Food and Nutrition Service
Forest Service
Rural Utilities Service
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Air Force Department
Federal Energy Regulatory Commission
Presidential Documents
Food and Drug Administration
Land Management Bureau
Minerals Management Service
National Park Service
Reclamation Bureau
Justice Programs Office
Employment Standards Administration
Copyright Office, Library of Congress
Food and Drug Administration
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Transportation Statistics Bureau
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Office of Personnel Management.
Final rule.
The Office of Personnel Management is issuing final regulations concerning the rules governing payment of administratively uncontrollable overtime (AUO) pay. AUO is a form of premium pay paid to employees in positions in which the hours of duty cannot be controlled administratively and which require substantial amounts of irregular or occasional overtime work. This final rule permits agencies to pay AUO pay to an employee during a temporary assignment that would not otherwise warrant the payment of AUO pay, if the temporary assignment is directly related to a national emergency declared by the President. In determining the average hours used in computing future AUO payments, this final rule also excludes from consideration the time period for which AUO pay is paid during a temporary assignment.
March 3, 2003.
Kevin Kitchelt, (202) 606-2858; FAX: (202) 606-0824; e-mail:
On February 13, 2002, the Office of Personnel Management issued interim regulations (67 FR 6640) to permit agencies to pay AUO pay to an employee during a temporary assignment that would not otherwise warrant the payment of AUO pay, if the temporary assignment is directly related to a national emergency. We proposed that an agency should be permitted to continue to pay AUO pay for a period of not more than 30 consecutive workdays for such a temporary assignment and for a total of not more than 90 workdays in a calendar year while on such a temporary assignment. The 90-day comment period ended on April 15, 2002. We received comments from two Federal agencies and an employee association.
One agency suggested that the phrase “declared by the President” be added to the regulation at 5 CFR 550.162(g), which states that an agency may continue to pay AUO pay during a temporary assignment that would not otherwise warrant AUO pay, if the temporary assignment is directly related to a national emergency. We agree and have added the phrase “declared by the President” to 5 CFR 550.162(g).
Another agency requested that we explain the relationship between the existing 60-workday annual limitation for temporary assignments in the last paragraph of 5 CFR 550.162(c) and the new 90-workday annual limitation for temporary assignments directly related to a national emergency in 5 CFR 550.162(g). The new 90-workday annual limitation is separate from the 60-workday limitation provided in 5 CFR 550.162(c). Therefore, 150 workdays is the theoretical maximum number of workdays in a calendar year during which an agency may continue to pay AUO pay for temporary assignments provided the conditions in both 5 CFR 550.162(c) and (g) are met.
The employee association provided several comments on issues that are outside the scope of the interim regulations. We are not addressing these issues in these regulations.
The Office of Management and Budget has reviewed this rule in accordance with E.O. 12866.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.
Administrative practice and procedure, Claims, Government employees, Wages. Office of Personnel Management.
5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5545a(h)(2)(B) and (i), 5548, and 6101(c); sections 407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5 U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316.
(g) Notwithstanding paragraph (c)(1) of this section, an agency may continue to pay premium pay under § 550.151 to an employee during a temporary assignment that would not otherwise warrant the payment of AUO pay, if the temporary assignment is directly related to a national emergency declared by the President. An agency may continue to pay premium pay under § 550.151 for not more than 30 consecutive workdays for such a temporary assignment and for a total of not more than 90 workdays in a calendar year while on such a temporary assignment.
Office of Government Ethics (OGE).
Final rule.
The Office of Government Ethics is issuing this rule to designate
This amendatory rule is effective January 30, 2003, except for the removal of the listing for the International Joint Commission, United States and Canada (American Section), as set forth in amendatory instruction 3, which is effective on April 30, 2003.
Richard M. Thomas, Associate General Counsel, Office of Government Ethics; telephone: 202-208-8000, extension 1152; TDD: 202-208-8025; FAX: 202-208-8037.
The Director of OGE (Director) is authorized by 18 U.S.C. 207(h) to designate distinct and separate departmental or agency components in the executive branch for purposes of 18 U.S.C. 207(c). The representational bar of 18 U.S.C. 207(c) usually extends to the whole of any department or agency in which a former senior employee served in any capacity during the year prior to termination from a senior employee position. However, eligible senior employees may be permitted to communicate to or appear before parts of their former department or agency if one or more components of the department or agency have been designated as separate agencies or bureaus by OGE.
As specified in 5 CFR 2641.201(e)(3)(iii), the Director of OGE “shall by rule make or revoke a component designation after considering the recommendation of the designated agency ethics official.” Component designations are listed in appendix B of 5 CFR part 2641. Pursuant to the procedures prescribed in 5 CFR 2641.201(e), several departments have forwarded letters to OGE recommending the amendment of appendix B since it was last revised in 1999 (64 FR 5709-5710 (February 5, 1999)). After carefully reviewing these recommendations in light of the criteria in 18 U.S.C. 207(h) as implemented in 5 CFR 2641.201(e)(6), the Director has determined to revise appendix B as explained below.
At the recommendation of the Department of Defense (DOD), the Director is designating the National Reconnaissance Office (NRO) as a distinct and separate component of that Department. NRO is charged, under 50 U.S.C. 403-5(b)(3), with responsibility for the “continued operation of an effective unified organization for the research and development, acquisition, and operation of overhead reconnaissance systems necessary to satisfy the requirements of all elements of the intelligence community.” NRO is the sole designer, builder and operator of the United States' reconnaissance satellites. According to DOD, NRO was omitted from the Department's original list of recommended components in 1990 because the existence of the NRO was, at that time and for several years thereafter, a highly classified fact. That is no longer the case, and NRO can now be designated as a new component of the DOD.
The Director is also granting the request of the Department of Labor to designate the Office of Disability Employment Policy (ODEP) as a distinct and separate component of that Department. ODEP is a new office established by legislation enacted on December 21, 2000, section 1(a)(1), Pub. L. 106-554, as codified at 29 U.S.C. 557b. The office, which is headed by an Assistant Secretary, is charged to “provide leadership, develop policy and initiatives, and award grants furthering the objective of eliminating barriers to the training and employment of people with disabilities.” 29 U.S.C. 557b.
As recommended by the Department of Transportation (DOT), the Director is designating the Federal Motor Carrier Safety Administration (FMCSA) as a distinct and separate component of that Department. The FMCSA commenced operations on January 2, 2000. It was created pursuant to the Motor Carrier Safety Improvement Act of 1999, section 101(a), Pub. L. 106-159, as codified at 49 U.S.C. 113, to perform functions relating to motor carriers and motor carrier safety. These functions were previously performed by DOT's Federal Highway Administration.
Also pursuant to the recommendation of DOT, the Director is designating the Transportation Security Administration (TSA) as a distinct and separate component of that Department. Under the Aviation and Transportation Security Act, section 101(a), Pub. L. 107-71, as codified at 49 U.S.C. 114, TSA was created as an administration of DOT, with the responsibility for civil aviation security as well as the security of other modes of transportation. Although the functions of TSA are expected to be transferred to the new Department of Homeland Security at a later time during 2003, this separate component designation will define the relationship between DOT and TSA with respect to section 207(c) immediately.
As requested by the Department of the Treasury (Treasury), the Director is designating the Financial Crimes Enforcement Network (FinCEN) as a distinct and separate component of that Department. Under 31 U.S.C. 310, FinCEN is designated as a bureau in Treasury to provide trend analysis and threat assessments, regulate financial and other institutions under the Bank Secrecy Act, and foster international cooperation in efforts to deter and detect money laundering.
Additionally, as recommended by the Department of State, the Director is revoking the designation of the International Joint Commission, United States and Canada (American Section) (IJC). Section 207(h) of 18 U.S.C. authorizes the designation of agencies and bureaus “within” a department or agency. Although the IJC receives funding from the Department of State and Federal employees serve in its American Section, IJC is not a part of the Department of State. Rather, it is an international organization in which the United States participates.
Finally, the Department of Health and Human Services (HHS) has advised that the names of two HHS components currently listed in appendix B of part 2641 have been changed. According to HHS, the “Agency for Health Care Policy and Research” is now the “Agency for Healthcare Research and Quality,” and the “Health Care Financing Administration” is now the “Centers for Medicare and Medicaid Services.” Accordingly, the Director is amending the HHS listing in appendix B to reflect the current names of these components.
As indicated in 5 CFR 2641.201(e)(4), a designation “shall be effective as of the effective date of the rule that creates the designation, but shall not be effective as to employees who terminated senior service prior to that date.” Initial designations were effective as of January 1, 1991. The effective date of subsequent designations is indicated by means of parenthetical entries in appendix B. The new component designations made by this rulemaking document, as well as the component name changes being reflected herein (which do not affect their underlying component designation dates), are effective January 30, 2003. As also provided in 5 CFR 2641.201(e)(4), a revocation is effective 90 days after the
Pursuant to 5 U.S.C. 553, as the Director of OGE, I find that good cause exists for waiving the general requirements for notice of proposed rulemaking, opportunity for public comment, and, except as to the component revocation (see the preamble discussion above), a 30-day delayed effective date. It is important and in the public interest that the designation or revocation herein by OGE of the specified separate departmental components, as well as the component name changes, all of which reflect the current organization of the concerned departments and, as to the new component designations, relieve a restriction, be published in the
As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not have a significant economic impact on a substantial number of small entities because it affects only Federal departments and agencies and current and former Federal employees.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this rule because it does not contain information collection requirements that require the approval of the Office of Management and Budget.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), the final rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.
The Office of Government Ethics has determined that this rulemaking involves a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and has submitted a report thereon to the U.S. Senate, House of Representatives and General Accounting Office in accordance with the law.
In promulgating this final rule, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. This rule has not been reviewed by the Office of Management and Budget under that Executive order since it deals with agency organization, management, and personnel matters and is not “significant” under the order.
As Director of the Office of Government Ethics, I have reviewed this rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.
Conflict of interests, Government employees.
5 U.S.C. App. (Ethics in Government Act of 1978); 18 U.S.C. 207; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
Rural Utilities Service, USDA.
Final rule.
The Rural Utilities Service (RUS) is amending its regulations in order to establish the Rural Broadband Access Loan and Loan Guarantee Program as authorized by the Farm Security and Rural Investment Act of 2002 (Pub. L. 101-171) (2002 Act). Section 6103 of the Farm Security and Rural Investment Act of 2002 amended the Rural Electrification Act of 1936, as amended (RE Act), to add Title VI, Rural Broadband Access, to provide loans and loan guarantees to fund the cost of construction, improvement, or acquisition of facilities and equipment for the provision of broadband service in eligible rural communities. This final rule prescribes the types of loans available, facilities financed, and eligible applicants, as well as minimum credit support requirements to be considered for a loan. In addition, the rule prescribes the process through which RUS will consider applicants under the priority consideration and the state allocations required in Title VI.
This rule is effective January 30, 2003.
Roberta D. Purcell, Assistant Administrator, Telecommunications Program, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., STOP 1590, Room 4056, Washington, DC 20250-1590. Telephone number (202) 720-9554, Facsimile (202) 720-0810.
Section 6103(b) of the 2002 Act requires that the regulations necessary to implement the Rural Broadband Access Loan and Loan Guarantee Program are to be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture, effective July 24, 1971 (36 FR 13804), relating to notices of proposed rulemaking and public participation in rulemaking. Therefore, these regulations are issued as a final rule.
This rule has been determined to be significant for purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget (OMB). In accordance with Executive Order 12866, an Economic Impact Analysis was completed, outlining the costs and benefits of implementing this program in rural America. The complete analysis is available from RUS upon request.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards provided in section 3 of that Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted. No retroactive effect will be given to the rule and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures must be exhausted before an action against the Department or its agencies may be initiated.
The Regulatory Flexibility Act (5 U.S.C. 601
Section 1601(c) of the 2002 Act provides that the promulgation of regulations necessary to implement the Rural Broadband Access Loan and Loan Guarantee Program shall be made without regard to chapter 5 of title 44 of the United States Code (the Paperwork Reduction Act).
The program described by this rule is listed in the Catalog of Federal Domestic Assistance Programs under No. 10.851, Rural Telephone Loans and Loan Guarantees; No. 10.852, Rural Telephone Bank Loans; and No. 10.857, Rural Broadband Access Loans and Loan Guarantees. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402. Telephone: (202) 512-1800.
This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034).
This rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandate Reform Act of 1995) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandate Reform Act of 1995.
RUS has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Section 6103 of the 2002 Act amended the RE Act, to add Title VI, Rural Broadband Access, to provide loans and loan guarantees to fund the costs of construction, improvement, or acquisition of facilities and equipment for the provision of broadband service in eligible rural communities. Title VI defines eligible communities and entities, and sets forth the types of loans, as well as a state allocation system and a priority system for consideration of applicants.
Section 6103(b) of the 2002 Act provides that the regulations for this program are exempt from the notice and comment provisions of section 553 of title 5, United States Code (Administrative Procedures Act). RUS held a public meeting on June 27, 2002, in order to obtain background information for consideration in the implementation and administration of the Rural Broadband Access program. There were 22 presenters including lenders, telecommunications and broadband providers, trade associations, and capital market specialists. The presenter's written comments are available on the RUS Web site at
RUS considered the oral and written comments of the presenters as well as the Conference Report accompanying the 2002 Act (Report 107-424) to formulate the regulations implementing the Rural Broadband Access Loan and Loan Guarantee Program.
Eligible entities can apply for a direct cost-of-money loan or a private lender guaranteed loan to provide service in any eligible rural community. Four-percent direct loans will be available only to provide service in the most rural, economically-challenged communities which currently do not have broadband service to residents.
Four-percent direct loans will be available to eligible entities proposing to provide service in communities with no residential broadband service, population of 2,500 or less, and certain density and income requirements. The density requirement is a maximum number of persons per square mile of the applicant's defined service area. The income requirement is the average per capita income in the county containing the applicant's service area as a percent of the national average per capita income. This requirement will be set at a maximum number. The income and density requirements are subject to review and adjustment on an annual basis and will be published in the
All the requirements for a 4-percent loan are in place to encourage build out of broadband facilities to the very poor, rural parts of the country. RUS feels that offering a fixed low interest rate program for these areas helps offset the high cost of serving remote areas which require more telecommunications plant per subscriber than the more densely populated communities.
RUS believes that prudent lending practice, especially in the current telecommunications environment, dictates a credit support requirement as well. RUS also considered what form of support would be appropriate.
RUS set the requirement at a lower percent than other telecommunications lenders, 20 percent of the requested loan amount. This lower requirement is enhanced by the requirement that certain applicants have, at the time of application, sufficient cash on hand to support operations for one year. This amount can be part of the minimum 20 percent requirement, or if the cash required for one year of operating expenses is in excess of 20 percent of the loan, that cash requirement will be the minimum requirement. RUS set this requirement for start-up broadband operations to assure that they have cash on hand to cover operations until revenues generate sufficient cash flows to pay expenses as they become due.
RUS recognizes that the expenses of an ongoing telecommunications company can be covered through a regular stream of revenues, and therefore the need to have a large amount of cash on hand is unnecessary and imprudent. This requirement may deter operating telecommunications companies with a viable business plan from applying for funds to upgrade facilities for broadband, perhaps denying a rural community of broadband service. Therefore, RUS will waive the minimum cash requirement for an ongoing company that can show positive cash flow for the two calendar years immediately preceding the date of the application.
In addition, pursuant to Title VI, RUS will set up a State reserve in which, for the first 6 months of each fiscal year, the available funding for the fiscal year is allocated among the States, territories, and insular possessions based on the number of communities with populations of 2,500 or less in each State, territory, and insular possession in relation to the total number of such communities in the United States, its territories, and insular possessions.
At the same time, RUS did not want completed, feasible applications which did not meet the priority consideration to go unfunded until the end of the fiscal year. Consequently, RUS came up with a priority system which allows for the funding of completed, feasible applications in a timely manner so long as funding is available in the applicant's state reserve or, after April 1 of the fiscal year, the national reserve.
RUS will expedite for consideration for funding, applications proposing to provide service where none is physically available on a first-in, first-out basis. RUS will also give a lesser priority to those areas currently receiving service but (1) at rates that are not comparable to those in neighboring urban and suburban areas or (2) of quality that is considered unsatisfactory due to, among other criteria, data rate restrictions, system latency, or unreliable connections.
The pending, unfunded applications received under the broadband pilot program were returned to the applicants as required in the
RUS will first consider applications proposing to provide service where none is physically available, the “unserved” communities.
Second, RUS will consider applications proposing to provide service where rates are not comparable to similar service in urban and suburban areas, or quality of service is not satisfactory, the “underserved” communities.
In determining whether broadband service is available, RUS requires the applicant to publish a legal notice stating its intent to provide service in a community and requesting any incumbent provider to submit certain information to RUS including service territory, cost of service, rates of data transmission. RUS understands that this may be Confidential Business Information and will protect the confidentiality of the information.
The incumbent RUS telecommunications borrower must provide, prior to October 1, 2004, support of its intent through submitting either a loan application to construct broadband facilities to RUS or another lender or proof that construction of broadband facilities has begun. Should the existing telecommunications borrower construct or begin to construct broadband facilities during the two-year window, RUS will not consider any applications proposing to provide competitive broadband service in that incumbent borrower's territory. RUS will monitor the incumbent's compliance with the letter of intent through onsite inspections or any other means necessary. If the borrower is not making satisfactory progress in providing broadband service in its local exchange service territory, RUS will consider applications proposing to provide broadband service in their territory.
This same principle will hold for borrowers under the Rural Broadband Access Loan and Loan Guarantee Program. In order to protect loan security, RUS will not fund applications proposing to construct broadband facilities in communities served by borrowers using funds under this part regardless of the definition used for broadband service at the time of loan approval.
Conference language also suggests that RUS continue the use of the FCC definition of broadband service, as was used in the pilot program, in order to “* * * continue the current high standard used by RUS in determining what broadband service is.” In the broadband pilot program, RUS used the FCC standard for “advanced telecommunications capability” as the rate-of-data transmission criteria for broadband. As of the date of publication of this regulation, the FCC uses the term “advanced telecommunications capability” to describe services and facilities with an upstream (customer-to-provider) and downstream (provider-to-customer) transmission speed exceeding 200 kilobits per second. RUS will continue to use this current standard for the rate-of-data transmission criteria unless the FCC changes the rate used in “advanced telecommunications capability”. If FCC changes the rate, RUS will revisit its definition of broadband. RUS recognizes the value of coordinating with other agencies in determining rate-of-data transmission criteria for the purpose of determining broadband, and will continue to do so.
Broadband, Loan programs-communications, Rural areas, Telephone, Telecommunications.
Pub. L. 107-171, 7 U.S.C. 901
(a) This part sets forth the general policies, types of loans and loan guarantees, and program requirements under the Rural Broadband Access Loan and Loan Guarantee Program to provide funds for the costs of the construction, improvement, and acquisition of facilities and equipment for broadband service in eligible rural communities.
(b) Additional information regarding the Rural Broadband Access Loan and Loan Guarantee Program can be found in RUS Bulletin 1738-1, “Rural Broadband Access Loan and Loan Guarantee Application Guide” and RUS Bulletin 1738-2, “Rural Broadband Access Loan and Loan Guarantee Advance and Construction Procedures Guide”.
(c) When reference is made in this part to existing RUS regulations, an applicant or borrower under this part will follow the requirements applicable to an RUS telecommunications borrower.
As used in this part:
(1) Has no more than 20,000 inhabitants based on the most recent available population statistics of the Bureau of the Census and
(2) Is not located in an area designated as a standard metropolitan statistical area. For purposes of this part, “place” may include any area located outside the boundaries of any incorporated or unincorporated city, village or borough having a population exceeding 20,000 that is not within an area designated as a standard metropolitan statistical area.
(a) The purpose of the Rural Broadband Access Loan and Loan Guarantee Program is to provide loans to provide funds, on a technology neutral basis, for the costs of construction, improvement, and acquisition of facilities and equipment for broadband service in eligible rural communities.
(b) The proceeds of any loan made under this part may be used to refinance an outstanding obligation on another telecommunications loan made under the RE Act if the use of the proceeds will further the construction, improvement, or acquisition of facilities in eligible rural communities.
(1) Funds used for refinancing may not constitute more than 40 percent of the loan. The remainder of the proceeds shall only be used for the construction or improvement of facilities and equipment for broadband services.
(2) In calculating the expected composite economic life under § 1738.41 of this part, the economic life of any loan refinanced under this section will be based on the remaining economic life of the assets underlying that loan.
(c) RUS will not assess fees or charges for any loan made under this part.
(d) Loans will only be made under this part if the applicant's financial operations, taking into account the impact of the facilities financed with the proceeds of the loan and the associated debt, are economically feasible, as determined by RUS.
(a) As provided in § 1738.15 of this part, priority will be given to loans to finance service to eligible rural communities in which broadband service is not available to residential customers in the applicant's proposed service area.
(b) RUS shall consider the following criteria in determining whether broadband service is not available to residential customers:
(1) Broadband service is not being provided to residential customers in the applicant's proposed service area and no entity is committed to provide such service before the service would reasonably be expected to be available pursuant to the loan application;
(2) Broadband service is not provided at rates comparable to those of similar services in neighboring urban and suburban areas, as determined by RUS; and
(3) The quality of existing service, including, but not limited to, the availability of specified data rates, system latency, and data rate restrictions, is not satisfactory as determined by RUS.
(c) All applicants, as part of submitting a completed application, shall:
(1) Certify to RUS the extent to which paragraphs (b)(1) through (b)(3) of this section, apply to residential customers in the proposed service area, and
(2) Publish legal notice stating the applicant's intent to offer broadband service in a particular community.
(i) The notice must set forth the applicant's proposed service area, and request any incumbent broadband service provider to submit to RUS within 30 days:
(A) The number of residential customers receiving broadband service in the applicant's proposed service area, the rates of data transmission, and the cost of each level of service, or proof of commitment to provide service in the proposed service area, and
(B) A map of its service territory.
(ii) The notice must satisfy all other requirements to constitute legal notice within the areas proposed to be served.
(iii) The notice must be published in state and local newspapers covering the applicant's proposed service area if such publication is not included in the legal notice requirement.
RUS will make broadband loans for facilities which RUS determines are necessary to serve subscribers located in eligible rural communities. RUS may determine that it is necessary for facilities financed with loan funds to be located outside of eligible rural communities.
(a) On October 1, of each fiscal year, or as soon as possible after funds become available, RUS will:
(1) Establish a national reserve for broadband loans, and
(2) Allocate amounts in the reserve to each State, territory, and insular possession, based on the ratio of the number of communities with a population of 2,500 inhabitants or less in the state, territory, and insular possession to the number of communities with a population of 2,500 inhabitants or less in all states, territories, and insular possessions. Population will be based upon the Bureau of the Census' latest decennial census.
(b) To be considered eligible for funding from the State reserve during the fiscal year, an application, determined by RUS to be complete, must be postmarked no later than January 31 of the fiscal year.
(c) On April 1 of each fiscal year, RUS will return all unobligated amounts in each state's reserve to the national reserve and will make the national reserve available to eligible entities in any state.
(d) To be considered eligible for funding from the national reserve during the current fiscal year, a completed application, satisfactory to RUS, must be postmarked no later than July 31 of the fiscal year.
(e) Completed applications that are economically and technically feasible, as determined by RUS, will be considered for funding in accordance with the priority requirements set forth in § 1738.15 of this part.
(a) Each application that was submitted and remains unfunded from the broadband pilot program will be given a one-time priority for funding for a loan under this part.
(b) Each applicant will be given 30 days from the date of publication of this part in the
(c) Completed applications submitted within the 30-day time-frame will be considered for financing:
(1) First, where broadband service is not available to residential customers, as set forth in § 1738.11 of this part.
(i) Completed applications will be funded on a first-in, first-out basis, as long as funds remain available in the applicable state's reserve.
(ii) When the state reserve is not adequate to fund the next completed application on a first-in, first-out basis, RUS will consider subsequent completed applications for that state for funding on a first-in, first-out basis. All unfunded, completed applications will be carried forward for consideration for funding from the national reserve.
(2) Second, where broadband service is available to residential customers:
(i) On January 1, 2003, after all new applications submitted under this part proposing to provide service where none is available have been considered under § 1738.15(b) of this part, all completed applications will be considered for funding on a first-in, first-out basis, as long as funds remain available in the applicable state's reserve.
(ii) When the state reserve is not adequate to fund the next completed application on a first-in, first-out basis, RUS will consider subsequent completed applications for that state for funding on a first-in, first-out basis. All unfunded, completed applications will be carried forward for consideration for funding from the national reserve.
Subject to the one-time priority set forth in § 1738.14 of this part, in making loans under this part, priority will be given to eligible entities submitting completed applications for the construction, improvement, or acquisition of facilities and equipment for broadband service in eligible rural communities as follows:
(a) As of October 1 of the fiscal year, completed applications remaining unfunded from the previous fiscal year where broadband service is not available to residential customers, as set forth in § 1738.11(b)(1) of this part, will be considered for funding on a first-in, first-out basis, as long as funds remain available in the applicable state's reserve. When the state reserve is not adequate to fund the next completed application on a first-in, first-out basis, RUS will consider subsequent completed applications for that state for funding on a first-in, first-out basis. All unfunded, completed applications will be carried forward for consideration for funding from the national reserve.
(b) New completed applications proposing to provide service where none is available to residential customers, as set forth in § 1738.11 of this part, will be considered for funding, from the state reserve prior to April 1 and the national reserve after April 1, on a first-in, first-out basis, as long as funds remain available. As applications are processed using the first-in, first-out process, RUS may expedite for consideration for funding applications proposing to provide service where none is available, as set forth in § 1738.11(b)(1). When funds are not adequate to fund the next completed application on a first-in, first-out basis, RUS will consider subsequent completed applications for funding on a first-in, first-out basis.
(c) On January 1, March 30, April 1, July 1 and September 30 of the fiscal year, all unfunded, completed applications on hand will be prioritized and considered for funding, from the state reserve prior to April 1 and the national reserve after April 1, as follows:
(1) First, where broadband service is not available to residential customers, as set forth in § 1738.11(b)(1) of this part, on a first-in, first-out basis, as long as funds remain available.
(2) Second, where broadband service is not available to residential customers, as set forth in § 1738.11(b)(2) and (3) of this part, on a first-in, first-out basis, as long as funds remain available.
(3) Third, where broadband service is available to residential customers, on a first-in, first-out basis, so long as funds remain available.
(a) RUS makes broadband loans to legally organized entities providing, or proposing to provide, broadband services in eligible rural communities.
(1) Types of eligible entities include cooperative, nonprofit, limited dividend or mutual associations, limited liability companies, commercial organizations and Indian tribes and tribal organizations as defined in 25 U.S.C. 450b (b) and (c). Individuals or partnerships of individuals are not eligible entities.
(2) An entity is not eligible if it serves more than 2 percent of the telephone subscriber lines installed in the United States.
(3) To be eligible, an entity must have sufficient authority to enter into a contract with RUS and to carry out the purposes of the proposed loan.
(b) A State or local government, including any agency, subdivision, or instrumentality thereof (including consortia thereof) shall be eligible for a broadband loan only if, not later than April 30, 2003, no other eligible entity is already offering or has committed to offer broadband services to the eligible rural community. RUS will determine whether the commitment is sufficient for purposes of this paragraph.
Applicants are required to comply with certain regulations on nondiscrimination and equal employment opportunity. See RUS Bulletin 1790-1, “Nondiscrimination Among Beneficiaries of RUS Programs” and RUS Bulletin 20-15:320-15, “Equal Employment Opportunity in Construction Financed with RUS Loans”; 7 CFR parts 15 and 15b and 45 CFR part 90.
Recognizing plant costs, the applicant's cost of system design, and RUS' administrative costs, RUS will not consider applications for loans or loan guarantees of less than $100,000. Maximum loan amounts apply only to an applicant for a direct 4-percent broadband loan, as provided for in § 1738.30(b)(2) of this part.
(a) RUS makes broadband loans to finance the construction, improvement, and acquisition of facilities and equipment to provide broadband service in eligible rural communities.
(b) RUS makes broadband loans to finance broadband facilities leased under the terms of a capital lease as defined in generally accepted accounting principles. RUS will not make a broadband loan to finance facilities leased under the terms of an operating lease as defined in generally accepted accounting principles.
(c) RUS makes broadband loans to finance an acquisition by an eligible entity only when the acquisition is necessary and incidental to furnishing or improving rural broadband service.
(d) RUS will not approve the use of broadband loans to acquire any stock or any facilities or equipment of an affiliate of the applicant.
(e) RUS will not make a broadband loan to finance the following items:
(1) Customer terminal equipment (including modems) not owned by the applicant during its economic life and any associated inside wiring;
(2) Vehicles not used primarily in construction; and
(3) Operating expenses.
(f) RUS will not make a broadband loan to finance systems or facilities that
(g) Prior to October 1, 2004, RUS will not make a broadband loan under this part to provide broadband service in an area receiving local exchange telephone service from an RUS telecommunications borrower to any entity other than the incumbent RUS telecommunications borrower if, not later than 90 days after RUS receives an application proposing to provide broadband service in the borrower's local exchange service territory, the incumbent RUS telecommunications borrower submits to RUS a letter of intent to provide or begin to construct residential broadband service in its local exchange service territory prior to October 1, 2004. The incumbent RUS telecommunications borrower must provide, prior to October 1, 2004, support of their intent to provide broadband service through submitting either a loan application to construct broadband facilities or proof that construction of broadband facilities has begun. Thereafter, unless the RUS telecommunications borrower has constructed or begun to construct broadband facilities in its service area, RUS will consider an application for a loan under this part to provide the broadband service in an area served by an RUS telecommunications borrower according to the criteria for determining broadband availability in § 1738.11(b) of this part.
(h) RUS will not approve loans to more than one applicant to provide broadband service within the same eligible rural community, nor to an applicant proposing to provide service in a community served by a borrower using funds under this part regardless of the definition of broadband service at the time of loan approval.
(i) If an unadvanced loan, or a portion thereof, is rescinded, a new loan shall not be made to the same applicant for the same purposes as in the rescinded loan.
(a) To be eligible for a loan, RUS will require an applicant to provide credit support in an amount equal to 20 percent of the requested loan amount.
(b) The applicant must have, as part of the minimum 20 percent requirement, cash or, in the case of State and local governments, cash equivalents in an amount equal to operating expenses for the first full year of providing service, as determined by a feasibility study satisfactory to RUS. This cash requirement will be waived for applicants operating as telecommunications companies which have positive cash flow for the two calendar years immediately preceding the date of application.
(c) The remainder of the minimum requirement can be met by undepreciated assets which would normally be financed as part of a loan under this part, additional cash or cash equivalents, licenses, or an unconditional letter of credit, or the equivalent, satisfactory to RUS.
(d) For purposes of this section, assets and licenses will be valued based on the lower of cost or market value, net of liens or other obligations of payments for those assets and licenses.
(a) Upon notification by RUS that an applicant's application is considered complete, the applicant may enter into an interim financing agreement with a lender other than RUS or use its own internally generated funds for interim construction.
(b) For an applicant to preserve the option of obtaining loan funds for reimbursement of interim financing, the following procedures must be followed:
(1) Interim construction shall be conducted in accordance with RUS Bulletin 1738-2 and 7 CFR part 1788, except that the applicant shall not begin interim construction until all necessary licenses, permits, and other governmental approvals have been obtained;
(2) Equal employment opportunity requirements apply to interim construction. See RUS Bulletin 20-15: 320-15; and
(3) Interim construction shall be covered by an Environmental Report prepared in accordance with 7 CFR part 1794 and approved by RUS.
(c) RUS approval of interim financing is not a commitment that RUS will make loan funds available.
(a) RUS makes loans only if, in the judgment of the Administrator, the security therefore is reasonably adequate and the loan will be repaid within the time agreed.
(b) RUS generally requires that an applicant provide RUS with a first lien, in form and substance satisfactory to RUS, on all of the applicant's property and such additional security as RUS may require. If necessary, RUS will share in the first lien with another lender provided the RUS loan is adequately secured and will be repaid within the time agreed.
(c) Unless otherwise approved by RUS, the applicant shall purchase and own the collateral for the loan free from liens or security interests, other than those securing the RUS loan.
(d) In the case of loans that include the financing of broadband facilities that do not constitute self-contained operating systems or units, the applicant shall, in addition to the mortgage lien on all of the applicant's facilities financed by RUS, furnish adequate assurance, in the form of contractual or other arrangements, satisfactory to RUS, that continuous and efficient broadband service will be rendered.
(e) Beginning with the first calendar year following the end of the forecast period, RUS will require the recipient of a broadband loan to maintain, at a minimum, a TIER at least equal to the projected TIER determined by the feasibility study prepared in connection with the loan, but at least 1.25 and not greater than 2.0.
(f) Additional financial, investment, operational, and managerial controls appear in the loan documents required by RUS.
(a) Direct cost-of-money broadband loans shall bear interest at a rate (the “Cost of Money Interest Rate”) equal to the cost of borrowing to the Department of Treasury for obligations of comparable maturity. The Cost of Money Interest Rate will be provided by RUS when the funds are advanced to the borrower.
(b) Direct 4 percent broadband loan.
(1) To be eligible for a direct loan bearing an interest rate of 4 percent, the applicant must be proposing to serve:
(i) A community that:
(A) Has a population of less than 2,500 inhabitants;
(B) Is not currently receiving broadband service as set forth in § 1738.11(b)(1) of this part, and
(C) Is located in a county with per capita personal income that is less than or equal to that percent of the national average per capita personal income which RUS will publish in the
(ii) A service area with a certain maximum population density,
(2) The total amount of financing made available by RUS, in each fiscal year, for direct loans bearing an interest rate of 4 percent and the maximum of any one loan will be published by RUS in the
(3) When an approved application exceeds the maximum amount of 4 percent financing that may be made available to the borrower, a direct loan made at 4 percent may be made simultaneously with a “Cost-of-Money Interest Rate” loan.
(4) A 4 percent direct loan may be made simultaneously with a Cost-of-Money Interest Rate loan or a private loan guarantee.
(c) Private loan guarantees. A private loan guarantee shall bear interest at a rate set by the lender consistent with the current applicable market rate for a loan of comparable maturity.
(1) A private loan guarantee is available to any legally organized lending agency which includes commercial banks, trust companies, mortgage banking firms, insurance companies, and any other institutional investor authorized by law to loan money, hereafter referred to as “lender”. At the time of application, applicants must provide RUS the name of the lender who will be providing the funding and a commitment from that lender to provide the funds.
(i) The lender shall be subject to credit examination and supervision by a Federal or state agency unless RUS determines that alternative examination and supervisory mechanisms are adequate.
(ii) The lender shall demonstrate to RUS the capability to adequately service guaranteed loans. The lender shall also be in good standing with its licensing authority and meet the loan making, loan servicing, and other requirements of the jurisdiction in which the lender makes loans guaranteed under this part.
(2) The lender selected by the borrower shall provide evidence satisfactory to RUS of its qualification under this part, along with the name of the authority that supervises such lender.
(3) The lender may establish charges and fees for the loan provided they are not greater than those normally charged other applicants for the same type of loan in the ordinary course of business. RUS will not guarantee any portion of the loan used to pay lender charges and fees.
(4) Loans are guaranteed for no more than 80 percent of the amount of principal except for those purposes in § 1738.30(c)(3) of this part for which RUS will not provide a guarantee. RUS’ guarantee is limited to the loan repayment obligation of the borrower and does not extend to guaranteeing that a lender will remit to a holder loan payments made by the borrower.
(5) The interest rate must be fixed and must be the same for the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount or the respective Guaranteed-Amount Equivalent, as the case may be, and Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as the case may be.
(6) The entire loan will be secured by the same security with equal lien priority for the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount or the respective Guaranteed-Amount Equivalent, as the case may be, and Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as the case may be. The Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as the case may be, will neither be paid first nor given any preference or priority over the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount or the respective Guaranteed-Amount Equivalent, as the case may be.
(7) All loan documents, including, but not limited to, a loan guarantee agreement between RUS and the lender, the loan note guarantee, the guaranteed loan note, and the mortgage will be prepared by RUS. Contact RUS for copies of forms of the loan documents. The guaranteed loan agreement between the borrower and the lender shall be subject to RUS approval.
(8) Once a private loan guarantee is approved, the lender will be required to fully service the loan including:
(i) Determining that all prerequisites to each advance of loan funds by the lender under the terms of the contract of guarantee, all financing documents, and all related security documents have been fulfilled. The lender must obtain RUS approval to advance funds prior to each advance of funds.
(ii) Billing and collecting loan payments from the borrower.
(iii) Notifying the Administrator promptly of any default in the payment of principal and interest on the loan and submit a report, as soon thereafter as possible, setting forth its views as to the reasons for the default, how long it expects the borrower will be in default, and what corrective actions the borrower states it is taking to achieve a current debt service position.
(iv) Notifying the Administrator of any known violations or defaults by the borrower under the lending agreement, contract of guarantee, or related security instruments, or conditions of which the lender is aware which might lead to nonpayment, violation, or other default.
(9) Upon notice to the lender, RUS may assume loan servicing responsibilities for the loan or the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount or the respective Guaranteed-Amount Equivalent, as the case may be, or require the lender to assign such responsibilities to a different entity, if the lender fails to perform its loan servicing responsibilities under the loan guarantee agreement, or if the lender becomes insolvent, makes an admission in writing of its inability to pay its debts generally as they become due, or becomes the subject of proceedings commenced under the Bankruptcy Reform Act of 1978 (11 U.S.C. 101
(10)(i) The Guarantee shall cease to be effective with respect to any Guaranteed Loan Amount or any Guaranteed Loan Portion Amount or any Guaranteed-Amount Equivalent to the extent that:
(A) The Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount or the respective Guaranteed-Amount Equivalent, as the case may be, is separated at any time from the Unguaranteed Loan Amount or the respective Unguaranteed Loan Portion Amount or the respective Unguaranteed-Amount Equivalent, as the case may be, in any way, directly or through the issuance of any Guaranteed-Amount Equity Derivative or any Guaranteed-Amount Debt Derivative; or
(B) Any holder of the Guaranteed Loan Note or any Guaranteed Loan Portion Note or any Derivative, as the case may be, having a claim to payments on the Guaranteed Loan receives more than its pro-rata percentage of any
(ii) The assignment by the lender requires prior written approval from RUS.
(iii) The assignment shall entitle the holder to all of the lender's rights. However, the lender shall remain responsible for servicing the entire loan.
(iv) The borrower, its principal officers, members of the borrower's board of directors and members of the immediate families of said officials shall not be a holder of the borrower's loan.
(11) RUS will not guarantee any loan under this subpart that provides for:
(i) A balloon payment of principal or interest at the final maturity date of the loan; or
(ii) The payment of interest on interest.
(12) For purposes of this subsection:
(i) Derivative means any right, interest, instrument or security issued or traded on the credit of the Guaranteed Loan or any Guaranteed Loan Portion, including but not limited to:
(A) Any participation share of, or undivided ownership or other equity interest in, the Guaranteed Loan or any Guaranteed Loan Portion;
(B) Any note, bond or other debt instrument or obligation which is collateralized or otherwise secured by a pledge of, or security interest in, the Guaranteed Loan or any Guaranteed Loan Portion; or
(C) Any such interest in such an interest or any such instrument secured by such an instrument.
(ii) Guaranteed-Amount Debt Derivative means any note, bond or other debt instrument or obligation which is collateralized or otherwise secured by a pledge of, or security interest in, the Guaranteed Loan Note or any Guaranteed Loan Portion Note or any Derivative, as the case may be, which has an exclusive or preferred claim to the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount or the respective Guaranteed-Amount Equivalent, as the case may be.
(iii) Guaranteed-Amount Equity Derivative means any participation share of, or undivided ownership or other equity interest in, the Guaranteed Loan or any Guaranteed Loan Portion or any Derivative, as the case may be, which has an exclusive or preferred claim to the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount or the respective Guaranteed-Amount Equivalent, as the case may be.
(iv) Guaranteed-Amount Equivalent means:
(A) With respect to any Derivative which is equal in principal amount to the Guaranteed Loan or any Guaranteed Loan Portion, that amount of payment on account of such Derivative which is equal to the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount, as the case may be; or
(B) With respect to any Derivatives which in the aggregate are equal in principal amount to the Guaranteed Loan or any Guaranteed Loan Portion, that amount of payment on account of such derivatives which is equal to the Guaranteed Loan Amount or the respective Guaranteed Loan Portion Amount, as the case may be.
(v) Guaranteed Loan Amount means that amount of payment on account of the Guaranteed Loan which is guaranteed under the terms of the Guarantee.
(vi) Guaranteed Loan Portion Amount means that amount of payment on account of any Guaranteed Loan Portion which is guaranteed under the terms of the Guarantee.
(vii) Guaranteed Loan Note means, collectively, the note or notes executed and delivered by the Borrower to evidence the Guaranteed Loan.
(viii) Guaranteed Loan Portion means any portion of the Guaranteed Loan.
(ix) Guaranteed Loan Portion Note means any note executed and delivered by the Borrower to evidence a Guaranteed Loan Portion.
(x) Unguaranteed-amount equivalent means all amounts of payment on account of any Derivative other than the respective Guaranteed-Amount Equivalent.
(xi) Unguaranteed loan amount means all amounts of payment on account of the Guaranteed Loan other than the Guaranteed Amount.
(xii) Unguaranteed loan portion Amount means all amounts of payment on account of any Guaranteed Loan Portion other than the respective Guaranteed Loan Portion Amount.
Loan guarantees made under this part are supported by the full faith and credit of the United States.
Terms and conditions of loans are set forth in a mortgage, note, and loan contract. Provisions of the mortgage and loan contract are implemented by provisions in RUS bulletins and regulations. Standard forms of the mortgage, note, and loan contract can be obtained from RUS. However, RUS reserves the right to establish terms and conditions, including security requirements, on a case-by-case basis.
(a) Broadband loans must be repaid with interest within a period that, rounded to the nearest whole year, equals the expected composite economic life of the facilities to be financed, as calculated by RUS.
(1) The expected composite economic life shall be based upon the depreciation rates for the facilities financed by the loan.
(2) The depreciation rates used shall be the rates currently in place, as long as RUS finds them to be reasonable for the telecommunications industry.
(b) Applicants may request a repayment period that is shorter than the expected composite economic life of the facilities financed. A shorter period may be approved as long as the Administrator determines that the loan remains feasible.
(c) Interest is payable on funds advanced each month as it accrues beginning with the first billing after the advance, as defined in the note. Principal payments on each note are scheduled to begin one year after the date of the first advance. After this deferral period, interest and principal payments on all funds advanced during this one-year period shall be made in equal monthly installments. Principal payments on funds advanced 1 year or more after the date of the first advance will begin with the first billing after the advance. The interest and principal payments on each of these advances shall be made in equal monthly installments.
National Institute of Standards and Technology, United States Department of Commerce.
Interim final rule; request for comments.
The Director of the National Institute of Standards and Technology (NIST), Technology Administration, United States Department of Commerce, requests comments on an interim final rule pertaining to the implementation of the National Construction Safety Team Act (“Act”). This interim final rule with a request for public comments contains general provisions regarding implementation of the Act and establishes procedures for the collection and preservation of evidence obtained and the protection of information created as part of investigations conducted pursuant to the Act.
This rule is effective on January 30, 2003. Comments must be received no later than March 3, 2003.
Comments on the interim final rule must be submitted to: Dr. James E. Hill, Deputy Director, Building and Fire Research Laboratory, National Institute of Standards and Technology, Mail Stop 8600, Gaithersburg, MD 20899-8600, telephone number (301) 975-5900.
Dr. James E. Hill, Deputy Director, Building and Fire Research Laboratory, National Institute of Standards and Technology, Mail Stop 8600, Gaithersburg, MD 20899-8600, telephone number (301) 975-5900.
The National Construction Safety Team Act, Pub. L. 107-231, was enacted to provide for the establishment of investigative teams (“Teams”) to assess building performance and emergency response and evacuation procedures in the wake of any building failure that has resulted in substantial loss of life or that posed significant potential of substantial loss of life. The purpose of investigations by Teams is to improve the safety and structural integrity of buildings in the United States. A Team will (1) Establish the likely technical cause or causes of the building failure; (2) evaluate the technical aspects of evacuation and emergency response procedures; (3) recommend, as necessary, specific improvements to building standards, codes, and practices based on the findings made pursuant to (1) and (2); and recommend any research and other appropriate actions needed to improve the structural safety of buildings, and improve evacuation and emergency response procedures, based on the findings of the investigation. Section 2(c)(1) of the Act requires that the Director develop procedures for certain activities to be carried out under the Act as follows: Regarding conflicts of interest related to service on a Team; defining the circumstances under which the Director will establish and deploy a Team; prescribing the appropriate size of Teams; guiding the disclosure of information under section 7 of the Act; guiding the conduct of investigations under the Act; identifying and prescribing appropriate conditions for provision by the Director of additional resources and services Teams may need; to ensure that investigations under the Act do not impede and are coordinated with any search and rescue efforts being undertaken at the site of the building failure; for regular briefings of the public on the status of the investigative proceedings and findings; guiding the Teams in moving and preserving evidence; providing for coordination with Federal, State, and local entities that may sponsor research or investigations of building failures; and regarding other issues.
NIST plans to publish two separate documents in the
This rule has been determined not to be significant under section 3(f) of Executive Order 12866.
This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 12612.
Prior notice and an opportunity for public comment are not required for this rule of agency organization, procedure, or practice. 5 U.S.C. 553(b)(A).
Because notice and comment are not required under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Notwithstanding any other provision of the law, no person is required to, nor shall any person be subject to penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.
There are no collections of information involved in this rulemaking.
This rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.
Administrative practice and procedure; Buildings and facilities; Disaster assistance; Evidence; Investigations; National Institute of Standards and Technology; Science and technology; Subpoena.
Pub. L. 107-231, 116 Stat. 1471 (15 U.S.C. 3701 note).
(a) The National Construction Safety Team Act (the Act) (Pub. L. 107-231) provides for the establishment of investigative teams to assess building performance and emergency response and evacuation procedures in the wake of any building failure that has resulted in substantial loss of life or that posed significant potential of substantial loss of life.
(b) The purpose of investigations by Teams is to improve the safety and structural integrity of buildings in the United States.
(c) This part is applicable to the establishment and deployment of Teams and the conduct of investigations under the Act.
The following definitions are applicable to this part:
During the course of an investigation conducted pursuant to the Act, evidence will be collected, and information will be created by the Team, NIST, and other investigation participants. This subpart sets forth the policy and procedures for the collection, preservation, and protection of evidence obtained and information created pursuant to an investigation.
Evidence collected and information created by Team members and all other investigation participants will be collected, preserved, and protected in accordance with the procedures set forth in this subpart.
Upon receipt of information pursuant to an investigation under the Act, each investigation participant who is not a NIST employee shall:
(a) As soon as practicable, transfer the original evidence to NIST, and retain a copy of the evidence only if necessary to carry out their duties under the investigation; and
(b) For any evidence that cannot reasonably be duplicated, retain the evidence in accordance with NIST procedures for preserving evidence as described in § 270.330 of this subpart, and upon completion of the duties for which retention of the evidence is necessary, transfer the evidence to NIST.
(a) In the course of an investigation, evidence normally will be collected following the procedures described in §§ 270.312 through 270.315 of this subpart.
(b) Upon a written showing by the Lead Investigator of urgent and
After the Director establishes and deploys a Team, members of the public are encouraged to voluntarily submit to the Team non-privileged evidence that is relevant to the subject matter of the pending investigation. Confidential information will only be accepted pursuant to an appropriate nondisclosure agreement.
(a) After the Director establishes and deploys a Team, the Lead Investigator, or their designee, may request the testimony of any person by deposition, upon oral examination or written questions, and may request documents or other physical evidence without seeking prior approval of the Director.
(b) Requests for responses to written questions will be made in writing and shall include:
(1) A statement that the request is made to gather evidence necessary to an investigation being conducted under the Act;
(2) Identification of the person whose responses are sought;
(3) Contact information for the person to whom the responses should be submitted;
(4) The date and time by which the responses are requested;
(5) A statement that the questions for which responses are sought are attached; and
(6) Contact information for the person to whom questions or problems regarding the request should be addressed.
(c) Requests for documents or other physical evidence will be made in writing and shall include:
(1) A statement that the request is made to gather evidence necessary to an investigation being conducted under the Act;
(2) A description of the documents or other physical evidence sought;
(3) Identification of the person or persons to whom the request is made;
(4) A request that each person to whom the request is directed produce and permit inspection and copying of the documents and physical evidence in the possession, custody, or control of that person at a specific time and place; and
(5) Contact information for the person to whom questions or problems regarding the request should be addressed.
(d) Requests for witness testimony will be made in writing and shall include:
(1) The name of the person whose testimony is requested;
(2) The date, time, and place of the deposition;
(3) A statement that the person whose testimony is requested may be accompanied by an attorney; and
(4) Contact information for the person to whom questions or problems regarding the request should be addressed.
The Lead Investigator may enter into discussions with appropriate parties to address problems identified with the submission of evidence requested pursuant to § 270.312 of this subpart. Should negotiations fail to result in the submission of such evidence, a subpoena may be issued pursuant to § 270.315.
(a)
(b)
(1) Whether the testimony, documentary, or physical evidence is required for an investigation being conducted pursuant to the Act;
(2) Whether the evidence sought is relevant to the purpose of the investigation;
(3) Whether NIST already has the evidence in its possession; and
(4) Whether the evidence required is described with specificity.
(c)
(1) A statement that the subpoena is issued by the Director pursuant to section 5 of the Act;
(2) A description of the documents or physical evidence or the subject matter of the testimony required by the subpoena;
(3) A command that each person to whom it is directed attend and give testimony or produce and permit inspection and copying of designated books, documents or physical evidence in the possession, custody or control of that person at a time and place specified in the subpoena;
(4) A statement that any person whose testimony is required by the subpoena may be accompanied by an attorney; and
(5) The signature of the Director.
(d)
(1) By personal service upon the person or agent of the person whose testimony is required or who is in charge of the documentary or physical evidence required; or
(2) By certified mail or delivery to the last known residence or business address of such person or agent; or
(3) Where personal service, mailing, or delivery has been unsuccessful, service may also be effected by publication in the
(e)
(f)
(a) During the course of an investigation by a Team, if the Director considers it to be in the public interest, NIST may hold a public hearing for the purposes of gathering testimony from witnesses and informing the public on the progress of the investigation.
(b) Should NIST plan to hold a public hearing, NIST will publish a notice in the
(c) The Director, or his designee, will preside over any public hearing held pursuant to this section.
When the Director establishes and deploys a Team, the Team members will be issued notices of inspection authority
(a) In the course of an investigation, entry and inspection of property where building components, materials, artifacts and records with respect to a building failure are located normally will be conducted following the procedures described in §§ 270.322 through 270.325 of this subpart.
(b) Upon a written showing by the Lead Investigator of urgent and compelling reasons to believe that building components, materials, artifacts or records located on a particular property may be destroyed were the procedures described in §§ 270.322 through 270.324 of this subpart followed, the Director, with the concurrence of the General Counsel may immediately issue a notice of inspection authority for such property, pursuant to § 270.325 of this subpart.
After the Director establishes and deploys a Team, members of the public are encouraged to voluntarily permit Team members to enter property where building components, materials, artifacts, and records with respect to the building failure are located, and take action necessary, appropriate, and reasonable in light of the nature of the property to be inspected and to carry out the duties of the Team.
(a) After the Director establishes and deploys a Team, the Lead Investigator or their designee may request permission to enter and inspect property where building components, materials, artifacts, and records with respect to a building failure are located, and take action necessary, appropriate, and reasonable in light of the nature of the property to be inspected and to carry out the duties of the Team.
(b) Requests for permission to enter and inspect such property will be made in writing and shall include:
(1) The name and title of the building owner, operator, or agent in charge of the building;
(2) If appropriate, the name of the building to be inspected;
(3) The address of the building to be inspected;
(4) The date and time of the inspection;
(5) If appropriate, a description of particular items to be inspected; and
(6) Contact information for the person to whom questions or problems regarding the request should be addressed.
The Lead Investigator may enter into discussions with appropriate parties to address problems identified with the goal of obtaining the permission requested pursuant to § 270.323 of this subpart.
(a)
(1) Enter property where a building failure being investigated has occurred, or where building components, materials, and artifacts with respect to the building failure are located, and take action necessary, appropriate, and reasonable in light of the nature of the property to be inspected and to carry out the duties of the Team;
(2) During reasonable hours, inspect any record (including any design, construction, or maintenance record), process, or facility related to the investigation;
(3) Inspect and test any building components, materials, and artifacts related to the building failure; and
(4) Move any record, component, material and artifact as provided by this part.
(b)
(c)
(d)
(1) A statement that the notice of inspection authority is issued pursuant to section 4 of the Act;
(2) The name and title of the building owner, operator, or agent in charge of the building;
(3) If appropriate, the name of the building to be inspected;
(4) The address of the building to be inspected;
(5) The date and time of the inspection;
(6) If appropriate, a description of particular items to be inspected; and
(7) The signature of the Director.
(e)
(a) A Team and NIST will take all necessary steps in moving and preserving evidence obtained during the course of an investigation under the Act to ensure that such evidence is preserved.
(b) In collecting and preserving evidence in the course of an investigation under the Act, a Team and NIST will:
(1) Maintain records to ensure that each piece of evidence is identified as to its source;
(2) Maintain and document an appropriate chain of custody for each piece of evidence;
(3) Use appropriate means to preserve each piece of evidence; and
(4) Ensure that each piece of evidence is kept in a suitably secure facility.
(c) If a Federal law enforcement agency suspects and notifies the Director that a building failure being investigated by a Team under the Act may have been caused by a criminal act, the Team, in consultation with the Federal law enforcement agency, will take necessary actions to ensure that evidence of the criminal act is preserved
Unless requested sooner by the Lead Investigator, at the conclusion of an investigation, each investigation participant who is not a NIST employee shall transfer any original information they created pursuant to the investigation to NIST. An investigation participant may retain a copy of the information for their records but may not use the information for purposes other than the investigation, nor may they release, reproduce, distribute, or publish any information first developed pursuant to the investigation, nor authorize others to do so, without the written permission of the Director or their designee. Pursuant to 15 U.S.C. 281a, no such information may be admitted or used as evidence in any suit or action for damages arising out of any matter related to the investigation.
As permitted by section 7(b) of the Act, the following information will not be released:
(a) Information described by section 552(b) of Title 5, United States Code, or protected from disclosure by any other law of the United States; and
(b) Copies of evidence collected, information created, or other investigation documents submitted or received by NIST, a Team, or any other investigation participant, until the final investigation report is issued.
Notwithstanding any other provision of law, a Team, NIST, any investigation participant, and any agency receiving information from a Team, NIST, or any other investigation participant, will not disclose voluntarily provided safety-related information if that information is not directly related to the building failure being investigated and the Director finds that the disclosure of the information would inhibit the voluntary provision of that type of information.
A Team, NIST, and any other investigation participant will not publicly release any information it receives in the course of an investigation under the Act if the Director finds that the disclosure might jeopardize public safety.
Consumer Product Safety Commission.
Final rule.
The Commission is issuing a rule to exempt from the Federal Hazardous Substances Act (“FHSA”) certain model rocket propellant devices for vehicles that travel on the ground. The Commission's current regulations exempt motors used for flyable model rockets. The rule exempts certain propellant devices for rocket-powered model cars if they meet requirements similar to those required for flyable model rockets and additional requirements to avoid possible injuries if the cars are operated off of their tether.
The rule becomes effective on January 30, 2003.
James G. Joholske, Office of Compliance, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-0608 ext. 1419.
Section 2(q)(1)(A) of the FHSA bans toys that are or contain hazardous substances that are accessible to a child. 15 U.S.C. 1261(q)(1)(A). However, the FHSA authorizes the Commission, by regulation, to grant exemptions from classifications as banned hazardous substances for:
The Commission received a petition from Centuri Corporation (“Centuri”) requesting that the Commission issue a rule exempting certain model rocket propellant devices to be used for model cars that travel on the ground along a tethered line and are propelled in a manner similar to flyable rockets. The petitioner requested an exemption that would allow the sale of both of its two prototype rocket-powered model cars. The smaller car, named “Blurzz,” uses an “A” motor, and is shaped like a “rail,” a type of custom-made vehicle used in competitive drag racing. The larger prototype, named “Screamin’ Eagle,” uses a “D” motor, and is shaped like a “Bonneville Speed Record” custom vehicle. The Commission decided to grant the petition in part and propose an exemption for model rocket propellant devices to be used for rocket-powered model cars like the smaller “Blurzz” car only.
On January 30, 2002, the Commission published a notice of proposed rulemaking (“NPR”) proposing to exempt model rocket propellant devices for use with smaller rocket-powered model cars like the “Blurzz.” 67 FR 4373. As explained in the NPR, the Commission concluded that due to the weight, speed and the height it can reach, the larger “Screamin’ Eagle” posed a significant risk of injury to any person downrange from it when it is used in the absence of the tether. The Commission, therefore, denied the petition insofar as it requested an exemption from the FHSA for model rocket propellant devices for cars like the “Screamin’ Eagle.” However, the Commission concluded that when the smaller “Blurzz” car was ignited
The Commission received three comments on the NPR from Centuri, Intertek Testing Services (“Intertek”), and the National Association of Rocketry (“NAR”). Centuri commented on some of the technical statements in the staff's memos that were part of the briefing package concerning Centuri's petition. The comment from Intertek was actually test results submitted by Centuri. Intertek suggested enlarging the safety alert symbol that appears in directions for the model car. Commission staff agrees that the entire warning label should be larger. NAR agreed with the Commission that the exemption should be limited to smaller “A” motors.
When reviewing data for the petition, the Commission's Directorate for Epidemiology found two deaths over a 20-year period involving model airplanes (both involved adult males, 40 and 44 years of age). Centuri provided additional information about these. In one incident, the plane weighed about 5 pounds (compared to 2.7 oz. for a size “A” rocket-powered model car), and was traveling at an estimated 200 mph (compared to the top speed of 28 mph for the size “A” car). Centuri characterized the airplane in the other incident as “quite large and heavy.” The staff reviewed data available after the petition briefing package (for the period May 26, 2001 to April 15, 2002) and found no deaths that could be considered comparable to deaths that might involve rocket-powered model cars.
The Commission's Human Factors staff reviewed revised instructions submitted by Centuri and concluded that the revisions were an improvement over previous instructions and would make them easier for users age 10 and up to follow.
The Commission's Engineering staff reviewed results of testing from Intertek. Intertek was primarily concerned with the dangers of launching the engine alone without the vehicle. Because such motors are currently available with other exempted products, the staff does not believe that exempting rocket-powered model cars creates or increases the hazard of igniting motors outside the vehicles. Intertek was also concerned about launching cars from a ramp or vertical support. However, the Engineering staff believes such operation would be similar to launching a model rocket, and injury data do not suggest a problem with model rockets in those types of launches.
The Commission's staff was concerned about possible injuries if rocket powered cars are operated off the tether. As discussed above, when the “Blurzz” was used without the tether it traveled only a limited distance a few inches off the ground and then flipped on its back. Such performance is not likely to injure operators or bystanders. However, Compliance staff was concerned that in the future a company may develop a rocket-powered model car that when operated off the tether could obtain sufficient height, distance and force to injure operators or bystanders. Thus, the final rule contains a limitation that vehicles must be designed so that they either cannot operate off of a track or line (
A small change was made to the final rule in order to correct a cross reference that conflicted with the characteristics of an A motor described in section 1500.85(a)(14)(i)(B) of the rule and to include appropriate provisions of the cross-reference in the rule itself.
This rule exempts certain model rocket propellant devices for rocket-powered model cars that would otherwise be banned under the FHSA. Because the rule grants an exemption, it is not subject to the requirement under the Administrative Procedure Act (“APA”) that a rule must be published 30 days before it takes effect. 5 U.S.C 553(d)(1). The rule lifts an existing restriction and allows a product not previously permitted. Thus, the Commission believes it is appropriate for the rule to become effective upon publication in the
The NPR discussed the Commission's assessment of the impact that a rule to exempt propellant devices for use with small rocket-powered model cars like the “Blurzz” might have on small businesses. Because the exemption would relieve manufacturers from existing restrictions, the Commission concluded that the proposed exemption would not have a significant impact on a substantial number of small businesses or other small entities. No comments or additional information alter that conclusion.
Pursuant to the National Environmental Policy Act, and in accordance with the Council on Environmental Quality regulations and CPSC procedures for environmental review, the Commission assessed the possible environmental effects associated with the proposed exemption. As discussed in the NPR, the Commission concluded that the rule would have no adverse effect on the environment, and therefore, neither an environmental assessment nor an environmental impact statement is required.
According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations.
The FHSA provides that, generally, if the Commission issues a rule under section 2(q) of the FHSA to protect against a risk of illness or injury associated with a hazardous substance, “no State or political subdivision of a State may establish or continue in effect a requirement applicable to such substance and designed to protect against the same risk of illness or injury unless such requirement is identical to
The Commission has also evaluated the rule in light of the principles stated in Executive Order 13132 concerning federalism, even though that Order does not apply to independent regulatory agencies such as CPSC. The Commission does not expect that the rule will have any substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among various levels of government.
Consumer protection, Hazardous materials, Hazardous substances, Imports, Infants and children, Labeling, Law enforcement, Toys.
15 U.S.C. 1261-1278.
(a) * * *
(14) Model rocket propellant devices (model rocket motors) designed to propel rocket-powered model cars, provided—
(i) Such devices:
(A) Are designed to be ignited electrically and are intended to be operated from a minimum distance of 15 feet (4.6 m) away;
(B) Contain no more than 4 g. of propellant material and produce no more than 2.5 Newton-seconds of total impulse with a thrust duration not less than 0.050 seconds;
(C) Are constructed such that all the chemical ingredients are pre-loaded into a cylindrical paper or similarly constructed non-metallic tube that will not fragment into sharp, hard pieces;
(D) Are designed so that they will not burst under normal conditions of use, are incapable of spontaneous ignition, and do not contain any type of explosive or pyrotechnic warhead other than a small recovery system activation charge;
(E) Bear labeling, including labeling that the devices are intended for use by persons age 12 and older, and include instructions providing adequate warnings and instructions for safe use; and
(F) Comply with the requirements of 16 CFR 1500.83(a)(36)(ii and iii); and
(ii) The surface vehicles intended for use with such devices:
(A) Are lightweight, weighing no more than 3.0 oz. (85 grams), and constructed mainly of materials such as balsa wood or plastics that will not fragment into sharp, hard pieces;
(B) Are designed to utilize a braking system such as a parachute or shock absorbing stopping mechanism;
(C) Are designed so that they cannot accept propellant devices measuring larger than 0.5″ (13 mm) in diameter and 1.75″ (44 mm) in length;
(D) Are designed so that the engine mount is permanently attached by the manufacturer to a track or track line that controls the vehicle's direction for the duration of its movement;
(E) Are not designed to carry any type of explosive or pyrotechnic material other than the model rocket motor used for primary propulsion;
(F) Bear labeling and include instructions providing adequate warnings and instructions for safe use; and
(G) Are designed to operate on a track or line that controls the vehicles' direction for the duration of their movement and either cannot operate off the track or line or, if operated off the track or line, are unstable and fail to operate in a guided fashion so that they will not strike the operator or bystanders.
(a) * * *
(36) * * *
(i) The devices are designed and constructed in accordance with the specifications in § 1500.85(a)(8), (9) or (14);
Tennessee Valley Authority (TVA).
Final rule.
The Tennessee Valley Authority is amending its Freedom of
January 30, 2003.
Denise Smith, FOIA Officer, Tennessee Valley Authority, 400 W. Summit Hill Drive (ET 5D), Knoxville, Tennessee 37902-1499, telephone number (865) 632-6945.
This rule was not published in proposed form since it relates to agency procedure and practice. Since this rule is nonsubstantive, it is being made effective January 30, 2003.
Freedom of Information, Government in the Sunshine, Privacy
16 U.S.C. 831-831ee, 5 U.S.C. 552.
(a) TVA's FOIA Officer, or the FOIA Officer's designee, is responsible for responding to all FOIA requests. In determining which records are responsive to a request, TVA will ordinarily include only records in its possession as of the date it begins its search for them. If any other date is used, the FOIA Officer shall inform the requester of that date.
Social Security Administration.
Final rules.
These final rules amend our regulations to reflect the changes in full retirement age and in monthly benefit reduction for early retirement as established by section 201 of the Social Security Amendments of 1983 (the 1983 Amendments), and the change in delayed retirement credits (DRCs) as established by section 4 of the Senior Citizens' Freedom to Work Act of 2000 (the Freedom to Work Act). Section 201 of the 1983 Amendments gradually increases the full retirement age for unreduced old-age, wife's or husband's, and widow's or widower's benefits from age 65 to age 67. Section 201 provides for an additional reduction in old-age and wife's or husband's benefits when early retirement is elected more than 36 months prior to full retirement age. It also requires a different method of computing the amount of reduction for early retirement for widow's or widower's benefits. Section 4 of the Freedom to Work Act allows a beneficiary who has attained full retirement age to voluntarily suspend retirement benefits to earn DRCs.
These rules are effective January 30, 2003.
Bill Hilton, Social Insurance Specialist, Office of Program Benefits, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-2468 or TTY (410) 966-5609. For information on eligibility, filing for benefits, or coverage of earnings, call our national toll-free number, 1-800-772-1213 or TTY at 1-800-325-0778.
Section 201 of the 1983 Amendments changed the age at which unreduced old-age benefits, wife's or husband's benefits, and widow's or widower's benefits are payable from age 65 to age 67. The change is phased in over a period of 22 years. This increase affects those born after January 1, 1938.
Section 201 also changed the way reduced monthly benefits are computed for early retirement. The reduction factor for early retirement of the worker and wife or husband will remain the same as under the pre-amendment law for the first 36 months of the reduction period. For each month in excess of 36 months there will be an additional reduction of
The maximum reduction for widow's or widower's benefits will continue to be 28
Section 4 of the Freedom to Work Act allows people who have attained full retirement age and are receiving retirement benefits to voluntarily suspend those benefits in order to earn DRCs.
We are adding new § 404.409 to our regulations to explain the effect of section 201 of the 1983 Amendments. This new section shows the full range of dates of birth and the corresponding full retirement ages (the age at which a person can retire and receive unreduced old-age, wife's, husband's, widow's or widower's benefits).
We are revising §§ 404.315, 404.316 and 404.321 to reflect the change in full retirement age mandated by section 201 of the 1983 Amendments.
We are revising § 404.277 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are correcting this section to show that automatic cost-of-living adjustments now occur in December.
We are revising § 404.304 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are correcting language in this section to say that benefits may be reduced because of the receipt of a government pension instead of saying that benefits will be reduced. This allows for the exceptions that sometimes occur. We are removing the incorrect language that indicated the benefit will be reduced by the amount of the pension.
We are revising § 404.313 to reflect the change in full retirement age mandated by section 201 of the 1983 Amendments. We are including a section to explain that delayed retirement credits may now be earned by a voluntary suspension of benefits as provided for in section 4 of the Freedom To Work Act. We are rewriting the section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258.
We are revising § 404.317 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to
We are revising § 404.352 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are expanding the explanation of when benefits end.
We are revising § 404.410 to reflect the change in full retirement age as mandated by section 201 of the 1983 Amendments. We are rewriting this section in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258. We are adding an explanation that benefits to a widow or widower based on disability before age 60 are reduced only for months before full retirement age because the disabled widow or widower is deemed to be age 60.
We are revising §§ 404.201, 404.310, 404.311, 404.312, 404.335, 404.336, 404.337, 404.338, 404.411, 404.412, 404.413, 404.421, 404.621 and 404.623 to reflect the change in full retirement age mandated by section 201 of the 1983 Amendments. We are rewriting these entire sections in plain language format to comply with the provisions of Executive Order 12866, as amended by Executive Order 13258.
Pursuant to section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5), we follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when developing our regulations. The APA provides exceptions to its notice and comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(B), good cause exists for dispensing with the notice and public comment procedures for these rules. Good cause exists because these regulations simply reflect statutory changes and do not involve the making of any discretionary policy. Therefore, we have determined that opportunity for prior comment is unnecessary and we are issuing these changes to our regulations as final rules.
In addition, we find good cause for dispensing with the 30-day delay in the effective date of a substantive rule, provided by 5 U.S.C. 553(d). As explained above, these regulations merely reflect self-executing statutory changes that have their own effective dates. We believe it would be misleading and contrary to the public interest for the regulations to show a later effective date, because we must compute benefits as directed by the statute in all cases.
We have consulted with the Office of Management and Budget (OMB) and determined that these final rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were not subject to OMB review.
These final regulations impose no additional reporting or recordkeeping requirements requiring OMB clearance.
We certify that these final regulations will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
Administrative practice and procedure, Blind, Disability benefits, Old-age, Survivors and disability insurance, Reporting and recordkeeping requirements, Social Security.
Secs. 202(a), 205(a), 215, and 702(a)(5) of the Social Security Act (42 U.S.C. 402(a), 405(a), 415, and 902(a)(5)).
In this subpart we describe how we compute your primary insurance amount (PIA), how and when we will recalculate or recompute your PIA to include credit for additional earnings, and how we automatically adjust your PIA to reflect changes in the cost of living.
(a)
(b)
(2) In §§ 404.210 through 404.213, we describe the average-indexed-monthly-earnings method we use to compute the primary insurance amount (PIA) for workers who attain age 62 (or become disabled or die before age 62) after 1978.
(3) In §§ 404.220 through 404.222, we describe the average-monthly-wage method we use to compute the PIA for workers who attain age 62 (or become disabled or die before age 62) before 1979.
(4) In §§ 404.230 through 404.233, we describe the guaranteed alternative method we use to compute the PIA for people who attain age 62 after 1978 but before 1984.
(5) In §§ 404.240 through 404.243, we describe the old-start method we use to compute the PIA for those who had all or substantially all of their social security covered earnings before 1951.
(6) In §§ 404.250 through 404.252, we describe special rules we use to compute the PIA for a worker who previously had a period of disability.
(7) In §§ 404.260 through 404.261, we describe how we compute the special minimum PIA for long-term, low-paid workers.
(8) In §§ 404.270 through 404.278, we describe how we automatically increase your PIA because of increases in the cost of living.
(9) In §§ 404.280 through 404.288, we describe how and when we will recompute your PIA to include additional earnings which were not used in the original computation.
(10) In § 404.290 we describe how and when we will recalculate your PIA.
(11) Appendices I-VII contain material such as figures and formulas that we use to compute PIAs.
(a)
(b)
(c)
(1) December of the year you become entitled to benefits and receive at least a partial benefit;
(2) December of the year you reach full retirement age (as defined in § 404.409) if you are entitled to benefits in or before the month you attain full retirement age, regardless of whether you receive at least a partial benefit; or
(3) December of the year you become entitled to benefits if that is after you attain full retirement age.
(d)
(2) Automatic cost-of-living increases apply beginning with December of the earlier of:
(i) The year in which your surviving spouse or surviving divorced spouse (as defined in §§ 404.335 and 404.336) has attained full retirement age (as defined in § 404.409) and receives at least a partial benefit, or
(ii) The year in which your surviving spouse or surviving disabled spouse becomes entitled to benefits and receives at least a partial benefit.
(3) Automatic cost-of-living increases are not applied to the frozen minimum PIA in any year in which no survivor of yours is entitled to benefits on your social security record.
Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, 228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
This subpart describes how we determine the highest monthly benefit amount you ordinarily could qualify for under each type of benefit. However, the highest monthly benefit amount you could qualify for may not be the amount you will be paid. In a particular month, your benefit amount may be reduced or not paid at all. Under some circumstances, your benefit amount may be increased. The most common reasons for a change in your benefit amount are listed below.
(a)
(b)
(c)
(d)
(e)
(f)
We will find you entitled to old-age benefits if you meet the following three conditions:
(a) You are at least 62 years old;
(b) You have enough social security earnings to be fully insured as defined in §§ 404.110 through 404.115; and
(c) You apply; or you are entitled to disability benefits up to the month you attain full retirement age (as defined in § 404.409). When you attain full retirement age, your disability benefits automatically become old-age benefits.
(a) We will find you entitled to old-age benefits beginning with:
(1) If you have attained full retirement age (as defined in § 404.409), the first month covered by your application
(2) If you have attained age 62, but have not attained full retirement age (as defined in § 404.409), the first month covered by your application
(b) We will find your entitlement to old-age benefits ends with the month before the month you die.
(a) If your old-age benefits begin in the month you attain full retirement age (as defined in § 404.409), your monthly benefit is equal to the primary insurance amount (as explained in subpart C of this part).
(b) If your old-age benefits begin after the month you attain full retirement age, your monthly benefit is your primary insurance amount plus an increase for retiring after full retirement age. See § 404.313 for a description of these increases.
(c) If your old-age benefits begin before the month you attain full retirement age, your monthly benefit amount is the primary insurance amount minus a reduction for each month you are entitled before you attain full retirement age. These reductions are described in §§ 404.410 through 404.413.
(a)
(b)
(2)
Alan was qualified for old-age benefits when he reached age 65 on January 15, 1998. He decided not to apply for old-age benefits immediately because he was still working. When he became age 66 in January 1999, he stopped working and applied for benefits beginning with that month. Based on his earnings, his primary insurance amount was $782.60. However, because he did not receive benefits immediately upon attainment of full retirement age (65), he is due an increase based on his delayed retirement credits. He earned 12 credits, one for each month from January 1998 through December 1998. Based on his date of birth of 1/15/1933 he is entitled to a credit of 11/24 of one percent for each month of delayed retirement. 12 credits multiplied by 11/24 of one percent equals a credit of 5.5 percent. 5.5% of the primary insurance amount of $782.60 is $43.04 which is rounded to $43.00, the next lower multiple of 10 cents. $43.00 is added to the primary insurance amount, $782.60. The result, $825.60 is the monthly benefit amount. If a supplementary medical insurance premium is involved it is then deducted. The result is rounded to the next lower multiple of $1 (if the answer is not already a multiple of $1).
(c)
(2)
(3)
(d)
(e)
(1)
(2)
(3)
(a)
(b)* * *
(2) The month before the month you attain full retirement age as defined in § 404.409 (at full retirement age your disability benefits will be automatically changed to old-age benefits);
Your monthly benefit is equal to the primary insurance amount (PIA). This amount is computed under the rules in subpart C of this part as if it was an old-age benefit, and as if you were 62 years of age at the beginning of the 5-month waiting period mentioned in § 404.315(a). If the 5-month waiting period is not required because of your previous entitlement, your PIA is figured as if you were 62 years old when you become entitled to benefits this time. Your monthly benefit amount may be reduced if you receive worker's compensation or public disability payments before you become 65 years old as described in § 404.408. Your benefits may also be reduced if you were entitled to other retirement-age benefits before you attained full retirement age (as defined in § 404.409).
(a)
(c) * * *
(1) The month before the month in which you attain full retirement age as defined in § 404.409.
We will find you entitled to benefits as the widow or widower of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section:
(a) You are the insured's widow or widower based upon a relationship described in §§ 404.345 through 404.346, and you meet one of the conditions in paragraphs (a)(1) through (4) of this section:
(1) Your relationship to the insured as a wife or husband lasted for at least 9 months immediately before the insured died.
(2) Your relationship to the insured as a wife or husband did not last 9 months before the insured died, but at the time of your marriage the insured was reasonably expected to live for 9 months, and you meet one of the conditions in paragraphs (a)(2)(i) through (iii) of this section:
(i) The death of the insured was accidental. The death is accidental if it was caused by an event that the insured did not expect; it was the result of bodily injuries received from violent and external causes; and as a direct result of these injuries, death occurred not later than 3 months after the day on which the bodily injuries were received. An intentional and voluntary suicide will not be considered an accidental death.
(ii) The death of the insured occurred in the line of duty while he or she was serving on active duty as a member of the uniformed services as defined in § 404.1019.
(iii) You had been previously married to the insured for at least 9 months.
(3) You and the insured were the natural parents of a child; or you were married to the insured when either of you adopted the other's child or when both of you adopted a child who was then under 18 years old.
(4) In the month before you married the insured, you were entitled to or, if you had applied and had been old enough, could have been entitled to any of these benefits or payments: widow's, widower's, father's (based on the record of a fully insured individual), mother's (based on the record of a fully insured individual), wife's, husband's, parent's, or disabled child's benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children age 18 or older.
(b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section:
(1) You are entitled to wife's or husband's benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in § 404.409) or you are not entitled to either old-age or disability benefits.
(2) You are entitled to mother's or father's benefits for the month before the month in which you attained full retirement age (as defined in § 404.409).
(3) You are entitled to wife's or husband's benefits and to either old-age or disability benefits in the month before the month of the insured's death, you are under full retirement age (as defined in § 404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow's or widower's benefits.
(4) You applied in 1990 for widow's or widower's benefits based on disability and you meet both of the conditions in paragraphs (b)(4)(i) and (ii) of this section:
(i) You were entitled to disability insurance benefits for December 1990, or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991.
(ii) You were found not disabled for any month based on the definition of disability in §§ 404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in § 404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.)
(c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in § 404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section:
(1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother's or father's benefits or to widow's or widower's benefits based upon a disability, whichever occurred last.
(2) Your disability continued during a waiting period of 5 full consecutive
(3) Exception: For monthly benefits payable for months after December 1990, if you were or have been eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, your disability need not have continued through a separate, full 5-month waiting period before you may begin receiving benefits. We will include as months of the 5-month waiting period the months in a period beginning with the first month you received supplemental security income or a federally administered State supplementary payment and continuing through all succeeding months, regardless of whether the months in the period coincide with the months in which your waiting period would have occurred, or whether you continued to be eligible for supplemental security income or a federally administered State supplementary payment after the period began, or whether you met the nondisability requirements for entitlement to widow's or widower's benefits. However, we will not pay you benefits under this provision for any month prior to January 1991.
(4) You have not previously received 36 months of payments based on disability when drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in § 404.1535), regardless of the number of entitlement periods you may have had, or your current application for widow's or widower's benefits is not based on a disability where drug addiction or alcoholism is a contributing factor material to the determination of disability.
(d) You are not entitled to an old-age benefit that is equal to or larger than the insured person's primary insurance amount.
(e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section:
(1) You remarried after you became 60 years old.
(2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section:
(i) You remarried after attaining age 50 but before attaining age 60.
(ii) At the time of the remarriage, you were entitled to widow's or widower's benefits as a disabled widow or widower.
(3) You are now at least age 50, but not yet age 60 and you meet both of the conditions in paragraphs (e)(3)(i) and (ii) of this section:
(i) You remarried after attaining age 50.
(ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage (
We will find you entitled to widow's or widower's benefits as the surviving divorced wife or the surviving divorced husband of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section:
(a) You are the insured's surviving divorced wife or surviving divorced husband and you meet both of the conditions in paragraphs (a)(1) and (2) of this section:
(1) You were validly married to the insured under State law as described in § 404.345 or are deemed to have been validly married as described in § 404.346.
(2) You were married to the insured for at least 10 years immediately before your divorce became final.
(b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section:
(1) You are entitled to wife's or husband's benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in § 404.409) or you are not entitled to old-age or disability benefits.
(2) You are entitled to mother's or father's benefits for the month before the month in which you attain full retirement age (as defined in § 404.409).
(3) You are entitled to wife's or husband's benefits and to either old-age or disability benefits in the month before the month of the insured's death, you have not attained full retirement age (as defined in § 404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow's or widower's benefits.
(4) You applied in 1990 for widow's or widower's benefits based on disability, and you meet the requirements in both paragraphs (b)(4)(i) and (ii) of this section:
(i) You were entitled to disability insurance benefits for December 1990 or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991.
(ii) You were found not disabled for any month based on the definition of disability in §§ 404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in § 404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.)
(c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in § 404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section:
(1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother's or father's benefits or to widow's or widower's benefits based upon a disability, whichever occurred last.
(2) Your disability continued during a waiting period of 5 full consecutive months, unless months beginning with the first month of eligibility for supplemental security income or federally administered State supplementary payments are counted, as explained in the Exception in paragraph (c)(3) of this section. This waiting period may begin no earlier than the 17th month before you applied; the fifth month before the insured died; or if you were previously entitled to mother's, father's, widow's, or widower's benefits, the 5th month before your previous entitlement to benefits ended. If you were previously entitled to widow's or widower's benefits based upon a disability, no waiting period is required.
(3) Exception: For monthly benefits payable for months after December 1990, if you were or have been eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this
(4) You have not previously received 36 months of payments based on disability when drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in § 404.1535), regardless of the number of entitlement periods you may have had, or your current application for widow's or widower's benefits is not based on a disability where drug addiction or alcoholism is a contributing factor material to the determination of disability.
(d) You are not entitled to an old-age benefit that is equal to or larger than the insured person's primary insurance amount.
(e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section:
(1) You remarried after you became 60 years old.
(2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section:
(i) You remarried after attaining age 50 but before attaining age 60.
(ii) At the time of the remarriage, you were entitled to widow's or widower's benefits as a disabled widow or widower.
(3) You are now at least age 50 but not yet age 60 and you meet one of the conditions in paragraphs (e)(3)(i) and (ii) of this section:
(i) You remarried after attaining age 50.
(ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage (
(a) We will find you entitled to widow's or widower's benefits under § 404.335 or § 404.336 beginning with the first month covered by your application in which you meet all other requirements for entitlement.
(b) We will end your entitlement to widow's or widower's benefits at the earliest of the following times:
(1) The month before the month in which you become entitled to an old-age benefit that is equal to or larger than the insured's primary insurance amount.
(2) The second month after the month your disability ends or, where disability ends on or after December 1, 1980, the month before your termination month (§ 404.325). However your payments are subject to the provisions of paragraphs (c) and (d) of this section.
(3) If drug addiction or alcoholism is a contributing factor material to the determination of disability as described in § 404.1535, the month after the 12th consecutive month of suspension for noncompliance with treatment or after 36 months of benefits on that basis when treatment is available regardless of the number of entitlement periods you may have had, unless you are otherwise disabled without regard to drug addiction or alcoholism.
(4) The month before the month in which you die.
(c)(1) If you are entitled to widow's or widower's benefits based on a disability and your impairment is no longer disabling, generally, we will continue your benefits if you meet all the conditions in paragraphs (c)(1)(i) through (iv) of this section:
(i) Your disability did not end before December 1980, the effective date of this provision of the law.
(ii) You are participating in an appropriate program of vocational rehabilitation as described in § 404.316(c)(1)(ii).
(iii) You began the program before your disability ended.
(iv) We determined that your completion of the program, or your continuation in the program for a specified period of time, would significantly increase the likelihood that you will not have to return to the disability benefit rolls.
(2) Generally, we will stop your benefits with the month you meet one of the conditions in paragraphs (c)(2)(i) through (iii) of this section:
(i) You complete the program.
(ii) You stop participating in the program for any reason.
(iii) We determined that your continuing participation in the program would no longer significantly increase the likelihood that you will be permanently removed from the disability benefit rolls.
(iv) Exception: In no case will we stop your benefits with a month earlier than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment (§ 404.1511), we will pay you benefits for all months in which you do not do substantial gainful activity during the reentitlement period (§ 404.1592a) following the end of your trial work period (§ 404.1592). If you are unable to do substantial gainful activity in the first month following the reentitlement period, we will pay you benefits until you are able to do substantial gainful activity. (Earnings during your trial work period do not affect the payment of your benefits.) We will also pay you benefits for the first month after the trial work period in which you do substantial gainful activity and the two succeeding months, whether or not you do substantial gainful activity during those succeeding months. After those three months, we cannot pay you benefits for any months in which you do substantial gainful activity.
Your widow's or widower's monthly benefit is equal to the insured person's primary insurance amount. If the insured person died before reaching age 62 and you are first eligible after 1984, we may compute a special primary insurance amount to determine the amount of your monthly benefit (
(a) We will find your entitlement to child's benefits begins at the following times:
(1) If the insured is deceased, with the first month covered by your application in which you meet all other requirements for entitlement.
(2) If the insured is living and your first month of entitlement is September 1981 or later, with the first month covered by your application throughout which you meet all other requirements for entitlement.
(3) If the insured is living and your first month of entitlement is before September 1981, with the first month covered by your application in which you meet all other requirements for entitlement.
(b) We will find your entitlement to child's benefits ends at the earliest of the following times:
(1) With the month before the month in which you become 18 years old, if you are not disabled or a full-time student.
(2) With the second month following the month in which your disability ends, if you become 18 years old and you are disabled. If your disability ends on or after December 1, 1980, your entitlement to child's benefits continues, subject to the provisions of paragraphs (c) and (d) of this section, until the month before your termination month (§ 404.325).
(3) With the last month you are a full-time student or, if earlier, with the month before the month you become age 19, if you become 18 years old and you qualify as a full-time student who is not disabled. If you become age 19 in a month in which you have not completed the requirements for, or received, a diploma or equivalent certificate from an elementary or secondary school and you are required to enroll for each quarter or semester, we will find your entitlement ended with the month in which the quarter or semester in which you are enrolled ends. If the school you are attending does not have a quarter or semester system which requires reenrollment, we will find your entitlement to benefits ended with the month you complete the course or, if earlier, the first day of the third month following the month in which you become 19 years old.
(4) With the month before the month you marry. We will not find your benefits ended, however, if you are age 18 or older, disabled, and you marry a person entitled to child's benefits based on disability or person entitled to old-age, divorced wife's, divorced husband's, widow's, widower's, mother's, father's, parent's, or disability benefits.
(5) With the month before the month the insured's entitlement to old-age or disability benefits ends for a reason other than death or the attainment of full retirement age (as defined in § 404.409). Exception: We will continue your benefits if the insured person was entitled to disability benefits based on a finding that drug addiction or alcoholism was a contributing factor material to the determination of his or her disability (as described in § 404.1535), the insured person's benefits ended after 36 months of payment (see § 404.316(e)) or 12 consecutive months of suspension for noncompliance with treatment (see § 404.316(f)), and the insured person remains disabled.
(6) With the month before the month you die.
(c) If you are entitled to benefits as a disabled child age 18 or over and your disability is based on a finding that drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in § 404.1535), we will find your entitlement to benefits ended under the following conditions:
(1) If your benefits have been suspended for a period of 12 consecutive months for failure to comply with treatment, with the month following the 12 months unless you are otherwise disabled without regard to drug addiction or alcoholism (see § 404.470(c)).
(2) If you have received 36 months of benefits on that basis when treatment is available, regardless of the number of entitlement periods you may have had, with the month following such 36-month payment period unless you are otherwise disabled without regard to drug addiction or alcoholism.
(d)(1) Generally, we will continue your benefits after your impairment is no longer disabling if you meet all the following conditions:
(i) Your disability did not end before December 1980, the effective date of this provision of the law.
(ii) You are participating in an appropriate program of vocational rehabilitation as described in § 404.316(c)(1)(ii).
(iii) You began the program before your disability ended.
(iv) We have determined that your completion of the program, or your continuation in the program for a specified period of time, will significantly increase the likelihood that you will not have to return to the disability benefit rolls.
(2) Generally, we will end your entitlement to benefits with the month you meet one of the following conditions:
(i) You complete the program.
(ii) You stop participating in the program for any reason.
(iii) We determine that your continuing participation in the program will no longer significantly increase the likelihood that you will be permanently removed from the disability benefit rolls.
(iv) Exception: In no case will we stop your benefits with a month earlier than the second month after the month your disability ends.
(e) If, after November 1980, you have a disabling impairment (§ 404.1511), we will pay you benefits for all months in which you do not do substantial gainful activity during the reentitlement period (§ 404.1592a) following the end of your trial work period (§ 404.1592). If you are unable to do substantial gainful activity in the first month following the reentitlement period, we will pay you benefits until you are able to do substantial gainful activity. (Earnings during your trial work period do not affect the payment of your benefits during that period.) We will also pay you benefits for the first month after the trial work period in which you do substantial gainful activity and the two succeeding months, whether or not you do substantial gainful activity during those succeeding months. After those three months, we cannot pay you benefits for any months in which you do substantial gainful activity.
Secs. 202, 203, 204(a) and (e), 205(a) and (c), 216(l), 222(b), 223(e), 224, 225, 702(a)(5) and 1129A of the Social Security Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 416(l), 422(b), 423(e), 424a, 425, 902(a)(5) and 1320a-8a).
Full retirement age is the age at which you may receive unreduced old-age, wife's, husband's, widow's, or
(a)
(b)
(c)
Generally your old-age, wife's, husband's, widow's, or widower's benefits are reduced if entitlement begins before the month you attain full retirement age (as defined in § 404.409). However, your benefits as a wife or husband are not reduced for any month in which you have in your care a child of the worker on whose earnings record you are entitled. The child must be entitled to child's benefits. Your benefits as a widow or widower are not reduced below the benefit amount you would receive as a mother or father for any month in which you have in your care a child of the worker on whose record you are entitled. The child must be entitled to child's benefits. Subject to §§ 404.411 through 404.413, reductions in benefits are made in the amounts described.
(a)
Alex's full retirement age for unreduced benefits is 65 years and 8 months. She elects to begin receiving benefits at age 62. Her primary insurance amount of $980.50 must be reduced because of her entitlement to benefits 44 months prior to full retirement age. The reduction is 36 months at
(b)
Sam is entitled to old-age benefits. His spouse Ashley elects to begin receiving wife's benefits at age 63. Her full retirement age for unreduced benefits is 65 and 4 months. Her benefit will be reduced for 28 months of entitlement prior to full retirement age. If her unreduced benefit is $412.40 the reduction will be $412.40 × 28 ×
(c)
Your entitlement to widow's or widower's benefits may begin at age 60 based on age or at age 50 based on disability. Refer to § 404.335 for more information on the requirements for entitlement. Both types are reduced if entitlement begins prior to attainment of full retirement age (as defined in § 404.409).
(1)
Ms. Bogle is entitled to an unreduced widow benefit of $785.70 beginning at age 64. Her full retirement age for unreduced old-age benefits is 65 years and 4 months. She will receive benefits for 16 months prior to attainment of full retirement age. The number of months in the period from age 60 through full retirement age of 65 and 4 months is 64. The reduction in her benefit is $785.70 × 16 × .285 divided by 64 or $55.98. $55.98 is rounded to the next higher multiple of 10 cents ($56.00) and subtracted from $785.70. The result is a monthly benefit of $729.70.
(2)
(ii) For months from January 1973 through December 1983, benefits as a disabled widow or widower were reduced under paragraph (c)(1) of this section. The benefits were then subject to an additional reduction of
(3)
(d)
(e)
(a)
(b)
(1)
(2)
(i)
(A) The amount the disability benefit would have been reduced under paragraph (b)(1) of this section; or
(B) The amount equal to the sum of the amount the widow's or widower's benefit would have been reduced under the provisions of § 404.410 if full retirement age for unreduced benefits were age 62 plus the amount by which the disability benefit would have been reduced under paragraph (b)(1) of this section if the benefit were equal to the excess of such benefit over the amount of the widow's or widower's benefit (without consideration of this paragraph).
(ii)
(c)
(1)
(2)
(i) The amount by which the old-age benefit would be reduced under the regular age reduction provisions of § 404.410; or
(ii) An amount equal to the sum of:
(A) The amount by which the widow's or widower's benefit would be reduced under § 404.410 for months prior to age 62; and
(B) The amount by which the old-age benefit would be reduced under § 404.410 if it were equal to the excess of the individual's primary insurance amount over the widow's or widower's benefit before any reduction for age (but after any reduction for the family maximum under § 404.403).
(d)
(1) The amount by which the old-age benefit would be reduced under the provisions of § 404.410; and
(2) The amount by which the spouse benefit would be reduced under the provisions of § 404.410 if it were equal to the excess of such benefit (before any reduction for age but after reduction for the family maximum under § 404.403) over the individual's own primary insurance amount.
(e)
(1) The amount (if any) by which the disability benefit is reduced under paragraph (b)(1) of this section, and
(2) The amount by which the wife's or husband's or widow's or widower's benefit would be reduced under § 404.410 if it were equal to the excess of such benefit (before any reduction for age but after reduction for the family maximum under § 404.403) over the disability benefit (before any reduction under paragraph (b) of this section).
(a)
(1) Months subject to deduction under § 404.415, § 404.417, or § 404.422;
(2) In the case of a wife's or husband's benefit, any month in which she or he had a child of the insured individual in her or his care and for which the child was entitled to child's benefits;
(3) In the case of a wife's or husband's benefit, any month for which entitlement to such benefits is precluded because the insured person's disability ceased (and, as a result, the insured individual's entitlement to disability benefits ended);
(4) In the case of a widow's or widower's benefit, any month in which she or he had in her or his care a child of the deceased insured individual and for which the child was entitled to child's benefits;
(5) In the case of a widow's or widower's benefit, any month before attainment of full retirement age for which she or he was not entitled to such benefits;
(6) In the case of an old-age benefit, any month for which the individual was entitled to disability benefits.
(b)
(a)
(b)
(c)
(1)
(2)
(d)
Deductions for failure to have a child in care (as defined in subpart D of this part) are made as follows:
(a)
(b)
(2)
(c)
(d)
(1) Is entitled to child's benefits based on her or his own disability and a deduction is made from the child's benefits because of her or his refusal of rehabilitation services as described in § 404.422(b); or
(2) Is entitled to child's benefits because she or he is a full-time student at an educational institution. This paragraph applies to benefits for months after December 1964.
Secs. 202(i), (j), (o), (p) and (r), 205(a), 216(i)(2), 223(b), 228(a) and 702(a)(5) of the Social Security Act (42 U.S.C. 402(i), (j), (o), (p) and (r), 405(a), 416(i)(2), 423(b), 428(a) and 902(a)(5)).
(a)
(2) If you file an application for old-age benefits, widow's or widower's benefits not based on disability, wife's, husband's, or child's benefits based on the earnings record of a person not entitled to disability benefits, or mother's, father's, or parent's benefits, after the first month you could have been entitled to them, you may receive benefits for up to 6 months immediately before the month in which your application is filed. Your benefits may begin with the first month in this 6-month period in which you meet all the requirements for entitlement. Your entitlement, however, to old-age, wife's, husband's, widow's, or widower's benefits under this rule is limited by paragraph (a)(3) of this section.
(3) If the effect of the payment of benefits for a month before the month you file would be to reduce your benefits because of your age, you cannot be entitled to old-age, wife's, husband's, widow's, or widower's benefits for any month before the month in which your application is filed, unless you meet one of the conditions in paragraph (a)(4) of this section. (An explanation of the reduction that occurs because of age if you are entitled to these benefits for a month before you reach full retirement age, as defined in § 404.409, is in § 404.410.) An example follows that assumes you do not meet any of the conditions in paragraph (a)(4) of this section.
You will attain full retirement age in March 2003. If you apply for old-age benefits in March, you cannot be entitled to benefits in the 6-month period before March because the payment of benefits for any of these months would result in your benefits being reduced for age. If you do not file your application until June 2003, you may be entitled to benefits for the month of March, April and May because the payment of benefits for these months would not result in your benefits being reduced for age. You will not, however, receive benefits for the 3 months before March.
(4) The limitation in paragraph (a)(3) of this section on your entitlement to old-age, wife's, husband's, widow's, or widower's benefits for months before you file an application does not apply if:
(i) You are a widow, widower, surviving divorced wife, or surviving divorced husband who is disabled and could be entitled to retroactive benefits for any month before age 60. If you could not be entitled before age 60, the limitation will prevent payment of benefits to you for past months, but it will not affect the month you become entitled to hospital insurance benefits.
(ii) You are a widow, widower, or surviving divorced spouse of the insured person who died in the month before you applied and you were at least age 60 in the month of death of the insured person on whose earnings record you are claiming benefits. In this case, you can be entitled beginning with the month the insured person died if you choose and if you file your application on or after July 1, 1983.
(b)
(1) If there is a good cause for failure to file within the 2-year period, we will consider your application as though it were filed within the 2-year period. Good cause does not exist if you were informed of the need to file an application within the 2-year period and you neglected to do so or did not desire to make a claim. Good cause will be found to exist if you did not file within the time limit due to—
(i) Circumstances beyond your control, such as extended illness, mental or physical incapacity, or a language barrier;
(ii) Incorrect or incomplete information we furnished you;
(iii) Your efforts to get evidence to support your claim without realizing that you could submit the evidence after filing an application; or
(iv) Unusual or unavoidable circumstances which show that you could not reasonably be expected to know of the time limit.
(2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for extending the filing time.
(c)
(d)
(e)
(a)
(1) Your old-age benefits are reduced for age because you choose to receive them before you reach full retirement age (as defined in § 404.409); and
(2) You are eligible for either a husband's or a wife's benefit for the first month of your entitlement to old-age benefits.
(b)
(1) Your husband's or wife's benefits are reduced for age because you choose to receive them before you reach full retirement age (as defined in § 404.409); and
(2) You are eligible for old-age benefits for the first month of your entitlement to husband's or wife's benefits.
(c)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by ECO LLC. The ANADA provides for topical use of ivermectin on cattle for treatment and control of various species of external and internal parasites.
This rule is effective January 30, 2003.
Lonnie W. Luther, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 301-827-8549, e-mail: lluther@cvm.fda.gov.
ECO LLC, 8209 Hollister Ave., Las Vegas, NV 89131, filed ANADA 200-348 for ECOMECTIN (ivermectin). The application provides for topical use of 0.5 percent ivermectin solution on cattle for the treatment and control of various species of gastrointestinal nematodes, lungworms, grubs, horn flies, lice, and mites. ECO's ECOMECTIN is approved as a generic copy of Merial Limited's IVOMEC Pour-On for Cattle, approved under NADA 140-841. The ANADA is approved as of November 15, 2002, and 21 CFR 524.1193 is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.
In addition, ECO LLC has not been previously listed in the animal drug regulations as a sponsor of an approved application. At this time, 21 CFR 510.600(c) is being amended to add entries for the firm.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
4. Section 524.1193
Postal Service.
Interim rule.
This interim rule provides standards for a Postal Service experiment testing whether additional rate incentives would encourage the co-palletization and drop-shipment of currently sacked bundles of individual Periodicals publications. This interim rule will implement two additional per-piece discounts for co-palletization of Periodicals publications that otherwise would have been prepared in sacks prior to co-palletization. The additional per-piece discounts, resulting from Docket No. MC2002-3 at the Postal Rate Commission, would apply to pieces in bundles placed on SCF and ADC pallets that are drop-shipped to either a destination area distribution center (DADC) or a destination sectional center facility (DSCF). This interim rule includes procedures for preparing and documenting co-palletized mailings and for requesting approval to participate in the experiment.
This interim rule is effective January 30, 2003. Applications for participation in the experiment will be available beginning February 3, 2003. The starting date for the experiment is April 20, 2003. Comments on the standards must be received on or before March 3, 2003.
Written comments should be mailed or delivered to the Manager, Mail Preparation and Standards, U.S. Postal Service, 1735 N. Lynn St., Room 3025, Arlington, VA 22209-6037. Copies of all written comments will be available for inspection and photocopying at USPS Headquarters Library, 475 L'Enfant Plaza, Washington, DC, between 9 a.m. and 4 p.m., Monday through Friday.
Joel Walker, 703-292-3652;
The Postal Service offers certain worksharing incentives in the form of discounts to encourage palletization and drop-shipping of Periodicals mailings. Co-palletization allows mailers to combine separately presorted bundles of different titles and editions on pallets to achieve the minimum pallet weight required to take advantage of current pallet and drop-shipment discounts for Periodicals mail (
Because mail prepared in sacks accounts for a disproportionate amount of the Postal Service's costs for processing Periodicals, the Postal Service designed an experiment to test whether an additional discount would encourage the co-palletization of mail that would otherwise be prepared in sacks. Eligibility requires the co-palletized mail to be prepared on ADC or SCF pallets that are drop-shipped to DADCs or DSCFs. The primary beneficiaries of this incentive should be smaller circulation publications, for which, in some cases, complete mailings are now in sacks. Some smaller portions of larger mailings (sometimes referred to as “residual” or “tail of the mail”), as well as smaller circulation versions, editions, and supplemental mailings of large circulation publications could also qualify under the experiment. The objective of the additional discount is to move mail from origin-entered sacks to drop-shipped pallets.
On September 26, 2002, pursuant to 39 U.S.C. 3623, the Postal Service filed with the Postal Rate Commission a request for a decision recommending an experimental co-palletization classification, with associated discounts, for Outside-County Periodicals. The request was designated as Docket No. MC2002-3 by the Commission. The Commission recommended the experimental classification and discounts on December 20, 2002. This recommendation was approved by the Governors on January 6, 2003, and the Board of Governors set April 20, 2003, as the anticipated implementation date for the experiment, which is to last two years.
This experiment provides additional per-piece discounts to co-palletized Periodicals that cannot be palletized currently because of volume and density. The discounts will be available for pieces in Periodicals mailings and mailing segments that are currently prepared in sacks that, as a result of co-palletizaton, are prepared on ADC or SCF pallets and are drop-shipped to DADCs and DSCFs.
For mail that otherwise would have been prepared in sacks under the original presort for the mailing (before co-palletization), a new per-piece discount of $0.007 would be available for bundles on ADC and SCF pallets entered at destination ADCs. For SCF pallets drop-shipped to destination SCFs, the new per-piece discount would be $0.01. The discounts do not apply to mail prepared on any other pallet level. While mailers will be expected to prepare pallets of at least 250 pounds, the new discount would be available for pallets weighing less than 250 pounds. Less than 250-pound pallets (except overflow pallets) would not be eligible for the existing pallet discounts (
Co-palletization will consist of bundles of mail that remain intact (before and after co-palletization) and are moved from sacks (before co-palletization) to either ADC or SCF pallets to be drop-shipped to the appropriate DADC or DSCF. Mail that moves from an ADC pallet before co-palletization (
The following explains the Periodicals mail types that could be eligible for the experimental co-palletization discounts:
• Small circulation publications.
• Residual volume of independently presorted versions of publications, as well as editions of current issues of larger circulation publications for those destinations where there is insufficient volume to prepare an ADC pallet of at least 250 pounds.
• Supplemental mailings of large circulation publications.
• Multiple titles or multiple versions of a publication that are presorted together into bundles through a selective binding operation if movement of the presorted bundles (created as a result of selective binding) is from sacks to co-pallets.
• Mail that is combined in a co-mailing operation that moves from sacks (if titles or versions are sorted independently) onto pallets that are drop-shipped.
Co-palletized pieces with less than 250 pounds per title or edition per ADC destination, if independently presorted, could qualify for the co-palletization discounts. Co-palletized pieces with less that 250 pounds of mail per title or edition within an ADC remaining after preparing SCF pallets could qualify for the co-palletization discounts because this mail otherwise would have been prepared in sacks. Mailers may build upon originally presorted SCF and ADC pallets, but only the co-palletized pieces with less than 250 pounds per title or edition per ADC destination, if independently presorted, would qualify for the co-palletization discounts.
Other drop-ship and palletization incentives available on the current rate schedule would apply to all the pieces based on their eligibility (
Because co-palletized volumes are difficult to predict, during the experiment co-palletized mail will not be required to be placed on the finest level pallet possible. For example, if a co-palletized ADC pallet contains more than 500 pounds to a particular SCF, an SCF pallet will not be required. Mailers and consolidators will be encouraged to periodically reevaluate mail volumes for SCF/ADC destinations to determine whether additional SCF pallets could be created on a regular basis to maximize presort and worksharing benefits.
The Postal Service recognizes that there is a relatively small volume of mail that is currently either co-palletized or co-mailed and drop-shipped. Consolidators who already drop-ship co-palletized volume are eligible for the additional discounts if the standards outlined below are met.
The Postal Service will require documentation (summarized for each title and identified by edition, version, or segment) that profiles mailings before co-palletization, to substantiate that without co-palletization the mail would have been prepared in sacks (
The mailer or consolidator must provide documentation of the mail both before and after co-palletization (
The Postal Service is issuing a new postage statement that includes the new co-palletization discounts. Periodicals mailers must use this postage statement for mailings that qualify for and claim the new discounts.
Publications mailed under the CPP program may be included as part of a co-palletized mailing. Publishers may elect to (1) remove the co-palletized portion of a mailing job from the CPP consolidated postage statement and pay postage at the consolidation point, or (2) provide, to the preparer of the consolidated postage statement, information about the co-palletized portion of their mailing to be included on the consolidated postage statement submitted to the New York Rates and Classification Service Center.
Publishers that co-palletize multiple editions of the same publication must submit a consolidated postage statement and register of mailings.
Over the course of the experiment, mailers and consolidators must provide the Postal Service with appropriate data regarding publication titles that include pieces for which the discounts are claimed. The purpose of collecting these data is to provide a measure of the experiment's effectiveness. The Postal Service intends to provide participants with details regarding the frequency and methodology for data reporting prior to implementation of the experiment and expects to provide an easily accessible vehicle for reporting via the Internet or email.
Such data will, in aggregated form not identifying particular mailings or publications, be reported also to the Postal Rate Commission under the terms of its recommendation in Docket No. MC2002-3 and may be necessary for preparation of any request for future related permanent classification changes.
Participants must provide the following data to the Postal Service monthly in spreadsheet format (a model spreadsheet is shown in Exhibit A):
1. Number of titles receiving one or both of the co-palletization discounts.
2. Number of sacks that would have been prepared without co-palletization, as well as the weight and the number of addressed pieces that would have been in these sacks.
3. Number of pallets that would have been prepared without co-palletization, as well as the weight and the number of addressed pieces that would have been on pallets.
4. Number of sacks prepared after co-palletization, as well as the weight and the number of addressed pieces in these sacks.
5. Number of pallets containing mail qualifying for the ADC co-palletization discount (both new pallets and existing pallets built upon), as well as the weight and the number of addressed pieces receiving the ADC discount on both of these types of pallets.
6. Number of pallets containing mail qualifying for the SCF co-palletization discount (both new pallets and existing pallets built upon), as well as the weight and the number of addressed pieces receiving the SCF discount on both of these types of pallets.
Parties interested in participating as consolidators in the experiment must request approval from the Postal Service. Requests must be sent to the Manager, Mail Preparation and Standards, at 1735 N. Lynn St., Room 3025, Arlington, VA 22209-6037. The request must be accompanied by the following information, which will be treated as confidential by the Postal Service:
1. A completed application form. Application forms will be available from the Manager, Mail Preparation and Standards, beginning February 3, 2003. Application forms may be requested via email to
2. A process map and narrative describing mail movement from production through the co-palletization process to dispatch to destination entry postal facilities.
3. Samples of presort documentation (before and after co-palletization), and a description of when and how presort documentation and postage statements are generated.
4. An explanation of how data for mailings included under the co-palletization experiment will be collected and reported to the Postal Service, including whether the model spreadsheet provided by the Postal Service can be used.
5. A list of the publications to be included in the test initially and evidence that each publication has obtained the appropriate authorizations at the office(s) where mailings will be verified and postage paid. If the applicant is not a printer and/or is consolidating publications for other printers, a list of these printers must also be included with the application. If the location where mail will be consolidated currently does not have a detached mail unit (DMU), arrangements must be made to establish one with the local post office responsible for the acceptance and verification of mailings.
Requests to participate will be accepted beginning February 10, 2003. Applicants meeting all requirements for the co-palletization test will receive a 90-day conditional authorization. Final approval will be given after the successful completion of the 90-day conditional period.
The effective date of implementation is April 20, 2003.
U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
The standards in G092 apply to mailings that are produced by mailers and consolidators who are approved to participate in the Outside-County Periodicals Co-Palletization Drop-Ship Classification experiment.
The Outside-County Co-Palletization Drop-Ship Classification discounts apply to pieces meeting the standards in G092.
The basic standards for co-palletized mailings are as follows:
a. Each mailing must consist of at least two different Periodicals publications or two different editions, segments, or versions of a Periodicals publication.
b. Each mailing must be presented with the correct postage statement(s). Mailings consisting of different Periodicals publications must be accompanied by a separate postage statement for each publication. Mailings consisting of different editions or versions of the same Periodicals publication must be accompanied by one consolidated postage statement and a register of mailings.
c. Each mailing must meet the documentation and postage payment standards outlined in 2.0 and P200.
d. Each mailing must be entered and postage paid at the post office where consolidation takes place, except that postage for publications authorized under the Centralized Postage Payment (CPP) system may be paid to the New York Rates and Classification Center (RCSC). Each publication included in a mailing under these standards must be authorized for original entry or additional entry at the post office where the consolidated mailing is entered.
To be eligible for one of the discounts, mailpieces must be:
a. Part of a Periodicals mailing meeting the standards in M200, M820, or M900.
b. Part of a mailing segment with less than 250 pounds per title or version per ADC destination, if independently presorted. This includes mail for an ADC service area that remains after finer levels of pallets are prepared.
c. Prepared as bundles (packages) on pallets under M041 and M045, or under M900.
d. Prepared on either an ADC or SCF pallet of co-palletized pieces. Mailers may build on ADC or SCF pallets of 250 or more pounds prepared as part of the original presort. However, the pieces originally on these pallets (250 or more pounds per title or edition) do not qualify for the co-palletization discounts.
e. Drop-shipped to the appropriate DADC or DSCF.
Each mailing must be accompanied by documentation meeting the standards in P012, as well as any other mailing information requested by the Postal Service to support the postage claimed (e.g., advertising percentage and weight per copy). Documentation must be presented by title and version, segment, or edition; or by codes representing each title and version, segment, or edition included in the co-palletized mailing. In addition, documentation for the co-palletized mailing must:
a. Upon request, include presort reports showing how the pieces would have been prepared prior to co-palletization.
b. Include presort and pallet reports showing how the co-palletized pieces are prepared and where they will be entered (DADC or DSCF).
c. Distinguish publications or segments that do not qualify for the co-palletization discounts (
d. Allow easy reconciliation with reports prepared to reflect how mail would have been prepared prior to co-
e. Provide the following data in spreadsheet format (using the model spreadsheet provided by the Postal Service):
(1) Number of titles receiving one or both of the co-palletization discounts.
(2) Number of sacks that would have been prepared without co-palletization, as well as the weight and the number of addressed pieces that would have been in these sacks.
(3) Number of pallets that would have been prepared without co-palletization, as well as the weight and the number of addressed pieces that would have been prepared on pallets.
(4) Number of sacks prepared after co-palletization, as well as the weight and the number of addressed pieces in these sacks.
(5) Number of pallets containing mail qualifying for the ADC co-palletization discount, as well as the weight and the number of addressed pieces receiving the ADC discount on these pallets.
(6) Number of pallets containing mail qualifying for the SCF co-palletization discount, as well as the weight and the number of addressed pieces receiving the SCF discount on these pallets.
The following discounts are available:
a. For pieces sorted to an SCF or ADC pallet of 250 or more pounds and drop-shipped to the appropriate DADC: $0.007 per piece.
b. For pieces sorted to an SCF pallet of 250 or more pounds and drop-shipped to the appropriate DSCF: $0.01 per piece.
c. Co-palletized pieces sorted to overflow DSCF or DADC pallets qualify for the corresponding co-palletization discount.
d. Co-palletized pieces sorted to ADC pallets weighing between 100 and 250 pounds and drop-shipped to the appropriate DADC: $0.007per piece.
A mailer or consolidator may request approval to mail in the experimental Outside-County Periodicals Co-Palletization Drop-Ship test by submitting a written request to the Manager, Mail Preparation and Standards. The request must be accompanied by the following:
a. A completed application form (available from the Manager, Mail Preparation and Standards).
b. A process map and narrative demonstrating how and where presort and co-palletization reports (including “before” and “after” data) are created as they relate to mail movement and consolidation of packages to be co-palletized. The map and narrative must also describe mail movement from production through the co-palletization process to dispatch to destination entry postal facilities.
c. Samples of all required documentation that must be provided at the time of mailing, including “before” and “after” reports and postage statements. The sample reports must demonstrate:
(1) How the co-palletized portion of the mailing is segregated from other mailing segments on the “before” reports.
(2) How mailing jobs, mailing segments, and containers will be identified in both “before” and “after” reports to allow reconciliation of the reports.
(3) How pieces appearing on the “after” reports that qualify for the co-palletization discounts (mailing segments with less than 250 pounds to an ADC) are differentiated from those that do not (mailing segments with 250 or more pounds to an ADC).
d. An explanation of how data for mailings included under the co-palletization experiment will be collected and reported to the Postal Service, including whether the model spreadsheet provided by the Postal Service can a copy of the spreadsheet that will be used.
e. An initial list of the publications to be included in the test and evidence that each publication has obtained the appropriate additional entry authorizations at the office where mailings will be verified and postage paid. The list must indicate if the publications are authorized under the Centralized Postage Payment (CPP) System. If the applicant is not a printer and/or is consolidating publications for other printers, a list of these printers must be included with the application.
The Manager, Mail Preparation and Standards, approves or denies a written request to participate in the experimental Outside-County Periodicals Co-Palletization Drop-Ship Classification test. If the application is approved, the mailer or consolidator will be notified in writing by the Manager, Mail Preparation and Standards. Initial approval is for a conditional 90-day period. When the mailer or consolidator has demonstrated the ability to prepare and enter mailings under the standards in G092, final authorization will be granted. If the application is denied, the mailer or consolidator may file at a later date or submit additional information needed to support the request.
The Manager, Mail Preparation and Standards, may suspend at any time an approval to participate in the experiment when there is an indication that postal revenue is not fully protected. The manager will notify the participant in writing of the decision. The suspension becomes effective upon the mailer's receipt of the notification.
An appropriate amendment to 39 CFR 111 to reflect the changes will be published if the interim rule becomes final.
BTS, DOT.
Final rule.
The BTS is amending its regulation to eliminate obsolete agency references to the Interstate Commerce Commission and to make other minor editorial corrections that will improve the clarity of its regulations. This action is taken on BTS' initiative.
This rule is effective January 30, 2003.
Russell B. Capelle, Jr., Ph.D., Assistant BTS Director for Motor Carrier Information, Department of Transportation, 400 7th Street, SW., Washington, DC 20590; (202) 366-5685; e-mail:
An electronic copy of this document may be downloaded by using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Services at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at:
The public should be aware that anyone can search the electronic form of all comments received in the Department's Docket Management System by using the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
The ICC Termination Act of 1995 (ICCTA) abolished the Interstate Commerce Commission (ICC) and transferred certain ICC functions to the Secretary of Transportation. The authority for the collection and dissemination of motor carrier financial information was transferred to the Secretary of Transportation under 49 U.S.C. 14123 and BTS' implementing regulations (49 CFR part 1420). The Secretary of Transportation delegated this responsibility to the BTS. This rule removes all references to the ICC and amends the regulatory language in 49 CFR part 1420 to reflect the delegation to BTS. The final rule also makes other minor editorial corrections to improve the clarity of the regulations.
This rule is not a significant regulatory action under section 3(f) of E. O. 12866. Therefore, it has not been reviewed by the Office of Management and Budget under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). Because this rule is editorial in nature and involves no costs or burdens, BTS has not prepared an economic evaluation.
These amendments have been analyzed in accordance with the principles and criteria contained in E.O. 12612. The BTS has determined that the amendments do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Because this rule is editorial in nature and involves no costs or burdens, the amendments will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector.
The amendments in this final rule do not increase or decrease the data collected under part 1420, the changes are editorial in nature and the purpose of the rule is to remove obsolete references. Therefore, we find that these amendments will have no impact on the quality of the human environment.
There are no reporting or recordkeeping requirements associated with this final rule.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number 2139-AA10 contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Under the Administrative Procedure Act (5 U.S.C. section 553), the BTS has determined that notice and an opportunity for public comment are unnecessary and contrary to the public interest. Because the amendments made in this final rule are ministerial and will have no substantive impact on the public, the rule is effective upon publication.
Accordingly, the Bureau of Transportation Statistics, under delegated authority pursuant to 49 CFR part 1, amends 49 CFR part 1420 as follows:
Motor carriers, Reporting and recordkeeping requirements.
49 U.S.C. 14123.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Emergency rule; correction.
This document contains corrections to the emergency rule published on January 7, 2003 for the Pacific Coast groundfish fishery.
Effective January 27, 2003 through February 28, 2003.
Jamie Goen or Carrie Nordeen (NMFS, Northwest Region), 206-526-6140.
The specifications and management measures for the 2003 fishing year (January 1 through December 31, 2003) are initially being published in the
Management measures for the Pacific Coast groundfish fishery, effective January 1 through February 28, 2003 (68 FR 908, January 7, 2003), contained errors in the trawl trip limit tables, errors in management area coordinates for both commercial and recreational fisheries, and technical errors that require correction.
The limited entry trawl trip limit table, Table 3 (North)- line 23, is corrected to clarify the yellowtail rockfish small footrope trawl trip limit north of 40°10′ N. latitude (lat.). The original language was confusing, and this correction adds a section to emphasize the limits to the amount of yellowtail that can be harvested if it′s not associated with flatfish. Coastwide, the whiting trip limits, Table 3 (North)- line 14 and Table 3 (South)- line 18, are corrected to allow only mid-water trawling for Pacific whiting inside the rockfish conservation area (RCA) during the primary season (May through August). This is because harvest of whiting outside of the primary season is only allowed as an incidental catch in other groundfish fisheries, which are not supposed to occur in the RCA. Regulatory language for the recreational groundfish fishery off California is corrected to prohibit the retention of bocaccio, canary rockfish, yelloweye rockfish and cowcod in the Rockfish, Cabezon, Greenling Complex (RCG Complex) bag limits south of 40°10′ N. lat. This prohibition was explained in the preamble to the proposed rule, which was published in the same issue of the
Coordinates for the following lines are corrected in this notice: the 50-fm (91-m) depth contour used between 40°10′ N. lat. and 34°27′ N. lat. as an eastern boundary for the trawl RCA in the months of January and February; the 60-fm (110-m) depth contour used between 40°10′ N. lat. and 34°27′ N. lat. as an eastern boundary for the trawl RCA in March through October; the 100-fm (183-m) depth contour used north of 40°10′ N. lat. as an eastern
The Yelloweye Rockfish Conservation Area (YRCA), an “L-shaped” area off Washington closed to recreational fishing for groundfish and halibut, is corrected to read an “L-shaped” rather than a “C-shaped” area. The YRCA is proposed to become a “C-shaped” area from March - December 2003 (68 FR 936, January 7, 2003). The YRCA coordinates are also corrected by rearranging them to read consecutively in the right order from top to bottom.
The emergency rule for January 1 through February 28, 2003 (68 FR 908, January 7, 2003), contained errors in references to regulatory section 50 CFR 660.304. The 2003 emergency rule specifications and management measures should refer to the Cowcod Conservation Areas (CCAs) in § 660.304(i) not in § 660.304(c).
This document corrects the errors and re-publishes the limited entry trawl trip limit tables (Table 3 (North) and Table 3 (South)).
In the rule FR Doc. 02-32755, in the issue of Tuesday, January 7, 2003 (68 FR 908), under IV. NMFS Actions, make the following corrections:
1. On page 912, in columns 2 and 3, paragraphs (19)(a) and (b) are corrected to read as follows:
(19) * * *
(a)
48°18′ N. lat., 125°18′ W. long.;
48°18′ N. lat., 125°11′ W. long.;
48°04′ N. lat., 125°11′ W. long.;
48°04′ N. lat., 124°59′ W. long.;
48°00′ N. lat., 124°59′ W. long.;
48°00′ N. lat., 125°18′ W. long.;
and connecting back to 48°18′ N. lat., 125°18′ W. long.
(b)
2. On page 914, in column 3, line 49, number (81) is corrected to read as follows:
“(81) 46°17.52′ N. lat., 124°35.35′ W. long.;”
3. On page 917, in column 3, paragraph (19)(e)(v) introductory text and on page 918, paragraphs (109) through (129) are corrected and paragraphs (130) through (150) are correctly added to read as follows:
(e) * * *
(v) The Winter Petrale Boundary used north of 38° N. lat. as a western boundary for the trawl RCA, modified to allow fishing for petrale in winter months of January, February, November, and December, is defined by straight lines connecting all of the following points in the order stated:
(109) 41°47.79′ N. lat., 124°29.52′ W. long.;
(110) 41°21.00′ N. lat., 124°29.00′ W. long.;
(111) 41°11.00′ N. lat., 124°23.00′ W. long.;
(112) 41°5.00′ N. lat., 124°23.00′ W. long.;
(113) 40°54.00′ N. lat., 124°26.00′ W. long.;
(114) 40°50.00′ N. lat., 124°26.00′ W. long.;
(115) 40°44.51′ N. lat., 124°30.83′ W. long.;
(116) 40°40.61′ N. lat., 124°32.06′ W. long.;
(117) 40°37.36′ N. lat., 124°29.41′ W. long.;
(118) 40°35.64′ N. lat., 124°30.47′ W. long.;
(119) 40°37.43′ N. lat., 124°37.10′ W. long.;
(120) 40°36.00′ N. lat., 124°40.00′ W. long.;
(121) 40°31.59′ N. lat., 124°40.72′ W. long.;
(122) 40°24.64′ N. lat., 124°35.62′ W. long.;
(123) 40°23.00′ N. lat., 124°32.00′ W. long.;
(124) 40°23.39′ N. lat., 124°28.70′ W. long.;
(125) 40°22.28′ N. lat., 124°25.25′ W. long.;
(126) 40°21.90′ N. lat., 124°25.17′ W. long.;
(127) 40°22.00′ N. lat., 124°28.00′ W. long.;
(128) 40°21.35′ N. lat., 124°29.53′ W. long.;
(129) 40°19.75′ N. lat., 124°28.98′ W. long.;
(130) 40°18.15′ N. lat., 124°27.01′ W. long.;
(131) 40°17.45′ N. lat., 124°25.49′ W. long.;
(132) 40°18.00′ N. lat., 124°24.00′ W. long.;
(133) 40°16.00′ N. lat., 124°26.00′ W. long.;
(134) 40°17.00′ N. lat., 124°35.00′ W. long.;
(135) 40°16.00′ N. lat., 124°36.00′ W. long.;
(136) 40°10.00′ N. lat., 124°22.75′ W. long.;
(137) 40°03.00′ N. lat., 124°14.75′ W. long.;
(138) 39°49.25′ N. lat., 124°06.00′ W. long.;
(138) 39°34.75′ N. lat., 123°58.50′ W. long.;
(140) 39°03.07′ N. lat., 123°57.81′ W. long.;
(141) 38°52.25′ N. lat., 123°56.25′ W. long.;
(142) 38°41.42′ N. lat., 123°46.75′ W. long.;
(143) 38°39.47′ N. lat., 123°46.59′ W. long.;
(144) 38°35.25′ N. lat., 123°42.00′ W. long.;
(145) 38°19.97′ N. lat., 123°32.95′ W. long.;
(146) 38°15.00′ N. lat., 123°26.50′ W. long.;
(147) 38°08.09′ N. lat., 123°23.39′ W. long.;
(148) 38°10.08′ N. lat., 123°26.82′ W. long.;
(149) 38°04.08′ N. lat., 123°32.12′ W. long.; and
(150) 38°00.00′ N. lat., 123°29.85′ W. long.
4. On page 919,
a. In column 1, the last two lines, number (34) is corrected to read as follows:
“(34) 34°27.00′ N. lat., 120°36.00′ W. long.;”
b. In column 3, line 3, number (34) is corrected to read as follows:
“(34) 34°27.00′ N. lat., 120°36.00′ W. long.;”
c. In column 3, line 12, number (1) is corrected to read as follows:
“(1) 34°27.00′ N. lat., 120°39.00′ W. long.;”
5. On page 920, in column 1, line 9, paragraph (19)(e)(ix) is corrected to read as follows:
(e) * * *
(ix) The 150-fm (274-m) depth contour used between 40°10′ N. lat. and the U.S. border with Mexico as a western boundary for the trawl RCA and used between 38° N. lat. and the U.S. border with Mexico as a western boundary for the non-trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 40°10.01′ N. lat., 124°22.90′ W. long.;
(2) 40°7.00′ N. lat., 124°19.00′ W. long.;
(3) 40°8.10′ N. lat., 124°16.70′ W. long.;
(4) 40°5.90′ N. lat., 124°17.77′ W. long.;
(5) 40°1.46′ N. lat., 124°12.85′ W. long.;
(6) 40°4.32′ N. lat., 124°10.33′ W. long.;
(7) 40°3.21′ N. lat., 124°8.83′ W. long.;
(8) 40°1.33′ N. lat., 124°8.70′ W. long.;
(9) 39°58.51′ N. lat., 124°12.44′ W. long.;
(10) 39°55.73′ N. lat., 124°7.49′ W. long.;
(11) 39°34.75′ N. lat., 123°58.50′ W. long.;
(12) 39°03.07′ N. lat., 123°57.81′ W. long.;
(13) 38°54.00′ N. lat., 123°57.00′ W. long.;
(14) 38°08.09′ N. lat., 123°23.39′ W. long.;
(15) 38°10.08′ N. lat., 123°26.82′ W. long.;
(16) 38°04.08′ N. lat., 123°32.12′ W. long.;
(17) 37°59.73′ N. lat., 123°29.85′ W. long.;
(18) 37°51.46′ N. lat., 123°25.16′ W. long.;
(19) 37°44.06′ N. lat., 123°11.44′ W. long.;
(20) 37°35.26′ N. lat., 123°2.29′ W. long.;
(21) 37°14.00′ N. lat., 122°50.00′ W. long.;
(22) 37°1.00′ N. lat., 122°36.00′ W. long.;
(23) 36°58.07′ N. lat., 122°28.35′ W. long.;
(24) 37°0.71′ N. lat., 122°24.53′ W. long.;
(25) 36°57.50′ N. lat., 122°24.98′ W. long.;
(26) 36°58.38′ N. lat., 122°21.85′ W. long.;
(27) 36°55.85′ N. lat., 122°21.95′ W. long.;
(28) 36°52.86′ N. lat., 122°12.89′ W. long.;
(29) 36°48.71′ N. lat., 122°9.28′ W. long.;
(30) 36°46.65′ N. lat., 122°4.10′ W. long.;
(31) 36°51.00′ N. lat., 121°58.00′ W. long.;
(32) 36°44.00′ N. lat., 121°59.00′ W. long.;
(33) 36°38.00′ N. lat., 122°2.00′ W. long.;
(34) 36°26.00′ N. lat., 121°59.50′ W. long.;
(35) 36°22.00′ N. lat., 122°1.00′ W. long.;
(36) 36°19.00′ N. lat., 122°5.00′ W. long.;
(37) 36°14.00′ N. lat., 121°58.00′ W. long.;
(38) 36°10.61′ N. lat., 121°44.51′ W. long.;
(39) 35°50.53′ N. lat., 121°29.93′ W. long.;
(40) 35°46.00′ N. lat., 121°28.00′ W. long.;
(41) 35°38.94′ N. lat., 121°23.16′ W. long.;
(42) 35°26.00′ N. lat., 121°8.00′ W. long.;
(43) 35°7.42′ N. lat., 120°57.08′ W. long.;
(44) 34°42.00′ N. lat., 120°54.00′ W. long.;
(45) 34°29.00′ N. lat., 120°44.00′ W. long.;
(46) 34°22.00′ N. lat., 120°32.00′ W. long.;
(47) 34°21.00′ N. lat., 120°21.00′ W. long.;
(48) 34°24.00′ N. lat., 120°15.00′ W. long.;
(49) 34°22.11′ N. lat., 119°56.63′ W. long.;
(50) 34°19.00′ N. lat., 119°48.00′ W. long.;
(51) 34°15.00′ N. lat., 119°48.00′ W. long.;
(52) 34°8.00′ N. lat., 119°37.00′ W. long.;
(53) 34°7.00′ N. lat., 120°11.00′ W. long.;
(54) 34°13.00′ N. lat., 120°30.00′ W. long.;
(55) 34°9.00′ N. lat., 120°38.00′ W. long.;
(56) 33°58.00′ N. lat., 120°29.00′ W. long.;
(57) 33°51.00′ N. lat., 120°9.00′ W. long.;
(58) 33°38.00′ N. lat., 119°58.00′ W. long.;
(59) 33°38.00′ N. lat., 119°50.00′ W. long.;
(60) 33°46.25′ N. lat., 119°49.32′ W. long.;
(61) 33°53.82′ N. lat., 119°53.42′ W. long.;
(62) 33°59.00′ N. lat., 119°21.00′ W. long.;
(63) 34°2.00′ N. lat., 119°13.00′ W. long.;
(64) 34°1.52′ N. lat., 119°4.50′ W. long.;
(65) 33°58.83′ N. lat., 119°3.76′ W. long.;
(66) 33°56.55′ N. lat., 118°40.50′ W. long.;
(67) 33°51.00′ N. lat., 118°38.00′ W. long.;
(68) 33°39.63′ N. lat., 118°18.75′ W. long.;
(69) 33°35.44′ N. lat., 118°17.57′ W. long.;
(70) 33°31.98′ N. lat., 118°12.59′ W. long.;
(71) 33°33.25′ N. lat., 117°54.15′ W. long.;
(72) 33°31.43′ N. lat., 117°49.84′ W. long.;
(73) 33°16.53′ N. lat., 117°36.13′ W. long.;
(74) 33°6.51′ N. lat., 117°24.11′ W. long.;
(75) 32°54.11′ N. lat., 117°21.45′ W. long.;
(76) 32°46.15′ N. lat., 117°24.26′ W. long.;
(77) 32°41.97′ N. lat., 117°22.10′ W. long.;
(78) 32°39.00′ N. lat., 117°28.13′ W. long.; and
(79) 32°34.84′ N. lat., 117°24.62′ W. long.
6. On pages 924-925, Table 3 (North) and Table 3 (South) are corrected to read as follows:
7. On page 931, in column 2, paragraph (1)(a) is corrected to read as follows:
(1) * * *
(a)
8. On page 932, in column 1, line 29, paragraph (3)(b)(i)(A) is corrected to read as follows:
(3) * * *
(b) * * *
(i) * * *
(A)
9. On page 932, in column 2, line 3, paragraph (3)(b)(ii)(B) is corrected to read as follows:
(ii) * * *
(B)
The Assistant Administrator for Fisheries, NOAA (AA) finds that good cause exists pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment as such prior notice and opportunity for public comment is unnecessary, impracticable, and contrary to the public interest. It is unnecessary because this notice publishes a minor technical correction, changing the 2003 emergency rule specifications and management measures to refer to the CCAs in section 660.304(i) to section 660.304(c). It is impracticable because NMFS does not have sufficient time to seek public comment on the clarifications to harvest levels and management measures in this notice and to incorporate such comments into the notice before it is published in the
The AA also finds good cause pursuant to 5 U.S.C. 553(D)(3) to waive the 30 day delay in the effective date of this correction notice. Such a delay would increase the probability that fishermen would further deplete overfished groundfish species as they would continue to fish in areas and with gear that are incompatible with the conservation efforts contained in the 2003 harvest specifications and management measures. For the correction of the petrale sole area, the delay would prevent fishermen of taking advantage of an opportunity to harvest healthy stocks of petrale sole when they can be taken with minimal bycatch.
1801
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-135 and -145 series airplanes. This proposal would require replacing the four Gamah clamp/sleeve joints on an engine bleed air duct with new threaded coupling assemblies. For certain airplanes, this proposal would also require replacing the two supports for the engine bleed air duct with two new supports. This action is necessary to prevent hot air leaks from the bleed air duct due to disconnection of the duct joint, which could result in heat damage to components near the duct, and consequent increased risk of fire in the rear baggage compartment. This action is intended to address the identified unsafe condition.
Comments must be received by March 3, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-88-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Robert D. Breneman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1263; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-88-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-88-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and -145 series airplanes. The DAC advises that the engine bleed air duct between frames 68 and 69 in the rear baggage compartment could leak. The cause of the leakage has been attributed to possible disconnection of the duct joint. This condition, if not corrected, could result in hot air leaks from the bleed air duct, which could lead to heat damage to components near the duct, and consequent increased risk of fire in the rear baggage compartment.
EMBRAER has issued Service Bulletin 145-36-0024, dated May 31, 2001, which describes procedures for replacing the four Gamah clamp/sleeve joints from the bleed line at the baggage compartment between frames 68 and 69 with new threaded coupling assemblies (including re-identifying, cleaning, and lubricating the bleed ducts; and installing protection sleeves). For certain airplanes, the service bulletin also describes procedures for replacing the two supports for the engine bleed air duct with two new supports. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DAC classified this service bulletin as
These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.
The proposed AD would differ from the parallel Brazilian airworthiness directive in that the applicability would only affect those Model EMB-135 and -145 series airplanes listed in the Effectivity of EMBRAER Service Bulletin 145-36-0024, dated May 31, 2001. The Brazilian airworthiness directive affects all Model-135 and -145 series airplanes. As indicated in EMBRAER Service Bulletin 145-36-0024, certain airplanes had the replacement specified in that service bulletin done during production. The limited applicability has been coordinated and concurred with by the DAC.
The FAA estimates that 346 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 3 work hours per airplane to accomplish the proposed replacement, and that the average labor rate is $60 per work hour. Required parts would cost approximately between $1,978 and $2,007 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators of these airplanes is estimated to be between $746,668 and $756,702; or between $2,158 and $2,187 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent hot air leaks from the bleed air duct due to disconnection of the duct joint, which could result in heat damage to components near the duct, and consequent increased risk of fire in the rear baggage compartment, accomplish the following:
(a) Within 1,000 flight hours after the effective date of this AD, do the actions specified in paragraphs (a)(1) and (a)(2) of this AD, as applicable, per EMBRAER Service Bulletin 145-36-0024, dated May 31, 2001.
(1) For all airplanes: Replace the four Gamah clamp/sleeve joints from the bleed line at the baggage compartment between frames 68 and 69 with new threaded coupling assemblies (including re-identifying, cleaning, and lubricating the bleed ducts; and installing protection sleeves).
(2) For airplanes having serial numbers listed in paragraph 3.G. of the Accomplishment Instructions of the service bulletin: Replace the two supports for the engine bleed air duct with two new supports, having part number 145-35923-007.
(b) As of the effective date of this AD, no person shall install parts listed in paragraphs (b)(1) and (b)(2) of this AD, as applicable.
(1) For all airplanes: Gamah clamp/sleeve joints, from the bleed line at the baggage compartment between frames 68 and 69, having part number G30020CD, G30020TD, G30020C, or G30020T.
(2) For airplanes having serial numbers listed in paragraph 3.G. of the Accomplishment Instructions of EMBRAER Service Bulletin 145-36-0024, dated May 31, 2001: Supports for the engine bleed air duct, with part number 145-35923-007.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in Brazilian airworthiness directive 2001-09-03, dated October 2, 2001.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to revise an existing airworthiness directive (AD), applicable to certain McDonnell Douglas airplanes. That AD currently requires visual or eddy current inspections of the left and right wing front spar lower caps to detect cracks migrating from attachment holes; and repair, if necessary. That AD also requires a terminating modification of the front spar lower cap. That AD was prompted by a report that additional cracking was found in the front spar lower cap of a wing. The actions specified by that AD are intended to prevent reduced structural integrity of the left or right wing due to metal fatigue failure of the front spar lower cap. This action would extend the compliance time for the follow-on inspection after accomplishment of the terminating modification.
Comments must be received by March 17, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-152-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Jon Mowery, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712; telephone (562) 627-5231; fax (562) 627-5210.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-152-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-152-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On March 12, 2001, the FAA issued AD 2001-06-02, amendment 39-12149 (66 FR 16107, March 23, 2001), applicable to McDonnell Douglas Model DC-8 series airplanes, as listed in McDonnell Douglas Service Bulletin DC-8-57-090, Revision 05, dated June 16, 1997. That AD requires visual or eddy current inspections of the left and right wing front spar lower caps to detect cracks migrating from attachment holes; and repair, if necessary. That AD also requires a terminating modification of the front spar lower cap and a follow-on inspection. That action was prompted by a report that additional cracking was found in the front spar lower cap of a wing. The requirements of that AD are intended to prevent reduced structural integrity of the left or right wing due to metal fatigue failure of the front spar lower cap.
Since the issuance of that AD, the FAA has received information that the compliance time for the follow-on inspection after accomplishment of the terminating modification should be within 32,900 landings after the modification rather than within 32,900 flight hours. The compliance time based on landings is longer than that based on flight hours, since the fleet averages 2.7 flight hours for every landing. The FAA has determined that extending the compliance time for the follow-on inspection after the terminating modification will provide an acceptable level of safety.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would continue to require modification of the lower front spar cap and a follow-on inspection. However, the proposed AD would change the compliance time for the follow-on inspection from 32,900 flight hours to 32,900 landings after the modification.
The FAA has revised the applicability of the existing AD to identify model designations as published in the most recent type certificate data sheet for the affected models. The existing AD specifies the applicability as Model DC-8 series airplanes, as listed in McDonnell Douglas Service Bulletin DC8-57-090, Revision 05, dated June 16, 1997.” The proposed AD specifies the applicability as “McDonnell Douglas Model DC-8-11, DC-8-12, DC-8-21, DC-8-31, DC-8-32, DC-8-33, DC-8-41, DC-8-42, and DC-8-43 airplanes; DC-8-50 series airplanes; DC-8-61 airplanes; DC-8-61F airplanes; DC-8-71 airplanes, and DC-8-71F airplanes.”
There are approximately 264 Model DC-8 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 244 airplanes of U.S. registry would be affected by this proposed AD.
The initial and repetitive eddy current inspection currently required by AD 2001-06-02 takes approximately 2 work hours per airplane to accomplish at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required inspections on U.S. operators is estimated to be $29,280, or $120 per airplane, per inspection cycle.
The preventive modification currently required by AD 2001-06-02 takes approximately 12 to 14 work hours per airplane to accomplish at an average labor rate of $60 per work hour. Required parts cost between $303 and $1,202 per airplane. Based on these figures, the cost impact of the currently required preventive modification on U.S. operators is estimated to be between $256,773 and $512,542, or between $1,023 and $2,042, per airplane.
The follow-on (post-modification) inspection currently required by AD 2001-06-02 takes approximately 2 work hours per airplane to accomplish at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required follow-on inspection on U.S. operators is estimated to be $29,280, or $120 per airplane. This proposal would increase the compliance time for performing the follow-on inspection, but would not change the estimated cost of that inspection.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-12149 (66 FR 16107, March 23, 2001), and by adding a new airworthiness directive (AD), to read as follows:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (i) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent reduced structural integrity of the left or right wing due to metal fatigue failure of the front spar lower cap, accomplish the following:
This AD will affect the inspections, corrective actions, and reports required by AD 93-01-15, amendment 39-8469 (58 FR 5576, January 22, 1993), for Principal Structural Elements (PSE) 57.08.021 and 57.08.022 of the DC-8 Supplemental Inspection Document (SID).
Where there are differences between this AD and the referenced service bulletin, the AD prevails.
(a) For airplanes equipped with left or right wing front spar lower cap, part number (P/N) 5597838-1 or -2, not modified per any of the McDonnell Douglas DC-8 service bulletins listed in Table 1 of this AD: Do an eddy current inspection to detect cracks of the lower front spar caps of the wings at the attachment holes of the leading edge assembly between stations Xfs=515.000 and Xfs=526.760, per McDonnell Douglas Service Bulletin DC8-57-090, Revision 05, dated June 16, 1997, at the time specified in either paragraph (a)(1), (a)(2), or (a)(3) of this AD, as applicable. Eddy current inspections done before the effective date of this AD per McDonnell Douglas DC-8 Service Bulletin 57-90, Revision 1, dated June 16, 1988; Revision 2, dated March 1, 1991; Revision 3, dated March 25, 1992; or Revision 4, dated March 3, 1995; are considered acceptable for compliance with the requirements of paragraph (a) of this AD. Table 1 is as follows:
(1) For airplanes on which the immediately preceding inspection was conducted using eddy current techniques per AD 86-20-08, amendment 39-5434, prior to April 27, 2001, (the effective date of AD 2001-06-02, amendment 39-12149). Inspect within 3,600 flight hours or 3 years after accomplishment of the last eddy current inspection, whichever occurs first.
(2) For airplanes on which the immediately preceding inspection was conducted visually per AD 86-20-08 prior to April 27, 2001: Inspect within 3,200 flight hours or 2 years after accomplishment of the last visual inspection, whichever occurs first.
(3) For airplanes on which a visual or eddy current inspection or the modification required by AD 86-20-08 has not been done: Inspect before the accumulation of 30,000 total flight hours, or within 200 flight hours after April 27, 2001.
(b) For airplanes other than those identified in paragraph (a) of this AD, not modified per any of the McDonnell Douglas DC-8 service bulletins listed in Table 1 of this AD: Within 3,200 flight hours or 2 years after April 27, 2001, whichever occurs first, do the eddy current inspection specified in paragraph (a) of this AD.
(c) If no crack is detected during any inspection required by this AD, repeat the eddy current inspection every 3,600 flight hours or 3 years, whichever occurs first.
(d) If any crack is detected during any inspection required this AD, before further flight, do the action specified in either paragraph (d)(1) or (d)(2) of this AD, as applicable.
(1) For cracks within the limits specified in Conditions 2 through 6, inclusive, Table 1 of paragraph 3.B.4 of the Accomplishment Instructions of McDonnell Douglas Service Bulletin DC8-57-090, Revision 05, dated June 16, 1997: Modify the lower front spar cap per McDonnell Douglas Service Bulletin DC8-57-090, Revision 05, dated June 16, 1997. Accomplishment of the modification constitutes compliance with the requirements of paragraphs (c) and (e) of this AD.
(2) For cracks that exceed the limits specified in Conditions 2 through 6, inclusive, Table 1 of paragraph 3.B.4 of the Accomplishment Instructions of McDonnell Douglas Service Bulletin DC8-57-090, Revision 05, dated June 16, 1997: Repair per a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA.
(e) Before the accumulation of 100,000 total flight hours, modify the lower front spar cap per paragraph 3.B.2.B of the Accomplishment Instructions of McDonnell Douglas Service Bulletin DC8-57-090, Revision 05, dated June 16, 1997. Accomplishment of the modification constitutes compliance with the requirements of paragraphs (a) and (b) of this AD and terminates the repetitive inspection requirements of paragraph (c) of this AD. Modification of the lower front spar cap accomplished before the effective date of this AD per McDonnell Douglas DC-8 Service Bulletin 57-90, dated October 3, 1993; Revision 1, dated June 16, 1988; Revision 2, dated March 1, 1991; Revision 3, dated March 25, 1992; or Revision 4, dated March 3, 1995; is considered acceptable for compliance with the requirements of paragraph (e) of this AD.
(f) Accomplishment of the modification required by paragraph B. of AD 90-16-05, amendment 39-6614 (55 FR 31818, August 6, 1990) (which references “DC-8 Aging Aircraft Service Action Requirements Document” (SARD), McDonnell Douglas Report MDC K1579, Revision A, dated March 1, 1990, as the appropriate source of service information for accomplishing the modification) constitutes compliance with paragraphs (a), (b), and (e) of this AD and terminates the repetitive inspection requirements of paragraph (c) of this AD.
(g) Within 32,900 landings after accomplishment of the modification specified in paragraph (g)(1), (g)(2), (g)(3), or (g)(4) of this AD, or within 2 years after the effective date of this AD, whichever occurs later, perform an inspection to detect cracks in the area specified in paragraph (a) of this AD, and corrective actions, if necessary; per a method approved by the Manager, Los Angeles ACO.
(1) Modification required by paragraph (d)(1) of this AD;
(2) Modification required by paragraph (e) of this AD;
(3) Modification specified in paragraph D. of AD 86-20-08; or
(4) Modification required by paragraph B. of AD 90-16-05.
(h) Accomplishment of the eddy current inspection(s) required by this AD constitutes compliance with the inspections required by paragraph A. of AD 90-16-05, as it pertains to McDonnell Douglas DC-8 Service Bulletin 57-90, Revision 2, dated March 1, 1991. Accomplishment of the eddy current inspection(s) does not terminate the remaining requirements of AD 90-16-05, as it applies to other service bulletins. Operators are required to continue to inspect and/or modify per the other service bulletins listed in that AD.
(i) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles ACO. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(j) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
The Federal Aviation Administration (FAA) proposes to adopt a new airworthiness directive (AD) that is applicable to Honeywell International Inc. (formerly AlliedSignal) model RE220 (RJ) auxiliary power units (APUs) part number (P/N) WE3800770-2. This proposal would require replacing the existing fuel nozzles with new design fuel nozzles, making reidentification updates to the APU identification plate, and operating the APU to perform a visual inspection for fuel leaks. This proposal is prompted by reports received by the FAA of cracks occurring in the existing APU fuel nozzles leading to fuel leaks. The actions specified by the proposed AD are intended to prevent APU compartment fires and fuel vapor explosion.
Comments must be received by March 31, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002-NE-42-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may be inspected at this location, by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. Comments may also be sent via the Internet using the following address: “
Roger Pesuit, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; telephone (562) 627-5251, fax (562) 627-5210.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NE-42-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2002-NE-42-AD, 12 New England Executive Park, Burlington, MA 01803-5299.
In May 2002, the FAA became aware of several reports of fuel leaks, occurring in APU compartments of Bombardier model CL-600-2C10 airplanes. The fuel leaks were determined to be caused by cracks of threaded fittings on fuel nozzles, installed in Honeywell International Inc. (formerly AlliedSignal) model RE220 (RJ) APUs P/N WE3800770-2. This condition, if not corrected, could result in APU compartment fires and fuel vapor explosion.
Since an unsafe condition has been identified that is likely to exist or develop on other Honeywell International Inc. (formerly AlliedSignal) model RE220 (RJ) APUs of the same type design, the proposed AD would require replacing the existing fuel nozzles, P/N WE3830486-2, with new design fuel nozzles, P/N WE3830513-1, making reidentification updates to the APU identification plate, and operating the APU to perform a visual inspection for fuel leaks.
There are approximately 95 Honeywell International Inc. (formerly AlliedSignal) model RE220 (RJ) APUs of the affected design in the worldwide fleet. The FAA estimates that 67 APUs installed on airplanes of U.S. registry would be affected by this proposed AD. The FAA also estimates that it would take approximately 3.5 work hours per APU to perform the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $34,077 per engine. Based on these figures, the total cost of the proposed AD to U.S. operators is estimated to be $2,297,249. The manufacturer has advised the FAA that they may provide fuel nozzles P/N WE3830513-1 at no cost to the operator, and 3.5 hours of labor credit, thereby substantially reducing the cost of this proposed rule.
This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each APU identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For APUs that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent APU compartment fires and fuel vapor explosion, do the following:
(a) Within six months after the effective date of this AD, replace APU fuel nozzles, P/N WE3830486-2, with new design fuel nozzles, P/N WE3830513-1. Information on fuel nozzle replacement can be found in Honeywell International Inc. alert service bulletin (ASB) RE220-49-A7714, dated November 4, 2002.
(b) Reidentify the APU as follows:
(1) Change the P/N from WE3800770-2 to WE3800770-3 on the identification plate, by removing the -2 and vibropeening or hand stamping a -3 in its place.
(2) Vibropeen or hand stamp the letter “C” after the serial number to show conversion.
(3) Vibropeen or hand stamp “Change Number 3” on the identification plate adjacent to the MOD RECORD.
(c) Start the APU and perform a visual fuel leak check after one minute of operation.
(d) After the effective date of this AD, do not install fuel nozzles P/N WE3830486-2 into any APU P/N WE3800770-3.
(e) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (LAACO). Operators must submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, LAACO.
Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the LAACO.
(f) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be done.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the supersedure of an existing airworthiness directive (AD), applicable to certain Boeing Model 747-400 series airplanes, that currently requires repetitive tests of the cone brake of the central drive unit (CDU) of the thrust reversers, and corrective actions if necessary. This action would require installation of a thrust reverser actuation system (TRAS) lock and various related modifications and installations. Following installation of the TRAS lock, this action also would require repetitive functional tests of the TRAS lock, and corrective action if necessary. These actions are intended to prevent an inadvertent deployment of a thrust reverser during flight, which could result in loss of control of the airplane.
Comments must be received by March 17, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-128-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, PO Box 3707, Seattle, Washington 98124-2207; and AlliedSignal Aerospace Services, PO Box 52170, Phoenix, Arizona 85072-2170. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Sulmo Mariano, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2686; fax (425) 227-1181.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-128-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-128-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On April 26, 2000, the FAA issued AD 2000-09-03, amendment 39-11711 (65 FR 25829, May 4, 2000), to supersede AD 2000-02-33, amendment 39-11551 (65 FR 5742). AD 2000-09-03 is applicable to certain Boeing Model 747-400 series airplanes, and requires repetitive tests of the cone brake of the central drive unit (CDU) of the thrust reversers, and corrective actions if necessary. That action was prompted by a report indicating that completion of a cone brake test required by AD 2000-02-33 was ineffective for certain airplanes. The requirements of that AD 2000-09-03 are intended to ensure the integrity of the fail-safe features of the thrust reverser system by preventing possible failure modes in the thrust reverser control system that can result in inadvertent deployment of a thrust reverser during flight.
In the preamble to AD 2000-02-33, the FAA specified that the actions required by that AD were considered “interim action” and that the manufacturer was developing a modification to positively address the unsafe condition. We indicated that we might consider further rulemaking action once the modification was developed, approved, and available. The manufacturer now has developed such a modification, and we have determined that further rulemaking action is indeed necessary; this proposed AD follows from that determination.
While the service information for installation of the modification has been available for some time, we have prioritized the issuance of ADs for corrective actions for the thrust reverser system on Boeing airplane models. Based on service experience, analyses, and flight simulator studies, it was determined that an in-flight deployment of a thrust reverser has more effect on controllability of twin-engine airplane models than of Model 747 series airplanes, which have four engines. For this reason, the highest priority was given to rulemaking that required corrective actions for the twin-engine airplane models. ADs that correct the same type of unsafe condition as would be addressed by this proposed AD have been issued previously for specific airplanes within the Boeing Model 737, 757, and 767 series.
After the issuance of the service information related to the modification, we received a report from the airplane manufacturer indicating that there have been several incidents of failure of a connection shaft for the thrust reverser actuation system (TRAS) brake, which is installed as part of the modification. Such failure of the connection shaft would result in the TRAS lock being ineffective.
Based on data on the connection shaft failures that have been collected by the airplane manufacturer to date, we have determined that we can best ensure the continued safety of the affected fleet of airplanes by proceeding with rulemaking at this time to propose to require installation of a TRAS lock on the thrust reversers on Model 747-400 series airplanes. The airplane manufacturer is continuing to investigate the failures of the connection shaft. If the investigation reveals that corrective actions are necessary to prevent failure of the connection shaft, we may consider further rulemaking to mandate such corrective actions.
We have reviewed and approved Boeing Service Bulletin 747-78-2151, Revision 1, dated August 21, 1997, as revised by Notice of Status Change (NSC) 747-78-2151 NSC 04, dated November 26, 1997, and NSC 747-78-2151 NSC 05, dated December 18, 1997; and Boeing Service Bulletin 747-78-2151, Revision 2, dated January 13, 2000. Those service bulletins describe procedures for completing the installation of and activating a TRAS lock on each thrust reverser. These procedures include replacing a certain microswitch pack with a new one; adding new wires; routing certain new wire bundles; changing certain wiring, circuit breakers, and components; installing thrust-reverser relay panels; and performing repetitive functional tests to ensure that the thrust reverser actuation system operates properly. In addition, those service bulletins refer to several other service bulletins that describe actions that must be accomplished prior to or concurrently with Boeing Service Bulletin 747-78-2151. These service bulletins, which describe various modifications and installations associated with the TRAS locks, are as follows:
• Lockheed Martin Service Bulletin 78-1007, Revision 1, dated March 18, 1997, which describes procedures for installation of a bracket and fastening hardware for the TRAS lock on each thrust reverser.
• Boeing Service Bulletin 747-78-2132, Revision 2, dated December 11, 1997, which describes procedures for installing wiring provisions for the TRAS lock in various areas of the airplane.
• Lockheed Martin Service Bulletin 78-1020, Revision 2, dated March 20, 1997, which describes procedures for installing the TRAS lock (also called an electromechanical lock or brake) and a flexible drive cable on each thrust reverser.
• Boeing Service Bulletin 747-31-2242, dated April 18, 1996, which describes procedures for installing new integrated display system software in six integrated display units and three electronic flight information/engine indication and crew alerting system (EICAS) interface units.
• Boeing Service Bulletin 747-45-2016, Revision 1, dated May 2, 1996, which describes procedures for replacing two central maintenance computers (CMCs) with new, improved CMCs, and installing new software for the CMCs.
Accomplishment of the actions specified in these service bulletins is intended to adequately address the identified unsafe condition.
We also have reviewed and approved Boeing Alert Service Bulletin 747-78A2166, Revision 2, dated March 15, 2001. (AD 2000-09-03 refers to Boeing Service Bulletin 747-78A2166, Revision 1, dated October 9, 1997, as an appropriate source of service information for the functional test of the CDU cone brake and corrective actions on certain airplanes.) Among other things, Revision 2 of the service bulletin includes revised procedures for the functional test of the CDU cone brake that are appropriate for airplanes on
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 2000-09-03 to continue to require repetitive tests of the CDU cone brake of the thrust reversers, and corrective actions if necessary. The proposed AD would add requirements for installation of a TRAS lock, and various related modifications and installations. The actions would be required to be accomplished in accordance with the service bulletins described previously, except as discussed below.
The new actions in this proposed AD would apply to Boeing Model 747-400 series airplanes as listed in Boeing Service Bulletin 747-78-2151, Revision 2. However, the effectivity listings of Boeing Service Bulletins 747-78-2132, Revision 2, 747-31-2242, and 747-45-2016, Revision 1, identify airplanes with line numbers other than those identified in Boeing Service Bulletin 747-78-2151, Revision 2, as being subject to the actions therein. We have coordinated with the airplane manufacturer on this issue, and the manufacturer agrees with our determination that, to be correct and complete, the new actions in paragraph (d) of this proposed AD should apply to Model 747-400 series airplanes as listed in Boeing Service Bulletin 747-78-2151, Revision 2.
There are approximately 145 airplanes of the affected design in the worldwide fleet. The FAA estimates that 8 airplanes of U.S. registry would be affected by this proposed AD.
The functional test that is currently required by AD 2000-09-03 takes approximately 12 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $5,760, or $720 per airplane, per test cycle.
The installations in Boeing Service Bulletin 747-78-2151, Revision 2, would take approximately 410 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would be provided at no charge. Based on these figures, the cost impact of this proposed requirement on U.S. operators is estimated to be $196,800, or $24,600 per airplane.
The installation specified in Lockheed Martin Service Bulletin 78-1007, Revision 1, would take approximately 60 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would be provided at no charge. Based on these figures, the cost impact of this proposed requirement on U.S. operators is estimated to be $28,800, or $3,600 per airplane.
The installation specified in Boeing Service Bulletin 747-78-2132, Revision 2, would take approximately 223 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would cost between $32,219 and $36,562 per airplane. Based on these figures, the cost impact of this proposed requirement is estimated to be between $45,599 and $49,942 per airplane. The manufacturer may cover the cost of replacement parts associated with this service bulletin, subject to warranty conditions. As a result, the costs attributable to this proposed action may be less than stated above.
The installation specified in Lockheed Martin Service Bulletin 78-1020, Revision 2, would take approximately 16 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would be provided at no charge. Based on these figures, the cost impact of this proposed requirement on U.S. operators is estimated to be $7,680, or $960 per airplane.
The installation specified in Boeing Service Bulletin 747-31-2242 would take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. The cost of required parts would be negligible. Based on these figures, the cost impact of this proposed requirement is estimated to be $960, or $120 per airplane. The manufacturer may cover the cost of replacement parts and labor costs associated with accomplishment of this service bulletin, subject to warranty conditions. As a result, the costs attributable to this proposed action may be less than stated.
The installation specified in Boeing Service Bulletin 747-45-2016, Revision 1, would take approximately 3 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. The cost of required parts would be negligible. Based on these figures, the cost impact of this proposed requirement is estimated to be $1,440, or $180 per airplane. The manufacturer may cover the labor costs associated with accomplishment of this service bulletin, subject to warranty conditions. As a result, the costs attributable to this proposed action may be less than stated above.
The functional test that would be required following installation of the TRAS lock would take approximately 12 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this proposed requirement is estimated to be $5,760, or $720 per airplane, per test cycle.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (h)(1) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent an inadvertent deployment of a thrust reverser during flight, which could result in loss of control of the airplane, accomplish the following:
(a) Within 1,000 hours time-in-service after the most recent test of the center drive unit (CDU) cone brake as specified in paragraph (b)(1) of AD 94-15-05, amendment 39-8976; or within 650 hours time-in-service after May 19, 2000 (the effective date of AD 2000-09-03, amendment 39-11711); whichever occurs later: Perform a functional test to detect discrepancies of the CDU cone brake on each thrust reverser as specified in paragraph (a)(1) or (a)(2) of this AD, as applicable.
(1) For Model 747-400 series airplanes equipped with thrust reversers that have not been modified in accordance with Boeing Service Bulletin 747-78-2151 or a production equivalent: Perform the test in accordance with Boeing Service Bulletin 747-78A2166, Revision 1, dated October 9, 1997; or paragraph 3.C. of Boeing Alert Service Bulletin 747-78A2166, Revision 2, excluding Evaluation Form, dated March 15, 2001; or the applicable section of paragraph III.A. of the Accomplishment Instructions of Boeing Service Bulletin 747-78A2113, Revision 2, dated June 8, 1995; or Revision 3, dated September 11, 1997. Repeat the test thereafter at intervals not to exceed 650 hours time-in-service.
(2) For Model 747-400 series airplanes equipped with thrust reversers that have been modified in accordance with Boeing Service Bulletin 747-78-2151 or a production equivalent: Perform the test in accordance with Appendix 1 (including Figure 1) of this AD, or paragraph 3.C. of Boeing Alert Service Bulletin 747-78A2166, Revision 2, excluding Evaluation Form, dated March 15, 2001. After the effective date of this AD, only Boeing Alert Service Bulletin 747-78A2166, Revision 2, may be used. Repeat the test thereafter at intervals not to exceed 1,000 hours time-in-service.
Accomplishment of the CDU cone brake test during production in accordance with Production Revision Record (PRR) 80452-102 prior to May 19, 2000, is considered acceptable for compliance with the initial test required by paragraph (a) of this AD.
Model 747-400 series airplanes, line numbers 1061 and subsequent, equipped with GE CF6-80C2 engines, had a third locking system installed during production in accordance with Production Revision Record (PRR) 80452-102, and were not modified in accordance with Boeing Service Bulletin 747-78-2151 (which is a retrofit action for airplanes having line numbers 700 through 1060 inclusive).
(b) Accomplishment of the functional test of the CDU cone brake, as specified in paragraph (a) of this AD, constitutes terminating action for the repetitive tests of the CDU cone brake required by paragraph (b)(1) of AD 94-15-05.
(c) If any functional test required by paragraph (a) of this AD cannot be successfully performed as specified in the referenced service bulletin, or if any discrepancy is detected during any functional test required by paragraph (a) of this AD, accomplish either paragraph (c)(1) or (c)(2) of this AD.
(1) Prior to further flight, repair in accordance with Boeing Service Bulletin 747-78A2166, Revision 1, dated October 9, 1997; Boeing Alert Service Bulletin 747-78A2166, Revision 2, excluding Evaluation Form, dated March 15, 2001; Boeing Service Bulletin 747-78A2113, Revision 2, dated June 8, 1995; or Revision 3, dated September 11, 1997. After the effective date of this AD, only Boeing Alert Service Bulletin 747-78A2166, Revision 2; or Boeing Service Bulletin 747-78A2113, Revision 2 or Revision 3; may be used.
(2) The airplane may be operated in accordance with the provisions and limitations specified in the operator's FAA-approved Minimum Equipment List (MEL), provided that no more than one thrust reverser on the airplane is inoperative.
(d) For airplanes listed in Boeing Service Bulletin 747-78-2151, Revision 2, dated January 13, 2000: Within 36 months after the effective date of this AD, do paragraphs (d)(1) and (d)(2) of this AD.
(1) Install and activate a thrust reverser actuator system (TRAS) lock on each thrust reverser per the Accomplishment Instructions of Boeing Service Bulletin 747-78-2151, Revision 1, excluding Evaluation Form, dated August 21, 1997; as revised by Notice of Status Change (NSC) 747-78-2151 NSC 04, dated November 26, 1997; and NSC 747-78-2151 NSC 05, dated December 18, 1997; or Boeing Service Bulletin 747-78-2151, Revision 2, excluding Evaluation Form. The procedures for completing the installation and activating the TRAS lock include replacing a certain microswitch pack with a new one; adding new wires; routing certain new wire bundles; changing certain wiring, circuit breakers, and components; installing thrust-reverser relay panels; and performing a functional test to ensure that the thrust reverser actuation system operates properly.
(2) Prior to or concurrently with the installation required by paragraph (d)(1) of this AD, do the requirements of paragraphs (d)(2)(i), (d)(2)(ii), (d)(2)(iii), (d)(2)(iv), and (d)(2)(v) of this AD.
(i) Install a bracket and fastening hardware for the third locking system on each thrust reverser, per Lockheed Martin Service Bulletin 78-1007, Revision 1, dated March 18, 1997.
(ii) Install wiring provisions in various areas of the airplane, per the Accomplishment Instructions of Boeing Service Bulletin 747-78-2132, Revision 2, excluding Evaluation Form, dated December 11, 1997.
(iii) Install a TRAS lock (also called an electromechanical lock or brake) and a flexible drive cable on each thrust reverser, per Lockheed Martin Service Bulletin 78-1020, Revision 2, dated March 20, 1997.
(iv) Install new integrated display system software in six integrated display units and three electronic flight information/engine indication and crew alerting system (EICAS) interface units, per the Accomplishment Instructions of Boeing Service Bulletin 747-31-2242, dated April 18, 1996.
(v) Replace two central maintenance computers (CMCs), part number 622-8592-103, with new, improved CMCs, part number 622-8592-105, and install new software for the CMCs, per the Accomplishment
(e) For airplanes on which a TRAS lock is installed on the thrust reversers: Within 1,000 flight hours after the installation of the TRAS lock, or within 90 flight hours after the effective date of this AD, whichever is later, do a functional test of the TRAS lock (also called an electromechanical lock or brake) per the Accomplishment Instructions of Boeing Alert Service Bulletin 747-78A2166, Revision 2, excluding Evaluation Form, dated March 15, 2001. Then, repeat this test at least every 1,000 flight hours. If the functional test cannot be successfully performed, before further flight, repair per the Accomplishment Instructions of the service bulletin, and repeat the test until it is successful.
(f) If, prior to accomplishment of Boeing Service Bulletin 747-78-2151 on any airplane, it becomes necessary to install a thrust reverser with the TRAS lock installed, dispatch of the airplane is allowed per the provisions and limitations specified in the 747-400 Master Minimum Equipment List (MMEL), provided that the thrust reverser assembly that has the TRAS lock installed is deactivated per the 747-400 Dispatch Deviation Guide, Boeing Document D6U10151, dated June 28, 2002. Installation of a thrust reverser without a TRAS lock installed and reactivation of the thrust reverser must be accomplished within the time constraints specified in the MMEL.
(g) If, after accomplishment of Boeing Service Bulletin 747-78-2151 on any airplane, it becomes necessary to install a thrust reverser assembly that does not have the TRAS lock installed, dispatch of the airplane is allowed per the provisions and limitations specified in the Boeing Model 747-400 MMEL, provided that the thrust reverser assembly that does not have the TRAS lock installed is deactivated per the 747-400 Dispatch Deviation Guide, Boeing Document D6U10151, dated June 28, 2002. Installation of a thrust reverser with the TRAS lock installed and reactivation of the thrust reverser must be accomplished within the time constraints specified in the MMEL.
(h)(1) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
(2) Alternative methods of compliance, approved previously in accordance with AD 2000-09-03, amendment 39-11711, are not considered to be approved as alternative methods of compliance with this AD.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(i) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
1. This procedure contains steps to do a check of the holding torque of the CDU cone brake.
2. CDU cone brake check (Figure 1):
A. Prepare to do the check:
(1) Open the fan cowl panels.
(2) Pull up on the manual release handle to unlock the electro-mechanical brake.
(3) Pull the manual brake release lever on the CDU to release the cone brake.
This will release the pre-load tension that may occur during a stow cycle.
(4) Return the manual brake release lever to the locked position to engage the cone brake.
(5) Remove the two bolts that hold the lockout plate to the CDU and remove the lockout plate.
(6) Install a
(7) Turn the torque wrench to try to manually extend the translating cowl until you get at least 15 pound-inches.
The cone brake prevents movement in the extend direction only. If you try to measure the holding torque in the retract direction, you will get a false reading.
(8) If the torque is less than 15 pound-inches, you must replace the CDU.
(9) Reinstall the lockout plate.
B. Return the airplane to its usual condition:
(1) Fully retract the thrust reverser (unless already accomplished).
(2) Pull down on the manual release handle on the electro-mechanical brake until the handle fully engages the retaining clip (unless already accomplished).
This will lock the electro-mechanical brake.
(3) Close the fan cowl panels.
Issued in Renton, Washington, on January 23, 2003.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Bombardier Model CL-600-2B19 series airplanes. This proposal would require a one-time general visual inspection of the dust covers for the flight data recorder (FDR) and cockpit voice recorder (CVR) equipment for the presence of markings that indicate the presence of a chemical-resistant coating, and corrective actions if necessary. This action is necessary to prevent stripping of the paint and markings from the dust covers for FDR and CVR equipment due to hydraulic mist from the actuators, which could result in the inability to identify FDR and CVR equipment in the event of an accident-recovery mission. The lack of data from FDR and CVR equipment could hamper discovery of the unsafe condition that caused an accident or an incident and prevent the FAA from developing and mandating actions to prevent additional accidents or incidents caused by that same unsafe condition. This action is intended to address the identified unsafe condition.
Comments must be received by March 3, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-112-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York.
Luciano L. Castracane, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley Stream, New York 11581; telephone (516) 256-7535; fax (516) 568-2716.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-112-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-112-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model CL-600-2B19 series airplanes. TCCA advises that the environment within the aft equipment compartment has proven conducive to stripping the orange paint and markings from the dust covers for the flight data recorder (FDR) and cockpit voice recorder (CVR) equipment. Reports indicate that such stripping of the FDR and CVR dust covers are due to hydraulic mist from the actuators. Additional information indicates that engine oil spills could also be a factor. A protective coating applied to the dust covers will prevent stripping of the paint and markings from the FDR and CVR dust covers. Such stripping, if not corrected, could result in the inability to identify the FDR and CVR equipment in the event of an accident-recovery mission. Identification of the FDR and CVR equipment is essential in order to recover the information necessary for evaluating the specific and related causes of an accident so that such occurrences can be prevented in the future.
This action is necessary to prevent the loss of data recorded on the FDR and CVR equipment. The FAA uses the data collected on the FDR and CVR to analyze events leading up to and during airplane accidents in an effort to identify the cause of the accident. Based on FDR and CVR data, we can develop and mandate certain actions to prevent additional accidents. Although the loss of FDR and CVR data does not directly affect the safety of the airplane, the installation of dust covers per this
It should be noted that the purpose of this proposed action is not to enhance the safety of Bombardier Model CL-600-2B19 series airplanes, but rather to restore the level of safety provided by the FDR and CVR equipment that have been treated with a protective coating to ensure identification of such equipment. Therefore, this proposed AD is the appropriate regulatory vehicle to achieve this purpose.
Bombardier has issued two service bulletins, both dated October 12, 2001, which are described as follows:
• Canadair Regional Jet Service Bulletin 601R-31-026, including the Service Bulletin Comment Sheet—Facsimile Reply Sheet and the CRJ 100/200 Service Bulletin Compliance Facsimile Reply Sheet, describes procedures for a general visual inspection of the FDR dust cover for the presence of markings that indicate the presence of a chemical-resistant coating, and corrective actions if necessary. Corrective actions include either reworking the FDR dust cover, or replacing the dust cover with a new dust cover.
• Canadair Regional Jet Service Bulletin 601R-23-056, including the Service Bulletin Comment Sheet—Facsimile Reply Sheet and the CRJ 100/200 Service Bulletin Compliance Facsimile Reply Sheet, describes procedures for a general visual inspection of the CVR dust cover for the presence of markings that indicate the presence of a chemical-resistant coating, and corrective actions if necessary. Corrective actions include either reworking the CVR dust cover, or replacing the dust cover with a new dust cover.
Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. TCCA classified these service bulletins as mandatory and issued Canadian airworthiness directive CF-2001-45, dated December 3, 2001, in order to assure the continued airworthiness of these airplanes in Canada.
This airplane model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. The FAA has examined the findings of TCCA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.
Operators should note that the Accomplishment Instructions of the referenced service bulletins describe procedures for completing the Comment Sheet—Facsimile Reply Sheet, and CRJ 100/200 Service Bulletin Compliance Facsimile Reply Sheet. However, this proposed AD would not require such action.
There are approximately 570 Model CL-600-2B19 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 220 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 1 work hour per airplane to accomplish the proposed inspection at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $132,000, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. However, for affected airplanes within the period under the warranty agreement, the FAA has been advised that manufacturer has committed previously to its customers that it will bear the cost of replacement parts. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been
To prevent peeling of the paint and markings from the dust covers for the flight data recorder (FDR) and cockpit voice recorder (CVR) equipment due to hydraulic mist from the actuators, which could result in the inability to identify the FDR and CVR equipment in the event of an accident-recovery mission, accomplish the following:
(a) For airplanes having serial numbers 7003 through 7067 inclusive, and 7069 through 7570 inclusive: Within 18 months after the effective date of this AD, do a general visual inspection of the dust cover for the FDR to determine if a chemical agent resistant coating has been applied to the dust cover. Dust covers that have had a protective coating applied are identified through the markings specified in the service bulletin. Do the inspection per Part A of the Accomplishment Instructions of Canadair Regional Jet Service Bulletin 601R-31-026, dated October 12, 2001; excluding the Service Bulletin Comment Sheet—Facsimile Reply Sheet and the CRJ 100/200 Service Bulletin Compliance Facsimile Reply Sheet.
(1) If specified markings are present, no further action is required by this paragraph.
(2) If specified markings are not present, before further flight, do the action required by either paragraph (a)(2)(i) or (a)(2)(ii) of this AD:
(i) Rework the FDR dust cover per Part B of the Accomplishment Instructions of the service bulletin; or
(ii) Replace the FDR dust cover with a new dust cover per Part C of the Accomplishment Instructions of the service bulletin.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to enhance visual access to all exposed surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(b) For airplanes having serial numbers 7003 through 7067 inclusive, and 7069 through 7573 inclusive: Within 18 months after the effective date of this AD, do a general visual inspection of the CVR dust cover to determine if a chemical agent resistant coating has been applied to the dust cover. Dust covers that have had a protective coating applied are identified through the markings specified in the service bulletin. Do the inspection per Part A of the Accomplishment Instructions of Bombardier Canadair Regional Jet Service Bulletin 601R-23-056, dated October 12, 2001; excluding Comment Sheet—Facsimile Reply Sheet, and CRJ 100/200 Service Bulletin Compliance Facsimile Reply Sheet.
(1) If specified markings are present, no further action is required by this paragraph.
(2) If specified markings are not present, before further flight, do the action required by either paragraph (b)(2)(i) or (b)(2)(ii) of this AD:
(i) Rework the CVR dust cover per Part B of the Accomplishment Instructions of the service bulletin; or
(ii) Replace the CVR dust cover with a new dust cover per Part C of the Accomplishment Instructions of the service bulletin.
(c) As of the effective date of this AD, no person shall install an FDR dust cover, part number (P/N) 074E0198-00; or a CVR dust cover, P/N 075E0604-00 or 9300A218S; unless the rework action required by paragraphs (a)(2)(i) and (b)(2)(i) of this AD, as applicable, has been done.
(d) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, New York Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, New York ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the New York ACO.
(e) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in Canadian airworthiness directive CF-2001-45, dated December 3, 2001.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Dassault Model Falcon 900 EX and Mystere-Falcon 900 series airplanes. This proposal would require installing an attachment support assembly for the fire extinguishing piping in the baggage compartment. This action is necessary to prevent distortion of the fire extinguishing discharge nozzle as a result of the nozzle not being secure, which could result in poor diffusion of the fire extinguishing agent in the event of a fire in the baggage compartment. This action is intended to address the identified unsafe condition.
Comments must be received by March 3, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-269-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Dassault Falcon Jet, PO Box 2000, South Hackensack, New Jersey 07606. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-269-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-269-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Dassault Model Falcon 900 EX and Model Mystere-Falcon 900 series airplanes. The DGAC advises of a reported case where, after the fire extinguisher for the baggage compartment discharged, the discharge nozzle for the fire extinguishing piping through which the fire extinguishing agent passes, was found damaged. Distortion of the discharge nozzle occurred at the bulkhead feedthrough at frame 30 because the nozzle was not secure. This condition, if not corrected, could result in poor diffusion of the fire extinguishing agent in the event of a fire in the baggage compartment.
Dassault has issued Service Bulletins F900EX-142 (for Model Falcon 900 EX series airplanes) and F900-279 (for Model Mystere-Falcon 900 series airplanes), both dated June 7, 2001, including Service Bulletins Compliance page, which describe procedures for installing an attachment support assembly for the fire extinguishing piping in the baggage compartment, and submitting a compliance report to Dassault. Accomplishment of the actions specified in the applicable service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified these service bulletins as mandatory and issued French airworthiness directive 2001-192-034(B), dated May 16, 2001, in order to assure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the applicable service bulletin described previously.
Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for completing and submitting a compliance report, this proposed AD would not require such reporting.
The FAA estimates that 150 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 3 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $27,000, or $180 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent distortion of the fire extinguishing discharge nozzle as a result of the nozzle not being secure, which could result in poor diffusion of the fire extinguishing agent in the event of a fire in the baggage compartment, accomplish the following:
(a) Within 7 months or 330 flight hours after the effective date of this AD, whichever comes first, install an attachment support assembly for the fire extinguishing piping in the baggage compartment per paragraphs 2.A. through 2.C. of the Accomplishment Instructions of Dassault Service Bulletin F900EX-142 (for Model Falcon 900 EX series airplanes); or Dassault Service Bulletin F900-279 (for Model Mystere-Falcon F900 series airplanes); both dated June 7, 2001; including Service Bulletins Compliance page; as applicable.
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(c) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in French airworthiness directive 2001-192-034(B), dated May 16, 2001.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This notice proposes to establish two colored Federal airways, Amber-5 (A-5) and Blue 1 (B-1), in Alaska. This action would add to the instrument flight rules (IFR) airway and route structure in Alaska. The FAA is taking this action to enhance safety and the management of aircraft operations in Alaska.
Comments must be received on or before March 17, 2003.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2002-13994/Airspace Docket No. 02-AAL-10, at the beginning of your comments.
You may also submit comments on the Internet at
An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, 222 West 7th Avenue, #14, Anchorage, AK 99533.
Ken McElroy, Airspace and Rules Division, ATA-400, Office of Air Traffic Airspace Management, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2002-13994/Airspace Docket No. 02-AAL-10.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified
The proposal contained in this notice may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing to amend Title 14 Code of Federal Regulations (CFR) part 71 (part 71) by establishing two colored Federal airways, A-5 and B-1, in Alaska. Presently there are several uncharted nonregulatory routes that use the same routing as the proposed colored Federal airways. These uncharted nonregulatory routes are used daily by commercial and general aviation aircraft. However, the air traffic control (ATC) management of aircraft operations is limited on these routes. The FAA is proposing to convert these uncharted nonregulatory routes to colored Federal airways. This action would add to the IFR airway and route structure in Alaska. The routes conversion would provide an airway structure to support existing commercial services in Alaska.
Additionally, adoption of these Federal airways would: (1) Provide pilots with minimum en route altitudes and minimum obstruction clearance altitudes information; (2) establish controlled airspace thus eliminating some of the commercial IFR operations in uncontrolled airspace; and (3) improve the management of air traffic operations and thereby enhance safety.
Colored Federal airways are published in paragraph 6009 of FAA Order 7400.9K dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR Section 71.1. The colored Federal airways listed in this document would be published subsequently in the order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the FAA Order 7400.9K, Airspace Designations and Reporting Points, dated August 30, 2002, and effective September 16, 2002, is amended as follows:
From Ambler, AK, NDB to Evansville, AK, NDB.
From Woody Island, AK, NDB to Iliamna, AK, NDB.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This notice proposes to revoke two Very High Frequency Omnidirectional Range (VOR) Federal airways, Victor 307 and 362 (V-307 and V-362); and revise Victor 317 (V-317) and Colored Federal Airway Amber 15 (A-15) in Alaska. The FAA is proposing this action due to the decommissioning of the McInnes Nondirectional Radio Beacon (NDB), Canada.
Comments must be received on or before March 17, 2003.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2002-14010/Airspace Docket No. 02-AAL-9, at the beginning of your comments.
You may also submit comments on the Internet at
An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, 222 West 7th Avenue, #14, Anchorage, AK 99533.
Ken McElroy, Airspace and Rules Division, ATA-400, Office of Air Traffic Airspace Management, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2002-14010/Airspace Docket No. 02-AAL-09.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should call the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
In November 2002, the FAA was notified by NAV Canada that the continued operation of the Canadian Coast Guard's McInnes Island NDB was in jeopardy and that action was needed to reconfigure airways using the McInnes NDB.
The FAA is proposing to amend Title 14 Code of Federal Regulations (14 CFR) part 71 (part 71) that inpart revokes two VOR Federal Airways (V-307 and V362); and modifies VOR Federal Airway V-317, and Colored Federal Airway A-15, in Alaska. The FAA is proposing this action in preparation for the decommissioning of the McInnes Nondirectional Radio Beacon (NDB), Canada.
Colored Federal airways and Alaska VOR Federal airways are published in paragraphs 6009© and paragraph 6010(b), respectively, of FAA Order 7400.9K dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR Section 71.1. The colored Federal airway and Alaskan VOR Federal airways listed in this document would be published subsequently in the order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9K, Airspace Designations and Reporting Points, dated August 30, 2002, and effective September 16, 2002, is amended as follows:
From Vancouver, BC, Canada via Comox, BC, Canada; Port Hardy, BC, Canada; Sandspit, BC, Canada; Annette Island, AK; Level Island, AK; Sisters Island, AK; to INT Sisters Island 272° and Yakutat, AK, 139° radials. The airspace within Canada is excluded.
From Port Hardy, BC, Canada, NDB, via Nichols, AK, NDB; Sumner Strait, AK, NDB; Coghlan Island, AK, NDB; Haines, AK, NDB; Burwash, YT, Canada, NDB; Nabesna, AK, NDB; to Delta Junction, AK, NDB. From Chena, AK, NDB via Chandalar Lake, AK, NDB; Put River, AK, NDB. The airspace within Canada is excluded.
Federal Highway Administration (FHWA), DOT.
Notice of public informational meetings.
On January 8, 2003, at 68 FR 1105, the FHWA published a notice of proposed rulemaking (NPRM) proposing Management Systems Pertaining to the Bureau of Indian Affairs (BIA) and the Indian Reservation Roads (IRR) Program. The NPRM proposed rulemaking would require the BIA, in consultation with the Tribes, to develop and implement nationwide pavement, bridge, and safety management systems. In addition, the NPRM proposed to require the BIA and the FHWA to develop criteria to determine when congestion management systems are required for BIA or Tribal transportation facilities. The FHWA will hold a series of seven public meetings to provide more information to the public regarding this NPRM. These meetings will be used to provide an overview of the rulemaking process, particularly regarding how to submit comments, and to describe FHWA's purpose and intent in developing the proposed rules. Tribal representatives are encouraged to attend these meetings, and to submit suggestions and comments on the proposed rulemaking to the docket.
The meetings will be held on Thursday, February 6, 2003; two meeting sites for Tuesday, February 11, 2003; Thursday, February 13, 2003; two meeting sites for Wednesday, February 19, 2003; and one meeting on Thursday, February 20, 2003.
The February 6, 2003, meeting will take place at 9 a.m. at the Boardwalk Hotel, 3750 Las Vegas Boulevard South, Las Vegas, NV 89109 (this meeting will be held concurrently with a previously scheduled meeting of the Transportation Equity Act for the 21st Century Negotiated Rulemaking Committee); one of the February 11, 2003, meetings will take place at 1 p.m. in the Borealis Room of the Wedgewood Resort, 212 Wedgewood Drive, Fairbanks, AK 99701 (this is a change from the Anchorage, AK location listed in the January 8, 2003, NPRM); the other February 11, 2003, meeting will take place at 2 p.m. at the Indian Pueblo Cultural Center, 2401 12th St. N.W., (1 block north of I-40), Albuquerque, NM 87104; the February 13, 2003, meeting will take place at 9 a.m. at the U.S. Department of the Interior, Bureau of Indian Affairs, Federal Building Auditorium located at 911 N.E. 11th Avenue, Portland, OR 97232; one of the February 19, 2003, meetings will take place at 9 a.m. at the U.S. Department of the Interior, Bureau of Indian Affairs, Bishop Henry Whipple Federal Building, Room G110, One Federal Drive, Fort Snelling, MN 55111 (Minneapolis, MN area); the other February 19, 2003, meeting will take place at 9 a.m. at the U.S. Department of the Interior, Bureau of Indian Affairs, 711 Stewarts Ferry Pike, Nashville, TN 37214; the February 20, 2003, meeting will take place at 2 p.m. at the Oklahoma State University-Tulsa Campus in North Hall, Room 150, 700 N. Greenwood, Tulsa, OK 74016.
Mr. Bob Bini, Federal Lands Highway, HFPD-2, (202) 366-6799, or Ms. Cynthia Hatley, Federal Lands Highway, HFPD-2, (202) 493-0426, FHWA, 400 Seventh St., SW., Washington, DC 20590.
Additional information is also available from the following Tribal Technical Assistance Program Centers for the specified meeting locations:
An electronic copy of this document may be downloaded by using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's Home page at:
23 U.S.C. 204, 315, 42 U.S.C. 7410
Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The Copyright Office is requesting comment on proposed regulations that set rates and terms for the use of sound recordings by preexisting subscription services for the period January 1, 2002 through December 31, 2007.
Comments are due no later than March 3, 2003.
An original and five copies of any comment shall be delivered by hand to: Office of the General Counsel, Copyright Office, James Madison Building, Room LM-403, First and Independence Avenue, SE. Washington, DC; or mailed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
David O. Carson, General Counsel, or Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel, P.O. Box 70977, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 252-3423.
Section 106(6) of the Copyright Act, title 17 of the United States Code, gives a copyright owner of sound recordings an exclusive right to perform the copyrighted works publicly by means of a digital audio transmission. This right is limited by section 114(d), which allows certain non-interactive digital audio services to make digital transmissions of a sound recording under a compulsory license, provided that the services pay a reasonable royalty fee and comply with the terms of the license. Moreover, these services may make any necessary ephemeral
The procedure for setting the rates and terms for these two statutory licenses is a two-step process. 17 U.S.C. 112(e)(3),(4) and (6) and 17 U.S.C. 114(f)(1). The first step requires the Librarian of Congress to initiate a voluntary negotiation period to give interested parties an opportunity to determine the applicable rates and terms through a less formal process. However, if the parties are unable to reach an agreement during this period, sections 112(e)(4) and 114(f)(1)(B) directs the Librarian of Congress to convene a three-person Copyright Arbitration Royalty Panel (“CARP”) for the purpose of determining the rates and terms for the compulsory license upon receipt of a petition filed in accordance with 17 U.S.C. 803(a)(1).
The first proceeding to set rates and terms for the section 114 license for preexisting subscription services began in 1995 and concluded with the issuance of a final rule and order by the Librarian of Congress on May 8, 1998.
Later that same year, Congress passed the Digital Millennium Copyright Act (“DMCA”), amending the section 114 statutory license to cover additional transmission services and extending the term of the existing section 114 license rate as it applies to preexisting subscription services
In accordance with the time frame set forth in the law for the purpose of setting rates and terms for use of the section 114 license by preexisting services, the Copyright Office published a notice in the
On November 13, 2001, the Copyright Office initiated the next phase of the rate adjustment proceeding with the publication of a notice in the
On January 17, 2003, RIAA, AFTRA, AFM, Music Choice, DMX Music, Inc. and Muzak, LLC (collectively, “Petitioners”) filed a joint petition for adjustment of rates and terms for statutory licenses applicable to preexisting subscription services and a request for an immediate stay of the obligation to file direct cases on February 24, 2002.
Pursuant to § 251.63(b) of title 37 of the Code of Federal Regulations, the Librarian can adopt the parties' proposed terms without convening a CARP, provided that the proposed terms are published in the
If an agreement as to rates and terms is reached and there is no controversy as to these matters, it would make no sense to subject the interested parties to the needless expense of an arbitration proceeding conducted under (section 114(f)(2) (1995)). Thus, it is the Committee's intention that in such a case, as under the Copyright Office's current regulations concerning rate adjustment proceedings, the Librarian of Congress should notify the public of the proposed agreement in a notice-and-comment proceeding and, if no opposing comment is received from a party with a substantial interest and an intent to participate in an arbitration proceeding, the Librarian of Congress should adopt the rates embodied in the agreement without convening an arbitration panel.
Accordingly, the Copyright Office is granting the joint petition and is publishing for public comment the proposed rates and terms embodied in the January 17, 2003, joint petition. Any party who objects to the proposed rates and terms set forth herein must file a written objection with the Copyright Office and an accompanying Notice of Intent to Participate, if the party has not already done so. The content of the written challenge should describe the party's interest in the proceeding, the proposed rule the party finds objectionable, and the reasons for the challenge. If no comments are received, the regulations shall become final upon
Copyright, Digital Audio Transmissions, Performance Right, Sound Recordings.
In consideration of the foregoing, the Copyright Office proposes amending part 260 of 37 CFR as follows:
1. The authority citation for part 260 continues to read as follows:
17 U.S.C. 114, 801(b)(1)
2. The heading of Part 260 is revised as follows:
3. Section 260.1 is revised to read as follows:
(a) This part 260 establishes rates and terms of royalty payments for the public performance of sound recordings by nonexempt preexisting subscription services in accordance with the provisions of 17 U.S.C. 114(d)(2), and the making of ephemeral phonorecords in connection with the public performance of sound recordings by nonexempt preexisting subscription services in accordance with the provisions of 17 U.S.C. 112(e).
(b) Upon compliance with 17 U.S.C. 114 and the terms and rates of this part, nonexempt preexisting subscription services may engage in the activities set forth in 17 U.S.C. 114(d)(2).
(c) Upon compliance with 17 U.S.C. 112(e) and the terms and rates of this part, nonexempt preexisting subscription services may engage in the activities set forth in 17 U.S.C. 112(e) without limit to the number of ephemeral phonorecords made.
(d) For purposes of this part,
4. Section 260.2 is amended as follows:
a. By revising the section heading;
b. By revising paragraphs (a) and (b);
c. By redesignating paragraph (c) as paragraph (e), and adding a new paragraph (c);
d. By redesignating paragraph (d) as paragraph (f), and adding a new paragraph (d);
e. In redesignated paragraph (e)(1)(ii) by adding “a” before “recognized advertising agency”;
f. In redesignated paragraphs (e)(1)(iii) and (vi), by removing “Programming Service” and adding “programming service” in its place; and
g. In redesignated paragraphs (e)(1)(viii) and (e)(2), by removing “(c)” and adding “(e)” in its place.
The additions and revisions to § 260.2 read as follows:
(a) Commencing January 1, 2002 and continuing through December 31, 2003, a Licensee's monthly royalty fee for the public performance of sound recordings pursuant to 17 U.S.C. 114(d)(2) and the making of any number of ephemeral phonorecords to facilitate such performances pursuant to 17 U.S.C. 112(e) shall be 7.0% of such Licensee's monthly gross revenues resulting from residential services in the United States.
(b) Commencing January 1, 2004 and continuing through December 31, 2007, a Licensee's monthly royalty fee for the public performance of sound recordings pursuant to 17 U.S.C. 114(d)(2) and the making of any number of ephemeral phonorecords to facilitate such performances pursuant to 17 U.S.C. 112(e) shall be 7.25% of such Licensee's monthly gross revenues resulting from residential services in the United States.
(c) Commencing in the year 2003 and continuing through the year 2007, each Licensee making digital performances of sound recordings pursuant to 17 U.S.C. 114(d)(2) and ephemeral phonorecords pursuant to 17 U.S.C. 112(e) shall make an advance payment of $100,000 per year, payable no later than January 20th of each year; Provided, however, that for 2003, the annual advance payment shall be due on [the 20th day following the month in which these rates and terms are published in the
(d) A Licensee shall pay a late fee of 1.5% per month, or the highest lawful rate, whichever is lower, for any payment received after the due date. Late fees shall accrue from the due date until payment is received.
5. Section 260.3 is amended as follows:
a. In paragraph (b), by removing “twentieth” and adding “forty-fifth” in its place;
b. By revising paragraphs (d) and (e); and
c. By adding a new paragraph (f).
The additions and revisions to § 260.3 read as follows:
(d) The designated agent may deduct from any of its receipts paid by Licensees under § 260.2, prior to the distribution of such receipts to any person or entity entitled thereto, the reasonable costs permitted to be deducted under 17 U.S.C. 114(g)(3); Provided, however, that the parties entitled to receive royalty payments according to the provisions set forth at 17 U.S.C. 114(g)(1) & (2) who have authorized a designated agent may agree to deduct such other costs agreed to by such other parties and the designated agent.
(e) Until such time as a new designation is made, SoundExchange, which initially is an unincorporated division of the Recording Industry Association of America, Inc., shall be the agent receiving royalty payments and statements of account and shall continue to be designated if it should be separately incorporated.
(f) A Licensee shall make any payments due under § 260.2(a) for digital transmissions or ephemeral phonorecords made between January 1, 2002, and [last day of the month in which these rates and terms are published in the
6. Section 260.4 is amended as follows:
a. In paragraphs (a) and (b), by removing “nonexempt subscription digital transmission service” in each place it appears and adding “nonexempt preexisting subscription service” in its place; and
b. By revising paragraphs (d)(1) and (e).
The revisions to § 260.4 read as follows:
(d)(1)Those employees, agents, consultants and independent contractors of the designated agent, subject to an appropriate confidentiality agreement, who are engaged in the collection and distribution of royalty payments hereunder and activities directly related hereto, who are not also employees or officers of a sound recording copyright owner or performing artist, and who, for the purpose of performing such duties during the ordinary course of employment, require access to the records; and
(e) The designated agent or any person identified in paragraph (d) of this section shall implement procedures to safeguard all confidential financial and business information, including, but not limited to royalty payments, submitted as part of the statements of account, using a reasonable standard of care, but no less than the same degree of security used to protect confidential financial and business information or similarly sensitive information belonging to the designated agent or such person.
7. Section 260.5(b) is amended by removing “nonexempt subscription digital transmission service” and adding “nonexempt preexisting subscription service” in its place.
8. Section 260.6(g) is amended by removing “copyright owners”.
9. Section 260.7 is amended by removing “the cost of the administration of the collection and distribution of the royalty fees' and adding “any costs deductible under 17 U.S.C. 114(g)(3)” in its place.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
Following a review of the status of the eastern North Pacific Southern Resident stock of killer whales (
Information and comments must be received by March 31, 2003.
Information and comments should be submitted to Chief, Protected Resources Division, NMFS, 525 NE Oregon Street, Suite 500, Portland, OR 97232. Alternatively, comments may also be submitted via the Internet (
Mr. Garth Griffin, Northwest Regional Office, NMFS, Portland, OR (503) 231-2005, or Dr. Thomas Eagle, Office of Protected Resources, NMFS, Silver Spring, MD (301) 713-2322, ext. 105.
A list of the references used in this notice and other information related to the status of this stock of killer whales is available on the Internet at
Section 3(1)(A) of the MMPA (16 U.S.C. 1362(1)(A)) defines the term, “depletion” or “depleted”, as any case in which “the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals ... determines that a species or population stock is below its optimum sustainable population [(OSP)].” Section 3(9) of the MMPA defines OSP ”...with respect to any population stock, [as] the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity [(K)] of the habitat and the health of the ecosystem of which they form a constituent element.” NMFS' regulations at 50 CFR 216.3 clarify the definition of OSP as a population size which falls within a range from the population level of a given species or stock that is the largest supportable within the ecosystem (carrying capacity [K]) to the population level that results in the maximum net productivity level (MNPL). MNPL is the greatest net annual increment (increase) in population numbers resulting from additions due to reproduction less losses due to natural mortality.
A population stock below its MNPL is, by definition, below OSP and, thus, would be considered depleted under the MMPA. Historically, the estimated MNPL has been expressed as a range of values, generally 50 to 70 percent of K (42 FR 12010, March 1, 1977). In 1977, the midpoint of this range (60 percent of K) was used to determine whether dolphin stocks in the eastern tropical Pacific Ocean were depleted under the MMPA (42 FR 64548, December 27, 1977). The 60-percent-of-K value was used in the final rule governing the taking of marine mammals incidental to commercial tuna purse seine fishing in the eastern tropical Pacific Ocean (45 FR 72178, October 31, 1980) and has been used since that time for other status reviews under the MMPA. For stocks of marine mammals, including killer whales, K is generally unknown. NMFS, therefore, has used the best estimate available of maximum historical abundance as a proxy for K.
Pursuant to section 115 of the MMPA (16 U.S.C. 1383b), NMFS published an advance notice of proposed rulemaking (ANPR) (67 FR 44132, July 1, 2002) which included a request for scientific information. The notice requested information, comments, and supporting documents on stock status, areas of significance to the stock, and any factors that may be causing the decline or impeding the recovery of the stock. The 60-day comment period on the ANPR closed on August 30, 2002. A summary of the public comments received and
NMFS received 51 comments in response to the ANPR. The majority of the comments were form letters that did not provide substantive information, but voiced general support for the listing of Southern Resident killer whales under the Endangered Species Act. Summaries and responses are provided below only for those comments that address the ANPR or the status of Southern Resident killer whales under the MMPA.
Section 3(11) of the MMPA defines a population stock or stock as a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature. Although this definition is in part a legal concept, stocks, species, and populations are biological concepts that must be defined on the basis of the best scientific data available.
The killer whale is the largest member of the dolphin family (Delphinidae), and the species is distributed throughout the world's oceans. Along the west coast of North America, killer whales occur along the entire Alaskan coast, in British Columbia and Washington inland waterways, and along the outer coasts of Washington, Oregon, and California. North Pacific killer whales have been classified into three forms, termed Residents, Transients, and Offshore whales. All three of these forms are currently classified as the same biological species, O. orca. The three forms vary in morphology, ecology, behavior, group size, social organization, acoustic repertoire, and genetic characteristics. Behavioral evidence suggests that Offshore and Transient groups rarely interact with the Resident pods (pods are close-knit family groups ranging from 10 to 70 whales). Although the Transient form overlaps extensively in range with the Resident form, genetic evidence suggests that the two forms do not interbreed. Furthermore, distinct feeding habits exist, with Transient killer whales primarily preying on other marine mammals and Residents primarily feeding on fishes. Little is known about the feeding habits of the Offshore form.
Specific stock definitions for west coast killer whales are provided in the U.S. Pacific Marine Mammal Stock Assessments (Carretta et al. 2001) and include consideration of data on association patterns, acoustics, movements, genetic differences and potential fishery interactions. Five killer whale stocks are recognized within the Pacific U.S. exclusive economic zone: 1) the eastern North Pacific Northern Resident stock; 2) the eastern North
Southern Resident killer whales include members of 3 pods of killer whales (J, K, and L pods). These whales have been intensively studied, particularly by the Center for Whale Research, and all members of each pod have been identified. Ongoing research efforts include descriptions and photographs of new calves, and these animals are observed regularly as long as they remain in the population.
There are no empirical estimates of the historical stock size for Southern Resident killer whales; however, NMFS examined indirect evidence to derive an estimate of historical abundance for the population. A minimum historical abundance of 140 whales was derived by combining the total abundance based upon the original 1974 census population (71) with the estimated number of animals that were removed or died (68) during live capture operations for display conducted in the 1960's and early 1970's (67 FR 44132, 44133, July 1, 2002). The number of animals that may have been killed by shooting or other human interactions is unknown but, based on anecdotal evidence, may have been greater than zero. Additionally, a comparison of genetic diversity with the larger Northern Resident killer whale stock (214 whales) indicates that the Southern Resident stock may have been of similar size in the recent past (Barrett-Lennard, L.G. and Ellis, G.M. 2001 and NMFS 2002). Therefore, the best available scientific information suggests a historical abundance of approximately 140 to 200 whales.
The abundance of the Southern Resident stock has declined by approximately 20 percent over the past 6 years (1996-2002)(NMFS 2002). The true K and MNPL are unknown for Southern Resident killer whales. Using an estimated range of historical stock size of 140-200 whales as a proxy for K, the estimated MNPL for the Southern Resident stock would be 84-120 whales (i.e., 60 percent of 140-200). A more complete discussion of the estimated historical stock size can be found in the ANPR referenced above. The 2002 abundance of 80 Southern Resident killer whales (Center for Whale Research, 2002 Orca Survey) is below the lower bound of the estimated MNPL range (84) for the stock. The current population size meets the statutory definition of a depleted stock. NMFS recognizes that the current population size is very near the estimated lower bound of MNPL for this stock but is proposing this risk averse approach in light of the recent declining trend. Accordingly, NMFS has initiated consultation with the Marine Mammal Commission and has received initial support for the proposed action. Therefore, based on the best scientific information available, NMFS proposes to designate this stock as depleted under the MMPA.
NMFS is soliciting comments on the proposed designation of this stock as depleted under the MMPA and is particularly interested in the historical abundance of the eastern North Pacific Southern Resident stock. The agency is also interested in: areas of ecological significance (mating, rearing, resting, feeding) to the eastern North Pacific Southern Resident stock; impacts that may be causing the decline or impeding the recovery of the stock; potential conservation measures that may be useful in alleviating those impacts and rebuilding the stock; and the potential economic impacts and the potential biological benefits of alternative conservation measures. It is requested that data, information, and comments be accompanied by: (1) supporting documentation such as maps, logbooks, bibliographic references, personal notes, or reprints of pertinent publications; and (2) the name of the person submitting the data, their address, and any association, institution, or business that the person represents.
If Southern Resident killer whales are designated as depleted, NMFS will hold public meetings to define the scope and develop the content for a conservation plan. Dates, addresses, and times of the meetings would be announced in the preamble of the final rule.
A complete list of all cited references is available via the Internet (
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866. Depletion designations under the MMPA are similar to ESA listing decisions, which are exempt from the requirement to prepare an environmental assessment or environmental impact statement under the National Environmental Policy Act.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows: “The MMPA imposes a general moratorium on the taking of marine mammals. This proposed rule would designate the Eastern North Pacific Southern Resident stock of killer whales as depleted; however, this designation would not, by itself, place any additional restrictions on the public. Any subsequent restrictions placed on the public to protect these whales would be included in separate regulations, and appropriate analyses under the Regulatory Flexibility Act would be conducted during those rulemaking procedures.” Hence, implementation of this proposed rule would not have a significant economic impact on a substantial number of small entities. As a result, no regulatory flexibility analysis for this rule has been prepared.
This proposed rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act of 1980. This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.
Administrative practice and procedure, Exports, Imports, Marine mammals, Transportation.
1. The authority citation for part 216 continues to read as follows:
16 U.S.C. 1361
(h) Eastern North Pacific Southern Resident stock of killer whales (
Food and Nutrition Service, USDA.
Notice.
This notice informs the public of the annual adjustments to the reimbursement rates for meals served in the Summer Food Service Program for Children (SFSP). These adjustments reflect changes in the Consumer Price Index and are required by the statute governing the Program. In addition, further adjustments are made to these rates to reflect the higher costs of providing meals in the States of Alaska and Hawaii, as authorized by the William F. Goodling Child Nutrition Reauthorization Act of 1998.
January 1, 2003.
Robert M. Eadie, Branch Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302, (703) 305-2620.
This program is listed in the Catalog of Federal Domestic Assistance under No. 10.559 and is subject to the provisions of Executive Order 12372 which requires intergovernmental consultation with State and local officials (7 CFR part 3015, subpart V, and final rule related notice published at 48 FR 29114, June 24, 1983).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3518), no new recordkeeping or reporting requirements have been included that are subject to approval from the Office of Management and Budget.
This notice is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612) and thus is exempt from the provisions of that Act. Additionally, this notice has been determined to be exempt from review by the Office of Management and Budget under Executive Order 12866.
The terms used in this Notice shall have the meaning ascribed to them in the regulations governing the Summer Food Service Program for Children (7 CFR part 225).
In accordance with section 13 of the National School Lunch Act (NSLA)(42 U.S.C. 1761) and the regulations governing the SFSP (7 CFR part 225), notice is hereby given of adjustments in Program payments for meals served to children participating in the SFSP in 2003. Adjustments are based on changes in the food away from home series of the Consumer Price Index (CPI) for All Urban Consumers for the period November 2001 through November 2002.
Section 104(a) of the William F. Goodling Child Nutrition Reauthorization Act of 1998 (Pub. L. 105-336) amended section 12(f) of the NSLA (42 U.S.C. 1760(f)) to allow adjustments to SFSP reimbursement rates to reflect the higher cost of providing meals in the SFSP in Alaska and Hawaii. Therefore, this notice contains adjusted rates for Alaska and Hawaii. This change was made in an effort to be consistent with other Child Nutrition Programs, such as the National School Lunch Program and the School Breakfast Program, which already had the authority to provide higher reimbursement rates for programs in Alaska and Hawaii.
The 2003 reimbursement rates, in dollars, for all States excluding Alaska and Hawaii:
The 2003 reimbursement rates, in dollars, for Alaska:
The 2003 reimbursement rates, in dollars, for Hawaii:
The total amount of payments to State agencies for disbursement to Program sponsors will be based upon these Program reimbursement rates and the number of meals of each type served. The above reimbursement rates, for both operating and administrative reimbursement rates, represent a 2.28 percent increase during 2002 (from 175.8 in November 2001 to 179.8 in November 2002) in the food away from home series of the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. The Department would like to point out that the SFSP administrative reimbursement rates continue to be adjusted up or down to the nearest quarter-cent, as has previously been the case. Additionally, operating reimbursement rates have been rounded down to the nearest whole cent, as required by Section 11(a)(3)(B) of the NSLA (42 U.S.C. 1759 (a)(3)(B)).
Secs. 9, 13 and 14, National School Lunch Act, as amended (42 U.S.C. 1758, 1761, and 1762a).
Forest Service, USDA
Cancellation notice.
On May 31, 2000 a Notice of Intent (NOI) to prepare an environmental impact statement for the Bonners Ferry Ranger District Salvage Sales Project was published in the
Bonners Ferry Ranger District, 6286 Main St, Bonners Ferry, Idaho 83805-9764
Barry Wynsma, Project Team Leader, (208) 267-5561.
The public was first notified of this proposal and the intention to prepare an environmental impact statement in October 1999. The Bonners Ferry Ranger District of the Idaho Panhandle National Forests proposed salvage harvesting up to 20,000 acres of dead and damaged trees in scattered areas across the district. The small-scale salvage sales were expected to contribute to hazardous fuels reduction and to help restore productive stand conditions and/or ecological functioning in areas affected by windstorms, insects, disease and other damaging events. Salvage of the trees was expected to help provide forest products for local post and pole mills, small sawmills, and other forest product manufacturers.
Ensuring project design and development of action alternatives included incorporation of restrictive criteria such as avoiding resource areas of concern, old growth and riparian areas for instance, and mitigation measures such as timing salvage operations to take place during periods that minimized potential impacts to wildlife species of concern. The result of the project design for the proposed activities has led the project team to the conclusion that there will be no significant effects associated with the proposal, and therefore preparation of an environmental impact statement is not warranted. An environmental assessment will be prepared to document the proposed action, alternatives to the proposed action, and environmental consequences of implementing each of the alternatives.
Since an environmental assessment will be prepared instead of an environmental impact statement, the NOI is hereby rescinded.
Southwest Idaho Resource Advisory Committee, Boise, ID, Forest Service, USDA.
Notice of meeting.
Pursuant to the authorities in the Federal Advisory Committee Act (Public Law 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Public Law 103-393), the Boise and Payette National Forests' Southwest Idaho Resource Advisory Committee will conduct a business meeting. The meeting is open to the public.
Wednesday, February 19, 2003 beginning at 10:30 a.m.
Idaho Counties Risk Management Program Building, 3100 South Vista Avenue, Boise, Idaho.
Agenda topics will include review and approval of project proposals and an open public forum.
Randy Swick, Designated Federal Officer, at (208) 634-0400.
Rural Utilities Service, USDA.
Notice of application deadline.
The Rural Utilities Service (RUS) announces funding available for the Rural Broadband Access Loan and Loan Guarantee program. For FY 2003, no less than $1.455 billion in loans is available, $1.295 billion for direct cost-of-money loans, $80 million for direct 4-percent loans, and $80 million for loan guarantees.
All returned applications from the Broadband Pilot Program must be delivered to RUS or bear postmark no later than March 3, 2003 in order to have a priority consideration in FY 2003. All applications must be delivered to RUS or bear postmark no later than January 31, 2003, to be considered for funding from their applicable state's allocation. All other applications must be delivered to RUS or bear postmark no later than July 31, 2003, to be considered for funding in Fiscal Year 2003.
Roberta D. Purcell, Assistant Administrator, Telecommunications Program, Rural Utilities Service, STOP 1590, 1400 Independence Avenue, SW., Washington, DC 20250-1590, Telephone (202) 720-9554, Facsimile (202) 720-0810.
During FY 2003, no less than $1.455 billion will be made available for loans and loan guarantees for the construction, improvement, and acquisition of facilities and equipment for broadband service in eligible rural communities. Of the total loan funds available, $1.295 billion will be available for direct cost-of-money loans, $80 million for 4-percent direct loans, and $80 million for loan guarantees. The Rural Broadband Access Loan and Loan Guarantee Program is authorized by the Rural Electrification Act (7 U.S.C. 601) (the Act), as added by the Farm Security and Rural Investment Act of 2002, Pub. L. 101-171.
Priority will be given to applications previously received by RUS under its Broadband Pilot Program, described at 67 FR 45079.
Applications must be submitted in accordance with 7 CFR part 1738. This part and an application guide to assist in the preparation of applications are available in the Internet at:
For application information, contact the following individual: Deborah Jackson, Telecommunications Program, RUS/USDA, Room 2919, Stop 1541, 1400 Independence Avenue, SW., Washington, DC, (202) 720-8427.
Loans and loan guarantees under this authority will not be made for less than $100,000. Maximum loan amounts apply only to the direct 4-percent loan program. The maximum amount available for any one applicant for a direct 4-percent loan is $5,000,000.
The Secretary of Agriculture determines what qualifies as broadband service for the purpose of determining eligibility for financial assistance under the Rural Broadband Access Loan and Loan Guarantee Program. During fiscal year 2003 (and thereafter until further notice), to qualify as broadband service, the minimum rate-of-data transmission shall be 200 kilobits/second in the customer's connection to the network, both from the provider to the customer (downstream) and from the customer to the provider (upstream).
Due to the date of publication of the regulation and the regulatory deadline of January 31 for applications to be considered under the state allocation, applications submitted pursuant to this notice for fiscal year 2003 will be funded from the national reserve.
The Act requires RUS, from amounts made available each fiscal year, to establish a national reserve for loans and loan guarantees to eligible entities in states and to allocate amounts in the reserve to each state for each fiscal year. The Act further sets forth the method of allocation as follows:
“The amount of an allocation made to a State for a fiscal year * * * shall bear the same ratio to the amount of allocations made for all States for the fiscal year as the number of communities with a population of 2,500 inhabitants or less in the State bears to the number of communities with a population of 2,500 inhabitants or less in all States, as determined on the basis of the latest available census”.
The following table shows the number of communities with 2,500 inhabitants or less (from the 2000 U.S. Census data), the percent in each state of such communities in relation to the total of all states, and the dollar amount of loan and loan guarantee funds available to each state:
An applicant will be eligible for a direct 4-percent loan if (1) the community being served has a population of less than 2,500, and is not currently receiving broadband service as defined at § 1738.11(b)(1), (2) the per capita income in the county being served as a percent of national per capita income, is not more than 55 percent of the national per capita income, as determined by the Bureau of Economic Analysis, U.S. Department of Commerce, at
Each application remaining unfunded from the Broadband Pilot Program will be returned to the applicant. The applicant will be given 30 days from the date of publication of final rule 7 CFR 1738, Rural Broadband Access Loans and Loan Guarantees, in the
Applications submitted within the 30-day time frame, that are economically and technically feasible, as determined by RUS and as set forth in RUS Bulletin 1738-1 will be given priority for funding as set forth in § 1738.14.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the Arizona Advisory Committee to the Commission will convene at 9 a.m. and adjourn at 1 p.m. on Friday, March 7, 2003, at the Crowne Plaza Hotel (Metro Center), 2532 West Peoria, the Executive Board Room, Phoenix, Arizona 85029. The purpose of the meeting is to plan a follow-up to the 1997 report on civil rights problems along the United States/Mexico border. The report is: Federal Immigration Law Enforcement in the Southwest: Civil Rights Impacts on Border Communities. Four states will be involved.
Persons desiring additional information, or planning a presentation to the Committee, should contact Philip Montez, Director of the Western Regional Office, 213-894-3437 (TDD 213-894-3435). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the Texas Advisory Committee to the Commission will convene at 11 a.m. and adjourn at 3 p.m. on Friday, February 21, 2003, at the St. Anthony Hotel, Midland Room, 300 East Travis, San Antonio, TX 78205. The purpose of the meeting is to hold new member orientation and discuss civil rights issues in the State.
Persons desiring additional information, or planning a presentation to the Committee, should contact Philip Montez, Director of the Western Regional Office, 213-894-3437 (TDD 213-894-3435). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 31, 2003.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Ken Kaplan or Sue Montfort, U.S. Census Bureau, FOB 3, Room 3351, Washington, DC 20233-8400 at (301) 763-3836.
The purpose of this voluntary survey is to provide trend data on the volunteering and giving behavior of youths and adults; to chart the impact of major institutions, such as schools and religious institutions on encouraging such behavior; to highlight people's attitudes on a variety of issues relating to their volunteering behavior; and to explore behavioral and motivational factors that influence volunteering and giving.
Independent Sector, a nonprofit, nonpartisan coalition of more than 700 national organizations, foundations, and corporate philanthropy programs, began to study volunteerism in the United States in the early 1990s. Original survey content was developed by a national advisory group of scholars and practitioners and addressed the following issues:
• Who volunteers? Who gives? To whom? How much?
• What are determinants of giving and volunteering behavior?
• What is the motivation for giving and volunteering to various types of charitable causes?
• When do youths begin to volunteer and give?
• What skills have young people learned from their community service?
• To what degree do schools encourage volunteering? Do they offer courses requiring community service or require community service for graduation?
• What level of confidence do young people have in the institutions of our society?
This survey is unique because it contains information about both adults and youths who give or volunteer and those that do neither. The findings have been of interest to policymakers, the media, researchers, and school principals and teachers, as well as leaders of voluntary organizations.
As part of the emerging literature on “social capital,” or social attachments, one important correlation of interest is that of religious practice and volunteering. This survey seeks to confirm and understand better that correlation by asking questions such as attendance at religious services and whether a volunteer organization is religiously-affiliated. The Census Bureau considers the religiously-oriented questions appropriate in the context of the survey's objective. We will not ask respondents to identify any particular religion.
For the national sample, we will select a sample of households from
The information will be collected by telephone-only interviews in one of the Census Bureau's telephone centers. The data methodology will utilize computer-assisted telephone interviewing (CATI).
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology and; (e) whether questions about religion, when contextually relevant and in a voluntary survey, are an appropriate area of inquiry to the Census Bureau.
Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record.
DOC has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The SIPP is designed as a continuing series of national panels of interviewed households that are introduced every few years, with each panel having durations of 3 to 4 years. The 2001 SIPP Panel is scheduled for three years and will include nine waves beginning February 1, 2001.
The survey is molded around a central “core” of labor force and income questions that remain fixed throughout the life of a panel. The core is supplemented with questions designed to answer specific needs. These supplemental questions are included with the core and are referred to as “topical modules.” The topical modules for the 2001 Panel Wave 8 are Child Support Agreements, Support for Nonhousehold Members, Functional Limitations and Disability for Adults and Children, Adult Well-Being, and Welfare Reform. Wave 8 interviews will be conducted from June through September 2003.
Data provided by the SIPP are being used by economic policymakers, the Congress, state and local governments, and Federal agencies that administer social welfare or transfer payment programs, such as the Department of Health and Human Services and the Department of Agriculture. The SIPP represents a source of information for a wide variety of topics and allows information for separate topics to be integrated to form a single and unified database so that the interaction between tax, transfer, and other government and private policies can be examined. Government domestic policy formulators depend heavily upon the SIPP information concerning the distribution of income received directly as money or indirectly as in-kind benefits and the effect of tax and transfer programs on this distribution. They also need improved and expanded data on the income and general economic and financial situation of the U.S. population. The SIPP has provided these kinds of data on a continuing basis since 1983, permitting levels of economic well-being and changes in these levels to be measured over time.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Susan Schechter, OMB Desk Officer either by fax (202-395-7245) or e-mail (
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Port of New Orleans, grantee of FTZ 2, requesting authority on behalf of Murphy Oil USA, Inc. (Murphy), to expand the scope of manufacturing activity conducted under zone procedures within Subzone 2J at the Murphy oil refinery complex in Meraux, Louisiana. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on January 17, 2003.
Subzone 2J (620 acres, 250 employees) was approved by the Board in 1997 and is located at 2500 East St. Bernard Highway, Meraux, St. Bernard Parish, Louisiana. Authority was granted for the manufacture of fuel products and certain petrochemical feedstocks and refinery by-products (Board Order 895, (62 FR 32582, 6/16/97)).
The refinery (105,000 barrels per day) is used to produce fuels and petrochemical feedstocks. The expansion request involves several modified and upgraded processing units. Murphy has been expanding and modifying several units to allow for the processing of high-sulfur crude into low-sulfur gasoline and diesel fuels. The new facilities will increase the overall capacity of the refinery to 125,000 BPD. The feedstocks used and product slate will remain unchanged. Some 96 percent of the crude oil will be sourced from abroad.
Zone procedures would exempt the new refinery facilities from Customs duty payments on the foreign products used in its exports. On domestic sales, the company would be able to choose the Customs duty rates for certain petrochemical feedstocks (duty-free) by admitting foreign crude oil in non-privileged foreign status. The application indicates that the savings from zone procedures help improve the refinery's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ staff has been appointed examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
1. Submissions Via Express/Package Delivery Services: Foreign-Trade-Zones Board, U.S. Department of Commerce, Franklin Court Building—Suite 4100W, 1099 14th St. NW., Washington, DC 20005; or
2. Submissions Via the U.S. Postal Service: Foreign-Trade-Zones Board, U.S. Department of Commerce, FCB—Suite 4100W, 1401 Constitution Ave. NW., Washington, DC 20230. The closing period for their receipt is March 31, 2003. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to April 15, 2003).
A copy of the application and accompanying exhibits will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the first address listed above, and at the U.S. Department of Commerce Export Assistance Center, 365 Canal Street, Suite 1170 New Orleans, LA 70130.
The Foreign-Trade Zones (FTZ) Board (the Board) has considered the documentation indicating that the Columbus Municipal Airport Authority (CMAA) was reorganized to include the Rickenbacker Port Authority (RPA). Upon review, we concur with the findings that the CMAA is the legal successor to RPA and we recognize the CMAA as grantee of FTZ 138 as of January 1, 2003.
Import Administration, International Trade Administration, Department of Commerce.
Notice of rescission of antidumping duty administrative review.
On June 25, 2002, the Department of Commerce (“the Department”) initiated an administrative review of the antidumping duty order on extruded rubber thread (“ERT”) from Indonesia, covering the period May 1, 2001, through April 30, 2002, and one manufacturer/exporter of the subject merchandise, P.T. Swasthi Parama Mulya (“Swasthi”).
January 30, 2003.
Lyman Armstrong or Jim Neel, AD/CVD Enforcement, Office 6, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3601 or (202) 482-4161, respectively.
On May 31, 2002, the Department received a letter from Swasthi requesting an administrative review of the antidumping order on ERT from Indonesia. On June 25, 2002, the Department initiated an administrative review of this order for the period May 1, 2001, through April 30, 2002.
For purposes of this review, the product covered is ERT from Indonesia. ERT is defined as vulcanized rubber thread obtained by extrusion of stable or concentrated natural rubber latex of any cross sectional shape, measuring from 0.18 mm, which is 0.007 inches or 140 gauge, to 1.42 mm, which is 0.056 inch or 18 gauge, in diameter.
ERT is currently classified under subheading 4007.00.00 of the
Within 90 days of the June 25, 2002 notice of initiation, Swasthi requested to withdraw its request for an administrative review.
In accordance with the Department's regulations, and consistent with its practice, the Department hereby rescinds the administrative review of ERT from Indonesia for the period May 1, 2001, to April 30, 2002.
This notice is in accordance with section 751(a)(1) of the Tariff Act of 1930 as amended and section 351.213(d) of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Antidumping Duty Administrative Review and Rescission of Administrative Review in Part.
On August 9, 2002, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on fresh garlic from the People's Republic of China. The period of review is November 1, 2000, through October 31, 2001. The administrative review covers thirteen producers/exporters of subject merchandise.
We invited interested parties to comment on our preliminary results. Based on our analysis of the comments received, we have made no changes to our analysis of our intent to rescind the review with respect to one respondent company. We have determined that we should rescind the review of another respondent company instead of assigning that company a rate based on adverse facts available. For a discussion of the rescissions, see the section “Partial Rescission of Review” listed below. The final dumping margins for the administrative review are listed in the “Final Results of the Review” section below.
January 30, 2003.
Edythe Artman or Catherine Cartsos, Office of Antidumping/Countervailing Duty Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230; telephone (202) 482-3931 or (202) 482-1757, respectively.
On August 9, 2002, the Department published the preliminary results of the administrative review of the antidumping duty order on fresh garlic from the People's Republic of China.
We have conducted these reviews in accordance with section 751 of the Tariff Act of 1930, as amended, and 19 CFR 351.213 (2001) .
The products covered by this antidumping duty order are all grades of garlic, whole or separated into constituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing. The differences between grades are based on color, size, sheathing, and level of decay.
The scope of this order does not include the following: (a) garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed.
The subject merchandise is used principally as a food product and for seasoning. The subject garlic is currently classifiable under subheadings 0703.20.0010, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, and 2005.90.9700 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive. In order to be excluded from the antidumping duty order, garlic entered under the HTSUS subheadings listed above that is (1) mechanically harvested and primarily, but not exclusively, destined for non-fresh use or (2) specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed must be accompanied by declarations to the Customs Service to that effect.
All issues raised in the case and rebuttal briefs by parties to the administrative review are addressed in the “Issues and Decision Memorandum for the Administrative Review of Fresh Garlic from the People's Republic of China” from Susan Kuhbach to Faryar Shirzad (January 21, 2003) (Decision Memo), which is hereby adopted by this notice. A list of the issues which parties raised and to which we responded in the Decision Memo is attached to this notice as an Appendix. The Decision Memo is a public document and is on file in the Central Records Unit (CRU), Main Commerce Building, Room B-099, and is accessible on the Web at
In our preliminary results, we presumed that Golden Light was a market-economy company and that, accordingly, it qualified for a company-specific rate. We determined that a separate-rate analysis was not warranted for FHTK because, as a wholly owned foreign subsidiary, its parent company was beyond the jurisdiction of the People's Republic of China (PRC). See
In the Preliminary Results, we determined that Golden Light, Phil-Sino International Trading Inc. (Phil-Sino), and Wo Hing (H.K.) Trading Co. (Wo Hing) should be assigned the rate of 376.67 percent based on use of the adverse facts available. In addition, we determined that this rate should be used as the adverse facts available for the PRC-wide entity and, accordingly, we applied this rate to Foshan Foodstuffs Import & Export Company, Jinan Import & Export Corporation, Jinxiang Foreign Trade Corporation, Jinxiang Hong Chong Fruits & Vegetable Products Company, Ltd., Quingdao Rui Sheng Food Company, Ltd., Rizhao Hanxi Fisheries & Comprehensive Development Co., Ltd., Shandong Commercial Group Corporation, and Zhejiang Materials Industry International Co., Ltd. See
Because we are rescinding the review for Golden Light, we find that the use of adverse facts available for its margin is not warranted. See the section “Partial Rescission of Review” below for a discussion of our determination.
Based on our analysis of comments received, we have rescinded the review of Golden Light.
With respect to FHTK, we have based the surrogate value for garlic sprouts on data from the
We have not changed our analysis with respect to the rescission of Clipper from the review or with respect to the other respondents in the review.
Section 772(a) of the Act, states, in part:
Accordingly, we have interpreted section 772(a) of the Act to mean that we are to use the price at which the first party in the chain of distribution who has knowledge of the U.S. destination of the merchandise sells the subject merchandise, either directly to a U.S. purchaser or to an intermediary such as a trading company. The party making such a sale, with knowledge of destination, is the appropriate party to be reviewed. Our focus is on the first party in the chain of distribution with knowledge of the U.S. destination, rather than on the first chronological sale of the merchandise. One exception to this rule is that, in non-market economy (NME) cases, we do not base export price on internal transactions between two companies located in the NME. See
Applying these principles, we have not reviewed Clipper's sales to its U.S. customer because the evidence on the record supports a finding that PRC export agents which sold the subject merchandise to Clipper had knowledge of the U.S. destination when they made the sales to Clipper. In addition, the sales of the garlic from the export agents to Clipper were the first non-intra-NME sales in the chain of distribution of the merchandise. Thus, these sales provide the appropriate basis on which to determine the export price.
The Department did not receive a request for review of the PRC export agents during the anniversary month of the publication of the antidumping duty order. See 19 CFR 351.213(b). Thus, it is not appropriate to conduct a review of the sales at issue. Therefore, we are rescinding this administrative review as it applies to Clipper. With this rescission, we will instruct the Customs Service to liquidate the entries during the period of review of subject merchandise from Clipper in accordance with 19 CFR 351.213(d).
For reasons discussed in response to comment 5 of the Decision Memo, we have determined that it is appropriate to rescind Golden Light from the review pursuant to 19 CFR 351.213(d)(3) on the basis that Golden Light had no entries, exports, or sales of subject merchandise during the POR.
We determine that the following dumping margins exist for the period November 1, 2000, through October 31, 2001:
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. We will issue appropriate assessment instructions directly to the Customs Service within 15 days of publication of these final results of review.
The following cash-deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for merchandise exported by FHTK, the cash-deposit rate will be zero percent; (2) for Phil-Sino and Wo Hing, the cash-deposit rate will be 376.67 percent; (3) for all other PRC exporters which have not been found to be entitled to a separate rate, the cash-deposit rate will be the PRC-wide rate of 376.67 percent; and (4) for all other non-PRC exporters
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) (2001) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these review periods. Pursuant to 19 CFR 351.402(f)(3), failure to comply with this requirement, could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.210(c) (2001).
Import Administration, International Trade Administration, Department of Commerce.
Notice of partial rescission of the antidumping duty new shipper review of honey from the People's Republic of China.
On August 6, 2002, the Department of Commerce published the initiation of the new shipper reviews of the antidumping duty order on honey from the People's Republic of China. The review covers Chengdu-Dujiangyan Dubao Bee Industrial Co., Ltd., and Wuhan Bee Healthy Co., Ltd. The period of review is December 1, 2001, through May 31, 2002. For the reasons discussed below, we are rescinding the review of Chengdu-Dujiangyan Dubao Bee Industrial Co., Ltd.
January 30, 2003.
Angelica Mendoza or Donna Kinsella at (202) 482-3019 and (202) 482-0194, respectively; AD/CVD Enforcement, Office 8, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR part 351 (April 2002).
The products covered by this antidumping duty order are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight, and flavored honey. The subject merchandise includes all grades and colors of honey whether in liquid, creamed, comb, cut comb, or chunk form, and whether packaged for retail or in bulk form. The merchandise subject to this order is currently classifiable under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and U.S. Customs Service (U.S. Customs) purposes, the Department's written description of the merchandise under order is dispositive.
On June 28, 2002, Chengdu-Dujiangyan Dubao Bee Industrial Co., Ltd. (Dubao), a producer and exporter of subject merchandise, submitted a request for a new shipper review. Dubao certified in its new shipper review request that (1) it did not export honey to the United States during the period of investigation (POI), (2) it has never been affiliated with any exporter or producer which did export honey during the POI, and (3) its export activities are not controlled by the central government of the People's Republic of China (PRC). Based on Dubao's certifications, the Department initiated a new shipper review of the antidumping duty order on honey from the PRC for “Chengdu-Dujiangyan Dubao Bee Industrial Co., Ltd.” for the time period December 1, 2001, through May 31, 2002.
On November 21, 2002, Dubao informed the Department that its counsel incorrectly referred to Dubao as “Chengdu-Dujiangyan Dubao Bee Industrial Co., Ltd.” in its submissions to the Department. Dubao claims that the correct name of the company is “Sichuan-Dujiangyan Dubao Bee Industrial Co., Ltd.” We did not receive any comments from the American Honey Producers Association nor the Sioux Honey Association (collectively, petitioners) on this issue.
Dubao did not provide the Department with the correct certifications required under 351.214(b)(2) of the Department's regulations for a new shipper review. The Department's regulations at 19 CFR 351.214(b)(2) state that, if the company requesting the review is both the exporter and the producer of the subject merchandise, then the request from this company must contain a certification that the company did not export subject
As noted above, Dubao failed to identify the correct name of the exporter and producer of the subject merchandise for purposes of its required certifications. Therefore, we find it appropriate to rescind the new shipper review of Dubao based on its failure to provide the proper certifications pursuant to 19 CFR 351.214(b)(2).
Bonding is no longer permitted to fulfill security requirements for shipments from Dubao of honey from the PRC entered, or withdrawn from warehouse, for consumption in the United States on or after the publication of this rescission notice in the
This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(2)(B)(iv) and 777(i) of the Tariff Act of 1930, as amended.
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit for preliminary results of new shipper antidumping duty review.
January 30, 2003.
Angelica Mendoza or Donna Kinsella at (202) 482-3019 or (202) 482-0194, respectively; Antidumping and Countervailing Duty Enforcement Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930, as amended (the Act). In addition, unless otherwise indicated, all citations to the Department's regulations are references to the provisions codified at 19 CFR part 351 (2002).
The Department received a timely request from Wuhan Bee Healthy Co., Ltd. (Wuhan), in accordance with 19 CFR 351.214(c), for a new shipper review of the antidumping duty order on honey from the People's Republic of China (PRC), which has a December annual anniversary month and a June semiannual anniversary month. On July 31, 2002, the Department found that the request for review met all the regulatory requirements set forth in section 351.214(b) of the Department's regulations and initiated this new shipper antidumping review covering the period December 1, 2001, through May 31, 2002.
Pursuant to section 751(a)(2)(B) of the Act, the Department may extend the deadline for completion of the preliminary results of a new shipper review if it determines that the case is extraordinarily complicated. The Department has determined that this case is extraordinarily complicated, and the preliminary results of this new shipper review cannot be completed within the statutory time limit of 180 days. Specifically, a number of complex affiliation issues have been raised. The Department has issued supplemental questionnaires to collect additional information about these issues. In addition, we need more time to obtain additional information on sales and factors of production. Given the issues in this case, the Department finds that this case is extraordinarily complicated, and cannot be completed within the statutory time limit.
Accordingly, the Department is fully extending the time limit for the completion of the preliminary results by 300 days, to May 27, 2003, in accordance with section 751(a)(2)(B)(iv) of the Act and 351.214(i)(2) of the Department's regulations. The final results will in turn be due 90 days after the date of issuance of the preliminary results, unless extended.
Import Administration, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce is extending the time limit for the preliminary results of the administrative review of the antidumping duty order on natural bristle paint brushes and brush heads from the People's Republic of China until no later than February 28, 2003. The period of review is February 1, 2001, through January 31, 2002. This
January 30, 2003.
Douglas Kirby or Sean Carey, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3782 or (202) 482-3964, respectively.
Section 351.213(h)(1) of the Department's regulations requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of the order or suspension agreement for which the administrative review was requested, and final results of review within 120 days after the date on which notice of the preliminary results was published in the
On February 1, 2002, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on natural bristle paint bushes and brush heads from the People's Republic of China (PRC) (67 FR 4945). On February 28, 2002, the Department received a timely request from the Paint Applicator Division of the American Brush Manufacturers Association, the petitioner, for administrative reviews of Hunan Provincial Native Produce and Animal By-Products Import and Export Corporation (Hunan) and Hebei Founder Import and Export Company (Hebei). On March 27, 2002, the Department initiated an administrative review of the antidumping duty order on natural bristle paintbrushes, for the period from February 1, 2001, through January 31, 2002, in order to determine whether merchandise imported into the United States is being sold at less than fair value with respect to these two companies.
On May 1, 2002, the Department issued antidumping questionnaires to Hebei and Hunan. In its reply to Section A of the questionnaire, Hebei stated that it had made no sales or shipments of subject merchandise to the United States during the POR. The Department also performed a U.S. Customs Service (Customs) query for entries of natural bristle paintbrushes and brush heads from the PRC during the POR. We found no entries or shipments from Hebei during the POR. Thus, the Department rescinded the review with respect to Hebei.
Pursuant to section 751(a)(3)(A) of the Act, the Department may extend the deadline for completion of the preliminary results of an administrative review if it determines that it is not practicable to complete the review within the time specified in section 351.213(h)(2) of the Department's regulations. The Department has determined that the preliminary results of this administrative review cannot be completed within the statutory time limit of 245 days. The Department finds that it is not practicable to complete the preliminary results of this administrative review because there are a number of issues that must be addressed, including analysis of recently submitted supplemental questionnaire responses. Therefore, in accordance with section 351.213(h)(2) of the Department's regulations, the Department is extending the time limit for the completion of preliminary results by an additional 36 days. The preliminary results will now be due no later than February 28, 2003. The final results continue to be done within 120 days of the preliminary results.
This notice is published pursuant to sections 751(a)(3)(A) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Initiation of Antidumping New Shipper Review
The Department of Commerce has received a request to conduct a new shipper review of the antidumping duty order on non-frozen apple juice concentrate from the People's Republic of China. In accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended, and 19 CFR 351.214, we are initiating this new shipper review.
January 30, 2003.
Craig Matney, Audrey Twyman or Stephen Cho, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-1778, (202) 482-3534, and (202) 482-3798 respectively.
On December 17, 2002, the Department of Commerce (“the Department”) received a request from Yantai Golden Tide Fruits & Vegetable Food Co., Ltd. (“Golden Tide”), pursuant to section 751(a)(2)(B) of the Tariff Act of 1930, as amended (“the Act”), and in accordance with 19 CFR 351.214(b), to conduct a new shipper review of the antidumping duty order on non-frozen apple juice concentrate (“NFAJC”) from the People's Republic of China (“PRC”). Golden Tide identified itself as a producer and exporter of non-frozen apple juice concentrate from the PRC. This order has a June anniversary month.
Pursuant to 19 CFR 351.214(b), Golden Tide certified in its request that it did not export the subject merchandise to the United States during the period of investigation (“POI”) (October 1, 1998 through March 31, 1999), that it has never been affiliated with any exporter or producer who exported the subject merchandise to the United States during the POI, and that its export activities are not controlled by
In accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214, we are initiating a new shipper review of the antidumping duty order on NFAJC from the PRC. We intend to issue the preliminary results of this review not later than 180 days from the date of publication of this notice. We intend to issue final results of this review no later than 90 days after the date on which the preliminary results were issued. See 19 CFR 351.214(i). All provisions of 19 CFR 351.214 will apply to Golden Tide throughout the duration of this new shipper review. Pursuant to 19 CFR 351.214(g)(1)(i)(B), the standard period of review in a new shipper review initiated in the month immediately following the semiannual anniversary month will be the six-month period immediately preceding the semi-annual anniversary month.
Concurrent with publication of this notice, and in accordance with 19 CFR 351.214(e), we will instruct the U.S. Customs Service to allow, at the option of the importer, the posting of a bond or security in lieu of a cash deposit for each entry of the subject merchandise exported by the company listed above, until the completion of the review. As Golden Tide has certified that it both produced and exported the subject merchandise exported to the United States during the relevant period of review, we will apply the bonding option under 19 CFR 351.107(b)(1)(i) only to subject merchandise for which it is both the producer and exporter.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305 and 351.306.
This initiation notice is in accordance with section 751(a)(2)(B)(ii) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.214 and 351.221(c)(1)(i).
Import Administration, International Trade Administration, Department of Commerce.
SUMMARY: The Department of Commerce is postponing the preliminary determinations in the antidumping duty investigations of polyvinyl alcohol from the People's Republic of China and the Republic of Korea from February 12, 2003, until no later than March 14, 2003. These postponements are made pursuant to section 733(c)(1)(A) of the Tariff Act of 1930, as amended.
January 30, 2003.
Elizabeth Eastwood (People's Republic of China) or Irina Itkin (Republic of Korea) at (202) 482-3874 or (202) 482-0656, respectively, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On October 1, 2002, the Department initiated antidumping duty investigations of imports of polyvinyl alcohol from the People's Republic of China (PRC) and the Republic of Korea (Korea).
On January 21, 2003, the petitioners made a timely request pursuant to 19 CFR 351.205(e) for a 30-day postponement for the PRC and Korea, pursuant to section 733(c)(1)(A) of the Tariff Act of 1930, as amended (the Act). The petitioners stated that a postponement of these preliminary determinations is necessary in order to permit more complete and effective investigations and more accurate preliminary determinations.
Under section 733(c)(1)(A) of the Act, if the petitioner makes a timely request for an extension of the period within which the preliminary determination must be made under subsection (b)(1), then the Department may postpone making the preliminary determination under subsection (b)(1) until not later than the 190th day after the date on which the administering authority initiated the investigation. Therefore, in accordance with the petitioners' requests for postponement, the Department is postponing the preliminary determinations in these investigations until March 14, 2003, which is 170 days from the date on which the Department initiated these investigations.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f).
Import Administration, International Trade Administration, Department of Commerce.
January 30, 2003.
Lilit Astvatsatrian, AD/CVD Enforcement Group III, Office IX, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-6412.
The merchandise subject to this administrative review is certain stainless steel butt-weld pipe fittings (“SSBWPF”) whether finished or unfinished, under 14 inches inside diameter. Certain SSBWPF are used to connect pipe sections in piping systems where conditions require welded connections. The subject merchandise is used where one or more of the following conditions is a factor in designing the piping system: (1) Corrosion of the piping system will occur if material other than stainless steel is used; (2) contamination of the material in the system by the system itself must be prevented; (3) high temperatures are present; (4) extreme low temperatures are present; and (5) high pressures are contained within the system.
Pipe fittings come in a variety of shapes, with the following five shapes the most basic: “elbows”, “tees”, “reducers”, “stub-ends“, and “caps.” The edges of finished pipe fittings are beveled. Threaded, grooved, and bolted fittings are excluded from this review. The pipe fittings subject to this review are classifiable under subheading 7307.23.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the review is dispositive. Pipe fittings manufactured to American Society of Testing and Materials specification A774 are included in the scope of this order.
On April 12, 2001, during this administrative review, the Department received a scope ruling request, in accordance with 19 CFR 351.225(c), from Allegheny Bradford Corporation d/b/a Top Line Process Equipment Company ("Top Line"), for a scope ruling on whether the stainless steel butt-weld tube fittings it plans to import are covered by the antidumping duty order on stainless steel butt-weld pipe fittings from Taiwan. On November 15, 2001, the Department issued its preliminary scope ruling.
On December 17, 2002, the Department of Commerce (“the Department”) issued its final results for stainless steel butt-weld pipe fittings from Taiwan for the June 1, 2000 through May 31, 2001, period of review.
In accordance with 19 C.F.R. §:351.224(c), on December 20, 2002, the petitioners in this administrative review requested that the Department extend the deadline to file ministerial errors regarding the
The petitioners state that in the final results the Department erred in the method of applying the revised general and administrative expenses (“G&A”) to the total cost of manufacture when adding certain bonus payments to the reported G&A. According to the petitioners, the Department erroneously applied the revised G&A ratio to the reported G&A, instead of applying the revised G&A to the reported total cost of manufacture. The petitioners note that the same error of not applying the revised G&A to the total cost of manufacture was also made in the Margin Calculation Program.
The petitioners argue that in the final results the Department erroneously did not rely on 2001 financial statements of Ta Chen International (“TCI”) for the calculation of the U.S. indirect selling expense. The petitioners further argue that the Department has erred in its decision by finding that TCI had not been given the opportunity to adjust its 2001 financial data because record evidence shows that the relevant adjusted information was in fact on the record. Thus, the petitioners state that the Department should revise its final results by using TCI's adjusted 2001 indirect selling expense percentage of the gross unit price.
The petitioners argue that in the final results, the Department incorrectly based the U.S. credit expenses for certain “indent” sales on Ta Chen Taiwan's short-term borrowing rate, instead of its U.S. subsidiary TCI's short-term borrowing rate. The petitioners conclude the Department should revise U.S. credit expenses based TCI's short-term interest rate as opposed to that of Ta Chen.
Petitioners note that in the preliminary results, the Department decided to impose partial facts available on two sets of Ta Chen's U.S. sales and assigned Ta Chen's average positive margin to those sales. The petitioners further note that in the final results, the Department changed from using the average positive margin to the average margin on the basis that use of the average positive margin was implicitly an unintended adverse margin. However, petitioners argue that using the average margin produces an incorrect result.
The petitioners maintain that in its Margin Calculation Program, the Department conducted a “negative data test” to find and remove a negative reported price or quantity from the calculation. Petitioners also note that the Department did not conduct a similar negative data test in the Model Match Program. Petitioners conclude that conducting the test in one program and not the other results in the incorrect use of different databases between the two programs.
Petitioners allege that the Department, in granting Ta Chen a CEP offset, failed: (1) to analyze the proper levels of trade for determining whether a CEP offset should be granted, and (2) to confirm the type and extent of the selling expenses offered by Ta Chen to the U.S. and home markets in the submitted record. Petitioners argue that after a proper analysis, the Department should find that the U.S. level of trade is at a higher level (or at a minimum, an equal level) of trade than home market sales and deny Ta Chen's request for a CEP offset and then correct the final results accordingly.
We are amending the
The revised weighted-average dumping margin is as follows:
The Department will determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated importer-specific assessment rates. With respect to the constructed export price sales, we divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct Customs to assess any resulting
We will also direct the Customs Service to collect cash deposits of estimated antidumping duties on all appropriate entries in accordance with the procedures discussed in the Final Results and at the rates amended by this determination. The amended deposit requirements are effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice and shall remain until publication of the final results of the next administrative review.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act and CFR 351.210(c).
Office of the Under Secretary of Defense (Personnel and Readiness).
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces the following proposed reinstatement of a public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received march 31, 2003.
Written comments and recommendations on the proposed information collection should be sent to the Office of the Under Secretary of Defense (Personnel and Readiness) (Program Integration) Legal Policy, ATTN: Lt Col Patrick Lindemann, 4000 Defense Pentagon, Washington, DC 20301-4000.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address or call at (703) 697-3387.
Information collection is needed to provide current and former servicemembers with a method through which to request correction of a military record, and to provide the Services with the basic data needed to process the request.
The respondents for this information collection are current and former servicemembers requesting correction to their military records. The servicemember submits to the respective Board for Correction of Military Records (BCMR) a DD Form 149, “application for Correction of Military Record Under the provisions of Title 10, U.S. Code Section 1552.” The information from the DD Form 149 is used by the respective Service Boards for Correction of Military Records in processing the applicant's request authorized under Title 10 U.S.C. 1552. The DD Form 149 was devised to standardize applications to the BCMRs. This information is used to identify and secure the appropriate official military and medical records from the appropriate records storage facilities. Information on the form is used by the BCMRs to identify the issues and arguments raised by applicants, identify any counsel representing applicants, and determine if the applicants filed their petitions within the three-year statute of limitations established by Congress.
Notice.
The Department of Defense will submit to OMB for emergency processing, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 10, 2003.
Written comments and recommendations on the proposed information collection should be sent to Ms. Zeiher at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Ms. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302, or by fax at (703) 604-1514.
Department of the Air Force, DoD.
Notice of meeting.
The Community College of the Air Force (CCAF) Board of Visitors will hold a meeting to review and discuss academic policies and issues relative to the operation of the college. Agenda items include a review of the operations of the CCAF and an update on the activities of the CCAF Policy Council. Members of the public who wish to make oral or written statements at the meeting should contact Second Lieutenant Richard W. Randolph, Designated Federal Officer for the Board, at the address below no later than 4 p.m. on 8 April 2003. Please mail or electronically mail all requests. Telephone requests will not be honored. The request should identify the name of the individual who will make the presentation and an outline of the issues to be addressed. At least 35 copies of the presentation materials must be given to Second Lieutenant Randolph no later than three days prior to the time of the board meeting for distribution. Visual aids must be submitted to Second Lieutenant Richard Randolph on a 3
April 15, 2003, 8 a.m.
Community College of the Air Force, First floor Conference room, 130 West Maxwell Boulevard, Maxwell Air Force Base, AL 36112.
Second Lieutenant Richard W. Randolph, (334) 953-7322, Community College of the Air Force, 130 West Maxwell Boulevard, Maxwell Air Force Base, AL 36112-6613, or through electronic mail at
Department of Education.
Notice of intent to compromise a claim with request for comments.
The United States Department of Education (Department) intends to compromise a claim against Community Unit School District 300, Carpentersville, Illinois (CUSD 300) now pending before the Office of Administrative Law Judges (OALJ), Docket No. 02-91-R. Before compromising a claim, the Department must publish its intent to do so in the
We must receive your comments on the proposed action on or before March 17, 2003.
Address all comments concerning the proposed action to Ronald B. Petracca, Esq., Office of the General Counsel, U.S. Department of Education, 400 Maryland Avenue, SW., room 6C111, Washington, DC 20202-2110.
Ronald B. Petracca,
Individuals with disabilities may obtain this document in alternative format (
We invite you to submit comments regarding this proposed action. During and after the comment period, you may inspect all public comments in room 6c111, FB-6, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments. If you want to schedule an appointment for this type of aid, please contact the person listed under
The claim in question arose when the Director of the Department's Post Audit Group, Financial Improvement and Post Audit Operations, Office of the Chief Financial Officer, issued a program determination letter (PDL) on September 20, 2002. The PDL demanded a refund of $684,299 of funds awarded by the Department to CUSD 300 under the Systemwide Improvement Grant Program, which was authorized by sections 7115 and 7116 of the Elementary and Secondary Education Act of 1965, as amended by Improving America's Schools Act of 1994, 20 U.S.C. 7425-7426 (2000). The purpose of this program is to support the efforts of school districts to serve Limited English proficient students. The grant in question had a funding period that began on August 1, 1997 and ended on July 31, 1999. The Director determined that the funds disallowed had been used for improper or unsupported expenditures for personnel, fringe benefits, travel, supplies, training, and other items. In addition, the Director disallowed indirect costs charged to the grant that were related to these unallowable direct expenditures. Finally, the Director disallowed grant funds draw down by CUSD 300 that exceeded the amount of funds CUSD 300's own accounting records show as having been expended on this grant.
CUSD 300 filed a timely request for review of the PDL with the OALJ. Thereafter, the Administrative Law Judge assigned to the appeal granted the parties' joint motion to conduct voluntary discovery, engage in settlement negotiations, and suspend the procedural schedule.
CUSD 300, during the course of settlement discussion with the Department, submitted documentation and analysis to support its view that $77,706.32 of questioned and
Based on the amount that would be repaid by CUSD 300 under the proposed settlement agreement, the documentation CUSD 300 submitted during settlement discussions, and the litigation risks and costs of proceeding through the administrative and, possibly, court process for this appeal, the Department has determined that it would not be practical or in the public interest to continue this proceeding. Rather, under the authority in 20 U.S.C. 1234a(j), the Department has determined that compromise of this claim for $607,906.08 is appropriate.
The public is invited to comment on the Department's intent to compromise this claim. Additional information may be obtained by calling or writing to Ronald B. Petracca, Esq. at the telephone number and address listed at the beginning of this document.
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 this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area, at (202) 512-1530.
The official version of this document is the document published in the
20 U.S.C. 1234a(j).
Notice of proposed extension of project period and waiver.
The Secretary proposes to waive the requirements in Education Department General Administrative Regulations (EDGAR), at 34 CFR 75.250 and 75.261(a), that generally prohibit project periods exceeding 5 years and project extensions involving the obligation of additional Federal funds to enable the Technical Assistance ALLIANCE for Parent Centers to receive funding from April 1, 2003, until September 30, 2003.
We must receive your comments on or before March 3, 2003.
Address all comments concerning this proposal to Debra Sturdivant or Donna Fluke, U.S. Department of Education, 400 Maryland Avenue, SW., Room 3527, Switzer Building, Washington, DC 20202-2641. If you prefer to send your comments through the Internet, use the following address:
Debra Sturdivant, Telephone: (202) 205-8038, or Donna Fluke, Telephone: (202) 205-9161.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
We invite you to submit comments regarding this proposed extension of project period and waiver.
During and after the comment period, you may inspect all public comments about this extension of project period and waiver in Room 3414, Switzer Building, 330 C Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this proposed extension of project period and waiver. If you want to schedule an appointment for this type of aid, you may call (202) 205-8113 or (202) 260-9895. If you use a TDD, you may call the Federal Information Relay Service at 1-800-877-8339.
On July 29, 2002, we published in the
Technical assistance is provided on an ongoing basis to parent centers, and it would be contrary to the public interest to have any service lapses for the parent centers being served by the current grantee.
We have determined that an additional period of time is needed for redesigning the technical assistance component. To avoid any lapse in service for the intended beneficiaries before the redesigned technical assistance component can be fully implemented, the Secretary proposes to fund this project until September 30, 2003. However, to do so, the Secretary must waive the requirements in 34 CFR 75.250 and 75.261(c)(2), which prohibit project periods exceeding 5 years and period extensions that involve the obligation of additional Federal funds. We are proposing a waiver at this time in order to give the affected grantee early notice of the availability of an additional six months of funding.
The Secretary certifies that the proposed waiver and extension of the project period will not have a significant economic impact on a substantial
This extension and waiver does not contain any information collection requirements.
This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism. The Executive Order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
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 this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Department of Energy, DOE.
Notice.
The Defense Nuclear Facilities Safety Board Recommendation 2002-2, concerning weapons Laboratory support of the DOE nuclear complex at Department of Energy Defense Nuclear Facilities was published in the
Comments, data, views, or arguments concerning the Secretary's response are due on or before February 7, 2003.
Send comments, data, views, or arguments concerning the Secretary's response to: Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004.
Ms. Karen L. Boardman, Director, Office of Complex Readiness, Albuquerque Operations Office, Pennsylvania & H Street, Kirtland Air Force Base, Albuquerque, NM 87116.
Dear Mr. Chairman: On October 3, 2002, the Defense Nuclear Facilities Safety Board (Board) issued recommendation 2002-2, Weapons Laboratory Support of the Defense Nuclear Complex. The Department agrees that providing the defense nuclear complex with appropriate support is an essential priority. We also recognize that “one-size-fits-all” organizational structures and systems are not appropriate for our weapons laboratories.
The Department accepts recommendation 2002-2 and will develop an implementation plan to accomplish the following:
• We will re-emphasize the policy that the nuclear weapons program is the top priority among all activities at the weapons laboratories.
• Each weapons laboratory will review its existing processes for assigning individuals as the senior point of contact for each weapons system and ensure that selection criteria, training and mentoring, and succession planning are in place. Personnel management is an internal process of the weapons laboratories and should not be prescribed by the Department. However, the Department will ensure that the end result is that senior technically competent individuals are assigned as the point of contact for each weapons system. A list of senior individuals assigned as the point of contact of each weapon system will be provided.
• Each weapons laboratory will review its existing management system and demonstrate that through the appropriate alignment of a combination of internal organizational structure, programs, and procedures that the roles and responsibilities of each weapons point of contact are clearly defined. The point of contact for each weapon will be empowered to direct appropriate resources to ensure the safety of operations in the nuclear weapons complex within his/her assigned weapon system or have direct access to the management authority to acquire the necessary support.
• The Department will establish and staff a Federal function at each site office managing a weapons laboratory contract to ensure that the laboratory support requirements related to safety of operations of the defense nuclear weapons complex are being tracked and met. For this function, the National Nuclear Security Administration reengineering will clarify the roles and responsibilities and the contractual lines of authority for providing direction and resolving competing requirements for resources.
I have designated Ms. Karen Boardman as the responsible manager for developing the Department's implementation plan for this recommendation. Ms. Boardman may be reached at (505) 845-6039.
Sincerely,
On August 31, 1999, The Connecticut Light and Power Company, licensee for the Falls Village Project No. 2597, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 2597 is located on the Housatonic River in Litchfield County, Connecticut. The application proposes to combine Project No. 2597 with the licensed Housatonic Project No. 2576. The application further requests that the Commission issue a single new license for both
The license for Project No. 2597 was issued for a period ending August 31, 2001. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in Section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of Section 15 of the FPA, then, based on Section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to Section 15 of the FPA, notice is hereby given that an annual license for Project No. 2597 has been issued to Northeast Generation Company for a period effective September 1, 2001, through August 31, 2002. This license was effective until the issuance of a new license for the project or other disposition under the FPA. Because issuance of a new license (or other disposition) did not take place on or before September 1, 2002, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under Section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to Section 15 of the FPA, notice is hereby given that Northeast Generation Company is authorized to continue operation of the Falls Village Project No. 2597 until such time as the Commission acts on its application for subsequent license.
Take notice that on January 9, 2003, Northern Natural Gas Company (Northern), 1111 South 103rd Street, Omaha, Nebraska 68124-1000 and Natural Gas Pipeline Company of America (Natural), 747 East 22nd Street, Lombard, Illinois 60148, filed in Docket No. CP03-38-000 a joint abbreviated application pursuant to Section 7(b) of the Natural Gas Act (NGA) and the Federal Energy Regulatory Commission's (Commission) Regulations thereunder requesting permission and approval to abandon effective January 7, 2003, an exchange service under Northern's Rate Schedule X-82 and Natural's Rate Schedule X-85 jointly authorized in Docket No. CP81-64-000.
Specifically, Northern and Natural explain that they are parties to a gas exchange agreement dated May 5, 1980, pursuant to which natural gas was delivered to various small customers in Mills County, Iowa via an exchange arrangement. Northern and Natural state that these customers are currently being supplied with gas in a manner that no longer requires the use of the exchange arrangement. Northern and Natural state that by a termination agreement dated January 7, 2003, they agreed to terminate their gas exchange agreement.
This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site
Any person desiring to intervene or to protest this filing should file on or before the comment date with the Federal Energy Regulatory Commission, 888 First Street, 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) and the regulations under the Natural Gas Act (18 CFR 157.10). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make the 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 and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list.
Protests and interventions may be filed electronically via the Internet in lieu of paper;
Take notice that on January 21, 2003, Tennessee Gas Pipeline Company, (Tennessee) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Sixth Revised Sheet No. 209A, with an effective date of February 20, 2003 and a revised refund plan.
Tennessee states that the revised tariff sheet and refund plan are being filed in accordance with the Commission's December 19, 2002 Order in the referenced proceeding, which relates to Tennessee's Cashout Report for the period from September 2000 through August 2001.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before January 31, 2003. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on January 21, 2003, Texas Gas Transmission Corporation (Texas Gas) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the tariff sheets listed below to become effective on March 1, 2003:
Texas Gas states that the tariff sheets filed herewith are being submitted in compliance with the Commission's Order, which conditionally accepted Texas Gas's web-based auction proposal, effective December 31, 2002, and, in Ordering Paragraph (A), further directed Texas Gas to file within 21 days actual revised tariff sheets incorporating the pro forma modifications proposed in its October 2, 2002, submission and other changes discussed within the Order itself.
Texas Gas states that copies of the tariff sheets are being mailed to all parties in this docket, on Texas Gas's official service list, and to Texas Gas's jurisdictional customers and to interested state commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on January 21, 2003, Avista Corporation filed with the Federal Energy Regulatory Commission (Commission) an application pursuant to Section 203 of the Federal Power Act for authorization of a disposition of jurisdictional facilities whereby Avista Corporation will sell approximately one-half mile of 115 kV transmission line to Modern Electric Company by cash sale.
Take notice that on December 27, 2002, New York State Electric & Gas Corporation (NYSEG) tendered an Errata Filing for correction to a Refund Report filed November 7, 2002 pursuant to the Commission's Opinion No. 447-B issued October 10, 2002 in the above mentioned docket.
NYSEG states that copies of the filing have been served upon the parties in the above-captioned proceeding.
Take notice that on January 21, 2003, Sithe New Boston, LLC filed in compliance with the Commission's December 20, 2002 order in the above-captioned proceeding, 101 FERC ¶ 61,323, the Amended Reliability Must Run Agreement between Sithe New Boston and ISO New England, Inc., Sithe New Boston Rate Schedule FERC No. 3, amended to comply with the Commission's Order No. 614, Designation of Electric Rate Schedule Sheets, FERC Stats. & Regs. ¶ 31,096.
Take notice that on January 21, 2003, Southwestern Public Service Company (Southwestern or the Company) tendered for filing a Compliance Report regarding its plans to participate in the regional transmission organization (RTO) to be formed by the proposed merger of the Midwest Independent Transmission System Operator, Inc., (Midwest ISO) and the Southwest Power Pool, Inc., (SPP).
Take notice that on January 17, 2003, Quonset Point Cogen, L.P. and PSEG Energy Technologies Inc. (Applicants) filed with the Federal Energy Regulatory Commission (Commission) a request to withdraw their November 8, 2002 request for deferral of Commission action in the above-captioned matter; and a request that the Commission resume its review, for approval, of the Thermal and Electric Energy Purchase Agreement filed on October 2, 2002 in Docket No. ER03-6-000.
Take notice that on January 21, 2003, Idaho Power Company (Idaho Power) and NorthWestern Energy (NWE), a
Take notice that on January 17, 2003 New York State Electric & Gas Corporation (NYSEG) tendered an Errata Filing for corrections to its December 23, 2002 filing letter for revisions to the annual charges for routine operation and maintenance and general expenses, as well as revenue and property taxes based on data from NYSEG's annual report to FERC (FERC form 1) for the twelve month period ending December 31, 2001 for the Facilities Agreement with the Steuben Rural Electric Cooperative, Inc. in the above mentioned docket.
NYSEG states that copies of the filing have been served upon the other parties to the above captioned proceeding.
Take notice that on January 21, 2003, Klondike Wind Power LLC (Klondike) submitted for filing a revised market-based tariff (Tariff) with the Federal Energy Regulatory Commission (Commission) reflecting its name change from West Valley Generation LLC. Klondike requests waiver of the 60-day prior notice requirement to allow its revised Tariff to become effective as of December 19, 2002.
Take notice that on January 21, 2003, PPL Electric Utilities Corporation (PPL Electric) filed with the Federal Energy Regulatory Commission an executed Generator Interconnection Agreement between PPL Electric and Lower Mount Bethel Energy, LLC (Lower Mount Bethel).
PPL Electric and Lower Mount Bethel request an effective date for the Interconnection Agreement of March 24, 2003, which is the first business day falling at least sixty days from the date of filing.
Take notice that on January 21, 2003, SP Newsprint Co. tendered for filing an application for authorization to sell energy, capacity, and other auxiliary services at market-based rates pursuant to Section 205 of the Federal Power Act.
Take notice that on January 21, 2003, Progress Energy Service Company on behalf of Progress Energy Carolinas, Inc., (Progress Carolinas) tendered for filing an executed long-term Service Agreement between Progress Carolinas and the following eligible buyer, The Town of Waynesville, NC. Service to this eligible buyer will be in accordance with the terms and conditions of Progress Carolinas' Market-Based Rates Tariff, FERC Electric Tariff No. 5.
Progress Carolinas requests an effective date of January 1, 2003 for this Service Agreement. Progress Carolinas also states that copies of the filing were served upon the North Carolina Utilities Commission and the South Carolina Public Service Commission.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a Draft Environmental Impact Statement (DEIS) on the natural gas pipeline facilities proposed by Williston Basin Interstate Pipeline Company (WBI) in the above referenced docket.
The DEIS was prepared to satisfy the requirements of the National Environmental Policy Act. The staff concludes that approval of the proposed project, with the appropriate mitigating measures as recommended, would have limited adverse environmental impact. The DEIS also evaluates alternatives to the proposal, including system alternatives, major route alternatives, and route variations.
The U.S. Department of the Interior, Bureau of Land Management (BLM) is participating as a cooperating agency in the preparation of this DEIS because the project would cross Federal land under the jurisdiction of two field offices in Wyoming and Montana. The U.S. Department of Agriculture, Forest Service (USFS) is also a cooperating agency in the preparation of this document because the Little Missouri National Grasslands would be crossed by the project. The DEIS will be used by the BLM to consider issuance of a right-of-way grant for the portion of the project on all Federal lands.
The DEIS addresses the potential environmental effects of the construction and operation of the following facilities:
• Approximately 223 miles of new 16-inch-diameter pipeline from near Belle Creek, Montana, to the proposed
• Approximately 28 miles of 16-inch-diameter pipeline loop
• Maximum allowable operating pressure (MAOP) upgrade on approximately 28 miles of existing 8-inch-diameter Bitter Creek supply lateral pipeline in Wyoming from 1,203 pounds per square inch gauge (psig) to 1,440 psig, and abandonment in-place of segments of existing pipe at three road crossings and replacement with heavier walled pipe;
• MAOP upgrade on approximately 40 miles of existing 8-inch-diameter Recluse-Belle Creek supply lateral pipeline in Wyoming and Montana from 1,203 psig to 1,440 psig, and abandonment in-place of segments of existing pipe at eight road crossings and replacement with heavier walled pipe;
• 4,180 horsepower (hp) of gas fired compression (comprised of two 2,090 hp compressors) at one new compressor station located in Dunn County, North Dakota (Manning Compressor Station), and electric coolers installation at this station;
• An additional transmission compressor unit (1,200 hp) at the existing Cabin Creek Compressor Station in Fallon County, Montana;
• 0.9 mile of 12-inch-diameter pipeline from the proposed mainline to the existing Cabin Creek Compressor Station in Fallon County, Montana;
• 1.0 mile of 16-inch-diameter pipeline from the proposed Manning Compressor Station to interconnect with Northern Border Pipeline Company's Compressor Station 5 in Dunn County, North Dakota; and
• Various additional facilities, including 14 mainline valves, 4 cathodic protection units, 8 pig launchers/receivers, 5 metering stations, and 2 regulators.
The purpose of the proposed facilities would be to provide an additional outlet for the increased production of natural gas in the Powder River Basin, allowing transportation of about 80 million cubic feet per day of natural gas; provide access to WBI's storage facilities to shippers of gas produced in the Powder River Basin and elsewhere; and provide access to and from WBI's storage facilities to and from the facilities of Northern Border Pipeline Company for delivery to Midwestern and other national markets.
Any person wishing to comment on the DEIS may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments before the date specified below. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your comments to: Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
• Label one copy of the comments for the attention of Gas Branch 1, PJ11.1;
• Reference Docket No. CP02-37-000; and
• Mail your comments so that they will be received in Washington, DC on or before March 17, 2003.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding.
In addition to or in lieu of sending written comments, the FERC invites you to attend the public meetings the staff will conduct in the project area to receive comments on the DEIS. All meetings will begin at 7 p.m., and are scheduled as follows:
Interested groups and individuals are encouraged to attend and present oral comments on the DEIS. Transcripts of the meetings will be prepared.
After these comments are reviewed, any significant new issues are investigated, and modifications are made to the DEIS, a Final Environmental Impact Statement (FEIS) will be published and distributed by the staff. The FEIS will contain the staff's responses to timely comments filed on the DEIS.
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Anyone may intervene in this proceeding based on this DEIS. You must file your request to intervene as specified above.
The DEIS has been placed in the public files of the FERC and is available for public inspection at: Federal Energy Regulatory Commission, Public Reference and Files Maintenance Branch, 888 First Street, NE., Room 2A, Washington, DC 20426, (202) 502-8371.
A limited number of copies of the DEIS are available from the Public Reference and Files Maintenance Branch identified above. In addition, copies of the DEIS have been mailed to Federal, state and local agencies, public interest groups, individuals who have requested the DEIS, newspapers, and parties to this proceeding.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
Information concerning the involvement of the BLM is available from Dalice Landers, Realty Specialist and Project Lead at (406) 233-2836. Information concerning the involvement of the USFS is available from Tina
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
k.
Applicant estimates that the average annual generation would be 61 GWh and would be sold to a local utility.
l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m.
n.
o.
p.
q.
r.
s.
This constitutes notice, in accordance with 18 CFR 385.2201(h), of the receipt of exempt and prohibited off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive an exempt or a prohibited off-the-record communication relevant to the merits of a contested on-the-record proceeding, to deliver a copy of the communication, if written, or a summary of the substance of any oral communication, to the Secretary.
Prohibited communications will be included in a public, non-decisional file associated with, but not part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such requests only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication should serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications will be included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of exempt and prohibited off-the-record communications recently received in the Office of the Secretary. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Purpose of this Notice—To: (1) Announce a public meeting of a Federal advisory committee, and (2) solicit public comment on the proposed consultative panel.
Pursuant to the Federal Advisory Committee Act, Pub. L. 92-463, notice is hereby given that the Ecological Processes and Effects Committee (EPEC) of the U.S. EPA Science Advisory Board (SAB) will meet on Thursday and Friday, February 13-14, 2003 to conduct a consultation with the EPA Office of Water on its plans to revise the “Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses”; to receive Agency briefings on ecological science priorities; and to discuss potential future SAB studies. All times noted are Eastern Time. The meeting is open to the public, however, seating is limited and available on a first come basis.
The meeting will begin on Thursday, February 13 at 9 am and adjourn no later than 5:30 pm that day. On Friday, February 14 the meeting may begin at 8:30 am and adjourn no later than 5:30 pm. The meeting will be held in EPA Conference Room 4530 in the EPA Ariel Rios North Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20004. For further information concerning the meeting, please contact the individuals listed at the end of this
The materials are available from the Office of Water (OW) Web site, located at:
A “consultation” is one of several types of formal interaction between the Agency and the Science Advisory Board. The purpose of a consultation is to conduct an early discussion between the Agency and the SAB to help articulate important issues in the development of a project. The meeting is public and consists of briefings and discussions. In some cases a partial document, or an early draft is available to serve a the basis for discussions. A charge is often used, but is less focused than that used in a formal peer review. No consensus advice is sought and no report is generated by the SAB.
To provide the Agency with meaningful input, we have determined that the following expertise is needed for the consultation: ecotoxicology, chemistry, ecological risk assessment, and uncertainty analysis. The EPA Science Advisory Board Staff Office has determined that the Ecological Processes and Effects Committee (EPEC), a standing committee of the Board, will conduct this consultation since EPEC already has the appropriate expertise without the need for additional expert consultants. Therefore, we are not soliciting additional experts for this consultation.
The SAB Staff Office will post the names and biosketches for members of the consultative Panel on the SAB Web site at:
For the EPA SAB, a balanced review panel (
It is the policy of the EPA Science Advisory Board (SAB) to accept written public comments of any length, and to accommodate oral public comments whenever possible. The EPA SAB expects that public statements presented at its meetings will not be repetitive of previously submitted oral or written statements.
Any member of the public wishing further information concerning this meeting, who wish to submit brief oral comments, or have comment on the constitution or balance of EPEC membership, must contact Mr. Lawrence Martin, DFO, USEPA Science Advisory Board (1400A), Suite 6450, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone/voice mail at (202) 564-6497; fax at (202) 501-0582; or via e-mail at
Members of the public desiring additional information about the meeting location must contact Ms. Zisa Lubarov-Walton, EPA Science Advisory Board (1400A), Suite 6450, U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone/voice mail at (202) 564-4537; fax at (202) 501-0582; or via e-mail at
A copy of the draft agenda for the meeting will be posted on the SAB Web site
Individuals requiring special accommodation at this meeting, including wheelchair access to the conference room, should contact Ms. Lubarov-Walton at least five business days prior to the meeting so that appropriate arrangements can be made.
Environmental Protection Agency (EPA).
Notice of extension of original comment period.
The Office of Compliance (OC), within EPA's Office of Enforcement and Compliance Assurance (OECA), announces an extension of the comment period from the originally scheduled deadline of January 21, 2003, to March 31, 2003, for its pilot Web site, Enforcement and Compliance History Online (ECHO), which contains searchable, facility-level enforcement and compliance information.
Comments must be submitted no later than March 31, 2003.
The Web site is available at
Rebecca Kane at
Due to several requests from stakeholders, EPA has extended ECHO's comment period, which was scheduled to end on January 21, 2003, to March 31, 2003. The site's availability and comment period were announced in the
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a premanufacture notice (PMN) or an application for a test marketing exemption (TME), and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from December 11, 2002 to December 26, 2002, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Comments identified by the docket ID number OPPT- 2003-0001 and the specific PMN number or TME number, must be received on or before March 3, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Barbara Cunningham, Acting Director, Environmental Assistance Division, Office of Pollution Prevention and Toxics (7408M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address:
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the premanufacture notices addressed in the action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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
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 and specific PMN number or TME 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 technical 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 and the specific PMN number you are commenting on in the subject line on the first page of your response. You may also provide the name, date, and
Section 5 of TSCA requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a PMN or an application for a TME and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from December 11, 2002 to December 26, 2002, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
This status report identifies the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. If you are interested in information that is not included in the following tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
In Table I of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: the EPA case number assigned to the PMN; the date the PMN was received by EPA; the projected end date for EPA's review of the PMN; the submitting manufacturer; the potential uses identified by the manufacturer in the PMN; and the chemical identity.
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the Notices of Commencement to manufacture received:
Environmental protection, Chemicals, Premanufacturer notices.
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a premanufacture notice (PMN) or an application for a test marketing exemption (TME), and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from December 27, 2002 to January 10, 2003, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Comments identified by the docket ID number OPPT- 2003-2005 and the specific PMN number or TME number, must be received on or before March 3, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Barbara Cunningham, Acting Director, Environmental Assistance Division, Office of Pollution Prevention and Toxics (7408M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address:
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the premanufacture notices addressed in the action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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
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 technical 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 and the specific PMN number you are commenting on in the subject line on the first page of your response. You may also provide the name, date, and
Section 5 of TSCA requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a PMN or an application for a TME and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from December 27, 2002 to January 10, 2003, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
This status report identifies the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. If you are interested in information that is not included in the following tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
In Table I of this unit, EPA provides the following information (to the extent
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the Notices of Commencement to manufacture received:
Environmental protection, Chemicals, Premanufacturer notices.
Federal Election Commission.
Tuesday, January 28, 2003, Meeting Closed to the Public.
This meeting has been cancelled.
Tuesday, February 4, 2003 at 10 a.m.
999 E Street, NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g.
Audits conducted pursuant to 2 U.S.C. 437g, § 438(b), and Title 26, U.S.C.
Matters concerning participation in civil actions or proceedings or arbitration.
Internal personnel rules and procedures or matters affecting a particular employee.
Mr. Ron Harris, Press Officer, Telephone: (202) 694-1220.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 24, 2003.
Board of Governors of the Federal Reserve System, January 24, 2003.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (301) 443-7978.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Mandatory Guidelines for Federal Workplace Drug Testing Programs (0930-0158, revision)—SAMHSA will request renewal of OMB approval for the Federal Drug Testing Custody and Control Form for Federal agency and federally regulated drug testing programs which must comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs (59 FR 29908) dated June 9, 1994, and for the information provided by laboratories for the National Laboratory Certification Program (NLCP).
The Federal Drug Testing Custody and Control Form is used by all Federal agencies and employers regulated by the Department of Transportation to document the collection and chain of custody of urine specimens at the collection site, for laboratories to report results, and for Medical Review Officers to make a determination. The Federal Drug Testing Custody and Control Form approved by OMB three years ago will be submitted for OMB approval without any revision.
Prior to an inspection, a laboratory is required to submit specific information regarding its laboratory procedures. A major change in the submitted information requires a laboratory to provide specific information on its specimen validity testing procedures. Since all certified laboratories are expected to have the capability to conduct specimen validity tests on regulated specimens, collecting this information prior to an inspection allows the inspectors to thoroughly review and understand the laboratory's specimen validity testing procedures before arriving at the laboratory.
The NLCP application form is being revised compared to the previous form. The major change in the NLCP application form includes, where appropriate in each section, a request for specific information on the applicant laboratory's ability to conduct specimen validity testing (
The annual total burden estimates for the Federal Drug Testing Custody and Control Form, the NLCP application, the NLCP inspection checklist, and NLCP recordkeeping requirements are shown in the following table.
Send comments to Nancy Pearce, SAMHSA Reports Clearance Officer, Room 16-105, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that it has received a petition requesting exemption from the premarket notification requirements for a data acquisition unit for ceramic dental restoration systems. FDA is publishing this notice in order to obtain comments on this petition in accordance with procedures established by the Food and Drug Administration Modernization Act of 1997 (FDAMA).
Submit written or electronic comments by March 3, 2003.
Submit written comments to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to http://www.fda.gov/dockets/ecomments.
Heather S. Rosecrans, Center for Devices and Radiological Health (HFZ-404), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-594-1190.
Under section 513 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360c), FDA must classify devices into one of three regulatory classes: Class I, class II, or class III. FDA classification of a device is determined by the amount of regulation necessary to provide a reasonable assurance of safety and effectiveness. Under the Medical Device Amendments of 1976 (the 1976 amendments) (Public Law 94-295), as amended by the Safe Medical Devices Act of 1990 (the SMDA) (Public Law 101-629), devices are to be classified into class I (general controls) if there is information showing that the general controls of the act are sufficient to assure safety and effectiveness; into class II (special controls), if general controls, by themselves, are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide such assurance; and into class III (premarket approval), if there is insufficient information to support classifying a device into class I or class II and the device is a life-sustaining or life-supporting device or is for a use which is of substantial importance in preventing impairment of human health, or presents a potential unreasonable risk of illness or injury.
Most generic types of devices that were on the market before the date of the 1976 amendments (May 28, 1976) (generally referred to as preamendments devices) have been classified by FDA under the procedures set forth in section 513(c) and (d) of the act through the issuance of classification regulations into one of these three regulatory classes. Devices introduced into interstate commerce for the first time on or after May 28, 1976 (generally referred to as postamendments devices) are classified through the premarket notification process under section 510(k) of the act (21 U.S.C. 360(k)). Section 510(k) of the act and the implementing regulations, 21 CFR part 807, require persons who intend to market a new device to submit a premarket notification report containing information that allows FDA to determine whether the new device is “substantially equivalent” within the meaning of section 513(i) of the act to a legally marketed device that does not require premarket approval.
On November 21, 1997, the President signed into law FDAMA (Public Law 105-115). Section 206 of FDAMA, in part, added a new section 510(m) to the act. Section 510(m)(1) of the act requires FDA, within 60 days after enactment of FDAMA, to publish in the
Section 510(m)(2) of the act provides that, 1 day after date of publication of the list under section 510(m)(1), FDA may exempt a device on its own initiative or upon petition of an interested person, if FDA determines that a 510(k) is not necessary to provide reasonable assurance of the safety and effectiveness of the device. This section requires FDA to publish in the
There are a number of factors FDA may consider to determine whether a 510(k) is necessary to provide reasonable assurance of the safety and effectiveness of a class II device. These factors are discussed in a guidance the agency issued on February 19, 1998, entitled “Procedures for Class II Device Exemptions From Premarket Notification, Guidance for Industry and CDRH Staff.” That guidance can be obtained through the Internet on the CDRH home page at http://www.fda.gov/cdrh or by facsimile through CDRH Facts-on-Demand at 1-800-899-0381 or 301-827-0111. Specify “159” when prompted for the document shelf number.
FDA has received the following petition requesting an exemption from premarket notification for a class II device: Medical Device Consultants, Inc., on behalf of Sirona Dental Systems GmbH for data acquisition systems used in the computer aided design and milling of dental restorative prosthetic devices, classified under 21 CFR 872.3660, impression material.
Interested persons may submit to the Dockets Management Branch (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Collection of Race and Ethnicity Data in Clinical Trials for FDA Regulated Products.” This draft guidance recommends a standardized approach for collecting race and ethnicity information in clinical trials conducted in the United States and abroad for certain FDA regulated products. The standardized approach being recommended was developed by the Office of Management and Budget (OMB).
Submit written or electronic comments on the draft guidance by March 31, 2003. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the draft guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, or the Office of Communication, Training and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448. Send two self-addressed adhesive labels to assist that office in processing your requests. Submit written comments on the draft guidance to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
FDA is announcing the availability of a draft guidance for industry entitled “Collection of Race and Ethnicity Data in Clinical Trials for FDA Regulated Products.” FDA believes that the use of the OMB race and ethnicity categories will facilitate comparisons across clinical studies analyzed by FDA with data collected by other Federal agencies. Although FDA has long requested race and ethnicity data on subjects in certain clinical trials, the agency is now making recommendations on the categories to use when collecting and reporting the data.
In the final rule entitled “Investigational New Drug Applications and New Drug Applications” (demographic rule) (63 FR 6854, February 11, 1998), the agency recommended that sponsors ask subjects in certain clinical trials to identify their racial group and, if desired, to use the OMB categories when collecting race and ethnicity data.
The Department of Health and Human Services (HHS) issued a 1999 report entitled “Improving the Collection and Use of Racial and Ethnic Data in HHS” in which HHS announces the adoption of OMB Directive 15 as part of its policy on collecting and reporting data on race and ethnicity. HHS recommended methods for the collection and inclusion of racial and ethnic categories in HHS-funded and HHS-sponsored data collection and reporting systems in all HHS programs, including both health and social services. This HHS policy states that the categories in OMB Directive 15 and its revisions be used when collecting and reporting data in HHS data systems or reporting HHS-funded statistics. The HHS policy was developed to: (1) Help monitor HHS programs, (2) determine that Federal funds are being used in a nondiscriminatory manner, and (3) promote the availability of standard racial and ethnic data across various agencies to facilitate HHS responses to major health and human services issues.
Information on patient safety is reported by Federal agencies using the OMB recommendations. The application of OMB recommendations for the standardized collection and representation of race and ethnicity in clinical trial data is expected to enhance the comparability of data among clinical studies submitted to FDA and with reported health statistics. The recommendations made in this draft guidance are suggested for collecting race and ethnicity data in clinical trials developed to study pharmaceutical products and devices where necessary to determine safety and effectiveness. The agency recommends using more detailed race and ethnicity categories when appropriate to the study or locale, but recommends that the OMB categories be identified for all clinical trial participants when submitting data to the agency. In addition to asking for comments on this guidance generally, FDA specifically is asking for comments on the general applicability of this draft guidance to clinical trials of medical devices.
This draft guidance does not discuss increasing the number of studies in
This draft guidance contains information collection provisions that are subject to review by OMB under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520). The collection of information in sections III and IV of this draft guidance are approved under OMB control number 0910-0014.
This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the agency's current thinking on how to collect race and ethnicity data in certain clinical trials for FDA regulated products. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Dockets Management Branch (see
Persons with access to the Internet may obtain the document at either
Bureau of Land Management, Interior.
Notice implementing first Conservation Helium sale.
The purpose of this action is to implement the terms of the Helium Privatization Act (HPA) of 1996 dealing with the disposal of the Conservation Helium reserve. The Act requires the Department of the Interior
Submit bids and other documentation as required in notice on or before March 3, 2003.
You may submit your bids and other documentation as required in this notice to the Bureau of Land Management, Amarillo Field Office, 810 S. Fillmore, Suite 500, Amarillo, TX 79101, Attention: Crude Helium Sale.
Timothy R. Spisak, (806) 356-1002. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., eastern time, Monday through Friday.
The purpose of this sale is to begin implementation of the terms of the Helium Privatization Act (HPA) of 1996 dealing with the disposal of the Conservation Helium reserve. The Act requires the Department of the Interior
The volume of helium available for this sale is 2,100 MMcf. In accordance with the HPA, this volume was determined by dividing the total volume of stored Conservation Helium less the statutory required reservation of 600 MMcf for government purposes less estimated in-kind crude helium transfers for 12 years divided by 12.
The Conservation Helium will be sold at the same price as in-kind crude helium. In accordance with the HPA, this price covers helium debt repayment and includes administrative and storage costs associated with the Conservation Helium. For Fiscal Year 2003, that price is $52.50 per Mcf.
Any person, firm, partnership, joint stock association, corporation, or other domestic or foreign organization operating partially or wholly within the United States who meets one or more of the following requirements is qualified to submit a purchase request:
• Operates a helium purification plant within the U.S., or
• Operates a crude helium extraction plant within the U.S., or
• Is a wholesaler of pure helium or purchases helium for resale within the U.S., or
• Is a consumer of pure helium within the U.S., or
• Has an agreement with a helium refiner to provide its helium processing needs, commonly referred to as a “tolling agreement.”
All entities requesting participation in the Non-allocated Sale must submit proof of being qualified to purchase Conservation Helium and must either have a Helium Storage Contract with the BLM or have a third-party agreement in place with a valid storage contract holder so that all Conservation Helium sold to the Bidder will be properly covered by a Helium Storage Contract (including associated storage charges).
The BLM, Amarillo Field Office, will accept requests for purchase of Conservation Helium from final publication of this notice until March 3, 2003. On the next business day after this notice closes, requests to purchase Conservation Helium will be opened and evaluated. Thereafter, volumes of this Conservation Helium sale will be apportioned and allocated according to the sale rules described in this notice.
You must submit the following information to the BLM, Amarillo Field Office:
• Billing address information and name(s) of principle officers of the company.
• Proof of being an entity qualified to purchase Conservation Helium at this sale as defined in part 1.05 above. Documents such as invoices for sale or purchase of helium, helium storage contracts, or other relevant documents may be submitted as proof of qualification.
• The amount (in Mcf) of Conservation Helium requested.
• Certified check or money order in the amount of $1,000 made payable to the Bureau of Land Management. This money will be used to cover administrative expenses to conduct this sale and is nonrefundable.
All requests for purchase of helium as part of this sale must be sent by certified mail to: Bureau of Land Management, Amarillo Field Office, 810 S. Fillmore, Suite 500, Amarillo, TX 79101, Attention: Crude Helium Sale.
Successful purchasers will submit payments according to the following schedule: 25% by February 28, 2003, or 30 days after notification of the award volumes, whichever is later; 25% by April 30, 2003; 25% by June 30, 2003; 25% by September 30, 2003.
Conservation Helium will not be transferred to the purchaser's storage account until payment is received for that portion. Successful purchasers may, at their option, accelerate the purchase schedule.
Make checks payable to the Bureau of Land Management at the address listed in part 1.08 in this notice.
If a payment is not received by the due date, the purchaser will forfeit the remainder of its allotment unless the purchaser can show that payment was late through no fault of its own. However, penalty interest will be assessed in accordance with the Debt Collection Act of 1982, 31 U.S.C. 951-953.
Successful purchasers will be notified in writing by BLM no later than 2 weeks after the close of this notice with the awarded volumes and payment schedule.
That portion of the annual sale volume of Conservation Helium that will be set aside for purchase by the crude helium refiners.
Only those who meet the definition of crude helium refiners as defined in part 1.02 in this notice.
The amount available will be 90 percent of the total volume of the annual Conservation Helium sale—1,890 MMcf.
The apportionment to each crude helium refiner will be based on its percentage share (rounded to the nearest 1/10th of 1 percent) of the total refining capacity as of October 1, 2000, connected to the BLM crude helium pipeline.
• If one or more refiners request less than their allocated share, any other refiner(s) that requested more than their share will be allowed to purchase the
• Requests by the Crude Helium Refiners that are in excess of the amount available above will be carried over to the Non-allocated Sale and considered a separate bid under the Non-allocated Sale rules.
Any excess volume not sold to the crude helium refiners will be added to the non-allocated sale volume.
2,100 MMcf available for total sale with 90 percent available for allocated sale (1,890 MMcf).
After the initial allocation, Refiner B has received all requested. However, 265 MMcf is deemed excess of the total in the first iteration of the allocated sale and reallocated to the two remaining refiners based on the refining capacity between them. With the reallocation, Refiner A gets all requested, but Refiner C is still short by 73 MMcf. Additionally, 3 MMcf remains unallocated and without any other Refiners is awarded to Refiner C, who now has a remaining request of 70 MMcf that is posted into the non-allocated sale. All percentages used in the calculation will be rounded to the nearest 1/10th of 1 percent. All volumes calculated will be rounded to the nearest 1 Mcf.
That portion of the annual sale volume of conservation helium that will be offered to all qualified bidders.
The minimum request is 5 MMcf.
The total volume of Conservation Helium available for this portion of the sale is 210 MMcf plus any additional helium that is not sold as part of the allocated sale.
According to the terms of the HPA, the BLM must conduct the annual Conservation Helium sales in a manner not to cause undue helium market disruptions; and therefore, the majority of the Conservation Helium is being offered as part of the allocated sale. Currently, the crude helium refiners have refining capacity roughly double what can be supplied through the annual Conservation Helium sales. Although there are other crude helium supplies available to the crude helium refiners, these supplies are declining each year. The BLM must be sensitive to the crude helium refiners requirements while maintaining a balance with other helium industry requirements. The exact ratio of allocated to non-allocated sale volumes may change for subsequent annual Conservation Helium sales.
The Conservation Helium will be apportioned equally in 1 Mcf increments among the bidders with no prospective bidder receiving more than its request.
• If one or more bidders request less than their apportioned amount, any other bidder(s) that requested more than its apportioned amount will be allowed to purchase equally apportioned amounts of the remaining volume available for this sale.
• If all bidders request more than their apportioned amount each bidder will receive its apportioned amount as determined in part 3.05 in this notice.
Any bidder requesting less than the calculated apportioned volume, will receive the amount of its request and amounts remaining will be reapportioned in accordance with part 3.05 in this notice.
If the total non-allocated volume requested is less than the non-allocated volume offered for this portion of the sale, the excess amount will not be sold and will be held in storage for future sales.
2,100 MMcf available for total sale with 10 percent available for non-allocated sale (210 MMcf).
In this example, three companies submit a request and there is a carryover amount from one of the crude helium refiners in the allocated sale that is considered as a separate request. Each bidder would be apportioned 52.5 MMcf, (
Northern Field Office, Bureau of Land Management, Interior.
Notice of the National Petroleum Reserve—Alaska Research and Monitoring Advisory Team Public Meeting.
A joint public meeting of the National Petroleum Reserve—Alaska Research and Monitoring Advisory Team and the NPR-A Subsistence Advisory Panel (SAP) will be held in Barrow, Alaska, on March 18-19, 2003, to discuss research and monitoring needs in the NPR-A and to make recommendations to the Authorized Officer on priority projects to be implemented by the BLM. This will also be the first joint meeting of the RMT and SAP as stipulated in the charter of the RMT.
The public meeting will be held at the In
This meeting is open to the public.
Additional information concerning the NPR-A Research and Monitoring Advisory Team may be obtained from Herb Brownell, Arctic Team Manager, BLM Northern Field Office, 1150 University Avenue, Fairbanks, Alaska 99709-3844. Mr. Brownell may be reached at (907) 474-2333 or at 1-800-437-7021, x2333, or at
The RMT's membership represents the BLM, Minerals Management Service, Department of Energy, U.S. Fish and Wildlife Service, U.S. Geological Survey—Biological Resources Division, the North Slope Borough, the oil and gas industry, environmental/resource conservation organizations, natural resource management/science academicians, and the public at large. The RMT advises the BLM in assessing the effectiveness and appropriateness of mitigative stipulations established in the Northeast NPR-A Integrated Activity Plan/Environmental Impact Statement, Record of Decision, 1998. The team focuses on assessing NPR-A research and monitoring needs, developing and recommending research priorities, and applying improved technology and operating practices to oil and gas exploration and development in the NPR-A.
The Subsistence Advisory Panel advises the BLM on how subsistence resources, uses, and users may be impacted by oil and gas exploration and development in the NPR-A.
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0128).
To comply with the Paperwork Reduction Act of 1995 (PRA), 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) concerns the paperwork requirements in the regulations under 30 CFR 250, Subpart O, “Well Control and Production Safety Training.”
Submit written comments by March 31, 2003.
Mail or hand carry comments to the Department of the Interior; Minerals Management Service; Attention: Rules Processing Team; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 20170-4817. If you wish to e-mail comments, the address is:
Arlene Bajusz, Rules Processing Team, (703) 787-1600. You may also contact Arlene Bajusz to obtain a copy, at no cost, of the regulations that require the subject collection of information.
Section 1332(6) of the OCS Lands Act (43 U.S.C. 1332) requires that “operations in the [O]uter Continental Shelf should be conducted in a safe manner by well trained personnel using technology, precautions, and other techniques sufficient to prevent or minimize the likelihood of blowouts, loss of well control, fires, spillages, physical obstructions to other users of the waters or subsoil and seabed, or other occurrences which may cause damage to the environment or to property or endanger life or health.” This authority and responsibility are among those delegated to the Minerals Management Service (MMS). To carry out these responsibilities, MMS issues regulations governing oil and gas or sulphur operations in the OCS.
Regulations at 30 CFR 250, subpart O, implement these safe operation requirements. The MMS uses the information collected under subpart O to ensure that workers in the OCS are properly trained with the necessary skills to perform their jobs in a safe and pollution-free manner. In some instances, MMS will conduct oral interviews of offshore employees to evaluate the effectiveness of a company's training program. The information collected is necessary to verify personnel training compliance with the requirements.
We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and under regulations at 30 CFR parts 250, 251, and 252. No items of a sensitive nature are collected. Responses are mandatory or required to obtain or retain a benefit.
Agencies must also estimate the “non-hour cost” burdens to respondents or recordkeepers resulting from the collection of information. Therefore, 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, and record storage facilities. You should not include estimates for 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 submission for OMB approval. As a result of your comments, we will make
National Park Service, Interior.
Notice of availability of a Supplemental Draft Environmental Impact Statement for the General Management Plan for Big South Fork National River and Recreation Area, Kentucky and Tennessee.
Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969 and National Park Service policy in Director's Order Number 2 (Park Planning) and Director's Order Number 12 (Conservation Planning, Environmental Impact Analysis, and Decision-making) the National Park Service announces the availability of a Supplemental Draft Environmental Impact Statement and General Management Plan (SDEIS/GMP) for Big South Fork National River and Recreation Area (NRRA), Kentucky and Tennessee.
The SDEIS/GMP analyzes three action alternatives and one no-action alternative for guiding management of the park over the next 15 to 20 years. The three action alternatives incorporate various management prescriptions to ensure resource protection and quality visitor experience conditions. The no-action alternative would continue current management practices and policies.
The comment period will extend until April 30, 2003. A series of public meetings will be held in surrounding communities during this period. Dates, times, and locations of the meetings will be announced in the local media, posted on the internet at
Limited numbers of copies of the SDEIS/GMP are available from the Superintendent, Big South Fork NRRA, 4564 Leatherwood Ford Road, Oneida, TN 37841. Public reading copies of the SDEIS/GMP will also be available for review at the following locations, including others to be announced:
• Office of the Superintendent, Big South Fork NRRA, 4564 Leatherwood Ford Road, Oneida, TN 37841. Telephone: (423) 569-9778.
• Division of Planning and Compliance, Southeast Regional Office, National Park Service, Attention: John Fischer, 100 Alabama Street, 1924 Building, Atlanta, Georgia 30303. Telephone: (404) 562-3124, ext. 607.
• An electronic copy of the SDEIS/GMP is available for download in .pdf format on the internet at
Superintendent, Big South Fork NRRA, 4564 Leatherwood Ford Road, Oneida, TN 37841. Telephone: (423) 562-9778.
This Supplemental Draft Environmental Impact Statement/General Management Plan is being distributed for public review based on comments received on the initial draft document. Those comments indicated that additional information was needed to allow for more meaningful public participation in the area's management planning. This led to more data collection and the development of a new alternative.
This plan examines and reaffirms Congress' purpose and direction for the National Area. It identifies the management requirements placed on the National Area as a unit of the national park system. The plan then considers different alternatives for managing the National Area along with an environmental evaluation of the alternatives. A no-action alternative is included for comparison. Development sites, roads, and trails within the National Area are examined.
In addition to Alternatives A and B identified in the previous draft, a new, more detailed alternative is presented in this supplemental document. This new alternative, Alternative D, is the NPS' preferred alternative. More localized areas are identified for different zone types, with particularized management prescriptions. A greater degree of guidance for resource management and visitor use is achieved. This is augmented with information, proposals, and alternatives for development of facilities, including roads and trails. Many existing facilities are reaffirmed as appropriate for inclusion in an official system; a number of new facilities are proposed to fill gaps and to provide for areas more recently acquired; and some existing facilities would be removed. Overall, the scale of development and types of facilities proposed over the planning horizon of 15 to 20 years would remain essentially the same. Special provisions are proposed for hunting access and for off-road vehicles. All routes proposed for use by off-road vehicles would be designated, according to Executive Order.
Special projects including management of oil and gas activities, reclamation of contaminated mine drainage, native species management, cultural landscape identification and management, and increased monitoring would be continued or initiated. Interpretation of National Area resources would be increased and more focused through completion of comprehensive interpretive planning.
Notice is hereby given in accordance with the Federal Advisory Committee Act (Public Law 92-463, 86 Stat. 770, 5 U.S.C. App. 1, sec. 10), that the Acadia National Park Advisory Commission will hold a meeting on Monday, February 3, 2003.
The Commission was established pursuant to Public Law 99-420, sec.
The meeting will convene at park Headquarters, McFarland Hill, Bar Harbor, Maine, at 1 p.m. to consider the following agenda:
1. Review and approval of minutes from the meeting held September 9, 2002.
2. Committee reports:
3. Old business.
4. Superintendent's report.
5. Public comments.
6. Proposed agenda for next Commission meeting, September 9, 2002.
The meeting is open to the public. Interested persons may make oral/written presentations to the Commission or file written statements. Such requests should be made to the Superintendent at least seven days prior to the meeting.
Further information concerning this meeting may be obtained from the Superintendent, Acadia National Park, P.O. Box 177, Bar Harbor, Maine 04609, tel: (207) 288-3338.
National Park Service, Interior.
Notice of February 20, 2003 meeting.
This notice sets forth the date of the February 20, 2003 meeting of the Gettysburg National Military Park Advisory Commission.
The public meeting will be held on February 20, 2003 from 7 p.m. to 9 p.m.
The meeting will be held at the Cyclorama Auditorium, 125 Taneytown Road, Gettysburg, Pennsylvania 17325.
The February 20, 2003 meeting will consist of the Sub-Committee Reports from the Historical, Executive, and Interpretive Committees; Federal Consistency Reports Within the Gettysburg Battlefield Historic District; Operational Updates on Park Activities which consists of an update on Gettysburg National Battlefield Museum Foundation and National Park Service activities related to the new Visitor Center/Museum Complex, update on the 5-year plan for the Historic Landscape Rehabilitation; updating the schedule of repairs on the Pennsylvania Monument; Construction Updates such as the fire suppression project for 50 historic structures; the Gettysburg Borough Interpretive Plan which will consist of updates on the Wills House and the Train Station; Transportation which consists of the National Park Service and the Gettysburg Borough working on the shuttle system; Update on land acquisition within the park boundary or in the historic district; and the Citizens Open Forum where the public can make comments and ask questions on any park activity.
John A. Latschar, Superintendent, Gettysburg National Military Park, 97 Taneytown Road, Gettysburg, Pennsylvania 17325,
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning agenda items. The statement should be addressed to the Gettysburg National Military Park Advisory Commission, 97 Taneytown Road, Gettysburg, Pennsylvania 17325.
National Park Service, Interior.
Notice of realty action for proposed land exchange.
The following described interests in federally-owned lands acquired by the National Park Service have been determined to be suitable for disposal by exchange. The authority for this exchange is section 5(b) of the Land and Water Conservation Fund Act Amendments in Pub. L. 90-401, approved July 15, 1968, and section 7(f) of the National Trails System Act, Pub. L. 90-543, as amended.
Comments on this proposed land exchange will be accepted through March 17, 2003.
Detailed information concerning this exchange including precise legal descriptions, Land Protection Plan, environmental assessment, and cultural reports, and Finding of No Significant Impact are available at the National Trails Land Resources Program Center, 1314 Edwin Miller Boulevard, PO Box 908, Martinsburg, West Virginia 25402. Comments may also be mailed to this address.
Judy L. Brumback, Chief, Acquisition Division, National Park Service, National Trails Land Resources Program Center, PO Box 908, Martinsburg, West Virginia 25402-0908. Phone: (304) 263-4943.
The selected interest in Federal land is within the boundaries of the Appalachian National Scenic Trail. The land has been surveyed for cultural resources and endangered and threatened species. These reports are available upon request.
Permanent and temporary easements, in varying widths from 168.45′ to 15.62′, providing the right to construct, install and maintain a natural gas pipeline are to be exchanged on this federally owned property. Tract 514-50, (permanent easement) consisting of Parcel A, with 0.27 of an acre, more or less, which occupies a portion of the land acquired by the United States of America from Ronald H. Cumbow,
Conveyance of the interest in land by the United States of America will be done by a Grant of Easement without warranty and will include easements terms to ensure that impact of construction and operation of the pipeline are minimized. Once construction and installation has been completed, the company will restore the disturbed property and carry out other reclamation and mitigation measures to further minimize impacts to the environment.
In exchange for the land described in Paragraph I above, the United States of America will acquire the fee interest in Tract 514-52, containing 1.13 acres, more or less and an easement over Tract 514-53, Parcels A and Parcel B, containing in the aggregate .82 of an acre, more or less, to be acquired by East Tennessee Natural Gas Pipeline Company. The Appalachian Trail footpath is located approximately 200 feet from this property. Acquisition of the fee and easement interests will provide additional protection for the footpath by protecting the resources. This land will be administered by the National Park Service as a part of the Appalachian National Scenic Trail upon completion of the exchange. This exchange of real property will provide permanent protection for the Appalachian Trail.
The land to be acquired by the United States of America is described as follows: Tract 514-52, the fee interest in 1.13 acres, more or less and Tract 514-53, a easement interest over 0.82 of an acre, more or less, acquired by East Tennessee Natural Gas Pipeline Company from Ron C. Reedy. The property is a portion of the lands acquired by Ron C. Reedy from J. W. Cumbow,
Conveyance of the fee simple title and easement to the United States will be done by a General Warranty Deed.
The value of the properties exchanged shall be determined by a current fair market value appraisal. If the value of Tracts 514-50/51 exceeds the value of Tract 514-52/53, East Tennessee Natural Gas Pipeline Company shall make an equalization payment to the United States. If the value of Tracts 514-52/53 exceeds the value of Tract 514-50/51, East Tennessee Natural Gas Pipeline Company will donate the excess value to the United States.
Interested parties may submit written comments to the address listed in the
Bureau of Reclamation.
Notice of closure.
The Bureau of Reclamation is prohibiting public access to Nimbus Dam and power plant. The prohibition (closure) area consists of the entire dam and power plant structure; the fenced in area at each end of and immediately adjacent to the structure; lands and water 85 feet downstream of the dam and power plant; and lands and waters 75 feet upstream of the dam and power plant.
The closure will be effective January 2, 2003 and will remain in effect indefinitely.
A map is available for inspection at the Bureau of Reclamation's Central California Area Office, located at 7794 Folsom Dam Road, Folsom, California 95630. The map may be viewed between the hours of 8 a.m. and 4 p.m., Monday through Friday. To have a map mailed to your address, send your request to the above address, Attention: Nimbus Dam Map Request.
Bureau of Reclamation, Mid-Pacific Region Public Affairs Office at (916) 978-5100 or the Bureau of Reclamation, Central California Area Office at (916) 988-1707.
This action is being taken under 43 CFR 423.3 to improve facility security and public safety. The Bureau of Reclamation will be prohibiting access to the structure in an effort to prevent activities that may inadvertently or deliberately cause property damage to the structure. The following acts are prohibited on the facilities, lands and waters in the closure area: (a) Trespassing, entering, or remaining in or upon the closure areas described above. (Exceptions: Operation and Maintenance personnel that have expressed authorization from the Bureau of Reclamation; law enforcement and fire department officers and Bureau of Reclamation employees acting within the scope of their employment, and any others who have received expressed written authorization from the Bureau of Reclamation to enter the closure areas). (b) Tampering or attempting to tamper with the facilities, structures or other property or real property located within the closure areas or moving, manipulating, or setting in motion any of the parts thereof. (Exceptions:
Closing of the area will also improve the agency's ability to detect and respond to potential problems at the facility. In addition, prohibiting public access to the tailrace area will reduce the likelihood of drowning incidents. The water releases from the power plant are turbulent and should an individual fall into the tailrace, drowning is a highly probable outcome. This order is posted in accordance with 43 CFR 423.3(b). Violation of this prohibition or any prohibition listed in 43 CFR part 423 is punishable by fine, or imprisonment for not more than six months, or both.
International Trade Commission.
February 5, 2003, at 9:30 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436. Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: none.
2. Minutes.
3. Ratification list.
4. Inv. No. TA-421-2 (Remedy)(Certain Steel Wire Garment Hangers from China)—briefing and vote. (The Commission is currently scheduled to transmit its proposals on remedy to the President and the United States Trade Representative on February 18, 2003.)
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
60-day emergency notice of information collection under review: Reinstatement, without change, of a previously approved collection for which approval has expired. Certification of compliance with eligibility requirements of grants to reduce crimes against women.
The Department of Justice, Office of Justice Programs, Office on Violence Against Women has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with emergency review procedures of the Paperwork Reduction Act of 1995. OMB approval has been requested by January 31, 2003. The proposed information collection is published to obtain comments from the public and affected agencies. If granted, the emergency approval is only valid for 180 days. Comments should be directed to OMB, Office of Information and Regulation Affairs, Attention: Department of Justice Desk Officer (202) 395-6466, Washington, DC 20503.
During the first 60 days of this same review period, a regular review of this information collection is also being undertaken. All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Cathy Poston, Attorney/Advisor, Office on Violence Against Women, Office of Justice Programs, Department of Justice, 810 7th Street, NW., Washington DC 20531, or facsimile (202) 305-2589.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1) Type of information collection: Reinstatement, without Change, of a Previously Approved Collection for which Approval has expired.
(2) The title of the form/collection: Certification of Compliance with Eligibility Requirements of Grants to Reduce Crimes against Women.
(3) The agency form number, if any, and the applicable component of the department sponsoring the collection: Form Number: none. Office on Violence Against Women, Office of Justice Programs, Department of Justice.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Institutions of Higher Education. Other: None. The grants to Reduce Violent Crimes Against Women on Campus Program was authorized through section 826 of the Higher Education Amendments of 1998 to make funds available to institutions of higher education to combat domestic violence, dating violence, sexual assault and stalking crimes.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that 125 respondents will complete the application in approximately 30 minutes.
(6) An estimate of the total public burden (in hours) associated with the collection: The estimated total public burden associated with this application is 62 hours.
If additional information is required contact: Brenda E. Dyer, Department Deputy Clearance Officer, Information Management and Security Staff, Justice Management Division, United States Department of Justice, 601 D Street NW., Patrick Henry Building, Suite 1600, NW., Washington, DC 20530.
Notice.
The Department of Labor (the Department), 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 (PRA) [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 Office of Federal Contract Compliance Programs' (OFCCP) proposed information collection entitled Equal Opportunity Survey (EO Survey). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before March 31, 2003.
Ms. Hazel Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418 (voice) or (202) 693-1308 (TTY), fax (202) 693-1451, E-mail
OFCCP's regulations at 41 CFR 60-2.18 authorize OFCCP to collect data through use of the EO Survey. The EO Survey requests data that can be derived from employment and other related records that contractors are required to collect and retain under OFCCP's regulations at 41 CFR 60-1.12. With these data, the EO Survey is intended to improve the selection of contractors for compliance evaluations, which the Department uses to determine compliance with non-discrimination and equal employment opportunity (EEO) regulations. OFCCP seeks to develop a selection tool that is able to identify those contractors that are more likely to be engaging in discriminatory employment practices. This revised selection tool would enable OFCCP to efficiently allocate its resources and avoid initiating evaluation of those employers who are in general compliance with EEO guidelines, thereby reducing the burden on them, and efficiently spending tax-payer dollars. Time constraints and a number of data problems affected an earlier pilot study of the EO Survey data in such a way so as not to be able to assess the Survey's predictive power. To perform a study that is not limited by these obstacles, OFCCP has engaged an outside contractor to study the Survey data. The contractor will assess data from the EO Survey submissions as part of its study. It is anticipated that the study will not be completed until 2004.
The current PRA authorization for the EO Survey is scheduled to expire on March 31, 2003. Accordingly, OFCCP requests a two-year extension of PRA authorization for the EO Survey, involving 10,000 EO Surveys per year. The two-year extension will permit OFCCP to complete the ongoing study of the EO Survey. Ten-thousand Surveys is the number the outside contractor needs to assess the Survey's reliability for finding employers that discriminate against their employees.
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 seeks the extension of approval to collect this information to complete a study of the EO Survey as a tool to identify those contractors that are more likely to be engaging in discriminatory employment practices. The Survey could enable OFCCP to efficiently allocate its resources to avoid initiating evaluation of those employers who are in general compliance with EEO guidelines, thereby reducing the burden on them and efficiently spending tax-payer dollars. The OFCCP seeks a two-year extension to the approval of the Equal Opportunity Survey. There is no change in the substance or method of collection since the last OMB approval.
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; comments will also become a matter of public record.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before March 17, 2003. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
To request a copy of any records schedule identified in this notice, write to the Life Cycle Management Division (NWML), National Archives and Records Administration (NARA), 8601 Adelphi Road, College Park, MD 20740-6001. Requests also may be transmitted by FAX to 301-837-3698 or by e-mail to
Paul M. Wester, Jr., Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-3120. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of the Army, Agency-wide (N1-AU-01-20, 7 items, 6 temporary items). Records relating to the management of models and simulations. Included are records documenting standards and requirements development, board and working group proceedings, improvement proposals, and domain management. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of policy and program management reports, which include such records as standards reports, master plans, and acquisition and training guidelines. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
2. Department of the Army, Agency-wide (N1-AU-03-1, 2 items, 2 temporary items). Electronic master files and outputs/reports relating to child and spouse abuse. A copy of the master file becomes part of a Department of Defense database that was previously approved for permanent retention.
3. Department of the Army, Agency-wide (N1-AU-03-02, 2 items, 2 temporary items). Master files and reports associated with the Groups Operational Passenger System. Records contain information regarding the receipt and processing of group movement requests and associated offers of service from the commercial carrier industry. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
4. Department of Defense, Office of the Inspector General (N1-509-03-1, 2 items, 1 temporary item). Criminal investigation case files. This schedule modifies slightly the previously approved selection criteria for permanent case files and also increases the retention period for files that lack historical significance, which were previously scheduled for disposal.
5. Department of Defense, Defense Security Service (N1-446-03-2, 14 items, 14 temporary items). Records relating to international programs. Records relate to such matters as trips, foreign government contacts and liaison assignments, transportation plans, security violations, secured communications, and security briefings. Also included are electronic copies of documents created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
6. Department of Health and Human Services, Centers for Medicare and Medicaid Services (N1-440-00-5, 10 items, 7 temporary items). Records of the Office of Actuary relating to national expenditures for health-related goods and services, including paper and electronic source records and a web version of the annual report. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are electronic data files, annual reports, and system documentation.
7. Department of Interior, U.S. Geological Survey (N1-57-03-1, 46 items, 27 temporary items). Audiovisual records, geospatial data, cartographic records, remote sensing records, architectural drawings, engineering records, and publishing records. Included are such materials as miscellaneous general interest photographs, duplicate video prints, surveillance recordings, pre-mix sound elements and sound library recordings, unaltered or minimally altered data layers and non-significant data layers, contract negotiation drawings, publication approval records, copyright files, manuscripts, working papers and background materials, publications research records, information products management files, unofficial information products, and electronic files and artwork used in publishing. Also included are electronic copies of records created using electronic mail, spreadsheet, and word processing applications. Proposed for permanent retention are such records as mission-related photographs, motion pictures, stock footage, video recordings, audio recordings, geospatial data sets, and remote sensing records.
8. Department of Justice, Civil Rights Division (N1-60-03-3, 5 items, 2 temporary items). Inputs and outputs of the Case Management System, which is used for tracking investigations and cases. Proposed for permanent retention are the master files of the database (both the public-use and full-text versions) and the associated system documentation.
9. Department of Justice, Federal Bureau of Investigation (N1-65-03-1, 2 items, 2 temporary items). Work papers relating to financial management audits and electronic data processing audits. Also included are electronic copies of
10. Administrative Office of the U.S. Courts, Office of Internal Services (N1-116-03-3, 5 items, 4 temporary items). Briefing book background materials and appropriations hearing correspondence files. Included are such records as statements, questions prepared by program offices, and correspondence with judges and others relating to judicial appropriations. Also included are electronic copies of documents created using electronic mail and word processing. Recordkeeping copies of House and Senate hearings briefing books are proposed for permanent retention.
11. Commission on Affordable Housing and Health Facility Needs for Seniors in the 21st Century, Agency-wide (N1-220-03-3, 20 items, 11 temporary items). Audio cassette copies of meeting minutes and hearings used solely for making transcripts, administrative general correspondence, staff working papers, copies of contracts, reference materials, electronic copies created using electronic mail and word processing, and the Commission's web site. Recordkeeping copies of such files as meeting minutes, Commissioners' working papers, task force records, reports and studies, hearing transcripts, press releases, and photographs are proposed for permanent retention.
12. Environmental Protection Agency, Office of Pollution, Prevention, and Toxics (N1-412-01-11, 3 items, 2 temporary items). Paper records relating to regulating chemical or chemical mixtures under Section 6 of the Toxic Substances Control Act that have been microfilmed. Also included are electronic copies of documents created using electronic mail and word processing. Microfilm copies and paper records that have not been filmed are proposed for permanent retention.
13. Executive Office of the President, Office of Management and Budget (N1-51-03-2, 8 items, 1 temporary item). Backup tapes of electronic mail of the Management Division, the Office of Federal Procurement Policy, and the Health and Income Maintenance Division. Master files of messages and the related indexes and documentation are proposed for permanent retention.
14. National Bioethics Advisory Commission, Agency-wide (N1-220-01-6, 13 items, 5 temporary items). Copies of materials used solely for answering requests, reference materials, electronic copies created using electronic mail and word processing, and the Commission's web site. Proposed for permanent retention are recordkeeping copies of such files as the Commission's final report, surveys, hearing transcripts, correspondence, and meeting minutes.
15. Tennessee Valley Authority, Fossil Power Group (N1-142-03-2, 15 items, 15 temporary items). Records documenting the operation and maintenance of generators and auxiliary equipment at fossil power plants. Records relate to such matters as meter readings, temperature and pressure points, electrical power distribution, and inspections. Also included are electronic copies of documents created using electronic mail and word processing.
Notice; correction.
The National Council on Disability published a document in the
Joan M. Durocher, Attorney Advisor and Designated Federal Official, National Council on Disability, 1331 F Street NW., Suite 850, Washington, DC 20004; 202-272-2004 (voice), 202-272-2074 (TTY), 202-272-2022 (fax),
In the
The U.S. Nuclear Regulatory Commission (NRC or Commission) has received an application, dated January 3, 2003, from the Exelon Generation Company, LLC, filed pursuant to section 104b of the Atomic Energy Act of 1954, as amended, and 10 CFR part 54, to renew Operating License Nos. DPR-19, DPR-25, DPR-29, and DPR-30 for the Dresden Nuclear Power Station, Units 2 and 3, and the Quad Cities Nuclear Power Station, Units 1 and 2, respectively. Renewal of the licenses would authorize the applicant to operate each of the facilities for an additional 20-year period. The current operating licenses for the Dresden Nuclear Power Station, Units 2 and 3, expire on December 22, 2009, and January 12, 2011, respectively. Both of the current operating licenses for the Quad Cities Nuclear Power Station, Units 1 and 2, expire on December 14, 2012. The Dresden Nuclear Power Station, Units 2 and 3, are boiling-water reactors designed by General Electric Company and are located in Grundy County, Illinois. The Quad Cities Nuclear Power Station, Units 1 and 2, are also boiling-water reactors designed by General Electric Company, and are located in Rock Island County, Illinois. The acceptability of the tendered application for docketing and other matters, including an opportunity to request for a hearing, will be the subject of a subsequent
Copies of the application are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or electronically from the Publicly Available Records (PARS) component of the NRC's Agencywide Documents Access and Management System (ADAMS) under accession number ML030090359. The ADAMS Public Electronic Reading Room is accessible from the NRC Web site at
The license renewal application is also available to local residents near the Dresden Nuclear Power Station at the Morris Public Library in Morris, Illinois, and at the Coal City Public Library in Coal City, Illinois. For local residents near the Quad Cities Nuclear Power Station, the license renewal application is available at the River Valley District Library in Port Byron, Illinois.
For the Nuclear Regulatory Commission:
Nuclear Regulatory Commission.
Notice of availability and request for public comment.
The Nuclear Regulatory Commission's (NRC) is announcing the availability of NUREG/CR-6477, “Revised Analysis of Decommissioning Reference Non-Fuel-Cycle Facilities.” This report analyses changes in conceptual decommissioning costs for a number of different types of reference nuclear materials facilities.
Submit comments by March 3, 2003. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Submit comments to: Clark Prichard, Division of Industrial and Medical Nuclear Safety, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Deliver comments to 11555 Rockville Pike, Rockville, MD, between 7:30 a.m. and 4:15 p.m. on Federal workdays.
The NRC maintains an Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Single hard copies are available from the contact listed below.
Clark Prichard, Division of Industrial and Medical Nuclear Safety, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 (301-415-6203),
“Revised Analysis of Decommissioning Reference Non-Fuel-Cycle Facilities,” NUREG/CR-6477 provides estimates of the costs of decommissioning for a number of different types of non-fuel-cycle materials facilities, such as laboratories for the manufacture of sealed sources, laboratories for the manufacture of radionuclide-labeled compounds, and an institutional user laboratory. It is a re-evaluation of the original study of decommissioning costs for these types of facilities (NUREG/CR-1754 and NUREG/CR-1754, Addendum 1. It is part of a series of reports developed by Pacific Northwest National Laboratory providing decommissioning cost information.
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”)
Notice of application for an order 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.
Applicants request an order that would permit them to enter into and materially amend subadvisory agreements without shareholder approval.
LB Series Fund, Inc. (“LBSF”), AAL Variable Product Series Fund, Inc. (“AAL VPSF”), The Lutheran Brotherhood Family of Funds (“The LB Family of Funds”), and The AAL Mutual Funds (“AAL Funds”)(each a “Company”) and Thrivent Financial for Lutherans (“Thrivent”) and Thrivent Investment Management Inc. (“TIMI”)(each a “Manager”).
The application was filed on April 17, 2001 and amended on January 22, 2003.
An order granting the requested relief 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 February 18, 2003 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, Peter T. Fariel, Esq., Goodwin Procter LLP, Exchange Place, Boston, MA 02109 or James E. Nelson, Thrivent Financial for Lutherans, 625 Fourth Avenue South, Minneapolis, MN 55415.
Todd F. Kuehl, Branch Chief, at (202) 942-0564, or Nadya Roytblat, Assistant Director, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street NW., Washington, DC 20549-0102 (tel. 202-942-8090).
1. Each Company is registered under the Act as an open-end management investment company. Each Company
2. Thrivent, organized as a fraternal benefit society under the laws of the State of Wisconsin, is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). Under separate investment advisory agreements with LBSF (the “LBSF Advisory Contract”) and AAL VPSF (the “AAL VPSF Advisory Contract”), respectively. Thrivent serves as the investment adviser to the LBSF portfolios and AAL VPSF Portfolios. TIMI, a Delaware corporation and wholly owned subsidiary of Thrivent, is registered as an investment adviser under the Advisers Act. TIMI serves as investment adviser to the AAL Funds and The LB Family of Funds, providing services for the AAL Funds' Portfolios and The LB Family of Funds' Portfolios under separate advisory agreements (the “AAL Funds Advisory Contract” and the “LB Family of Funds Advisory Contract,” respectively, and together with the LBSF Advisory Contract and AAL VPSF Advisory Contract, each an “Advisory Contract” and collectively the “Advisory Contracts”). The terms of each existing Advisory Contract comply with section 15(a) of the Act. The Advisory Contracts each require approval by shareholders of the applicable Portfolio and by the board of directors or trustees of each Company (each a “Board”), including a majority of the directors or trustees who are not “interested persons” (as defined in section 2(a)(19) of the Act) of such Portfolio (the “Independent Directors”), at the time and in the manner required by sections 15(a) and (c) of the Act and Rule 18f-2 thereunder.
3. Pursuant to the Advisory Contract with each Manager, the Managers have primary responsibility for management of the Portfolios and may hire one or more sub-advisers (“Sub-Advisers”) to invest all or a portion of each Portfolio's assets pursuant to separate sub-advisory agreements (“Sub-Advisory Agreements”). Each Sub-Adviser has discretionary authority to invest that portion of a Portfolio's assets assigned to it. Each Sub-Adviser is or will be either registered or exempt from registration under the Advisers Act. For its services, each Sub-Adviser will receive a sub-advisory fee payable by the Manager out of the fee the Manager receives from the relevant Portfolio.
4. The Managers are subject to the general oversight and approval of the respective Boards. Sub-Adviser evaluation on both a quantitative and qualitative basis will be an ongoing process with the Manager selecting Sub-Advisers, as well as allocating and reallocating Portfolio assets among Sub-Advisers, subject to approval by the Portfolio's Board.
5. Applicants request relief to permit the Managers to enter into and materially amend Sub-Advisory Agreements without seeking shareholder approval. Applicants will not enter into any Sub-Advisory Agreement with a Sub-Adviser that is an “affiliated person” (as defined in section 2(a)(3) of the Act) of the Companies or the Managers, other than by reason of serving as a Sub-Adviser to one or more of the Portfolios (“Affiliated Sub-Adviser”), without that agreement, including the compensation to be paid thereunder, being approved by the shareholders of the Portfolio.
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 under a written contract that has been approved by the vote of a 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. 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 the requested relief meets this standard for the reasons discussed below.
3. Applicants assert that each Portfolio's shareholders are relying on the Manager's experience to select, monitor and replace Sub-Advisers. Applicants assert that, from the perspective of the shareholder, the role of the Sub-Advisers is comparable to that of individual portfolio managers employed by other investment advisory firms. Applicants contend that requiring shareholder approval of Sub-Advisory Agreements would impose costs and unnecessary delays on the Portfolios, and may preclude the Managers from acting promptly in a manner considered advisable by the applicable Board. Applicants note that the Advisory Contracts will remain subject to the shareholder approval requirements of section 15(a) of the Act and rule 18f-2 under the Act.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Portfolio may rely on the order requested in the application, (i) the operation of the Portfolio in the manner described in the application will be approved by a majority of the outstanding voting securities of such Portfolio (or if the Portfolio serves as a funding medium for any sub-account of a registered separate account, pursuant to voting instructions provided by the owners of variable annuity and variable life insurance contracts (“Owners”) who have allocated assets to that sub-account) within the meaning of the Act, or (ii) in the case of a Portfolio whose shareholders (or Owners through a sub-account of a registered separate account) purchase shares on the basis of a
2. Each Portfolio relying on the requested order will disclose in its prospectus the existence, substance and effect of any order granted pursuant to the application. In addition, each Portfolio relying on the requested order will hold itself out to the public as employing the Manager/Sub-Adviser Structure described in the application. Such Portfolio's prospectus will prominently disclose that the Manager has ultimate responsibility (subject to oversight by the Board) to oversee the Sub-Advisers and recommend their hiring, termination and replacement.
3. The Manager will provide general management and administrative services to each Portfolio, including overall supervisory responsibility for the general management and investment of each Portfolio's securities and other assets, and, subject to review and approval by the applicable Board, will: (i) Set each Portfolio's overall investment strategies; (ii) evaluate, select and recommend Sub-Advisers to manage all or a part of a Portfolio's assets: (iii) when appropriate, allocate and reallocate a Portfolio's assets among multiple Sub-Advisers; (iv) monitor and evaluate the investment performance of Sub-Advisers; and (v) implement procedures reasonably designed to ensure Sub-Advisers comply with the relevant Portfolio's investment objectives, policies and restrictions.
4. At all times, a majority of the Board of a Portfolio will be Independent Directors, and the nomination of new or additional Independent Directors will be at the discretion of the then existing Independent Directors.
5. Neither the Manager nor any Portfolio will enter into a Sub-Advisory Agreement with any Affiliated Sub-Adviser without such Sub-Advisory Agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Portfolio (or, if the Portfolio serves as a funding medium for any sub-account of a registered separate account, then pursuant to voting instructions of the Owners who have allocated assets to that sub-account).
6. When a Sub-Adviser change is proposed for a Portfolio with an Affiliated Sub-Adviser, the Board, including a majority of the Independent Directors, will make a separate finding, reflected in the minutes of the meeting of the Board, that such change is in the best interests of the applicable Portfolio and its shareholders (or, if the Portfolio serves as a funding medium for any sub-account of a registered separate account, in the best interests of the Portfolio and the Owners who have allocated assets to the sub-account) and does not involve a conflict of interest from which the Manager of the Affiliated Sub-Adviser derives an inappropriate advantage.
7. No director or officer of a Portfolio or director or officer of the Manager will own directly or indirectly (other than through a polled investment vehicle that is not controlled by the director or officer) any interest in Sub-Adviser except (i) for the ownership of interests in the Manager or any entity that controls, is controlled by, or is under common control with the Manager; or (ii) for 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.
8. Within 90 days of the hiring of any new Sub-Adviser, the Manager will furnish the shareholders (or, if the Portfolio serves as a funding medium for a sub-account of a registered separate account, the Owners who have allocated assets to that sub-account) of the applicable Portfolio all the information about the new Sub-Adviser that would have been included in a proxy statement. To meet this obligation, the Manager will provide the shareholders (or if the Portfolio serves as a funding medium for any sub-account of a registered separate account, the Owners) of the applicable Portfolio with an information statement meeting the requirements of Regulation 14C and Schedule 14C under the Securities Exchange Act of 1934, as amended, as well as the requirements of Item 22 of Schedule 14A under that Act.
For the Commission, by the Division of Investment Management, under delegated authority.
The Securities and Exchange Commission (the “Commission”).
Notice of Application for an order pursuant to section 6(c) of the Investment Company Act of 1940 (the “1940 Act”) to amend a prior order of the Commission under section 6(c) of the 1940 Act which granted exemptions from the provisions of Sections 2(a)(32), 22(c), and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder to permit the recapture of credits applied to purchase payments made under certain deferred variable annuity contracts.
On January 19, 2000 the Commission issued an order pursuant to section 6(c) of the 1940 Act granting exemptions from sections 2(a)(32), 22(c) and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder to permit the recapture of credits applied to purchase payments made under certain variable annuity contracts issued by Nationwide Life Insure Company (the “Original Order”.
Nationwide Life Insurance Company (“Nationwide”); Nationwide Variable Account-II (“VA-II”); and Nationwide Investment Services Corporation (“NISC”) (all collectively, the “Applicants”).
The Application was filed on September 23, 2002. Amended Applications were filed on January 14, 2003 and January 24, 2003.
An order granting the application will be
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, c/o Nationwide Life Insurance Company, One Nationwide Plaza 01-09-V3, Columbia, Ohio 43215, Attn: Jamie Casto, Esq.
Rebecca A. Marquigny, Senior Counsel, or Zandra Bailes, Branch Chief, at (202) 942-0670, Office of Insurance Products, Division of Investment Management.
The following is a summary of the application. The complete application is available for a fee from the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (telephone (202) 942-8090).
1. Nationwide is a stock life insurance company organized under the laws of the State of Ohio. Nationwide offers traditional group and individual life insurance products as well as group and individual variable and fixed annuity contracts. Nationwide is wholly owned by Nationwide Financial Services, Inc. (“NFS”). NFS, a Delaware Corporation, is a publicly traded holding company with two classes of common stock outstanding, each with different voting rights. This enables Nationwide Corporation (the holder of all the outstanding Class B Common Stock) to control NFS. Nationwide Corporation stock is held by Nationwide Mutual Insurance Company (95.24%) and Nationwide Mutual Fire Insurance Company (4.76%), the ultimate controllers of Nationwide.
2. On October 7, 1981, the Nationwide Spectrum Variable Account was established under Ohio law by Nationwide for the purpose of funding variable annuity contracts. On April 1, 1987, the Board of Directors for Nationwide changed the name of the Nationwide Spectrum Variable Account to Nationwide Variable Account-II. VA-II is registered as a unit investment trust (1940 Act No. 811-3330) and supports several different variable annuity contracts that are (or will be) registered separately on Form N-4.
3. On January 19, 2000, the Commission issued the Original Order pursuant to Section 6(c) of the 1940 Act granting exemptions from Section 2(a)(32), 22(c) and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder to permit the recapture of credits applied to purchase payments made under certain variable annuity contracts (the “Original Contracts”).
4. Recapture of Credits under the Original Order. Nationwide currently offers an optional benefit (for a charge equal to an annualized rate of 0.45% of the daily net assets of the variable account for the first 7 contract years) that allows for the investment of 103% of all purchase payments made during the first twelve months of the contract. The investment in excess of the remitted purchase payment (3% in connection with the Original Contracts) is referred to as the “Credit.”
During the first 7 contract years, the Credit is fully vested except during the contractual free-look period and when certain withdrawals are taken from the contract.
If the contract owner cancels the contract pursuant to the contractual free-look privilege, Nationwide recaptures the Credit. For those jurisdictions that allow a return of contract value upon exercise of the free-look provision, the contract owner will also forfeit any amounts deducted from the contract as an Extra Value Option charge.
If, after the free-look period and before the end of the 7th contract year, the contract owner withdraws value from the contract that is subject to a Contingent Deferred Sales Charge (“CDSC”), Nationwide recaptures a portion of the Credit. The CDSC schedule is as follows:
Nationwide does not recapture any Credit if the withdrawal is a free withdrawal (a withdrawal not subject to the CDSC) as described in the contract. Thus, the percentage of the Credit that Nationwide recaptures is determined by the percentage of withdrawn purchase payments that are subject to CDSC. The recaptured amount is taken proportionately from each investment option as allocated at the time of the withdrawal.
No recapture takes place after the end of the 7th contract year; if the contract is annuitized; if a death benefit becomes payable; if distributions are required in order to meet minimum distribution requirements under the Internal Revenue Code of 1986, as amended (the “Code”); if free withdrawals are being taken pursuant to an aged-based systematic withdrawal program; or in connection with any other type of withdrawal not otherwise subject to a CDSC.
5. The Original Order does not contemplate the following recapture procedures, which Nationwide intends to include in 4 new annuity contracts that will be registered with the Commission (the “New Contracts”):
a. Recapture of larger Credits over a longer period of time. In one of the New Contracts, Nationwide intends to offer a 3% Credit option and a 4% Credit option while imposing an 8 year CDSC schedule with a maximum CDSC of 8%. In another one of the New Contracts, Nationwide intends to offer a 3% Credit option and a 4% Credit option while imposing a 7 year CDSC schedule with a maximum CDSC of 7%. In the other 2 New Contracts, Nationwide intends to offer only the 3% Credit option while imposing a 7 year CDSC schedule with a maximum CDSC of 7%. Each of the 7 year CDSC schedules described above is the same schedule that was contemplated in the Original Order.
b. Recapture of Credits for 7 contract years for all of the New Contracts. Three of the 4 New Contracts have CDSC-reducing options that the contract owner can purchase: one option reduces the standard CDSC schedule to 4 years and the other option eliminates CDSC completely. For all of the New Contracts, Nationwide intends to recapture Credits for 7 contract years, even if the contract owner elected a CDSC-reducing option.
c. Recapture of Purchase Payment Credits. Purchase Payment Credits are credits that Nationwide applies to contracts when purchase payments reach certain aggregate amounts. Nationwide applies Purchase Payment Credits to every contract that meets the purchase payment thresholds (except for those contracts where the contract owner elected the No CDSC Option). Nationwide intends to recapture Purchase Payment Credits only upon a
6. The New Contracts generally. The New Contracts are flexible purchase payment deferred annuity contracts that will be sold to individuals as: (i) Non-qualified contracts which are governed for tax purposes by section 72 of the Code; (ii) Individual Retirement Annuities (“IRAs”), Roth IRAs, SEP IRAs or Simple IRAs which are governed by section 408 of the Code; (iii) Non-ERISA Tax Sheltered Annuities which are governed by section 403(b) of the Code; or (iv) Investment-Only Contracts, sold to qualified plans governed by section 401(a) of the Code. Contract owners may allocate their investments in the contract to variable investment options (underlying mutual funds), fixed investment options (including a fixed account Guaranteed Term Options or “GTOs”), or a combination of fixed and variable investment options. The contracts also provide for certain services such as asset rebalancing, dollar cost averaging, and systematic withdrawals. If the annuitant dies before the annuitization date, Nationwide will pay a death benefit to the beneficiary. After two years from the date a New Contract is issued, a contract owner may elect to begin receiving annuity payments.
7. Purchase Payment Credits. Nationwide intends to apply Purchase Payment Credits to the New Contracts when total cumulative purchase payments reach retain aggregate levels. When cumulative purchase payments (minus surrenders) reach $500,000, Nationwide will apply to the contract Purchase Payment Credits equal to 0.50% of total purchase payments up to $999,999. When cumulative purchase payments (minus surrenders) reach $1 million, Nationwide will apply to the contract Purchase Payment Credits equal to 1.00% of total purchase payments (reduced by any previous Purchase Payment Credits applied), and on all purchase payments thereafter. Purchase Payment Credits are considered earnings, not purchase payments.
Purchase Payment Credits will be fully vested except during the contractual free-look period. If the contract owner cancels the contract pursuant to the contractual free-look provisions, Nationwide intends to recapture any Purchase Payment Credits applied.
8. Individual Characteristics of the New Contracts. Each of the 4 New Contracts is distinct and will be referred to as “Contract A,” “Contract B,” “Contract C,” and “Contract D.”
a. Contract A. Contract A requires an initial purchase payment of $5,000 for non-qualified contracts and $3,000 for the remaining contract types (e.g., IRAs, etc.). If the contract owner elects to make subsequent purchase payments, they must be at least $500 each ($50 each if submitted via automatic electronic transfer).
Under Contract A, a certain amount of CDSC-free withdrawals is permitted each year. This annual “free-out” amount is equal to 10% of purchase payments that are subject to CDSC. Contract A also provides for the waiver of CDSC: upon the annuitant's death, upon annuitization of the contract, when distributions are necessary in order to meet minimum distribution requirements under the Code, and under an age-based “free-withdrawal” program that allows contract owners to take systematic withdrawals of certain contract value percentages as specified ages without incurring a CDSC. Contact A includes a Long-Term Care/Nursing Home Waiver at no additional charge. The Long-Term Care/Nursing Home allows a contract owner to withdraw value from the contract free of CDSC if: (1) The third contract anniversary has passed and the contract owner has been confined to a long-term care facility or hospital for a continuous 90-day period that began after the contract issue date; or (2) the contract owner has been diagnosed by a physician to have a terminal illness.
• Four year CDSC Option. The Four Year CDSC Option reduces the standard 7 year CDSC period to 4 years as follows:
An annualized charge of 0.25% of the daily net assets of the variable account is assessed for the election of this rider option. Election of the Four Year CDSC Option increases the minimum initial purchase payment to $10,000. The charge associated with this option will be assessed for the life of the contract.
• No CDSC Option. The No CDSC Option eliminates the assessment of CDSC upon withdrawal of value from the contract. An annualized charge of 0.30% of the daily net assets of the variable account is assessed for the election of this rider option. Election of the No CDSC Option: increases the minimum initial purchase payment to $10,000; eliminates the fixed account as an investment option under the contract; eliminates Enhanced Rate Dollar Cost Averaging as a contract owner service; and disqualifies the contract from receiving Purchase Payment Credits. The charge associated with the No CDSC Option will be assessed for the life of the contract.
• 3% Extra Value Option. Nationwide intends to offer a 3% Extra Value Option whereby Nationwide applies a Credit equal to 3% of all purchase payments made during the first 12 months of the contract. The Credit will be funded from Nationwide's general account and will be credited proportionately among the investment options chosen by the contract owner. The charge for this rider will be an annualized rate of 0.45% of the daily net assets of the variable account for the first 7 contract years only.
• One-Year Enhanced Death Benefit.
• Greater of One-Year or 5% Enhanced Death Benefit.
• Beneficiary Protector II Option.
b. Contract B. Contract B requires an initial purchase payment of $5,000 for non-qualified contracts and $3,000 for the remaining contract types (
Under Contract B, a certain amount of CDSC-free withdrawals is permitted each year. This annual free-out'' amount is equal to 10% of purchase payments that are subject to CDSC. Contract B also provides for the waiver of CDSC: upon the annuitant's death, upon annuitization of the contract, when distributions are necessary in order to meet minimum distribution requirements under the Code, and under an age-based “free-withdrawal” program that allows contract owners to take systematic withdrawals of certain contract value percentages as specified ages without incurring a CDSC. Contract B includes a Long-Term Care/Nursing Home Waiver at no additional charge. The Long-Term Care/Nursing Home allows a contract owner to withdraw value from the contract free of CDSC if: (1) The third contract anniversary has passed and the contract owner has been confined to a long-term care facility or hospital for a continuous 90-day period that began after the contract issue date; or (2) the contract owner has been diagnosed by a physician to have a terminal illness.
• 3% Extra Value Option. Nationwide intends to offer a 3% Extra Value Option whereby Nationwide applies a Credit equal to 3% of all purchase payments made during the first 12 months of the contract. The Credit will be funded from Nationwide's general account and will be credited proportionately among the investment options chosen by the contract owner. The charge for this rider will be an annualized rate of 0.45% of the daily net assets of the variable account for the first 7 contract years only.
• Spousal Protection Annuity Option.
• One-Year Enhanced Death Benefit.
• Greater of One-Year or 5% Enhanced Death Benefit.
• One-Month Enhanced Death Benefit.
• Beneficiary Protector II Option.
c. Contract C. Contract C requires an initial purchase payment of $5,000 for non-qualified contracts and $3,000 for the remaining contract types (
Under Contract C, a certain amount of CDSC-free withdrawals is permitted each year. This annual “free-out” amount is equal to 10% of purchase payments that are subject to CDSC. Contract C also provides for the waiver of CDSC: upon the annuitant's death, upon annuitization of the contract, when distributions are necessary in order to meet minimum distribution requirements under the Code, and under an age-based “free-withdrawal” program that allows contract owners to take systematic withdrawals of certain contract value percentages as specified ages without incurring a CDSC. Contract C includes a Long-term Care/Nursing Home Waiver at no additional charge. The Long-Term Care/Nursing Home allows a contract owner to withdraw value from the contract free of CDSC if: (1) The third contract anniversary has passed and the contract owner has been confined to a long-term care facility or hospital for a continuous 90-day period that began after the contract issue date; or (2) the contract owner has been diagnosed by a physician to have a terminal illness.
• Four Year CDSC Option. The Four Year CDSC Option reduces the standard 7 year CDSC period to 4 years as follows:
An annualized charge of 0.25% of the daily net assets of the variable account is assessed for the election of this rider option. Election of the Four Year CDSC Option increases the minimum initial purchase payment to $10,000. The charge associated with this option will be assessed for the life of the contract.
• No CDSC Option. The No CDSC Option eliminates the assessment of CDSC upon withdrawal of value from the contract. An annualized charge of 0.30% of the daily net assets of the variable account is assessed for the election of this rider option. Election of the No CDSC Option: increases the minimum initial purchase payment to $10,000; eliminates the fixed account as an investment option under the contract; eliminates Enhanced Rate Dollar Cost Averaging as a contract owner service; and disqualifies the contract from receiving Purchase Payment Credits. The charge associated with the No CDSC Option will be assessed for the life of the contract.
• 3% Extra Value Option. Nationwide intends to offer a 3% Extra Value Option whereby Nationwide applies a Credit equal to 3% of all purchase payments made during the first 12 months of the contract. The Credit will be funded from Nationwide's general account and will be credited proportionately among the investment options chosen by the contract owner. The charge for this rider will be an annualized rate of 0.30% of the daily net assets of the variable account for the first 7 contract years only.
• 4% Extra Value Option. Nationwide intends to offer a 4% Extra Value Option whereby Nationwide applies a Credit equal to 4% of all purchase payments made during the first 12 months of the contract. The Credit will be funded from Nationwide's general account and will be credited proportionately among the investment options chosen by the contract owner. The charge for this rider will be an annualized rate of 0.40% of the daily net assets of the variable account for the first 7 contract years only.
• One-Year Enhanced Death Benefit.
d. Contract D. Contract D requires an initial purchase payment of $15,000. If the contract owner elects to make subsequent purchase payments, they must be at least $1,000 each ($150 each if submitted via automatic electronic transfer).
Under Contract D, a certain amount of CDSC-free withdrawals is permitted each year. This annual “free-out” amount is equal to 15% of purchase payments that are subject to CDSC. Contract D also provides for the waiver of CDSC: upon the annuitant's death, upon annuitization of the contract, when distributions are necessary in order to meet minimum distribution requirements under the Code, and under an age-based “free-withdrawal” program that allows contract owners to take systematic withdrawals of certain contract value percentages as specified ages without incurring a CDSC. Contract D includes a Long-Term Care/Nursing Home Waiver at no additional charge. The Long-Term Care/Nursing Home allows a contract owner to withdraw value from the contract free of CDSC if: (1) The third contract anniversary has passed and the contract owner has been confined to a long-term care facility or hospital for a continous 90-day period that began after the contract issue date; or (2) the contract owner has been diagnosed by physician to have a terminal illness.
• Four Year CDSC Option. The Four Year CDSC Option reduces the standard 8 year CDSC period to 4 years as follows:
An annualized charge of 0.20% of the daily net assets of the variable account is assessed for the election of this rider option. The charge associated with this option will be assessed for the life of the contract.
• No CDSC Option. The No CDSC Option eliminates the assessment of CDSC upon withdrawal of value from the contract. An annualized charge of 0.25% of the daily net assets of the variable account is assessed for the election of this rider option. Election of the No CDSC Option: eliminates the fixed account as an investment option under the contract; eliminates enhanced Rate Dollar Cost Averaging as a contract owner service; and disqualifies the contract from receiving Purchase Payment Credits. The charge associated with the No CDSC Option will be assessed for the life of the contract.
• 3% Extra Value Option. Nationwide intends to offer a 3% Extra Value Option whereby Nationwide applies a Credit equal to 3% of all purchase payments made during the first 12 months of the contract. The Credit will be funded from Nationwide's general account and will be credited proportionately among the investment options chosen by the contract owner. The charge for this rider will be an annualized rate of 0.10% of the daily net assets of the variable account for the first 8 contract years only.
• 4% Extra Value Option. Nationwide intends to offer a 4% Extra Value Option whereby Nationwide applies a Credit equal to 4% of all purchase payments made during the first 12 months of the contract. The Credit will be funded from Nationwide's general account and will be credited proportionately among the investment options chosen by the contract owner. The charge for this rider will be an annualized rate of 0.25% of the daily net assets of the variable account for the first 8 contract years only.
• Greater of One-Year or 5% Enhanced Death Benefit.
• Beneficiary Protector II Option.
9. Credits under the New Contracts.
a. Credits applied to the New Contracts will be fully vested except during the contractual free-look period and when certain surrenders of contract value are made.
b. Similar to the Original Contracts, under the New Contracts, Nationwide will not recapture Credits: (i) Upon annuitization of the contract; (ii) when a death benefit becomes payable; (iii) if distributions are taken in order to meet minimum distribution requirements under the Code; and (iv) if free withdrawals are taken pursuant to an age-based systematic withdrawal program.
c. Similar to the Original Contracts, all Credits applied to the New Contracts are considered earnings, not purchase payments.
d. Similar to the Original Contacts, under the New Contracts, at the end of the 7th contract year, Credits are fully vested and are no longer subject to recapture.
e. Similar to the Original Contracts, under the New Contracts, the charge associated with the Extra Value Option will no longer be assessed after the end of the 7th contract year for Contracts A, B, and C, and after the end of the 8th contract year for Contract D. To remove the rider option charge, Nationwide will replace the class of sub-account units corresponding to total variable account charges that include the rider option charge with another class of sub-account units associated with total variable account charges without the rider option charge. The latter class of units will have a greater individual unit value than the original class. Therefore, a reduction in the number of units is necessary to ensure that the contract value remains the same as it was prior to the removal of the charge.
From the date of the removal forward, the variable account value will be calculated using the class of sub-account unit values that do not reflect the rider option charge. Thus, the charge for that option is no longer assessed in the daily sub-account valuation for the contract.
10. Applicants seek an amendment to the Order, pursuant to section 6(c) of the 1940 Act, for exemption from sections 2(a)(32), 22(c) and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder to the extent necessary to permit Nationwide to issue contracts from the Nationwide Variable Account-II and the Other Separate Accounts that:
a. provide for the recapture of Purchase Payment Credits upon a contract owner's cancellation of the contract pursuant to the contractual free-look provisions; and
b. provide for the recapture of 3% and 4% Credits for 7 contract years, regardless of whether the contract owner elects a CDSC-reducing option.
1. Section 6(c) of the 1940 Act authorizes the Commission to exempt any person, security or transaction, or any class or classes of persons, securities or transactions from the provisions of the 1940 Act and the rules promulgated thereunder if and to the extent that 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 1940 Act. Applicants request that the Commission issue an order pursuant to section 6(c) of the 1940 Act granting the exemptions outlined herein with respect to the New Contracts funded by VA-II that are issued by Nationwide and underwritten or distributed by NISC. Applicants also request the relief under the order to extend to any of the Other Separate Accounts of Nationwide and to any other NASD registered broker/dealers under common control with Nationwide which may in the future serve as general distributor-principal underwriter of VA-II or Other Separate Accounts that offer or support variable annuity contracts that are substantially similar in all material respects to those described in the Application. Applicants represent that any such future contracts funded by VA-II or Other Separate Accounts will be substantially similar in all material respects to the New Contracts described herein. Applicants believe that the requested exemptions are appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act.
2. Applicants represents that the charges associated with the respective Extra Value Options are consistent with the requirements of section 26(e)(A)(2) of the 1940 Act. Section 26(e)(A)(2) provides that it is unlawful for registered separate accounts or sponsoring insurance companies to sell any variable insurance contract “unless the fees and charges deducted under the contract, in the aggregate, are reasonable in relation to the services rendered, the expenses expected to be incurred, and the risks assumed by the insurance company.” Because the Credits associated with the Extra Value Options will be funded from Nationwide's general account, the Credits create an expense for Nationwide. In addition, the risk of not recovering that expense is substantial in light of the fact that under several different contingencies, the Credit will be fully or partially vested, and thus may be withdrawn from the contract, long before the expense associated with furnishing the Credit has been recouped. Accordingly, Applicants represent that the charges associated with the Extra Value Options, in addition to the basic Variable Account Charge applicable to each contract, are reasonable and therefore consistent with the requirements of section 26(e)(2)(A) of the 1940 Act. A similar representation will be made in the registration statements for the contracts, as required under section 26(e)(2)(A). Applicants also submit that the risk of not recovering the expense associated with rider options is substantially diminished if the contract value, including the Credit, is not surrendered or otherwise distributed prior to the end of the 7th contract year. Thus, the elimination of the rider option charge is entirely warranted and will benefit contract owners.
3. Applicants represent that it is not administratively feasible to track the Credit amounts in VA-II after the Credits are applied. Accordingly, the asset-based charges associated with the Extra Value Options will be assessed against the entire amounts held in VA-II for 7 contract years for Contracts A, B, and C, and for 8 contract years for Contract D.
4. Subsection (i) of section 27 provides that section 27 does not apply to any registered separate account funding variable insurance contracts, or to the sponsoring insurance company and principal underwriter of such account, except as provided in paragraph (2) of the subsection. Paragraph (2) provides that it shall be unlawful for any registered separate account funding variable insurance contracts or a sponsoring insurance company of such account to sell a contract funded by the registered separate account unless, among other things, such contract is a redeemable security. Section 2(a)(32) defines “redeemable security” as any security, other than short-term paper, under the terms of which the holder, upon presentation to the issuer, is entitled to receive approximately his or her proportionate share of the issuer's current net assets, or the cash equivalent thereof.
5. Applicants submit that recapturing the Credit will not deprive an owner of his or her proportionate share of VA-II's current net assets. Applicants state that an owner's interest in the Credit allocated to his or her contract value is not entirely vested until the end of the 7th contract year. Until the Credit is vested, Applicants submit that Nationwide retains the right and interest in the Credit, although not in any earnings attributable to the Credit.
6. Furthermore, Applicants state that permitting a contract owner to retain the Credit upon cancellation of the contract pursuant to the contractual free-look privilege would be unfair and would encourage individuals to purchase a contract with the intention of retaining the credited amount for an unjustified profit at Nationwide's expense. Furthermore, the recapture of the Credit is designed to protect Nationwide when a contract owner takes partial or full surrender of the contract shortly after the Credit is applied, leaving Nationwide insufficient time to recover the cost of the Credit.
7. Applicants assert that the Extra Value Option will be attractive to and in the interest of investors because it will permit owners to have an additional 3% or 4% of purchase payments remitted during the first twelve months invested in selected investment options from the date the purchase payment is received. Also, any earnings attributable to the Credit will be retained by the contract owner in addition to the principal amount of the Credit, provided the contingencies set forth in this Application are satisfied. Finally, Applicants believe that the Extra Value Option will be particularly attractive to and in the interest of long-term investors due to the elimination of the charge after 7 contract years for Contracts A, B, and C, and after 8 contract years for Contract D. Applicants assert that the elimination of the Extra Value Option charge will allow prospective purchasers to assess the value of the Extra Value Option, and elect or decline it, based on their particular circumstances, preferences and expectations.
8. Applicants submit that recapturing the Purchase Payment Credit will not deprive an owner of his or her proportionate share of VA-II's current net assets. Applicants state that an owner's interest in the Purchase Payment Credit allocated to his or her contract value is not entirely vested until the end of the contractual free-look period. Until the Purchase Payment Credit is vested, Applicants submit that Nationwide retains the right and interest in the Purchase Payment Credit, although not in any earnings attributable to the Purchase Payment Credit. Applicants argue that when Nationwide recaptures a Purchase Payment Credit, it is merely retrieving its own assets, and the contract owner is not deprived of his or her proportionate share of separate account assets because his/her interest in the Purchase Payment Credit has not vested.
9. Furthermore, Applicants state that permitting a contract owner to retain the Purchase Payment Credit upon cancellation of the contract pursuant to the contractual free-look privilege would be unfair and would encourage individuals to purchase a contract with the intention of retaining the credited amount for an unjustified profit at Nationwide's expense.
10. Applicants assert that Purchase Payment Credits recognize the efficiencies associated with issuing and administering contracts with higher aggregate purchase payments, and are thus attractive to, and in the best interest of, certain purchasers.
11. Applicants submit that the provisions for recapture of the Credit and the Purchase Payment Credit under the contracts do not violate section 2(a)(32) and 27(i)(2)(A) of the 1940 Act. Nevertheless, to avoid any possible uncertainties, Applicants request an exemption from those sections, to the extent deemed necessary to permit the recapture of any Credit or Purchase Payment Credit under the circumstances described herein with respect to the New Contracts and any future contracts issued in conjunction with VA-II or any Other Separate Accounts without loss of the relief from section 27 provided by section 27(i).
12. Section 22(c) of the 1940 Act authorizes the Commission to make rules and regulations applicable to registered investment companies and to principal underwriters of, and dealers in, the redeemable securities of any registered investment company to accomplish the same purposes as contemplated by section 22(a). Rule 22c-1 thereunder prohibits a registered investment company issuing any redeemable security, a person designated in such issuer's prospectus as authorized to consummate transactions in any such security, and a principal underwriter of, or dealer in, such security, from selling, redeeming, or repurchasing any such security except at a price based on the current net asset value of such security which is next computed after receipt of a tender of such security for redemption or of an order to purchase or sell such security.
13. It could be argued that Nationwide's recapture of the Credit and/or the Purchase Payment Credit constitutes a redemption of securities for a price other than one based on the current net asset value of the separate accounts. Applicants contend, however, that recapture of these credits does not violate section 22(c) and Rule 22c-1. Applicants argue that such recapture does not involve either of the evils or harmful events that Rule 22c-1 was intended to eliminate or reduce, namely: (1) The dilution of the value of outstanding redeemable securities of registered investment companies through their sale at a price below net asset value or their redemption or repurchase at a price above it, and (2) other unfair results including speculative trading practices. These evils were the result of backward pricing, the practice of pricing a mutual fund share based on the per share net asset value determined as of the close of the market on the previous day. Backward pricing diluted the value of outstanding mutual fund shares by allowing investors to take advantage of increases or decreases in net asset value that were not yet reflected in the mutual fund share price. Applicants submit that the recapture of Credits and Purchase Payment Credits described herein does not pose such a threat of dilution. To recapture any credit, Nationwide will redeem contract owners' interests in the sub-accounts at a price determined on the basis of current sub-account accumulation unit values. In no event will the amount recaptured be more than the amount of the Credit or Purchase Payment Credit that Nationwide paid out of its general account. Although Contract owners will be entitled to retain any investment gain attributable to a credit, the amount of such gain will be determined on the basis of the current net asset value of the respective sub-account. Thus, no dilution will occur upon the recapture of the Credit or Purchase Payment Credit.
14. Applicants also submit that the second harm that Rule 22c-1 was designed to address, namely, speculative trading practices calculated to take advantage of backward pricing, will not occur as a result of the recapture of the Credit or Purchase Payment Credit.
15. To avoid any uncertainty as to full compliance with the 1940 Act, Applicants request an exemption from the provisions of section 22(c) and Rule 22c-1 to the extent deemed necessary to permit them to recapture the Credit and the Purchase Payment Credit under the contracts and any future contracts (that are substantially similar in all material respects to the contracts described herein) issued in conjunction with VA-II or any Other Separate Accounts.
Applicants submit that their request for an amended Order is appropriate in the public interest. Applicants state that such an amended Order would promote competitiveness in the variable annuity market by eliminating the need to file redundant exemptive applications, thereby reducing administrative expenses and maximizing the efficient use of Applicants' resources. Applicants argue that investors would not receive any benefit or additional protection by requiring Applicants to repeatedly seek exemptive relief that would present no issue under the 1940 Act that has not already been addressed in the Application described herein. Applicants submit that filing additional applications would impair their ability to effectively take advantage of business opportunities as they arise. Furthermore, Applicants state that if they were repeatedly required to seek exemptive relief with respect to the same issues addressed in the Application described herein, investors would not receive any benefit or additional protection thereby.
Applicants further submit, based on the grounds summarized above, that their exemptive request meets the standards set out in section 6(c) of the 1940 Act, namely, that the exemptions requested are 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 1940 Act, and that, therefore, the Commission should grant the requested amended Order.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On August 16, 2002, the National Association of Securities Dealers, Inc. (“NASD” or “Association”), through its subsidiary, The Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder,
The Commission believes that the proposed rule change, as amended, promotes the objectives of these sections of the Act. The Commission notes that Nasdaq is an important component of the National Market System and that a serious disruption in the operation of Nasdaq systems could have a significant deleterious impact on the U.S. and global financial markets. The proposed rule change will promote the objectives of the Act by establishing procedures that should help prevent a serious disruption to Nasdaq systems. Specifically, the proposal should provide Nasdaq with an effective tool for identifying and excluding individuals whose prior criminal activities may pose a threat to the security of Nasdaq operations.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State, (telephone: 202/619-6981). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Based upon a review of the Administrative Record assembled in this matter and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that there is a sufficient factual basis to find that the relevant circumstances described in section 219 of the Immigration and Nationality Act, as amended (hereinafter “INA”), exist with respect to Lashkar i Jhangvi. Therefore, I intend to designate that organization as a foreign terrorist organization pursuant to section 219(a) of the INA.
This designation shall be published in the
Tennessee Valley Authority.
Submission for OMB review; comment request.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C chapter 35, as amended). The Tennessee Valley Authority is soliciting public comments on this proposed collection as provided by 5 CFR 1320.8(d)(1). Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Agency Clearance Officer: Wilma H. McCauley, Tennessee Valley Authority, 1101 Market Street (EB 5B), Chattanooga, Tennessee 37402-2801; (423) 751-2523.
Comments should be sent to OMB Office of Information & Regulatory Affairs, Attention: Desk Officer for Tennessee Valley Authority, no later than March 3, 2003.
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 200/EUROCAE Working Group 60 meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 200/EUROCAE Working Group 60: Modular Avionics.
The meeting will be held February 19-21, 2003 starting at 9 am.
The meeting will he held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC 20036.
(1) RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC, 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. appendix 2), notice is hereby given for a Special Committee 200/EUROCAE Working Group 60 meeting. The agenda will include:
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of final policy.
The Federal Aviation Administration (FAA) announces the availability of final policy concerning certification of strengthened flightdeck doors.
This final policy was issued by the Transport Airplane Directorate on September 6, 2002.
Jeff Gardlin, Federal Aviation Administration, Transport Airplane Directorate, Transport Standards Staff, Airframe/Cabin Safety Branch, ANM-115, 1601 Lind Avenue SW., Renton, WA 98055-4056; telephone (425) 227-2136; fax (425) 227-1320; e-mail:
A notice of final policy; request for comments was published in the
The final policy provides all transport category airplane programs an acceptable method of compliance with 14 CFR part 25 for intrusion resistance and ballistic protection of flightdeck doors. The Frequently Asked Questions (FAQ) section has also been updated.
The final policy as well as the disposition of public comments are available on the Internet at the following address:
Notice and Request for Comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Maritime Administration's (MARAD's) intentions to request extension of approval for three years of a currently approved information collection.
Comments should be submitted on or before March 31, 2003.
Taylor E. Jones II, Maritime Administration (MAR-630), 400 Seventh St., SW., Washington, DC 20590. Telephone: 202-366-2323; FAX: 202-493-2180, or e-mail:
By order of the Maritime Administrator.
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before March 3, 2003.
Joe Strassburg, Maritime Administration (MAR-782), 400 Seventh Street, SW., Washington, DC 20590. Telephone: 202-366-4161; FAX: 202-366-7901 or e-mail:
Maritime Administration (MARAD).
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention MARAD Desk Officer.
A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.
Departmental Offices, Treasury.
Notice.
This notice advises the public how it may access the Treasury Department's annual reports on alternative fuel vehicle acquisitions for FY 1999-2001.
Carolyn Austin-Diggs, Director, Office of Asset Management, 202-622-0500 (not a toll-free call).
In accordance with section 8 of the Energy Policy Act, Pub. L. 105-388, as amended (42 U.S.C. 13218), the Department of the Treasury gives notice that the Department's annual reports on alternative fuel vehicle acquisitions for FY 1999-2001 are available at the following website:
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 31, 2003.
Submit written comments on the collection of information to Ann W. Bickoff (193B1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Ann Bickoff at (202) 273-8310.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C., 3501-3520), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of
a. Special Emphasis Programs Conducted at Headquarters—72,882 hours.
b. Local Facilities Surveys (VA Medical Facilities)—35,735 hours.
a. Special Emphasis Programs Conducted at Headquarters—18 minutes.
b. Local Facilities Surveys (VA Medical Facilities)—16 minutes.
a. Special Emphasis Programs Conducted at Headquarters—241,312.
b. Local Facilities Surveys (VA Medical Facilities)—136,229.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 31, 2003.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C., 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C., 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 31, 2003.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C., 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before March 3, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0208” in any correspondence.
a. VA Form 10-6131, Daily Log—Formal Contract.
b. VA Form 10-6298, Architect—Engineer Fee Proposal.
a. VA Form 10-6131 is used by contractors to record the data necessary to assure that sufficient labor and materials were used to accomplish the contract work.
b. VA Form 10-6298 is used by architect-engineering firms to submit a fee proposal to VA on the scope and complexity of an individual project.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
a. VA Form 10-6131—3,600.
b. VA Form 10-6298—1,000.
a. VA Form 10-613—12 minutes.
b. VA Form 10-6298—4 hours.
a. VA Form 10-6131—18,000.
b. VA Form 10-6298—250.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before March 3, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0121” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before March 3, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW, or e-mail
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0132” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before March 3, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0610” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Advisory Committee on Homeless Veterans will be held from Thursday, February 20, 2003, through Friday, February 21, 2003, from 8:30 a.m. until 4 p.m. each day. The meeting will be held at the Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 730, Washington, DC 20420. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs with an on-going assessment of the effectiveness of the policies, organizational structures, and services of the Department in assisting homeless veterans. The Committee shall assemble and review information relating to the needs of homeless veterans and provide on-going advice on the most appropriate means of providing assistance to homeless veterans. The Committee shall assemble and review information relating to the needs of homeless veterans and provide on-going advice on the most appropriate means of providing assistance to homeless veterans. The Committee will make recommendations to the Secretary regarding such activities.
On February 20, the Committee will review information about efforts to coordinate services and increase veteran access to homeless services from VA and other health and benefits programs and review new draft recommendations to assist veterans. On February 21, the Committee will continue its review and discussion of its draft recommendations to the Secretary.
Those wishing to attend the meeting should contact Mr. Pete Dougherty,
By Direction of the Secretary.
Securities and Exchange Commission.
Final rule.
As directed by the Sarbanes-Oxley Act of 2002, we are adopting new rules and amendments to address public companies' disclosure or release of certain financial information that is calculated and presented on the basis of methodologies other than in accordance with generally accepted accounting principles (GAAP). We are adopting a new disclosure regulation, Regulation G, which will require public companies that disclose or release such non-GAAP financial measures to include, in that disclosure or release, a presentation of the most directly comparable GAAP financial measure and a reconciliation of the disclosed non-GAAP financial measure to the most directly comparable GAAP financial measure. We also are adopting amendments to Item 10 of Regulation S-K and Item 10 of Regulation S-B to provide additional guidance to those registrants that include non-GAAP financial measures in Commission filings. Additionally, we are adopting amendments to Form 20-F to incorporate into that form the amendments to Item 10 of Regulation S-K. Finally, we are adopting amendments that require registrants to furnish to the Commission, on Form 8-K, earnings releases or similar announcements.
Effective Date: March 28, 2003. Compliance Dates: Regulation G will apply to all subject disclosures as of March 28, 2003. The requirement to furnish earnings releases and similar materials to the Commission on Form 8-K will apply to earnings releases and similar announcements made after March 28, 2003. The amendments to Item 10 of Regulation S-K, Item 10 of Regulation S-B and Form 20-F will apply to any annual or quarterly report filed with respect to a fiscal period ending after March 28, 2003.
Joseph P. Babits or Craig Olinger, at (202) 942-2910, Division of Corporation Finance, U.S. Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0402.
We are adopting new Regulation G.
On July 30, 2002, President Bush signed into law the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley Act).
We are adopting the proposals relating to the use of non-GAAP financial measures substantially as proposed.
•
• Regulation G will not apply to a non-GAAP financial measure included in disclosure relating to a proposed business combination, the entity resulting therefrom or an entity that is a party thereto if the disclosure is contained in a communication that is subject to the communications rules applicable to business combination transactions;
• The safe harbor from the application of Regulation G for disclosure of non-GAAP financial measures by foreign private issuers outside of the United States will make clearer that Regulation G does not apply to written communications released in the United States, as well as outside the United States, so long as the communication is released in the United States contemporaneously with or after its release outside the United States and is not otherwise targeted at persons located in the United States;
• The reference to “comparable [GAAP] financial measure or measures” will read “most directly comparable [GAAP] financial measure or measures”; and
• The definition of GAAP for purposes of financial measures prepared by foreign private issuers will be further clarified.
•
• These items will not include a prohibition on “non-GAAP per share measures” in documents filed with the Commission;
• These items will not apply to a non-GAAP financial measure included in disclosure relating to a proposed business combination, the entity resulting therefrom or an entity that is a party thereto if the disclosure is contained in a communication that is subject to the communications rules applicable to business combination transactions;
• The reference to “comparable [GAAP] financial measure or measures” will read “most directly comparable [GAAP] financial measure or measures”;
• The required quantitative reconciliation will include the same exception for forward-looking non-GAAP financial measures as in Regulation G;
• The measures EBIT (earnings before interest and taxes) and EBITDA (earnings before interest, taxes, depreciation, and amortization) will be exempted specifically from the prohibition on excluding charges or liabilities that required, or will require, cash settlement, or would have required cash settlement absent an ability to settle in another manner, from non-GAAP liquidity measures;
• The prohibition on adjusting a non-GAAP performance measure to eliminate or smooth items identified as non-recurring, infrequent or unusual, when the nature of the charge or gain is such that it is reasonably likely to recur will make clear that such an adjustment is prohibited only when (1) the nature of the charge or gain is such that it is reasonably likely to recur within two years,
• The definition of GAAP for purposes of financial measures prepared by foreign private issuers will be further clarified.
•
• “Non-GAAP financial measures” will not include financial measures that are required to be disclosed by GAAP, Commission rules or a system of regulation that is applicable to a registrant.
•
• The Form 8-K requirement with respect to earnings releases and similar announcements will require that those materials be “furnished to,” rather than “filed with,” the Commission.
We are adopting new Regulation G substantially as proposed. Regulation G will apply whenever a company publicly discloses or releases material information that includes a non-GAAP financial measure.
Regulation G applies to any entity that is required to file reports pursuant to Sections 13(a) or 15(d) of the Exchange Act, other than a registered investment company.
Regulation G applies to registrants that are foreign private issuers,
• The securities of the foreign private issuer are listed or quoted on a securities exchange or inter-dealer quotation system outside the United States;
• The non-GAAP financial measure is not derived from or based on a measure calculated and presented in accordance with generally accepted accounting principles in the United States; and
• The disclosure is made by or on behalf of the foreign private issuer outside the United States, or is included in a written communication that is released by or on behalf of the foreign private issuer outside the United States.
These conditions focus on whether the financial measure relates to U.S. GAAP and whether the disclosure is made by or on behalf of the foreign private issuer outside of the United States. We believe these conditions appropriately take into account the interests of U.S. investors (including both the interests reflected in the Sarbanes-Oxley Act and the interest of receiving information that is communicated globally) and the interests of foreign private issuers in communicating globally, including in their home markets.
Therefore, we believe that the worldwide availability of information properly disclosed outside the United States and the interests of U.S. investors in information communicated by, or on behalf of, the issuer outside the United States dictate that the exception for foreign private issuers should continue to apply even where any one or more of the following circumstances are present:
• A written communication is released in the United States as well as outside the United States, so long as the communication is released in the United States contemporaneously with or after the release outside the United States and is not otherwise targeted at persons located in the United States;
• Foreign journalists, U.S. journalists or other third parties have access to the information;
• The information appears on one or more web sites maintained by the registrant, so long as the web sites, taken together, are not available exclusively to, or targeted at, persons located in the United States; or
• Following the disclosure or release of the information outside the United States, the information is included in a submission to the Commission made under cover of a Form 6-K.
As proposed, Regulation G would have applied to disclosures of non-GAAP financial measures that represent projections or forecasts of results of proposed business combination transactions. We sought comment specifically on this point, and several of the comment letters we received in response to the proposal argued strongly that Regulation G should not apply to these measures.
For purposes of Regulation G, a non-GAAP financial measure is a numerical measure of a registrant's historical or future financial performance, financial position or cash flows that:
• Excludes amounts, or is subject to adjustments that have the effect of excluding amounts, that are included in the most directly comparable measure calculated and presented in accordance with GAAP in the statement of income, balance sheet or statement of cash flows (or equivalent statements) of the issuer; or
• Includes amounts, or is subject to adjustments that have the effect of including amounts, that are excluded from the most directly comparable measure so calculated and presented.
The proposed version of Regulation G indicated that, with respect to foreign private issuers whose primary financial statements are prepared in accordance with non-U.S. generally accepted accounting principles, references to
We do not intend the definition of “non-GAAP financial measures” to capture measures of operating performance or statistical measures that fall outside the scope of the definition set forth above. As such, non-GAAP financial measures do not include:
• Operating and other statistical measures (such as unit sales, numbers of employees, numbers of subscribers, or numbers of advertisers); and
• Ratios or statistical measures that are calculated using exclusively one or both of:
• Financial measures calculated in accordance with GAAP; and
• Operating measures or other measures that are not non-GAAP financial measures.
Non-GAAP financial measures do not include financial information that does not have the effect of providing numerical measures that are different from the comparable GAAP measure. Examples of measures to which Regulation G does not apply include the following:
• Disclosure of amounts of expected indebtedness, including contracted and anticipated amounts;
• Disclosure of amounts of repayments that have been planned or decided upon but not yet made;
• Disclosure of estimated revenues or expenses of a new product line, so long as such amounts were estimated in the same manner as would be computed under GAAP; and
• Measures of profit or loss and total assets for each segment required to be disclosed in accordance with GAAP.
We do intend that the definition of non-GAAP financial measure capture all measures that have the effect of depicting either:
• A measure of performance that is different from that presented in the financial statements, such as income or loss before taxes or net income or loss, as calculated in accordance with GAAP; or
• A measure of liquidity that is different from cash flow or cash flow from operations computed in accordance with GAAP.
An example of a non-GAAP financial measure would be a measure of operating income
An example of a ratio that would not be a non-GAAP financial measure would be a measure of operating margin that is calculated by dividing revenues into operating income, where both revenue and operating income are calculated in accordance with GAAP. Conversely, an example of a ratio that would be a non-GAAP financial measure would be a measure of operating margin that is calculated by dividing revenues into operating income, where either revenue or operating income, or both, were not calculated in accordance with GAAP.
We received comment regarding the exclusion of financial measures used for regulatory purposes from the definition.
Regulation G contains a general disclosure requirement and a specific requirement of a reconciliation of the non-GAAP financial measure to the most directly comparable GAAP financial measure.
Regulation G includes the general disclosure requirement that a registrant, or a person acting on its behalf, shall not make public a non-GAAP financial measure that, taken together with the information accompanying that measure, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the presentation of the non-GAAP financial measure, in light of the circumstances under which it is presented, not misleading.
Whenever a company that is subject to Regulation G, or a person acting on its behalf, publicly discloses any material information that includes a non-GAAP financial measure, Regulation G requires the registrant to provide the following information as part of the disclosure or release of the non-GAAP financial measure:
• A presentation of the most directly comparable financial measure calculated and presented in accordance with GAAP;
• A reconciliation (by schedule or other clearly understandable method), which shall be quantitative for historic measures and quantitative, to the extent available without unreasonable efforts, for prospective measures, of the differences between the non-GAAP financial measure presented and the most directly comparable financial measure or measures calculated and presented in accordance with GAAP.
If a non-GAAP financial measure is released orally, telephonically, by webcast, by broadcast, or by similar means, the registrant may provide the accompanying information required by Regulation G by: (1) Posting that information on the registrant's web site; and (2) disclosing the location and availability of the required accompanying information during its presentation.
With regard to the quantitative reconciliation of non-GAAP financial measures that are forward-looking, Regulation G requires a schedule or other presentation detailing the differences between the forward-looking non-GAAP financial measure and the appropriate forward-looking GAAP financial measure. If the GAAP financial measure is not accessible on a forward-looking basis, the registrant must disclose that fact and provide reconciling information that is available without an unreasonable effort. Furthermore, the registrant must identify information that is unavailable and disclose its probable significance.
Some commenters suggested that we define “public” disclosure and persons acting “on behalf of” a registrant.
We understand, and indeed intend, that Regulation FD and Regulation G will operate in tandem. A “private” communication of material, non-public information to, for example, an analyst or a shareholder triggers a requirement for broad public disclosure under Regulation FD. If that public disclosure is of material information containing a non-GAAP financial measure, Regulation G will apply to that disclosure.
Rule 102 of Regulation G
Section 3(b) of the Sarbanes-Oxley Act provides that a violation of that Act or the Commission's rules thereunder shall be treated for all purposes as a violation of the Exchange Act. Therefore, if an issuer, or any person acting on its behalf, fails to comply with Regulation G, the issuer and/or the person acting on its behalf could be subject to a Commission enforcement action alleging violations of Regulation G. Additionally, if the facts and circumstances warrant, we could bring an action under both Regulation G and Rule 10b-5.
We are amending Item 10 of Regulation S-K and Item 10 of Regulation S-B to include a statement concerning the use of non-GAAP financial measures in filings with the Commission. The amendments do not apply to registered investment
We are amending Exchange Act Form 20-F to incorporate Item 10 of Regulation S-K. Accordingly, foreign private issuers will be subject to the same requirements as domestic issuers with respect to the use of non-GAAP financial measures in filings with the Commission on Form 20-F.
As noted above, the definition of “non-GAAP financial measure” is the same for purposes of these amendments as for Regulation G. However, a non-GAAP financial measure that would otherwise be prohibited will be permitted in a Form 20-F filing of a foreign private issuer if the measure is (1) required or expressly permitted by the standard-setter that establishes the generally accepted accounting principles used in the foreign private issuer's primary financial statements and (2) included in the foreign private issuer's annual report or financial statements used in its home country jurisdiction or market.
The amendments to Item 10 of Regulation S-K and Item 10 of Regulation S-B require registrants using non-GAAP financial measures in filings with the Commission to provide:
• A presentation, with equal or greater prominence, of the most directly comparable financial measure calculated and presented in accordance with GAAP;
• A reconciliation (by schedule or other clearly understandable method), which shall be quantitative for historical non-GAAP measures presented, and quantitative, to the extent available without unreasonable efforts, for forward-looking information, of the differences between the non-GAAP financial measure disclosed or released with the most directly comparable financial measure or measures calculated and presented in accordance with GAAP;
• A statement disclosing the reasons why the registrant's management believes that presentation of the non-GAAP financial measure provides useful information to investors regarding the registrant's financial condition and results of operations;
• To the extent material, a statement disclosing the additional purposes, if any, for which the registrant's management uses the non-GAAP financial measure that are not otherwise disclosed.
In addition to these mandated disclosure requirements, amended Item 10 of Regulation S-K and Item 10 of Regulation S-B prohibit the following:
• Excluding charges or liabilities that required, or will require, cash settlement, or would have required cash settlement absent an ability to settle in another manner, from non-GAAP liquidity measures, other than the measures EBIT and EBITDA;
• Adjusting a non-GAAP performance measure to eliminate or smooth items identified as non-recurring, infrequent or unusual, when (1) the nature of the charge or gain is such that it is reasonably likely to recur within two years, or (2) there was a similar charge or gain within the prior two years;
• Presenting non-GAAP financial measures on the face of the registrant's financial statements prepared in accordance with GAAP or in the accompanying notes;
• Presenting non-GAAP financial measures on the face of any pro forma financial information required to be disclosed by Article 11 of Regulation S-X; and
• Using titles or descriptions of non-GAAP financial measures that are the same as, or confusingly similar to, titles or descriptions used for GAAP financial measures.
The requirements and prohibitions for filed information are more extensive and detailed than those of Regulation G. The additional requirements and prohibitions are generally consistent with the staff's historical practice in situations where it has reviewed filings containing non-GAAP financial measures.
Commenters expressed the concern that the prohibition on excluding from non-GAAP liquidity measures charges or liabilities that required, or will require, cash settlement, or would have required cash settlement absent an ability to settle in another manner, would prohibit the use of the non-GAAP financial measure EBITDA.
We had proposed that the requirements for a reconciliation to the most directly comparable GAAP financial measure be slightly more stringent than those set forth under Regulation G. In particular, in filings
As proposed, Item 10 of Regulation S-K and Item 10 of Regulation S-B would have included a prohibition on the use of “non-GAAP per share financial measures.” We received significant comment expressing concern with this part of the proposal.
Some commenters were of the view that the proposed requirements of (1) a statement regarding the purposes for which management uses the non-GAAP financial measure and (2) a statement of the utility of the non-GAAP financial measure to investors would likely result in duplicative disclosure.
The required statements of the purposes for which management uses the non-GAAP financial measure and the utility of the information to investors should not be boilerplate. We intend these statements to be clear and understandable. We also intend these statements to be specific to the non-GAAP financial measure used, the registrant, the nature of the registrant's business and industry, and the manner in which management assesses the non-GAAP financial measure and applies it to management decisions.
We are amending Form 8-K to add new Item 12, “Disclosure of Results of Operations and Financial Condition.”
Item 12 requires registrants to furnish to the Commission a Form 8-K within five business days of any public announcement or release disclosing material non-public information regarding a registrant's results of operations or financial condition for an annual or quarterly fiscal period that has ended.
Repetition of information that was publicly disclosed previously or the release of the same information in a different form (for example in an interim or annual report to shareholders) would not trigger the Item 12 requirement. This result would not
Item 12 includes an exception from its requirements where non-public information is disclosed orally, telephonically, by webcast, by broadcast, or by similar means in a presentation that is complementary to, and occurs within 48 hours after, a related, written release or announcement that triggers the requirements of Item 12.
• The related, written release or announcement has been furnished to the Commission on Form 8-K pursuant to Item 12 prior to the presentation;
• The presentation is broadly accessible to the public by dial-in conference call, webcast or similar technology;
• The financial and statistical information contained in the presentation is provided on the registrant's web site, together with any information that would be required under Regulation G;
• The presentation was announced by a widely disseminated press release that included instructions as to when and how to access the presentation and the location on the registrant's web site where the information would be available.
Item 12 of Form 8-K will apply only to publicly disclosed or released material non-public information concerning an annual or quarterly fiscal period that has ended. While such disclosure may also include forward-looking information, it is the material information about the completed fiscal period that triggers Item 12. Accordingly, Item 12 will not apply to public disclosure of earnings estimates for future or ongoing fiscal periods, unless those estimates are included in the public announcement or release of material non-public information regarding an annual or quarterly fiscal period that has ended.
As proposed, Item 12 would have required registrants to “file” a Form 8-K meeting the requirements of Item 12. This proposal was in contrast to Item 9 of Form 8-K, which permits registrants to “furnish” a Form 8-K to the Commission. The most significant implications of “furnishing” a Form 8-K to the Commission, rather than “filing” a Form 8-K with the Commission are clear:
• Information that is “furnished to the Commission” in such a Form 8-K is not subject to Section 18
• Information that is “furnished to the Commission” in such a Form 8-K is not incorporated by reference into a registration statement, proxy statement or other report unless the registrant specifically incorporates that information into those documents by reference; and
• Information that is “furnished to the Commission” in such a Form 8-K is not subject to the requirements of amended Item 10 of Regulation S-K or Item 10 of Regulation S-B, while “filed” information would be subject to those requirements.
We have considered the views of commenters that requiring earnings releases to be filed would have a detrimental effect on the level and quality of information that is provided to investors.
After consideration of these comments, Item 12 of Form 8-K, as adopted, requires that earnings releases or similar disclosures be furnished to the Commission rather than filed. Regulation G would, of course, apply to these releases and disclosures. In addition, to provide certain of the protections provided by the amendments to Item 10 of Regulation S-K and Item 10 of Regulation S-B to earnings releases, even if they are not filed, we have included in Item 12 of Form 8-K the requirements of paragraph (e)(1)(i) of Item 10 of Regulation S-K and paragraph (h)(1)(i) of Item 10 of Regulation S-B. As a result, in addition to the requirements already imposed by Regulation G, registrants would be required to disclose:
• The reasons why the registrant's management believes that presentation of the non-GAAP financial measure provides useful information to investors regarding the registrant's financial condition and results of operations;
• to the extent material, the additional purposes, if any, for which the registrant's management uses the non-GAAP financial measure that are not otherwise disclosed.
Registrants may satisfy this requirement by including the disclosure
Earnings releases and similar disclosures that trigger the requirements of Item 12 are also subject to Regulation FD. The application of Item 12 would differ from Regulation FD, however, in that the requirements of Item 12 would always implicate Form 8-K for those disclosures, while Regulation FD provides that Form 8-K is an alternative means of satisfying its requirements. Further, a Form 8-K furnished to the Commission pursuant to Item 9 would satisfy an issuer's obligation under Regulation FD only if the Form 8-K were furnished to the Commission within the time frame required by Regulation FD. Regulation FD could, of course, be satisfied by public disclosure other than through the filing of a Form 8-K meeting Regulation FD's requirements; in that case, Item 12 would require that a Form 8-K be furnished to the Commission within the five business day timeframe of Item 12. A Form 8-K furnished within the timeframe required by Regulation FD and otherwise satisfying the requirements of both Item 9 and Item 12 could be furnished to the Commission once, indicating that it is being furnished under both Item 9 and Item 12, and satisfy both requirements.
Regulation G and related amendments to Regulation S-K, Regulation S-B, Form 8-K and Form 20-F contain “collections of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”),
The Commission is adopting Regulation G pursuant to Section 401 of the Sarbanes-Oxley Act. Regulation G will require registrants that publicly disclose material information that includes non-GAAP financial measures to provide a reconciliation to the most directly comparable GAAP financial measures. Regulation G is intended to implement the requirements of the Sarbanes-Oxley Act. Specifically, Regulation G is intended to provide investors with balanced financial disclosure when non-GAAP financial measures are presented. Regulation G defines a non-GAAP financial measure as a numerical measure of an issuer's historical or future financial performance, financial position or cash flow that:
• Excludes amounts, or is subject to adjustments that have the effect of excluding amounts, that are included in the most directly comparable measure calculated and presented in accordance with GAAP in the statement of income, balance sheet or statement of cash flows (or equivalent statements) of the issuer; or
• Includes amounts, or is subject to adjustments that have the effect of including amounts, that are excluded from the most directly comparable measure calculated and presented in accordance with GAAP.
Regulation S-K (OMB Control No. 3235-0071) and Regulation S-B (OMB Control No. 3235-0417) prescribe disclosure requirements that registrants must follow when filing registration statements, reports and schedules with the Commission. Our amendments to Item 10 of Regulation S-K and Item 10 of Regulation S-B incorporate the requirements of Regulation G and codify existing staff interpretations. Because the collection of information regarding the reconciliation is already being accounted for in Regulation G, we do not believe that adding the same requirement to Item 10 of Regulation S-K and Item 10 of Regulation S-B creates an additional collection of information within the meaning of the PRA. To account for the reconciliation in both Regulation G and Item 10 or Regulation S-K and Item 10 of Regulation S-B would result in double counting. Additionally, companies already, usually and customarily, disclose the purposes for which the registrant's management uses the non-GAAP financial measure and why it believes that its presentation of the non-GAAP financial measure provides useful information to investors. Accordingly, we continue to believe that our amendments to Item 10 of Regulation S-K and Item 10 of Regulation S-B do not contain a new “collection of information” or alter the existing burden of these collections of information within the meaning of the PRA.
Form 8-K (OMB Control No. 3235-0060) prescribes information, such as material events or corporate changes that a registrant must disclose. Item 12 of Form 8-K requires a company that publicly discloses material information regarding its actual or expected quarterly or annual results of operations or financial condition for a completed fiscal period to furnish the text of the public disclosure and any accompanying analysis. Item 12 of Form 8-K does not require companies to actually issue an earnings announcement or release but only requires that it be furnished if they choose to issue an earnings announcement or release. Item 12 will bring earnings announcements and releases into the formal disclosure system although they would not be deemed filed or, absent additional action by the registrant, incorporated into registration statements or proxy statements filed with the Commission. The Forms 8-K would be available to investors on a widespread basis on our Internet Web site.
Item 12 of Form 8-K was modified from our proposing release in that the Form 8-K is no longer considered to be filed with the Commission but, rather, it would be considered furnished to the Commission. This change does not, however, alter the paperwork burden. We estimate, for purposes of the PRA, the burden associated with actually furnishing the Form 8-K to be minimal.
We have amended Form 20-F (OMB Control Number 3235-0288) to incorporate our amendments to Item 10 of Regulation S-K. While Regulation G provides a limited exception for foreign private issuers, this exception would not apply to their Form 20-F filings or any disclosure of non-GAAP financial measures made in the United States. Accordingly, we do not believe our amendment to Form 20-F would result in an additional collection of information as any burden is already accounted for in Regulation G.
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. Compliance with the disclosure requirements is mandatory. There is no mandatory retention period for the information disclosed, and responses to the disclosure requirements will not be kept confidential.
The Sarbanes-Oxley Act seeks to enhance the financial disclosure of public companies. In furtherance of this goal, the Sarbanes-Oxley Act has required the Commission, among other things, to adopt rules requiring that if a company publicly discloses non-GAAP financial measures or includes them in a Commission filing, the company must reconcile those non-GAAP financial measures to a company's financial condition and results of operations under GAAP. Moreover, the Sarbanes-Oxley Act requires that any public disclosure of a non-GAAP financial measure not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the non-GAAP financial measure, in light of circumstances under which it is presented, not misleading. Additionally, the Sarbanes-Oxley Act seeks to have companies that report under Sections 13(a) and 15(d) of the Exchange Act disclose to the public on a rapid and current basis information concerning material changes in their financial condition or operations.
New Regulation G and the amendments to Item 10 of Regulation S-K, Item 10 of Regulation S-B and Form 20-F will fulfill the statutory directive under Section 401(b) of the Sarbanes-Oxley Act. We recognize that any implementation of the Sarbanes-Oxley Act would likely result in costs as well as benefits and have an effect on the economy. We are sensitive to the costs and benefits. While our proposals received significant public comment, no commenter provided any quantitative data on costs or benefits.
Regulation G and the amendments to our rules are intended to ensure that investors and others are not misled by the use of non-GAAP financial measures. Additionally, the amendments to Form 8-K are intended to create a central depository where investors and other market participants can look to find the latest earnings announcements and releases by public companies and provide enhanced attention to those announcements and releases.
Regulation G and amendments to Item 10 of Regulations S-K and S-B require that any non-GAAP financial measure presented be reconciled with its most directly comparable financial measure prepared in accordance with GAAP. We anticipate that this reconciliation will help investors and market professionals to better evaluate the non-GAAP financial measures presented. We continue to believe that the reconciliation will provide the securities markets with additional information to more accurately evaluate companies' securities and, in turn, result in a more accurate pricing of securities.
We believe that the costs associated with the Regulation G and amendments will be minimal. As noted earlier, no commenter provided any quantitative data in their comment letters to the Commission. We contacted a sample of commenters to gather additional data about the costs associated with reconciling a non-GAAP financial measure with the most directly comparable GAAP financial measure. The commenters stated that, in most cases, for historical measures, registrants have the most directly comparable GAAP financial measure available at the time they prepare or release a non-GAAP financial measure.
Three commenters in the group that we contacted indicated that they present forward-looking non-GAAP financial measures in earnings releases. Those companies indicated that they do not have the most directly comparable GAAP financial measure available at the time they prepare their non-GAAP measure because they are unable to quantify certain amounts that would be required to be included in the GAAP measure.
We continue to estimate that public companies would have to comply with Regulation G six times a year. There are roughly 14,000 public companies. Using our estimates from the Paperwork Reduction Act section, we would expect that it would take a junior accountant roughly .5 hours to complete the required reconciliation and ensure there are no material misstatements. Accordingly, we have estimated that the total burden hours needed to comply with Regulation G would be 42,000 hours. Using cost data from the Securities Industry Association's Report on Management & Professional Earnings in the Securities Industry 2001 (SIA Report)
Most commenters had concerns with our amendments to Item 10 of Regulation S-K and Item 10 of Regulation S-B and our requirement to file their earnings release, if any, on Form 8-K. Commenters generally opposed the prohibitions of Item 10 as they would apply to their earnings release. Commenters particularly opposed the prohibition against presenting a non-GAAP per share measure. Accordingly, we have made two modifications to our proposals. First, Item 10 would no longer prohibit the presentation of a non-GAAP per share measure.
With regard to other filings with the Commission, Item 10 would continue to apply. Because the costs associated with providing a reconciliation are already being accounted for in Regulation G, we do not believe adding the same requirement to Item 10 of Regulation S-K and Item 10 of Regulation S-B incurs any incremental cost to the registrant. To account for the required reconciliation in both Regulation G and Item 10 of Regulation S-K and Item 10 of Regulation S-B would result in double counting. Additionally, because companies currently are expected to disclose the purposes for which the registrant's management uses the non-GAAP financial measure and why it believes that presentation of the non-GAAP financial measure provides useful information to investors, this aspect of the rule would not increase costs already properly being borne by registrants. Accordingly, we do not believe our amendments to Item 10 of Regulation S-K and Item 10 of Regulation S-B would result in any additional costs not already included in Regulation G or current filing requirements.
With regard to the required submission on Form 8-K, we continue to believe that personnel in finance, investor relations or corporate communications departments would most likely submit the earnings announcements or releases, as most earnings announcements are disseminated via press release. We have estimated that the actual time required to submit an earnings announcement or release on Form 8-K to be .5 hour. In estimating this time burden we note that most press releases are fairly short in length, making the actual process of filing easier. We also note that the software necessary to file a Form 8-K is available free of charge from the Commission. We have estimated that public companies would be required to comply with the required submission on Form 8-K roughly four times a year. Assuming 14,000 public companies and a total burden of .5 hour for the filing, we estimate that companies will spend 28,000 hours complying with our Form 8-K amendment. Again using the SIA Report, and adding an additional 35% for costs associated with overhead, we find that a Corporate Communications Manager, on average, earns $56.00 an hour. Accordingly, we have estimated the total salary cost associated with our amendments to Form 8-K to be $1,568,000.
Finally, our amendments to Form 20-F would incorporate Item 10 of Regulation S-K. While Regulation G provides a limited exception for foreign private issuers, this exception would not apply to their Form 20-F filing or any disclosure of non-GAAP financial measures made in the United States. Accordingly, the costs associated with our amendment to Form 20-F are already accounted for in our cost estimates for Regulation G.
Pursuant to 5 U.S.C. § 605(b), the Commission has certified that Regulation G and our amendments to Item 10 of Regulation S-B, Item 10 of Regulation S-K and Form 8-K under the Securities Act and the Exchange Act will not have a significant economic impact on a substantial number of small entities. This certification, including the basis for the certification, was included in the proposing release. We solicited comments on the potential impact of the amendments on small entities, but received none.
Section 23(a)(2) of the Exchange Act
We requested comment on any anti-competitive effects of the proposals. We did not receive any comments regarding any anti-competitive effects of the proposal. We do not believe that Regulation G or our amendments to Item 10 of Regulation S-K, Item 10 of Regulation S-B, Form 8-K or Form 20-F will have a quantifiable effect on
New Regulation G, new Item 12 to Form 8-K and the amendments to the General Instructions to Form 8-K, Item 10 of Regulation S-K, Item 10 of Regulation S-B and Form 20-F are being adopted pursuant to Sections 2(b), 6, 7, 8, 19(a), and 28 of the Securities Act of 1933, as amended, Sections 3, 4, 10, 12, 13, 15, 23, and 36 of the Securities Exchange Act of 1934, as amended, and Sections 3(a), 401, and 409 of the Sarbanes-Oxley Act.
Reporting and recordkeeping requirements, Securities, Small businesses.
Reporting and recordkeeping requirements, Securities.
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 78mm, 80a-8, 80a-29, 80a-30, 80a-37 and 80b-11.
(h)
(i) The registrant must include the following in the filing:
(A) A presentation, with equal or greater prominence, of the most directly comparable financial measure or measures calculated and presented in accordance with Generally Accepted Accounting Principles (GAAP);
(B) A reconciliation (by schedule or other clearly understandable method), which shall be quantitative for historical non-GAAP measures presented, and quantitative, to the extent available without unreasonable efforts, for forward-looking information, of the differences between the non-GAAP financial measure disclosed or released with the most directly comparable financial measure or measures calculated and presented in accordance with GAAP identified in paragraph (h)(1)(i)(A) of this section;
(C) A statement disclosing the reasons why the registrant's management believes that presentation of the non-GAAP financial measure provides useful information to investors regarding the registrant's financial condition and results of operations; and
(D) To the extent material, a statement disclosing the additional purposes, if any, for which the registrant's management uses the non-GAAP financial measure that are not disclosed pursuant to paragraph (h)(1)(i)(C) of this section; and
(ii) A registrant must not:
(A) Exclude charges or liabilities that required, or will require, cash settlement, or would have required cash settlement absent an ability to settle in another manner, from non-GAAP liquidity measures, other than the measures earnings before interest and taxes (EBIT) and earnings before interest, taxes, depreciation, and amortization (EBITDA);
(B) Adjust a non-GAAP performance measure to eliminate or smooth items identified as non-recurring, infrequent or unusual, when the nature of the charge or gain is such that it is reasonably likely to recur within two years or there was a similar charge or gain within the prior two years;
(C) Present non-GAAP financial measures on the face of the registrant's financial statements prepared in accordance with GAAP or in the accompanying notes;
(D) Present non-GAAP financial measures on the face of any pro forma financial information required to be disclosed by Article 11 of Regulation S-X (17 CFR 210.11-01 through 210.11-03); or
(E) Use titles or descriptions of non-GAAP financial measures that are the same as, or confusingly similar to, titles or descriptions used for GAAP measures; and
(iii) If the filing is not an annual report on Form 10-KSB (17 CFR 249.310b), a registrant need not include the information required by paragraphs (h)(1)(i)(C) and (h)(1)(i)(D) of this section if that information was included in its most recent annual report on Form 10-KSB or a more recent filing, provided that the required information is updated to the extent necessary to meet the requirements of paragraphs (h)(1)(i)(C) and (h)(1)(i)(D) of this section at the time of the registrant's current filing.
(2) For purposes of this paragraph (h), a non-GAAP financial measure is a numerical measure of a registrant's historical or future financial performance, financial position or cash flow that:
(i) Excludes amounts, or is subject to adjustments that have the effect of excluding amounts, that are included in the most directly comparable measure calculated and presented in accordance with GAAP in the statement of income, balance sheet or statement of cash flows (or equivalent statements) of the issuer; or
(ii) Includes amounts, or is subject to adjustments that have the effect of including amounts, that are excluded from the most directly comparable measure so calculated and presented.
(3) For purposes of this paragraph (h), GAAP refers to generally accepted accounting principles in the United States.
(4) For purposes of this paragraph (h), non-GAAP financial measures exclude:
(i) Operating and other statistical measures; and
(ii) Ratios or statistical measures calculated using exclusively one or both of:
(A) Financial measures calculated in accordance with GAAP; and
(B) Operating measures or other measures that are not non-GAAP financial measures.
(5) For purposes of this paragraph (h), non-GAAP financial measures exclude financial measures required to be disclosed by GAAP, Commission rules, or a system of regulation of a government or governmental authority or self-regulatory organization that is applicable to the registrant. However, the financial measure should be presented outside of the financial statements unless the financial measure is required or expressly permitted by the standard setter that is responsible for establishing the GAAP used in such financial statements.
(6) The requirements of paragraph (h) of this section shall not apply to a non-GAAP financial measure included in disclosure relating to a proposed business combination, the entity resulting therefrom or an entity that is a party thereto, if the disclosure is contained in a communication that is subject to § 230.425 of this chapter, § 240.14a-12 or § 240.14d-2(b)(2) of this chapter or § 229.1015 of this chapter.
15 U.S.C. 7261, 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78
(e)
(i) The registrant must include the following in the filing:
(A) A presentation, with equal or greater prominence, of the most directly comparable financial measure or measures calculated and presented in accordance with Generally Accepted Accounting Principles (GAAP);
(B) A reconciliation (by schedule or other clearly understandable method), which shall be quantitative for historical non-GAAP measures presented, and quantitative, to the extent available without unreasonable efforts, for forward-looking information, of the differences between the non-GAAP financial measure disclosed or released with the most directly comparable financial measure or measures calculated and presented in accordance with GAAP identified in paragraph (e)(1)(i)(A) of this section;
(C) A statement disclosing the reasons why the registrant's management believes that presentation of the non-GAAP financial measure provides useful information to investors regarding the registrant's financial condition and results of operations; and
(D) To the extent material, a statement disclosing the additional purposes, if any, for which the registrant's management uses the non-GAAP financial measure that are not disclosed pursuant to paragraph (e)(1)(i)(C) of this section; and
(ii) A registrant must not:
(A) Exclude charges or liabilities that required, or will require, cash settlement, or would have required cash settlement absent an ability to settle in another manner, from non-GAAP liquidity measures, other than the measures earnings before interest and taxes (EBIT) and earnings before interest, taxes, depreciation, and amortization (EBITDA);
(B) Adjust a non-GAAP performance measure to eliminate or smooth items identified as non-recurring, infrequent or unusual, when the nature of the charge or gain is such that it is reasonably likely to recur within two years or there was a similar charge or gain within the prior two years;
(C) Present non-GAAP financial measures on the face of the registrant's financial statements prepared in accordance with GAAP or in the accompanying notes;
(D) Present non-GAAP financial measures on the face of any
(E) Use titles or descriptions of non-GAAP financial measures that are the same as, or confusingly similar to, titles or descriptions used for GAAP financial measures; and
(iii) If the filing is not an annual report on Form 10-K or Form 20-F (17 CFR 249.220f), a registrant need not include the information required by paragraphs (e)(1)(i)(C) and (e)(1)(i)(D) of this section if that information was included in its most recent annual report on Form 10-K or Form 20-F or a more recent filing, provided that the required information is updated to the extent necessary to meet the requirements of paragraphs (e)(1)(i)(C) and (e)(1)(i)(D) of this section at the time of the registrant's current filing.
(2) For purposes of this paragraph (e), a non-GAAP financial measure is a numerical measure of a registrant's historical or future financial performance, financial position or cash flows that:
(i) Excludes amounts, or is subject to adjustments that have the effect of excluding amounts, that are included in the most directly comparable measure calculated and presented in accordance with GAAP in the statement of income, balance sheet or statement of cash flows (or equivalent statements) of the issuer; or
(ii) Includes amounts, or is subject to adjustments that have the effect of including amounts, that are excluded from the most directly comparable measure so calculated and presented.
(3) For purposes of this paragraph (e), GAAP refers to generally accepted accounting principles in the United States, except that:
(i) In the case of foreign private issuers whose primary financial statements are prepared in accordance with non-U.S. generally accepted accounting principles, GAAP refers to the principles under which those primary financial statements are prepared; and
(ii) In the case of foreign private issuers that include a non-GAAP financial measure derived from or based on a measure calculated in accordance with U.S. generally accepted accounting principles, GAAP refers to U.S. generally accepted accounting principles for purposes of the application of the requirements of this paragraph (e) to the disclosure of that measure.
(4) For purposes of this paragraph (e), non-GAAP financial measures exclude:
(i) Operating and other statistical measures; and
(ii) Ratios or statistical measures calculated using exclusively one or both of:
(A) Financial measures calculated in accordance with GAAP; and
(B) Operating measures or other measures that are not non-GAAP financial measures.
(5) For purposes of this paragraph (e), non-GAAP financial measures exclude financial measures required to be disclosed by GAAP, Commission rules, or a system of regulation of a government or governmental authority or self-regulatory organization that is applicable to the registrant. However, the financial measure should be presented outside of the financial statements unless the financial measure is required or expressly permitted by the standard-setter that is responsible for establishing the GAAP used in such financial statements.
(6) The requirements of paragraph (e) of this section shall not apply to a non-GAAP financial measure included in disclosure relating to a proposed business combination, the entity resulting therefrom or an entity that is a party thereto, if the disclosure is contained in a communication that is subject to § 230.425 of this chapter, § 240.14a-12 or § 240.14d-2(b)(2) of this chapter or § 229.1015 of this chapter.
(7) The requirements of paragraph (e) of this section shall not apply to investment companies registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8).
1. The non-GAAP financial measure relates to the GAAP used in the registrant's primary financial statements included in its filing with the Commission;
2. The non-GAAP financial measure is required or expressly permitted by the standard-setter that is responsible for establishing the GAAP used in such financial statements; and
3. The non-GAAP financial measure is included in the annual report prepared by the registrant for use in the jurisdiction in which it is domiciled, incorporated or organized or for distribution to its security holders.
15 U.S.C. 7261, 78c, 78i, 78j, 78m, 78o, 78w, 78mm, and 80a-29
(a) Whenever a registrant, or person acting on its behalf, publicly discloses material information that includes a non-GAAP financial measure, the registrant must accompany that non-GAAP financial measure with:
(1) A presentation of the most directly comparable financial measure calculated and presented in accordance with Generally Accepted Accounting Principles (GAAP); and
(2) A reconciliation (by schedule or other clearly understandable method), which shall be quantitative for historical non-GAAP measures presented, and quantitative, to the extent available without unreasonable efforts, for forward-looking information, of the differences between the non-GAAP financial measure disclosed or released with the most comparable financial measure or measures calculated and presented in accordance with GAAP identified in paragraph (a)(1) of this section.
(b) A registrant, or a person acting on its behalf, shall not make public a non-GAAP financial measure that, taken together with the information accompanying that measure and any other accompanying discussion of that measure, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the presentation of the non-GAAP financial measure, in light of the circumstances under which it is presented, not misleading.
(c) This section shall not apply to a disclosure of a non-GAAP financial measure that is made by or on behalf of a registrant that is a foreign private issuer if the following conditions are satisfied:
(1) The securities of the registrant are listed or quoted on a securities exchange or inter-dealer quotation system outside the United States;
(2) The non-GAAP financial measure is not derived from or based on a measure calculated and presented in accordance with generally accepted accounting principles in the United States; and
(3) The disclosure is made by or on behalf of the registrant outside the United States, or is included in a written communication that is released by or on behalf of the registrant outside the United States.
(d) This section shall not apply to a non-GAAP financial measure included in disclosure relating to a proposed business combination, the entity resulting therefrom or an entity that is a party thereto, if the disclosure is contained in a communication that is subject to § 230.425 of this chapter, § 240.14a-12 or § 240.14d-2(b)(2) of this chapter or § 229.1015 of this chapter.
(i) The required information in those paragraphs is provided on the registrant's Web site at the time the non-GAAP financial measure is made public; and
(ii) The location of the web site is made public in the same presentation in which the non-GAAP financial measure is made public.
2. The provisions of paragraph (c) of this section shall apply notwithstanding the existence of one or more of the following circumstances:
(i) A written communication is released in the United States as well as outside the United States, so long as the communication is released in the United States contemporaneously with or after the release outside the United States and is not otherwise targeted at persons located in the United States;
(ii) Foreign journalists, U.S. journalists or other third parties have access to the information;
(iii) The information appears on one or more web sites maintained by the registrant, so long as the web sites, taken together, are not available exclusively to, or targeted at, persons located in the United States; or
(iv) Following the disclosure or release of the information outside the United States, the information is included in a submission by the registrant to the Commission made under cover of a Form 6-K.
This section defines certain terms as used in Regulation G (§§ 244.100 through 244.102).
(a)(1)
(i) Excludes amounts, or is subject to adjustments that have the effect of excluding amounts, that are included in the most directly comparable measure calculated and presented in accordance with GAAP in the statement of income, balance sheet or statement of cash flows (or equivalent statements) of the issuer; or
(ii) Includes amounts, or is subject to adjustments that have the effect of including amounts, that are excluded from the most directly comparable measure so calculated and presented.
(2) A non-GAAP financial measure does not include operating and other financial measures and ratios or statistical measures calculated using exclusively one or both of:
(i) Financial measures calculated in accordance with GAAP; and
(ii) Operating measures or other measures that are not non-GAAP financial measures.
(3) A non-GAAP financial measure does not include financial measures required to be disclosed by GAAP, Commission rules, or a system of regulation of a government or governmental authority or self-regulatory organization that is applicable to the registrant.
(b)
(1) In the case of foreign private issuers whose primary financial statements are prepared in accordance with non-U.S. generally accepted accounting principles, GAAP refers to the principles under which those primary financial statements are prepared; and
(2) In the case of foreign private issuers that include a non-GAAP financial measure derived from a measure calculated in accordance with U.S. generally accepted accounting principles, GAAP refers to U.S. generally accepted accounting
(c)
(d)
Neither the requirements of this Regulation G (17 CFR 244.100 through 244.102) nor a person's compliance or non-compliance with the requirements of this Regulation shall in itself affect any person's liability under Section 10(b) (15 U.S.C. 78j(b)) of the Securities Exchange Act of 1934 or § 240.10b-5 of this chapter.
15 U.S.C. 78a,
6. A report on this form is required to be furnished upon the occurrence of any of the events specified in Item 12 of this form. A report of an event specified in Item 12 is to be furnished within 5 business days after the occurrence of the event; if the event occurs on a Saturday, Sunday or holiday on which the Commission is not open for business, the 5 business day period shall begin to run on and include the first business day thereafter. The information in a report furnished pursuant to Item 12 shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section, except if the registrant specifically states that the information is to be considered “filed” under the Exchange Act or incorporates it by reference into a filing under the Securities Act or the Exchange Act.
(a) If a registrant, or any person acting on its behalf, makes any public announcement or release (including any update of an earlier announcement or release) disclosing material non-public information regarding the registrant's results of operations or financial condition for a completed quarterly or annual fiscal period, the registrant shall briefly identify the announcement or release and include the text of that announcement or release as an exhibit;
(b) A Form 8-K is not required to be furnished to the Commission under this Item 12 in the case of disclosure of material non-public information that is disclosed orally, telephonically, by webcast, by broadcast, or by similar means if:
(1) The information is provided as part of a presentation that is complementary to, and initially occurs within 48 hours after, a related, written announcement or release that has been furnished on Form 8-K pursuant to this Item 12 prior to the presentation;
(2) The presentation is broadly accessible to the public by dial-in conference call, by webcast, by broadcast, or by similar means;
(3) The financial and other statistical information contained in the presentation is provided on the registrant's web site, together with any information that would be required under § 244.100 of Regulation G; and
(4) The presentation was announced by a widely disseminated press release, that included instructions as to when and how to access the presentation and the location on the registrant's web site where the information would be available.
1. The requirements of this Item 12 are triggered by the disclosure of material non-public information regarding a completed fiscal year or quarter. Release of additional or updated material non-public information regarding a completed fiscal year or quarter would trigger an additional Item 12 requirement.
2. The requirements of paragraph (e)(1)(i) of Item 10 of Regulation S-K (or paragraph (h)(1)(i) of Item 10 of Regulation S-B in the case of a small business issuer) shall apply to disclosures under this Item 12.
3. Issuers that make earnings announcements or other disclosures of material non-public information regarding a completed fiscal year or quarter in an interim or annual report to shareholders, are permitted to specify which portion of the report contains the information required to be furnished under Item 12.
4. This Item 12 does not apply in the case of a disclosure that is made in a quarterly report filed with the Commission on Form 10-Q (or 10-QSB) or an annual report filed with the Commission on Form 10-K (or 10-KSB).
By the Commission.
Environmental Protection Agency (EPA).
Final rule.
This rule finalizes and makes effective EPA's finding that the St. Louis ozone nonattainment area (hereinafter referred to as the St. Louis area) failed to attain the 1-hour ozone national ambient air quality standard (NAAQS or standard) by November 15, 1996, the attainment date for moderate nonattainment areas set forth in the Clean Air Act (CAA or Act). As a result of this finding, the St. Louis area is reclassified from a moderate to a serious 1-hour ozone nonattainment area by operation of law, effective as of the date of publication. In addition, EPA is establishing a schedule for Missouri and Illinois to submit State Implementation Plan (SIP) revisions addressing the CAA's pollution control requirements for serious ozone nonattainment areas within 12 months of the effective date of this rule, and is establishing November 15, 2004, as the date by which the St. Louis area must attain the ozone NAAQS.
This rule is effective January 30, 2003.
Relevant documents for this rule are available for inspection at the Environmental Protection Agency, Region 7, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101; or the Environmental Protection Agency, Region 5, Regulation Development Section, Air Programs Branch (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604; interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours in advance.
Tony Petruska, Region 7, (913) 551-7637, (
On November 25, 2002, the U.S. Court of Appeals for the Seventh Circuit (Court) issued a decision in the case of the
In a separate rulemaking, EPA is proposing to redesignate the St. Louis area to attainment with the 1-hour ozone standard. The proposal is based, in part, on three years of complete, quality-assured, ambient air monitoring data for the 2000 through 2002 ozone seasons which EPA believes shows that the area has now attained the 1-hour ozone NAAQS. Redesignation to attainment would eliminate the need for the states of Missouri and Illinois to submit SIP revisions addressing the CAA's pollution control requirements for serious ozone nonattainment areas. However, should the St. Louis area not be redesignated to attainment, the states of Missouri and Illinois will continue to be required to submit the serious area SIP revisions within one year as specified in this rule.
Since the CAA's inception in 1970, EPA has set NAAQS for six common air pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. The CAA requires that these standards be set at levels that protect public health and welfare with an adequate margin of safety. These standards present state and local governments with the air quality levels they must meet to achieve clean air. Also, these standards allow the American people to assess whether or not the air quality in their communities is healthful.
The NAAQS for ozone is expressed in two forms which are referred to as the 1-hour and 8-hour standards. Table 1 summarizes the ozone standards.
The 1-hour ozone standard of 0.12 parts per million (ppm) was promulgated in 1979. The 1-hour ozone standard continues to apply to the St. Louis area, and it is the classification of the St. Louis area with respect to the 1-hour ozone standard that is addressed in this document.
Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meet the NAAQS established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants: 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. They may contain state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
The St. Louis ozone nonattainment area is an interstate area which includes Madison, Monroe, and St. Clair Counties in Illinois; and Franklin, Jefferson, St. Charles, and St. Louis Counties and the City of St. Louis in Missouri.
Under section 107(d)(1)(C) of the CAA, each ozone area designated nonattainment for the 1-hour ozone standard prior to enactment of the 1990 CAA Amendments, such as the St. Louis area, was designated nonattainment by operation of law upon enactment of the 1990 Amendments. In addition, under section 181(a) of the Act, each area designated nonattainment under section 107(d) was classified as “marginal,” “moderate,” “serious,” “severe,” or “extreme,” depending on the severity of the area's air quality problem. The design value for an area,
In addition, under section 182(b)(1)(A) of the CAA, states containing areas that were classified as moderate nonattainment were required to submit SIPs to provide for certain air pollution controls, to show progress toward attainment of the ozone standard through incremental emissions reductions, and to provide for attainment of the ozone standard as expeditiously as practicable, but no later than November 15, 1996. SIP requirements for moderate areas are listed primarily in section 182(b) of the CAA.
On March 18, 1999, EPA proposed (64 FR 13384) its finding that the St. Louis area did not attain the 1-hour ozone NAAQS by November 15, 1996, as required by the CAA. The proposed finding was based on 1994-1996 air quality data which indicated the area's air quality violated the standard and the area did not qualify for an attainment date extension under the provisions of section 181(a)(5).
Although the area was not eligible for an attainment date extension under section 181(a)(5), the March 18, 1999, proposal included a notice of the St. Louis area's potential eligibility for an attainment date extension, pursuant to EPA's July 16, 1998, “Guidance on Extension of Air Quality Attainment Dates for Downwind Transport Areas” (hereinafter referred to as the extension policy), signed by Richard D. Wilson, Acting Assistant Administrator for Air and Radiation. The extension policy, published in a March 25, 1999,
On March 19, 2001 (66 FR 15578), EPA finalized its finding that the St. Louis area failed to attain the 1-hour ozone NAAQS by November 15, 1996, and reclassified the area to “serious” as of the effective date of the rule. In addition, that rule established the dates by which Missouri and Illinois were to submit SIP revisions addressing the CAA's pollution control requirements for serious ozone nonattainment areas and attain the 1-hour NAAQS for ozone. The March 19, 2001, rulemaking action was to be effective on May 18, 2001.
On May 16, 2001, EPA published a rule (66 FR 27036) extending the effective date of the March 19, 2001, rulemaking to June 29, 2001.
On June 26, 2001, EPA issued a final rule (66 FR 33996) in which EPA extended the attainment date for the St. Louis area, consistent with the extension policy, and withdrew the March 19, 2001, rulemaking. The rule also approved the attainment demonstration for the St. Louis area and took several other related actions.
Petitions were filed in the U.S. Court of Appeals for the Seventh Circuit (Court) (
This rule reclassifies the St. Louis area as a serious nonattainment area in accordance with the Court's Order, and in accordance with section 181(b)(2)(A) of the CAA. Additional background for this rule may be found in the March 18, 1999, proposal (64 FR 13384) and in the March 19, 2001, final rule (66 FR 15578). This action reinstates EPA's finding that the St. Louis area failed to attain the 1-hour standard by November 15, 1996, as prescribed in Section 181 of the CAA. A summary and discussion of the air quality monitoring data for the St. Louis area for 1994 through 1996 used to make this finding can be found in the March 18, 1999, proposal (64 FR 13384, 13385-87) and in the March 19, 2001, rule (66 FR 15578, 15580-15581, 15583-15584). EPA incorporates by reference in this rule the analyses and discussion of the air quality monitoring data and of the area's new classification set forth in the March 18, 1999, proposed rule and in the March 19, 2001, final rule.
EPA received comments on the March 18, 1999, proposal (and on an April 17, 2000, proposal, 65 FR 20404—see 66 FR 15585-15586 for a discussion of comments on the April 17, 2000, proposal) relating to the necessity and scope of a reclassification of the St. Louis area, which are summarized in the March 19, 2001, final rule (66 FR 15578, 15585-15587). The final rule also contains EPA's detailed response to the comments, which is incorporated by reference in this final rule.
As part of the reclassification of an area, EPA must establish an attainment date for the reclassified area. Section 181 of the CAA states that the attainment date for serious nonattainment areas shall be as expeditiously as practicable but not later than 9 years after enactment (November 15, 1999). Where an attainment date has already passed and is therefore impossible to meet, EPA has reasoned that the Administrator may establish an attainment date later than the date specified in the CAA. However, EPA believes that it must establish a new attainment date in accordance with the principle in the CAA that attainment must be achieved as expeditiously as practicable.
In the March 19, 2001, rule (66 FR 15578), EPA set forth its reasoning and conclusion that the most appropriate attainment date is one which is as expeditious as practicable and accounts for the upwind reductions associated with the NO
In addition to establishing a new attainment date, EPA must also address the schedule by which Illinois and Missouri are required to submit SIP revisions meeting the CAA's pollution control requirements for serious areas. The measures required by section 182(c) of the CAA include, but are not limited to, the following: (1) Attainment and reasonable further progress demonstrations; (2) enhanced vehicle inspection and maintenance (I/M) programs; (3) clean-fuel vehicle programs; (4) the major source threshold lowered from 100 to 50 tons per year for volatile organic compounds (VOCs) and nitrogen oxide compounds (NO
In the March 18, 1999, proposal (64 FR 13384) and in the March 19, 2001, rule (66 FR 15585), EPA stated that a submittal deadline of 12 months after the effective date of reclassification will give the states adequate time to adopt and submit the additional serious area requirements. EPA also noted that the 12-month deadline is consistent with the time given to other areas (such as Dallas-Fort Worth, Phoenix, and Santa Barbara) which were reclassified from moderate to serious. EPA received one comment in support of a 12-month deadline and no other comments on the proposed deadline. In the March 19, 2001, rule, EPA required Missouri and Illinois to submit SIP revisions addressing the Act's pollution control requirements for serious ozone nonattainment areas within 12 months of the effective date of the rule.
EPA has determined that a 12-month deadline for submitting SIP revisions meeting the CAA's pollution control requirements for serious areas is appropriate for the reasons stated in the March 19, 2001, rule. Therefore, EPA is requiring that the “serious” area measures be submitted within 12 months of the date of publication of this rule.
The Court, in its November 25, 2002, Order, vacated the June 26, 2001, rule (66 FR 33996) and remanded for entry of a final rule that reclassifies St. Louis as a serious nonattainment area effective immediately.
On May 16, 2001, EPA published a rule (66 FR 27036) delaying the effective date of reclassification of the St. Louis area to a serious nonattainment area until June 29, 2001. On June 26, 2001, EPA published a rule (66 FR 33996) in which the reclassification of the St. Louis area to a serious nonattainment area was withdrawn. By vacating the June 26, 2001, rule, the Court's Order also vacated the withdrawal of the reclassification.
One conclusion which could be drawn from the Court's Order vacating the June 26, 2001, rule is that the effective date of the reclassification to a serious nonattainment area reverts back to June 29, 2001. Such a conclusion would be inconsistent with the language used by the Court in its remand. The court ordered EPA to “reclassify” the St. Louis area, and to make the reclassification “effective immediately.” Thus, EPA believes that the Court intended for the reclassification of the St. Louis area to a serious nonattainment to be effective immediately upon publication of this rule.
Although it is not appropriate to make this rule retroactive, EPA is making this final rulemaking effective upon publication. Section 553(d) of the Administrative Procedures Act generally provides that rules may not take effect earlier than 30 days after they are published in the
For the foregoing reasons, EPA is establishing the date of publication as the effective date of this rule.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA is required to determine whether regulatory actions are significant and therefore should be subject to Office of Management and Budget (OMB) review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, under paragraph (1), that the rule may “have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities.”
The Agency has determined that the determination of nonattainment would result in none of the effects identified in section 3(f) of the Executive Order. Under section 181(b)(2) of the CAA, determinations of nonattainment are based upon air quality considerations and the resulting reclassifications must occur by operation of law. They do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classifications that, in turn, are triggered by air quality values, determinations of nonattainment and reclassification cannot be said to impose a materially adverse impact on state, local, or tribal governments or communities.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
Determinations of nonattainment and the resulting reclassification of nonattainment areas by operation of law under section 181(b)(2) of the CAA do not in and of themselves create any new requirements. Instead, this rulemaking only makes a factual determination, and does not directly regulate any entities. See 62 FR 60001, 60007-60008, and 60010 (November 6, 1997) for additional analysis of the RFA implications of attainment determinations. Therefore, pursuant to 5 U.S.C. 605(b), I certify that today's final action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to state, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA believes, as discussed above, that the finding of nonattainment is a factual determination based upon air quality considerations and that the resulting reclassification of the area must occur by operation of law. Thus, the finding does not constitute a Federal mandate, as defined in section 101 of the UMRA, because it does not impose an enforceable duty on any entity.
Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This action is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
Federalism (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds
This determination of nonattainment and the resulting reclassification of a nonattainment area by operation of law will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because this action does not, in and of itself, impose any new requirements on any sectors of the economy, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to these actions.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.
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 March 31, 2003. 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, National Parks, Ozone, Wilderness areas.
42 U.S.C. 7401,
Environmental Protection Agency (EPA).
Proposed rule.
We, the EPA, are announcing a proposal to approve a revision to the state implementation plan (SIP) for the inspection and maintenance (I/M) program operating in the Missouri portion of the St. Louis, Missouri, nonattainment area. Missouri has made several amendments to the I/M rule to improve performance of the program and has requested that the SIP be revised. The effect of this action would be to ensure Federal enforceability of the state air program rules and to maintain consistency between the state-adopted rules and the approved SIP.
Comments must be received on or before March 3, 2003.
Written comments should be mailed to Leland Daniels, 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. Interested persons wanting to examine these document should make an appointment with the office at least 24 hours in advance.
Leland Daniels at (913) 551-7651.
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
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 in the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If relevant 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 Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
In order to be approved into a SIP, the submittal must meet the requirements of section 110. In addition to the procedural requirements mentioned above, the plan must provide for the attainment, maintenance, and enforcement of the national ambient air quality standards.
The CAA has additional requirements for the approval of SIPs for ozone nonattainment areas. It requires the adoption of either a “basic” or an “enhanced” I/M program depending on the severity of the ozone problem and the population of the area. Section 182(a)(2)(B) directed us to publish guidance for state I/M programs. We promulgated I/M regulations and subsequent amendments, codified in 40 CFR part 51, subpart S.
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.
On May 18, 2000 (65 FR 31480), we took final action to approve Missouri's SIP for the I/M program in the St. Louis nonattainment area (St. Louis City, and the counties of St. Louis, St. Charles, Jefferson, and Franklin) and incorporated by reference the state I/M rule, 10 CSR (Code of State Regulations) 10-5.380. Although Missouri's program contains most of the features of an enhanced program, we approved the program with regard to compliance with the basic I/M requirements in Section 182(b)(4) of the Clean Air Act (CAA) and 40 CFR part 51, subpart S, because those are the I/M requirements currently applicable to the St. Louis area.
MDNR has made several submissions concerning the I/M SIP. The content of those being considered here are discussed below.
The legal authority for the I/M program was amended in 1999 by Senate Bill 019. Amendments which affected the design of the I/M program include the following: requires the MDNR and the Missouri Highway Patrol to enter into an interagency agreement covering all aspects of the administration and enforcement of Section 307.366, Missouri Revised Statutes (RSMo); establishes criteria and procedures for a contract for the construction and operation of the I/M program; provides the residents of Franklin County the option of a biennial motor vehicle registration. For the purpose of registration, for vehicles sold by a licensed motor vehicle dealer, any inspection and approval within 120 days preceding the date of the sale is considered timely. Costs for repair work may only be included toward reaching the waiver amount if the repairs are performed by a recognized repair technician. It deleted the $5.00 fee reduction for any person required to wait for up to 15 minutes before the inspection begins. Penalties for longer wait times were retained. The I/M amendments contained in the October 25, 2000, submittal reflected these statutory changes.
On October 25, 2000, we received a request from Roger Randolph, Director of the Air Pollution Control Program, MDNR, to amend the I/M SIP and incorporate changes made to the I/M rule (10 CSR 10-5.380) by the Missouri Air Conservation Commission. These changes removed a fee reduction (otherwise known as a wait time penalty) of $5.00 whenever someone had to wait up to 15 minutes for a test; incorporated a transition program from January 1 through April 4, 2000; and provided another test option for residents of Franklin County.
On June 19, 2002, we received a letter from MDNR that contained their plan for incorporating the On-Board Diagnostic (OBD) test into the I/M program and a commitment to do so. This was in response to our amendment of the Federal I/M rule that changed the implementation date for use of the OBD test from January 1, 2001, to January 1, 2002, and provide options for other implementation dates.
On December 13, 2002, we received a request from MDNR to approve a revision to the I/M SIP and incorporate amendments made to the I/M rule. In addition to restructuring the rule, a number of amendments were made to: clarify the meaning of vehicles primarily operated in the area (section 1); clarify existing definitions and include new definitions (section 2); clarify fleet vehicle testing requirements, set fee payment methods, station and clean screening testing procedures, emission test standards and waiver requirements (section 3); clarify the vehicle test report requirement for vehicles that fail the OBD test, the clean screening test report requirements and the fleet vehicle reporting requirements (section 4); clarify the test methods for the OBD and the visual test methods; exempt hybrid electric vehicles from tailpipe test methods; include clean screening test methods as valid test methods (section 5), and delete the transition period. The submittal also included a list of nonregulatory provisions that will be updated early in 2003.
The following sections address whether the elements of the state's submittal comply with the applicable elements in the Federal rule. Only those elements affected by changes in the state rule are reviewed. Our decision for approval is based solely on the State's ability to meet the I/M requirements for a basic program.
As required in the I/M rule, any area classified as a moderate ozone nonattainment area and not required to implement an enhanced I/M program shall implement a basic I/M program in any 1990 census-defined, urbanized area within the nonattainment area with a population of 200,000 or more.
The legal authority for the I/M program is contained in the Missouri Revised Statutes (RSMo), sections 643.300-643.355 and section 307.366. The implementing regulations are in Missouri rule 10 CSR 10-5.380. In 1999 the legal authority for the I/M program was amended by Senate Bill 019. The amendments required MDNR and the Missouri Highway Patrol to enter into an interagency agreement covering all aspects of the administration and enforcement of Section 307.366, RSMo; established criteria and procedures for a contract for the construction and operation of the I/M program; and provided the residents of Franklin County the option of a biennial motor vehicle registration. For the purpose of registration, for vehicles sold by a licensed motor vehicle dealer, any inspection and approval within 120 days preceding the date of the sale is considered timely. Costs for repair work may only be included toward reaching the waiver amount if the repairs are performed by a recognized repair technician. It deleted the $5.00 fee reduction for any person who is required to wait for up to 15 minutes before the inspection begins.
The legal authority and regulations necessary to establish the program boundaries for the areas required by EPA's rule to be included in a basic I/M program continue. Thus, this portion of the SIP continues to be approvable.
The Federal regulation requires Missouri to provide a description of the resources to be used in the program. The state must provide a detailed budget plan that describes the source of funds for personnel, program administration, program enforcement, and purchase of equipment. In addition, the SIP must include public education and assistance and funding for other necessary functions.
These amendments do not alter the detailed budget, fee amounts, source of funds for personnel, program administration, program enforcement, and purchase of equipment contained in the I/M SIP. The amendment does allow fees to be paid by cash, check or credit card. Thus, this portion of the SIP continues to be approvable.
The I/M performance standard assumes an annual test frequency; however, other schedules may be approved if the performance standard is achieved. The Missouri legislation provides the legal authority to implement a biennial program. In 1999, the statutory authority was revised by Senate Bill 019 and it provided the residents of Franklin County the option of a biennial motor vehicle registration. Enforcement is accomplished through registration denial. Missouri did demonstrate that it met the performance standard. This portion of the SIP continues to meet the Federal requirements.
Although not required for a basic program, enhanced I/M programs shall be designed in such a way as to provide convenient service to motorists required to have their vehicles tested. To meet the enhanced requirements, the state must show that the network of stations is sufficient to ensure short waiting times, short driving distances, and regular testing hours. The State has assured consumer convenience by both State law, rule and contract provisions regarding station location, accessibility, and operation; equipment availability
The performance standards for enhanced I/M programs assumes coverage of all 1968 and later model year light-duty vehicles (LDV) and light-duty trucks (LDT) up to 8500 pounds gross vehicle weight rating (GVWR) and includes vehicles operating on all fuel types. The standard for basic I/M programs does not include light duty trucks. Other levels of coverage may be approved if the necessary emission reductions are achieved.
Missouri's I/M statute requires coverage of all 1971 and newer LDVs and LDTs up to 8500 pounds GVWR which are domiciled or primarily operated in the area. As of the date of the original I/M SIP submittal (November 1999), 1.3 million vehicles are in the nonattainment area. The Missouri I/M regulation provides the regulatory authority to implement and enforce the vehicle coverage.
In section 1, the June 17, 2002, amendments added a definition of those vehicles that are primarily operated in the geographic area. In section 2, it also established a definition of a hybrid electric vehicle and specified in subsection 5(F) that they are not subject to tailpipe emission tests but are subject to other test methods.
In section 2, a number of definitions were clarified or added. These include compliance cycle, control chart, diagnostic trouble code, emission inspection, hybrid electric vehicle, malfunction indicator lamp, on-board diagnostics, OBD test, qualifying repair, readiness flag, and recognized labor costs.
The amendment established a compliance cycle for both privately- and publicly-owned vehicles. For privately-owned vehicles, the compliance cycle begins 60 days prior to the expiration of the vehicle's registration. For publicly-owned vehicles, the compliance cycle begins on January 1 of each even-numbered year. All applicable vehicles are to demonstrate compliance with the emission standards set in the rule during the compliance cycle. Federal fleets and federal employee vehicles are to comply with the December 1999 Interim Guidance for Federal Facility Compliance with Clean Air Act Section 118(c) and 118(d) and Applicable Provisions of State Vehicle Inspection and Maintenance Programs.
Missouri has revised its regulations to require Federal facilities operating vehicles in the I/M program area to report certification of compliance to the state. These requirements appear to be different than those for other non-Federal groups of Missouri registered vehicles. However, at this time we are not requiring states to implement 40 CFR 51.356(a)(4) dealing with Federal installations within I/M areas. The Department of Justice has recommended to us that this Federal regulation be revised since it appears to grant states authority to regulate Federal installations in circumstances where the Federal government has not waived sovereign immunity. It would not be appropriate to require compliance with this regulation if it is not authorized. We will be revising this provision in the future and will review state I/M SIPs with respect to this issue when this new rule is final. Therefore, for these reasons, we are neither proposing approval nor disapproval of the specific requirements which apply to Federal facilities at this time.
The amendments did not alter the level of coverage. Thus the level of coverage remains approvable as it meets the requirements for an enhanced I/M program which exceed the requirements for a basic program. In addition, Missouri has legal authority to implement fleet-testing requirements and to implement requirements for special exemptions. As noted above we are neither proposing approval nor disapproval of the requirements which apply to Federal facilities. Therefore, this portion of the SIP is approvable as it meets the requirements for a basic and an enhanced I/M program.
The Federal rule requires Missouri to establish written test procedures and pass/fail standards that are followed for each model year and vehicle type included in the program.
The October 25, 2000, submittal did provide for the use of the idle test and set emission limits for carbon monoxide and hydrocarbons during the transition period (see motorist compliance enforcement below). This test and the emission limits are applicable to automobile dealers and used vehicle purchasers. This submittal did not alter the program's test procedures and standards for the I/M program which started on April 5, 2000. This portion of the SIP continues to be approvable.
Although the submittal of December 13, 2002, retained the test methods contained in the previously approved SIP, two significant changes were made. First, the December 13, 2002, submittal took advantage of the flexibility included in our April 5, 2001, rulemaking concerning the integration of OBD testing in the I/M program. Second, the submittal added a hybrid method as one of the clean screening methods (see on-road testing below). In addition, per our guidance, it exempted hybrid electric vehicles from tailpipe test methods but subjected them to the evaporative system pressure test, OBD test, anti-tampering test, and clean screening.
The original, Federally-approved SIP committed to begin OBD testing beginning January 1, 2001. The December 13, 2002, submittal revises the original OBD start date commitment by introducing a two-year phase-in period for the OBD test starting January 1, 2003, and ending December 31, 2004. During the two-year phase-in period, the OBD test would be used as a “clean screen” test. Then starting January 1, 2005, the OBD test would be used to pass or fail the 1996 and newer model year vehicles.
During the phase-in period if a model year 1996 or newer, OBD-equipped vehicle passes its initial OBD test, the owner will be issued a passing compliance certificate and allowed to register the vehicle without further testing. If the vehicle fails its initial OBD inspection, it will then receive a “second-chance” IM240 test. Only if the vehicle fails both tests during this two-year period phase-in period will it be required to be repaired. Once the vehicle has been repaired, it must be submitted for a retest. According to the December 13, 2002, submittal, vehicles submitted for a retest will receive both an OBD test and an IM240 test, the latter of which must be passed for the vehicle to pass its retest. The December 13, 2002, submittal's requirement that the IM240 test be the deciding test for the retest is inconsistent with the April 5, 2001, Federal rule which requires only the OBD test be used for the retest.
Although the Missouri regulation is not consistent with our requirements for the OBD test during the 2003-2004 phase-in period, the Federal I/M rule (see 40 CFR 51.372) provides additional flexibility with regard to as-of-yet unimplemented I/M program elements
Other elements needed for the I/M program and redesignation request to be approved include legal authority for the as-of-yet unimplemented I/M program element(s), a request to place the as-of-yet unimplemented I/M upgrade into the contingency measures portion of the maintenance plan upon redesignation, a commitment to adopt (or consider adopting) the regulations needed to implement the deferred I/M program element(s) including an enforceable schedule for adoption and implementation of those I/M program element(s). See 40 CFR 51.372(c).
The legal authority for the program is discussed above (see Applicability). Missouri has legal authority to implement and operate an I/M program as required including OBD.
Section 6.1 of the maintenance plan, contingency measures, contains a request that the OBD test measures in 40 CFR Parts 51 and 82 be placed in the contingency measures portion of the SIP, upon redesignation of the area to attainment. This requirement is fulfilled.
Section 6.1 of the maintenance plan also contains a commitment that MDNR will adopt or consider adopting regulations to implement EPA's OBD testing requirement to correct a violation of the ozone standard. This requirement is fulfilled.
Section 6.1 of the maintenance plan also contains an enforceable schedule for development, proposal, adoption, submission, and implementation of the OBD testing requirements. This requirement is fulfilled.
The criteria for full approval also requires that basic areas continuing operation of I/M programs as part of the maintenance plan without implemented upgrades shall be assumed to be 80 percent as effective as an implemented, upgraded version of the same I/M program. The presumption that Missouri's I/M program is 80 percent as effective is not applicable. We are not discounting the effectiveness of Missouri's program as they are not taking any credit for emissions reduction benefits for OBD testing during the 2003-2004 time period in the MOBILE modeling efforts done for the emission inventories in the maintenance plan.
For the reasons set forth above, this portion of the SIP is approvable only if the St. Louis nonattainment area is redesignated. This portion of the SIP is not approvable if the area is not redesignated. For the reasons listed above we are not discounting the effectiveness of the Missouri program by 20 percent.
As required by Federal rule, the original state submittal contained the written technical specifications for all test equipment to be used in the program. The specifications required the use of computerized test systems. The specifications also included performance features and functional characteristics of the computerized test systems that meet the applicable Federal I/M regulations and were approvable.
Additional language was added to the regulatory amendment to clarify the performance features of the emission test equipment, the functional characteristic of computerized test systems, and that the evaporative system pressure test equipment, the single-speed and two-speed idle test equipment, the transient emission test equipment, and the OBD test equipment must meet standards specified by EPA. This portion of the SIP continues to be approvable.
The Federal I/M regulation allows for the issuance of a waiver, which is a form of compliance with the program requirements, that permits a motorist to comply without meeting the applicable test standards. For enhanced I/M programs, an expenditure of at least $450 in repairs, adjusted annually to reflect the change in the Consumer Price Index (CPI) as compared with the CPI for 1989, is required to qualify for a waiver. For the basic program the minimum expenditure is $75 for pre-1981 vehicles and $200 for 1981 and newer vehicles.
As required, the Missouri statute provides legislative authority to issue waivers, set and adjust cost limits, and administer and enforce the waiver system. Previously, the dollar amounts were set by statutes. This amendment increased the amount that must be spent on qualifying repairs and added a requirement that measured tailpipe emissions must show a reduction upon reinspection. The waiver amount for pre-1981 model year vehicles is set at $200 and the amount for 1981 and all subsequent model year vehicles is $450. After January 1, 2005, 1996 and newer model year vehicles will not be eligible for a waiver. The state statute allows these amounts to be adjusted for inflation after January 1, 2001, to be consistent with an enhanced I/M program. Waivers will be issued for vehicles that do not pass the emission inspection and meet the waiver criteria. The repair record must show that the repair expenditures were not covered by either a recall or manufacturer warranty and that parts costs and labor costs of recognized technicians total the minimum applicable amount for the model year of the vehicle. However, because Missouri is subject to the basic program requirements, they are only required to meet or exceed the basic I/M requirements of a minimum of $75 for pre-1981 vehicles and $200 for 1981 and newer vehicles.
Missouri regulations include provisions that address waiver criteria and procedures, including cost limits, tampering and warranty-related repairs, quality control, and administration. Parts and labor costs for qualifying emission repairs count toward the waiver amount if the repairs were performed or supervised by a recognized repair technician. The SIP sets a waiver rate and describes corrective action that will be taken if the actual waiver rate exceeds the commitment in the SIP. The SIP meets this portion of the regulation and is acceptable.
The Federal regulation requires that compliance will be ensured through the denial of motor vehicle registration in enhanced I/M programs unless an exception for use of an existing alternative is approved. A basic I/M area may use an alternative enforcement mechanism if it demonstrates that the alternative will be as effective as registration denial. To register a vehicle subject to the I/M requirements, the Missouri Department of Revenue by rule, 12 CSR 10-23.170, requires an owner to present an original, current certificate of emissions inspection no older than 60 days. Senate Bill 019 in 1999 provided that for the purpose of registration, for vehicles sold by a licensed motor vehicle dealer, any inspection and approval within 120
The December 13, 2002, submittal did not alter Missouri's SIP commitment to a compliance rate of 96 percent which was used in the performance standard modeling demonstration and continues to be approvable. This submittal did not alter the registration denial enforcement process, the identification of agencies responsible for performing each applicable activity, and a plan for testing fleet vehicles. Therefore, this portion of the SIP is approvable.
The Federal I/M regulation requires all inspectors to be formally trained and licensed or certified to perform inspections. The training, licensing or certification requirements previously approved were retained. In addition, four hours of continuing education per year is required. This portion of the SIP continues to be approvable.
On-road testing is required in enhanced I/M areas and is an option for basic areas. The on-road testing program shall provide information about the emission performance of in-use vehicles. The use of either remote sensing devices (RSD) or roadside pullovers where tailpipe emission testing is done can be used to meet the Federal regulations. For enhanced areas, the on-road testing program must test 0.5 percent of the vehicles or 20,000 vehicles, whichever is less. A motorist that has passed an emissions test and is found to be a high emitter as a result of an on-road test shall be notified that the vehicle is required to pass an out-of-cycle emissions test.
To improve motorist convenience and reduce the number of test lanes needed in the St. Louis area, approximately 40 percent of the vehicles are excused from some I/M testing that would otherwise be required. This is accomplished by exempting the two newest model year vehicles (roughly 11 to 15 percent of all vehicles) and using RSD to test and identify another 25 to 29 percent of the vehicles, those that are low emitting vehicles. This is known as clean screening.
In subsection (3)(J) and (K), the rule specifies the clean screening emission inspection requirements (test methods and procedures) and the inspection standards. The rule includes a hybrid test method (see (3)(J)(B)) for clean screening that does not meet our guidance. This hybrid test method excuses vehicles from further I/M testing if the vehicle is a known low emitter and has passed one RSD test.
The original SIP committed to a minimum of 0.5 percent of the fleet receiving a RSD test each year. The original contract contained a description of the program and methods of collecting, analyzing, and reporting data. Enabling authority to enforce off-cycle inspection and repair requirements is not contained in Missouri's legislation. As stated above, the on-road testing requirements are optional for basic programs. Therefore, this is not relevant to the EPA's proposed action with respect to the current I/M requirement applicable to St. Louis.
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.
Our review of the material submitted indicates that the state has revised the I/M program in accordance with the requirements of the CAA and the Federal rule except for one. The state's use of the IM240 test during the phase-in period to test model year 1996 and newer vehicles is inconsistent with the Federal rule (see Test Procedures and Standards above). As discussed above, since this SIP revision was made in conjunction with a request to redesignate the St. Louis area to attainment, and as provided for in the Federal I/M rule, we are proposing to approve the Missouri SIP revision for the St. Louis I/M program and incorporate by reference the state I/M rule, 10 CSR 10-5.380, which was submitted on December 13, 2002, if the area is redesignated to attainment. If the area is not redesignated, we are proposing to disapprove this SIP revision. We are neither proposing to approve nor disapprove the specific requirements which apply to Federal facilities at this time. We are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposed 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 proposes to approve 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 proposed 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
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to determine that the St. Louis ozone nonattainment area (St. Louis area) has attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS). This proposal is based on three years of complete, quality-assured ambient air quality monitoring data for the 2000 through 2002 ozone seasons that demonstrate that the 1-hour ozone NAAQS has been attained in the area. On the basis of this proposal, EPA is also proposing to determine that certain attainment demonstration requirements along with certain other related requirements of part D of Title I of the Clean Air Act (CAA) are not applicable to the St. Louis area.
The EPA is also proposing to approve an exemption from certain nitrogen oxides (NO
EPA is also proposing to approve requests from the States of Missouri and Illinois, submitted on December 6, 2002, and December 30, 2002, respectively, to redesignate the St. Louis area to attainment of the 1-hour ozone NAAQS. In proposing to approve these requests EPA is also proposing to approve the states' plans for maintaining the 1-hour ozone NAAQS through 2014, as revisions to the Missouri and Illinois State Implementation Plans (SIPs). EPA is also proposing to find adequate and approve the states' 2014 Motor Vehicle Emission Budgets (MVEBs) for volatile organic compounds (VOCs) and nitrogen oxide compounds (NO
The St. Louis nonattainment area is located in portions of Illinois and Missouri. The Illinois portion of the nonattainment area includes Madison, Monroe, and St. Clair Counties (collectively referred to as the Metro-East area). The Missouri portion of the nonattainment area includes Franklin, Jefferson, St. Charles, and St. Louis Counties and St. Louis City.
Comments must be received on or before March 3, 2003.
Written comments should be mailed to Joshua Tapp, Chief, Air Planning and Development Branch, Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101; or, J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (ART-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Relevant documents are available for inspection during normal business hours at the above-listed Region 7 and Region 5 locations. Interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours in advance.
Tony Petruska, Region 7, (913) 551-7637, (
EPA is proposing to determine that the St. Louis nonattainment area has attained the 1-hour ozone standard. On the basis of this determination, EPA is also proposing to determine that certain attainment demonstration requirements (section 172(c)(1) of the CAA), along with certain other related requirements, of part D of Title I of the CAA, specifically the section 172(c)(9) contingency measure requirement (measures needed to mitigate a state's failure to achieve reasonable further progress toward, and attainment of, a NAAQS), the section 182(b)(1) attainment demonstration requirement and the section 182(j) multi-state attainment demonstration requirement, are not applicable to the St. Louis area as long as it continues to attain the ozone NAAQS. EPA is also proposing the following actions with respect to each state:
EPA is proposing to approve a request from the state of Illinois to redesignate the Illinois portion of the St. Louis nonattainment area to attainment of the 1-hour ozone NAAQS.
In addition, for Illinois, EPA is proposing the following:
• Approve Illinois' plan for maintaining the 1-hour ozone NAAQS through 2014, as a revision to the Illinois SIP;
• Find adequate and approve the 2014 MVEBs for VOC and NO
• Determine that the attainment demonstration (and associated contingency measures) and Reasonably Available Control Measures (RACM) requirements of the CAA are not applicable so long as the area continues to attain the NAAQS; and
• Exempt the Illinois portion of the area from the NO
EPA is proposing to approve a request from the State of Missouri to redesignate the Missouri portion of the St. Louis nonattainment area to attainment of the 1-hour ozone NAAQS.
In addition, for Missouri, EPA is proposing the following:
• Approve Missouri's plan for maintaining the 1-hour ozone NAAQS through 2014, as a revision to the Missouri SIP;
• Find adequate and approve the 2014 MVEBs for VOC and NO
• Determine that the attainment demonstration (and related contingency measure requirements) and RACM requirements of the CAA are not applicable so long as the area continues to attain the NAAQS.
Although EPA is addressing separate requests from Missouri and Illinois, all of the above actions are being proposed in this rule. Where applicable, notations have been made indicating items specifically applicable to Missouri and those specifically applicable to Illinois. In any final rulemaking(s), EPA will consider addressing the above proposed actions in either one rule or in rules specific to each state.
As detailed below, EPA is proposing to determine that the St. Louis area has attained the 1-hour ozone standard and has fully met the requirements for redesignation found at section 107(d)(3)(E) of the CAA for redesignation of an area from nonattainment to attainment. The EPA believes that each state has demonstrated that the area has attained, and that the criteria for redesignation have been met.
A final determination that the St. Louis area has met the 1-hour ozone standard would relieve the states from the obligation to meet certain additional requirements, as identified above, which apply to areas not attaining that standard. EPA notes, however, that the area is likely to be designated nonattainment for the 8-hour ozone standard, and would be subject to any additional requirements as a result of such designation. EPA also notes that it is not proposing to revoke the 1-hour standard for the St. Louis area.
Approval of the Missouri redesignation request would change the official designation for the 1-hour ozone NAAQS found at 40 CFR part 81 for the St. Louis area, including the City of St. Louis, and the Counties of Franklin, Jefferson, St. Charles, and St. Louis from nonattainment to attainment. It would also incorporate into the Missouri SIP a plan for maintaining the 1-hour ozone NAAQS through 2014. The plan includes contingency measures to remedy any future violations of the 1-hour ozone NAAQS, and includes VOC and NO
Approval of the Illinois redesignation request would change the official designation for the 1-hour ozone NAAQS found at 40 CFR part 81 for the Illinois counties of Madison, Monroe, and St. Clair from nonattainment to attainment. It would also incorporate into the Illinois SIP a plan for maintaining the 1-hour ozone NAAQS through 2014. The plan includes contingency measures to remedy any future violations of the 1-hour ozone NAAQS, and includes VOC and NO
With respect to the proposed finding of attainment and proposed determination that certain requirements are not applicable to an area monitoring attainment of the 1-hour ozone standard, EPA described its interpretation of the attainment demonstration requirements (and related requirements) in detail in its proposed rule on the Cincinati-Hamilton area (65 FR 3630, 3631-3632, January 24, 2000). In summary, EPA interprets the CAA's general nonattainment provisions of subpart 1 of part D of Title I (sections 171 and 172) and the more specific attainment demonstration and related provisions of subpart 2 (section 182), relating to SIP requirements for ozone nonattainment areas to not require the submission of SIP revisions concerning reasonable further progress (RFP), attainment demonstrations, or contingency measures for areas where the monitoring data show that the area is attaining the 1-hour ozone standard. (
With regard to the redesignation requests, under section 107(d) of the CAA, the St. Louis area was designated as an ozone nonattainment area in March 1978 (43 FR 8962). On November
Illinois and Missouri have adopted and implemented emission control programs required under the CAA to reduce emissions of VOC and NO
On December 6, 2002, the Missouri Department of Natural Resources submitted a Redesignation Demonstration and Maintenance Plan for the Missouri Portion of the St. Louis ozone nonattainment area along with a request to redesignate the Missouri portion of the St. Louis nonattainment area to attainment of the 1-hour ozone NAAQS. Included in the Redesignation Demonstration and Maintenance Plan for the Missouri Portion of the St. Louis nonattainment area is a plan to maintain the 1-hour ozone NAAQS for a least the next 10 years, and the 2014 MVEBs for transportation conformity purposes.
On December 30, 2002, the Illinois Environmental Protection Agency submitted a Maintenance Plan for the Illinois Portion of the St. Louis ozone nonattainment area along with a request to redesignate the Illinois portion of the St. Louis nonattainment area to attainment of the 1-hour ozone NAAQS. Included in the Maintenance Plan for the Illinois Portion of the St. Louis ozone nonattainment area is a plan to maintain the 1-hour ozone NAAQS for at least the next 10 years, and the 2014 MVEBs for transportation conformity purposes.
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990, on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
EPA believes that Missouri and Illinois have demonstrated that the St. Louis area has attained the 1-hour ozone standard and have demonstrated that the area meets all of the applicable criteria for redesignation to attainment as specified in Section 107(d)(3)(E) of the CAA.
EPA proposes to find that the area has attained the 1-hour ozone standard and to approve the redesignation requests submitted by Missouri and Illinois for the St. Louis area as meeting this requirement because complete, quality-assured, ambient air monitoring data for the 2000 to 2002 ozone seasons (April through September, when the highest ozone concentrations are expected to occur in this area) demonstrate that the 1-hour ozone NAAQS has been attained in the entire St. Louis area. For ozone, an area may be considered to be attaining the 1-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.9 and appendix H, based on three complete, consecutive calendar years of quality-assured ambient monitoring data. A violation of the 1-hour ozone NAAQS occurs when the estimated number of exceedances per year averaged over three years is greater than 1.0 at any monitoring site in the area or its downwind environs, using conventional rounding techniques.
The calculation of the estimated exceedances takes into account not only the number of exceedances during a
MDNR and IEPA submitted quality-assured ozone monitoring data to EPA for the 2000 to 2002 ozone monitoring seasons. Table 1 below summarizes these air quality data.
The following is an example of how the number of estimated exceedances at the West Alton Monitor were determined: During the 2000 to 2002 time period, the West Alton monitor was determined to have an annual average number of estimated exceedances of 1.0. This value was determined in accordance with 40 CFR 50.9 and appendix H, as follows:
In order to analyze whether the Missouri and the Illinois portions of the area each meet these criteria, it is necessary to discuss what requirements are applicable to the St. Louis area, and for the applicable SIP requirements, the extent to which they are fully approved under section 110(k). In a notice accompanying a rulemaking published June 26, 2001, EPA explained how the states had previously submitted, and
On November 25, 2002, the U.S. Court of Appeals for the Seventh Circuit (Court) issued a decision in
The September 4, 1992, Calcagni memorandum (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of the Section 107(d)(3)(E) requirement. Under this interpretation, states requesting redesignation to attainment must meet the relevant CAA requirements that come due prior to the submittal of a complete redesignation request. Areas may be redesignated even though they have not adopted measures that come due after the submission of a complete redesignation request.
The May 10, 1995, Seitz memorandum (see “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995) states that certain SIP revisions need not be submitted for EPA to approve a request for redesignation, since the requirements would no longer be considered applicable requirements as long as the area continues to attain the 1-hour ozone NAAQS. The SIP requirements subject to this policy are described as the general provisions of subpart 1, part D, title I of the CAA (sections 171 and 172) concerning RFP, attainment demonstrations, and contingency measures, as well as the ozone-specific provisions of subpart 2 of the CAA. The Seitz memorandum was discussed above, in section I.D. and in more detail in the proposed rulemaking on the Cincinnati-Hamilton area, 65 FR 3630, 3631-3632 (January 24, 2000), also referenced previously.
EPA sets forth, in a separate rulemaking published today, a schedule for the states of Missouri and Illinois to submit the serious area SIP requirements within one year after today's date. However, because the States have already submitted complete redesignation requests, EPA believes, pursuant to the policies described above, that the serious nonattainment requirements are not applicable, for purposes of reviewing and acting on the redesignation requests. Therefore, for purposes of acting on the redesignation requests, EPA's analysis includes a proposed determination that the area has met the applicable CAA requirements for moderate nonattainment areas.
If the area violates the 1-hour ozone NAAQS prior to final action on the redesignation request, however, not only would the serious area requirements become applicable, but the redesignation request could not be approved because the area would no longer meet the criterion of having attained the 1-hour NAAQS. (Seitz memorandum dated May 10, 1995.) Furthermore, requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request would continue to be applicable to the area until a redesignation is approved but are not required as a prerequisite for redesignation (see section 175A(c) of the CAA). If the redesignation were to be disapproved, the States remain obligated to fulfill all of the serious area requirements.
The following is a discussion of the relevant requirements for the St. Louis area. Where appropriate, EPA addresses the SIP actions in the June 26, 2001, rulemaking vacated by the Court in
General SIP elements and requirements are delineated in section 110(a)(2) of Title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate apparatus, methods, systems, and procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)); provisions for the implementation of part D requirements (New Source Review (NSR) permit programs); provisions for stationary source emission control measures, source monitoring, and source reporting; provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.
Review of the Illinois SIP, as codified in 40 CFR part 52, subpart O, and specifically 40 CFR 52.720, 52.722, and 52.726, shows that Illinois has an approved ozone SIP which meets the general requirements of section 110(a)(2) of the CAA, and which can be considered to be approved under section 110(k) of the CAA. The SIP, which has undergone public review: (a) Provides for the control of ozone precursor emissions, including those from stationary sources, in the Metro-East area at sufficient control levels to attain the ozone standard; (b) provides for continued monitoring of ozone in this area; (c) contains provisions covering permitting of new sources
The Missouri SIP, is codified in 40 CFR part 52, subpart AA. If EPA finalizes its proposal for the revisions to the Missouri motor vehicle inspection and maintenance (I/M) program, published elsewhere in this
Modeling results generated using EPA's Regional Oxidant Model (ROM) indicate that ozone precursor emissions from various states outside of the Ozone Transport Region (OTR), in the Northeastern United States, contribute significantly to increased ozone concentrations in the OTR (as well as to increased ozone concentrations in other states in the Eastern portion of the United States). On October 27, 1998, (63 FR 57356), EPA issued a NO
In compliance with EPA's NO
On February 22, 2002 (67 FR 8396), EPA proposed modifications to the NO
Before an area may be redesignated to attainment, it must have fulfilled the applicable requirements of part D. Under part D of Title I of the CAA, an area's ozone classification determines the requirements to which it is subject. Subpart 1 of part D specifies the basic requirements applicable to all nonattainment areas. Subpart 2 of part D establishes additional requirements for nonattainment areas classified under Table 1 of section 181(a) of the CAA. As described in the General Preamble for Implementation of Title I of the CAA, specific requirements of subpart 2 may override or modify subpart 1's general provisions (57 FR 13501, April 16, 1992). Therefore, in order to be redesignated, the states must meet the applicable requirements of subpart 1 of part D—specifically sections 172(c) and 176, as well as the applicable requirements of subpart 2 of part D.
EPA believes that Illinois and Missouri have each met the requirements of subpart 1 of part D—specifically sections 172(c), and 176, insofar as applicable, as well as the applicable requirements of subpart 2 of part D of the CAA as described below. EPA is proposing to determine that the requirement for a SIP revision providing an attainment demonstration to meet the requirements of sections 172(c)(1), 182(b)(1), and 182(j) is not applicable. In addition, although the St. Louis area is being reclassified to a serious nonattainment area in a separate rulemaking, EPA believes that the serious area requirements which have not yet been adopted by the states
This section contains general requirements for nonattainment area SIPs. For reasons discussed previously, EPA proposes to determine that certain requirements relating to attainment of the NAAQS do not apply to St. Louis because the area has attained the standard. A thorough discussion of the requirements contained in section 172(c) may be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992). The following discussion summarizes the requirements in section 172(c) of the CAA. This is followed by a discussion of the extent to which the St. Louis area has met these requirements, and an identification of the requirements which EPA proposes to find are not applicable to the St. Louis area.
General Plan Requirements—The plan provisions, to the extent applicable, must provide for the implementation of all RACM as expeditiously as practicable. At a minimum, the plan must require the implementation of RACT for stationary sources. Also to the extent applicable, the plan must also provide for the attainment of the national primary ambient air quality standards (those standards set to protect public health);
RFP—RFP reflects a steady, annual progress towards attainment of the air quality standards, generally addressed in terms of annual emission reductions. To the extent applicable, the plan must document and provide for such annual progress;
Emissions Inventory—The plan needs to include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant as determined necessary by the Administrator to assure that the requirements of part D of the CAA are met;
Identification and Quantification of Allowable Emissions for Major New or Modified Stationary Sources—The quantified emissions must be consistent with the emission levels needed to achieve RFP and attainment of the NAAQS;
Permits for New and Modified Major Stationary Sources—The plan provisions must require permits for the construction and operation of new or
Other Emission Control Measures—The plan must include enforceable emission limitations and other control measures and time schedules for implementation of emission controls as needed to assure attainment of the NAAQS by the applicable attainment date;
Compliance With Section 110(a)(2)—The plan must contain provisions to meet the requirements of section 110(a)(2) of the CAA (see the discussion of section 110 requirements above); and
Contingency Measures—The plan must provide, to the extent applicable, for the implementation of specific measures to be undertaken if the area fails to achieve RFP or to attain the NAAQS by the applicable attainment date. Such measures must take effect, if triggered, without further action by the State or the EPA.
These requirements are discussed below under Subpart 2, Section 182 Requirements.
The RFP requirement under section 172(c)(2) is defined as progress that must be made toward attainment. Section 182(b)(1)(A) sets forth the specific requirements for RFP. As described elsewhere in this proposal, EPA believes it is reasonable to interpret that the Clean Air Act provisions regarding RFP and attainment demonstrations, along with certain other related provisions do not require certain SIP submissions if an ozone nonattainment area subject to those requirements is monitoring attainment of the ozone standard (
These requirements are discussed below under Subpart 2, Section 182 Requirements.
Emissions for Major New or Modified Stationary Sources and Permits for New and Modified Major Stationary Sources
The state of Illinois has a fully approved set of adopted Prevention of Significant Deterioration (PSD) and nonattainment area New Source Review (NSR) rules, as documented at the following EPA Web site:
The state of Missouri has a fully approved set of adopted Prevention of Significant Deterioration (PSD) and nonattainment area New Source Review (NSR) rules, as documented at the following EPA Web site:
Both states' maintenance plans for the St. Louis ozone nonattainment area and the 15 percent ROP plans for the area document expected additional VOC and NO
Illinois' maintenance plan for the St. Louis area indicates emission control measures which will maintain the 1-hour ozone standard until 2014. In addition, the state's 15 percent ROP plan identifies sufficient emission controls to achieve the required rate of progress (
Missouri's maintenance plan for the St. Louis area indicates emission control measures which will maintain the 1-hour ozone standard until 2014. In addition, the State's 15 percent ROP plan identifies sufficient emission controls to achieve the required rate of progress (
In the June 26, 2001, rulemaking, EPA found that both states had met their obligations to have contingency measures in the event of failure to attain the 1-hour standard. Although that finding was not challenged, the finding was vacated in the
Illinois' ozone redesignation request for the St. Louis area contains a contingency plan for the area that will result in the adoption and implementation of contingency measures as needed to maintain the ozone standard in the St. Louis area.
Missouri's ozone redesignation request for the St. Louis area contains a contingency plan for the area that will result in the adoption and implementation of contingency measures as needed to maintain the ozone standard in the St. Louis area.
Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C. of the Federal Transit Act (“transportation conformity”), as well as to all other Federally supported or funded projects (“general conformity”). Section 176 further provides that state conformity revisions must be consistent with Federal conformity regulations that the CAA required the EPA to promulgate.
EPA believes it is reasonable to interpret the conformity requirements as
The State of Illinois has fully adopted general conformity procedures, approved by the EPA on December 23, 1997 (62 FR 67000). The State does not have fully adopted and approved transportation conformity procedures in the SIP. For the reasons stated above, EPA believes the adoption of conformity rules is not a prerequisite for redesignation. For the Illinois portion of the area, the Federal conformity rules continue to apply.
The State of Missouri has adopted general conformity procedures found at 10 CSR 10-6.300, approved by EPA on May 14, 1997 (62 FR 26395), and has adopted transportation conformity procedures found at 10 CSR 10-5.480, approved by EPA on September 5, 1997 (62 FR 46880), corrected on February 10, 1998 (63 FR 6645).
For purposes of this redesignation, the part D, subpart 2, section 182 (a) and (b) requirements for a nonattainment area apply to the St. Louis area.
Section 182(b)(1) of the CAA requires an attainment demonstration that provides specific annual reductions in emissions necessary to attain the NAAQS by the attainment date. Section 182(j) provides additional requirements for multistate areas.
EPA approved Missouri's and Illinois' attainment demonstrations in the June 26, 2001, rulemaking (66 FR 33996). This rulemaking was vacated in the November 25, 2002, U.S. Court of Appeals for the Seventh Circuit (Court) decision in the
Although the approval of the attainment demonstration for the St. Louis area has been vacated, for the reasons discussed previously, EPA believes that the attainment demonstration requirement under Section 182(b)(1) and 182(j) is no longer applicable provided the area continues to attain the 1-hour ozone NAAQS. This conclusion is based upon the monitored attainment with the NAAQS. EPA believes that upon monitoring attainment, there is no need for an area to take further action regarding additional measures to achieve attainment. This is consistent with the interpretation of certain section 172(c) requirements provided by EPA in the General Preamble to Title I. EPA stated in the Preamble no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached” (57 FR 13564). Upon attainment of the NAAQS, the focus of state planning efforts shifts to the maintenance of the NAAQS and the development of a maintenance plan under section 175A. (See also, the proposal on Cincinnati-Hamilton, discussed previously in Section I.F.2 of this proposal, 65 FR 3630, 3631-32.)
Illinois has submitted a complete and accurate 1990 emissions inventory for VOC and NO
Illinois has submitted updated versions of the emissions inventories for 1996 and 2000.
Missouri submitted a complete and accurate 1990 emissions inventory of VOC and NO
Missouri submitted updated versions of the emissions inventories for 1996 as part of the ROP plan approved on May 18, 2000 (65 FR 31485), and for 2000 as part of the redesignation request submitted on December 6, 2002.
As noted in the following EPA web site for adopted SIP revisions, Illinois' SIP includes regulations requiring annual emissions statements from major sources. The Web site is:
As noted in the following EPA web site for adopted SIP revisions, Missouri's SIP includes regulations requiring annual emissions statements from major sources. The Web site is:
Missouri's requirements to submit annual emissions statements from major sources can be found at the above web site at 10 CSR 10-6.110.
Section 182(b)(1) of the CAA requires the submission of a 15 percent Rate-Of-Progress (ROP) plan. This plan is to provide for VOC emission reductions in the nonattainment area of at least 15 percent, from the 1990 baseline emissions levels, by no later than November 15, 1996. A discussion of the extent to which the requirement is applicable to an area monitoring attainment of the standard is included above. We note that the Missouri and Illinois SIPs contain these provisions as indicated below.
In November 1994 the IEPA submitted a 15 percent ROP plan for the control of VOC emissions in the Metro-East area. This ROP plan was supplemented by the state through a submittal on January 31, 1995. The ROP plan, as supplemented, was approved by the EPA in a final rulemaking on July 14, 1997 (62 FR 37494).
In 1995 MDNR submitted a 15 percent ROP plan for the control of VOC emissions in the St. Louis area. On
Sections 172(c) of the CAA specifies that SIPs must provide for the implementation of all Reasonably Available Control Measures (RACM) including all Reasonably Available Control Technology (RACT) as expeditiously as practicable to attain the NAAQS. At a minimum, the SIPs must require the implementation of RACT for two classes of VOC sources. The VOC source classes are: (a) All sources covered by a Control Techniques Guideline (CTG) document issued by the Administrator by the date of attainment of the ozone standard; and (b) all other major non-CTG stationary sources.
The Illinois redesignation request, submitted on December 30, 2002, shows that Illinois has adopted and implemented all required VOC RACT rules. EPA, through a number of rulemakings, has approved RACT rules for Illinois fully meeting the VOC RACT requirements of the CAA. The contents of these RACT rules and EPA's rulemakings approving these RACT rules are documented at the following EPA Web site:
The Missouri redesignation request, submitted on December 6, 2002, shows that Missouri has adopted and implemented all required VOC RACT rules. EPA, through a number of rulemakings, has approved RACT rules for Missouri fully meeting the RACT requirements of the CAA. The contents of these RACT rules and EPA's rulemakings approving these RACT rules are documented at the following EPA Web site:
On April 19, 2001, EPA proposed to approve Illinois' and Missouri's SIPs for the St. Louis area as meeting the RACM requirements of the CAA (66 FR 20122). The approval of the Illinois and Missouri SIPs as meeting the RACM requirements of the CAA was finalized on June 26, 2001 (66 FR 33996). As explained previously, the June 26, 2001, rule was vacated on November 25, 2002, by the Seventh Circuit in the
EPA believes that no additional RACM controls beyond what are already required in the SIP are necessary for redesignation to attainment. The General Preamble, April 16, 1992 (57 FR 13560), explains that section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of RACM as expeditiously as practicable. EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement those measures that are reasonably available and necessary to attain as expeditiously as practicable. However, measures need not be adopted, and would not be considered RACM, if they would not accelerate attainment (see 57 FR 13498, 13560). Because attainment has been achieved, no additional measures are needed to provide for attainment.
The suspension of the attainment demonstration requirements pursuant to our determination of attainment include the section 172(c)(1) RACM requirements as well. The General Preamble treats the RACM requirements as a “component” of an area's attainment demonstration. Thus, the suspension of the attainment demonstration requirement pursuant to our determination of attainment applies to the RACM requirement, since it is a component of the attainment demonstration.
Section 182(b)(3) of the CAA requires states to submit Stage II vapor recovery rules.
The Stage II vapor recovery regulations for the Metro-East area were originally found in Illinois Administrative Code, Title 35: Environmental Protection; subtitle B: Air Pollution, chapter I: Pollution Control Board, part 219: Organic Material Standards and Limitations for the Metro-East Are: subpart Y: Gasoline Distribution; section 219.583: Gasoline Dispensing Facilities—Storage Tank Filling Operations, and section 219.586: Gasoline Dispensing Facilities—Motor Vehicle Fueling Operations. EPA approved the incorporation of these regulations into the Illinois SIP on January 12, 1993 (58 FR 3841).
Section 202(a)(6) of the CAA provides that Stage II vapor recovery regulations are not required in moderate ozone nonattainment areas if EPA promulgates On-Board Vapor Recovery (OBVR) regulations for vehicles. EPA promulgated such regulations on April 6, 1994 (59 FR 16262), which became effective on May 6, 1994.
Pursuant to section 202 of the CAA, the State of Illinois repealed the Stage II vapor recovery regulations for the Metro-East area and requested a SIP revision to remove these regulations from the SIP. EPA approved the removal of these regulations from the SIP on December 16, 1994 (59 FR 64853). Therefore, the Metro-East area has no Stage II vapor recovery regulations currently in place in the SIP, and is not required to have such regulations by virtue of section 202(a)(6) of the CAA.
Missouri established a Stage II vapor recovery program in the 1970s and has revised the program periodically. On May 18, 2000 (65 FR 31489), EPA approved into Missouri's SIP the most recent revisions to the state rule entitled “Control of Petroleum Liquid Storage, Loading, and Transfer” (10 CSR 10-5.220). This rule fully adopts and implements the Stage II vapor recovery requirements in Missouri.
Section 182(b)(4) and EPA's final I/M regulations in 40 CFR part 51, subpart S require the states to submit a fully adopted I/M program.
EPA approved an enhanced vehicle I/M program for the Metro-East area as part of the Illinois SIP on February 22, 1999 (64 FR 8517). This revision to the SIP became effective on April 23, 1999.
EPA approved Missouri's I/M program on May 18, 2000 (65 FR 31480). It can be found at 10 CSR 10-5.380.
In April 2000, Missouri began testing vehicles under its SIP approved I/M program. In April 2001, EPA published revised I/M program requirements including the use of on-board diagnostics (OBD) testing. These rules are found at 40 CFR part 85. The use of OBD testing was to begin January 1, 2002.
Under EPA's new OBD rule, states were given the opportunity to request an extension of one year to implement the OBD testing. If requested, a state could delay implementation of OBD testing until January 1, 2003. In a letter dated January 10, 2002, the MDNR stated its intent to implement OBD testing but requested to delay implementation of
In August 2002, Missouri revised its state rule incorporating the requested delay and phase-in period. The new state rule requires OBD testing to begin January 1, 2003, but allows for the use of the transient emissions test only, for the retest, if a vehicle fails the initial OBD emissions test during the two-year phase-in period. EPA's rule requires an OBD test for the retest during the phase-in period.
In a separate proposed rulemaking in this
The regulation at 40 CFR 51.372(c) states, in part, that a redesignation request for any nonattainment area that would qualify for redesignation to attainment shall receive full approval of a SIP submittal if the submittal contains legal authority to implement an I/M program, the inclusion of an I/M upgrade into the contingency measures portion of the maintenance plan, and a contingency commitment that includes the legal authority and an enforceable commitment and schedule for adoption and implementation of the OBD program.
Pursuant to the provisions of 40 CFR 51.372(c), by incorporating the OBD testing program as a contingency into the maintenance plan (the OBD testing program is the I/M upgrade required by EPA's new OBD rule), and by meeting the other requirements specified in 40 CFR 51.372(c), the SIP can receive full approval.
The maintenance plan submitted by Missouri contains the OBD testing program, consistent with EPA's OBD rule, as a contingency measure in the maintenance plan. It also contains a demonstration of legal authority to adopt the program, and a schedule for adoption with appropriate milestones. EPA believes the submission meets the requirement of 40 CFR 51.372(c). A more detailed discussion of the rule is contained in EPA's proposed rule on the I/M revisions for Missouri elsewhere in this
Section 182(f) establishes NO
As part of the June 26, 2001, rulemaking (66 FR 33996) regarding the St. Louis ozone nonattainment area, EPA granted a waiver to the state of Illinois from the section 182(f) requirements for NO
EPA's policy on the NO
The EPA is reproposing to approve Illinois' request for an exemption from the NO
On May 18, 2000 (65 FR 31482), EPA approved Missouri's NO
Based on the analysis described above, EPA believes the area meets the requirements for redesignation in Section 107(d)(3)(E)(ii) and (v).
The improvement in air quality must be due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other state-adopted measures.
EPA believes that the states have demonstrated that the observed air quality improvements are due to the implementation of permanent and enforceable emission reductions through the implementation of emission controls contained in their SIPs.
Subsequent to the 1990 CAA amendments, Illinois implemented a number of emission controls. The area has complied with all of the emission requirements for a moderate ozone nonattainment area as required by the CAA.
Some of the emission reductions were achieved through the implementation of a 15 percent ROP plan, approved by EPA on December 18, 1997 (62 FR 66279). The 15 percent ROP plan produced a VOC emission reduction of 38.1 tons per day in the Metro-East area, and included both Federal and state emission control measures, including the use of low volatility gasoline, more stringent Tier I motor vehicle emission standards, implementation of a more stringent vehicle inspection and maintenance (I/M) program, controls on area sources, and the adoption of tighter emissions limits on existing stationary
All of the emission control measures contained in Illinois' 15 percent ROP plan have been fully adopted, have been implemented, and are enforceable in the Metro-East area.
Illinois has adopted and implemented emission control rules requiring existing sources of VOC to meet, at minimum, RACT. These requirements apply to sources in categories covered by CTGs and other major non-CTG sources. Some of these RACT emission controls were achieved in addition to the RACT controls reflected in the 15 percent ROP plan.
The stationary NO
MDNR explained that some of the VOC emission reductions were due to the implementation of Missouri's 15 percent ROP plan, including its implementation of a centralized motor vehicle inspection and maintenance program and stationary source controls. Additional reductions were due to tighter Federal standards for new vehicles, and some were due to requirements for reformulated and low RVP gasoline for motor vehicles. In addition, Title IV of the CAA resulted in reduced NO
In addition to identifying the controls which have led to emission reductions and air quality improvements, both Illinois and Missouri have evaluated whether ozone air quality improvements in the St. Louis area could be attributable to favorable meteorological conditions, by comparing the trend of 1-hour ozone design values
• Maximum temperatures greater than 85 degrees Fahrenheit
• Wind speeds less than 10 miles per hour
• Solar insolation greater than 500 Langleys
• Little or no precipitation
• Southerly wind directions.
The IEPA assessed the changes in VOC and NO
The table below documents the 1990 and 2000 VOC and NO
It can be seen that both the VOC emissions and NO
Similar to Illinois, Missouri compared VOC and NO
The following table presents the 1990 and 2000 VOC and NO
As can be seen from the above table, both the VOC and the NO
The states have demonstrated that the implementation of permanent and enforceable emission controls have reduced local VOC and NO
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The maintenance plan is a SIP revision that provides for maintenance of the relevant NAAQS in the area for at least 10 years after redesignation. The Calcagni memorandum dated September 4, 1992, provides additional guidance on the required content of a maintenance plan. An ozone maintenance plan should address the following five areas: the attainment emissions inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. The attainment emissions inventory identifies the emissions level in the area that is sufficient to attain the 1-hour ozone NAAQS, based on emissions during a three-year period which had no monitored violations. Maintenance is demonstrated by showing that future emissions will not exceed the level established by the attainment inventory. The “attainment inventory” approach to demonstrating maintenance was upheld in
Both Illinois and Missouri selected 2000 as “the attainment year” for purposes of demonstrating attainment of the 1-hour ozone NAAQS.
The projected 2000 VOC and NO
To demonstrate maintenance of the ozone standard through a ten-year maintenance period, both Illinois and Missouri projected VOC and NO
The following tables summarize the VOC and NO
Missouri and Illinois have addressed the maintenance plan requirements for monitoring and emissions inventories. Both have committed to continue the operation of the monitors in the area in accordance with 40 CFR part 58.
Both the states of Illinois and Missouri have the legal authority to implement and enforce the requirements of the ozone maintenance plan. This includes the authority to adopt, implement, and enforce any subsequent emission control contingency measures determined to be necessary to correct future ozone attainment problems.
To implement the ozone maintenance plan, the states will continue to monitor ozone levels in the St. Louis area. The states also committed to update the emissions inventory for the St. Louis area every three years for the duration of the maintenance plan. The ozone monitoring data and the updated emissions inventories will be used through the states' contingency plan to assure maintenance of the 1-hour ozone standard.
The contingency plan portion of each state's maintenance plans delineate the states' planned actions in the event of future 1-hour ozone standard violations, increasing ozone levels threatening a subsequent violation of the ozone standard, and unanticipated increases in ozone precursor emissions threatening a subsequent violation of the ozone standard. Illinois and Missouri have prepared similar and compatible contingency plans, with some differences in the possible emission control contingency measures list selected for each state. The states have developed contingency plans with several levels of triggered actions depending on whether the ozone standard has actually been violated after the redesignation of the area to attainment or whether a subsequent violation of the ozone standard is threatened on the basis of increased ozone concentrations approaching the standard or unanticipated significant increases in ozone precursor emissions. Each state has also committed to continue to implement all control measures included in the SIP prior to redesignation consistent with section 175A(d) of the CAA.
The action trigger levels and planned corrective actions in each contingency plan are the following:
A Level I Trigger will be exceeded if: (1) The monitored ambient ozone levels exceed 124 parts per billion, one-hour averaged, more than once per year at any monitoring site in the St. Louis maintenance area (the current St. Louis ozone nonattainment area), or more than two exceedances in any two- or three-year period; or (2) the St. Louis maintenance area's VOC or NO
A Level II Trigger will be exceeded if a violation of the 1-hour ozone NAAQS at any monitoring site in the St. Louis ozone maintenance area is recorded after the area is redesignated to attainment of the standard. If this trigger is exceeded, Illinois and Missouri will work together to conduct a thorough analysis to determine appropriate measures, from those listed below, to address the cause of the ozone standard violation.
The contingency plan for Missouri lists a number of possible contingency measures. The plan calls for the appropriate contingency measures to be adopted and implemented within 18 months of a Level I or Level II trigger being exceeded. The list of possible contingency measures in Missouri's contingency plan include the following:
Point Source Measures—
Mobile Source Measures—
Area Source Measures—
The contingency plan for Illinois lists a number of possible contingency measures. The plan calls for the appropriate contingency measures to be adopted no later than 18 months of a Level I or Level II trigger being exceeded. The list of possible contingency measures in Illinois' contingency plan include the following:
Point Source Measures—
Mobile Source Measures —
Area Source Measures—
Missouri's and Illinois' submittals adequately address the five basic components which comprise a maintenance plan (attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan) and, therefore, satisfy the maintenance plan requirement.
In addition to meeting the criteria for redesignation, as a control strategy SIP, the maintenance plans must contain motor vehicle emissions budgets that, in conjunction with emissions from all other sources, are consistent with attainment and maintenance. Illinois and Missouri developed MVEBs for the maintenance plan year of 2014. The MVEBs are for both VOC and NO
A motor vehicle emissions budget is the total allowable VOC and NO
The motor vehicle emissions budgets for the St. Louis area were developed using emission factors generated through the use of EPA's MOBILE6 model. Inputs into this model were developed through coordinated efforts and review of a workgroup formed by representatives of the IEPA, MDNR, East-West Gateway Coordinating Council, Missouri Department of Transportation, Illinois Department of Transportation, and EPA.
EPA is proposing to find the MVEBs included in Missouri's and Illinois' maintenance plans adequate and is proposing to approve these budgets for conformity purposes. EPA believes that the MVEBs submitted by each state are consistent with the control measures identified in each SIP, and that each SIP, as a whole, demonstrates maintenance with the 1-hour ozone standard.
The 2014 motor vehicle emission budgets included in the states' maintenance plans are summarized in the table below:
The official record for this proposed rule is located at the addresses in the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposed 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 proposes to approve 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 proposed 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 proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Air pollution control, National Parks, Wilderness areas.
Securities and Exchange Commission.
Final rule.
We are adopting rules requiring accounting firms to retain for seven years certain records relevant to their audits and reviews of issuers' financial statements. Records to be retained include an accounting firm's workpapers and certain other documents that contain conclusions, opinions, analyses, or financial data related to the audit or review.
Effective Date: March 3, 2003. Compliance Date: Compliance is required for audits and reviews completed on or after October 31, 2003.
Samuel L. Burke, Associate Chief Accountant, D. Douglas Alkema, Professional Accounting Fellow, or Robert E. Burns, Chief Counsel, at (202) 942-4400, Office of the Chief Accountant, U.S. Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-1103.
We are adding rule 2-06 to Regulation S-X.
As mandated by section 802 of the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley Act” or “the Act”),
Section 802 of the Sarbanes-Oxley Act
Section 1520(a)(1) specifies that: “Any accountant who conducts an audit of an issuer of securities to which section 10A(a) of the Securities Exchange Act of 1934 applies, shall maintain all audit or review workpapers for a period of 5 years from the end of the fiscal period in which the audit or review was concluded.” Section 1520(a)(2) directs the Commission to promulgate, by January 26, 2003:
* * * such rules and regulations, as are reasonably necessary, relating to the retention of relevant records such as workpapers, documents that form the basis of an audit or review, memoranda, correspondence, communications, other documents, and records (including electronic records) which are created, sent, or received in connection with an audit or review and contain conclusions, opinions, analyses, or financial data relating to such an audit or review, which is conducted by an accountant who conducts an audit of an issuer of securities to which section 10A(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78j-1(a)) applies. The Commission may, from time to time, amend or supplement the rules and regulations that it is required to promulgate under this section, after adequate notice and an opportunity for comment, in order to ensure that such rules and regulations adequately comport with the purposes of this section.
Section 1520 also provides that any person who knowingly and willfully violates subsection (a)(1), or any rule or regulation promulgated by the Securities and Exchange Commission under subsection (a)(2), may be fined, imprisoned for not more than 10 years, or both. It further provides that nothing in section 1520 shall be deemed to diminish or relieve any person of any other duty or obligation imposed by Federal or State law or regulation to maintain, or refrain from destroying, any document.
Section 802 states that the record retention requirements should apply to audits of issuers of securities to which section 10A(a) of the Securities Exchange Act of 1934 (“Exchange Act”) applies. The term “issuer” in this context is defined in section 10A(f) of the Exchange Act to include certain entities filing reports under that Act and entities that have filed and not withdrawn registration statements to sell securities under the Securities Act of 1933.
Because investment advisers and broker-dealers are not necessarily issuers, audits of their financial statements required for regulatory purposes are not subject to the rule. In other words, only the audits of the financial statements of investment advisers and broker-dealers meeting the definition of “issuer” in section 10A(f) are subject to the retention requirements in rule 2-06. One commenter suggested that investment advisers and broker-dealers be included within the scope of the rule. Letter from Lynette Downing, HLB Tautges Redpath, Ltd., dated December 27, 2002. Another commenter noted, however, that broadening some but not all rules under the Sarbanes-Oxley Act beyond “issuers” as defined in the Act would be confusing. Letter from Grant Thornton LLP dated December 27, 2002.
Neither section 802 nor the final rule exempts auditors of foreign issuers'
The availability of documents under this rule will assist in the oversight and quality of audits of an issuer's financial statements. Increased retention of identified records also may provide critical evidence of financial reporting impropriety or deficiencies in the audit process. In light of these benefits, and absent a direct conflict with foreign requirements, the retention requirements are to apply equally to domestic and foreign accounting firms auditing the financial statements of foreign issuers. Issues raised by commenters regarding Public Company Accounting Oversight Board (“the Oversight Board”) oversight of foreign accounting firms and access by the SEC and the Oversight Board to the records retained by foreign accounting firms, as provided by Section 106 of the Sarbanes-Oxley Act, will be the subject of further discussion among staff, the Commission and the Oversight Board.
In restricting the application of the rule to the audits and reviews of the financial statements of issuers and registered investment companies, we are not condoning more liberal document destruction policies for the audits and reviews of financial statements of other entities. For example, we would expect that auditors of the financial statements of those investment advisers, broker-dealers, and entities subject to Municipal Securities Rulemaking Board regulations that are not subject to the rule would retain relevant audit and review records consistent with applicable laws, regulations, and professional standards.
Paragraph (a) of rule 2-06 identifies the documents that must be retained and the time period for retaining those documents.
Paragraph (a) of the proposed rule did not contain the phrase, “records relevant to the audit or review.” The proposal listed the records to be retained without a reference to the general notion of relevance to the audit or review. In response to commenters,
In the Proposing Release, we stated that non-substantive materials that are not part of the workpapers, such as administrative records, and other documents that do not contain relevant financial data or the auditor's conclusions, opinions or analyses would not meet the second of the criteria in rule 2-06(a) and would not have to be retained. Commentators questioned whether the following documents would be considered substantive and have to be retained:
• Superseded drafts of memoranda, financial statements or regulatory filings,
• Notes on superseded drafts of memoranda, financial statements or regulatory filings that reflect incomplete or preliminary thinking,
• Previous copies of workpapers that have been corrected for typographical errors or errors due to training of new employees,
• Duplicates of documents,
• Voice-mail messages.
These records generally would not fall within the scope of new rule 2-06 provided they do not contain information or data, relating to a significant matter, that is inconsistent with the auditor's final conclusions, opinions or analyses on that matter or the audit or review.
Commenters also questioned whether all of the issuer's financial information, records, databases, and reports that the auditor examines on the issuer's premises, but are not made part of the auditor's workpapers or otherwise currently retained by the auditor, would be deemed to be “received” by the auditor under rule 2-06(a)(1) and have to be retained by the auditor.
Some commentators suggested that paragraph (a) of the proposed rule was overly broad and that the language in the rule, rather than following section 802 of the Sarbanes-Oxley Act, should conform to current auditing standards.
The final rule states that records must be retained for seven years. We proposed that these materials be retained for five years after the end of the fiscal period in which an accountant audits or reviews an issuer's financial statements,
Some commenters suggested that we adopt a uniform seven-year retention period,
Section 802 is intended to require the retention of more than what traditionally has been thought of as auditor's “workpapers.”
GAAS does not use the specific term “workpapers,”
The auditor should prepare and maintain audit documentation, the content of which should be designed to meet the circumstances of the particular audit engagement. Audit documentation is the principal record of the auditing procedures applied, evidence obtained, and conclusions reached by the auditor in the engagement.
We have placed the body of this provision into paragraph (b) and stated that “workpapers” means “documentation of auditing or review procedures applied, evidence obtained, and conclusions reached by the accountant in the audit or review engagement, as required by standards established or adopted by the Commission or by the Public Company Accounting Oversight Board.”
As noted by several commenters, there may be significant overlap of the documents falling within the definition of “workpapers” and the documents that would be retained pursuant to the description in paragraph (a) of the rule of “other documents that form the basis of the audit or review, and memoranda, correspondence, communications, other documents, and records (including electronic records), which (1) are created, sent or received in connection with the audit or review, and (2) contain conclusions, opinions, analyses, or financial data related to the audit or review.”
SAS 96 states that audit documentation serves mainly to provide the principal support for the auditor's report and to aid the auditor in the conduct and supervision of the audit.
In light of the apparent massive document destruction by Andersen, and the company's apparently misleading document retention policy, even in light of its prior SEC violations, it is intended that the SEC promulgate rules and regulations that require the retention of such substantive material, including material that casts doubt on the views expressed in the audit or review, for such a period as is reasonable and necessary for effective enforcement of the securities laws and the criminal laws, most of which have a five-year statute of limitations.
148 Cong. Rec. S7419 (July 26, 2002).
The auditor in a variety of contexts may create materials related to differences of opinion. For example, SAS No. 22, “Planning and Supervision,” states in part:
The auditor with final responsibility for the audit and assistants should be aware of the procedures to be followed when differences of opinion concerning accounting and auditing issues exist among firm personnel involved in the audit. Such procedures should enable an assistant to document his disagreement with the conclusions reached if, after appropriate consultation, he believes it necessary to disassociate himself from the resolution of the matter. In this situation, the basis for the final resolution should also be documented.
An interpretation of this section issued by the AICPA's Auditing Standards Board emphasizes the professional obligation on each person involved in an audit engagement to bring his or her concerns to the attention of others in the firm and, as appropriate, to document those concerns. This interpretation states:
Accordingly, each assistant has a professional responsibility to bring to the attention of appropriate individuals in the firm, disagreements or concerns the assistant might have with respect to accounting and auditing issues that he believes are of significance to the financial statements or auditor's report, however those disagreements or concerns may have arisen. In addition, each assistant should have a right to document his disagreement if he believes it is necessary to disassociate himself from the resolution of the matter.
In addition, SAS 96 states that the documentation for an audit should include the findings or issues that in the auditor's judgment are significant, the actions taken to address them (including any additional evidence obtained), and the basis for the final conclusions reached.
In addition, the auditor should document findings or issues that in his or her judgment are significant, actions taken to address them (including any additional evidence obtained), and the basis for the final conclusions reached.
Audit documentation should be sufficient to (a) Enable members of the engagement team with supervision and review responsibilities to understand the nature, timing, extent, and results of auditing procedures performed, and the evidence obtained; (b) indicate the engagement team member(s) who performed and reviewed the work; and (c) show that the accounting records agree or reconcile with the financial statements or other information being reported on.
We continue to believe that retaining any materials that might cast doubt on the final conclusions reflected in the auditor's report, including those created under SAS 22 and SAS 96, would be consistent with the letter and spirit of the Sarbanes-Oxley Act. One commenter, the National Association of State Boards of Accountancy (“NASBA”), endorsed requiring the retention of documents that “cast doubt” on an auditor's audit or review because “state attorneys’ general staff members assigned to accountancy boards often have complained of receiving only those documents that support the final report.” NASBA also noted, however, that the Commission promptly should revise the rule if it becomes too burdensome or otherwise unworkable.
Several commentators stated that the proposed “cast doubt” language was unworkable. They indicated that the phrase was pejorative,
Some commenters suggested language to replace the provision in subparagraph (c) that documents be retained if they “cast doubt on the final conclusions reached by the auditor.” For example, commenters suggested that records be retained only if they would constitute a reportable “disagreement” under Item 304 of Regulation S-K.
We are reluctant, however, to follow Item 304 of Regulation S-K, which has a different purpose than the rule being adopted in this release. Item 304 requires disclosure to investors of potential “opinion shopping” situations and provides a forum for the registrant, the newly engaged auditor, and the former auditor to provide their views of “disagreements” and other “reportable events.” New rule 2-06, on the other hand, addresses the retention of documents relevant to enforcement of the securities laws, Commission rules, and criminal laws.
In the proposing release we asked if, in place of the “cast doubt” language, a different test for retention of documents would be appropriate. We specifically asked if such a test should be documentation of “significant differences in professional judgment” or “differences of opinion on issues that are material to the issuer's financial statements or to the auditor's final conclusions regarding any audit or review.” Several commenters supported using one or a combination of these tests.
In consideration of the comments received, we have revised paragraph (c) of the rule. We have removed the phrase “cast doubt” to reduce the possibility that the rule mistakenly would be interpreted to reach typographical errors, trivial or “fleeting” matters, or errors due to “on-the-job” training. We continue to believe, however, that records that either support or contain significant information that is inconsistent with the auditor's final conclusions would be relevant to an investigation of possible violations of the securities laws, Commission rules, or criminal laws and should be retained. Paragraph (c), therefore, now provides that the materials described in paragraph (a) shall be retained whether they support the auditor's final conclusions or contain information or data, relating to a significant matter, that is inconsistent with the final conclusions of the auditor on that matter or on the audit or review. Paragraph (c) also states that the documents and records to be retained include, but are not limited to, those documenting consultations on or resolutions of differences in professional judgment.
The reference in paragraph (c) to “significant” matters is intended to refer to the documentation of substantive matters that are important to the audit or review process or to the financial statements of the issuer or registered investment company.
• “Matters that both (a) are significant and (b) involve issues regarding the appropriate selection, application, and consistency of accounting principles with regard to the financial statements, including related disclosures. Such matters often relate to (a) accounting for complex or unusual transactions or (b) estimates and uncertainties and, if applicable, the related management assumptions.
• “Results of auditing procedures that indicate that (a) the financial statements or disclosures could be materially misstated or (b) auditing procedures need to be significantly modified.
• “Circumstances that cause significant difficulty in applying auditing procedures that the auditor considered necessary.
• “Other findings that could result in modification of the auditor's report.” SAS 96, ¶ 9, AU § 339.09 (Footnote omitted.)
This literature may provide helpful guidance as to the scope of the term “significant.” However, the term significant as used in this rule is not limited to items identified in SAS 96. Moreover, we do not intend for the auditor's subjective judgment of whether a matter is significant to be determinative. Instead, we believe that the more objective test of what may be significant to a reasonable investor should be applied in evaluating whether information is “significant.”
Finally, we recognize that audits and reviews of financial statements are interactive processes and views within an accounting firm on accounting, auditing or disclosure issues may evolve as new information or data comes to light during the audit or review. We do not view “differences in professional judgment” within subparagraph (c) to include such changes in preliminary views when those preliminary views are based on what is recognized to be incomplete information or data.
In response to our request in the Proposing Release, commenters addressed whether issuers and registered investment companies should be required to retain documents that the auditor examines, reviews or otherwise considers during the audit or review but are not made part of the auditor's records. Commenters generally opposed such a requirement.
We also requested comments on whether a transition period was necessary or appropriate in implementing the rule. Accounting firms
Several items were raised in the comment letters that may be addressed more appropriately by the Public Company Accounting Oversight Board. For example, one commenter suggested that the Commission adopt the standard promulgated by the General Accounting Office, or a previously proposed draft auditing standard, related to the form and content of audit workpapers.
The same commenter suggested that the Commission provide that if audit work is not documented in the workpapers then the burden of proof shifts to the auditor to prove by a preponderance of evidence that the work in fact was performed.
Another commenter suggested that the Commission require that all accounting firms registered with the Public Company Accounting Oversight Board comply with consultation requirements, and related documentation requirements, currently prescribed by the SEC Practice Section of the American Institute of Certified Public Accountants for large accounting firms.
Certain provisions of rule 2-06 contain “collections of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
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 control number. Compliance with the proposed requirements would be mandatory. Rule 2-06 requires that accounting firms retain certain records for seven years. Retained information would be kept confidential unless or until made public during an enforcement, disciplinary or other legal or administrative proceeding.
The final rule, which is included in Regulation S-X, requires accountants to retain certain records for a period of seven years after the accountant concludes an audit or review of an issuer's or registered investment company's financial statements. The proposed rules do not require accounting firms to create any new records. It also is important to note that decisions about the retention of records currently are made as a part of each audit or review.
The records to be retained include records relevant to the audit or review, including workpapers and other documents that form the basis of the audit or review, and memoranda, correspondence, communications, other documents, and records (including electronic records), which are created, sent or received in connection with the audit or review, and contain conclusions, opinions, analyses, or financial data related to the audit or review. Records described in the rule are to be retained whether the conclusions, opinions, analyses, or financial data in the records support the final conclusions reached by the auditor, or contain information or data, relating to a significant matter, that is inconsistent with the final conclusions of the auditor on that matter or the audit or review. The required retention of audit and review records should discourage the destruction, and assist in the availability, of records that may be relevant to investigations conducted and litigation brought under the securities laws, Commission rules or criminal laws.
In the proposing release, we estimated that approximately 850 accounting firms audit and review the financial statements of approximately 20,000 public companies and registered
To cover all increases in burden hours, we estimated in the proposing release that, on average, the incremental burden on firms would be no more than one hour for each public company audit client, or approximately 15,000 hours.
We received comments on the proposed collection of information requirements indicating that, in view of the possible breadth of the proposed rule, the estimated burden hours appeared to be low.
The record retention requirements in rule 2-06 implement a congressional mandate. We recognize that any implementation of the Sarbanes-Oxley Act likely will result in costs as well as benefits and will have an effect on the economy. We are sensitive to the costs and benefits imposed by our rules and, in the Proposing Release, we identified certain costs and benefits of the proposed rule.
Under section 802 of the Sarbanes-Oxley Act, accountants who audit or review an issuer's financial statements must retain certain records relevant to that audit or review. Rule 2-06 implements this provision and indicates the records to be retained, but it does not require accounting firms to create any new records.
The records to be retained would include those relevant to the audit or review, including workpapers and other documents that form the basis of the audit or review and memoranda, correspondence, communications, other documents, and records (including electronic records), which are created, sent or received in connection with the audit or review, and contain conclusions, opinions, analyses, or financial data related to the audit or review. Records described in the rule would be retained whether the conclusions, opinions, analyses, or financial data in the records support the final conclusions reached by the auditor, or contain information or data, relating to a significant matter, that is inconsistent with the final conclusions of the auditor on that matter or the audit or review. The required retention of audit and review records should discourage the destruction, and assist in the availability, of records that may be relevant to investigations conducted under the securities laws, Commission rules or criminal laws.
Rule 2-06 requires that accountants retain certain records relevant to an audit or review of an issuer's or registered investment company's financial statements for seven years. To the extent that the rule increases the availability of documents beyond current professional practices, the rule may benefit investigations and litigation conducted by the Commission and others. Increased retention of these records will preserve evidence reflecting significant accounting judgments and may provide important evidence of financial reporting improprieties or deficiencies in the audit process.
One of the most important factors in the successful operation of our securities markets is the trust that investors have in the reliability of the information used to make voting and investment decisions. In addition to providing materials for investigations, the availability of the documents subject to rule 2-06 might facilitate greater oversight of audits and improved audit quality, which, in turn, ultimately could increase investor confidence in the reliability of reported financial information.
In the proposing release, we estimated that approximately 850 accounting firms audit and review the financial statements of approximately 20,000 public companies and registered investment companies filing financial statements with the Commission.
It is important to note, however, that the proposed rules do not require the creation of any record; they require only that existing records be maintained for the prescribed time period. It also is important to note that decisions about
In the proposing release, we estimated that adoption of the rule would not result in any significant increase in costs for accounting firms or issuers because the rule would not require the creation of records, would not significantly increase procedures related to the review of documents, and minimal, if any, work would be associated with the retention of these records. We indicated that the disposal of those records, which would occur in any event, merely would be delayed. In addition, because an already large and ever-increasing portion of the records required to be retained are kept electronically, we stated that the incremental increase in storage costs for documents would not be significant for any firm or for any single audit client. We recognize, however, that firms may incur some cost to retain access to older technologies as electronic storage technology advances.
For purposes of the Paperwork Reduction Act, we estimated in the proposing release the total burden to be 15,000 burden hours. We further estimated that, assuming an accounting firm's average cost of in-house staff is $110 per hour,
We received comments indicating that, based on the proposed rule, our cost estimate was low. Due to revisions made to the rule the cost estimates provided by the commenters, however, may no longer be accurate. For example, a large accounting firm stated that if it would be required to retain all financial data “received” from the issuer in the course of the audit, its current document retention costs of approximately $4.5 million would double.
Another accounting firm indicated that administrative costs of retaining records, based on the proposed rule, could include a one-time cost of $1 million and ongoing annual costs of $500,000 to $1 million.
Other accounting firms noted that many variables would affect the costs related to the rule, and that the ultimate increase in costs is difficult to quantify.
Section 23(a)(2) of the Exchange Act
We believe that rule 2-06 would not have an adverse impact on competition. To the extent the proposed rules would increase the quality of audits and the efficiency of enforcement and disciplinary proceedings, there might be an increase in investor confidence in the efficacy of the audit process and the efficiency of the securities markets.
One commenter agreed that the rule should have no adverse effect on competition.
In any event, to the extent the rule has any anti-competitive effect, or impacts efficiency, competition, or capital formation, we believe those effects are necessary and appropriate in
We received no comments indicating that the rule would impact efficiency or capital formation.
This Final Regulatory Flexibility Act Analysis has been prepared in accordance with 5 U.S.C. 604. It relates to new rule 2-06 of Regulation S-X, which requires auditors to retain certain audit and review documentation.
The rule generally carries out a congressional mandate. The rule, in general, prohibits the destruction for seven years of certain records related to the audit or review of an issuer's or registered investment company's financial statements.
The objective of the rule is to implement section 802 of the Sarbanes-Oxley Act in order to increase investor confidence in the audit process and in the reliability of reported financial information. This is accomplished by defining the records to be retained related to an audit or review of an issuer's financial statements. Having these records available should enhance oversight of corporate reporting and of the performance of auditors and facilitate the enforcement of the securities laws.
One commenter anticipated that the record retention requirements, if adopted as proposed, would have placed an “enormous” burden on small accounting firms, and could have resulted in some firms deciding to no longer audit public companies.
Furthermore, one commenter noted that records management procedures for smaller accounting firms should be the same as they are for larger firms.
Our rules do not define “small business” or “small organization” for purposes of accounting firms. The Small Business Administration defines small business, for purposes of accounting firms, as those with under $6 million in annual revenues.
In the Initial Regulatory Flexibility Analysis we requested comment on the number of firms with less than $6 million in revenue in order to determine the number of small firms potentially affected by the rule, but we received no response.
Under the new rule,
In the Proposing Release, we estimated that adoption of the rule would not result in any significant increase in costs for accounting firms or issuers because the rule would not require the creation of records, would not significantly increase procedures related to the review of documents, and minimal, if any, work would be associated with the retention of these records. We indicated that the disposal of those records, which would occur in any event, merely would be delayed. In addition, because an already large and ever-increasing portion of the records required to be retained are kept electronically, we stated that the incremental increase in storage costs for documents would not be significant for any firm or for any single audit client.
For purposes of the Paperwork Reduction Act, we estimated in the proposing release the total burden to be 15,000 burden hours. We further estimated that, assuming an accounting firm's average cost of in-house staff is $110 per hour,
We received comments indicating that, based on the proposed rule, our cost estimate was low. Due to revisions made to the rule the cost estimates
Another accounting firm indicated that administrative costs of retaining records, based on the proposed rule, could include a one-time cost of $1 million and ongoing annual costs of $500,000 to $1 million.
Other accounting firms noted that many variables would affect the costs related to the rule, and that the ultimate increase in costs is difficult to quantify.
The Regulatory Flexibility Act directs us to consider significant alternatives that would accomplish the stated objective, while minimizing any significant adverse impact on small entities. In connection with the proposed amendments, we considered the following alternatives:
1. The establishment of differing compliance or reporting requirements or timetables that take into account the resources of small entities;
2. The clarification, consolidation, or simplification of compliance and reporting requirements under the rule for small entities;
3. The use of performance rather than design standards; and
4. An exemption from coverage of the proposed amendments, or any part thereof, for small entities.
The Sarbanes-Oxley Act provides the basis for the requirements and timetables for the record retention rules. The rule is designed to require the retention of those records necessary for oversight of the audit process, to enhance the reliability and credibility of financial statements for all public companies, and to facilitate enforcement of the securities laws.
We considered not applying the proposals to small accounting firms. We believe, however, that investors would benefit if accountants subject to the proposed record retention rules, regardless of their size, audit all companies. We do not believe that it is feasible to further clarify, consolidate, or simplify the proposed rules for small entities.
The “Codification of Financial Reporting Policies” announced in Financial Reporting Release No. 1 (April 15, 1982) is amended as follows:
By amending section 602 to add a new discussion at the end of that section under Financial Reporting Release Number 66 (FR-66) that includes the text in Section II of this release.
The Codification is a separate publication of the Commission. It will not be published in the Code of Federal Regulations.
We are adopting amendments to Regulation S-X under the authority set forth in sections 3(a) and 802 of the Sarbanes-Oxley Act, and Schedule A and sections 7, 8, 10, 19 and 28 of the Securities Act, sections 3, 10A, 12, 13, 14, 17, 23 and 36 of the Exchange Act, sections 5, 10, 14 and 20 of the Public Utility Holding Company Act of 1935, sections 8, 30, 31, 32 and 38 of the Investment Company Act of 1940.
Accountants, Accounting.
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77aa(25), 77aa(26), 78j-1, 78
(a) For a period of seven years after an accountant concludes an audit or review of an issuer's financial statements to which section 10A(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78j-1(a)) applies, or of the financial statements of any investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8), the accountant shall retain records relevant to the audit or review, including workpapers and other documents that form the basis of the audit or review, and memoranda, correspondence, communications, other documents, and records (including electronic records), which:
(1) Are created, sent or received in connection with the audit or review, and
(2) Contain conclusions, opinions, analyses, or financial data related to the audit or review.
(b) For the purposes of paragraph (a) of this section,
(c) Memoranda, correspondence, communications, other documents, and records (including electronic records) described in paragraph (a) of this section shall be retained whether they support the auditor's final conclusions regarding the audit or review, or contain information or data, relating to a significant matter, that is inconsistent with the auditor's final conclusions regarding that matter or the audit or review. Significance of a matter shall be determined based on an objective analysis of the facts and circumstances. Such documents and records include, but are not limited to, those documenting a consultation on or resolution of differences in professional judgment.
(d) For the purposes of paragraph (a) of this section, the term
By the Commission.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Advance notice of proposed rulemaking.
The Federal Acquisition Regulatory Council is soliciting comments regarding the implementation of section 4203 of the Federal Acquisition Reform Act (the Act) with respect to Commercially Available Off-the-Shelf Item Acquisitions. The Act requires the Federal Acquisition Regulation (FAR) to list certain provisions of law that are inapplicable to contracts for acquisition of commercially available off-the-shelf items. The statute excludes section 15 of the Small Business Act and bid protest procedures from the list. The list of statutes cannot include a provision of law that provides for criminal or civil penalties.
Certain laws have already been determined to be inapplicable to all commercial items as a result of the implementation of the Federal Acquisition Streamlining Act of 1994 (see FAR 12.503). The additional provisions of law that could be determined inapplicable to commercially available off-the-shelf items are listed under
Comments are due on or before March 31, 2003.
Interested parties should submit written comments to—General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035,
Submit electronic comments via the Internet to—
Please submit comments only and cite FAR case 2000-305 in all correspondence related to this case.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-4764. Please cite FAR case 2000-305.
The provisions of law that could be determined inapplicable to commercially available off-the-shelf items are: 5 U.S.C. 552a, Privacy Act (
For purposes of this notice, a “commercially available off-the-shelf item”—
(a) Means any item of supply, other than real property, that—
(1) Is of a type customarily used by the general public for nongovernmental purposes;
(2) Has been sold in substantial quantities in the commercial marketplace; and
(3) Is offered to the Government, without modification, in the same form in which it is sold in the commercial marketplace.
(b) This does not include bulk cargo, as defined in 46 U.S.C. App. 1702, such as agricultural and petroleum products.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to revise the depreciation cost principle.
Interested parties should submit comments in writing on or before March 31, 2003 to be considered in the formulation of a final rule.
Submit written comments to—General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Attn: Laurie Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to—
Please submit comments only and cite FAR case 2001-026 in all correspondence related to this case.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Mr. Ralph De Stefano at (202) 501-1758. Please cite FAR case 2001-026.
The Councils performed a comprehensive review of the cost principle at FAR 31.205-11, Depreciation, to evaluate the need for each specific requirement. As a result of the review, the Councils are proposing to revise the cost principle as follows:
1.
2.
3.
4.
5.
6. The rule makes other changes to clarify, improve the structure, and remove redundancies throughout the cost principle.
This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2 and 31 as set forth below:
1. The authority citation for 48 CFR parts 2 and 31 continues to read as follows:
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 2.101 in paragraph (b) by adding, in alphabetical order, the definition “Depreciation” to read as follows:
3. Revise section 31.205-11 to read as follows:
(a) Depreciation on a contractor's plant, equipment, and other capital facilities is an allowable contract cost, subject to the limitations contained in this cost principle. For tangible personal property, only estimated residual values that exceed 10 percent of the capitalized cost of the asset shall be used in establishing depreciable costs. Depreciation cost that would reduce the book value of a tangible capital asset below its residual value is unallowable.
(b) Contractors having contracts subject to 48 CFR 9904.409, Depreciation of Tangible Capital Assets, shall adhere to the requirement of that standard for all fully CAS-covered contracts and may elect to adopt the standard for all other contracts. All requirements of 48 CFR 9904.409 are applicable if the election is made, and contractors shall continue to follow it until notification of final acceptance of all deliverable items on all open negotiated Government contracts.
(c) For contracts to which 48 CFR 9904.409 is not applied: Except as indicated in paragraphs (g) and (h) of this subsection, allowable depreciation shall not exceed the amount used for financial accounting purposes and shall be determined in a manner consistent with the depreciation policies and procedures followed in the same segment on non-Government business.
(d) Depreciation, rental, or use charges are unallowable on property acquired from the Government at no cost by the contractor or by any division, subsidiary, or affiliate of the contractor under common control.
(e) The depreciation on any item that meets the criteria for allowance at price under 31.205-26(e) may be based on that price, provided the same policies and procedures are used for costing all business of the using division, subsidiary, or organization under common control.
(f) No depreciation or rental is allowed on property fully depreciated by the contractor or by any division, subsidiary, or affiliate of the contractor under common control. However, a reasonable charge for using fully depreciated property may be agreed upon and allowed (but see 31.109(h)(2)). In determining the charge, the contractor shall consider cost, total estimated useful life at the time of negotiations, effect of any increased maintenance charges or decreased efficiency due to age, and the amount of depreciation previously charged to Government contracts or subcontracts.
(g) Whether or not the contract is otherwise subject to CAS, the contractor shall comply with the requirements of 31.205-52, which limit the allowability of depreciation.
(h) In the event of a write-down from carrying value to fair value as a result of impairments caused by events or changes in circumstances, allowable depreciation of the impaired assets is limited to the amounts that would have been allowed had the assets not been written down (see 31.205-16(g)). However, this does not preclude a change in depreciation resulting from other causes such as permissible changes in estimates of service life, consumption of services, or residual value.
(i) A “capital lease” as defined in Statement of Financial Accounting Standard No. 13 (FAS-13), Accounting for Leases, is subject to the requirements of this cost principle. FAS-13 requires that capital leases be treated as purchased assets;
(1) Rental costs under a sale and leaseback arrangement are allowable up to the amount that would have been allowed had the contractor retained title to the asset.
(2) If it is determined that the terms of the capital lease have been significantly affected by the fact that the lessee and lessor are related, depreciation charges are not allowable in excess of those that would have occurred if the lease contained terms consistent with those found in a lease between unrelated parties.
(j) The undepreciated balance of assets acquired before the effective date of this cost principle need not be retroactively adjusted if the assets were properly depreciated on Government contracts at the time the depreciation was charged. However, the remaining undepreciated balance as of the effective date of this cost principle shall be depreciated using the same method as used for financial statement purposes.
4. Amend section 31.205-16 in the first sentence of paragraph (b) by removing “31.205-11(m))” and adding “31.205-11(i))” in its place.
5. Amend section 31.205-36 by revising paragraph (a); and removing paragraph (b)(4) to read as follows:
(a) This subsection is applicable to the cost of renting or leasing real or personal property acquired under “operating leases” as defined in Statement of Financial Accounting Standards No. 13 (FAS-13), Accounting for Leases. Compliance with 31.205-11(i) requires that assets acquired by means of capital leases, as defined in FAS-13, be treated as purchased assets;
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to amend the insurance and indemnification cost principle and the portion of the compensation cost principle relating to pension costs.
Interested parties should submit comments in writing on or before March 31, 2003 to be considered in the formulation of a final rule.
Submit written comments to—General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035,
Submit electronic comments via the Internet to—
Please submit comments only and cite FAR case 2001-037 in all correspondence related to this case.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Mr. Ralph De Stefano at (202) 501-1758. Please cite FAR case 2001-037.
The Councils have performed an analysis of FAR 31.205-6(j), Pension costs, and FAR 31.205-19, Insurance and indemnification, and propose the following revisions:
1. Substitute the term “assign” for the term “account” in the newly renumbered paragraphs (j)(1) and (j)(5) of FAR 31.205-6 in order to be consistent with the terminology used in 48 CFR 9904.412, Cost Accounting Standard for Composition and Measurement of Pension Cost (CAS 412), and 48 CFR 9904.413, Adjustment and Allocation of Pension Cost (CAS 413).
2. Revise the current paragraph (j)(4)(i) (renumbered as (j)(3)(i)) at FAR 31.205-6 and the contract clause at FAR 52.215-15 to specifically address how the Government will receive the pension cost adjustment amount when there is a segment closing, a pension plan termination, or a curtailment of benefits for CAS-covered and non-CAS-covered contracts.
3. Move and revise the current paragraph FAR 31.205-6(j)(8) that addresses employee stock ownership plans (ESOPs).
a. Move the discussion of ESOPs out of the current paragraph FAR 31.205-6(j) that addresses pension plans to a new paragraph FAR 31.205-6(q) so that the discussion of ESOPs is included in the coverage addressing all deferred compensation plans, both pension and nonpension.
b. Delete the term “individual” from the phrase “individual stock bonus plan” to preclude misinterpretation that a separate plan is required for each employee.
c. Add the term “primarily” to the phrase “invest in the stock of the employer corporation” to clarify that an ESOP does not have to invest 100 percent in the stock of the employer corporation.
d. Consistent with current policies and recent developments in applicable case law, clarify that ESOP costs are to be measured, assigned and allocated in accordance with 48 CFR 9904.412 for ESOPs that meet the definition of a pension plan, and in accordance with 48 CFR 9904.415, Accounting for the Cost of Deferred Compensation, for all other ESOPs. As ESOP accounting techniques continue to evolve, this FAR provision may require further modifications,
e. Increase the limitation of ESOP contributions in any one year from 15 percent to 25 percent, which is consistent with the Internal Revenue Code limitation on ESOP contributions for corporations.
f. Remove the requirement for the contracting officer to approve the contribution rate in order to be consistent with the requirements for defined contribution pension and deferred compensation plans that are not ESOPs.
4. Eliminate the discount rate provision at the current paragraph FAR 31.205-19(a)(3)(i). The CAS Board revised 48 CFR 9904.416, Accounting for Insurance Costs, to use the Treasury Rate, which is the same rate currently contained in the insurance and indemnification cost principle. Therefore, it is no longer necessary for the cost principle to specify the discount rate.
5. Other editorial changes. The rule makes other editorial changes, including deleting—
a. The current paragraph FAR 31.205-6(j)(1) since FAR 31.001 already has a definition of “pension plan” that is the same as the definition in CAS 412 and 413;
b. The descriptions of defined-benefit pension plans at FAR 31.205-6(j)(3) and defined-contribution pension plans at FAR 31.205-6(j)(5) since the definitions of these terms are currently at FAR 31.001.
c. References to “reasonableness” and “allocability” currently found at FAR 31.205-6(j)(2)(ii) and (j)(3)(ii) because these general allowability standards are already addressed at FAR 31.201-2 and FAR 31.201-3. The Councils do not intend to make these changes to alter any current policy.
This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 31 and 52 as set forth below:
1. The authority citation for 48 CFR parts 31 and 52 continues to read as follows:
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 31.205-6 by—
a. Removing from the second sentence of paragraph (g)(1) “(j)(7)” and adding “(j)(6)” in its place;
b. Revising paragraph (j);
c. Removing from the second parenthetical in paragraph (p)(2)(i) “paragraphs (j)(5) and (j)(8)” and adding “paragraphs (j)(4) and (q)” in its place; and
d. Adding paragraph (q) to read as follows:
(j)
(i) Except for nonqualified pension plans using the pay-as-you-go cost method, to be allowable in the current year, the contractor shall fund pension costs by the time set for filing of the Federal income tax return or any extension. Pension costs assigned to the current year, but not funded by the tax return time, are not allowable in any subsequent year. For nonqualified pension plans using the pay-as-you-go method, to be allowable in the current year, the contractor shall allocate pension costs in the cost accounting period that the pension costs are assigned.
(ii) Pension payments must be paid pursuant to an agreement entered into in good faith between the contractor and employees before the work or services are performed; and the terms and conditions of the established plan. The cost of changes in pension plans are not allowable if the changes are discriminatory to the Government or are not intended to be applied consistently for all employees under similar circumstances in the future.
(iii) Except as provided for early retirement benefits in paragraph (j)(6) of this subsection, one-time-only pension supplements not available to all participants of the basic plan are not allowable as pension costs, unless the supplemental benefits represent a separate pension plan and the benefits are payable for life at the option of the employee.
(iv) Increases in payments to previously retired plan participants covering cost-of-living adjustments are allowable if paid in accordance with a policy or practice consistently followed.
(2)
(i)(A) Except for nonqualified pension plans, pension costs (see 48 CFR 9904.412-40(a)(1)) assigned to the current accounting period, but not funded during it, are not allowable in subsequent years (except that a payment made to a fund by the time set for filing the Federal income tax return or any extension thereof is considered to have been made during such taxable year). However, any portion of pension cost computed for a cost accounting period, that exceeds the amount required to be funded pursuant to a waiver granted under the provisions of the Employee Retirement Income Security Act of 1974 (ERISA), will be allowable in those future accounting periods in which the funding of such excess amounts occurs (see 48 CFR 9904.412-50(c)(5)).
(B) For nonqualified pension plans, except those using the pay-as-you-go cost method, allowable costs are limited to the amount allocable in accordance with 48 CFR 9904.412-50(d)(2).
(C) For nonqualified pension plans using the pay-as-you-go cost method, allowable costs are limited to the amounts allocable in accordance with 48 CFR 9904.412-50(d)(3).
(ii) Any amount funded in excess of the pension cost assigned to a cost accounting period is not allowable in that period and shall be accounted for as set forth at 48 CFR 9904.412-50(a)(4). The excess amount is allowable in the future period to which it is assigned, to the extent it is not otherwise unallowable.
(iii) Increased pension costs are unallowable if the increase is caused by a delay in funding beyond 30 days after each quarter of the year to which they are assignable. If a composite rate is used for allocating pension costs between the segments of a company and if, because of differences in the timing of the funding by the segments, an inequity exists, allowable pension costs for each segment will be limited to that particular segment's calculation of pension costs as provided for in 48 CFR 9904.413-50(c). The contractor shall make determinations of unallowable costs in accordance with the actuarial method used in calculating pension costs.
(iv) The contracting officer will consider the allowability of the cost of indemnifying the Pension Benefit Guaranty Corporation (PBGC) under ERISA section 4062 or 4064 arising from terminating an employee deferred compensation plan on a case-by-case basis, provided that if insurance was required by the PBGC under ERISA section 4023, it was so obtained and the indemnification payment is not recoverable under the insurance. Consideration under the foregoing circumstances will be primarily for the purpose of appraising the extent to which the indemnification payment is allocable to Government work. If a beneficial or other equitable relationship exists, the Government will participate, despite the requirements of 31.205-19(c)(3) and (d)(3), in the indemnification payment to the extent of its fair share.
(v) Increased pension costs resulting from the withdrawal of assets from a pension fund and transfer to another employee benefit plan fund, or transfer of assets to another account within the same fund, are unallowable except to the extent authorized by an advance agreement. If the withdrawal of assets from a pension fund is a plan termination under ERISA, the provisions of paragraph (j)(3) of this subsection apply. The advance agreement shall—
(A) State the amount of the Government's equitable share in the gross amount withdrawn or transferred; and
(B) Provide that the Government receive a credit equal to the amount of the Government's equitable share of the gross withdrawal or transfer.
(3)
(A) For contracts and subcontracts that are subject to full coverage under the Cost Accounting Standards (CAS) Board rules and regulations, the amount measured, assigned, and allocated in accordance with 48 CFR 9904.413-50(c)(12);
(B) For contracts and subcontracts that are not subject to full coverage under the CAS, the amount measured, assigned, and allocated in accordance with 48 CFR 9904.413-50(c)(12), except the numerator of the fraction at 48 CFR 9904.413-50(c)(12)(vi) is the sum of the pension plan costs allocated to all non-CAS-covered contracts and subcontracts that are subject to Subpart 31.2 or for which cost or pricing data were submitted; and
(C) Credited to the Government either as a cost reduction or by cash refund, at the option of the Government.
(ii) For all other situations where assets revert to the contractor, or such assets are constructively received by it for any reason, the contractor shall, at the Government's option, make a refund or give a credit to the Government for its equitable share of the gross amount withdrawn. The Government's equitable share shall reflect the Government's participation in pension costs through those contracts for which cost or pricing data were submitted or that are subject to Subpart 31.2. Excise taxes on pension plan asset reversions or withdrawals under this paragraph (j)(3)(ii) are unallowable in accordance with 31.205-41(b)(6).
(4)
(i) Allowable pension cost is limited to the net contribution required to be made for a cost accounting period after taking into account dividends and other credits, where applicable. However, any portion of pension cost computed for a cost accounting period that exceeds the amount required to be funded pursuant to a waiver granted under the provisions of ERISA will be allowable in those future accounting periods in which the funding of such excess amounts occurs (see 48 CFR 9904.412-50(c)(5)).
(ii) The provisions of paragraphs (j)(2)(ii) and (iv) of this subsection apply to defined-contribution plans.
(5)
(6)
(i) The contractor measures, assigns, and allocates the costs in accordance with the contractor's accounting practices for pension costs;
(ii) The incentives are in accordance with the terms and conditions of an early retirement incentive plan;
(iii) The contractor applies the plan only to active employees. The cost of extending the plan to employees who retired or were terminated before the adoption of the plan is unallowable; and
(iv) The present value of the total incentives given to any employee in excess of the amount of the employee's annual salary for the previous fiscal year before the employee's retirement is unallowable. The contractor shall compute the present value in accordance with its accounting practices for pension costs. The contractor shall account for any unallowable costs in accordance with 48 CFR 9904.412-50(a)(2).
(q)
(2) Costs of ESOPs are allowable subject to the following conditions:
(i) For ESOPs that meet the definition of a pension plan at 31.001, the contractor—
(A) Measures, assigns, and allocates the costs in accordance with 48 CFR 9904.412;
(B) Funds the pension costs by the time set for filing of the Federal income tax return or any extension. Pension costs assigned to the current year, but not funded by the tax return time, are not allowable in any subsequent year; and
(C) Meets the requirements of paragraph (j)(2)(ii) of this section.
(ii) For ESOPs that do not meet the definition of a pension plan at 31.001, the contractor measures, assigns, and allocated costs in accordance with 48 CFR 9904.415.
(iii) Contributions by the contractor in any one year that exceed 25 percent of salaries and wages of employees participating in the plan in that year are unallowable.
(iv) When the contribution is in the form of stock, the value of the stock contribution is limited to the fair market value of the stock on the date that title is effectively transferred to the trust.
(v) When the contribution is in the form of cash—
(A) Stock purchases by the ESOT in excess of fair market value are unallowable; and
(B) When stock purchases are in excess of fair market value, the contractor shall credit the amount of the excess to the same indirect cost pools that were charged for the ESOP contributions in the year in which the stock purchase occurs. However, when the trust purchases the stock with borrowed funds which will be repaid over a period of years by cash contributions from the contractor to the trust, the contractor shall credit the excess price over fair market value to the indirect cost pools pro rata over the period of years during which the contractor contributes the cash used by the trust to repay the loan.
(vi) When the fair market value of unissued stock or stock of a closely held corporation is not readily determinable, the valuation will be made on a case-by-case basis taking into consideration the guidelines for valuation used by the IRS.
3. Revise section 31.205-19 to read as follows:
(a) Insurance by purchase or by self-insuring includes—
(1) Coverage the contractor is required to carry or to have approved, under the terms of the contract; and
(2) Any other coverage the contractor maintains in connection with the general conduct of its business.
(b) For purposes of applying the provisions of this subsection, the Government considers insurance provided by captive insurers (insurers owned by or under control of the contractor) as self-insurance, and charges for it shall comply with the provisions applicable to self-insurance costs in this subsection. However, if the captive insurer also sells insurance to the general public in substantial quantities and it can be demonstrated that the charge to the contractor is based on competitive market forces, the Government will consider the insurance as purchased insurance.
(c) Whether or not the contract is subject to CAS, self-insurance charges
(1) The contractor shall measure, assign, and allocate costs in accordance with 48 CFR 9904.416, Accounting for Insurance Costs.
(2) The contractor shall comply with FAR Part 28. However, approval of a contractor's insurance program in accordance with FAR Part 28 does not constitute a determination as to the allowability of the program's cost.
(3) If purchased insurance is available, any self-insurance charge plus insurance administration expenses in excess of the cost of comparable purchased insurance plus associated insurance administration expenses is unallowable.
(4) Self-insurance charges for risks of catastrophic losses (large dollar coverage with a very low frequency of loss) are unallowable (
(d) Purchased insurance costs are allowable, subject to paragraph (e) of this subsection and the following limitations:
(1) For contracts subject to full CAS coverage, the contractor shall measure, assign, and allocate costs in accordance with 48 CFR 9904.416.
(2) For all contracts, premiums for insurance purchased from fronting insurance companies (insurance companies not related to the contractor but who reinsure with a captive insurer of the contractor) are unallowable to the extent they exceed the sum of—
(i) The amount that would have been allowed had the contractor insured directly with the captive insurer; and
(ii) Reasonable fronting company charges for services rendered.
(3) Actual losses are unallowable unless expressly provided for in the contract, except—
(i) Losses incurred under the nominal deductible provisions of purchased insurance, in keeping with sound business practice, are allowable; and
(ii) Minor losses, such as spoilage, breakage, and disappearance of small hand tools that occur in the ordinary course of business and that are not covered by insurance are allowable.
(e) Self-insurance and purchased insurance costs are subject to the cost limitations in the following paragraphs:
(1) Costs of insurance required or approved pursuant to the contract are allowable.
(2) Costs of insurance maintained by the contractor in connection with the general conduct of its business are allowable subject to the following limitations:
(i) Types and extent of coverage shall follow sound business practice, and the rates and premiums shall be reasonable.
(ii) Costs allowed for business interruption or other similar insurance shall be limited to exclude coverage of profit.
(iii) The cost of property insurance premiums for insurance coverage in excess of the acquisition cost of the insured assets is allowable only when the contractor has a formal written policy assuring that in the event the insured property is involuntarily converted, the new asset shall be valued at the book value of the replaced asset plus or minus adjustments for differences between insurance proceeds and actual replacement cost. If the contractor does not have such a formal written policy, the cost of premiums for insurance coverage in excess of the acquisition cost of the insured asset is unallowable.
(iv) Costs of insurance for the risk of loss of, or damage to, Government property are allowable only to the extent that the contractor is liable for such loss or damage and such insurance does not cover loss or damage which results from willful misconduct or lack of good faith on the part of any of the contractor's directors or officers, or other equivalent representatives.
(v) Costs of insurance on the lives of officers, partners, proprietors, or employees are allowable only to the extent that the insurance represents additional compensation (see 31.205-6).
(3) The cost of insurance to protect the contractor against the costs of correcting its own defects in materials and workmanship is unallowable. However, insurance costs to cover fortuitous or casualty losses resulting from defects in materials or workmanship are allowable as a normal business expense.
(4) Premiums for retroactive or backdated insurance written to cover losses that have occurred and are known are unallowable.
(5) The Government is obligated to indemnify the contractor only to the extent authorized by law, as expressly provided for in the contract, except as provided in paragraph (d)(3) of this subsection.
(6) Late premium payment charges related to employee deferred compensation plan insurance incurred pursuant to Section 4007 (29 U.S.C. 1307) or Section 4023 (29 U.S.C. 1323) of the Employee Retirement Income Security Act of 1974 are unallowable.
4. Amend section 52.215-15 by revising the date of the clause and paragraph (b) to read as follows:
(b) For segment closings, pension plan terminations, or curtailment of benefits, the amount of the adjustment shall be—
(1) For contracts and subcontracts that are subject to full coverage under the Cost Accounting Standards (CAS) Board rules and regulations (48 CFR Chapter 99), the amount measured, assigned, and allocated in accordance with 48 CFR 9904.413-50(c)(12);
(2) For contracts and subcontracts that are not subject to full coverage under the CAS, the amount measured, assigned, and allocated in accordance with 48 CFR 9904.413-50(c)(12), except the numerator of the fraction at 48 CFR 904.413-50(c)(12)(vi) shall be the sum of the pension plan costs allocated to all non-CAS covered contracts and subcontracts that are subject to Federal Acquisition Regulation (FAR) Subpart 31.2 or for which cost or pricing data were submitted; and
(3) Credited to the Government either as a cost reduction or by cash refund, at the option of the Government.