers. Daelim performs the same selling activities for home market sales in both channels of distribution. Although these functions are not performed at the same degree of intensity, we found that the differences in degree of intensity in selling functions between the two channels of distribution does not give rise to a substantial distinction. Therefore, we conclude that there is one LOT in the home market.
Upon review of the record we found that Daelim performed the same selling functions (
In accordance with 19 CFR 351.401(i), the date of sale will normally be the date of the invoice, as recorded in the exporters's or producer's records kept in the ordinary course of business, unless satisfactory evidence is presented that the exporter or producer established the material terms of sale on some other date. For both foreign market and U.S. transactions, Daelim and Dong Won reported the date of the contract (
In accordance with section 773(e) of the Act, we calculated CV based on the respondents' respective COM employed in producing the subject merchandise, SG&A expenses, the profit incurred and realized in connection with the production and sale of the foreign like product, and U.S. packing costs. We used the COM and G&A expenses as reported in the CV portion of respondents' questionnaire responses. We used the U.S. packing costs as reported in the U.S. sales portion of the respondents' questionnaire responses. For selling expenses, we used the average of the selling expenses reported for home market sales that passed the cost test, weighted by the total quantity of sales of each product. For profit, we first calculated, based on the home market sales that passed the cost test, the difference between the home market sales value and home market COP, and divided the difference by the home market COP. We then multiplied this percentage by the COP for each U.S. model to derive profit.
For those comparison products for which there were sales that passed the cost test, we based the respondent's NV on the price at which the foreign like product is first sold for consumption in Korea, in the usual commercial quantities, in the ordinary course of trade in accordance with section 773(a)(1)(B)(i) of the Act.
In accordance with section 773(a)(6) of the Act, for both CV and NV, we made adjustments, where appropriate, for inland freight, inland insurance, and discounts. We also reduced CV and foreign market prices by packing costs incurred in the foreign market, in accordance with section 773(a)(6)(B)(i) of the Act. In addition, we increased CV and foreign market prices for U.S. packing costs, in accordance with section 773(a)(6)(A) of the Act. We made further adjustments to foreign market prices, when applicable, to account for differences in physical characteristics of the merchandise, in accordance with section 773(a)(6)(C)(ii) of the Act. Pursuant to section 773(a)(6)(C)(iii) of the Act, we made an adjustment for differences in circumstances of sale by deducting foreign market direct selling expenses and adding any direct selling expenses associated with U.S. sales not deducted under the provisions of section 772(d)(1) of the Act. Finally, in the case of Dong Wong, where appropriate, we made a CEP offset adjustment to account for comparing U.S. and foreign market sales at different LOTs.
As a result of our review, we preliminarily determine that the following weighted-average dumping margins exist for the period January 1, 2000, through December 31, 2000:
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within 5 days of the date of publication of this notice. Any interested party may request a hearing within 30 days of the date of publication of this notice. Parties who submit arguments in this proceeding are requested to submit with each argument: (1) A statement of the issue and (2) a brief summary of the argument. All case briefs must be submitted within 30 days of the date of publication of this notice. Rebuttal briefs, which are limited to issues raised in the case briefs, may be filed not later than seven days after the case briefs are filed. Further, we would appreciate it if parties submitting written comments would provide the Department with an additional copy of the public version of any such comments on diskette. A hearing, if requested, will be held two days after the date the rebuttal briefs are filed or the first business day thereafter.
The Department will publish a notice of the final results of this administrative review, which will include the results of its analysis of the issues raised in any written comments, within 120 days from the publication of these preliminary results.
Upon completion of this administrative review, the Department will determine, and Customs shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific assessment rates for the merchandise subject to this review. The Department will issue appropriate assessment instructions directly to Customs within 15 days of publication of the final results of review. If these preliminary results are adopted in the final results of review, we will direct Customs to assess the resulting assessment rates against the entered Customs values for the subject merchandise on each of the importer's entries during the POR. For Daelim and Dong Won, we have calculated importer-specific
Furthermore, the following cash deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of top-of-stove stainless steel cooking ware from Korea entered, or withdrawn from warehouse, for consumption on or after publication
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and this notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Notice of issuance of an Amended Export Trade Certificate of Review, Application No. 84-13A12.
The Department of Commerce has issued an amendment to the Export Trade Certificate of Review granted to Northwest Fruit Exporters (“NFE”) on June 11, 1984. Notice of issuance of the Certificate was published in the
Jeffrey C. Anspacher, Director, Office of Export Trading Company Affairs, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or E-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2001).
The Office of Export Trading Company Affairs (“OETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Department of Commerce to publish a summary of the certification in the
Export Trade Certificate of Review No. 84-00012, was issued to NFE on June 11, 1984 (49 FR 24581, June 14, 1984) and previously amended on May 2, 1988 (53 FR 16306, May 6, 1988); September 21, 1988 (53 FR 37628, September 27, 1988); September 20, 1989 (54 FR 39454, September 26, 1989); November 19, 1992 (57 FR 55510, November 25, 1992); August 16, 1994 (59 FR 43093, August 22, 1994); November 4, 1996 (61 FR 57850, November 8, 1996); October 22, 1997 (62 FR 55783, October 28, 1997); November 2, 1998 (63 FR 60304, November 9, 1998); October 20, 1999 (64 FR 57438, October 25, 1999); October 16, 2000 (65 FR 63567, October 24, 2000); and October 5, 2001 (66 FR 52111, October 12, 2001).
NFE's Export Trade Certificate of Review has been amended to:
1. Add each of the following companies as a new “Member” of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.2(1)): L & M Companies, Selah, Washington; Orondo Fruit Co., Inc., Orondo, Washington; and Rawland F. Taplett d/b/a R.F. Taplett Fruit & Cold Storage Co., Wenatchee, Washington;
2. Delete the following companies as “Members” of the Certificate: Chief Wenatchee Growers, Wenatchee, Washington; Dole Northwest, Wenatchee, Washington; Fossum Orchards, Inc., Yakima, Washington; Garrett Ranches Packing, Wilder, Idaho; R.E. Redman & Sons, Inc., Wapato, Washington; Regal Fruit Cooperative, Tonasket, Washington; Sun Fresh International, LLC, Wenatchee, Washington; Taplett Fruit Packing Inc., Wenatchee, Washington; Voelker Fruit & Cold Storage, Inc., Yakima, Washington; and Williamson Orchards, Caldwell, Idaho; and
3. Change the listing of the following Members: “Allan Bros., Inc., Naches, Washington” to the new listing “Allan Bros., Naches, Washington”; “Borton & Sons, Yakima, Washington” to “Borton & Sons, Inc., Yakima, Washington”; “Carlson Orchards, Yakima, Washington” to “Carlson Orchards, Inc., Yakima, Washington”; “CPC International Apple Co., Tieton, Washington” to “CPC International Apple Company, Tieton, Washington”; “Domex Marketing Co., Yakima, Washington” to “Domex Marketing, Yakima, Washington”; “Douglas Fruit Co., Pasco, Washington” to “Douglas Fruit Company, Inc., Pasco, Washington”; “Dovex Fruit Company, Wenatchee, Washington” to “Dovex Fruit Co., Wenatchee, Washington”; “Hansen Fruit & Cold Storage, Co., Yakima, Washington” to “Hansen Fruit & Cold Storage Co., Inc., Yakima, Washington”; “Jenks Bro. Cold Storage, Inc., Royal City, Washington” to “Jenks Bros. Cold Storage & Packing, Royal City, Washington”; “Kershaw Fruit & Cold Storage, Yakima, Washington” to “Kershaw Fruit & Cold Storage, Co., Yakima, Washington”; “Keystone Ranch, Riverside, Washington” to “Keystone Fruit Co. L.L.C. dba Keystone Ranch, Riverside, Washington”; “Lloyd Garretson, Co., Inc., Yakima, Washington” to “Lloyd Garretson Co. Yakima, Washington”; “Northern Fruit Co., Wenatchee, Washington” to “Northern Fruit Company, Inc., Wenatchee, Washington”; “Northwestern Fruit & Produce Co., Yakima, Washington” to “Apple King, LLC, Yakima, Washington”; “Obert Cold Storage, Zillah, Washington” to “Obert Cold Storage, Inc., Zillah, Washington”; “Poirier Packing & Warehouse, Pateros, Washington” to “Poirier Warehouse, Pateros, Washington”; “Price Cold Storage, Yakima, Washington” to “Price Cold Storage & Packing Co., Inc., Yakima, Washington”; “Rainier Fruit Sales, Selah, Washington” to “Rainier Fruit Company, Selah, Washington; “Rowe Farms, Naches, Washington” to “Rowe Farms, Inc., Naches, Washington”; “Sund-Roy, Inc., Yakima,
The effective date of the amended certificate is July 8, 2002. A copy of the amended certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4102, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
National Oceanic and Atmospheric Administration, Commerce.
Notice of public meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the Sea Grant Review Panel. The meeting will have several purposes. Panel members will discuss and provide advice on the National Sea Grant College Program in the areas of program evaluation, education and extension, science and technology programs, and other matters as described below:
The announced meeting is scheduled during two days: Tuesday, October 22, 8:30 a.m. to 6 p.m.; Wednesday, October 23, 8:30 a.m. to 12:15 p.m.
U.S. Department of Commerce, Herbert C. Hoover Building, 14th & Constitution Avenue, Northwest, Room 6059, Washington, DC 20230.
Dr. Ronald C. Baird, Director, National Sea Grant College program, National Oceanic and Atmospheric Administration, 1315 East-West Highway, Room 11761, Silver Spring, Maryland 20910, (301) 713-2448.
The Panel, which consists of a balanced representation from academic, industry, state government and citizens groups, was established in 1976 by Section 209 of the Sea Grant Improvement Act (Public Law 94-461, 33 U.S.C. 1128). The Panel advises the Secretary of Commerce and the Director of the National Sea Grant College Program with respect to operations under the Act, and such other matters as the Secretary refers to them for review and advice. The agenda for the meeting is as follows:
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Consumer Product Safety Commission (CPSC) requests comments on a proposed extension of approval, for a period of three years from the date of approval by the Office of Management and Budget (OMB), of information collection requirements in regulations regarding children's articles called baby-bouncers, walker-jumpers, or baby-walkers. The collection of information consists of requirements that manufacturers and importers of these products must establish and maintain records of inspections, testing, sales, and distributions to demonstrate that the products are not banned by rules issued under the Federal Hazardous Substances Act and codified at 16 CFR part 1500.
The CPSC will consider all comments received in response to this notice before requesting approval of this collection of information from OMB.
The Office of the Secretary must receive written comments not later than December 9, 2002.
Written comments should be captioned “Baby-Bouncers” and mailed to the Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207, or delivered to that office, Room 502, 4330 East-West Highway, Bethesda, Maryland 20814. Written comments may also be sent to the Office of the Secretary by facsimile at (301) 504-0127 or by e-mail at
For information about the proposed extension of approval of the collection of information, or to obtain a copy of 16 CFR part 1500, call or write Linda L. Glatz, Office of Planning and Evaluation, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-0416, extension 2226.
Products called “baby-bouncers,” “walker-jumpers,” or “baby-walkers” are intended to support children younger than two years of age while they sit, bounce, jump, walk, or recline. Regulations issued under provisions of the Federal Hazardous Substances Act (15 U.S.C. 1261, 1262) establish safety requirements for these products.
One CPSC regulation bans any such product if it is designed in such a way that exposed parts present hazards of amputations, crushing, lacerations,
A second CPSC regulation establishes criteria for exempting baby-bouncers, walker-jumpers, and baby-walkers from the banning rule under specified conditions. 16 CFR 1500.86(a)(4). The exemption regulation requires certain labeling on these products and their packaging to identify the name and address of the manufacturer or distributor and the model number of the product. Additionally, the exemption regulation requires that records must be established and maintained for three years relating to testing, inspection, sales, and distributions of these products. The regulation does not specify a particular form or format for the records. Manufacturers and importers may rely on records kept in the ordinary course of business to satisfy the recordkeeping requirements if those records contain the required information.
The OMB approved the collection of information requirements in the regulations under control number 3041-0019. OMB's most recent extension of approval expires on January 31, 2003. The CPSC now proposes to request an extension of approval without change for the regulations' information collection requirements.
The safety need for this collection of information remains. Specifically, if a manufacturer or importer distributes products that violate the banning rule, the records required by section 1500.86(a)(4) can be used by the firm and the CPSC (i) to identify specific models of products that fail to comply with applicable requirements, and (ii) to notify distributors and retailers if the products are subject to recall.
The CPSC staff estimates that about 28 firms are subject to the testing and recordkeeping requirements of the regulations. The CPSC staff estimates further that the burden imposed by the regulations on each of these firms is approximately 2 hours per year. Thus, the total annual burden imposed by the regulations on all manufacturers and importers is about 56 hours.
The CPSC staff estimates that the hourly wage for the time required to perform the required testing and to maintain the required records is about $28.40 (rate for total compensation of technical workers, 2002), and that the annual total cost to the industry is approximately $1,590.40.
During a typical year, the CPSC will expend approximately two days of professional staff time reviewing records required to be maintained by the regulations for baby-bouncers, walker-jumpers, and baby-walkers. The annual cost to the Federal government of the collection of information in these regulations is estimated to be $680 (based on $42.50/hour staff time).
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
• Whether the collection of information described above is necessary for the proper performance of the Commission's functions, including whether the information would have practical utility;
• Whether the estimated burden of the proposed collection of information is accurate;
• Whether the quality, utility, and clarity of the information to be collected could be enhanced; and
• Whether the burden imposed by the collection of information could be minimized by use of automated, electronic or other technological collection techniques, or other forms of information technology.
Consumer Product Safety Commission.
Notice.
In the July 9, 2002
These regulations require manufacturers and importers of certain coal and woodburning appliances to provide safety information to consumers on labels and instructions and an explanation of how certain clearance distances in those labels and instructions were determined. The requirements to provide copies of labels and instructions to the Commission have been in effect since May 16, 1984. For this reason, the information burden imposed by this rule is limited to manufacturers and importers introducing new products or models, or making changes to labels, instructions, or information previously provided to the Commission. The purposes of the reporting requirements in part 1406 are to reduce risks of injuries from fires associated with the installation, operation, and maintenance of the appliances that are subject to the rule, and to assist the Commission in determining the extent to which manufacturers and importers comply with the requirements in part 1406.
Copies of this request for an extension of an information collection requirement are available from Linda Glatz, management and program analyst, Office of Planning and Evaluation, Consumer Product Safety Commission, Washington, DC 20207; telephone: (301) 504-0416, extension 2226.
Defense Nuclear Facilities Safety Board.
Notice, recommendation.
The Defense Nuclear Facilities Safety Board has made a recommendation to the Secretary of Energy pursuant to 42 U.S.C. 2286a(a)(5) concerning quality assurance for safety-related software.
Comments, data, views, or arguments concerning this recommendation are due on or before November 8, 2002.
Send comments, data, views, or arguments concerning this recommendation to: Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, Washington, DC 20004-2901.
Kenneth M. Pusateri or Andrew L. Thibadeau at the address above or telephone (202) 694-7000.
Two core Integrated Safety Management (ISM) functions evolving from the Department of Energy's (DOE) implementation of Defense Nuclear Facilities Safety Board (Board) Recommendation 95-2,
DOE and its contractors use many codes to evaluate the consequences of potential accidents. Safety controls and their functional classifications are often based on these evaluations. Functional classifications establish the level of rigor to which controls are designed, procured, maintained, and inspected. The robustness and reliability of many structures, systems, and components (SSCs) throughout DOE's defense nuclear complex depend on the quality of the software used to analyze and to guide these decisions, the quality of the software used to design or develop controls, and proficiency in use of the software. In addition, software that performs safety-related functions in distributed control systems, supervisory control and data acquisition systems (SCADA), and programmable logic controllers (PLC) requires the same high quality needed to provide adequate protection for the public, the workers, and the environment. Other types of software, such as databases used in safety management activities, can also serve important safety functions and deserve a degree of quality assurance commensurate with their safety significance.
In some areas where there is at present no substantial activity in development of new software for safety applications, new calculations are usually based on existing codes, with data inputs and some logic chains often modified to fit the problems of the moment. It is therefore necessary to ensure that software so modified is not placed in general use in competition with generally validated and more widely useable software.
Software quality assurance (SQA) provides measures designed to ensure that computer software will perform its intended functions. Such measures must be applied during the design, testing, documentation, and subsequent use of the software, and must be maintained throughout the software life cycle. It is generally accepted that an effective SQA program ensures that:
• All requirements, including the safety requirements, are properly specified.
• Models are a valid representation of the physical phenomena of interest, and digital control functions are properly executed.
• Input and embedded data are accurate.
• Software undergoes an appropriate verification and validation process.
• Results are in reasonable agreement with available benchmark data.
• All internal logic states of PLCs and SCADA are understood, so that no sequence of inputs, even those due to component failure, can leave the controlled system in an unexpected or unanalyzed state.
• Computer codes are properly and consistently executed by analysts.
• Code modifications and improvements are controlled, subjected to regression and re-acceptance testing, and documented.
DOE identified inadequate SQA as a problem as early as December 1989, when its Office of Environment, Safety and Health (DOE-EH) issued ENVIRONMENT, SAFETY & HEALTH BULLETIN EH-89-9,
An integrated and effective SQA infrastructure still does not exist within DOE. This situation can lead to both errors in technical output from software used in safety analyses and incorrect performance of instrumentation and controls for safety-related systems. In a letter to DOE dated January 20, 2000, the Board identified these deficiencies and requested that DOE provide a corrective action plan within 60 days. On October 3, 2000, the Board received DOE's corrective action plan, but found that it did not sufficiently respond to the Board's concerns. On October 23, 2000, the Board asked for a new plan of action; DOE has never submitted a revised plan, although several deliverables under the original plan have been received.
During the Board's August 15, 2001, public meeting on quality assurance,
This situation is not acceptable. To improve SQA in the DOE complex, the Board recommends prompt actions to achieve the following:
1. Define responsibility and authority for the following: developing SQA guidance, conducting oversight of the development and use of software important to safety, and directing research and development as noted below. Roles and responsibilities should address all software important to safety, including, at a minimum, design software, instrumentation and control software, software for analysis of consequences of potential accidents, and other types of software, such as databases used for safety management functions.
2. Assign those responsibilities and authorities to offices/individuals with the necessary technical expertise.
3. Identify software that would be recommended for use in performing design and analyses of SSCs important to safety, and for analysis of expected consequences of potential accidents.
4. Identify an organization responsible for management of each of these software tools, including SQA, technical support, configuration management, training, notification to users of problems and fixes, and other official stewardship functions.
5. Establish requirements and guidance in the DOE directives system for a rigorous SQA process, including specific guidance on the following: grading of requirements according to safety significance and complexity; performance of safety reviews, including failure analysis and fault tolerance; performance of verification and validation testing; and training to ensure proficiency of users.
6. Identify evolving areas in software development in which additional research and development is needed to ensure software quality.
As a result, the Board on September 23, 2002, unanimously approved Recommendation 2002-1,
The Freely Associated States (FSM, RMI and RP) are eligible for these funds only until an agreement for the extension of U.S. educational assistance under new Compacts of Free Association for those States become effective.
The Department is not bound by any estimates in this notice.
The T&FASEG program provides financial assistance to the Territories and Freely Associated States for programs that will enable students to make progress toward achieving high State academic standards and the high levels of educational achievement envisioned by the NCLB. The T&FASEG program is a supplemental resource to local school jurisdictions to help improve the quality of teaching and learning to ensure that no child is left behind. The grants may be used for educational purposes that are consistent with the purposes and programs authorized in the Elementary and Secondary Education Act (ESEA), as reauthorized by the NCLB.
Under the T&FASEG program, the Secretary awards grants for projects to'
(a) Conduct activities consistent with the purposes of the ESEA as reauthorized by the NCLB, including the types of activities authorized by ESEA—
(1) Title I—Improving The Academic Achievement of the Disadvantaged.
(2) Title II—Preparing, Training and Recruiting High Quality Teachers and Principals.
(3) Title III—Language Instruction for Limited English Proficient and Immigrant Students.
(4) Title IV—21st Century Schools.
(5) Title V—Promoting Informed Parental Choice and Innovative Programs.
(b) Provide direct educational services that assist all students with meeting challenging State content standards. For the purposes of this program, the term “direct educational services”—
(1) Means activities that are designed to improve student achievement or the quality of education; and
(2) Includes instructional services for students and teacher training.
The following illustrates some of the many types of activities that a grantee may conduct with funds under this program:
• Programs based on scientifically based research that are designed to strengthen the knowledge and skills of elementary and secondary students in primarily reading, language arts and mathematics, but may also include science, foreign languages, civics and government, economics, history, and geography.
• The establishment of professional development programs that provide pre-service and in-service training and give teachers, principals, and administrators the knowledge and skills to help students meet challenging State or local academic content standards and student academic achievement standards.
• Programs to recruit, train, and hire highly-qualified teachers.
• The planning, design, and operation of model, innovative schools and programs that—
(1) Are based on scientifically based research and methods of teaching and learning; and
(2) Are specially tailored to meet the educational needs of children in the area to be served.
• Programs for early language, literacy, and pre-reading development, particularly for students from low-income families.
• Programs for the development of curricula and instructional materials and the acquisition and use of instructional materials, including library and reference materials, academic assessments, reference materials, computer software and hardware for instructional use, and other curricular materials that are tied to high academic standards, that are used to improve student achievement, and that are a part of an overall education reform plan.
• Programs that involve families, communities, and businesses in the planning and operation of educational programs for their children.
• Programs to enhance student and parental choice among public schools, including charter schools.
The full text of the NCLBA may be found on the Internet at:
(a)
(1) The Secretary considers the need for the proposed project.
(2) In determining the need for the proposed project, the Secretary considers the following factors:
(i) The magnitude or severity of the problem to be addressed by the proposed project.
(ii) The magnitude of the need for the services to be provided or the activities to be carried out by the proposed project.
(iii) The extent to which the proposed project will address the needs of disadvantaged and other students who are at risk of educational failure.
(b)
(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the following factors:
(i) The significance of the proposed project to education in the area to be served.
(ii) The significance of the problems or issues to be addressed by the proposed project.
(iii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project, especially improvements in teaching and student achievement.
(c)
(1) The Secretary considers the quality of the design of the proposed project.
(2) In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable, and the extent to which they will be measured.
(ii) The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs.
(iii) The extent to which the proposed project will be coordinated with similar or related efforts, and with other appropriate community, State, and Federal resources.
(iv) The extent to which the proposed project is part of a comprehensive effort to improve teaching and learning and support rigorous academic standards for students.
(v) The extent to which the proposed project encourages parental involvement.
(vi) The extent to which performance feedback and continuous improvement are integral to the design of the proposed project.
(d)
(1) The Secretary considers the adequacy of resources for the proposed project.
(2) In determining the adequacy of resources for the proposed project, the Secretary considers the following factors:
(i) The extent to which the budget is adequate to support the proposed project.
(ii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
(iii) The extent to which the costs are reasonable in relation to the number of persons to be served and to the anticipated results and benefits.
(e)
(1) The Secretary considers the quality of the project personnel who will carry out the proposed project.
(2) In determining the quality of the personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The qualifications, including relevant training and experience, of the project director.
(ii) The qualifications, including relevant training and experience, of key project personnel.
(iii) The qualifications, including relevant training and experience, of project consultants or subcontractors.
(f)
(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation provide a scientific basis for examining the effectiveness of project implementation strategies.
(ii) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data.
(g)
(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the following factors:
(i) The extent to which the services to be provided by the proposed project are appropriate to the needs of the intended recipients or beneficiaries of those services.
(ii) The likely impact of the services to be provided by the proposed project on the intended recipients of those services.
(iii) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.
(iv) The extent to which the services to be provided by the proposed project are focused on individuals with greatest needs.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-888-877-8339.
Individuals with disabilities may obtain this document in an alternative format, (
Individuals with disabilities also may obtain a copy of the application package in alternative format, by contacting that person. However, the Department is not able to reproduce in an alternative format the standard forms included in the application package.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at the previous site. If you have questions about using, call the U.S. Government Printing Office (GPO), toll free at 1-888-293-6498; or in Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
20 U.S.C. 6331.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Fernald. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Saturday, October 12, 2002 8:30 a.m.-Noon.
Crosby Senior Center, 8910 Willey Road, Harrison, OH.
Doug Sarno, The Perspectives Group, Inc., 1055 North Fairfax Street, Suite 204, Alexandria, VA 22314, at (703) 837-1197, or e-mail;
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, Northeast Utilities Service Company (NUSCO) submitted a correction to the rate schedule with respect to The Connecticut Light and Power Company (CL&P) which was correctly identified in the transmittal letter, but not correctly identified on the top left of each page of the composite copies included as Attachment 2 to the filing. The CL&P rate schedule designation should read “CL&P First Revised FERC Electric Rate Schedule No. 492.”
Take notice that on September 25, 2002 Reliant Energy Mid-Atlantic Power Holdings, LLC (REMPH) filed notice of the cancellation of its FERC Electric Rate Schedule No. 1 as it applies to Units 1 and 2 of REMPH's Warren Station only. REMPH states that the cancellation results from the decommissioning of the units at the Warren Station and will be effective on September 30, 2002.
Take notice that on September 26, 2002, American Atlas #1, Ltd., L.L.L.P. (American Atlas), tendered for filing a Notice of Cancellation of Rate Schedule respecting American Atlas Electric Tariff No. 1, which became effective June 1, 1999, in Docket No. ER99-3086-000. American Atlas requests that the cancellation become effective November 25, 2002.
Take notice that on September 26, 2002, Southern California Edison Company (ASCE) tendered for filing the Amended and Restated Radial Lines Agreement (Agreement) between SCE and Reliant Energy Ormond Beach, L.L.C.
The Agreement serves to show revisions for replacement of Capacitance Coupled Voltage Transformers that are needed for SCE to operate and maintain the radial lines, and to conform to the requirements of the Commission's Order No. 614.
SCE respectfully requests that the Agreement become effective on September 27, 2002. Copies of this filing were served upon the Public Utilities Commission of the State of California and Reliant Energy Ormond Beach, L.L.C.
Take notice that on September 26, 2002, MidAmerican Energy Company (MidAmerican), filed with the Commission a Generation Interconnection Contract between MidAmerican, as transmission and distribution delivery services provider, and MidAmerican, as wholesale merchant, which incorporates the revisions as agreed to in the First Amendment to Generation Interconnection Contract, dated May 1, 2002 (Revised Contract).
MidAmerican requests an effective date of May 1, 2002, for the Revised Contract and seeks a waiver of the Commission's notice requirement. MidAmerican has served a copy of the filing on the Iowa Utilities Board, the Illinois Commerce Commission and the South Dakota Public Utilities Commission.
Take notice that on September 26, 2002, Keystone Energy Group, Inc. (Keystone) petitioned the Commission for acceptance of Keystone Rate schedule FERC No. 1; the granting of certain blanket approvals, including the authority to sell electricity at market based rates; and waiver of certain Commission regulations.
Keystone intends to engage in wholesale electric power and energy purchases and sales as a marketer. Keystone is not in the business of generating or transmitting electric power.
Take notice that on September 26, 2002, Madison Gas and Electric Company (MGE) tendered for filing a service agreement under MGE's Market-Based Power Sales Tariff with Sempra Energy Trading Corp.
MGE requests the agreement be effective on the date it was filed with the Federal Energy Regulatory Commission.
Take notice that on September 27, 2002, Quonset Point Cogen, L.P. (Quonset) tendered for filing with the Federal Energy Regulatory Commission (Commission) an application for an order accepting its FERC Electric Rate Schedule No. 1, granting certain blanket approvals, including the authority to sell electricity at market-base rates, and waiving certain regulations of the Commission. Quonset requests expedited Commission consideration and waiver of the prior notice requirements so that its Electric Rate Schedule No. 1 can become effective on October 15, 2002.
Take notice that on September 27, 2002, Kentucky Utilities Company (KU) filed an amendment to its Interchange Agreement with the City of Paris, Kentucky, to incorporate certain changes required in connection with KU's transfer of certain distribution facilities to the City of Paris. The Amendment does not change any rates
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 following notice of meeting is published pursuant to Section 3(a) of the Government in the Sunshine Act (Pub. L. No. 94-409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
October 9, 2002 (30 Minutes Following Regular Commission Meeting).
Hearing Room 5, 888 First Street, NE., Washington, DC 20426.
Closed.
Non-Public, Investigations and Inquiries and Enforcement Related Matters.
Magalie R. Salas, Secretary, Telephone (202) 502-8400.
Chairman Wood and Commissioners Massey, Breathitt and Brownell voted to hold a closed meeting on October 9, 2002. The certification of the General Counsel explaining the action closing the meeting is available for public inspection in the Commission's Public Reference Room at 888 First Street, NE., Washington, DC 20426.
The Chairman and the Commissioners, their assistants, the Commission's Secretary and her assistant, the General Counsel and members of her staff, and a stenographer are expected to attend the meeting. Other staff members from the Commission's program offices who will advise the Commissioners in the matters discussed will also be present.
Environmental Protection Agency ( EPA).
Notice of meeting.
Under the Federal Advisory Committee Act (Pub. L. 92-463), EPA gives notice of a meeting of the Gulf of Mexico Program (GMP) Citizens Advisory Committee (CAC).
The meeting will be held on Wednesday, November 6, 2002, from 1 p.m. to 5 p.m., and on Thursday, November 7, 2002, from 8:30 a.m. to 12 p.m.
The meeting will be held at the Bay Tower Hotel and Conference Center, 711 Casino Magic Drive, Bay St. Louis, MS 39520 (1-800-5-MAGIC-5)
Gloria D. Car, Designated Federal Officer, Gulf of Mexico Program Office, Mail Code EPA/GMPO, Stennis Space Center, MS 39529-6000 at (228) 688-2421.
Proposed agenda is attached.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application to register a pesticide product containing a new active ingredient not included in any
Written comments, identified by the docket ID number OPP-2002-0270, must be received on or before November 8, 2002.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Alan Reynolds, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 605-0515; e-mail address:
You may be potentially affected by this action if you are a pesticide manufacturer. Potentially affected entities may include, but are not limited to:
Pesticide manufacturers (NAICS 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in EPA's Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the registration activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA received an application as follows to register a pesticide product containing an active ingredient not included in any previously registered products pursuant to the provision of section 3(c)(4) of FIFRA. Notice of receipt of this application does not imply a decision by the Agency on the application.
File symbol: 74411-R. Applicant: Insect Biotechnology, Inc., 100 Capitola Drive, Suite 307, Durham, NC 27713. Product name: Technical Trypsin Modulating Oostatic Factor (TMOF). Product type: Insecticide. Active ingredient: Trypsin Modulating Oostatic Factor at 100%. Proposed classification/Use: Manufacturing use product for formulation into insecticidal products for mosquito control.
Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket ID number OPP-2002-0244, must be received on or before November 8, 2002.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
By mail: Leonard Cole, Biopesticide and Pollution Prevention Division, Office of Pesticide Programs, (7511C) Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5412; e-mail address:
You may be affected by this action if you are an agricultural producer, food
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit I.A. above. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petition is printed below as required by section 408(d)(3) of the FFDCA. The summary of the petition was prepared by Mycogen Seeds c/o Dow AgroSciences LLC, and represents the view of the Mycogen Seeds. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues, or an explanation of why no such method is needed.
EPA has received a pesticide petition 2G6494 from Mycogen Seeds c/o Dow AgroSciences LLC , 9330 Zionsville Road, Indianapolis, IN 46268-1054, proposing pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 to establish an exemption from the requirement of a temporary tolerance for the plant-incorporated protectant
Pursuant to section 408(d)(2)(A)(i) of the FFDCA, as amended, Mycogen Seeds c/o Dow AgroSciences LLC has submitted the following summary of information, data, and arguments in support of their pesticide petition. This summary was prepared by Mycogen Seeds c/o Dow AgroSciences LLC and EPA has not fully evaluated the merits of the pesticide petition. The summary may have been edited by EPA if the terminology used was unclear, the summary contained extraneous material, or the summary unintentionally made the reader conclude that the findings reflected EPA's position and not the position of the petitioner.
This notice of filing summarizes information submitted and cited by Mycogen Seeds c/o Dow AgroSciences LLC in support of a request for a temporary exemption from tolerance residues of the plant incorporated-protectant
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Cry proteins have been deployed as safe and effective pest control agents in microbial
Toxicology studies conducted to determine the toxicity of Cry1F (synpro) insect control protein demonstrated that the protein has very low toxicity. In an acute oral toxicity study in the mouse (male and female), the estimated acute LD
In an
The results of a study to determine the lability of the Cry1F (synpro) protein to heat demonstrated that the protein was deactivated after exposure to 75° or 90°C for 30 minutes, according to bioassay results on tobacco budworm.
The genetic material necessary for the production of the Cry1F (synpro) insect control protein are nucleic acids (DNA) which are common to all forms of plant and animal life. There are no known instances of where nucleic acids have caused toxic effects as a result of dietary exposure.
Collectively, the available data on Cry1F (synpro) protein along with the safe use history of microbial
Common modes of toxicity are not relevant to consideration of the cumulative exposure to
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Given the rapid digestibility of Cry1F (synpro) insecticidal crystal protein, no chronic effects are expected. Cry1F (synpro) insecticidal crystal protein, or metabolites of the insecticidal crystal protein are not known to, or are expected to have any effect on the immune or endocrine systems. Proteins in general are not carcinogenic, therefore, no carcinogenic risk is associated with the Cry1F (synpro) protein.
There are no existing tolerances or exemptions from tolerance for
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket ID number OPP-2002-0244, must be received on or before November 8, 2002.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
By mail: Leonard Cole, Biopesticide and Pollution Prevention Division, Office of Pesticide Programs, (7511C) Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5412; e-mail address:
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in OPP-2002-0244. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do
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iii.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petition is printed below as required by section 408(d)(3) of the FFDCA. The summary of the petition was prepared by Mycogen Seeds c/o Dow AgroSciences LLC, and represents the view of the Mycogen Seeds. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues, or an explanation of why no such method is needed.
EPA has received a pesticide petition (2G6494) from Mycogen Seeds c/o Dow
Pursuant to section 408(d)(2)(A)(i) of the FFDCA, as amended, Mycogen Seeds c/o Dow AgroSciences LLC has submitted the following summary of information, data, and arguments in support of their pesticide petition. EPA has not fully evaluated the merits of the pesticide petition. The summary may have been edited by EPA if the terminology used was unclear, the summary contained extraneous material, or the summary unintentionally made the reader conclude that the findings reflected EPA's position and not the position of the petitioner.
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Cry proteins have been deployed as safe and effective pest control agents in microbial bacillus thuringiensis formulations for almost 40 years. There are currently 180 registered microbial bacillus thuringiensis products in the United States for use in agriculture, forestry, and vector control. The numerous toxicology studies conducted with these microbial products show no significant adverse effects, and demonstrate that the products are practically non-toxic to mammals. An exemption from the requirement of a tolerance has been in place for these products since at least 1971 (40 CFR 180.1011).
Toxicology studies conducted to determine the toxicity of Cry1Ac (synpro) insecticidal crystal protein demonstrated that the protein has very low toxicity. In an acute oral toxicity study in the mouse (male and female), the estimated acute LD
The results of a study to determine the lability of the Cry1Ac (synpro) protein to heat demonstrated that the protein was deactivated after exposure to 75
Collectively, the available data on Cry1Ac (synpro) protein along with the safe use history of microbial
Insecticidal crystal proteins of bacillus thuringiensis are known to have a high degree of insect specificity via binding to specific receptors in the insect gut, and do not harm people, wildlife or many beneficial insects (Ballester et al., 1999; Aronson and Shai, 2001). The level of protein that is expressed in corn plants is very low. The small amount of Cry1Ac (synpro) in plant tissue is deep in the plant matrix, which greatly reduces availability for dermal or respiratory exposure. Significant dietary exposure to Cry1Ac (synpro) protein is unlikely to occur. Dietary exposures at very low levels, via ingestion of processed commodities, although, they may occur, are unlikely to be problematic because of the low toxicity and the high degree of digestibility of the protein. In summary the potential for significant aggregate exposure to Cry1Ac (synpro) protein is highly unlikely.
Common modes of toxicity are not relevant to consideration of the cumulative exposure to
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Given the rapid digestibility of Cry1Ac (synpro) insecticidal crystal protein, no chronic effects are expected. Cry1Ac (synpro) insecticidal crystal protein, or metabolites of the insecticidal crystal protein are not known to, or are expected to have any effect on the immune, or endocrine systems. Proteins in general are not carcinogenic; therefore, no carcinogenic risk is associated with the Cry1Ac (synpro) protein.
There are no existing tolerances or exemptions from tolerance for
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the forthcoming regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on October 10, 2002, from 9 a.m. until such time as the Board concludes its business.
Jeanette C. Brinkley, Acting Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
Parts of this meeting of the Board will be open to the public (limited space available), and parts of this meeting will be closed. In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
* Session Closed-Exempt pursuant to 5 U.S.C. 552b(c)(8) and (9).
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on , which is scheduled to commence at in Room TW-C305, at 445 12th Street, SW, Washington, DC.
Additional information concerning this meeting may be obtained from Maureen Peratino or David Fiske, Office of Media Relations, telephone number (202) 418-0500; TTY 1-888-835-5322.
Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Qualex International (202) 863-2893; Fax (202) 863-2898; TTY (202) 863-2897. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio tape. Qualex International may be reached by e-mail at
This meeting can be viewed over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. For information on these services call (703) 993-3100. Audio/Video coverage of the meeting will be broadcast live over the Internet from the FCC's Audio/Video Events web page at
Notice; correction.
The Federal Housing Finance Board published a Sunshine Act Notice in the
In the
• Appointment—Financing Corporation Directorate (Tentative)
Elaine L. Baker, Secretary to the Board, (202) 408-2837.
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Avalon Risk Management, Inc., General Agent for Aegis Security Insurance Co., (“Complainant”) has filed a complaint against Michael B. Deitchman; Arnistics, LLC; and Advanced Global Logistics (“Respondents”). Complainant states that it provided Ocean Transportation Intermediary (“OTI”) bonds to the Respondents, who represented that they would comply with all Federal Maritime Commission (“Commission”) OTI regulations, including paying freight and related charges. However, Complainant alleges that Respondents fraudulently induced carriers to release cargo to them or their agents, thus causing carriers to lose their liens on the cargo without payment. Four carriers have settled claims for the resultant damages with Complainant, to whom they have assigned their recovery rights.
Complainant asks the Commission to issue orders (1) compelling Respondents to answer its charges and scheduling a hearing in Washington DC; (2) against the Respondents for their violations of the Shipping Act; (3) compelling Respondents to make reparations to Complainant, plus interest, costs and attorneys' fees; and (4) holding that the Respondents' business activities described in the Complaint are unlawful and in violation of the Shipping Act and ordering them to cease and desist therefrom.
This proceeding has been assigned to the office of Administrative Law Judges. Hearing in this matter, if any is held, shall commence within the time limitations prescribed in 46 CFR 502.61, and only after consideration has been given by the parties and the presiding officer to the use of alternative forms of dispute resolution. The hearing shall include oral testimony and cross-examination in the discretion of the presiding officer only upon proper showing that there are genuine issues of material fact that cannot be resolved on the basis of sworn statements, affidavits, depositions, or other documents or that the nature of the matter in issue is such that an oral hearing and cross-examination are necessary for the development of an adequate record. Pursuant to the further terms of 46 CFR 502.61, the initial decision of the presiding officer in this proceeding shall be issued by October 1, 2003, and the final decision of the Commission shall be issued by January 26, 2004.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
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 connection with this application, Applicant also has applied to acquire Northern Capital Holding Company, Fargo, North Dakota, and thereby engage in providing trust services, and brokerage and financial advisory services, pursuant to §§ 225.28 (b) (5), (b)(6), (b)(7), and (b)(14) of Regulation Y.
Board of Governors of the Federal Reserve System, October 3, 2002.
10 a.m. (EDT) October 21, 2002.
4th Floor, Conference Room, 1250 H Street, NW., Washington, DC.
Parts will be open to the public and part closed to the public.
emsp;
1. Approval of the minutes of the September 17, 2002, Board member meeting.
2. Thrift Savings Plan activity report by the Executive Director (with discussion of litigation to be closed to the public).
Discussion of litigation.
Thomas J. Trabucco, Director, Office of External Affairs, (202) 942-1640.
Federal Trade Commission.
2 p.m., Monday, November 4, 2002.
Federal Trade Commission Building, Room 532, 6th Street and Pennsylvania Avenue, NW., Washington, DC 20580.
Parts of this meeting will be open to the public. The rest of the meeting will be closed to the public.
(1) Oral argument in Polygram Holding
(2) Executive session to follow oral argument in Polygram Holding,
Mitch Katz, Office of Public Affairs: (202) 326-2180, Recorded Message: (202) 326-2711.
Pursuant to section 2 of Pub. L. 537, 80th Congress, approved May 19, 1948 (16 U.S.C. 667c) notice is hereby given that:
1. The General Services Administration transferred 32.34 acres of land and improvements, identified as Mobile Point Light Station, Gulf Shores, AL to the U.S. Fish and Wildlife Service Department of the Interior by transfer letter dated June 12, 2002.
2. The above property was conveyed for wildlife conservation in accordance with the provisions of section 1 of Pub. L. 80-537 (16 U.S.C. 667b), as amended by Pub. L. 92-432.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information 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 8, 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.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under the Federal Food, Drug, and Cosmetic Act (the act), cosmetic products that are adulterated under section 601 of the act (21 U.S.C. 361) or misbranded under section 602 of the act (21 U.S.C. 362) cannot legally be distributed in interstate commerce. To assist FDA in carrying out its responsibility to regulate cosmetics, FDA requests under part 720 (21 CFR part 720), but does not require, that firms that manufacture, pack, or distribute cosmetics file with the agency an ingredient statement for each of their products (§ 720.4). Ingredient statements for new submissions (§ 720.4) are reported on Form FDA 2512, “Cosmetic Product Ingredient Statement,” and on Form FDA 2512a, a continuation form. Changes in product formulation (§ 720.6) are also reported on Forms FDA 2512 and FDA 2512a. When a firm discontinues the commercial distribution of a cosmetic, FDA requests that the firm file Form FDA 2514, “Discontinuance of Commercial Distribution of Cosmetic Product Formulation” (§ 720.6). If any of the information submitted on or with these forms is confidential, the firm may submit a request for confidentiality under § 720.8.
FDA uses the information received on these forms as input for a computer-based information storage and retrieval system. These voluntary formula filings provide FDA with the best information available about cosmetic product formulations, ingredients and their frequency of use, businesses engaged in the manufacture and distribution of cosmetics, and approximate rates of product discontinuance and formula modifications. FDA's database also lists cosmetic products containing ingredients suspected to be carcinogenic or otherwise deleterious to the public health. The information provided under the Cosmetic Product Voluntary Reporting Program assists FDA scientists in evaluating reports of alleged injuries and adverse reactions to the use of cosmetics. The information also is utilized in defining and planning analytical and toxicological studies pertaining to cosmetics.
FDA shares nonconfidential information from its files on cosmetics with consumers, medical professionals, and industry. For example, by submitting a Freedom of Information Act request, consumers can obtain information about which products do or do not contain a specified ingredient and about the levels at which certain ingredients are typically used. Dermatologists use FDA files to cross-reference allergens found in patch test kits with cosmetic ingredients. The Cosmetic, Toiletry, and Fragrance Association, which is conducting a review of ingredients used in cosmetics, has relied on data provided by FDA in selecting ingredients to be reviewed based on frequency of use.
The Cosmetic Product Voluntary Reporting Program was suspended during fiscal year (FY) 1998 due to a lack of budgetary funding and was reinstated at the beginning of FY 1999. The estimated hour burden is 60 percent of the previous level reported in 1999. In general, the larger cosmetic companies have resumed participating in the program, whereas the smaller companies are lagging.
FDA estimates the burden of this collection of information as follows:
This estimate is based on the number and frequency of submissions received in the past and on discussions between FDA staff and respondents during routine communications. The actual time required for each submission will vary in relation to the size of the company and the breadth of its marketing activities.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following advisory committee meeting. The meeting is open to the public on Wednesday, November 20, 2002, from 9 a.m. to 10 a.m. and closed for the remainder of the meeting.
Anyone wishing to obtain a roster of members, minutes of meetings, or other relevant information should write or contact Kishena C. Wadhwani, Ph.D., Executive Secretary, Maternal and Child Health Research Grants Review Committee, Room 18A-55, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 443-2207.
Fish and Wildlife Service, Interior.
Notice of receipt.
We announce our receipt of applications to conduct certain activities pertaining to scientific research and enhancement of survival of endangered species.
Written comments on these requests for permits must be received by November 8, 2002.
Written data or comments should be submitted to the Assistant Regional Director-Ecological Services, U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225-0486; telephone 303-236-7400, facsimile 303-236-0027.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 20 days of the date of publication of this notice to the address above; telephone 303-236-7400.
The following applicants have requested renewal of scientific research and enhancement of survival permits to conduct certain activities with endangered species pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to possess black-footed ferrets (
The applicant requests a permit to take Topeka shiner (
Fish and Wildlife Service, Interior.
Notice of document availability.
We, the U.S. Fish and Wildlife Service, announce the availability for public review of the Draft Recovery Plan for the Kneeland Prairie Penny-cress (
Comments on the draft recovery plan must be received on or before December 9, 2002, to receive consideration by us.
Copies of the draft recovery plan are available for inspection, by appointment, during normal business hours at the following location: U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, California 95521 (phone: 707-822-7201). Requests for copies of the draft recovery plan, and written comments and materials regarding this plan should be addressed to Bruce Halstead, Project Leader, at the above Arcata address.
David Imper, Fish and Wildlife Ecologist, at the above Arcata address.
Restoring endangered or threatened animals and plants to the point where they are again secure, self-sustaining members of their ecosystems is a primary goal of our endangered species program. To help guide the recovery effort, we are working to prepare recovery plans for most of the listed species native to the United States. Recovery plans describe actions considered necessary for the conservation of the species, establish criteria for downlisting or delisting listed species, and estimate time and cost for implementing the recovery measures needed.
The Endangered Species Act of 1973, as amended in 1988 (16 U.S.C. 1531
Kneeland Prairie penny-cress (
The draft recovery plan includes conservation measures designed to ensure that a self-sustaining population of penny-cress will continue to exist, distributed throughout its extant and historic range. Specific recovery actions focus on protection of the serpentine outcrops and surrounding oak woodland and grasslands. The draft plan also seeks to re-establish multiple sexually reproducing colonies of the penny-cress within the native serpentine plant community present in Kneeland Prairie. The ultimate objective of this recovery plan is to delist penny-cress through implementation of a variety of recovery measures including: (1) Protection of the extant population and its habitat, involving acquisition or other legal protective mechanisms, monitoring, and coordination with the landowners; (2) research on the species biology and habitat requirements; (3) augmentation of existing colonies and establishment of new colonies; and (4) ex-situ conservation measures including artificial rearing and seed banking.
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Fish and Wildlife Service, Interior.
Notice of availability of final marine mammal stock assessment reports for Pacific walrus, polar bear, and sea otter in Alaska; response to comments.
In accordance with the Marine Mammal Protection Act (MMPA), the Fish and Wildlife Service (FWS) has incorporated public comments into revisions of marine mammal stock assessment reports (SARs) for Pacific walrus, polar bear, and sea otter in Alaska. The 2002 final SARs are now complete and available to the public.
Send requests for printed copies of the final stock assessment reports to: Chief, U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011 East Tudor Road, Anchorage, AK 99503, (800) 362-5148.
Copies of the final stock assessment reports are available on the Internet in Adobe Acrobat format at
Section 117 of the MMPA (16 U.S.C. 1361-1407) requires the FWS and the National Marine Fisheries Service (NMFS) to prepare stock assessment reports for each marine mammal stock that occurs in waters under the jurisdiction of the United States. Section 117 of the MMPA also requires the FWS and the NMFS to review the stock assessment reports: (a) At least annually for stocks that are specified as strategic stocks; (b) at least annually for stocks for which significant new information is available; and (c) at least once every three years for all other stocks. If the review indicates that the status of the stock has changed or can be more accurately determined, the agencies are directed to revise the SARs. We published the initial SARs in 1995 and revised SARs for Pacific walrus and polar bears in 1998.
Draft 2002 SARs were made available for a 90-day public review and comment period on March 28, 2002 (67 FR 14959). Prior to releasing them for public review and comment, FWS subjected the draft reports to internal technical review and to scientific review
Previous stock assessments covered a single stock of Pacific walrus, two stocks of polar bears (Chukchi/Bering seas and Southern Beaufort Sea), and a single stock of sea otters in Alaska. There are no changes in stock identification for Pacific walrus and polar bear, however three stocks of sea otters (southwest Alaska, southcentral Alaska, and southeast Alaska) have now been identified.
A strategic stock is defined in the MMPA as a marine mammal stock (A) for which the level of direct human-caused mortality exceeds the potential biological removal level; (B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973 within the foreseeable future; or (C) which is listed as a threatened or endangered species under the Endangered Species Act of 1973, or is designated as depleted under the MMPA.
Only the southwest Alaska stock of sea otters was classified as strategic. All other stocks were classified as non-strategic. Based on the best available scientific information, sea otter numbers across southwest Alaska are declining. In April 2000, an aerial survey of sea otters in the Aleutian Islands indicated the population had declined by 70% during the period from 1992-2000. In August 2000 FWS designated the northern sea otter in the Aleutian Islands as a candidate species under the Endangered Species Act. Additional surveys in 2000 and 2001 along the Alaska Peninsula and Kodiak archipelago also showed population declines in these areas. As a result, the southwest Alaska stock is classified as strategic in the final report and is under review for possible listing under the Endangered Species Act.
A summary of the final revised stock assessment reports is presented in Table 1. The table lists each marine mammal stock, estimated abundance (N
FWS received 4 letters containing comments for sea otters, 3 letters for Pacific walrus, and two letters for polar bears. The comments and responses are separated below by species.
Bureau of Land Management, Interior.
Notice of intent to prepare an environmental impact statement (EIS).
The Eugene District of the Bureau of Land Management (BLM), with the U.S. Fish and Wildlife Service as a Cooperating Agency, is developing a plan for forest and aquatic ecosystem restoration within a Late-Successional Reserve (LSR) in the Coast Range Mountains west of Eugene, Oregon (LSR-267). The purpose of the plan will be to design a long-term management approach and specific actions needed to achieve the LSR goals and Aquatic Conservation Strategy objectives set out in the Northwest Forest Plan. BLM will develop a restoration plan for the Upper Siuslaw River sub-unit of LSR-267, and will analyze the impacts of the proposed plan and alternatives in an EIS.
BLM invites written comments on the scope of the analysis for a restoration plan for the Upper Siuslaw River sub-unit of LSR-267. BLM will give notice of the availability of the environmental impact statement and decision-making process that will occur so that interested and affected people will be aware of how they may participate and contribute to the final decision. These notices will be published in local newspapers and mailed to known persons or groups of interest in the local area.
The Upper Siuslaw LSR Restoration plan is intended to be developed in conformance with the 1995 Eugene District Resource Management Plan (RMP). This plan is not expected to require any amendment or revision of the RMP, and therefore the provisions of 43 CFR 1610.5-5 and 1610.6 do not apply.
Comments concerning the scope of the analysis should be received in writing by November 8, 2002, to ensure timely consideration. Comments, including names and street addresses of respondents, will be available for public review at the Eugene District office during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays, and may be published as part of the environmental analysis or other related documents. Individual respondents may request confidentiality. If you wish to withhold your name or address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your written comment. Such requests will be honored to the extent allowed by law. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organization or businesses, will be made available for public inspection in their entirety.
Send written comments to: Rick Colvin, P.O. Box 10226, Eugene, OR, 97440; or e-mail to:
Rick Colvin at (541) 683-6600 or 1-888-442-3061.
The 1994 Northwest Forest Plan established a network of Late-Successional Reserves (LSRs) designed to protect and enhance late-successional and old-growth forest ecosystems on Federal forests within the range of the northern spotted owl. The Northwest Forest Plan allows certain activities within LSRs if they are neutral or beneficial to late-successional habitat characteristics. The Northwest Forest Plan requires preparation of an LSR Assessment prior to most management actions. The LSR Assessment for the planning area was completed in 1997.
Silvicultural treatments, including thinning and underplanting, may speed the development of late-successional forest structural characteristics and may improve habitat conditions for threatened and endangered species, including the northern spotted owl and marbled murrelet. Aquatic restoration may be accelerated by creation of in-stream habitat structures, riparian thinning to restore large conifers, and improved road management, including culvert replacement. Additional information on the role of active management in restoring late-successional forest characteristics and healthy aquatic ecosystems is available in the Northwest Forest Plan and supporting documents and in the watershed analysis and LSR Assessment for this planning area.
The Upper Siuslaw LSR Restoration plan will address management of the approximately 25,000 acres of BLM-managed lands within LSR 267 in the upper portion of the Siuslaw River fifth-field watershed. Intermingled with these federal lands are privately-owned lands.
In preparing the EIS, BLM will identify and consider a range of management actions including commercial and non-commercial forest thinning, snag and coarse woody debris creation, road decommissioning, culvert replacement, and in-stream habitat restoration. A No Action alternative which would involve no active management will be analyzed in detail. Other preliminary alternatives include: Continuation of the current management approach; restoration limited to forest plantations and road management, with no commercial timber harvest; restoration focused on recovery of threatened and endangered species; restoration that would reduce forest stand densities as quickly as possible; restoration based on multi-entry and multi-trajectory thinning.
Preliminary issues identified include:
Input from the scoping process will be used to determine the scope of the analysis, consistent with the requirements of 40 CFR 1501.7 and 1508.22. The scoping process includes:
BLM is also interested in suggestions from the public about how they would like to be involved in the environmental analysis and decision-making process.
In August 2000, BLM mailed preliminary information to known persons or groups of interest in the local area. Since that time, BLM has also solicited public participation through a series of public meetings and field trips and plans to hold more meetings and field trips. BLM has also mailed a periodic newsletter about this LSR Restoration Project to known persons or groups of interest in the local area. In response to these efforts, BLM has received comments on the scope of the environmental analysis, possible alternatives, and issues for consideration. BLM will use those comments received prior to this notice together with comments received in response to this notice in determining the scope of the analysis.
The responsible official for this proposal is: Steven Calish, Field Manager, South Valley and Coast Range Resource Areas, Eugene District, BLM.
Bureau of Land Management, Interior.
Direct sale of Public Lands in Eureka County, Nevada.
The following described lands near the town of Eureka, Eureka County, Nevada, have been examined and found suitable for disposal by direct sale, at the appraised fair market value, to Homestake Mining Company of Eureka, Nevada. Authority for the sale is in Sections 203 and 209 of the Federal Land Policy and Management Act of October 21,1976 (43 U.S.C. 1701,1713, 1719).
Totaling 1644.94 acres.
The above-described lands are hereby classified for disposal in accordance with section 7 of the Taylor Grazing Act, 43 U.S.C. 315f, Act of June 28, 1934, as amended and Executive Order 6910.
Comments must be submitted within 45 days of the date this Notice is published in the
Bureau of Land Management, Battle Mountain Field Office, 50 Bastian Road, Battle Mountain, Nevada 89820.
Chuck Lahr, Realty Specialist, at the above address or at (775) 635-4000.
This parcel of land near Eureka, Nevada, is being offered by direct sale to Homestake Mining Company. The land is not required for Federal purposes. The proposed action is consistent with the objectives, goals, and decisions of the Shoshone/Eureka Resource Management Plan.
The United States will retain the subsurface mineral estate associated with the subject parcel. The parcel is currently utilized by Homestake for surface operations, including mining and ore processing, at their Ruby Hill Mine. The parcel is covered in its entirety by federal mining claims controlled by Homestake. The Ruby Hill Mine is an active gold mine. Surface ownership of the subject parcel will allow Homestake to optimize mining operations and better manage closure and reclamation issues associated with mine operations. The potential exists for the discovery of additional locatable minerals, primarily gold, on the subject parcel.
The proponent will have 30 days from the date of receiving the sale offer to accept the offer and to submit a deposit of 30 percent of the purchase price and money for publication costs. The purchaser must submit the rest of the purchase price, within 90 days from the date the sale offer is received. Payments may be by certified check, postal money order, bank draft, or cashier's check made payable to the U.S. Department of the Interior—BLM. Failure to meet conditions established for this sale will void the sale and any money received for the sale will be forfeited.
The patent, when issued, will contain the following reservations to the United States:
1. A right-of-way for ditches and canals constructed by authority of the United States, Act of August 30, 1890, (43 U.S.C. 945);
2. All mineral deposits shall be reserved to the United States, together with the right to prospect for, mine, and remove such deposits under applicable laws and regulations as the Secretary of the Interior may prescribe.
And will be subject to:
1. Right-of-way N-48618 for a buried water pipeline held by the County of Eureka.
2. All other valid existing rights.
Publication of this Notice in the
For a period of 45 days from the date this Notice is published in the
Minerals Management Service (MMS), Interior.
Notice of an extension of a currently approved information collection (OMB Control Number 1010-0136).
To comply with the Paperwork Reduction Act (PRA) of 1995, we are inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) is titled “30 CFR part 206, Subpart C, Federal Oil Valuation'.
Submit written comments on or before December 9, 2002.
Submit written comments to Sharron L. Gebhardt, Regulatory Specialist, Minerals Management Service, Minerals Revenue Management, P.O. Box 25165, MS 320B2, Denver, Colorado 80225. If you use an overnight courier service, our courier address is Building 85, Room A-614, Denver Federal Center, Denver, Colorado 80225. You may also e-mail your comments to us at
Sharron L. Gebhardt, telephone (303) 231-3211, FAX (303) 231-3385 or e-mail sharron.gebhardt@mms.gov.
Section 101(a) of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), as amended, requires that the Secretary “establish a comprehensive inspection, collection, and fiscal and production accounting and auditing system to provide the capability to accurately determine oil and gas royalties, interest, fines, penalties, fees, deposits, and other payments owed, and collect and account for such amounts in a timely manner.” In order to accomplish these tasks, MMS developed valuation regulations for Federal leases at 30 CFR part 206, subpart C. Market value is a basic principle underlying royalty valuation. Consequently, these regulations include methods to capture the true market value of crude oil produced from Federal leases, both onshore and offshore.
When a company or an individual enters into a lease to explore, develop, produce, and dispose of minerals from Federal or Indian lands, that company or individual agrees to pay the lessor a share (royalty) of the value received from production from the leased lands. The lease creates a business relationship between the lessor and the lessee. The lessee is required to report various kinds of information to the lessor relative to the disposition of the leased minerals. Such information is similar to data reported to private and public mineral interest owners and is generally available within the records of the lessee or others involved in developing, transporting, processing, purchasing, or selling of such minerals. The information collected includes data necessary to assure that the royalties are paid appropriately. The valuation regulations at 30 CFR part 206, subpart C, require companies to collect and/or submit information used to value their Federal oil.
MMS is requesting OMB's approval to continue to collect this information. Not collecting the information would limit the Secretary's ability to discharge his/her duties and may also result in loss of royalty payments. Proprietary information submitted is protected, and there are no questions of a sensitive nature included in this information collection.
The PRA also requires agencies to estimate the total annual reporting “non-hour cost” burden to respondents or recordkeepers resulting from the collection of information. We have not identified non-hour cost burdens for this information collection. If you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information; monitoring, sampling, testing equipment; and record storage facilities. Generally, your estimates should not include equipment or services purchased: (i) Before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our ICR submission for OMB approval, including appropriate adjustments to the estimated burden. We will provide a copy of the ICR to you without charge upon request and the ICR will also be posted on our Web site at
Minerals Management Service (MMS), Interior.
Request for nomination.
The Secretary of the Department of the Interior has established a Royalty Policy Committee (RPC), on the Minerals Management Advisory Board, to provide advice on the Department's management of Federal and Indian minerals leases, revenues, and other minerals related policies. RPC membership includes representatives from States, Indian Tribes and allottee organizations, minerals industry associations, other governmental agencies, and the interested public. Members serve 2-year terms without pay but will be reimbursed for travel expenses incurred when attending official RPC meetings. Reimbursements will be calculated in accordance with the Federal travel regulations as implemented by the Department. The RPC currently has one vacant public position and another due to expire at the beginning of next year. The Director, MMS, is requesting nominations to complete the RPC's public membership that allows up to four representatives. These nominations may originate from State and local governments, universities, other public organizations or individuals, and may include self-nominations. Nominees should have knowledge of the mineral and energy industry to assure sound representation of the public interest. The nomination package must include a nomination letter from an interested organization, or a self-nomination letter from an individual, outlining the candidate's qualifications including an
Submit nominations on or before January 31, 2003.
Submit nominations to Gary Fields, Minerals Revenue Management, MMS, P.O. Box 25165, MS 300B3, Denver, CO 80225-0165, telephone number (303) 231-3102, fax number (303) 231-3780, e-mail:
Gary Fields, Minerals Revenue Management, MMS, P.O. Box 25165, MS 300B3, Denver, CO 80225-0165, telephone number (303) 231-3102, fax number (303) 231-3780.
The location and dates of future Committee meetings will be published in the
Committee meetings are conducted under the authority of the Federal Advisory Committee Act, Pub. L. 92-463, 5 U.S.C. appendix 1, and Office of Management and Budget Circular No. A-63, revised.
Minerals Management Service (MMS), Interior.
Notice of availability of final Information Quality Guidelines.
The Office of Management and Budget (OMB) issued guidelines in the
You may access MMS's Information Quality Guidelines on its Web site at:
Jo Ann Lauterbach, Office of Policy and Management Improvement; telephone (202) 208-7744; Fax (202) 208-4891; e-mail:
Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Public Law 106-554) directed 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.” OMB complied by issuing guidelines that directed each Federal agency to: (a) Issue its own guidelines; (b) establish administrative mechanisms allowing affected persons to seek and obtain correction of information that does not comply with OMB's 515 guidelines; and (c) report periodically to the Director of OMB on the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency and how such complaints were handled by the agency.
In compliance with OMB's directives, the Department of the Interior (DOI) issued draft Information Quality Guidelines in the
We have now finalized our guidelines and posted them on our Web site. These guidelines are a living document and may be revised periodically to reflect changes in DOI's or MMS's policy, or as best practices emerge, about how best to address, ensure, and maximize information quality. MMS welcomes comments on these guidelines at any time and will consider those comments in any future revisions.
Bureau of Reclamation, Interior.
Notice of availability.
The following Water Management Plans are available for review:
• Colusa County Water District
• Westlands Water District
To meet the requirements of the Central Valley Project Improvement Act of 1992 (CVPIA) and the Reclamation Reform Act of 1982, the Bureau of Reclamation (Reclamation) developed and published the Criteria for Evaluating Water Management Plans (Criteria).
For the purpose of this announcement, Water Management Plans (Plans) are considered the same as Water Conservation Plans. The above entities have developed a Plan, which Reclamation has evaluated and preliminarily determined to meet the requirements of these Criteria. Reclamation is publishing this notice in order to allow the public to comment on the preliminary determinations. Public comment to Reclamation's preliminary (
All public comments must be received by November 8, 2002.
Please mail comments to Bryce White, Bureau of Reclamation, 2800 Cottage Way, Sacramento, California 95825, or contact at 916-978-5208 (TDD 978-5608), or e-mail at
To be placed on a mailing list for any subsequent information, please contact Bryce White at the e-mail address or telephone number above.
We are inviting the public to comment on our preliminary (
Reclamation will evaluate Plans based on these criteria. 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 entity.
A copy of these Plans will be available for review at Reclamation's Mid-Pacific Regional Office located in Sacramento, California, and the local Area Office. If you wish to review a copy of these Plans, please contact Mr. White at the email address or telephone number above.
United States International Trade Commission.
Proposed collection; comment request.
In accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Commission has submitted an emergency request for approval of questionnaires to the Office of Management and Budget (OMB) for review. The Commission has requested OMB approval by October 25, 2002.
October 3, 2002.
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(5)
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(7)
(8) Information obtained from the form that qualifies as confidential business information will be so treated by the Commission and not disclosed in a manner that would reveal the individual operations of a firm.
By order of the Commission.
Petitions have been filed with the Secretary of Labor under Section 221 (a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than October 18, 2002.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC, 20210.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than October 18, 2002.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than October 18, 2002.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: “Provider Enrollment Form” (OWCP-1168). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addressee section of this Notice.
Written comments must be submitted to the office listed in the
Ms. Patricia A. Forkel, U.S. Department of Labor, 200 Constitution
The Office of Workers' Compensation Programs (OWCP) administers the Federal Employees' Compensation Act; the Black Lung Benefits Act, the Energy Employees Occupational Illness Compensation Act, and the Longshore and Harbor Workers Compensation Act. These programs pay for medical services rendered for the diagnosis and treatment of injured workers for conditions compensable under the Acts. The Provider Enrollment Form (OWCP-1168) is currently used in the Black Lung and Energy programs to obtain profile information on medical providers which is necessary to process payments, apply fee schedules, and conduct checks to identify duplicate and other erroneous billing. This information collection is currently approved for use through February 2005.
The Department of Labor is particularly interested in comments which:
• 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;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• 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,
The Department of Labor seeks to expand the use of the OWCP 1168 to two additional programs, the Division of Longshore and Harbor Workers Compensation and the Division of Federal Employees' Compensation, as part of the development of a Centralized Medical Bill System for the processing of medical bills in each of OWCP's four programs. This centralization will result in an increase in efficiency of processing medical bills, reduction of administrative costs, and improvement of the efficiency of benefits and service provision. This collection request seeks approval of revisions to the current form to accommodate its use by The Division of Federal Employees' Compensation and the Division of Longshore and Harbor Worker's Compensation. In addition, this revision will facilitate the centralization of bill processing for all four programs under a Federal contractor. Providers must be enrolled in the new system prior to implementation to ensure the continuity of services to both the claimant and provider communities.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Labor Relations Board.
Amendment of delegation of administrative authority to General Counsel under section 3(d) of National Labor Relations Act.
The National Labor Relations Board is amending the memorandum describing the authority and assigned responsibilities of the General Counsel of the National Labor Relations Board with respect to administrative functions. The revisions are being adopted in order to reestablish lines of authority within the administrative structure of the Agency.
October 1, 2002.
National Labor Relations Board, 1099 14th Street, NW., Room 11600, Washington, DC 20570.
John J. Toner, Executive Secretary, National Labor Relations Board, 1099 14th Street, NW., Room 11600, Washington, DC 20570. Telephone: (202) 273-1936.
The Board amended memorandum describing the authority and assigned responsibilities of the General Counsel of the National Labor Relations Board with respect to administrative functions is effective April 1, 1955, as amended September 8, 1958 (effective August 25, 1958), August 12, 1959 (effective August 3, 1959), and April 28, 1961 (effective May 15, 1961) (appearing at 20 FR 2175, 23 FR 6966, 24 FR 6666 and 26 FR 3911, respectively).
Pursuant to the provisions of section 3(a) of the Administrative Procedure Act (Pub. Law 404, 79th Cong., 2d Sess.), the National Labor Relations Board hereby separately states and currently publishes in the
Dated, Washington, DC, October 4, 2002.
By direction of the Board.
The Board memorandum describing the authority and assigned responsibilities of the General Counsel of the National Labor Relations Board effective April 1, 1955, as amended September 8, 1958 (effective August 25, 1958), August 12, 1959 (effective August 3, 1959), and April 28, 1961 (effective May 15, 1961) (appearing at 20 FR 2175, 23 FR 6966, 24 FR 6666 and 26 FR 3911, respectively), is hereby further amended as follows:
1. Strike the text of paragraphs 1 and 4 of section VII of the amendment dated August 12, 1959 (effective August 3, 1959), strike the text of paragraph 2 of section VII of the amendment dated April 28, 1961 (effective May 15, 1961), and substitute the following:
1. In order more fully to release the Board to the expeditious performance of its primary function and responsibility of deciding cases, the authority and responsibility for all administrative functions of the Agency shall be vested in the General Counsel, except as provided below. This authority shall be exercised subject to the limitations contained in paragraphs 2, 5 and 6, and shall be exercised in conformity with the requirements for joint determination as described in paragraph 4.
2. Subject to the limitations contained in paragraphs 5 and 6, the General Counsel shall exercise full and final authority on behalf of the Agency over the selection, retention, transfer, promotion, demotion, discipline, discharge, and in all other respects, of all personnel engaged in the field, except that personnel action with respect to Regional Directors and Officers-in Charge of Subregional offices will be conducted as hereinafter provided, and in the Washington Office (other than personnel in the Board Members' Offices, the Division of Judges, the Division of Information, the Security Office, the Office of the Solicitor, the Office of the Executive Secretary and the Office of Inspector General): provided, however, that the establishment, transfer or elimination of any Regional or Subregional Office shall require the approval of the Board.
The appointment, transfer, demotion, or discharge of any Regional Director or of any Officer-in-Charge of a Subregional office shall be made by the General Counsel only upon the approval of the Board.
4. In connection with and in order to effectuate the foregoing, the General Counsel is authorized to formulate and execute such necessary requests, certifications, and other related documents on behalf of the Agency, as may be needed from time to time to meet the requirements of the Office of Personnel Management, the Office of Management and Budget or any other Governmental Agency; provided, however, that the total amount of any annual budget requests submitted by the Agency, the apportionment and allocation of funds and/or the establishment of personnel ceilings within the Agency shall be determined jointly by the Board and the General Counsel.
2. Add the following paragraphs 5 and 6 to the text of section VII of the amendment dated April 28, 1961 (effective May 15, 1961):
5. The Information Technology Branch shall be realigned under the authority of the Chief Information Officer (“CIO”) (who will jointly report to the General Counsel and the Chairman of the Board with respect to those matters covered by the responsibilities of the CIO), and placed with the Office of Inspector General, Office of Equal Employment Opportunity and the Office of Employee Development outside the Division of Administration. The Editorial and Publications Services Section of the Library and Administrative Services Branch, Division of Administration, shall be transferred to the Office of the Executive Secretary.
6. The Chairman of the Board shall have full and final authority over the selection, retention, transfer, promotion, demotion, discipline, discharge and evaluation of those persons holding Senior Executive Service positions in the Division of Administration, the senior management official in the Office of Employee Development, the Chief Information Officer and the Inspector General.
Postal Rate Commission.
Notice and order on new experimental docket.
This document establishes a docket for consideration of a proposed two-year experiment. The experiment entails two new discounts for certain co-palletized Periodicals mail that is dropshipped to designated destination entry facilities. This document briefly reviews the proposal, sets initial procedural dates, authorizes settlement discussions, and identifies other pertinent Commission actions.
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Send correspondence to the attention of Steven W. Williams, Secretary, Postal Rate Commission, 1333 H Street NW., Suite 300, Washington, DC 20268-001.
Stephen L. Sharfman, General Counsel, 202-789-6815.
On September 26, 2002, the United States Postal Service filed a request seeking a recommended decision from the Postal Rate Commission approving an experimental mail classification, along with two related discounts, for certain Outside County Periodicals mail that is co-palletized and dropshipped to specified destination facilities.
In contemporaneous filings, the Service asks for waiver of certain standard filing requirements (if the Commission deems such waiver is required), and seeks expedited consideration of its proposal, including establishment of procedures for settlement. The Service's request for expedition is in addition to that generally available under the Commission's experimental rules [39 CFR 3001.67-3001.67d]. United States Postal Service Request for Expedition and Establishment of Settlement Procedures (request for expedition), September 26, 2002; Motion of United States Postal Service for Waiver (motion for waiver), September 26, 2002. The Service's request, the accompanying testimony of witness Taufique (USPS-T-1), and other related material are available for inspection in the Commission's docket section during regular business hours. They also can be accessed electronically, via the Internet, on the Commission's Web site (
The Postal Service proposes conducting a two-year experiment
In support of the experiment, the Service states that 70 percent of Periodicals mail is already prepared on pallets, but the remainder is not because it lacks the volume and/or density, as individual publications, to reach the requisite pallet minimum of 250 pounds. Since preparing co-pallets is typically more onerous than preparing single-publication pallets, the Service believes these discounts may encourage mailer participation in worksharing behavior that benefits both customers and the Postal Service.
The Service proposes extending the new discounts only to Periodicals mail that lacks the density to prepare single-publication pallets; however, both smaller circulation publications and smaller portions of larger circulation publications will be able to participate and receive the proposed discounts under applicable rules. Request at 2 and 6. Qualifying co-palletized mail must be prepared either on ADC or SCF pallets of 250 or more pounds. To limit the scope of the experiment and simplify administration, mail that is co-palletized on 5-digit or 3-digit pallets will not be eligible for the new discounts. USPS-T-1 at 8.
The Service says the expedition allowed under the experimental rules is appropriate in light of the interest in controlling Periodicals costs as soon as possible. It also says flexibility is required because the detailed, conventional data necessary to support a request for a permanent classification are currently unavailable.
The Service maintains that its filing satisfies applicable Commission filing requirements, but seeks waiver of pertinent provisions of rules 54, 64 and 67 to the extent the Commission concludes otherwise. In support of its primary position, the Service says its compliance statement (attachment F to the request) addresses each filing requirement and indicates which parts of the filing satisfy each rule. It also notes that it has incorporated by reference pertinent documentation from the recent omnibus rate case (docket no. R2001-1). Motion for waiver at 1. The Service contends, among other things, that the rate case documentation satisfies most filing requirements because the proposed discounts will not materially alter the rates, fees and classifications established in that docket, and therefore will have only a limited impact on overall postal costs, volumes and revenues.
However, if the Commission concludes that the materials from the omnibus case are not sufficient to satisfy the requirements, the Service contends strict compliance is not warranted, and seeks waiver. It cites the reasons expressed in support of its general position on the adequacy of its filing; the nature of the proposed experiment; and the small impact on total costs and revenues and on the costs, volumes and revenues of mail categories.
In support of expedition, the Service asserts that the proposed change is straightforward; limited in scope and duration; and insignificant in terms of its effect on overall volumes, revenues and costs. It also states that the proposal is a candidate for settlement, given widespread support for it within the Periodicals industry, and the lack of adverse effect on competitors or other mailers. Request for expedition at 1-2.
The Service does not propose a specific schedule, but identifies four procedures the Commission could employ to facilitate a quick resolution of this case. These include setting a relatively short intervention period and requiring participants to identify, in their notices of intervention, whether they intend to seek a hearing and to identify any genuine issues of material fact that would warrant such a hearing. They also include scheduling a settlement conference as quickly as possible following the deadline for intervention; dispensing with discovery if there is no hearing or no genuine issues of material fact; or, should discovery be necessary, shortening various time limits.
1. The Commission establishes docket no. MC2002-3, experimental periodicals co-palletization dropship discounts, to consider the Postal Service request referred to in the body of this order.
2. The Commission will sit en banc in this proceeding.
3. The deadline for filing notices of intervention is October 18, 2002.
4. Notices of intervention shall indicate whether the participant seeks a hearing and identify with particularity any genuine issues of material fact that warrant a hearing.
5. The deadline for answers to the motion of United States Postal Service for waiver is October 18, 2002.
6. The deadline for comments on United States Postal Service request for expedition and establishment of settlement procedures is October 18, 2002.
7. The Commission will make its hearing room available for a settlement conference on Tuesday, October 22, 2002, at 10 a.m., and at such other times deemed necessary by the settlement coordinator.
8. Postal Service counsel is appointed to serve as settlement coordinator in this proceeding.
9. The Postal Service's request for expedition is granted to the extent of allowing a shorter-than-usual intervention period, allowing settlement discussions, and requiring participants' interest in a hearing to be identified in the notice of intervention.
10. A prehearing conference will be held Wednesday, October 23, 2002 at 2 p.m. in the Commission's hearing room.
11. Shelley S. Dreifuss, director of the Commission's office of the consumer advocate, is designated to represent the interests of the general public.
12. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements.
The Charles Schwab Family of Funds, Schwab Investments, Schwab Capital Trust, and Schwab Annuity Portfolios (collectively, the “Trusts”) and Charles Schwab Investment Management, Inc. (“CSIM”).
Applicants request an order to permit them to enter into and materially amend sub-advisory agreements without shareholder approval and to grant relief from certain disclosure requirements.
The application was filed on November 14, 2001, and amended on October 1, 2002.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 28, 2002, and should be accompanied by proof of service on applicants in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, 101 Montgomery Street, San Francisco, CA 94104.
Christine Y. Greenlees, Senior Counsel,
The following is a summary of the application. The complete application may be obtained for a fee from the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (telephone (202) 942-8090).
1. Each Trust is organized as a Massachusetts business trust and is registered under the Act as an open-end management investment company. Each Trust currently offers multiple series, each with its own investment objectives, policies and restrictions. CSIM, registered under the Investment Advisers Act of 1940 (“Advisers Act”), serves as the investment adviser to certain series of the Trusts that use or may use the multi-manager structure described in the application (together, the “Funds,” and each a “Fund”). CSIM has entered into an investment advisory agreement with each Trust (each an “Advisory Agreement” and collectively, the “Advisory Agreements”) that was approved by the board of trustees of each Trust (the “Board”), including a majority of the trustees who are not “interested persons,” as defined in section 2(a)(19) of the Act (“Independent Trustees”), and the sole shareholder or shareholders of each Fund.
2. Under the terms of the Advisory Agreement, CSIM serves as investment adviser to each Fund and provides investment sub-adviser selection, monitoring and asset allocation services to the Funds and may hire one or more sub-advisers (“Sub-Advisers”) to exercise day-to-day investment discretion over all or a portion of the assets of a Fund pursuant to separate investment sub-advisory agreements. Each Sub-Adviser is or will be either registered or exempt from registration under the Advisers Act. Sub-Advisers are recommended to the Board by CSIM and selected and approved by the Board, including a majority of the Independent Trustees. Each Sub-Adviser's fee is paid by CSIM out of the management fee received by CSIM from the respective Fund.
3. Applicants request relief to permit CSIM, subject to the Board's approval, to enter into and materially amend sub-advisory agreements without shareholder approval. The requested relief will not extend to a Sub-Adviser that is an affiliated person, as defined in section 2(a)(3) of the Act, of a Fund or CSIM, other than by reason of serving as a Sub-Adviser to one or more of the Funds (an “Affiliated Sub-Adviser”).
4. Applicants also request an exemption from the various disclosure provisions described below that may require the Funds to disclose the fees paid by CSIM to the Sub-Advisers. An exemption is requested to permit a Fund to disclose (as both a dollar amount and as a percentage of a Fund's net assets): (a) Aggregate fees paid to CSIM and any Affiliated Sub-Adviser; and (b) aggregate fees paid to Sub-Advisers other than Affiliated Sub-Advisers (“Aggregate Fees”). If a Fund employs an Affiliated Sub-Adviser, the Fund will provide separate disclosure of any fees paid to the Affiliated Sub-Adviser.
1. Section 15(a) of the Act provides, in relevant part, that it is unlawful for any person to act as an investment adviser to a registered investment company except pursuant to a written contract that has been approved by the vote of the majority of the company's outstanding voting securities. Rule 18f-2 under the Act provides that each series or class of stock in a series company affected by a matter must approve such matter if the Act requires shareholder approval.
2. Form N-1A is the registration statement used by open-end investment companies. Item 15(a)(3) of Form N-1A requires disclosure of the method and amount of the investment adviser's compensation.
3. Rule 20a-1 under the Act requires proxies solicited with respect to an investment company to comply with Schedule 14A under the Securities Exchange Act of 1934 (the “Exchange Act”). Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8), and 22(c)(9) of Schedule 14A, taken together, require a proxy statement for a shareholder meeting at which the advisory contract will be voted upon to include the “rate of compensation of the investment adviser,” the “aggregate amount of the investment adviser's fees,” a description of “the terms of the contract to be acted upon,” and, if a change in the advisory fee is proposed, the existing and proposed fees and the difference between the two fees.
4. Form N-SAR is the semi-annual report filed with the Commission by registered investment companies. Item 48 of Form N-SAR requires investment companies to disclose the rate schedule for fees paid to their investment advisers, including the Sub-Advisers.
5. Regulation S-X sets forth the requirements for financial statements required to be included as part of investment company registration statements and shareholder reports filed with the Commission. Sections 6-07(2)(a), (b), and (c) of Regulation S-X require that investment companies include in their financial statements information about investment advisory fees.
6. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provision of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants believe that the requested relief meets this standard for the reasons discussed below.
7. Applicants assert that by investing in a Fund, shareholders, in effect, will hire CSIM to manage the Fund's assets by selecting and monitoring Sub-Advisers rather than by hiring its own employees to manage assets directly. Applicants state that investors will purchase Fund shares to gain access to CSIM's expertise in overseeing Sub-Advisers. Applicants further assert that the requested relief will reduce Fund expenses and permit the Funds to operate more efficiently. Applicants note that the Advisory Agreement will remain subject to the shareholder approval requirements of section 15(a) of the Act and rule 18f-2 under the Act.
8. Applicants assert that many Sub-Advisers charge their customers for advisory services according to a “posted” rate schedule. Applicants state that while Sub-Advisers are willing to negotiate fees lower than those posted in the schedule, particularly with large institutional clients, they are reluctant to do so where the fees are disclosed to other prospective and existing customers. Applicants submit that the relief will encourage Sub-Advisers to negotiate lower advisory fees with
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Fund may rely on the requested order, the operation of the Fund in the manner described in the application will be approved by a majority of the Fund's outstanding voting securities, as defined in the Act, or, in the case of a Fund whose public shareholders purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by the sole shareholder prior to offering shares of the Fund to the public.
2. Each Fund will disclose in its prospectus the existence, substance and effect of any order granted pursuant to this application. In addition, each Fund will hold itself out to the public as employing the “manager of managers” approach described in this application. The prospectus will prominently disclose that CSIM has ultimate responsibility (subject to oversight by the Board) for the investment performance of a Fund due to its responsibility to oversee Sub-Advisers and recommend their hiring, termination, and replacement.
3. Within 90 days of the hiring of any new Sub-Adviser, CSIM will furnish shareholders of the affected Fund with all of the information about the new Sub-Adviser that would be contained in a proxy statement, except as modified by the order to permit the disclosure of Aggregate Fees. This information will include the disclosure of Aggregate Fees and any change in such disclosure caused by the addition of a new Sub-Adviser. CSIM will meet this condition by providing shareholders with an information statement meeting the requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 14A under the Exchange Act, except as modified by the order to permit the disclosure of Aggregate Fees.
4. CSIM will not enter into a sub-advisory agreement with any Affiliated Sub-Adviser without such agreement, including the compensation to be paid thereunder, being approved by the shareholders of the Fund.
5. At all times, a majority of the Board will be Independent Trustees and the nomination of new or additional Independent Trustees will be placed within the discretion of the then-existing Independent Trustees.
6. When a change of Sub-Adviser is proposed for a Fund with an Affiliated Sub-Adviser, the Board, including a majority of the Independent Trustees, will make a separate finding, reflected in the Board minutes, that the change is in the best interests of the Fund and its shareholders and does not involve a conflict of interest from which CSIM or an Affiliated Sub-Adviser derives an inappropriate advantage.
7. CSIM will provide general management services to each Fund, and, subject to review and approval by the Board, will: (a) Set the Fund's overall investment strategies; (b) evaluate, select and recommend Sub-Advisers to manage all or a part of the Fund's assets; (c) when appropriate, allocate and reallocate the Fund's assets among multiple Sub-Advisers; (d) monitor and evaluate the Sub-Advisers' investment performance; and (e) implement procedures reasonably designed to ensure that the Sub-Advisers comply with the Fund's investment objective, policies, and restrictions.
8. No trustee or officer of the Trusts, or director or officer of CSIM will own directly or indirectly (other than through a pooled investment vehicle over which such person does not have control) any interest in a Sub-Adviser except for (a) ownership of interests in CSIM or an entity that controls, is controlled by or is under common control with CSIM; or (b) ownership of less than 1% of the outstanding securities of any class of equity or debt of a publicly-traded company that is either a Sub-Adviser or an entity that controls, is controlled by, or is under common control with a Sub-Adviser.
9. Each Fund will disclose in its registration statement the Aggregate Fees.
10. Independent legal counsel, as defined in rule 0-1(a)(6) under the Act, will be engaged to represent the Independent Trustees. The selection of such counsel will be within the discretion of the then-existing Independent Trustees.
11. CSIM will provide the Board, no less frequently than quarterly, with information about CSIM's profitability on a per-Fund basis. The information will reflect the impact on profitability of the hiring or termination of any Sub-Adviser during the applicable quarter.
12. Whenever a Sub-Adviser is hired or terminated, CSIM will provide the Board information showing the expected impact on CSIM's profitability.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meetings during the week of October 7, 2002: a closed meeting will be held on Thursday, October 10, 2002, at 2:30 p.m.
Commissioner Atkins, as duty officer, determined that no earlier notice thereof was possible.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(5), (7), (9)(B) and (10) and 17 CFR 200.402(a), (5), (7), (9)(ii) and (10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the Closed Meeting scheduled for Thursday, October 10, 2002 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 942-7070.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
The Exchange proposes to amend the account type codes under Exchange Rule 719. The text of the proposed rule change appears below. New text is in italics.
(a) through (d) No change.
.01 No change.
.02 Regardless of whether or not a registered clearing agency is being used for comparison and/or settlement, each clearing member organization shall submit the following trade data and audit trail information with respect to contracts for securities entered into on the Exchange to a registered clearing agency in such form and within such time periods as may be described by the registered clearing agency or the Exchange:
(1) Name or identifying symbol of the security,
(2) The clearing firm's number or alpha symbol as may be used from time to time, in regard to its side of the contract,
(3) The executing broker's badge number or alpha symbol as may be used from time to time, in regard to its side of the contract,
(4) Trade date,
(5) The time the trade was executed,
(6) Number of shares or quantity of security,
(7) Transaction price,
(8) The clearing firm's number or alpha symbol as may be used from time to time, in regard to the contra side of the contract,
(9) The executing broker badge number or alpha symbol as may be used from time to time, in regard to the contra side of the contract,
(10) The terms of settlement,
(11) Specialist, registered trader, and market maker acronyms in regards to options transactions,
(12) Account type code—equities only. The current account type codes for equity transactions are as follows. Members should use the most restrictive account type code available. Thus, for example, members only should use the “A” account type code for an agency transaction when no other account type code accurately describes the trade. These codes may be changed from time to time as the Exchange may determine:
S—Specialist principal transaction in a specialty security (regardless of the account or clearing member).
G—Registered Equity Trader, Registered Equity Market Maker and Registered Option Trader market maker transactions in the equities and ETFs in which they are registered as a market maker regardless of the clearing member, and Registered Option Trader and option specialist transactions in an underlying Paired Security if the underlying Paired Security is an equity other than an ETF (
P—Amex Option Specialist or Market Maker transaction
O—Proprietary transactions cleared for a competing market maker that is affiliated with the clearing member.
T—Transactions cleared for the account of an unaffiliated member's competing market maker.
R—Transactions cleared for the account of a non-member competing market maker.
I—Transactions cleared for the account of an individual investor.
E—Short exempt transactions cleared for the proprietary account of a clearing member organization or affiliated member/member organization.
F—Short exempt transactions cleared for the proprietary account of an unaffiliated member/member organization.
H—Short exempt transactions cleared for an individual customer account.
B—Short exempt transactions cleared for all agency customer accounts.
L—Short exempt transaction cleared for a competing market maker that is affiliated with the clearing member.
X—Short exempt transaction cleared for the account of an unaffiliated member competing market maker.
Z—Short exempt transaction cleared for the account of a non-member competing market maker.
W—Proprietary transactions not specified above and cleared for the account of an unaffiliated member/member organization.
A—Transactions cleared for all agency customer accounts.
P—Transactions not specified above and cleared for the proprietary account of a clearing member organization or affiliated member/member organization.
V—Proprietary transactions cleared for the account of a non-member broker dealer that is not a competing market maker.
New York Stock Exchange program trade audit trail account type codes as used from time to time also are acceptable.
(13) Account type code—options only. The current account type codes for option transactions are as follows. Members should use the most restrictive account type code available. These codes may be changed from time to time as the Exchange may determine:
S—Specialist principal transaction in a specialty security (regardless of the account or clearing member)
C—Transactions cleared for the account of an individual investor
F—Transactions cleared for the account of a broker-dealer that is not a registered market maker in the security
P—Registered trader market maker transaction regardless of the clearing member
N—Transactions cleared for the account of a non-member market maker
(14) Such other information as the Exchange may from time to time require. Clearing members may not “summarize” multiple trades in the same security, executed at the same price with the same contra clearing firm as this results in degradation of the audit trail.
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
The Exchange's rules require clearing members to submit to comparison different types of information for each transaction that they clear. These requirements are set forth in Exchange Rule 719. Among the different data that clearing firms must submit for each trade is an account type code. These codes identify the type of account for which the trade was effected (
The Exchange is proposing three modifications to the account type codes. Going forward, the number “3” would be used to identify transactions that resulted from telephone access to the Amex specialist effected for a Nasdaq market maker that is affiliated with the clearing member. The number “4” would be used to identify transactions that resulted from telephone access to the specialist effected for a Nasdaq market maker that is an Amex member but is not affiliated with the member clearing the trade. Finally, the number “5” would be used to identify transactions that resulted from telephone access to the specialist effected for a Nasdaq market maker that is not an Amex member and is not affiliated with the clearing member. The Exchange is making these changes to identify the trades that result from telephone access to the specialist so that these trades will not be charged a transaction fee.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act
The proposed rule change will impose no burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A) 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 Amex. All submissions should refer to File No. SR-Amex-2002-77 and should be submitted by October 30, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its membership dues and fees schedule (“Schedule”) for the period from September through December 2002, to (1) reduce the Tape A and Tape B specialist credits; (2) reduce the floor broker earned credits; and (3) increase the OTC specialist fixed fees. The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
Except in the case of Exemption Eligible Securities (as defined above in Section D), which shall be exempt from assessment of fixed fees, specialists will be assigned a fixed fee per assigned stock on a monthly basis, to be calculated as follows:
a. Effective July 1, 2002 for transactions in Tape A Securities:
“Tape A Securities” are securities reported on Tape A of the Consolidated Tape Association.
“Transaction Credit” when used in connection with Tape A Securities means the applicable percentage of monthly CHX tape revenue from the Consolidated Tape Association generated by a particular stock. To the extent that CHX tape revenue is subject to a year end adjustment, specialist credits may be adjusted accordingly.
b. Effective July 1, 2002 for transactions in Tape B Securities:
“Transaction Credit” when used in connection with Tape B Securities means the applicable percentage of monthly CHX tape revenue from the Consolidated Tape Association generated by a particular stock. To the extent that CHX tape revenue is subject to a year end adjustment, specialist credits may be adjusted accordingly.
“Tape B Securities” are securities reported on Tape B of the Consolidated Tape Association.
Effective January 1, 2001, total monthly fees owed by a floor broker to the Exchange will be reduced by the application of the following Earned Credit (and floor brokers will be paid each month for any unused credits):
No change to text.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The CHX proposes to amend the Schedule by (1) reducing the Tape A and Tape B credits provided to Exchange specialists; (2) reducing the earned credits available to Exchange floor brokers; and (3) increasing the fixed fees charged to specialists who trade OTC securities. These changes apply for the period from September through December 2002.
The Exchange, like other business entities, sets financial goals for its operations, and attempts, throughout the year, to make decisions that permit it to meet or exceed those goals. To help meet the Exchange's goals for 2002, the Exchange has decided to temporarily reduce certain credit programs and to increase certain fees.
In doing so, the CHX has designed the proposed changes to the credit and fee arrangements to have an equal effect on the Exchange's specialist firms, as a group, and its floor broker firms, as a group. Within each of these two groups, the fee changes are designed to impact specific firms based on the level of their current participation in the credit and/or fee programs.
The changes in the credit section of the Schedule (Section M) decrease the credits from the levels that were set in July 2002 as a result of discussions with Commission staff.
The Exchange believes the proposed rule change is consistent with Section 6(b)(4) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were solicited or received.
The proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to file number SR-CHX-2002-28, and should be submitted by October 30, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The NASD proposes to extend for one year: (1) The pilot term of the Nasdaq International Service (“Service”); and (2) the effectiveness of certain rules (“International Rules”) that are unique to the Service. This rule change does not
In its filing with the Commission, NASD included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item III below. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The NASD proposes to extend for an additional year, until October 9, 2003, the pilot operation of the Service and the effectiveness of the International Rules governing broker-dealers' access to and use of the Service. The Commission originally approved the existing pilot operation of the Service and the International Rules in October 1991.
The Service supports an early trading session running from 3:30 a.m. to 9 a.m. E.T. on each U.S. business day (“European Session”) that overlaps the business hours of the London financial markets. Participation in the Service is voluntary and is open to any authorized NASD member firm or its approved broker-dealer affiliate in the U.K. A member participates as a Service market maker either by staffing its trading facilities in the U.S. or the facilities of its approved affiliate during the European Session. The Service also has a variable opening feature that permits Service market makers to elect to participate starting from 3:30 a.m., 5:30 a.m. or 7:30 a.m., Eastern Time. The election is required to be made on a security-by-security basis at the time a firm registers with the NASD as a Service market maker.
As noted above, the NASD is seeking to extend the pilot term for one year. During this period, the NASD will continue to reevaluate the Service's operation and consider possible enhancements to the Service to broaden market-maker participation. The NASD continues to view the Service as a significant experiment in expanding potential opportunities for international trading via systems operated by Nasdaq. Accordingly, the NASD believes that this pilot operation warrants an extension to permit possible enhancements that will increase the Service's utility and attractiveness to the investment community. The NASD maintains its belief that it is extremely important to preserve this facility and the opportunities it provides, especially in light of the increasingly global nature of the securities markets and the trend of cross-border transactions generally.
Nasdaq believes that the proposed rule change is consistent with the provisions of sections 11A(a)(1)(B) and (C) and 15A(b)(6) of the Act.
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2002-130 and should be submitted by October 30, 2002.
The Commission finds that the proposed rule change is consistent with sections 11A(a)(1)(B) and (C) and 15A(b)(6) of the Act.
The Commission views the Service as providing potential opportunities for international trading via a system operated by Nasdaq. The Service is intended to promote additional commitments of member firms' capital to market making and to attract commitments from firms based in Europe that currently do not function as Nasdaq market makers. Although there are no Service market makers participating in the Service, the NASD plans to reevaluate the Service's operation and consider possible enhancements to the Service to broaden market maker participation. Accordingly, the Commission believes that this pilot operation warrants an extension to permit possible enhancements that will increase the Service's utility and attractiveness to the investment community. Any changes to the operation of the Service will be filed pursuant to section 19(b)(2) of the Act.
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 (“Act”),
Nasdaq proposes to extend a pilot amendment to NASD Rule 4120, which clarified Nasdaq's authority to initiate and continue trading halts in circumstances where Nasdaq believes that extraordinary market activity in a security listed on Nasdaq may be caused by the misuse or malfunction of an electronic quotation, communication, reporting, or execution system operated by, or linked to, Nasdaq. The purpose of this filing is to extend the pilot until November 15, 2002.
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On May 11, 2001, Nasdaq filed with the Commission a proposed rule change to clarify Nasdaq's authority to initiate and continue trading halts in circumstances where Nasdaq believes that extraordinary market activity in a security listed on Nasdaq may be caused by the misuse or malfunction of an electronic quotation, communication, reporting, or execution system operated by, or linked to, Nasdaq.
According to Nasdaq, as a result of the decentralized and electronic nature of
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
In a letter dated July 27, 2001, Instinet Corporation (“Instinet”) commented on the proposed rule change as originally proposed and currently in effect.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)
Nasdaq has requested that the Commission waive the 5-day pre-filing notice requirement and the 30-day operative delay. The Commission believes waiving the 5-day pre-filing notice requirement and the 30-day operative delay is consistent with the protection of investors and the public interest. Acceleration of the operative date will allow the pilot to operate continuously through November 15, 2002, while the Commission considers Nasdaq's request for permanent approval. For these reasons, the Commission waives both the 5-day pre-filing requirement and the 30-day operative waiting period.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2002-125 should be submitted by October 30, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change consists of the formal codification of several Exchange policies previously approved by the Commission and the reordering of several other Exchange rules. The text of the proposed rule change is available at the Office of the Secretary, NYSE and at the Commission.
In its filing with the Commission, the self-regulatory organization 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 NYSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
According to the NYSE, the purpose of this filing is to formally codify in the NYSE Rule Book several policies which have been previously filed with, and approved by, the Commission pursuant to Rule 19b-4 and to rearrange the placement of several other rules. The NYSE represents that the material filed herein does not constitute a substantive change to any NYSE rule or policy, and is responsive to recommendations made by an Independent Consultant retained by the Exchange.
Exchange Rule 90 prohibits member proprietary transactions on the Exchange in accordance with the principles of Section 11(a) of the Act and the Commission's rules thereunder. The Exchange is proposing to add, as Supplementary Material to Rule 90, the text of Section 11(a) and the text of the Commission's rules thereunder.
Exchange Rules 110, 111 and 112 are primarily addressed to Competitive Traders, although several provisions of these Rules relate to other matters. The Exchange is proposing to reorganize these rules so that all material directly relating to activities of Competitive Traders will be codified in Rule 110. This involves placing certain material currently codified in Rule 111 and Rule 112 into Rule 110. After the reorganization, Rule 111 would contain material currently codified in Supplementary Material to Rule 112 concerning reporting requirements for Competitive Traders and certain other traders. In addition, Rule 112 would consist of material currently codified in paragraphs .10 and .20 of Supplementary Material to Rule 112 dealing with orders initiated off the Floor, and what constitutes “on Floor” and “off Floor” for purposes of Exchange rules.
No new material is being added. The Exchange is simply reorganizing the existing material for ease of reference.
The specific reorganization is as follows. Paragraphs (a), (b), and (c) of current Rule 111 would become paragraphs (a), (b), and (c) of new Rule 110. Paragraphs (a), (b), (c), and (d) of current Rule 112 would become paragraphs (d), (e), (f), and (g) of new Rule 110. Paragraphs (d), (e), (f), (g) and Supplementary Material .10 of current Rule 111 would become paragraphs (h), (i), (j), (k), and (l) of new Rule 110. The text of current Rule 110 would become paragraph (m) of new Rule 110. Supplementary Material paragraphs .21 and .22 of current Rule 112 would become new paragraphs (n), (o), and (p) of new Rule 110.
Supplementary Material paragraph .30 of current Rule 112 would become paragraph (a) of new Rule 111. Supplementary Material paragraphs .40, .50, and .50A of current Rule 112 would become paragraphs (b), (c) and (d) of new Rule 111.
Supplementary Material paragraph .10(a) of Rule 112 would become paragraph (a) of new Rule 112. Supplementary Material paragraphs .20(a), (b), (c), and (d) would become paragraphs (b), (c), (d), and (e) of new Rule 112.
Three paragraphs are proposed to be deleted. Current Rule 112(e) contains exemptions from restrictions on Competitive Traders for specialists in securities in which they are registered. Current Rule 111(c), however, contains similar exemptions. Accordingly, the Exchange is proposing to rescind Rule 112(e) as redundant and unnecessary, and this paragraph would not appear in proposed new Rule 110.
Rule 112.23 refers to the ability of the specialist to establish priority, but not parity or precedence based on size, in certain market situations. This paragraph is similar to restrictions contained in Rule 108, and the Exchange is proposing to delete it as redundant.
Rule 112.24 provides that specialists should state the full size of the offer except in instances in which they believe the proper exercise of the brokerage function makes it inadvisable to do so. This Rule has been superseded by the Commission's limit order display rule, Rule 11Ac1-4, and NYSE Rule 79A.15, and is therefore proposed to be rescinded.
The Exchange is proposing to add its specialist stock allocation policy to Rule 103B.
The Exchange is also proposing to codify three other policies which have been previously approved by the Commission. The Exchange's policies and interpretations regarding market-on-close and limit-on-close orders would be codified in new Exchange Rule 123C.
The Exchange is proposing to codify its policies and interpretations regarding trading halts and delayed openings in
The Exchange is also proposing to codify its Specialist Combination Review Policy in new Rule 123E.
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 that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The proposed rule change has been filed by the Exchange as a “non-controversial” rule change pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The NYSE has requested that the Commission waive the 30-day pre-operative waiting period, which will allow the proposed administrative rule changes and codification of Exchange policies to take effect immediately. According to the NYSE, the proposed filing consists of formal codification of several Exchange policies previously approved by the Commission and the reordering of several other Exchange rules. Therefore, the Exchange believes that the proposed rule change is non-controversial, addresses the administration of Exchange rules, and should take effect immediately. In light of these considerations, the Commission, consistent with the protection of investors and the public interest, has determined to designate the proposed rule change as operative immediately.
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 Exchange. All submissions should refer to the File No. SR-NYSE-2002-31 and should be submitted by October 30, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change would amend OCC's by-laws and rules to provide for the clearance and settlement of transactions in physically-settled futures on narrow-based stock indexes.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The proposed amendments would provide for the clearance and settlement of physically-settled futures on narrow-based stock indexes under the same basic rules and procedures recently approved by the Commission for the clearance and settlement of other security futures contracts.
As amended by the Commodity Futures Modernization Act of 2000 (“CFMA”), section 3(a)(55) of the Act defines the term “security future” to include “a contract of sale for future delivery of * * * a narrow-based security index, including any interest therein or based on the value thereof.” CFMA does not specify or restrict the means by which a narrow-based security index future can be settled. OneChicago LLC (“ONE”) has proposed to include physically-settled index futures among the contracts listed for trading through its facilities and has asked OCC to provide clearing and settlement services for those contracts. OCC's existing rules for clearing security futures contracts, which were approved by the Commission in 2001, provide for the clearance of cash-settled stock futures and index futures and for the clearance of physically-settled stock futures. They do not, however, provide for physically-settled index futures.
ONE proposes to trade physically-settled narrow-based index futures that would allow a participant to take a position in defined economic sectors such as airlines, computers, investment banking, and semiconductors. These futures contracts will require the seller at maturity of the contract to deliver to the buyer a specified number of shares (to be set initially at 100 shares or multiples thereof, subject to adjustments to reflect certain corporate events such as stock splits) of each of the constituent securities in the index. The number of deliverable shares of each security will essentially define the index.
ONE intends that the constituent stocks will be represented in an index under an approximate equal-dollar weighting formula. OneChicago will rebalance the index periodically to account for relative price changes of the constituent securities. ONE may also change constituent securities from time to time so that the index better reflects the particular industry sector. New classes of contracts will be opened after each rebalancing or change in the composition of the index. Existing contracts will be unaffected by these rebalancing changes and will continue trading until expiration.
OCC has determined that physically-settled index futures may be readily settled in a manner similar to physically-settled stock futures. As is the case with stock futures and stock options, delivery of the underlying would ordinarily be made through the National Securities Clearing Corporation (“NSCC”) with OCC's broker-to-broker settlement procedures as a fallback in the event that a deliverable security is ineligible to be settled through NSCC. ONE has determined to set the final settlement price against which delivery will be made based on the price of the future rather than using the cash prices of the constituent stocks. The prices that OCC would provide to NSCC with respect to each underlying constituent security would be determined by allocating the final futures settlement price to each constituent security in proportion to its weighting in the index. This would be essentially the same way that OCC currently handles the settlement of equity options that have multiple deliverables as a result of corporate events.
The following discussion describes revisions to particular by-laws or rules that are of particular significance or appear to require explanation. Where special provisions for physically-settled narrow-based index futures are needed, they are proposed to be added primarily in either the basic rules in Articles VI of the By-Laws, Clearance of Exchange Transactions, or to the rules governing security futures generally, which are in Article XII of the By-Laws, Futures and Futures Options, and Chapter XIII of the Rules, Futures and Futures Options. Chapter IX of the Rules, Delivery of Underlying Securities and Payments, governing settlement of delivery obligations with respect to underlying stocks also would be amended slightly. Many other proposed changes are not discussed individually because they are merely conforming changes, constitute minor, nonsubstantive changes to existing by-laws and rules, or are otherwise self-explanatory.
OCC proposes to define several additional terms applicable to physically-settled narrow-based index futures and to include those terms in Article I of the By-Laws, Definitions, because they are used throughout the by-laws and rules. The new definitions are mostly self-explanatory, but a few terms that are of particular significance are described below.
The term “aggregate purchase price” would be amended to identify the total price against which all of the deliverable securities would be delivered at maturity of a physically-settled narrow-based index future. For purposes of settlement, that aggregate purchase price will then be apportioned among the constituent securities of the underlying index (as described in “Amendments to Chapter IX of the Rules” below).
The amendment to the definition of “final settlement price” would provide that the final settlement price of a futures contract could be determined by reference to the value of the underlying or, as ONE proposes in the case of physically-settled narrow-based index futures, by reference to the final settlement price of the futures contract itself.
The term “class” would be amended to clarify that only physically-settled narrow-based index futures that have identical constituent securities and identical weightings of such securities in the index underlying such future belong to the same “class.” This amendment reflects OCC's intention to
The new term “deliverable security” would be defined broadly to include any security that might be deliverable with respect to any physically-settled cleared contract. This term would be created primarily to avoid possible confusion from use of the term “underlying security” to mean a particular constituent security in an underlying index. Similarly, the term “deliverable amount” is used to refer to the number of shares or other units of a particular constituent security that is deliverable with respect to a single contract.
The term “physically-settled narrow-based index future” would be added to distinguish these products from cash-settled narrow-based index futures. The definition of “narrow-based index future” would be amended to encompass both cash- and physically-settled narrow-based index futures, and the definition of “security future” would be amended to include a specific reference to stock futures and narrow-based index futures.
Article VI, Clearance of Exchange Transactions, sets out the basic terms of option contracts and the general rules for the clearance of exchange transactions. These basic rules apply to stock options, and except where they are replaced or modified by the by-laws in later articles specifically applicable to other products, they apply to those other OCC cleared products. An amendment to section 10(d) would be added to clarify the mechanism for determination of the deliverable amount with respect to each constituent security in a series of physically-settled narrow-based index futures. Section 19 previously addressed shortages of “underlying” securities. The title would be modified to refer to the new term “deliverable securities.” Section 19 would be modified generally to provide for contracts, including but not limited to physically-settled narrow-based index futures, which may call for delivery of multiple securities. This could also be the case, for example, where a stock option or stock future has been adjusted as the result of a special distribution or other corporate event. As proposed, section 19 would provide for the partial settlement of contracts that may have multiple deliverable securities, not all of which are affected by the shortage. Various conforming changes would be made in the remainder of the section and in the interpretations and policies following the section. Subparagraphs (2)-(4) of section 19(a), which are substantively identical but dealt with different types of contracts, would be consolidated into new subparagraph (2). Section 19(c) would be redrafted for clarity and would not effect substantive changes to the treatment of contracts previously addressed by that section. Item 7 under Interpretation and Policy .02 to section 19 would no longer be necessary and would be deleted in its entirety.
Article XII, Futures and Futures Options, sets out the basic provisions for futures and futures options. Section 2(a), which sets forth the general rights and obligations of buyers and sellers of futures and futures options, would be amended to set out the general rights and obligations of buyers and sellers of physically-settled narrow-based index futures. A new sentence would be added to section 3(a) clarifying that determinations of adjustments required to reflect certain events with respect to the constituent securities of the index underlying a physically-settled narrow-based index futures contact would be made by the exchange or security futures market on which such futures are traded. It is anticipated that the exchange or security futures market on which such futures are traded would determine the deliverable amount for each constituent security in the index, and that this would effectively define the index. Accordingly, OCC believes that adjustments should be made by the market (as the source of the index) rather than by OCC.
As noted above, the Rules in Chapter IX, Delivery of Underlying Securities and Payment relating to delivery of and payment for underlying securities would be modified to apply to the constituent securities in an index underlying a physically-settled narrow-based security future. The proposed changes have been drafted more generally, however, to cover other situations where there may be multiple deliverables as in the case of certain adjustments to options and futures on single stocks as referred to above. The allocation of an aggregate purchase price among multiple deliverables is necessary so that each security can be settled against its own purchase price in case delivery of all the deliverable securities is not simultaneous. The price would be allocated in proportion to recent market prices for the deliverable securities. This allocation would be made by OCC in consultation with ONE in the case of physically-settled narrow-based index futures traded on that market. In the adjustment situation, the allocation is made solely by OCC. The precise allocation among the deliverable securities is ordinarily not material because any overpayment for one deliverable will result in an underpayment for another.
Chapter XIII of the Rules, Futures and Futures Options, governs,
OCC believes that the proposed rule change is consistent with the purposes and requirements of Section 17A of the Act because it provides for the efficient clearance and settlement of physically-settled narrow-based index futures by adapting existing OCC rules that have been approved as effective in promoting the prompt and accurate clearance and settlement of both single stock futures and cash-settled narrow-based index futures.
OCC does not believe that the proposed rule change would impose any burden on competition.
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been received.
Within thirty five days of the date of publication of this notice in the
(a) By order approve the proposed rule change or
(b) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street NW., Washington, DC 20549. Copies of such filing will also be available for inspection and copying at the principal office of OCC. All submissions should refer to the File No. SR-OCC-2002-23 and should be submitted by October 24, 2002.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Fulton County and the contiguous counties of Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth and Gwinnett in the State of Georgia constitute a disaster area due to damages caused by heavy rains and localized flooding that occurred on September 21 and 22, 2002. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on December 2, 2002, and for economic injury until the close of business on July 3, 2003, at the address listed below or other locally announced locations:
U.S. Small Business Administration, Disaster Area 2 Office, One Baltimore Place, Suite 300, Atlanta, GA 30308.
The interest rates are:
The number assigned to this disaster for physical damage is 345006 for Georgia and for economic injury is 9R8700.
As a result of the President's major disaster declaration on October 1, 2002, I find that Amite, Hancock, Harrison, Jackson, Pearl River, Pike and Stone Counties in the State of Mississippi constitute a disaster area due to damages caused by Tropical Storm Isidore occurring on September 23, 2002, and continuing. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on December 2, 2002 and for economic injury until the close of business on July 1, 2003 at the address listed below or other locally announced locations:
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the above location: Forrest, Franklin, George, Lamar, Lincoln, Marion, Perry, Walthall and Wilkinson in the State of Mississippi; Mobile County in the State of Alabama; and East Feliciana, St. Helena, St. Tammany, Tangipahoa and Washington Parishes in the State of Louisiana.
The interest rates are:
The number assigned to this disaster for physical damage is 345111. For economic injury the number is 9R8800 for Mississippi; 9R8900 for Alabama; and 9R9000 for Louisiana.
In accordance with a notice received from the Federal Emergency Management Agency, dated September 30, 2002, the above numbered declaration is hereby amended to establish the incident period for this disaster as beginning on September 6, 2002, and continuing through September 30, 2002.
All other information remains the same,
Federal Railroad Administration, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking renewal of the following currently approved information collection activities. Before submitting these information collection requirements (ICRs) for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below.
Comments must be received no later than December 9, 2002.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590, or Ms. Debra Steward, Office of Information Technology and Productivity Improvement, RAD-20, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130-0505, or OMB control number 2130-0548.” Alternatively, comments may be transmitted via facsimile to (202) 493-6265 or (202) 493-6170, or e-mail to Mr. Brogan at
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493-6292) or Debra Steward, Office of Information Technology and Productivity Improvement, RAD-20, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6139). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval for reinstatement or renewal by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Below is a brief summary of the currently approved ICRs that FRA will submit for clearance by OMB as required under the PRA:
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
National Highway Traffic Safety Administration, DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before November 8, 2002.
George Person, National Highway Traffic Safety Administration, Office of Defects Investigation, 202-366-5210. 400 Seventh Street, SW., Room 5326, Washington, DC 20590.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer.
A Comment to OMB is most effective if OMB receives it within 30 days of publication.
Departmental Offices, Treasury.
Notice of Proposed New Privacy Act System of Records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Treasury Department, Departmental Offices, gives notice of a newly proposed system of records, “Treasury/DO .214-DC Pensions Retirement Records.”
Comments must be received no later than November 8, 2002. The proposed new system of records will become effective November 18, 2002 unless comments are received which would result in a contrary determination.
Send written comments to Department of the Treasury, ATTN: Marc Rigrodsky, Office of the General Counsel, 1500 Pennsylvania Avenue NW., Room 1410, Washington, DC 20220, or to
Marc Rigrodsky, (202) 622-0450.
The Department of the Treasury (Department) is establishing the DC Pensions Retirement Records system to assist the Department in carrying out its responsibilities under Title XI of the Balanced Budget Act of 1997, Pub. L. 105-33, as amended (the Act), for
This system of records will consist of information furnished by the subjects of the records, the District and other entities or persons that will enable the Department to calculate and verify eligibility for, and calculate amounts of, Federal benefit payments payable by the Department under the Act. The records in this system will be maintained indefinitely. Because records in the system are retrieved by individual identifier, including by name, social security number and an automatically assigned, system generated number, the Privacy Act of 1974, as amended, requires a general notice of the existence of this system of records to the public.
The new system of records report, as required by 5 U.S.C. 552a(r) of the Privacy Act, has been submitted to the Committee on Government Operations of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000.
The proposed system of records, “Treasury/DO .214-D.C. Pensions Retirement Records,” is published in its entirety below.
D.C. Pensions Retirement Records.
Director, Office of D.C. Pensions, Department of the Treasury, Metropolitan Square, Washington, DC 20220. Certain records pertaining to Federal benefit payments are located with contractors engaged by the Department of the Treasury (Department), bureaus of the Department, and the government of the District of Columbia (District).
a. Former District teachers, police officers and firefighters who performed service subject to the District's retirement plans for teachers, and police officers and firefighters, on or before June 30, 1997.
b. Former District judges, regardless of their dates of service.
c. Current District teachers, police officers, firefighters, who have performed service prior to July 1, 1997:
(1) that may make them eligible to receive Federal benefit payments;
(2) who have filed a designation of beneficiary for Federal benefit payments; or
(3) who have filed a service credit application in connection with former Federal service; or
(4) who have filed an application for disability retirement with the District or the Secretary of the Treasury (Secretary) and who are waiting for a final decision, whose disability retirement application has been approved by the District or the Secretary, or whose disability retirement application has been disapproved by the District or the Secretary, and who will receive or would have received Federal benefit payments if their applications are or had been approved.
d. Current District judges;
e. Former District teachers, police officers, firefighters, and judges who died entitled to or while receiving Federal benefit payments, or their surviving spouses, and/or children and/or dependent parents.
f. Former spouses of District teachers, police officers, firefighters, and judges, who have received or are receiving Federal benefit payments, or who have filed a court order awarding future benefits.
This system comprises retirement service history records of employee service in the District, the Federal Government, and other entities upon which Federal benefit payments may be based. Also included in the system are current personnel data pertaining to active District teachers, police officers, firefighters, and judges who, by virtue of the Act, may be eligible for Federal benefit payments. It also contains information concerning health benefit and group life insurance enrollment/change in enrollment. Also included are medical records and supporting evidence for disability retirement applications, and documentation regarding their acceptance or rejection. Consent forms and other records related to the withholding of State income tax from annuitant payments, whether physically maintained by the State or the Department, are included in this system.
These records contain the following information:
a. Documentation of District service subject to the retirement plans for District teachers, police officers, firefighters, and judges.
b. Documentation of service credit and refund claims made by District teachers, police officers, firefighters, and judges under their retirement plans who are potentially eligible for Federal benefit payments.
c. Documentation of retirement contributions made by eligible teachers, police officers, firefighters, and judges.
d. Retirement and death claims files applicable to Federal benefit payments, including documents supporting the retirement application, health benefits, and life insurance eligibility, medical records supporting disability claims, and designations of beneficiary.
e. Enrollment and change in enrollment information under the Federal Employees Health Benefits Program, the employee health benefits program for District employees, the Federal Employee Group Life Insurance Program and the employee group life insurance program for District employees.
f. Court orders submitted by former spouses of District teachers, police officers, firefighters, and judges in support of claims for Federal benefit payments.
g. Records relating to overpayments of Federal benefit payments and other debts arising from the Federal Government's responsibility to administer the retirement plans for District judges, police officers, firefighters, and teachers, and records relating to other Federal debts owed by recipients of Federal benefit payments.
Title XI, Subtitle A, chapters 1 through 9, and Subtitle C, chapter 4, subchapter B of the Balanced Budget Act of 1997, Pub. L. 105-33.
These records provide information on which to base determinations of:
These records may be used:
1. To disclose pertinent information to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where the Department becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation.
2. To disclose information to a Federal agency, in response to its request in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a suitability or security investigation of an individual, the classifying of jobs, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
3. To provide information to a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual.
4. To disclose information to another Federal agency, to a court, or a party in litigation before a court or in an administrative proceeding being conducted by a Federal agency, when the Federal Government is a party to the judicial or administrative proceeding. In those cases where the Federal Government is not a party to the proceeding, records may be disclosed if a subpoena has been signed by a judge.
5. To disclose information to the National Archives and Records Administration for use in records management inspections.
6. To disclose information to the Department of Justice, or in a proceeding before a court, adjudicative body, or other administrative body before which the Department is authorized to appear, when:
(A) The Department, or any component thereof;
(B) Any employee of the Department in his or her official capacity;
(C) Any employee of the Department in his or her individual capacity where the Department of Justice or the Department has agreed to represent the employee;
(D) The United States, when the Department determines that litigation is likely to affect the Department or any of its components; or
(E) The Federal funds established by the Act to pay Federal benefit payments; is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or the Department is deemed by the Department of Justice or the Department to be relevant and necessary to the litigation provided, however, that the disclosure is compatible with the purpose for which records were collected.
7. To disclose information to contractors, subcontractors, financial agents, grantees, or volunteers performing or working on a contract, service, grant, cooperative agreement, or job for the Department, including the District.
8. To disclose, to the following recipients, information needed to adjudicate a claim for Federal benefit payments under the retirement plans for District teachers, police officers, firefighters, and judges, or information needed to conduct an analytical study of benefits being paid under such programs as: Social Security Administration's Old Age, Survivor and Disability Insurance and Medical Programs, military retired pay programs; and Federal civilian employee retirement programs (Civil Service Retirement System, Federal Employees Retirement System, and other Federal retirement systems).
9. To disclose to the U.S. Office of Personnel Management (OPM) and to the District information necessary to verify the election, declination, or waiver of regular and/or optional life insurance coverage.
10. To disclose to health insurance carriers contracting with OPM to provide a health benefits plan under the Federal Employees Health Benefits Program or health insurance carriers contracting with the District to provide a health benefits plan under the health benefits program for District employees, Social Security Numbers and other information necessary to identify enrollment in a plan, to verify eligibility for payment of a claim for health benefits, or to carry out the coordination for benefits provisions of such contracts.
11. To disclose to any inquirer, if sufficient information is provided to assure positive identification of an individual on whom the Department maintains records, the fact that an individual is or is not on the retirement rolls, and if so, the type of annuity (employment or survivor, but not retirement on disability) being paid, or if not, whether a refund has been paid.
12. When an individual to whom a record pertains dies, to disclose to any person possibly entitled in the applicable order of precedence for lump-sum benefits, information in the individual's record that might properly be disclosed to the individual, and the name and relationship of any other person whose claim for benefits takes precedence or who is entitled to share the benefits payable.
13. To disclose information to any person who is legally responsible for the care of an individual to whom a record pertains, or who otherwise has an existing, facially-valid Power of Attorney, information necessary to assure payment of Federal benefit payments to which the individual is entitled.
14. To disclose to the Parent Locator Service of the Department of Health and Human Services, upon its request, the present address of a Federal benefit payments annuitant or survivor, or a former employee entitled to deferred Federal benefit payments, for enforcing child support obligations of such individual.
15. In connection with an examination ordered by the District or the Secretary of the Treasury under
(A) Medical examination procedures; or
(B) Involuntary disability retirement procedures to disclose to the representative of an employee, notices, decisions, other written communications, or any other pertinent medical evidence other than medical evidence about which a prudent physician would hesitate to inform the individual; such medical evidence will be disclosed only to a licensed physician, designated in writing for that purpose by the individual or his or her representative. The physician must be capable of explaining the contents of the medical record(s) to the individual and be willing to provide the entire record(s) to the individual.
16. To disclose information to any source from which the Department seeks additional information that is relevant to a determination of an individual's eligibility for, or entitlement to, coverage under the applicable retirement, life insurance, and health benefits program, to the extent necessary to obtain the information requested.
17. To disclose information to the Office of Management and Budget at any stage of the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular No. A-19.
18. To disclose to a Federal agency, in response to its request, the address of an annuitant or applicant for refund of retirement deductions, if the agency requires that information in connection with the collection of a debt due the United States.
19. To disclose to a State agency responsible for the collection of State income taxes the information required by an agreement authorized by law to implement voluntary State income tax withholdings from Federal benefit payments.
20. To disclose to the Social Security Administration the names and Social Security Numbers of Federal benefit payment annuitants when necessary to determine: (1) Their vital status as shown in the Social Security Master Records; and (2) whether retirees receiving Federal benefit payments under the District's retirement plan for police officers and firefighters with post-1956 military service credit are eligible for or are receiving old age or survivors benefits under section 202 of the Social Security Act based upon their wages and self-employment income.
21. To disclose to Federal, State, and local government agencies information about retirees and survivors under the retirement plans administered by the Department pursuant to the Act, including name, Social Security Number, date of birth, sex, health benefit enrollment code, retirement date, retirement code (type of retirement), annuity rate, pay status of case, correspondence address, and ZIP code, to help eliminate fraud and abuse in a benefits program administered by a requesting Federal, State, or local government agency, to ensure compliance with Federal, State, and local government tax obligations by persons receiving Federal benefits payments under such retirement plans, and to collect debts and overpayments owed to the requesting Federal, State, or local government agency.
22. To disclose to a Federal agency, or a person or an organization under contract with a Federal agency to render collection services for a Federal agency as permitted by law, in response to a written request from the head of the agency or his designee, or from the debt collection contractor, the following data concerning an individual owing a debt to the Federal Government: (A) The debtor's name, address, Social Security Number, and other information necessary to establish the identity of the individual; and (B) the amount, status, and history of the debtor's Federal benefit payments.
23. To disclose, as permitted by law, information to a State court or administrative agency in connection with a garnishment, attachment, or similar proceeding to enforce an alimony or a child support obligation.
24. To disclose to a former spouse information necessary to explain how that former spouse's benefit was computed.
25. To disclose information necessary to locate individuals who are owed money or property by a Federal, State or local government agency, or by a financial institution or similar institution, to the government agency owing or otherwise responsible for the money or property (or its agent).
26. To disclose information necessary in connection with the review of a disputed claim for health benefits to a health plan provider participating in the Federal Employees Health Benefits Program or the health benefits program for employees of the District, and to a program enrollee or covered family member or an enrollee or covered family member's authorized representative.
27. To disclose to an agency of a State or local government, or a private individual or association engaged in volunteer work, identifying and address information and other pertinent facts, for the purpose of developing an application by such an entity or person to serve as a representative payee for a person who is mentally incompetent or under other legal disability and who is or may be eligible for Federal benefit payments.
28. To disclose information to another Federal agency for the purpose of effecting administrative or salary offset against a person employed by that agency or receiving or eligible to receive benefit payments from the agency when the Department as a creditor has a claim against that person relating to Federal benefit payments.
29. To disclose information concerning delinquent debts relating to Federal benefit payments to other Federal agencies for the purpose of barring delinquent debtors from obtaining Federal loans or loan insurance guarantees pursuant to 31 U.S.C. 3720B.
30. To disclose information concerning delinquent debts relating to Federal benefit payments to State and local governments, for the purpose of collecting such debts.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies in accordance with 31 U.S.C. 3711(e).
These records are maintained on magnetic tapes, disks, microfiche, and in paper folders.
These records are retrieved by the name and/or Social Security Number and/or an automatically assigned, system generated number, of the individual to whom they pertain.
Records are kept in lockable metal file cabinets or in a secured facility with access limited to those persons whose official duties require access. Data in electronic format may also be password protected. Personnel screening and training are employed to prevent unauthorized disclosure.
All records on a claim for retirement, including salary and service history, survivor annuity elections and tax and other withholdings are maintained permanently. Records not relevant to the calculation, administration, and payment of Federal benefit payments are disposed of in accordance with Department guidelines. Disposal of paper records and microfiche is by shredding or burning; magnetic tapes and discs are erased.
Director, Office of DC Pensions, U.S. Department of the Treasury, Washington, DC 20220.
Individuals seeking notification and access to any record contained in the system of records, or seeking to contest its contents, should contact the system manager. Individuals must furnish the following information for their records to be located and identified:
a. Name, including all former names.
b. Date of birth.
c. Social Security Number.
d. Name and address of office in which currently and/or formerly employed in the District.
e. Annuity, service credit, or voluntary contributions account number, if assigned.
f. Automatically assigned, system generated number, if known.
Individuals requesting amendment of their records must also follow the Department's Privacy Act regulations regarding verification of identity and amendment of records (31 CFR part 1 subpart C, appendix A).
The information in this system is obtained from:
a. The individual to whom the information pertains.
b. District pay, leave, and allowance records.
c. Health benefits and life insurance plan systems records maintained by the Office of Personnel Management and the District.
d. Federal civilian retirement systems.
e. Military retired pay system records.
f. Social Security Old Age, Survivor, and Disability Insurance and Medicare Programs.
g. Health insurance carriers and plans participating in the Federal Employee Health Benefits Program and the health benefits program for employees of the District.
h. Official personnel folders.
i. The individual's co-workers and supervisors.
j. Physicians who have examined or treated the individual.
k. Former spouses of the individual to whom the information pertains.
l. State courts or support enforcement agencies.
m. Credit bureaus.
n. The District Police and Firefighters' Retirement and Relief Board.
o. The District Board of Education.
p. The District Public Charter School Board.
q. District public charter schools.
r. The Executive Office of the District of Columbia Courts.
s. The General Services Administration National Payroll Center.
t. The District Retirement Board.
u. The District Office of Personnel.
v. The District Office of the Chief Financial Officer.
None.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. The Office of Thrift Supervision within the Department of the Treasury will submit the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. Today, OTS is soliciting public comments on the proposal.
Submit written comments on or before December 9, 2002.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to (202) 906-6518; or send an e-mail to
You can request additional information about this proposed information collection from Christine Smith, (202) 906-5740, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Comments should address one or more of the following points:
a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS;
b. The accuracy of OTS's estimate of the burden of the proposed information collection;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collection on respondents, including through the use information technology.
We will summarize the comments that we receive and include them in the OTS request for OMB approval. All comments will become a matter of public record. In this notice, OTS is soliciting comments concerning the following information collection.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44
Submit written comments on or before December 9, 2002.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to (202) 906-6518; or send an e-mail to
You can request additional information about this proposed information collection from Thomas J. Segal, (202) 906-7230, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Comments should address one or more of the following points:
a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS;
b. The accuracy of OTS's estimate of the burden of the proposed information collection;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collection on respondents, including through the use information technology.
We will summarize the comments that we receive and include them in the OTS request for OMB approval. All comments will become a matter of public record. In this notice, OTS is soliciting comments concerning the following information collection.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
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 of 1995. OTS is soliciting public comments on the proposal.
Submit written comments on or before November 8, 2002.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to OMB and OTS at these addresses: Joseph F. Lackey, Jr., Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, or e-mail to
To obtain a copy of the submission to OMB, contact Marilyn K. Burton at
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
In rule document 02-24621 beginning on page 60853 in the issue of Friday, Sepetmber 27, 2002, make the following correction:
On page 60854, in the first column, in §1942.5, after paragraph (a)(2), in the next paragraph, in the first line, “(1)” should read “(3)”.
In notice document 02-25180 appearing on page 62038 in the issue of Thursday, October 3, 2002, make the following correction:
On page 62038, in the second column, under the heading “
In rule document 02-24728 beginning on page 61818 in the issue of Wednesday, October 2, 2002, make the following corrections:
1. On page 61820, in the third column, in § 350.213, in the second line, “§ 350.201(1)” should read, “§ 350.201(q)”.
2. On page 61824, in the first column, in § 390.27, in “
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM) and request for comments.
FRA proposes to conform, to the extent practicable, its regulations on accident/incident reporting to the revised reporting regulations of the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor. This action will permit the comparability of data on occupational fatalities, injuries, and illnesses in the railroad industry with such data for other industries, will allow the integration of these railroad industry data into national statistical databases, and will enhance the quality of information available for railroad casualty analysis. In addition, FRA proposes to make certain other amendments to its accident reporting regulations unrelated to conforming to OSHA's revised reporting regulations. Finally, FRA proposes minor changes to its alcohol and drug regulations and locomotive engineer qualifications regulations in those areas that incorporate concepts from its accident reporting regulations.
(1) Written Comments: Written comments on the proposed rule must be received by November 8, 2002. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.
(2) Public Hearing: If any person desires an opportunity for oral comment, he or she should notify FRA in writing and specify the basis for the request. FRA will schedule a public hearing in connection with this proceeding if the agency receives a written request for hearing by November 8, 2002.
Anyone wishing to file a comment or request a public hearing should refer to the FRA docket and notice numbers (Docket No. FRA-2002-13221, Notice No. 1) in such comment or request. You may submit your comments and related material, or request for a public hearing, by only one of the following methods:
By mail to the Docket Management System, Department of Transportation, Room PL-401, 400 7th Street, SW., Washington, DC 20590-0001; or
Electronically through the Web site for the Docket Management System at
The Docket Management Facility maintains the public docket for this rulemaking. Comments and documents as indicated in this preamble will become part of this docket and will be available for inspection or copying at Room PL-401 on the Plaza Level of the Nassif Building at the same address during regular business hours. You may also obtain access to this docket on the Internet at
For more detailed information on OSHA's revised reporting regulations,
For technical issues, Robert L. Finkelstein, Staff Director, Office of Safety Analysis, RRS-22, Mail Stop 17, Office of Safety, FRA, 1120 Vermont Ave., NW., Washington, DC 20590 (telephone 202-493-6280). For legal issues, Anna L. Nassif, Trial Attorney, or David H. Kasminoff, Trial Attorney, Office of Chief Counsel, RCC-12, Mail Stop 12, FRA, 1120 Vermont Ave., NW., Washington, DC 20590 (telephone 202-493-6166 or 202-493-6043, respectively).
Note that, for brevity, references to a section in part 225 will omit “49 CFR”;
On January 19, 2001, OSHA published revised regulations entitled, “Occupational Injury and Illness Recording and Reporting Requirements; Final Rule,” including a lengthy preamble that explains OSHA's rationale for these amendments.
FRA's railroad accident/incident reporting regulations, which are codified at 49 CFR part 225 (part 225), include, among other provisions, sections that pertain to railroad occupational fatalities, injuries, and illnesses; these sections are consistent with prior OSHA regulations, with minor exceptions. These sections of FRA's accident/incident regulations that concern railroad occupational casualties should be maintained, to the extent practicable, in general conformity with OSHA's recordkeeping and reporting regulations to permit comparability of data on occupational casualties between various industries, to allow integration of railroad industry data into national statistical databases, and to improve the quality of data available for analysis of casualties in railroad accidents/incidents. Accordingly, FRA proposes conforming amendments to its existing accident/incident reporting regulations and Guide. Further, FRA proposes minor amendments to its alcohol and drug regulations (49 CFR part 219) (part 219) and locomotive engineer qualifications regulations (49 CFR part 240) (part 240) in those areas that incorporate terms from part 225.
Throughout this preamble to the proposed rule, excerpts from OSHA regulations are provided for the convenience of the reader. The official version of the OSHA regulations appears in 29 CFR part 104.
In addition, FRA proposes to draft a memorandum of understanding (MOU) between FRA and OSHA to address specific areas that are unique to the railroad industry, and where it may not be practical for FRA's regulations to be maintained in conformity with OSHA's Final Rule. Such divergence from OSHA's Final Rule is permitted under a provision of the rule:
If you create records to comply with another government agency's injury and illness recordkeeping requirements,
Finally, FRA proposes other miscellaneous amendments to part 225 and the Guide, including revisions not solely related to railroad occupational casualties, such as the telephonic reporting of a train accident that fouls a main line track used for scheduled passenger service.
FRA has developed this proposal through its Railroad Safety Advisory Committee (RSAC). RSAC was formed by FRA in March of 1996 to provide a forum for consensual rulemaking and program development. The Committee had representation from all of the agency's major interest groups, including railroad carriers, labor organizations, suppliers, manufacturers, and other interested parties. FRA typically proposes to assign a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If the task is accepted, RSAC establishes a working group that possesses the appropriate expertise and representation to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the full RSAC for a vote. If the proposal is accepted by a simple majority of the RSAC, the proposal is formally recommended to FRA. If a working group is unable to reach consensus on recommendations for action, FRA will move ahead to resolve the issue through traditional rulemaking proceedings.
On April 23, 2001, FRA presented task statement 2001-1, regarding accident/incident reporting conformity, to the full RSAC. When FRA presented the subject of revising its accident reporting regulations and Guide to RSAC, the agency stated that the purpose of the task was to bring FRA's regulations and Guide into conformity with OSHA's Final Rule, and to make certain other technical amendments. The task was accepted, and a working group was established to complete the task.
Members of the Working Group, in addition to FRA, include representatives of the following 26 entities: the American Public Transportation Association (APTA); the National Railroad Passenger Corporation (Amtrak); the Association of American Railroads (AAR); The American Short Line and Regional Railroad Association (ASLRRA); the Brotherhood of Locomotive Engineers (BLE); the Brotherhood of Railroad Signalmen (BRS); Transportation Communications International Union/Brotherhood Railway Carmen (TCIU/BRC); Canadian National Railway Company (CN) and Illinois Central Railroad Company (IC); the Sheet Metal Workers International Association; the Brotherhood of Maintenance of Way Employees (BMWE); The Burlington Northern and Santa Fe Railway Company (BNSF); Canadian Pacific Railway Company (CP); Consolidated Rail Corporation—Shared Assets (CR); CSX Transportation, Inc. (CSX); Norfolk Southern Railway Company (NS); Union Pacific Railroad Company (UP); The Long Island Rail Road (LIRR); Maryland Transit Administration (MARC); Southern California Regional Rail Authority (Metrolink); Virginia Railway Express (VRE); Trinity Rail (TR); North Carolina Department of Transportation (NCDOT); Northeast Illinois Regional Commuter Rail Corp. (Metra); the United Transportation Union (UTU); and Wisconsin Central Ltd. (WC).
The Working Group held a total of eight meetings related to this task statement. The first Working Group meeting occurred on May 21-23, 2001, in Washington, DC. A second meeting was held on July 1-3, 2001, in Washington, DC. A third meeting was held on August 7-8, 2001, in Denver, CO. A fourth meeting was held briefly on September 11, 2001, in Chicago, IL, but was cancelled due to the extraordinary events that occurred on that day. A fifth meeting was held on November 14-15, 2001, in St. Louis, MO. A sixth meeting was held on January 22-24, 2002, in Baltimore, MD. A seventh meeting was held on March 12-13, 2002, in New Orleans, LA. An eighth meeting was held on April 24-25, 2002, in Washington, DC.
As a result of these meetings, the Working Group developed consensus recommendations to propose to change the FRA regulations and Guide with respect to all issues presented except for one. Consensus could not be reached on whether railroads should be required to report deaths and injuries of the employees of railroad contractors who are killed or injured while off railroad property. Currently, FRA interprets part 225 as not requiring the reporting of such cases. Since the end of the last Working Group session, FRA has developed a compromise position and proposes that railroads not be required to report deaths or injuries to persons who are not railroad employees that occur while off railroad property unless they result from a train accident, a train incident, a highway-rail grade crossing accident/incident, or a release of a hazardous material or other dangerous commodity related to the railroad's rail transportation business. To accomplish this result, FRA proposes a three-tier definition of the term “event or exposure arising from the operation of a railroad.”
This NPRM is intended to reflect a Working Group consensus on all other issues, which are summarized in the following section of the preamble. With regard to part 225, the Working Group recommended amending § 225.5, which contains definitions; § 225.9, which pertains to telephonic reporting of certain accidents/incidents; and § 225.19(d), which pertains to reporting deaths, injuries, and occupational illnesses. To make certain other miscellaneous conforming changes, the Working Group recommended amending § 225.21, which pertains to forms; § 225.23(a), which pertains to joint operations; § 225.33, which pertains to internal control plans; and § 225.35, which pertains to access to records and reports. To address occupational illnesses and injuries that are privacy concern cases, claimed occupational illnesses, and other issues, the Working Group also recommended amending § 225.25, pertaining to recordkeeping. Finally, the Working Group recommended adding a new § 225.39, pertaining to FRA's policy on how FRA will maintain and make available to OSHA certain data FRA receives pertaining to cases that meet the criteria as recordable injuries or illnesses under OSHA's regulations and that are reportable to FRA, but that would not count towards the data in totals compiled for FRA's periodic reports on injuries and illnesses.
With regard to the Guide, the Working Group proposed to revise Chapter 1, pertaining to an overview of accident/incident reporting and recordkeeping requirements; Chapter 2, containing definitions; Chapter 4, pertaining to Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record'; Chapter 6, pertaining to Form FRA F 6180.55a, “Railroad Injury and Illness Summary (Continuation Sheet)'; and Chapter 7, pertaining to Form FRA F 6180.54, “Rail Equipment Accident/Incident Report'; and to create a new Chapter 12, pertaining to reporting by commuter railroads, and a new Chapter 13, pertaining to new Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to Be Work-Related.” The Working Group also proposed to change various codes used in making accident/incident reports to FRA. These codes are listed in appendices of the Guide. The Working Group supported revising Appendix C, “Train Accident Cause Codes'; Appendix E, “Injury and Illness Codes,” including revising codes related to the nature of the injury or illness, and the location of the injury; and Appendix F, “Circumstance Codes.” The latter included revising codes related to the physical act the person was doing when hurt; where the person was located when injured; what, if any, type of on-track equipment was involved when the person was injured or became ill; what event was involved that caused the person to be injured or become ill; what tools, machinery, appliances, structures, or surfaces were involved when the person was injured or became ill; and the probable reason for the injury or illness. Further, the Working Group advocated revising Appendix H, pertaining to accident/incident reporting forms, particularly Form FRA F 6180.78, “Notice to Railroad Employee Involved in Rail Equipment Accident/Incident Attributed to Employee Human Factor [and] Employee Statement Supplementing Railroad Accident Report,” and Form FRA F 6180.81, “Employee Human Factor Attachment.” Finally, the Working Group recommended making additional conforming changes to the Guide.
With regard to part 219, FRA decided that two terms used in that part, “reportable injury” and “accident or incident reportable under Part 225 of this chapter,” should be given a slightly different meaning. In particular, the terms would be defined for purposes of part 219 as excluding accidents or incidents that are classified as “covered data” under proposed § 225.5 (
Each of these issues is described in greater detail in the next sections of the preamble. The full RSAC has accepted the recommendations of the Working Group as to the changes to be proposed for part 225 and the Guide on which consensus was reached. With regard to the one issue on which consensus was not reached, and with regard to the minor proposed revisions to parts 219 and 240, not presented to the Working Group, the full RSAC has accepted FRA staff recommendations. In turn, FRA's Administrator has adopted these recommendations, which are embodied in this NPRM.
OSHA's Final Rule states, “(1) If your company had ten (10) or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records unless OSHA or the BLS informs you in writing that you must keep records under § 1904.41 or § 1904.42.” 29 CFR 1904.1(a). FRA's accident reporting regulations do not have such an exemption from the central reporting requirements for railroads with ten or fewer employees at all times during the last calendar year. Rather, the extent and exercise of FRA's delegated statutory safety jurisdiction are addressed fully in 49 CFR part 209, Appendix A, and the applicability of part 225 in particular is addressed in § 225.3. Under § 225.3(a), the central provisions of part 225 apply to:
all railroads except—
(1) A railroad that operates freight trains only on track inside an installation which is not part of the general railroad system of transportation or that owns no track except for track that is inside an installation that is not part of the general railroad system of transportation and used for freight operations.
(2) Rail mass transit operations in an urban area that are not connected with the general railroad system of transportation.
(3) A railroad that exclusively hauls passengers inside an installation that is insular or that owns no track except for track used exclusively for the hauling of passengers inside an installation that is insular. An operation is not considered insular if one or more of the following exists on its line:
(i) A public highway-rail grade crossing that is in use;
(ii) An at-grade rail crossing that is in use;
(iii) A bridge over a public road or waters used for commercial navigation; or
(iv) A common corridor with a railroad,
Section 20901 of title 49, U.S. Code (superseding 45 U.S.C. 38 and re-codifying provisions formerly contained in the Accident Reports Act, 36 Stat. 350 (1910), as amended), requires each railroad to file a monthly report of railroad accidents.
FRA proposes to amend and add certain definitions to conform to OSHA's Final Rule or to achieve other objectives. Specifically, FRA proposes to revise the definitions of “accident/incident,” “accountable injury or illness,” “day away from work,” “day of restricted work activity,” “medical treatment,” and “occupational illness.” As previously mentioned, FRA proposes to remove the term “arising from the operation of a railroad” and its definition and add the term “event or exposure arising from the operation of a railroad” and its definition. FRA proposes to create definitions of “covered data,” “general reportability criteria,” “medical removal,” “musculoskeletal disorder,” “needlestick or sharps injury,” “new case,” “occupational hearing loss,” “occupational tuberculosis,” “privacy concern case,” “significant change in the number of reportable days away from work,” “significant illness,” and “significant injury.” Some of these changes are discussed in context later in the section-by-section analysis or elsewhere in the preamble.
The Working Group agreed to propose certain amendments to § 225.9, pertaining to telephonic reporting, and the corresponding instructions related to telephonic reporting in the Guide. Currently, FRA requires immediate telephonic reporting of accidents/incidents to FRA through the National Response Center (NRC) in only a limited set of circumstances,
Within eight (8) hours after the death of any employee from a work-related incident or the
Do I have to report a fatality or hospitalization that occurs long after the incident? No, you must only report each fatality or multiple hospitalization incident that occurs
As recommended by the Working Group, FRA proposes to broaden the set of circumstances under which a railroad would be required to report an accident/incident telephonically to the NRC, and to make certain other refinements to the rule. Specifically, FRA first proposes to add requirements for telephonic reporting when there is a death to any employee of a contractor to a railroad performing work for the railroad on property owned, leased, or maintained by the contracting railroad. Railroads are increasingly using contractors to perform work previously performed by railroad employees. Often, those workers are exposed to hazards unique to the railroad environment or that otherwise involve conditions under FRA's responsibility. Receiving these reports will assist FRA in discharging its responsibility for monitoring the safety of railroad operations.
FRA also proposes to require the telephonic reporting of certain train accidents that are relevant to the safety of railroad passenger service, including otherwise reportable collisions and derailments on lines used for scheduled passenger service and train accidents that foul such lines. These events are potentially quite significant, since they may indicate risks which affect passenger service (
FRA also proposes to incorporate provisions similar to the National Transportation Safety Board's (NTSB) requirements for telephonic reporting (49 CFR part 840) into its own regulations and Guide. The key provisions of NTSB's requirements, §§ 840.3 and 840.4, read as follows:
Excerpts from NTSB requirements are provided for the convenience of the reader. The official version of the requirements appears at 49 CFR 840.3 and 840.4.
The operator of a railroad shall notify the Board by telephoning the National Response Center at telephone 800-424-0201 at the earliest practicable time after the occurrence of any one of the following railroad accidents:
(a) No later than 2 hours after an accident which results in:
(1) A passenger or employee fatality or serious injury to two or more crewmembers or passengers requiring admission to a hospital;
(2) The evacuation of a passenger train;
(3) Damage to a tank car or container resulting in release of hazardous materials or involving evacuation of the general public; or
(4) A fatality at a grade crossing.
(b) No later than 4 hours after an accident which does not involve any of the circumstances enumerated in paragraph (a) of this section but which results in:
(1) Damage (based on a preliminary gross estimate) of $150,000 or more for repairs, or the current replacement cost, to railroad and nonrailroad property; or
(2) Damage of $25,000 or more to a passenger train and railroad and non-railroad property.
(c) Accidents involving joint operations must be reported by the railroad that controls the track and directs the movement of trains where the accident has occurred.
(d) Where an accident for which notification is required by paragraph (a) or (b) of this section occurs in a remote area, the time limits set forth in that paragraph shall commence from the time the first railroad employee who was not at the accident site at the time of its occurrence has received notice thereof.
The notice required by § 840.3 shall include the following information:
(a) Name and title of person reporting.
(b) Name of railroad.
(c) Location of accident (relate to nearest city).
(d) Time and date of accident.
(e) Description of accident.
(f) Casualties:
(1) Fatalities.
(2) Injuries.
(g) Property damage (estimate).
(h) Name and telephone number of person from whom additional information may be obtained.
The reason FRA proposes to incorporate requirements similar to NTSB's standards for telephonic reporting into its own regulations and Guide is that, unlike NTSB, FRA can enforce these requirements through the use of civil penalties. FRA has long relied upon reports required to be made to NTSB as a means of alerting its own personnel who are required to respond to these events. Although most railroads are quite conscientious in making telephonic reports of significant events, including some not required to be reported, from time to time FRA does experience delays in reporting that adversely affect response times. In this regard, it should be noted that FRA conducts more investigations of railroad accidents and fatalities than any other public body, and even in the case of the relatively small number of accidents that NTSB selects for major investigations, FRA provides a substantial portion of the technical team participating from the public sector. Accordingly, it is appropriate that FRA take responsibility for ensuring that timely notification is provided. As can be seen by comparing the quoted NTSB regulations to proposed § 225.9, FRA has not adopted NTSB's standards wholesale, but extracted necessary additions to FRA's existing requirements (e.g., train accident requiring evacuation of passengers), used terminology from FRA regulations to describe the triggering events (
Concern was expressed within the Working Group about joint operations as to which railroad should be responsible for making the telephonic report. The Working Group agreed that for purposes of telephonic reporting, the dispatching railroad, which controls the track involved, would be responsible for making the telephonic report.
There was much discussion in the Working Group regarding whether railroads should be required to telephonically report certain incidents to the NRC “immediately.” One suggestion was to set a fixed period, such as three or four hours, to report an accident/incident, or in any event, be given a reasonable amount of time to report. Prompt reporting permits FRA and (where applicable) NTSB to dispatch personnel quickly, in most cases making it possible for them to arrive on scene before re-railing operations and track reconstruction begin and key personnel become unavailable for interview. Decades of experience in accident investigation have taught FRA that the best information is often available only very early in the investigation, before physical evidence is disturbed and memories cloud.
In addition, there was a suggestion that railroads be permitted to immediately report certain incidents by several methods other than by a telephone call, including use of a facsimile, or notification by e-mail. Railroad representatives indicated that telephonic reporting is sometimes burdensome, particularly when a busy manager must wait to speak to an emergency responder for extended periods of time. FRA rejected this suggestion, and is proposing to require that immediate notification be done by telephone, and only by telephone, because FRA is concerned that if notification is given by other methods, such as facsimile or e-mail, it is possible that no one will be available to immediately receive the facsimile or e-mail message. Conversely, with a telephone call to an emergency response center, a railroad should be able to speak immediately to a person, or at the very least, should hear a recording that would immediately direct the caller to a person.
Concern was expressed within the Working Group that continued use of the term “immediate” in conjunction with a broadening of the events subject to the FRA rule might produce harsh results, due to the need to address emergency response requirements for the safety and health of those affected and to determine the facts that are predicates for reporting. The proposed rule addresses this concern by stating that,
[t]o the extent the necessity to report an accident/incident depends upon a determination of fact or an estimate of property damage, a report would be considered immediate if made as soon as possible following the time that the determination or estimate is made, or could reasonably have been made, whichever comes first, taking into consideration the health and safety of those affected by the accident/incident, including actions to protect the environment.
Currently, § 225.19(d) reads as follows:
Group III-Death, injury, or occupational illness. Each event arising from the operation of a railroad shall be reported on Form FRA F 6180.55a if it results in:
(1) Death to any person;
(2) Injury to any person that requires medical treatment;
(3) Injury to a railroad employee that results in:
(i) A day away from work;
(ii) Restricted work activity or job transfer; or
(iii) Loss of consciousness; or
(4) Occupational illness of a railroad employee.
The comparable provisions of OSHA's Final Rule are at §§ 1904.4(a) and 1904.7(b), which read as follows:
(a) Basic requirement. Each employer required by this Part to keep records of fatalities, injuries, and illnesses must
(1) Is work-related; and
(2) Is a new case; and
(3) Meets one or more of the general recording criteria of § 1904.7 or the application to specific cases of § 1904.8 through § 1904.12.
(b) Implementation. (1) How do I decide if a case meets one or more of the general recording criteria? A work-related injury or illness must be recorded if it results in one or more of the following:
(i) Death. See § 1904.7(b)(2).
(ii) Days away from work. See § 1904.7(b)(3).
(iii) Restricted work or transfer to another job. See § 1904.7(b)(4).
(iv) Medical treatment beyond first aid. See § 1904.7(b)(5).
(v) Loss of consciousness. See § 1904.7(b)(6).
(vi) A significant injury or illness diagnosed by a physician or other licensed health care professional. See § 1904.7(b)(7).
As indicated by the preceding rule text, OSHA's Final Rule has specific recording criteria for cases described in 29 CFR 1904.8 through 1904.12. These cases involve work-related needlestick and sharps injuries, medical removal, occupational hearing loss, work-related tuberculosis, and independently reportable work-related musculoskeletal disorders. See Web site for OSHA regulations located in the
In response to several comments received after publication of the Final Rule, which was scheduled to take effect on January 1, 2002, OSHA delayed the effective date of three of the rule's provisions until January 1, 2003, so as to allow itself further time to evaluate § 1904.10, regarding occupational hearing loss, and §§ 1904.12 and 1904.29(b)(7)(vi),
Prior to OSHA's Final Rule, the recordkeeping rule had no specific threshold for recording hearing loss cases. See 67 FR 44038. The Final Rule established a new 10-dB standard at 29 CFR 1904.10:
If an employee's hearing test (audiogram) reveals that a Standard Threshold Shift (STS) has occurred, you must record the case on the OSHA 300 Log by checking the “hearing loss” column. . . . A standard Threshold Shift, or STS, is defined in the occupational noise exposure standard at 29 CFR 1910.95(c)(10)(i) as a change in hearing threshold, relative to the most recent audiogram for that employee, of an average of 10 decibels (dB) or more at 2000, 3000, and 4000 hertz in one or both ears.
Audiometric zero represents the statistical average hearing threshold level of young adults with no history of aural pathology, thus it is not specific to the employee. This is the starting point from which the American Medical Association (AMA) measures a 25-dB permanent hearing impairment. The employee's original baseline audiogram, on the other hand, is taken at the time the worker was first placed in a hearing conservation program.
Thus, if an individual employee has experienced some hearing loss before being hired, a 25-dB shift from the employee's original baseline will be a larger hearing loss than the 25-dB shift from audiometric zero that the AMA recognizes as a hearing impairment and disabling condition. For example, if an employee experienced a 20-dB shift from audiometric zero prior to being hired in a job where he later suffered a 15-dB shift hearing loss from his original baseline audiogram, the AMA would count this as a 35-dB shift, a serious hearing impairment, but under OSHA's enforcement policy (and FRA's current approach), this would only have counted as a 15-dB shift that is not recordable under OSHA's enforcement policy or § 1904.10 for calendar year 2002. In order for it to become recordable, the employee would have had to suffer an additional 10-dB shift, which would mean that the employee would have suffered a 45-dB shift from audiometric zero—almost twice the amount that the AMA considers to be a permanent hearing impairment.
After considering several comments demonstrating that a 25-dB shift from an employee's original baseline audiogram was not protective enough and that a 10-dB shift from an employee's original baseline audiogram was overly protective (and more appropriate as an early warning mechanism that should trigger actions under the Occupational Noise Exposure Standard
As OSHA's new approach to defining and recording occupational hearing loss cases was not presented to the Working Group, FRA seeks comment on whether FRA should adopt OSHA's new approach as FRA's fixed approach, beginning on the effective date of FRA's final rule, or whether FRA should diverge from OSHA and continue to enforce OSHA's current approach (which was approved by the Working Group and the RSAC and is the same as FRA's current approach) as a fixed approach beginning on the effective date of FRA's final rule.
As noted above, OSHA may be reconsidering for calendar year 2003 the definition of musculoskeletal disorder (MSD) and the requirement of having a separate column on the OSHA 300 log for the recording of MSD and occupational hearing loss cases. As the issue of OSHA's proposed delays was not before the Working Group when consensus was reached, FRA seeks comment on whether or not the definition and column requirements should be adopted if OSHA's proposed January 1, 2004 delay takes effect. If FRA goes forth with the provisions as approved by the Working Group, FRA would be adopting these provisions in advance of OSHA, a result that may not have been contemplated by the Working Group when it agreed to follow OSHA on these issues prior to the issuance of the proposed delays.
Even if OSHA chooses not to delay the effective date of these provisions, FRA seeks comment on whether or not we should diverge from OSHA by not adopting the definition or column requirements, since FRA already has its own forms and methods in place to collect this data for OSHA's purposes. Instead of requiring railroads to record cases and check boxes on the OSHA 300 log, FRA requires railroads to report these cases using assigned injury codes on the FRA Form F 6180.55a. Code 1151, for example, is the code for occupational hearing loss cases, thus no additional column would be necessary. Similarly, the different kinds of injuries that could qualify as an MSD are given separate codes. Once OSHA decides what types of injuries are appropriate to include in the category or definition of an MSD, OSHA would be able to identify the MSD cases by their respective code numbers, thereby allowing OSHA to use FRA's data for national statistical purposes. Although it is not practical for FRA's injury codes to be as extensive as OSHA's codes, it would be possible to amend the Guide so as to reflect the major codes recognized by OSHA and to add a category such as “Other MSDs, as defined by OSHA in § 1904.12.”
FRA also seeks comment on whether or not a definition of an MSD is necessary, since currently there are no special criteria beyond the general recording criteria for determining which MSDs to record, and because OSHA's definition appears to be used primarily as guidance for when to check the MSD column on the 300 Log.
FRA also seeks comment on whether its regulations should “float,”
Finally, OSHA added another category of reportable cases: “significant injuries or illnesses.” With regard to the reportability of illnesses and injuries of railroad employees, there are at least three primary differences between OSHA's reporting criteria and FRA's current reporting criteria, at least as stated in § 225.19(d). First, FRA requires that all occupational illnesses of railroad employees be reported.
The distinction between medical treatment and first aid depends not only on the treatment provided, but also on the severity of the injury being treated. First aid * * * [i]nvolves treatment of only
FRA proposes to conform part 225 to OSHA's Final Rule with regard to these three differences by amending its regulations at § 225.19(d) and related definitions at § 225.5. FRA would, however, distribute the specific conditions specified under OSHA's “significant” category (§ 1904.7(b)(7)) into injuries and illnesses, subcategories that OSHA could, of course, aggregate, and FRA would omit the note to OSHA's description of “significant illnesses and injuries,” which does not appear to be necessary for a proper understanding of the concept and which might be read as open-ended, a result
Note to § 1904.7: OSHA believes that most significant injuries and illnesses will result in one of the criteria listed in § 1904.7(a). * * * In addition, there are some significant progressive diseases, such as byssinosis, silicosis, and some types of cancer, for which medical treatment or work restrictions may not be recommended at the time of the diagnosis but are likely to be recommended as the disease progresses. OSHA believes that cancer, chronic irreversible diseases, fractured or cracked bones, and punctured eardrums are generally considered significant injuries and illnesses, and must be recorded at the initial diagnosis even if medical treatment or work restrictions are not recommended, or are postponed, in a particular case.
As previously noted, under § 225.19(d), “Each event arising from the operation of a railroad shall be reported * * * if it results in * * * (1) Death to any person; (2) Injury to any person that requires medical treatment. * * *” Under the “definitions” section of the accident reporting regulations, “person” includes an independent contractor to a railroad.
Contrarily, under OSHA's Final Rule, the reporting entity is required to report work-related injuries and illnesses, including those events or exposures meeting the special recording criteria for employees of contractors, only if they are under the day-to-day supervision of the reporting entity.
If an employee in my establishment is a contractor's employee, must I record an injury or illness occurring to that employee? If the contractor's employee is under the day-to-day supervision of the contractor, the contractor is responsible for recording the injury or illness. If you supervise the contractor employee's work on a day-to-day basis, you must record the injury or illness.
In the Working Group meetings, APTA noted that it is difficult to comply with FRA's current rule, read literally, with respect to an employee of a contractor to a railroad while off railroad property. Many commuter railroads often do not know whether an employee of a contractor to the railroad is injured or sickened if the event occurred on property other than property owned, leased, or maintained by the commuter railroad; it is difficult to follow up on an injury or illness suffered by such an employee. For example, ABC Railroad contracts with XYZ Contractor to repair ABC's railcars at XYZ's facilities. An employee of XYZ Contractor, while repairing ABC's rail car at XYZ's facility, receives an injury resulting in medical treatment. ABC Railroad notes that it may not know about the injury and, therefore, could not report it. Furthermore, no information is lost in the national database since the contractor must report the injury to OSHA even if ABC Railroad does not report the injury. The Working Group could not reach consensus on whether to require reporting of injuries to employees of railroad contractors while off railroad property.
A similar difficulty with reporting occurs in the context of fatalities to employees of contractors to a railroad. With respect to whether to require that railroads report fatalities of employees of contractors that arise out of the operation of the railroad but occur off railroad property, the Working Group also could not reach consensus. AAR noted that for the reasons stated above related to injuries and illnesses, it is difficult for railroads to track fatalities of persons who are not employed by the railroad. Labor noted on the other hand, that fatalities are the most serious cases on the spectrum of reportable incidents and that it would be important that those cases be reported to FRA. In addition, labor representatives noted that railroads often contract for taxi services to deadhead railroad crews to their final release point and that if a driver died in a car accident transporting a railroad crew, FRA should know about those cases. FRA noted that as a practical matter, those types of cases occurred infrequently, that FRA data showed only two possible fatal car accidents occurring off railroad property that involved employees of contractors to a railroad. As a compromise, labor representatives proposed that only fatalities that involved transporting or deadheading railroad crews be reportable, but that all other fatalities to employees of contractors to a railroad that occur off railroad property, not be reportable, even if the incident arose out of the operation of the railroad.
Since the Working Group could not reach consensus on the issue of reporting injuries, illnesses, or fatalities of contractors to a railroad that arose out of the operation of the railroad but occurred off railroad property, FRA makes the following proposal based upon its reasoned consideration of the issue. In this regard, FRA has attempted to balance its need for comprehensive safety data concerning the railroad industry against the practical limitations of expecting railroads to be aware of all injuries suffered by contractors off of railroad property. FRA recognizes that certain types of accident/incidents occurring off of railroad property involve scenarios in which the fact that the contractor was performing work for a railroad is incidental to the accident or incident, and would offer no meaningful safety data to FRA,
The existing term “arising from the operation of a railroad” and its definition would be deleted from § 225.5. Currently, the definition reads as follows: “
When read together with the rest of proposed § 225.19(d), the new definition of “event or exposure arising from the operation of a railroad” would mean that a railroad would not have to report to FRA the death or injury to an employee of a contractor to the railroad who is off railroad property (or deaths or injuries to any person who is not a railroad employee) unless the death or injury results from a train accident, train incident, or highway-rail grade crossing accident involving the railroad; or from a release of a hazardous material or some other dangerous commodity in the course of the railroad's rail transportation business. In addition, FRA would require railroads to report work-related illnesses only of railroad employees and under no circumstances the illness of employees of a railroad contractor. These proposed reporting requirements diverge from the OSHA standard, which would require the reporting of the work-related death, injury, or illness of an employee of a contractor to the reporting entity if the contractor employee is under the day-to-day supervision of the reporting entity. 29 CFR 1904.31(b)(3). If FRA adopts this proposal, FRA's divergence from OSHA would be addressed in the MOU.
At a Working Group meeting, AAR proposed that major member railroads would file, with their FRA annual report, a list of claimed but denied occupational illnesses not included on the Form FRA F 6180.56, “Annual Railroad Report of Employee Hours and Casualties by State,” because the railroads found the illnesses not to be work-related. The list would be organized by State, and would include the name of the reporting contact person.
The Working Group agreed to add a new subsection § 225.21(j) to create a new form (Form FRA F 6180.107), which would be labeled “Alternative Record for Illnesses Claimed to Be Work-Related.” This form would call for the same information that is included on the Form FRA F 6180.98 and would have to be completed to the extent that the information is reasonably available. A further discussion of the nature of this new form is discussed under the revisions to § 225.25, later in this preamble.
The Working Group agreed to propose certain minor changes to the regulatory text; specifically, to § 225.23(a), concerning joint operations, simply to bring it into conformity with the other major changes to the regulatory text that are proposed. Note that for purposes of telephonic reporting in joint operations, the dispatching railroad would be required to make the telephonic report.
The Working Group agreed to propose changes to the regulatory text under § 225.25, concerning recordkeeping, by revising § 225.25(h) to address a class of cases described by OSHA as “privacy concern cases.” OSHA requires an employer to give its employees and their representatives access to injury and illness records required by OSHA, such as the OSHA 300 Log, with some limitations that apply to privacy concern cases. 29 CFR 1904.35(b)(2), 1904.29(b). A “privacy concern case” is defined by OSHA in 29 CFR 1904.29(b)(7); one type of a privacy concern case is,
By contrast, FRA requires that an employee have access to information in the FRA-required Railroad Employee Injury and/or Illness Record (Form FRA F 6180.98) regarding his or her own injury or illness, not the FRA-required records regarding injuries or illnesses of other employees. § 225.25(a), (b), (c). This renders the FRA-required log of reportables and accountables with its information on the name and Social Security number of the employee, inaccessible to other employees or anyone else.
Although FRA does not allow wide access to the reportable and accountable log, FRA does require, however, the posting in a conspicuous place in each of the employer's establishments, certain limited information on reportable accidents/incidents that occurred at the establishment, thereby making this information accessible to all those working at the establishment and not simply the particular employee who suffered the injury or illness. § 225.25(h). That limited information includes the incident number used to report the case, the date of the injury or illness, the regular job title of the employee involved, and a description of the injury or condition. Even though the name of the employee is not required to be listed, the identity of the person might in some cases be determined, particularly at small establishments. Currently, under § 225.25(h)(15), FRA permits the railroad not to post an injury or illness at the establishment where it occurred if the ill or injured employee requests in writing to the railroad's reporting officer that the injury or illness not be posted. The preceding revision of the rule would be consistent with OSHA's requirements with regard to its Log, but more expansive than those requirements. FRA would also give railroads discretion not to provide details of the injury or condition that constitutes a privacy case. FRA will discuss these slight variations from OSHA's privacy requirements in the MOU.
Another issue relevant to reporting privacy concern cases arose in § 1904.29(b)(7)(vi) of OSHA's January 19, 2001, Final Rule, which states that musculoskeletal disorders (MSDs) are not considered privacy concern cases. OSHA delayed the effective date of this exclusion until January 1, 2003, in its October 12, 2001, final rule. On July 1, 2002, OSHA proposed to delay the effective date of this same provision until January 1, 2004.
Finally, the question was raised in the Working Group whether FRA's proposed regulations conformed to the Health Insurance Portability and Accessibility Act of 1996 (Pub. L. 104-191 (HIPAA)) and to the Department of Health and Human Services' regulations implementing HIPAA with regard to the privacy of medical records.
Although this system has generally worked well, problems have arisen with respect to accounting of claimed occupational illnesses. As further explained below, railroads are subject to tort-based liability for illnesses and injuries that arise as a result of conditions in the workplace. By their nature, many occupational illnesses, particularly repetitive stress cases, may arise either from exposures outside the workplace, inside the workplace, or a combination of the two. Accordingly, issues of work-relatedness become very prominent. Railroads evaluate claims of this nature using medical and ergonomic experts, often relying upon job analysis studies as well as focusing on the individual claims.
With respect to accounting and reportability under part 225, railroad representatives state their concern that mere allegations (
Although sympathetic to these concerns, FRA is disappointed in the quality of data provided in the past related to occupational illnesses. Indeed, in recent years the number of such events reported to FRA has been extremely small. FRA has an obligation to verify, insofar as possible, whether the railroad's judgments rest on a reasonable basis, and discharging that responsibility requires that there be a reasonable audit trail to verify on what basis the railroad's decisions were made. While the basic elements of the audit trail are evident within the internal control plans of most railroads, this is not universally the case.
Accordingly, FRA asked the Working Group to consider establishing a separate category of claimed illnesses. This category would be comprised of (1) Illnesses for which there is insufficient information to determine whether the illness is work-related; (2) Illnesses for which the railroad has made a preliminary determination that the illness was not work-related; and (3) Illnesses for which the railroad has made a final determination that the illness is not work-related. These records would contain the same information as the Form FRA F 6180.98, but might at the railroad's election—
• Be captioned “alleged”;
• Be retained in a separate file from other accountables; and
• If accountables are maintained electronically, be excluded from the requirement to be provided at any railroad establishment within 4 hours of a request.
This would permit the records to be kept at a central location, in either paper or electronic format.
The railroad's internal control plan would be required to specify the custodian of these records and where they could be found. For any case determined to be reportable, the designation “alleged” would be removed, and the record would be transferred to the reporting officer for retention and reporting in the normal manner. In the event the narrative block (Form FRA F 6180.98, block 39) indicates that the case is not reportable, the explanation contained in that block would record the reasons the railroad determined that the case was not reportable, making reference to the “most authoritative” information relied upon. Although the proposed Form FRA F 6180.107 or equivalent would not require a railroad to include all supporting documentation, such as medical records, it would require a railroad to note where the supporting documentation is located so that it will be readily accessible to FRA upon request.
FRA believes that the system of accounting for contested illness cases described above will focus responsibility for these decisions and provide an appropriate audit trail. In addition, it will result in a body of information that can be used in the future for research into the causes of prevalent illnesses. Particularly in the case of musculoskeletal disorders, it is entirely possible that individual cases may appear not to be work-related due to an imperfect understanding of stressors in the workplace. Review of data may suggest the need for further investigation, which may lead to practical solutions that will be implemented either under the industrial hygiene programs of the railroads or as a result of further regulatory action. Putting this information “on the books” is a critical step in sorting out over time what types of disorders have a nexus to the workplace.
The Working Group also agreed to propose certain minor changes to subsections 225.25(b)(16), (b)(25), (e)(8), and (e)(24), simply to bring these subsections into conformity with the other major changes to the regulatory text that are proposed.
FRA proposes to add a new section to the regulatory text that would include a policy statement on covered data. Specifically, proposed § 225.39 would state that FRA will not include in its periodic summaries of data for the number of occupational injuries and illnesses, reports of a case, not otherwise reportable under part 225, involving (1) One day away from work when in fact the employee returned to work, contrary to the written recommendation to the employee by the treating physician or other licensed health care professional; (2) One day of restricted work when in fact the employee was not restricted, contrary to the written recommendation to the employee by the treating physician or other licensed health care professional; or (3) A written over-the-counter medication prescribed at prescription strength, whether or not the medication was taken.
In addition to proposing revisions to its regulations in the
Written comments on the proposed
Proposed Chapter 1 of the Guide has been revised to reflect the major proposed changes to part 225 and the rest of the Guide, such as important proposed definitions, the proposed revision of the telephonic reporting requirement, and the proposed revision of the reportability criteria in § 225.19(d). In addition, Chapter 1 has been revised to change the closeout date for the reporting year. Under FRA's current reporting requirements, railroads are permitted until April 15 to close out their accident/incident records for the previous reporting year. Guide, Ch. 1, p. 11. FRA proposes to amend its Guide to extend the deadline for completing such accident/incident reporting records until December 1, and will extend the deadline even beyond that date on a case-by-case basis for individual records or cases, if warranted.
FRA proposes to amend its Guide to bring it, for the most part, into conformity with OSHA's recently published Final Rule on recordkeeping and reporting. The Working Group also wanted to make it clear, by noting in Chapter 6, that railroads are not required to report occupational fatalities, injuries, and illnesses to OSHA if FRA and OSHA enter into an MOU that so provides.
Under OSHA's Final Rule, reporting requirements have changed in many ways, several of which are described below. See also proposed § 225.39 regarding FRA's treatment of cases reportable under proposed part 225 solely because of,
Under OSHA's Final Rule, if a doctor orders a patient to rest and not return to work for a number of days, or recommends that an employee engage only in restricted work, for purposes of reporting days away from work or restricted work, an employer must report the actual number of days that the employee was ordered not to return to work or was ordered to restrict the type of work performed, even if the employee decides to ignore the doctor's orders, and instead opts to return to work or to work without restriction. Specifically, under OSHA's Final Rule,
If a physician or other licensed health care professional recommends days away, you should encourage your employee to follow that recommendation. However, the days away must be recorded whether the injured or ill employee follows the physician or licensed health care professional's recommendation or not.
OSHA states a similar rule with respect to reporting the number of days of recommended restricted duty. Specifically, OSHA's Final Rule states,
May I stop counting days if an employee who is away from work because of an injury or illness retires or leaves my company? Yes, if the employee leaves your company for some reason unrelated to the injury or illness, such as retirement, a plant closing, or to take another job, you may stop counting days away from work or days of restricted/job transfer. If the employee leaves your company because of the injury or illness, you must estimate the number of days away or days of restriction/job transfer and enter the day count on the 300 Log.
There was much discussion at the Working Group meetings of whether FRA should conform to OSHA's Final Rule with respect to reporting the number of days away from work or number of days of restricted duty. Some Working Group members wanted to leave FRA's current reporting system in place, while others saw merit in the
A compromise was reached on the issue of reporting the number of days away and number of days of restricted work activity that was acceptable both to the Working Group and, preliminarily, to OSHA. Specifically, FRA proposes that if no other reporting criteria apply but a doctor orders a patient to rest and not to report to work for a number of days, the railroad must report the case under a special category called “covered data.” The Guide would explain how this covered data would be coded. The principal purpose of collecting covered data is so that this information can be provided to the Department of Labor for inter-industry comparison. The general rule is as follows: Where a doctor orders days of rest for an employee, the railroad must report actual days away from work unless the employee reports for work the next day, in which case, the railroad must report one day. Note: If the employee takes more days than the doctor ordered, the railroad must still report actual days away from work unless the railroad can show that the employee should have returned to work sooner. The following examples illustrate the application of this principle in combination with existing requirements that would be carried forward.
• If the doctor orders the patient to five days of rest, and the employee reports to work the next day, the railroad must report one day away from work. (This case would be separately coded and not included in FRA accident/incident aggregate statistics.)
• If, on the other hand, the employee takes three days of rest, when the doctor ordered five days of rest, then the railroad must report the actual number of days away from work as three days away from work.
• Of course, if the doctor orders five days of rest and the employee takes five days of rest, then the railroad must report the full five days away from work.
• Finally, if the doctor orders five days of rest, and the employee takes more than the five days ordered, then the railroad must report the actual number of days away from work, unless the railroad can show that the employee should have returned to work sooner than the employee actually did.
FRA notes that it may be appropriate to take into consideration special circumstances in determining the appropriate reporting system for the railroad industry. While compensation for injuries and illnesses in most industries is determined under state-level worker compensation systems, which provide recovery on a “no-fault” basis with fixed benefits, railroad claims departments generally compensate railroad employees for lost workdays resulting from injuries or occupational illnesses. In the event a railroad employee is not satisfied with the level of compensation offered by the railroad, the injured or ill employee may seek relief under FELA, which is a fault-based system and subject to full recovery for compensatory damages. Further, railroad employees generally are subject to a federally-administered sickness program, which provides benefits less generous than under some private sector plans. Although it is not readily apparent in any quantitative sense how this combination of factors influences actual practices with respect to medical advice provided and employee decisions to return to work, very clearly the external stimuli are different than one would expect to be found in a typical workplace. Accordingly, it seems particularly appropriate that the Working Group found it wise to adopt a compromise approach that blends the new OSHA approach with the traditional emphasis on actual outcomes. The approach described above will foster continuity in rail accident/incident trend analysis while permitting inter-industry comparability, as well.
In addition, to conform to OSHA's Final Rule, FRA proposes to amend its Guide to lower the maximum number of days away or days of restricted work activity that must be reported, from 365 days to 180 days, and to change the method of counting days away from work and days of restricted work activity. The Working Group noted that counting calendar days is administratively simpler for employers than counting scheduled days of work that are missed. Using this simpler method of counting days away from work provides employers who keep records some relief from the complexities of counting days away from work under FRA's former system. Moreover, the calendar day approach makes it easier to compare an injury/illness date with a return-to-work date and to compute the difference between those two dates. The calendar method also facilitates computerized day counts. In addition, calendar day counts will also be a better measure of severity, because they will be based on the length of disability instead of being dependent on the individual employee's work schedule. Accordingly, FRA proposes to adopt OSHA's approach of counting calendar days because this approach is easier than the former system and provides a more accurate and consistent measure of disability duration resulting from occupational injury and illness and thus will generate more reliable data. Currently, under FRA's Guide, days away from work and days of restricted work activity are counted only if the employee was scheduled to work on those days. In the proposed Guide, because it is a preferred approach, and to be consistent with OSHA's Final Rule, days away from work would include all calendar days, even a Saturday, Sunday, holiday, vacation day, or other day off, after the day of the injury and before the employee reports to work, even if the employee was not scheduled to work on those days.
FRA's current Guide states what constitutes “medical treatment” and what constitutes “first aid” and how to categorize other kinds of treatment.
* * * Medical treatment also does not include preventive emotional trauma counseling provided by the railroad's employee counseling and assistance officer unless the participating worker has been diagnosed as having a mental disorder that was significantly caused or aggravated by an accident/incident and this condition requires a regimen of treatment to correct.
The Working Group struggled with this issue. On the one hand, it is a legitimate concern that reportability not be manipulated by encouraging occupational clinics to substitute a non-prescription medication when a prescription medication is indicated. That result, however, may be more humane than a circumstance in which the medical provider is encouraged not to order an appropriate dosage.
Further, in some cases, physicians may direct the use of patent medicines simply to save the employee the time to fill a prescription or simply to hold down costs to the insurer; and the physician may find the over-the-counter preparation to be more suitable in terms of formulation, including rate of release and absorption.
As in the case of recommended days away from work not taken (discussed above), the Working Group settled on a compromise position. Where the treating health care professional directs in writing the use of a non-prescription preparation at a dose at least that of the minimum prescribed amount, and no other reporting criteria apply, the railroad would report this as a special case (“covered data” under §§ 225.5 and 225.39). FRA will explore whether it is practical to add to Chapter 6 of the Guide, a list of commonly used over-the-counter medications, including the prescription strength for those medications. This list of over-the-counter medications would conform to OSHA's published standards. Future over-the-counter medication added by OSHA would be posted on FRA's Web site. The case would be included in aggregate data provided to the Department of Labor, but would not be included in FRA's periodic statistical summaries. FRA would have the data available to reference, and if a pattern of apparent abuse emerged, FRA could both examine the working conditions in question and also review possible further amendments to these reporting regulations.
FRA proposes to amend Chapter 7 of the Guide to include the new codes for remote control locomotive operations, and for reporting the location of a rail equipment accident/incident using longitude and latitude variables.
FRA has been faced with a number of commuter rail service accident reporting issues. For example, in reviewing accident/incident data using automated processing routines, FRA could not distinguish Amtrak's commuter activities from its intercity service, and could not always distinguish between a commuter railroad that ran part of its operation and contracted for another part of its operation with a freight railroad. FRA developed alternative strategies with the affected railroads for collecting these data to ensure that commuter rail operation accurately reflected the entire scope of operations, yet did not increase the burden of reporting for affected railroads. This issue also arose in the context of an NTSB Safety Recommendation, R-97-11, following NTSB's investigation of a collision on February 16, 1996, in Silver Spring, Maryland, between an Amtrak passenger train and a MARC commuter train. During the accident investigation, NTSB requested from FRA, a five-year accident history for commuter railroad operations. FRA was not, however, able to provide a composite accident history for some of the commuter railroad operations because some of the commuter operations were operated under contract with Amtrak and other freight railroads, and the accident data for some commuter railroads were commingled with the data of Amtrak and the other contracted freight railroads. Accordingly, NTSB's Safety Recommendation R-97-11 addressed to FRA read, “Develop and maintain separate identifiable data records for commuter and intercity rail passenger operations.”
When the RSAC Task Statement 2001-1 was presented, FRA determined that a new chapter in the Guide was needed to address NTSB's and FRA's concerns regarding commuter railroad reporting. At the initial May 2001 meeting, FRA representatives presented the issue to the Working Group. FRA representatives were tasked to develop a chapter specifically dealing with commuter rail reporting. In the August 2001 Working Group meeting, FRA presented a draft of the new chapter. A task group was formed that included representatives of Amtrak, Metra, APTA, and FRA. The new Chapter 12 was presented in November of 2001 to the entire Working Group, and the Working Group accepted the chapter in its entirety.
An FRA notice entitled, “Notification of Modification of Information Collection Requirements on Remote Control Locomotives,” says that the Special Study Blocks on the rail equipment accident report and highway-rail crossing report, as well as special codes in the narrative section of
In December of 2001, the task group initially decided to recommend modifying the “Rail Equipment Accident/Incident Report Form” (FRA F 6180.54) and the “Highway-Rail Grade Crossing Accident/Incident Report Form” (FRA F 6180.57) to add an additional block to capture RCL operations, but the task group was not able to reach consensus on the “Injury and Illness Summary Report (Continuation Sheet)” (FRA F 6180.55a).
Railroad representatives were concerned about modifying the accident/incident database with additional data elements. The FRA representatives proposed a new, modified coding scheme that utilized the Probable Reason for Injury/Illness Code field in the set of Circumstance Codes and also included some additional Event Codes and two special Job Codes.
During a subsequent Working Group meeting, a new element was added as Item 30a, “Remote Control Locomotive,” on the “Rail Equipment Accident/Incident Report” form to allow entry of one of four possible values:
“0”—Not a remotely controlled operation;
“1”—Remote control portable transmitter;
“2”—Remote control tower operation; and
“3”—Remote control portable transmitter—more than one remote control transmitter.
“A”—Train pulling—RCL;
“B”—Train pushing—RCL; and
“C”—Train standing—RCL.
Prior to 1997, the “Injury and Illness Summary Report (Continuation Sheet)” contained a field called “Occurrence Code.” The field attempted to describe what a person was doing at the time the person was injured. Often the action of the injured person was the same, but the equipment involved was different, so a different Occurrence Code was needed for each situation,
To address these concerns, the Occurrence Code field was replaced in 1997 with the Circumstance Code field. The change allowed for more flexibility in describing what the person was doing when injured. Under the broad category of Circumstance Codes, FRA had developed five subsets of codes: Physical Act; Location; Event; Tools, Machinery, Appliances, Structures, Surfaces (etc.); and Probable Reason for Injury/Illness.
During the next five years, FRA and the railroad reporting officers realized that there were still gaps in the codes. FRA proposed expanding the list of Circumstance Codes and determined that some injuries and fatalities should always be reported using a narrative. Also, some Circumstance Codes required the use of narratives. In the July 2001 Working Group meeting, the railroads noted that expanded Circumstance Codes would assist in reporting and analysis. FRA asked the railroads to provide an expanded list of Circumstance Codes for the next meeting, with the understanding that a narrative would be required when the codes did not adequately describe the incident. By the September 2001 meeting, the railroads had produced many new codes, which FRA compiled and presented at the November 2001 meeting. At that meeting, rail labor discussed RCL reporting. In the January 2002 Working Group meeting, the members reviewed the compiled list, including the special RCL codes. The Working Group made recommendations to move some of the codes to other areas. In the March 2002 Working Group meeting, a task group was formed to resolve the remaining issues with respect to codes. Specifically, the Working Group started by referring to proposed codes that pertained to switching operations. These codes were Probable Reason codes that came out of a separate FRA Working Group on Switching Operations Fatality Analysis (SOFA). The task group revised the SOFA codes and added them to Appendix F. The entire Working Group then reviewed and voted to approve all of the task force's proposed codes.
The Working Group converted the Form FRA F 6180.78, “Notice to Railroad Employee Involved in Rail Equipment Accident/Incident Attributed to Employee Human Factor [and] Employee Statement Supplementing Railroad Accident Report,” and Form FRA F 6180.81, “Employee Human Factor Attachment” to question-and-answer format, and simplified the language so that they are easier to understand. One issue raised was whether a specific warning related to criminal liability for falsifying the form should be included on the form. Some Working Group members believed that a warning would only serve to intimidate employees from filling out the form. FRA noted that it was important to put the warning on the form to deter employees from falsifying information on the forms. FRA also noted that the same warning would be included on the form for reporting officers. Given that labor representatives felt strongly that the language was too intimidating, it was agreed that a general warning would be included on the back of the form, and that the warning would not specifically state the penalties for falsifying information on the form. In addition, the Working Group agreed to propose to modify Form FRA F 6180.98 to include an item for the county in which the accident/incident occurred.
Following discussions of this issue, the Working Group agreed that provision could be made for voluntarily reporting the latitude and longitude of a rail equipment accident/incident, a trespasser incident, and an employee fatality. FRA proposes to add blocks to the Form FRA F 6180.54 and Form FRA F 6180.55a for this information. The reason FRA is seeking to gather this information is to better determine if there is a pattern in the location of
One of the tasks addressed by the Working Group was to define “under investigation” as that term is used in Cause Code M505, “Cause under investigation (Corrected report will be forwarded at a later date),” and to put that definition in Chapter 7 of the Guide, under subpart C, “Instructions for Completing Form FRA F 6180.54,” block 38, “Primary Cause Code” and Appendix C of the Guide. Currently, many accidents/incidents of a significant nature,
To provide finality to the process of investigating an investigation, the Working Group agreed that “under investigation” would mean under active investigation by the railroad. When the railroad has completed its own investigation and received all laboratory results the railroad must make a “good faith” determination of the primary cause of the accident, any contributing causes, and their proper codes. The railroad must not wait for FRA or NTSB to complete its investigation before assigning a cause code. After FRA or NTSB completes its investigation, the railroad may choose to amend the cause code on the accident report. Accordingly, FRA proposes to revise the Guide to show that the meaning of the cause code in question has been changed to “Cause under active investigation by reporting railroad (Amended report will be forwarded when reporting railroad's active investigation has been completed).”
In addition, the Working Group agreed to add a new code “M507” to denote accidents/incidents in which the investigation is complete but the cause of the accident/incident could not be determined. If a railroad uses this code, the railroad would be required to include in the narrative block, an explanation for why the cause of the accident/incident could not be determined.
The duty to report work-related illnesses under the current rule has occasioned concern and disagreement about not only whether an illness exists, but, more importantly and more controversially, whether the illness is work-related. Often an employee's doctor's opinion is that an employee's illness is work-related, while the railroad's doctor's opinion is that the illness is not work-related. In providing guidance in how a reporting officer is to determine whether an illness is work-related, OSHA's Final Rule states,
[the employer] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Sec. 1904.5(b)(2) applies.
Accordingly, OSHA has concluded that the determination of work-relatedness is best made by the employer, as it has been in the past. Employers are in the best position to obtain the information, both from the employee and the workplace, that is necessary to make this determination. Although expert advice may occasionally be sought by employers in particularly complex cases, the final rule provides that the determination of work-relatedness ultimately rests with the employer.
Following publication of this Final Rule, the National Association of Manufacturers (NAM) filed a First Amended Complaint challenging portions of the Final Rule. As part of the NAM-OSHA settlement agreement, published in the
Section 1904.5(b)(2) states that a case is not recordable if it “involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.” This language is intended as a restatement of the principle expressed in 1904.5(a), described above. Regardless of where signs or symptoms surface, a case is recordable only if a work event or exposure is a
Section 1904.5(b)(3) states that if it is not obvious whether the precipitating event or exposure occurred in the work environment or elsewhere,
The other part of the problem of determining whether an injury or illness is work-related is “who decides.” The Working Group proposed to adopt OSHA's Final Rule definition of “most authoritative” stated in OSHA's Final Rule. In the context of discussing how to determine whether or not a case is new, OSHA's Final Rule states,
If you receive recommendations from two or more physicians or other licensed health care professionals, you must make a decision as to which recommendation is the most authoritative (best documented, best reasoned, or most [persuasive]) and record the case based upon that recommendation.
The question of who is the “most authoritative” physician or other licensed health care professional arises in a number of contexts when there is a conflict of medical opinion. Conflicting medical opinions, often between an employee's physician and a railroad's company physician, arise
An additional issue resolved by the Working Group was to propose to amend the Guide's instructions for completing blocks 40-43 of FRA Form F6180.54 to make it clear that the job function of the employee, rather than the employee's job title, would be used to determine the employee's job title for reporting purposes, when the railroad gives the employee a job title other than “engineer,” “fireman,” “conductor,” or “brakeman.”
Under OSHA's Final Rule, the term “recording” is used. Under FRA's regulations and Guide, the term “reporting” is used. Since FRA has always used the term “reporting” and since one of the statutes authorizing part 225 uses the term “reporting,” FRA proposes to continue to use in its regulations and Guide the term “reporting” instead of “recording.”
For purposes of part 219, “accident or incident reportable under Part 225” would be defined to exclude a case that is classified as “covered data” under § 225.5 of this chapter (
The employee has been involved in an
The definition of “reportable injury” would be revised to mean an injury reportable under part 225 of this chapter except for an injury that is classified as “covered data” under § 225.5 of this chapter. The term “reportable injury” appears in three provisions of part 219, each of which describes an event that triggers the requirement for post-accident toxicological testing: (i) A “major train accident” that includes a release of hazardous material lading with a “reportable injury” resulting from the release; (ii) an “impact accident” involving damage above the current reporting threshold and resulting in a “reportable injury”; and (iii) a passenger train accident with a “reportable injury” to any person. §§ 219.201(a)(1)(ii)(B), 219.201(a)(2), and 219.201(a)(4).
The reason that “accident or incident reportable under Part 225” and “reportable injury” would not, for purposes of part 219, include covered data cases is that while these cases are of importance from the standpoint of rail safety analysis and therefore reportable, they are, nevertheless, comparatively less severe than fatalities, other injuries and illnesses and, as such, should not trigger alcohol and drug testing or related requirements and sanctions.
“Accident/incident” would be redefined to conform to OSHA's Final Rule. Under FRA's current rule, “accident/incident” is defined in part as,
(3) Any event arising from the operation of a railroad which results in:
(i) Death to any person;
(ii) Injury to any person that requires medical treatment;
(iii) Injury to a railroad employee that results in:
(A) A day away from work;
(B) Restricted work activity or job transfer; or
(C) Loss of consciousness; or
(4) Occupational illness.
“Accident/incident” means:
(3) Any event or exposure arising from the operation of a railroad, if the event or exposure is a discernable cause of any of the following, and the following is a new case or a significant aggravation of a pre-existing injury or illness:
(i) Death to any person;
(ii) Injury to any person that results in medical treatment;
(iii) Injury to a railroad employee that results in:
(A) A day away from work;
(B) Restricted work activity or job transfer; or
(C) Loss of consciousness;
(iv) Occupational illness of a railroad employee that results in any of the following:
(A) A day away from work;
(B) Restricted work activity or job transfer;
(C) Loss of consciousness; or
(D) Medical treatment;
(v) A significant injury to or significant illness of a railroad employee diagnosed by a physician or other licensed health care professional even if it does not result in death, a day away from work, restricted work activity or job transfer, medical treatment, or loss of consciousness;
(vi) An illness or injury that meets the application of the following specific case criteria:
(A) A needlestick or sharps injury to a railroad employee;
(B) Medical removal of a railroad employee;
(C) Occupational hearing loss of a railroad employee;
(D) Occupational tuberculosis of a railroad employee; or
(E) An occupational musculoskeletal disorder of a railroad employee that is independently reportable under one or more of the general reporting criteria.
The phrase “discernable cause” would be included in the proposed definition, and the words “or exposure” would be added before the word “arising.” The addition of the word “discernable” is intended to take into account the OSHA-NAM settlement agreement, which also uses “discernable” to describe “cause.” As defined in
The Working Group agreed that the definition of “accident/incident” also needed to include that the case had to be a new case, or a significant aggravation of a pre-existing condition. This reference to a “new case” was added to conform to § 1904.4 of OSHA's Final Rule, and the reference to “significant” aggravation of a pre-existing condition was added to conform to the OSHA-NAM settlement agreement.
The inclusion of “death to any person” would remain the same. “[I]njury to any person which requires medical treatment” would be changed to “Injury to any person that results in medical treatment'; no substantive change is proposed. Injury to a railroad employee that results in “(A) A day away from work; (B) Restricted work activity or job transfer; or (C) Loss of consciousness' would not change. FRA would, however, change the existing rule that all occupational illnesses of railroad employees are to be reported and require that they be reported only under certain enumerated conditions. This would also make it clear that an occupational illness of an employee to a contractor to a railroad is not to be reported. Further, FRA proposes to add to its criteria for reportability “significant injuries or illnesses,” “needlestick or sharps injuries,” “medical removal,” “occupational hearing loss,” “occupational tuberculosis,” and an independently reportable “occupational musculoskeletal disorder” to railroad employees to track OSHA's Final Rule. Finally, as previously discussed, a three-tier definition of “event or exposure arising from the operation of a railroad” would be added.
The definition of “accountable injury or illness” would be revised by substituting the words “railroad employee” for “railroad worker,” and by adding the word “discernably” before the word “associated.” These are technical changes to bring the language into conformity with the rest of the regulatory text.
The definition of “day away from work” currently means “any day subsequent to the day of the injury or diagnosis of occupational illness that a railroad employee does not report to work for reasons associated with his or her condition.” § 225.5. Under the Guide, “If the days away from work were entirely unconnected with the injury (
The definition of “day of restricted work activity” would be revised for the same reason that FRA is proposing to revise the definition of “day away from work.”
The definition of “event or exposure arising from the operation of a railroad” would be added to include, (1) with respect to a person who is on property owned, leased, or maintained by the railroad, an activity of the railroad that is related to the performance of its rail transportation business or an exposure related to the activity; (2) with respect to an employee of the railroad (whether on or off property owned, leased or maintained by the railroad), an activity of the railroad that is related to the performance of its rail transportation business or an exposure related to the activity; and (3) with respect to a person who is not a railroad employee and not on property owned, leased, or maintained by the railroad—(i) a train accident; a train incident; a highway-rail crossing accident/incident involving the railroad; or (ii) a release of a hazardous material from a railcar in the railroad's possession or a release of other dangerous commodity that is related to the performance of the railroad's rail transportation business. Accordingly, with respect to a person who is not a railroad employee and not on property owned, leased, or maintained by the railroad, the definition of “event or exposure arising from the operation of a railroad” is more narrow, covering a more limited number of circumstances than for persons who are either on railroad property, or for railroad employees whether on or off property owned, leased or maintained by the railroad. The justification for narrowing the set of circumstances in which a railroad would be required to report certain injuries and illnesses for events that occur off railroad property is because it is difficult for railroads to know about and follow up on injuries to persons who are not railroad employees. Even more so for persons who are not employees to contractors to a railroad, a reporting railroad would have difficulty tracking, for example, a slip and fall case of a passenger, who may subsequently seek medical treatment from his or her doctor, but not report this to the railroad. Railroads simply have more limited opportunity to know about injuries and illnesses to persons other than those who are injured on their property or who are employed by the railroad. Accordingly, injuries to such persons would not be considered for reporting purposes as events or exposures arising from the operation of the railroad.
The definition of “medical treatment” would be revised as discussed earlier in the preamble, to conform generally to OSHA's new definition under 29 CFR 1904.7(b)(5)(i) of “medical treatment.” The proposed definition reads,
“General reportability criteria” would mean the criteria set forth in § 225.19(d)(1)-(5).
“Medical removal” would be defined as it is described in OSHA's recording criteria under 29 CFR 1904.9 for medical removal cases. “Medical removal” refers to removing an employee from a work location because that location has been determined to be a health hazard. FRA proposes that this definition would change automatically if OSHA elected to revise its recording criteria.
“Needlestick and sharps injury” and “new case” would be defined in general conformity with OSHA's definitions of these terms under 29 CFR 1904.8 and 1904.6, respectively. “Privacy concern case” would be defined as in 29 CFR 1904.29, except that FRA would categorically exclude MSDs from privacy concern cases. As discussed in section “III.G.1.,” above, FRA seeks comment on whether or not FRA should adopt this exclusion, especially if OSHA's proposed January 1, 2004, delay takes effect, but in either case. FRA also seeks comment on whether it should adopt the proposed exclusion of MSDs from privacy concern cases as a fixed approach beginning on the effective date of FRA's final rule or whether FRA should “float” with OSHA,
“Occupational hearing loss” would be defined as OSHA currently defines it under 29 CFR 1904.10 for calendar year 2002. As discussed in section “III.D.1.,” above, FRA seeks comment on whether FRA should adopt OSHA's new approach for calendar year 2003 as its fixed approach, beginning on the effective date of FRA's final rule, or whether FRA should diverge from OSHA and continue to enforce OSHA's current approach (which was approved by the Working Group and the RSAC and is the same as FRA's current approach) as a fixed approach beginning on the effective date of FRA's final rule.
The definition of “occupational illness” has been revised to make it clear that only certain occupational illnesses of a person classified under Chapter 2 of the Guide as a Worker on Duty—Employee are to be reported. Contrarily, under the current definition of “occupational illness” other categories of persons, such as Worker on Duty—Contractor, are included in the definition, but illnesses to those persons are not reportable because § 225.19(d)(4) limits the reportability of occupational illnesses to those of “a railroad employee.”
“Occupational musculoskeletal disorder” would be defined essentially as it is set forth by OSHA in 29 CFR 1904.12. One of the most common forms of occupational musculoskeletal disorder is Carpal Tunnel Syndrome and other repetitive motion disorders. Under 1904.12 of its January 19, 2001, Final Rule, OSHA defines musculoskeletal disorders (MSDs) as:
“Occupational tuberculosis” would be defined in general conformity with OSHA's recording criteria under 29 CFR 1904.11 for work-related tuberculosis cases. The word “occupational” would be included in the term because the term is intended to cover only the occupational illness and it would be confusing to define simply “tuberculosis” when the unmodified term would seem to call for medical definition of tuberculosis in general.
“Significant change in the number of reportable days away from work” would be defined as a ten-percent or greater change in the number of days away from work that the railroad would have to report. FRA decided on ten percent as the threshold so that railroads would not have to submit amended reports for
For clarification of the terms “Significant illness” and “Significant injury”, see discussion earlier in section “III.D.1.” of the preamble, above.
Currently, § 225.9 requires a railroad to report immediately by telephone any accident/incident arising from the operation of the railroad that results in the death of a railroad employee or railroad passenger or the death or injury of five or more persons. FRA proposes an amendment to this section, as recommended by the Working Group, to add new circumstances under which a railroad is to telephonically report and to clarify existing procedures for telephonic reporting of the expanded list of events.
Proposed subsection (a) lists the events that a railroad would be required to report telephonically. In proposed subsection (a)(1), “Certain deaths or injuries,” FRA proposes that each railroad must report immediately, whenever it learns of the occurrence of an accident/incident that arose from the operation of the railroad, or an event or exposure that may have arisen from the operation of the railroad, that has certain specified consequences. FRA proposes to use the phrase “may have arisen” in the proposed regulatory text, instead of keeping the current language “arising from the operation of a railroad,” because a railroad may not learn for some time that a particular event in fact arose from the operation of the railroad. By stating that a railroad must report an event that “may” have arisen from the operation of the railroad, FRA is assured to capture a broader group of cases. For example, if a railroad employee dies of a heart attack on the railroad's property, the railroad may not know for weeks, following a coroner's report, what the cause of death was, and whether the death was work-related. This case might not get immediately reported because the railroad did not immediately learn that the death arose out of the operation of a railroad. Under the proposed change, if the death “may” have arisen out of the operation of the railroad, the case would be immediately reported, permitting FRA to commence its investigation in a timely manner. Even when death is ultimately determined to be caused by a coronary event, for instance, it is appropriate to inquire whether unusual workplace stressors (
In proposed subsection (a)(2), FRA would capture certain train accidents or train incidents, even if death or injury does not necessarily occur as a result of the accident or incident. Currently, FRA does not require telephonic reporting of certain train accidents or train incidents
(i) A train accident that results in serious injury to two or more train crewmembers or passengers requiring admission to a hospital;
(ii) A train accident resulting in evacuation of a passenger train;
(iii) A fatality at a highway-rail grade crossing as a result of a train accident or train incident;
(iv) A train accident resulting in damage (based on a preliminary gross estimate) of $150,000, to railroad and nonrailroad property; or
(v) A train accident resulting in damage of $25,000 or more to a passenger train and railroad and nonrailroad property.
In proposed subsection (a)(3), FRA would require telephonic reporting of incidents in which reportable derailment or collision occurs on, or fouls, a line used for scheduled passenger service. This final provision would permit more timely initiation of investigation in cases where the underlying hazards involved could threaten the safety of passenger operations.
For clarification of other aspects of this proposed section, see discussion at section “III.C.” of this preamble, above.
FRA proposes to amend subsection (d), “Group III, “Death, injury, occupational illness.” See prior discussion in section-by-section analysis of the definition of “accident/incident” and “event or exposure arising from the operation of a railroad.” Proposed 225.5.
FRA proposes to make technical amendments to § 225.23(a) simply to bring it into conformity with the rest of the proposed regulatory text.
FRA proposes to amend this section by revising subsection 225.25(h)(15) to apply to “privacy concern cases.” Accordingly, under the proposed subsection, a railroad is permitted not to post information on an occupational injury or illness that is a “privacy concern case.” “Privacy concern case” would be defined in proposed § 225.5.
In connection with the requirements for reporting employee illness/injury cases exclusively resulting from a written recommendation of a physician or other licensed health care provider (POLHCP) for time off when the employee instead returned to work, or a written recommendation for a work restriction that was not imposed, and in connection with the provision for special reporting of cases exclusively resulting from the direction of a POLHCP in writing to take a non-prescription medication at prescription dose, FRA proposes to express its policy that these cases would not be included in FRA's regular statistical summaries. The data are requested by the Department of Labor to ensure comparability of employment-related safety data across industries. The data may also be utilized for other purposes as the need arises, but they would not be reported in FRA's periodic statistical summaries for the railroad industry.
FRA proposes a minor change to its locomotive engineer qualifications regulations, which uses a term from part 225. In particular, § 240.117(e)(2) of the locomotive engineer qualifications regulations defines one of the types of violations of railroad rules and practices for the safe operation of trains that is a basis for decertifying a locomotive engineer: failures to adhere to the conditional clause of a restricted speed rule “which cause reportable accidents or incidents under part 225 of this chapter. * * *” This proposed amendment would create an exception for accidents or incidents that are classified as “covered data” under proposed part 225. “Covered data” would be defined as accidents or incidents that are reportable only because a physician or other licensed health care professional recommended in writing that a railroad employee take one or more days away from work, that
This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979). FRA has prepared and placed in the docket a regulatory evaluation addressing the economic impact of this rule. Document inspection and copying facilities are available at 1120 Vermont Avenue, NW., 7th Floor, Washington, DC 20590. Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590. Access to the docket may also be obtained electronically through the Web site for the DOT Docket Management System at
As part of the regulatory impact analysis, FRA has assessed quantitative measurements of costs and a qualitative discussion of the benefits expected from the adoption of this proposed rule. Over a 20-year period, the Present Value (PV) of the estimated costs is $410 thousand, and the PV of the estimated benefits is $612 thousand.
The major costs anticipated from adopting this proposed rule include those incurred in complying with additional OSHA-conformity reporting requirements, such as the covered data cases. Additional reporting burdens will also occur from an increase in telephonic reporting, and from the reporting of claimed occupational illnesses cases by railroads. Finally, there are costs associated with the familiarization of the railroad reporting officers with the revised
The major benefits anticipated from implementing this proposed rule include savings from a simplification in the reporting of occupational injuries due to a new definition of “first aid.” This benefit will produce a savings in the decision making process for both reportable injuries and accountable injuries. Additional savings would also occur from a reduction in the average burden time to complete a Rail Equipment Accident/Incident Report. This savings is largely a product of a revision to the train accident cause codes. The revised casualty circumstance codes would produce a savings from a reduction in the use of the narrative block on the railroad injury and illness reports. Finally, railroads should receive a savings from a simplification in counting the number of days away from work or of restricted work activity. This includes a savings due to a reduction from 365 to 180 days for the maximum number of days that the railroads would have to track and report injuries and illnesses. FRA also anticipates that there would also be qualitative benefits from this rulemaking from better data or information on railroad reports, and the increased utility that the additional data codes would provide to future analysis.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires a Federal agency to review its proposed and final rules in order to assess their impact on small entities (small businesses, small organizations, and local governments). If the agency determines that its proposed rule would have a significant economic impact on a substantial number of small entities, then the agency must prepare an Initial Regulatory Flexibility Analysis (IRFA). If the agency determines the opposite, then the agency must certify that determination; an IRFA may also provide the basis for the agency's determination that the proposed rule would not have a significant economic impact on a substantial number of small entities.
“Small entity” is defined in 5 U.S.C. 601 as including a small business concern that is independently owned and operated, and is not dominant in its field of operation. The Small Business Administration (SBA) stipulates in its “Size Standards” that the largest a railroad business firm that is “for-profit” may be, and still be classified as a “small entity” is 1,500 employees for “Line-Haul Operating” Railroads, and 500 employees for “Switching and Terminal Establishments.” SBA's “size standards” may be altered by Federal agencies on consultation with SBA and in conjunction with public comment. Pursuant to Section 312 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published an interim policy that formally establishes “small entities” as being railroads that meet the line-haulage revenue requirements of a Class III railroad. 62 FR 43024, Aug. 11, 1997. Currently, the revenue requirements are $20 million or less in annual operating revenue. The $20 million limit is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment.
Like the Regulatory Flexibility Act of 1980, a recently published executive order also establishes rulemaking procedures related to small entities. Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” requires in part that a Federal agency notify the Chief Counsel for Advocacy of the SBA of any of its draft rules that would have a significant economic impact on a substantial number of small entities, to consider any comments provided by the SBA, and to include in the preamble to the final rule the agency's response to any written comments by the SBA unless the agency head certifies that including such material would not serve the public interest. 67 FR 53461 (Aug. 16, 2002).
In accordance with the Regulatory Flexibility Act of 1980, FRA has prepared and placed in the docket an IRFA, which assesses the small entity impact of this proposed rule. Document inspection and copying facilities are available at 1120 Vermont Avenue, NW., 7th Floor, Washington, DC 20590. Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. FRA-2002-13221, Notice No. 1.
As stated in the IRFA, FRA has determined that there are over 650 small railroads that could potentially be affected by this proposal; however, the
The economic impacts from this proposed regulation are primarily a result of an increase in casualty reporting due to the reporting of some casualties, due to OSHA recordkeeping requirements which this rulemaking is adopting into FRA reporting requirements. In addition, the railroad industry will incur small burdens for an increase in telephonic reporting of some accident/incidents, and for modifications made to computer software and databases, however, FRA does not anticipate that any of these burdens will be imposed on small entities due to the decreased likelihood of a casualty occurring on a small railroad. The computer-based burdens are not expected to impact small entities either since most small railroads report using personal computer (PC)-based software provided by FRA. It is estimated by FRA that small entities will incur five percent or less of the total costs for this proposed rulemaking.
It is important to note that this proposed rule would also reduce recordkeeping burdens by simplifying the method used to count employee absences and work restrictions, and by reducing the requirement to keep track of lengthy employee absences. The proposed rule would also simplify reporting requirements with clarifying definitions for things such as “medical treatment” and “first aid.” Train accident cause codes and injury occurrence codes would be added, so that accident and injury data would be more precise and the need for some narratives would be eliminated.
This proposed rule would not provide alternative treatment for small entities in the regulation or reporting requirements. However, small railroads that report using PC-based software will not be burdened with any costs for modifying or changing the software, since FRA provides this software free to all railroads that utilize it. It is important to note that just by the fact that small railroads report fewer accidents/incidents and casualties, they are less likely to be burdened by the proposed rule.
The IRFA concludes that this proposed rule would not have a significant economic impact on a substantial number of small entities; therefore, FRA certifies that this proposed rule is not expected to have a significant economic impact on a substantial number of small entities. For the same reason, consistent with Executive Order 13272, the draft rule has not been submitted to the SBA. However, FRA will consider any comments submitted by the SBA in developing the final rule. In order to determine the significance of the economic impact for the final rule's Regulatory Flexibility Assessment (RFA), FRA invites comments from all interested parties concerning the potential economic impact on small entities caused by this proposed rule. The Agency will consider the comments and data it receives—or lack of comments and data—in making a decision on the RFA for the final rule.
The information collection requirements in this proposed rule will be submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning the following issues: whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-493-6292.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 17, Washington, DC 20590.
OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the
FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the
Executive Order 13132, entitled, “Federalism,” issued on August 4, 1999, requires that each agency “in a separately identified portion of the preamble to the regulation as it is to be issued in the
When issuing the proposed rule in this proceeding, FRA has adhered to Executive Order 13132. FRA engaged in the required Federalism consultation during the early stages of the rulemaking through meetings of the full RSAC, on which several representatives of groups representing State and local officials sit. To date, FRA has received only one concern about the Federalism implications of this rulemaking from these representatives, regarding whether or not FRA's notification requirements would preempt State accident notification requirements. Although our regulations under part 225 preempt States from prescribing accident/incident reporting requirements, there is nothing in our regulations that preempts States from having their own, perhaps even different, accident notification requirements:
Issuance of these regulations under the federal railroad safety laws and regulations preempts States from prescribing accident/incident reporting requirements. Any State may, however, require railroads to submit to it copies of accident/incident and injury/illness reports filed with FRA under this part, for accident/incidents and injuries/illnesses which occur in that State.
Additionally, section 20902 of title 49 of the United States Code, which authorizes the Secretary of Transportation to investigate certain accidents and incidents, provides: “[i]f the accident or incident is investigated by a commission of the State in which it occurred, the Secretary, if convenient, shall carry out the investigation at the same time as, and in coordination with, the commission's investigation.” This section contemplates that States have an
FRA has evaluated this regulation in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
(c) Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment. *** The following classes of FRA actions are categorically excluded:
(20) Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation.
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The proposed rule would not result in the expenditure, in the aggregate, of $100,000,000 or more in any one year, and thus preparation of such a statement is not required.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the
Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad safety, Reporting and recordkeeping requirements, Safety, Transportation.
Accident investigation, Penalties, Railroad safety, Railroads, Reporting and recordkeeping requirements.
Administrative practice and procedure, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FRA proposes to amend Chapter II, Subtitle B of Title 49, Code of Federal Regulations, as follows:
1. The authority citation for part 219 continues to read as follows:
49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49(m).
2. Section 219.5 is amended by adding a definition of
3. The authority citation for part 225 is revised to read as follows:
49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.
4. Section 225.5 is amended as follows:
a. By revising paragraph (3) of the definition of the term
b. By revising the definitions of the terms
c. By removing the term
d. By adding definitions of
The revised and added text reads as follows:
* * *
(3) Any event or exposure arising from the operation of a railroad, if the event or exposure is a discernable cause of one or more of the following, and the following is a new case or a significant aggravation of a pre-existing injury or illness:
(i) Death to any person;
(ii) Injury to any person that results in medical treatment;
(iii) Injury to a railroad employee that results in:
(A) A day away from work;
(B) Restricted work activity or job transfer; or
(C) Loss of consciousness;
(iv) Occupational illness of a railroad employee that results in any of the following:
(A) A day away from work;
(B) Restricted work activity or job transfer;
(C) Loss of consciousness; or
(D) Medical treatment;
(v) Significant injury to or significant illness of a railroad employee diagnosed by a physician or other licensed health care professional even if it does not result in death, a day away from work, restricted work activity or job transfer, medical treatment, or loss of consciousness;
(vi) Illness or injury that meets the application of the following specific case criteria:
(A) Needlestick or sharps injury to a railroad employee;
(B) Medical removal of a railroad employee;
(C) Occupational hearing loss of a railroad employee;
(D) Occupational tuberculosis of a railroad employee; or
(E) Musculoskeletal disorder of a railroad employee that is independently reportable under one or more of the general reporting criteria.
(1) The employee take one or more days away from work when the employee instead returned to work;
(2) The employee's work activity be restricted for one or more days when the work restriction was not imposed; or
(3) The employee take over-the-counter medication at a dosage equal to or greater than the minimum prescription strength, whether or not the employee takes the medication.
(1) With respect to a person who is on property owned, leased, or maintained by the railroad, an activity of the railroad that is related to the performance of its rail transportation business or an exposure related to the activity;
(2) With respect to an employee of the railroad (whether on or off property owned, leased or maintained by the railroad), an activity of the railroad that is related to the performance of its rail transportation business or an exposure related to the activity; and
(3) With respect to a person who is not an employee of the railroad and not on property owned, leased, or maintained by the railroad—an event or exposure directly resulting from the following railroad operations:
(i) A train accident, a train incident, or a highway-rail crossing accident or incident involving the railroad; or
(ii) A release of a hazardous material from a railcar in the possession of the railroad or of another dangerous commodity that is related to the performance of the railroad's rail transportation business.
(1) Any injury or illness to an intimate body part or the reproductive system;
(2) An injury or illness resulting from a sexual assault;
(3) Mental illnesses;
(4) HIV infection, hepatitis, or tuberculosis;
(5) Needlestick and sharps injuries; and
(6) Other illnesses, if the employee independently and voluntarily requests in writing to the railroad reporting officer that his or her injury or illness not be posted.
5. Section 225.9 is revised to read as follows:
(a)
(i) Death of a rail passenger or a railroad employee;
(ii) Death of an employee of a contractor to a railroad performing work for the railroad on property owned, leased, or maintained by the contracting railroad; or
(iii) Death or injury of five or more persons.
(2)
(i) A train accident that results in serious injury to two or more train crewmembers or passengers requiring their admission to a hospital;
(ii) A train accident resulting in evacuation of a passenger train;
(iii) A fatality at a highway-rail grade crossing as a result of a train accident or train incident;
(iv) A train accident resulting in damage (based on a preliminary gross estimate) of $150,000, to railroad and nonrailroad property; or
(v) A train accident resulting in damage of $25,000 or more to a passenger train and railroad and nonrailroad property.
(3)
(i) That involves a collision or derailment on a main line that is used for scheduled passenger service; or
(ii) That fouls a main line used for scheduled passenger service.
(b)
(2) Through one of the same telephone numbers (800-424-0201), the National Response Center (NRC) also receives notifications of rail accidents for the National Transportation Safety Board (49 CFR part 840) and the Research and Special Programs Administration of the U.S. Department of Transportation (Hazardous Materials Regulations, 49 CFR 171.15). FRA Locomotive Safety Standards require certain locomotive accidents to be reported by telephone to the NRC at the same toll-free number (800-424-0201). 49 CFR 229.17.
(c)
(1) Name of the railroad;
(2) Name, title, and telephone number of the individual making the report;
(3) Time, date, and location of the accident/incident;
(4) Circumstances of the accident/incident;
(5) Number of persons killed or injured; and
(6) Available estimates of railroad and non-railroad property damage.
(d)
(2) NTSB has other specific requirements regarding the timeliness of reporting.
6. In section 225.19, paragraph (d) is revised to read as follows:
(d)
(1) Death to any person;
(2) Injury to any person that results in medical treatment;
(3) Injury to a railroad employee that results in:
(i) A day away from work;
(ii) Restricted work activity or job transfer; or
(iii) Loss of consciousness;
(4) Occupational illness of a railroad employee that results in any of the following:
(i) A day away from work;
(ii) Restricted work activity or job transfer;
(iii) Loss of consciousness; or
(iv) Medical treatment;
(5) Significant injury to or significant illness of a railroad employee diagnosed by a physician or other licensed health care professional even if it does not result in death, a day away from work, restricted work activity or job transfer, medical treatment, or loss of consciousness;
(6) Illness or injury that meets the application of the following specific case criteria:
(i) Needlestick or sharps injury to a railroad employee;
(ii) Medical removal of a railroad employee;
(iii) Occupational hearing loss of a railroad employee;
(iv) Occupational tuberculosis of a railroad employee; or
(v) Musculoskeletal disorder of a railroad employee that is independently reportable under one or more of the general reporting criteria.
7. In section 225.21, a new paragraph (j) is added to read as follows:
(j) Form FRA 6180.107—
(i) For which there is insufficient information to determine whether the illness is work-related;
(ii) For which the railroad has made a preliminary determination that the illness is not work-related; or
(iii) For which the railroad has made a final determination that the illness is not work-related.
(2) For any case determined to be reportable, the designation “illness claimed to be work-related” shall be removed, and the record shall be transferred to the reporting officer for retention and reporting in the normal manner.
(3) In the event the narrative block (similar to Form FRA F 6180.98, block 39) indicates that the case is not reportable, the explanation contained on that block shall record the reasons the railroad determined that the case is not reportable, making reference to the most authoritative information relied upon.
(4) Although the Form FRA F 6180.107 may not include all supporting documentation, such as medical records, the Form FRA F 6180.107 shall note the name, title, and address of the custodian of those documents and where the supporting documents are located so that it is readily accessible to FRA upon request.
8. In section 225.23, paragraph (a) is revised to read as follows:
(a) Any reportable death, injury, or illness of an employee arising from an accident/incident involving joint operations must be reported on Form FRA F 6180.55a by the employing railroad.
9. Section 225.25 is amended by revising paragraphs (b)(6), (b)(16), (b)(25)(v), (e)(8), (e)(24), (h)(15), and new paragraphs (b)(25)(xi), (b)(25)(xii) and (i) are added to read as follows:
(b) * * *
(6) Employee identification number or, in the alternative, Social Security Number of railroad employee;
(16) Whether employee was on premises when injury, illness, or condition occurred;
(25) * * *
(v) If one or more days away from work, provide the number of days away and the beginning date;
(xi) Significant injury or illness of a railroad employee;
(xii) Needlestick or sharps injury to a railroad employee, medical removal of a railroad employee, occupational hearing loss of a railroad employee, occupational tuberculosis of a railroad employee, or musculoskeletal disorder of a railroad employee which musculoskeletal disorder is reportable under one or more of the general reporting criteria.
(e) * * *
(8) County and nearest city or town;
(24) Persons injured, persons killed, and employees with an occupational illness, broken down into the following classifications: worker on duty—employee; employee not on duty; passenger on train; nontrespasser-on railroad property; trespasser; worker on duty—contractor; contractor—other; worker on duty—volunteer; volunteer—other; and nontrespasser-off railroad property;
(h) * * *
(15) The railroad is permitted not to post information on an occupational injury or illness that is a privacy concern case.
(i)
(i) For which there is insufficient information to determine whether the illness is work-related;
(ii) For which the railroad has made a preliminary determination that the illness is not work-related; or
(iii) For which the railroad has made a final determination that the illness is not work-related.
(2) For any case determined to be reportable, the designation “illness claimed to be work-related” shall be removed, and the record shall be transferred to the reporting officer for retention and reporting in the normal manner.
(3) In the event the narrative block (similar to Form FRA F 6180.98, block 39) indicates that the case is not reportable, the explanation contained on that block shall record the reasons the railroad determined that the case is not reportable, making reference to the most authoritative information relied upon.
(4) In the event the railroad must amend the record with new or additional information, the railroad shall have up until December 1 of the next calendar year for reporting accidents/incidents to make the update.
(5) Although the Alternative Record for Illnesses Claimed to be Work-Related (or the alternate railroad-designed form) may not include all supporting documentation, such as medical records, the alternative record shall note the custodian of those documents and
10. Section 225.33 is amended by adding new paragraph (a)(11) to read as follows:
(a) * * *
(11) In the case of the Form FRA F 6180.107 or the alternate railroad-designed form, a statement that specifies the name, title, and address of the custodian of these records, all supporting documentation, such as medical records, and where the documents are located.
11. Section 225.35 is amended by designating the first paragraph as paragraph (a), designating the second paragraph as paragraph (b), and adding after the fourth sentence of newly designated paragraph (b) the following two sentences:
(b) * * * The Form FRA F 6180.107 or the alternate railroad-designed form need not be provided at any railroad establishment within 4 hours of a request. Rather, the Form FRA F 6180.107 or the alternate railroad-designed form must be provided upon request, within five business days, and may be kept at a central location, in either paper or electronic format. * * *
12. Section 225.39 is added to read as follows:
FRA will not include covered data (as defined in § 225.5) in its periodic summaries of data on the number of occupational injuries and illnesses.
13. The authority citation for part 240 is revised to read as follows:
49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.
14. In section 240.117, paragraph (e)(2) is revised to read as follows:
(e) * * *
(2) Failure to adhere to limitations concerning train speed when the speed at which the train was operated exceeds the maximum authorized limit by at least 10 miles per hour. Where restricted speed is in effect, railroads shall consider only those violations of the conditional clause of restricted speed rules (