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Federal Deposit Insurance Corporation.
Final rule.
The Federal Deposit Insurance Corporation (FDIC) has adopted a final rule regarding whether and under what circumstances the FDIC will grant deposit insurance to a State bank chartered as a limited liability company (LLC). Pursuant to section 5 of the Federal Deposit Insurance Act (FDI Act) the FDIC may grant deposit insurance only to certain depository institutions. One of the statutory requirements for a State bank to be eligible for Federal deposit insurance is that it must be “incorporated under the laws of any State.” In the recent past the FDIC received two inquiries regarding whether a State bank that is chartered as an LLC (a “Bank-LLC”) could be considered to be “incorporated” for purposes of that requirement. The final rule provides that a bank that is chartered as an LLC under State law would be considered to be “incorporated” under State law if it possesses the four traditional, corporate characteristics of perpetual succession, centralized management, limited liability and free transferability of interests.
Mindy West Schwartzstein, Examination Specialist, Division of Supervision and Consumer Protection, (202) 898-7221, or Robert C. Fick, Counsel, Legal Division, (202) 898-8962, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
Generally, the FDIC may grant deposit insurance only to depository institutions that are engaged in the business of receiving deposits other than trust funds.
Any bank, banking association, trust company, savings bank, industrial bank * * * or other banking institution which—
(A) Is engaged in the business of receiving deposits other than trust funds * * * and
(B) Is incorporated under the laws of any State or which is operating under the Code of Law for the District of Columbia (except a national bank),
Including any cooperative bank or other unincorporated bank the deposits of which were insured by the Corporation on the day before August 9, 1989.
Recently, two banks expressed an interest in obtaining Federal deposit insurance for a State bank that would be chartered as an LLC.
At common law there were generally three types of business entities: proprietorships, partnerships, and corporations. A proprietorship is an individual carrying on a business for profit. A partnership is generally an association of two or more persons to carry on as co-owners a business for profit.
[A] corporation is an artificial being, * * * existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it * * * Among the most important are immortality and * * * individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual.
The lack of any universal agreement as to the characteristics of a corporation
Perpetual succession (also sometimes known as continuity of life) is not generally construed to mean immortality; rather perpetual succession means that the entity continues to exist independent of its owners. For example, the death or withdrawal of a shareholder of a corporation does not terminate the existence of the corporation. Perpetual succession is an attribute that distinguishes corporations from partnerships because partnerships are created and exist by agreement of the owners (the partners). The death or withdrawal of a partner generally terminates the partnership. A corporation, on the other hand, is created and exists by virtue of a grant of authority from the State, and the death or withdrawal of a shareholder does not terminate the corporation.
Centralized management generally means that continuing, exclusive authority to manage the entity is vested in a group of individuals appointed or elected by the owners. The owners, therefore, do not have the exclusive authority to directly manage the entity. For example, the shareholders of the corporation elect a group of individuals (who may or may not be owners) to be its Board of Directors, and the Board of Directors manages the corporation. In a partnership, the general partner(s) have the exclusive authority to manage the affairs of the partnership.
Limited liability generally means that an owner of the entity is not personally liable for the debts of the entity; rather, the maximum potential liability of an owner is limited to the owner's investment in the entity. For example, the shareholders of a corporation are generally not liable for the corporation's debts, and the maximum amount that a shareholder could lose if the corporation incurs liabilities beyond its assets is his or her investment. This attribute also distinguishes a corporation from a partnership because in a partnership the general partners typically are fully liable for the debts of the partnership.
Free transferability of interests generally means that an owner of the entity may transfer an ownership interest in the entity without the consent or approval of the other owners. For example, a shareholder of a corporation can generally transfer all or a part of his or her shares to another person without the consent or approval of any other shareholder. However, in closely-held corporations, it is a common practice for shareholders to enter into agreements requiring a selling shareholder to obtain the prior approval of the remaining shareholders. In partnerships, a partner generally cannot transfer his or her interest without the consent of the other partners. This is so because partnerships exist by virtue of an agreement among all of the owners. However, even when the other partners consent, the original partnership technically is terminated, and a new partnership is created.
As noted above, a key distinction between a corporation and a partnership is that a corporation is created by a grant of authority from the State, whereas a partnership is created by agreement among the co-owners. A corporation, unlike a partnership, is a legal entity separate and apart from its owners, and the Federal income tax laws reflect that separate existence. As a result, a corporation's income is effectively taxed twice, once at the corporation level, and again at the shareholders' level when the shareholders receive the corporation's income as dividends. However, because a partnership is not a legal entity separate from its owners, a partnership's income is not taxed at the partnership level, but is attributed directly to the partners and taxed only at the individual partners' level. This feature of a partnership is sometimes called “pass-through tax treatment,” and is generally considered to be a significant advantage over the tax treatment of a corporation's income.
Since the characterization of a business entity as a “corporation” has significant tax implications, the Internal Revenue Service (IRS) established rules to determine whether an entity would be taxed as a corporation or a partnership. Prior to its amendment in 1997, Treas. Reg. § 301.7701-2 classified an association of two or more persons who had the purpose of carrying on a business and dividing the profits as either a partnership or a corporation depending upon whether the association possessed more corporate characteristics than noncorporate characteristics. The four corporate characteristics that the IRS utilized were: continuity of life (perpetual succession), centralized management, limited liability, and free transferability of interests. Under the former IRS regulations, if an association possessed at least three of the four corporate characteristics, it would be treated as a corporation for federal income tax purposes. As noted above, after 1996 the IRS no longer utilized the corporate characteristics test and now permits business entities that are not specifically classified as corporations in the regulation to elect partnership tax treatment.
In August 1996 Congress amended the Internal Revenue Code to allow eligible financial institutions to elect subchapter S status for federal income tax purposes.
These limitations on the number and type of permissible shareholders have been cited as principal reasons why subchapter S status does not provide banks with a practical way of gaining
Generally, an LLC is a business entity that combines the limited liability of a corporation with the pass-through tax treatment of a partnership.
An LLC is established by filing articles of organization with the State. These articles are roughly equivalent to a corporation's articles of incorporation. Every LLC has an operating agreement which is a contract executed by the members that sets forth the manner in which the business of the LLC will be conducted. The operating agreement establishes the rights, powers, duties, and liabilities of the members with respect to each other and with respect to the LLC. It contains provisions detailing such matters as the LLC's management structure, capital contributions, accounting, distributions, transfers of a member's interest, and dissolution. As used in many LLC statutes, a “member” of an LLC is a person who owns an interest in the LLC and is roughly equivalent to a shareholder of a corporation. Furthermore, a “member's interest” in an LLC is generally the member's ownership interest in the LLC, and is sometimes evidenced by a certificate which is roughly equivalent to a stock certificate of a corporation.
Many LLC statutes authorize entities that do not possess the four corporate attributes. First, some State LLC statutes require, or permit LLC members to provide in the operating agreement, that the LLC will automatically terminate, or dissolve, or that its operations will be suspended pending the consent of the remaining members, upon the death, disability, bankruptcy, withdrawal, or expulsion of a member, or upon the happening of some other specified event.
On July 23, 2002, the FDIC published a notice of proposed rulemaking in the
The three questions posed and a discussion of the responses received with respect to those questions, as well as the FDIC's analysis of those responses follow.
All of the commenters favored, at least, in general, a determination that a State bank that is organized as an LLC is eligible to apply for Federal deposit insurance.
Ten commenters thought the FDIC should not use any of the four corporate attributes in determining eligibility for Federal deposit insurance; four commenters thought we should use three of the four corporate attributes; three commenters thought we should use all four attributes; and five commenters did not respond specifically on this question.
Of the 10 commenters who opposed using any of the four corporate attributes in determining a Bank-LLC's eligibility to apply for deposit insurance, eight specifically thought that if the particular State permits a bank to be organized as an LLC, and if the FDIC determines that the institution could be operated in a safe and sound manner, that should be sufficient for the entity to be eligible for Federal deposit insurance.
In support of their position the 10 commenters offered their views on the appropriateness of using specific corporate attributes to determine eligibility for Federal deposit insurance.
With regard to the corporate attribute of perpetual succession, several commenters construed the perpetual succession attribute to mean perpetual existence. Several commenters pointed out that in the past many FDIC-insured banks had limited lives (
With regard to the corporate attribute of centralized management, one commenter recognized that in a theoretical sense there may be concerns when a Bank-LLC with a large number of members is proposed to be managed directly by its members. However, rather than requiring a board of directors for every Bank-LLC, the commenter suggested that the FDIC could require a board of directors only if the number of members exceeded 25. The FDIC believes that centralized management is an important attribute for a bank for a couple of reasons. First, if the authority to manage the bank is limited to the owners of the institution, management expertise would necessarily also be limited. The quality of the management of a bank is a key factor in a bank's success or failure. In order to provide the best chance for a bank to compete successfully and to operate profitably, a bank should be free to enlist the best qualified managers available to it. Too small of a group of owners may not provide sufficient management expertise. Too large of a group may dilute the influence of those owners who do have adequate management expertise. For example, even if some of the owners possess adequate expertise, their ability to manage the institution may be negated by a larger segment of the owners that lacks such expertise. Second, management by a group that is too small could severely impair the bank's ability to respond to supervisory and regulatory direction. The volume and complexity of the demands of operating a bank might put too small of a group under excessive pressure and could result in management that is not responsive or at least so slow as to imperil the bank's effectiveness. Too large of a group may make it unwieldy or excessively difficult to disseminate information and get decisions in a timely manner because so many voices are entitled to be heard and considered. For these reasons, the FDIC believes that centralized management is also an important attribute that a bank should have in order to be eligible for deposit insurance.
With regard to the corporate attribute of limited liability, one of the 10 commenters while generally disagreeing with the use of the four corporate attributes, nevertheless thought that requiring limited liability was reasonable, since unlimited liability would certainly reduce the number of prospective shareholders. Another of the 10 commenters thought that in some cases the FDIC might conclude that unlimited liability of one or more members actually reduces the risk to the deposit insurance fund. Furthermore, the commenter argued that bank organizers should be permitted to explain the reasons for unlimited liability and show how unlimited liability impacts the bank's risk to the fund.
The FDIC believes that limited liability tends to attract more potential investors than unlimited liability and, furthermore, that the more attractive an investment generally the greater the chances that the entity will be able to maintain adequate capital. Consequently, the FDIC believes that limited liability is also a very important attribute for a bank to possess.
With regard to the corporate attribute of free transferability of interests several of the 10 commenters also thought it inappropriate to require that attribute. The commenters argued that since many existing, FDIC-insured banks are closely-held corporations that have restrictive share-transfer agreements, it would be inconsistent for the FDIC to require free transferability of interests with respect to a bank that is chartered as an LLC. Furthermore, two of those commenters suggested that rather than requiring free transferability for every Bank-LLC, a better solution would be to require that the Bank-LLC's organizational documents provide that if the primary regulator determines that the institution's capital is inadequate, then the current owners would be required to restore capital or permit free transferability of the interests. The FDIC believes that the free transferability of ownership interests is an important attribute because it tends to ensure that the bank will have the best opportunity to attract and maintain adequate capital. Even well-run business entities can experience economic stress when there is a downturn in their markets or the industry as a whole. Adequate capital provides a cushion that helps a business weather the periods of economic stress. If an owner of an interest in an LLC must obtain the consent of the other owners in order to transfer his or her interest, the transfer may be delayed until that consent can be obtained, or it may be rejected altogether if the consent is not granted. Either circumstance tends to reduce a bank's ability to attract and maintain adequate capital. Indeed, the mere presence of such a consent requirement may discourage investors who can choose from other, more liquid and, perhaps, more familiar investments. As noted above, since an LLC is neither a corporation nor a partnership, State corporation laws and State partnership laws generally would not apply. That fact, coupled with the relative novelty of the LLC form of business entity, may discourage potential investors. Many investors are familiar with, or can readily determine, the general structure of corporations and the rights, powers, privileges, duties and liabilities of a corporation's shareholders, officers, and directors. With an LLC, its structure and the rights, powers, privileges, duties and liabilities of the LLC's owners, officers and managers are all generally subject to modification according to the wishes of the members. Unlike investing in a corporation, a potential investor in an LLC may not be able to rely, to any extent, on his or her general familiarity with corporate law in making an investment decision. A potential investor would have to examine carefully the operating agreement of the particular LLC to determine the LLC's operating structure and the rights, powers, privileges, duties, and liabilities of the LLC's owners, officers, and managers. Such additional burden may also tend to discourage new investors and further reduce the bank's ability to attract and maintain capital. Furthermore, the alternative suggested by one commenter would not cure these problems. The commenter suggested that the FDIC might require a provision in the LLC's organizational documents that if capital fell below a certain level then the existing owners would have to replenish capital or waive the consent requirement. However, if a bank's capital were to fall below the minimum capital requirements, it might then be too late to try to attract new investors. It is not clear that many investors would want to get involved with a bank that has an unfamiliar legal structure at a time when its capital is depleted. Consequently, the FDIC believes that a Bank-LLC should have the corporate attribute of free transferability of interests.
Several of the 10 commenters also offered general comments on how to determine eligibility and suggested some alternative uses for the four corporate attributes. Several thought that the key to eligibility for Federal deposit insurance should simply be whether the bank is chartered in accordance with State banking law. If so, they argue, that should be enough to qualify for eligibility for deposit insurance. The FDIC disagrees with this notion entirely. Congress conferred upon the FDIC the authority to grant Federal deposit insurance to certain institutions described in the FDI Act. Allowing the individual States to determine which institutions are eligible would (i) require the FDIC to ignore the express language of the FDI Act, (ii) require the FDIC to abdicate its statutory responsibility to make such determinations, and (iii) potentially result in a wide variety of notions as to what types of institutions are eligible for deposit insurance. As a result, the FDIC's ability to manage the risks posed to the insurance fund would be seriously jeopardized. The FDIC does not believe such an approach is either reasonable or consistent with the purposes of the FDI Act.
Two commenters pointed out that the four corporate attributes are not mentioned in the factors listed in section 6 of the FDI Act, 12 U.S.C. 1816, (the “section 6 factors”) that are required to be considered in approving applications for deposit insurance. Therefore, they believe that the FDIC should determine who is eligible for deposit insurance solely by reference to the section 6 factors. One commenter argued that while the ultimate question is whether the bank is a legal entity under State law, it thought that the FDIC could consider the four corporate attributes in assessing whether the institution could be operated in a safe and sound manner. In that regard the commenter thought that perpetual succession and centralized management were important for safety and soundness and should be accorded greater weight, while free transferability of interests was less important. The FDIC believes that while the section 6 factors are required to be considered in determining whether to grant deposit insurance, they do not determine an institution's eligibility to apply for deposit insurance. Eligibility is a threshold issue that must be determined before the section 6 factors are considered. To focus only on the section 6 factors would again require that we ignore the express language of the FDI Act. Congress carefully set out what it meant by a “State bank,” and the FDIC declines to ignore that language.
One commenter noted that national banks only need to be chartered pursuant to the National Bank Act (the “NBA”) to be eligible for Federal deposit insurance and that, therefore, the FDIC should only require that state banks be chartered under State law. The FDIC agrees that in accordance with the language of the FDI Act a national bank is eligible to apply for deposit insurance if it is chartered as a national bank under the NBA. However, the NBA describes a national bank as a “body corporate''
As noted above, four commenters thought we should use three of the four corporate attributes. Three of those four commenters disagreed specifically with requiring free transferability of interests for a Bank-LLC, but concurred with requiring the other three attributes. The other commenter while generally disagreeing with the free transferability requirement thought that the FDIC should require any three out of the four
Three commenters endorsed the FDIC's use of all four of the corporate attributes. One commenter also expressed the strong belief that the full range of safety and soundness and enforcement mechanisms that currently apply to state banks should also apply to Bank-LLCs. For the reasons discussed above, the FDIC believes that the corporate attributes are not only appropriate, but essential to determining whether a Bank-LLC could be considered to be “incorporated.” The FDIC specifically concurs with the comment that the full range of safety and soundness and enforcement mechanisms needs to apply to Bank-LLCs. In that regard, the final rule includes some revisions to further clarify this point. The final rule clarifies that for purposes of the FDI Act (including section 8 of the FDI Act) and the FDIC's regulations, the members, managers, and officers of a Bank-LLC would be equivalent to shareholders, directors, and officers, respectively, of a bank chartered as a corporation. Also, the certificates or other evidences of ownership interests in a Bank-LLC would be equivalent to voting stock, voting shares and voting securities.
Six commenters thought that the FDIC should interpret “incorporated” to mean chartered under State law. Two other commenters thought that an institution should be deemed to be “incorporated” if it is chartered under State law and can operate in a safe and sound manner. Another commenter thought that “incorporated” should mean “organized” or “operating” as a bank under State law. Yet another thought that “incorporated” should simply mean “chartered and regulated” under State law and thought the FDIC should focus on whether the particular structure is consistent with the section 6 factors. All of these suggestions have been fully analyzed and considered above, and will not be repeated here. Central to all of these suggestions is the notion that if the State's laws would charter an entity as a bank, that should be enough for the FDIC. Following that argument, the FDIC should consider to be “incorporated” whatever type of institution a State may charter as a bank under its laws. As fully discussed above, such an approach would mean that (i) the FDIC would have to ignore the express language of the FDI Act, (ii) the FDIC would have to abdicate its responsibility under the FDI Act, and (iii) the potential variety of notions about what could be chartered as a bank would seriously impair the FDIC's ability to manage the risks to the insurance fund. For those reasons the FDIC declines to adopt such an approach.
In order to determine whether an LLC could qualify as a State bank for purposes of Federal deposit insurance, it is necessary to determine if an LLC could be considered to be “incorporated.” In resolving any ambiguity in a statute it is always helpful to try to determine what Congress intended by its choice of the particular words of the statute. In this case, as noted above, there is no legislative or judicial guidance on the meaning of the term “incorporated” as used in the FDI Act. Consequently, the FDIC believes that the best approach is to interpret the term in a manner consistent with, and in aid of, the purposes of the FDI Act.
Congress created the Federal Deposit Insurance Corporation in 1933 to restore and maintain public confidence in the nation's banking system by, among other things, promoting the safety and soundness of the institutions whose deposits the FDIC insures.
A common understanding of the term “incorporated” is “formed or constituted as a legal corporation.”
Another approach to interpreting the term “incorporated” is to focus on the attributes of the entity. In other words, if the entity has the four corporate
Within the confines of Federal law, and subject to safety and soundness, banks need to be able to take advantage of new forms of business organization in order to maintain maximum viability. Some of these new forms of business entities were never envisioned at the time that Congress passed the FDI Act almost 70 years ago. Part of the FDIC's duty in administering the FDI Act is to interpret it to carry out the purposes of the FDI Act in the modern world. Consistent with that duty, the FDIC believes that it is more reasonable to focus on the essential characteristics of a corporation that distinguish it from other forms of business entities rather than to focus on the presence or absence of a label.
Therefore, mindful of the need to maintain the viability of the nation's banking system, and consistent with the purposes of the FDI Act, the FDIC believes that the better approach, is to interpret the term “incorporated” to include those LLCs that have the four traditional corporate attributes.
As noted above, the attributes that are commonly identified as distinguishing a corporation from other forms of business organizations are: perpetual succession, centralized management, limited liability, and free transferability of interests.
The first attribute, perpetual succession, is essential to the FDIC's efforts to promote public confidence in the nation's banking industry. An institution that automatically terminated, dissolved, or suspended operations upon the happening of some event would most likely have a substantial, adverse effect on public confidence. A depositor in such an institution would have no way of knowing from one day to the next whether the institution will continue in existence, and whether he or she will be able to retrieve his or her money when the need arises. Furthermore, such an automatic termination, dissolution, or suspension feature would have a significantly adverse effect on the FDIC's efforts to resolve failed institutions. The FDIC is not only charged with promoting the safety and soundness of banking institutions, but is also charged with the duty of resolving failed institutions in an orderly, least costly manner. The FDIC would have no practical opportunity to plan and execute an orderly, least-costly resolution of an institution that, without any warning or advance notice, was terminated or dissolved or whose operations were suspended. Most likely it would not be possible to arrange for a healthy institution to purchase the assets and assume the deposit liabilities of the failed institution in order to continue to serve the affected community with the least disruption. Checks that were in transit at the time of the bank's failure, but that had not yet been paid, would be rejected. The disruption to the community could be substantial. The cost to the insurance fund of resolving such an institution could be significantly higher than necessary as a result, and the higher costs would tend to deplete the insurance fund more rapidly. Consequently, the FDIC believes that perpetual succession is an essential prerequisite for an insured depository institution, and that automatic termination/dissolution/suspension features are inconsistent with the FDIC's duties and the purposes of the FDI Act.
Centralized management in the form of a board of directors provides the FDIC and other banking regulators with a discrete group of individuals who are authorized to act for, and represent, the institution in virtually all matters. The typical rights, liabilities, powers, and responsibilities of a board of directors are well-established. On the other hand, management of an institution directly and solely by all of its owners presents a variety of problems both from an operational standpoint and from an enforcement standpoint. First, if the authority to manage the bank is limited to the owners of the institution, management expertise would necessarily also be limited. The quality of the management of a bank is a key factor in a bank's success or failure. In order to provide the best chance for a bank to compete successfully and to operate profitably, a bank should be free to enlist the best qualified managers available to it. If there are too few owners, the group may not provide sufficient management experience and expertise. Too large of a group may also mean that even if adequate banking expertise is represented among the owners, it may be negated by a larger segment of the owners that lacks adequate expertise. Second, management by a group that is too small could severely impair the bank's ability to respond to supervisory and regulatory direction. The volume and complexity of the demands of operating a bank might put too small of a group under excessive pressure and could result in management that is not responsive or, at least so slow as to imperil the bank's effectiveness. Too large of a group may make it unwieldy or excessively difficult to disseminate information, arrange meetings, ensure that all members have the opportunity to be heard, and get decisions in a timely manner. Finally, with a member-managed Bank-LLC, merely determining who represents the institution and the extent of his or her authority could represent a significant task for regulators. Consequently, centralized management is also an important attribute for purposes of the FDIC Act.
Limited liability, of course, encourages investment in the enterprise. Potential owners are more likely to invest in an enterprise when their liability is limited to the amount of their investment. Attracting and maintaining sufficient capital helps to ensure an adequate cushion to protect an institution during periods of economic stress. Since banks are subject to periods of economic stress just as other businesses are, the FDIC believes that the owners of banks should have limited liability to encourage the maintenance of adequate capital.
The free transferability of ownership interests also tends to aid in attracting and maintaining adequate capital. Conversely, requiring the prior consent of the other owners in order to transfer an ownership interest may decrease the bank's ability to attract and maintain adequate capital. At worst, prior consent to a transfer limits the pool of available investors; at best, it delays interested, potential investors. While the FDIC currently insures approximately 700 mutual institutions (that issue no stock) and more than 1,700 closely-held institutions (some of which may have stock-transfer restrictions in the form of shareholder agreements), the FDIC has substantial experience with their structure, operations, and capital maintenance capabilities. The FDIC has no similar experience with institutions organized as LLCs, and that lack of similar experience argues for facilitating, rather than impairing, the maintenance of a capital cushion.
Indeed, the mere presence of such a prior consent requirement may discourage investors who can choose from other, more liquid and, perhaps, more familiar investments. As noted above, since an LLC is neither a corporation nor a partnership, State corporation laws and State partnership laws generally would not apply. That fact, coupled with the relative novelty of the LLC form of business entity, may also discourage potential investors. Many investors are familiar with, or can readily determine, the general structure of corporations and the rights, powers, privileges, duties and liabilities of a corporation's shareholders, officers, and directors. With an LLC, its structure and the rights, powers, privileges, duties and liabilities of the LLC's owners, officers and managers are all generally subject to modification according to the wishes of the members. Unlike investing in a corporation, a potential investor in an LLC may not be able to rely, to any extent, on his or her general familiarity with corporate law in making an investment decision. A potential investor in an LLC would have to examine carefully the operating agreement of the particular LLC to determine its operating structure and the rights, powers, privileges, duties, and liabilities of the LLC's owners, officers, and managers. Such additional burden may tend to discourage new investors and further reduce the bank's ability to attract and maintain capital. Consequently, the FDIC believes that the free transferability of ownership interests is an important attribute for a bank.
In summary, the FDIC believes that an LLC should have all of the four corporate attributes in order to be “incorporated.” Therefore, a banking institution that is chartered as an LLC under the law of any State and that has all of the above four corporate attributes would be considered to be “incorporated” under the law of the State for purposes of the definition of “State bank.” Furthermore, such a banking institution would be eligible to apply for Federal deposit insurance as a State bank under section 5 of the FDI Act, 12 U.S.C. 1815.
The final rule reflects these conclusions. In general, the rule provides that a banking institution that is chartered by a State as an LLC will be deemed to be “incorporated” if (i) it is not subject to any automatic termination/dissolution/suspension provisions, (ii) the exclusive authority to manage the institution is vested in a board of directors or managers, (iii) neither State law nor the LLC's organizational documents provide that any owner is liable for the debts of the institution beyond his or her investment, and (iv) neither State law nor the LLC's organizational documents require the consent of any other owner in order to transfer all or a part of an ownership interest. The final rule also specifies that for purposes of the FDI Act and the FDIC's regulations, an owner of an interest in an LLC is a “stockholder” and a “shareholder;” a manager of an LLC is a “director;” an officer of an LLC is an “officer;” and a certificate or other evidence of an ownership interest in an LLC is a “voting share,” “voting security,” and “voting stock.” These provisions are intended to remove any ambiguity as to how the rest of the FDI Act and the FDIC's regulations apply to banking institutions chartered as LLCs, including the enforcement provisions of the FDI Act and the FDIC's regulations.
The final rule does not involve any collections of information under the Paperwork Reduction Act (44 U.S.C. 3501
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
The FDIC has determined that this final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) provides generally for agencies to report rules to Congress for review. The reporting requirement is triggered when the FDIC issues a final rule as defined by the Administrative Procedure Act (APA) at 5 U.S.C. 551. Because the FDIC is issuing a final rule as defined by the APA, the FDIC will file the reports required by SBREFA. The Office of Management and Budget has determined that this final rule does not constitute a “major rule” as defined by SBREFA.
Administrative practice and procedure, Authority delegations (government agencies), Bank deposit insurance, Banks, Banking, Bank merger, Branching, Foreign branches, Foreign investments, Golden parachute payments, Insured branches, Interstate branching, Reporting and recordkeeping requirements, Savings associations.
12 U.S.C. 378, 1813, 1815, 1816, 1817, 1818, 1819 (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601-1607.
(a) For purposes of the definition of “State bank” in 12 U.S.C. 1813(a)(2) and this Chapter, a banking institution that is chartered as a limited liability company (LLC) under the law of any State is deemed to be “incorporated” under the law of the State, if
(1) The institution is not subject to automatic termination, dissolution, or suspension upon the happening of some event (including,
(2) The exclusive authority to manage the institution is vested in a board of
(3) Neither State law, nor the institution's operating agreement, bylaws, or other organizational documents provide that an owner of the institution is liable for the debts, liabilities, and obligations of the institution in excess of the amount of the owner's investment; and
(4) Neither State law, nor the institution's operating agreement, bylaws, or other organizational documents require the consent of any other owner of the institution in order for an owner to transfer an ownership interest in the institution, including voting rights.
(b) For purposes of the Federal Deposit Insurance Act and this Chapter,
(1) Each of the terms “stockholder” and “shareholder” includes an owner of any interest in a bank chartered as an LLC, including a member or participant;
(2) The term “director” includes a manager or director of a bank chartered as an LLC, or other person who has, with respect to such a bank, authority substantially similar to that of a director of a corporation;
(3) The term “officer” includes an officer of a bank chartered as an LLC, or other person who has, with respect to such a bank, authority substantially similar to that of an officer of a corporation; and
(4) Each of the terms “voting stock,” “voting shares,” and “voting securities” includes ownership interests in a bank chartered as an LLC, as well as any certificates or other evidence of such ownership interests.
By order of the Board of Directors.
Whereas, the Board of Directors (“Board”) of the Federal Deposit Insurance Corporation (“FDIC”) is responsible for administering the Federal Deposit Insurance Act (“FDI Act”); and
Whereas, the FDIC is authorized under section 5 of the FDI Act (12 U.S.C. 1815) to approve or disapprove applications for deposit insurance for State banks as well as other depository institutions; and
Whereas, in order for a banking institution to qualify as a “State bank” eligible to apply for deposit insurance, section 3(a) of the FDI Act (12 U.S.C. 1813(a)) generally requires that it be engaged in the business of receiving deposits other than trust funds and that it be “incorporated under the laws of any State”; and
Whereas, the FDI Act does not define the term “incorporated,” and there is some uncertainty as to the meaning of the term “incorporated”; and
Whereas, on July 23, 2002, the Board authorized the publication in the
Whereas, the Board requested public comment on the proposed rule and received 23 comment letters, and
Whereas, the staff has reviewed and the Board has considered the comments submitted by the public in response to the proposed rule; and
Whereas, the staff has recommended that the Board adopt a final rule entitled Insurance of State Banks Chartered as Limited Liability Companies as set forth in the attached
Whereas, the Board has decided to adopt the proposed rule entitled Insurance of State Banks Chartered as Limited Liability Companies as a final rule with certain modifications.
Now, therefore, be it resolved, that the Board does hereby adopt a final rule entitled Insurance of State Banks Chartered as Limited Liability Companies amending 12 CFR part 303 in the manner set forth in the attached
Be it further resolved, that the Board hereby authorizes publication in the
Be it further resolved, that the Board hereby directs the Executive Secretary, or his designee, to cause the attached final rule to be published in the
Be it further resolved, that the Board hereby delegates authority to the General Counsel, or the General Counsel's delegate(s), and to the Executive Secretary, or the Executive Secretary's delegate(s) to make technical, non-substantive changes to the text of the attached
Office of Federal Housing Enterprise Oversight, HUD.
Final Rule.
The Office of Federal Housing Enterprise Oversight (OFHEO) is adopting an amendment to Appendix A to Subpart B of 12 CFR part 1750 Risk-Based Capital. The amendment, which more accurately incorporates and implements Financial Accounting Standard 133 in the stress test, is intended to enhance the accuracy of the calculation of the risk-based capital requirement for the Enterprises.
March 17, 2003.
Robert Pomeranz, Senior Accounting Specialist, Office of Risk Analysis and Model Development, telephone (202) 414-3796 or Marvin L. Shaw, Senior Counsel, telephone (202) 414-8913 (not toll free numbers), Office of Federal Housing Enterprise Oversight, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. The telephone number for the Telecommunications Device for the Deaf is (800) 877-8339.
OFHEO published a final regulation setting forth a risk-based capital stress test on September 13, 2001, 12 CFR part 1750 (the Rule), which formed the basis for determining the risk-based capital requirement for the federally sponsored housing enterprises—Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the Enterprises).
On September 12, 2002, OFHEO published a notice of proposed rulemaking (NPRM), 67 FR 57760, which proposed twelve technical and corrective amendments to the Rule.
OFHEO received comments in response to the NPRM from Fannie Mae, Freddie Mac, FM Watch, and the Honorable Richard H. Baker. In response to the September 30 notice that extended the comment period, OFHEO subsequently received one supplemental comment, which was submitted by FM Watch. The comments addressed the appropriateness of the proposed amendments related to FAS 133. Commenters also addressed procedural issues such as the effective date for the proposed amendments related to FAS 133 and the AOLTV Table, the length of the comment period, and the use of guidelines to supplement the Rule. Commenters also addressed issues related to regulatory impacts, particularly whether the proposal was “economically significant” under Executive Order 12866 and whether the proposal complies with the OFHEO's and the Office of Management and Budget's (OMB's) guidelines on information quality.
The NPRM included two changes to reflect the impact of FAS 133 on the stress test. The first of these, number 11 in the NPRM preamble, would modify the calculation of common stock dividends to reflect the effects of FAS 133 adjustments on after-tax income. The second, number 12 in the NPRM preamble, would modify the calculation of risk-based capital to account more fully for changes that FAS 133 required in the computation of Total Capital. As explained below, after considering all the comments on the proposed FAS 133-related changes, OFHEO has determined that the changes are appropriate and timely and is adopting them as proposed. Changes in the language from the proposed amendments clarify the rule, but have no substantive affect.
All five comment letters addressed the FAS 133-related changes. Both Enterprises were supportive of the changes, but suggested that OFHEO not waive the 30-day delay in effective date that is ordinarily required of final rules. Congressman Baker's letter voiced concern that the impact on the Enterprises' capital from amendment number 12 was so significant that OFHEO should extend the comment period.
As noted above, FM Watch provided two comment letters. The first, which was submitted within the initial 10-day comment period, requested additional time for comment and urged OFHEO to delay action on the changes related to FAS 133 until OFHEO had more data on the affect of those changes on the Enterprises' risk-based capital. The letter also questioned whether the thirty percent add-on for management and operations risk should be applied after, rather than before FAS 133-related adjustments were made to the capital requirement. In FM Watch's second letter, received during the extended comment period, it stated that without additional background as to the implications OFHEO anticipates from the amendment, FM Watch was unable to provide informed comments on the proposal. The second letter, therefore, largely reiterated its earlier comments on the FAS 133-related amendments and requested that OFHEO defer action until additional quarters of data on the financial impact of the changes are available.
None of the comment letters took issue with the need for or the importance of the proposed FAS 133-related changes. Two commenters believed it necessary to delay action until the impact of the changes on the Enterprises' capital could be measured for a few more quarters. Neither, however, recommended that the change should not be implemented eventually. Nor did any commenter suggest that the proposed changes did not tie capital more closely to risk or that there was a better alternative methodology.
Commentary regarding the final rule's effective date was unanimous in supporting a delayed effective date for implementation of these amendments. The Administrative Procedure Act, 5 U.S.C. 552(d), provides that the effective date for substantive rules will be delayed at least 30 days after publication, except in certain circumstances not applicable in this case. Accordingly, OFHEO has determined these changes take effect 30 days after the notice is published in the
Two of the comments suggested that the proposed change related to the effect of FAS 133 on total capital may be in error by adding the effects of FAS 133 after the thirty percent add-on for management and operations risk. After consideration of these comments, OFHEO has decided to utilize the methodology proposed in the NPRM.
As explained in greater detail in the NPRM preamble, the stress test, in essence, measures the amount of capital that would be consumed by an Enterprise during the ten-year stress period. This amount of capital is referred to in the amended regulation as “stress-test capital.” The Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501
FM Watch contends that OFHEO lacks authority under the 1992 Act to add in the FAS 133-related adjustment after the 30 percent add-on. However, the Act expresses no such limitation on OFHEO's broad discretion to determine appropriate losses or gains on interest rate hedging activities, which are, in part, reflected in the changes in derivatives market value that FAS 133 adds to total capital. 12 U.S.C. 4611(a)(4).
OFHEO proposed to amend the rule by replacing a static table containing fixed weighted average amortized original LTV (AOLTV) values with a notation that the table would be updated as necessary with a guideline (Guideline 404) that would be available on OFHEO's web site. Other guidelines related to Risk-Based Capital include Guideline 402 “Interest Rates” and Guideline 403 “Average Loan Size.”
Freddie Mac stated that OFHEO is required by statute to issue all provisions related to risk-based capital requirements through notice-and-comment rulemaking, as opposed to OFHEO's reference to guidelines. Specifically, Freddie Mac believes that the Rule must include detailed descriptions of the precise methodologies that such guidelines would apply. Freddie Mac further stated that a change in a guideline should be effective only as of the end of the first reporting period beginning 60 days or more after the publication of such change.
OFHEO disagrees with Freddie Mac's view that guidelines are inappropriate. OFHEO believes that guidelines are necessary and appropriate for various aspects of implementing the Risk-Based Capital Requirement, provided the guideline addresses the finer details of the stress test where OFHEO requires the flexibility to make rapid or frequent changes, such as updating index changes. Such guidelines, which are used by other financial regulators, allow rapid response to rapidly changing circumstances and can be incorporated into the rule at a later date if such an incorporation appears advisable.
As to the effective dates for guidelines, OFHEO does not feel it necessary to announce a fixed rule. In the event that a new guideline or change to a guideline might impact capital significantly, OFHEO will consider the need for the Enterprises to plan their business strategies with capital requirements in mind. In this case, the Enterprises have had sufficient notice of Guideline 404, given its minor impact, to adapt to it. Accordingly, OFHEO has determined that a 30-day delay in effectiveness is adequate.
Congressman Baker and FM Watch requested a longer period of time for public comment on the proposed change related to FAS 133. In response to these requests, OFHEO extended the comment period until October 29, 2002. This extension allowed the public approximately six weeks to comment on the initial proposal. Only one commenter, FM Watch, submitted a comment during the extended comment period. Its comment simply amplified its earlier position.
Other comments received are beyond the scope of the amendment. Because these comments are not relevant to the substance of the proposal, they are not addressed in the preamble.
OMB determined that these amendments are “significant” for purposes of review under EO 12866.
Two commenters questioned OFHEO's conclusion that the FAS 133 amendments are not economically significant within the meaning of Executive Order 12866. Both comments referred to the fact that the changes would have impacted Freddie Mac's risk-based capital requirement by more than $1.6 billion in a recent period. Neither comment, however, contends that the rule has resulted in costs to the Enterprises in excess of $100 million. Because the minimum capital requirement would have required more capital than the amended risk-based requirement in that period, the change would not have required Freddie Mac to raise any additional capital. Therefore, the commenters have not demonstrated that the change would have created cost for Freddie Mac. However, even if the amendment were to have the affect in some future period of requiring an Enterprise to raise capital or otherwise alter its hedging strategies, it is speculative to opine at this point that, in the absence of this amendment, the Enterprise would not have recognized the capital problem with its internal stress tests and taken equally expensive measures to deal with it.
Further, this essentially technical change, required to implement accounting standards imposed by a separate regulatory authority, does not raise the type of economic issues for which the detailed cost/benefit analysis required by the Executive Order was intended. No commenter has suggested that there is some less expensive means of implementing FAS 133 in the risk-based capital regulation or that OFHEO should continue to account for FAS 133 improperly.
Nevertheless, given the fact that this regulation is new and only recently became fully enforceable, OMB has exercised its discretion to review the FAS 133-related amendments formally to determine whether they have any important policy implications for the Administration or other Federal agencies.
An additional issue raised by FM Watch concerned the application of OFHEO's recently issued “Final Guidelines for Ensuring Quality of Disseminated Information and Procedures for Correction by the Public” (67 FR 63672, September 15, 2002) (the Information Quality Guideline). In its letter, FM Watch indicates that the Rule may not be consistent with OFHEO's Information Quality Guideline because (i) in the two-day period between the posting of the amendment on the OFHEO Web site and publication in the
These amendments do not contain any information collection requirements that require the approval of OMB under the Paperwork Reduction Act (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Capital classification, Mortgages, Risk-based capital.
12 U.S.C. 4513, 4514, 4611, 4612, 4614, 4615, 4618.
[a]* * *
[a]* * *
Department of Justice.
Final rule.
Under section 113 of the Aviation and Transportation Security Act, certain aviation training providers subject to regulation by the Federal Aviation Administration are prohibited from providing training to aliens and other designated individuals in the operation of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more, unless the aviation training provider notifies the Attorney General of the identity of the candidate seeking training and the Attorney General does not notify the aviation training provider within 45 days that the candidate presents a risk to aviation or national security. On June 14, 2002, the Department issued two rulemaking documents, a proposed rule and an interim final rule, requesting comments on both documents.
This final rule implements the Flight Training Candidate Checks Program, by which aviation training providers will provide the required notification for specific categories of flight training candidates. The final rule also sets forth how aviation training providers may begin or resume instruction for candidates whom the Attorney General has determined do not present a risk to aviation and national security as a result of the risk assessment conducted pursuant to section 113 of the Aviation and Transportation Security Act.
Robert E. Casey, Jr., Director, Foreign Terrorist Tracking Task Force, Mailbox 27, FBI Headquarters, 935 Pennsylvania Avenue, NW., Washington, DC 20535, Telephone (703) 414-9777.
On November 19, 2001, Congress enacted the Aviation and Transportation Security Act (“ATSA”), Pub. L. No.107-71. Upon enactment, section 113 of ATSA, 49 U.S.C. 44939, imposed notification and reporting requirements on certain persons who provide aviation training (hereinafter referred to as “Providers”) to aliens and other specified individuals. The Department recognized that section 113 of ATSA became immediately effective upon enactment and that Providers had been forced to suspend the training of aliens covered by ATSA pending the implementation of a process for notification to the Attorney General and a determination whether the individual seeking training presents a risk to aviation or national security. The Department issued a notice on January 16, 2002 (“First Advance Consent Notice”), that stated that the Department was granting provisional advance consent for the training of three categories of aliens, based on an initial determination that persons in these categories did not appear to present a risk to aviation or national security. 67 FR 2238 (Jan. 16, 2002). The First Advance Consent Notice was superseded and the categories of advance consent modified in a notice published on February 8, 2002 (“Second Advance Consent Notice”). 67 FR 6051 (Feb. 8, 2002). The Second Advance Consent Notice was rescinded as of June 14, 2002, with the publication of the interim final rule, which instituted “expedited processing” in lieu of advance consent for certain alien pilots. 67 FR 41140 (June 14, 2002).
The Department also issued a proposed rule on the same date. 67 FR 41147 (June 14, 2002). The proposed rule set forth the manner in which candidates not eligible for expedited processing would be able to seek aviation training in compliance with section 113 of ATSA. Comments were invited on both the interim final rule and the proposed rule.
The Department received numerous comments from concerned individuals and organizations, including over 20 lengthy submissions. These comments covered numerous areas and all comments were considered. Many recommendations were adopted or taken into account in the preparation of this final rule. In addition, the Department made several stylistic changes to improve the clarity of the rule. A discussion of the comments follows.
A number of commenters expressed the view that the Department should institute the former “advance consent” provisions, under which candidates who were both fully licensed and qualified pilots of large aircraft could obtain training without being subject to any risk assessment or background check. It was the opinion of these commenters that checks of these particular candidates serve no legitimate national security interest and merely create a deterrent for foreign candidates to train in the United States.
While the congressionally mandated requirements may have the unintended consequence of deterring some foreign nationals from seeking training from U.S. Providers, section 113 of ATSA requires the Department to conduct the risk assessments and the Department has no authority to waive this requirement. Moreover, the Department believes that the burden of complying with the regulations is comparatively small in relation to the benefits to security. During the brief time in which the expedited processing checks have been in effect, the process has resulted in the discovery and arrest of a number of persons for violations of the immigration and nationality laws, or on the basis of outstanding criminal warrants. The Department believes that the discovery of numerous immigration-related and criminal offenders among the expedited process candidates militates in favor of a thorough check system for all training candidates.
With regard to the expedited processing regulations that were issued after the advance consent notice, one commenter suggested that “[a]ir carrier employees under employment contracts with U.S. air carriers that are issued FAA Operations Specifications should be handled differently than those not employed by U.S. air carriers.” In support of this comment, the commenter noted that an individual hired by an American air carrier must provide detailed professional, medical, and other information to satisfy Federal Aviation Administration (“FAA”) requirements.
The commenter also suggested that the requirement that training dates be specified in advance denied Providers and pilots much-needed flexibility in complying with continuing training requirements. The commenter stated that “to force the air carriers to list an individual training date, to insist on an individual training course, to specify the exact time and date that a training event will be conducted * * * is not in the intent, or the letter of the Law.”
The Department notes that while the FAA's system does contain certain security features, it is not focused on terrorism prevention in the same way as
As to the second point, the Department agrees that the vicissitudes of scheduling, in combination with the busy schedules of many professional aviators and Providers, warrants some additional flexibility. Accordingly, § 105.10(b)(4) of the rule has been changed to allow for greater flexibility in training dates.
The Department also received the suggestion that expedited processing should include foreign nationals not “current and qualified” under § 105.12(a)(1). While the Department acknowledges that the “current and qualified” requirement for expedited processing does leave out certain individuals who might have been made eligible for expedited processing, the Department created easily-enforced and carefully-defined limits for expedited processing. In so doing, it consulted with the FAA and determined that the “current and qualified” requirement for expedited processing would be easily understood and enforced. The Department believes that, with the advent of web-based access to the risk assessment system, those candidates not eligible for expedited processing will have a turnaround time for their applications comparable to that of the expedited processing candidates. Accordingly, this aspect of the expedited processing requirement has not been changed.
An aviation industry association suggested that the Department expand the expedited processing categories to include current employees of United States and foreign air carriers operating under Part 129 of the Federal Aviation Regulations regardless of whether the individuals were current and qualified in aircraft weighing 12,500 pounds or more. In addition, some commenters urged that ground training with no flight simulator time be excluded from the scope of the regulation, or at least that candidates be able to undergo ground training pending the completion of their risk assessments. Commenters were concerned that the scope of the regulations was too broad, and imposed too great an administrative burden.
The Department has determined that waiving the “current and qualified” requirement could have a deleterious effect on security. While all employees of air carriers subject to FAA regulation do undergo certain background checks, these checks are not an adequate substitute for the risk assessment required pursuant to section 113 of ATSA. Under expedited processing, several individuals not eligible to be trained under the law have been discovered seeking flight training. Therefore, the Department will require thorough risk assessments for these candidates. As to the possibility of allowing certain training events to proceed either prior to or without a risk assessment, the Department cannot waive the requirements of ATSA. As a result, training cannot be allowed to begin before the end of the required 45-day notification period unless the Department has affirmatively authorized it. In most cases, the Department anticipates being able to authorize the commencement of training within a fraction of the 45-day notification period after submission of the candidate's fingerprints. Accordingly, requiring Providers to wait for authorization from the Department before beginning training should not impose a significant burden on those Providers.
An aviation industry association pointed out that existing regulations of the Federal Aviation Administration require crew members of aircraft weighing
To resolve this divergence between section 113 of ATSA and FAA regulations regarding type ratings, the Department has amended § 105.12(a)(1) of the rule. Henceforth, persons who are qualified on aircraft with a maximum certificated takeoff weight of 12,500 pounds or less will not be eligible to obtain expedited processing.
An aircraft manufacturer commented that, in many cases, fully qualified pilots come to receive familiarization training in connection with the purchase of an aircraft. At present, the regulations only provide for expedited processing of training requests for familiarization training provided in order to transport the aircraft to the purchaser or recipient. The commenter also pointed out that the familiarization training that accompanies the purchase of a new aircraft is not always provided directly in conjunction with the “delivery” of the aircraft.
The Department agrees that training provided in connection with the sale of a particular aircraft, as long as such training is limited to familiarization training and not basic flight instruction, should be subject to expedited processing. Accordingly, the language of § 105.12(a)(2) has been amended to broaden the expedited processing category that deals with familiarization training. As revised, the section no longer limits familiarization training to pilots directly involved with the transport of an aircraft to the purchaser. Rather, any familiarization training in connection with the sale of a particular aircraft will qualify for expedited processing, regardless of whether the trainee will ultimately be responsible for transporting the aircraft to the purchaser.
The process by which aliens not eligible for expedited processing will receive approval from the Department to be trained is a two-step process. It is generally similar to the process set forth in the proposed rule. As prescribed in this rule, the alien initially will be required to complete a detailed form requesting information regarding his or her background, including employment information and the source of funds being used to pay for the training. After this form is completed, it will be submitted to the Foreign Terrorist Tracking Task Force (“FTTTF”) on behalf of the alien by the Provider. Upon receiving this information, the FTTTF will conduct a detailed risk assessment of the alien. Assuming no potential risks are discovered, the Provider or the alien will be notified that the alien may now proceed to the Provider where he or she will receive the necessary fingerprinting instructions. After receiving this notice, the alien must have his or her fingerprints taken under the direct observation of a law enforcement or consular officer, or another specifically authorized individual.
After the fingerprints are taken, the candidate will receive a receipt that should be given to the Provider. The Provider then will notify the FTTTF electronically that the alien has completed the fingerprinting requirement.
After the Provider has furnished this notification, the Department will complete its final review of the risk presented by the alien. In most cases, the Department anticipates being able to authorize the commencement of training within a fraction of the 45-day notification period after submission of the candidate's fingerprints. If the Department subsequently uncovers a problem, the FTTTF will order the Provider to cease training, in accordance with section 113(b) of ATSA.
Concerning flexibility with regard to training dates, one recommendation was that candidates be given up to 13 months to commence training following approval, provided there were no material changes in the information provided to the Department. It was also suggested that candidates be permitted to receive approval for several different courses of training.
The Department has determined that sound security practices require that training take place at a time and place known to the Department and that training occur within a reasonable amount of time following the request. Nevertheless, the Department agrees that some additional flexibility within this program, the Flight Training Candidate Checks Program (“FTCCP”), would not be inconsistent with security interests. Hence, changes have been made to § 105.10(b)(4) to allow actual training to occur within 30 calendar days of the scheduled training date.
Several concerns were raised by commenters on the subject of the fingerprinting process. Among these was the concern that requiring candidates to go before local law enforcement as the primary method of collecting fingerprints would be unduly burdensome given the possibility of a waiting period of up to 45 days after the candidate arrives in the United States before training can commence.
The Department agrees that requiring candidates to arrive in the United States 45 days prior to training would pose many problems and serve as a significant deterrent to U.S. training for some candidates. The 45-day time frame for action by the Department after the submission of all required information was established by the statute. The Department does not anticipate requiring this much time to conduct the necessary checks and assessments for the vast majority of candidates. The anticipated future use of electronic fingerprinting equipment will permit the fingerprint processing (including all necessary checks) to be completed in most cases in less than 24 hours after the proper electronic submission of a set of prints.
Commenters also expressed a preference for collecting the required fingerprints at U.S. embassies and consulates before a candidate undertakes the expense of traveling to this country and being subject to a 45-day waiting period. This option may prove difficult given limitations on State Department diplomatic personnel. At the present time, embassies and consulates cannot accommodate candidates in this regard. The final rule, however, has been drafted to allow for fingerprints to be taken abroad at U.S. Government agencies as these options become more feasible in the future. In addition, the Department is negotiating to obtain access to a process that may allow candidates to comply with its fingerprint requirements through the Immigration and Naturalization Service and its successor organizational unit in the Department of Homeland Security Directorate of Border and Transportation Security (“INS”), which has the most advantageous system for the prompt electronic processing of fingerprints available in the government, to allow INS to take fingerprints at its Application Support Centers. It is anticipated that INS centers, including centers abroad, may become available for fingerprinting candidates in the future.
Suggestions that fingerprints be collected in electronic format are consistent with the Department's future plans but dependent upon the resources and technology available to the FTCCP.
Another comment questioned the purpose of the fingerprinting provisions. Commenters believed that the databases against which fingerprints would be checked contain, for the most part, information obtained from crimes committed in the United States. Accordingly, they said that such records check on a foreign national would rarely produce any meaningful results. In the past, this may have been true; however, Departmental fingerprint resources are expanding to include substantial amounts of relevant data—including foreign records—that justify the requirement. The requirement also will help to prevent identity fraud by training candidates.
As provided in § 105.13(c) and (f) of the regulation, the Department may authorize private individuals to take the required fingerprints on a case-by-case basis if it determines that such individuals possess the necessary training and will be able to ensure the integrity of the fingerprinting process. The Department anticipates that some Providers may seek to engage the services of dependable fingerprinting experts in order to facilitate the fingerprint submission process.
One commenter inquired about the distinction made in section 113 between large aircraft (over 12,500 pounds, maximum certificated takeoff weight) and smaller aircraft. According to this commenter, “the statement on the FAQ portion of [the] web page * * * leads [him] to believe that any foreign nationals and nationals of the United States desiring to attend training at any FAA approved and certificated flight school must register.”
At this time, section 113 applies only to training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more. Training in the operation of a smaller aircraft, however, is included under certain special circumstances. For example, some lines of jets, such as the Cessna Citation and the Lear, are manufactured with several different models with maximum certificated takeoff weights ranging above and below 12,500 pounds. A Provider must furnish the required notification if the Provider is furnishing training that would allow the candidate to fly an aircraft with a certificated takeoff weight of 12,500 pounds or more in accordance with applicable FAA regulations. This matter has been addressed in § 105.10(b)(1) of the rule.
Section 113 applies to students who: (1) Are not citizens or nationals of the United States, or who fall into another category designated by the Under Secretary of Transportation for Security; (2) wish to receive flight training in aircraft with a maximum certificated takeoff weight of 12,500 pounds or more, or if the training would allow the candidate to fly a model of the same or substantially similar type of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more in accordance with FAA regulations;
Another commenter stated that the rule prevents people from obtaining flight training in the United States, but does not prevent them from gaining the same skills in another country. The commenter also stated that training in the operation of a light aircraft, which is not subject to regulation under
Because Congress has not, to date, chosen to include training on aircraft with a maximum certificated takeoff weight of less than 12,500 pounds within the scope of the statute, the Department does not have the discretion to expand the scope of this rule to cover training on such aircraft (except where training in such aircraft could lead to a type rating that might enable a candidate to fly a larger aircraft).
Various organizations commented on the subject of a common industry practice known as “dry-leasing.” In a “dry-lease” arrangement, an air carrier utilizes an established flight training facility's equipment and classrooms for its crews but provides its own instructors, curriculum, and record keeping. The Department has determined that, in certain circumstances, flight training providers participating in dry leases as lessors will be subject to the reporting requirements of section 113 even though they may not have direct control over who receives training. Many believe that it is inappropriate to impose these requirements on facility owners given that they do not have a direct relationship with the candidate who is to receive training.
The Department is sensitive to this concern. It is, however, the opinion of the Department and the FAA that, if U.S. flight training providers were able to dry lease simulator equipment to unregulated foreign providers, Congress's intent in passing ATSA would be frustrated.
The Department also has received various comments on the web-based system designed for initial flight training candidates to submit information. Among the more technical concerns was the observation that the Web site contains a number of information fields designated as “optional.” Commenters stated that the information required by the existing system is sufficiently extensive to obviate any need for “optional” data. Instead, it was recommended that the Department collect only the data needed to determine if the candidate poses a threat to aviation or national security.
It is not the Department's intention to make any portion of the FTCCP form “optional.” Nevertheless, some fields had to be made—at least provisionally—“optional” from a functional perspective because the information might not be available or applicable to the individual filling out the form. For example, the form requests visa information, which some candidates may not possess at the time they submit their applications. In other cases, candidates filling out the form are asked for “optional” information about their Provider (
All applicable items on the form that can be answered by the candidate must be answered, and all have been selected as helpful in some manner to the necessary risk assessment. In most cases, the form cannot be submitted without complete information. Moreover, in filling out the form, candidates are required to give full and complete answers. Where any item of information sought from a candidate is available to the candidate, the FTCCP form's request for that item of information should not be considered “optional.”
An industry commenter also found the link on the FTCCP Web site to the FAA's home page confusing and unnecessary. The commenter felt that Providers already would have registered with the FTCCP and that the candidate would be able to locate the Provider through that system without any need to go to the FAA's web page.
The Department believes that it is important to have a link to the FAA on the FTCCP website because the FAA maintains valuable information on this website (including lists of Providers) that will be important to users of the FTCCP Web site. Accordingly, with the advice and cooperation of the FAA, the Department has modified the Web site to eliminate confusion.
A commenter pointed out an apparent conflict between the regulations created under section 113 of ATSA and certain regulations established by the INS. Under ATSA, the Department has up to 45 days to notify a Provider not to train a candidate. According to the commenter, this could conflict with an INS regulation requiring individuals admitted to the U.S. under F-1 (student) visas to commence their courses of study within 30 days of arrival.
For the purposes of flight training and when feasible, the Department encourages students not eligible for expedited processing to arrive in the United States approximately two weeks before their scheduled training. In the vast majority of cases, this will be enough time to satisfy the fingerprint requirement and ensure that training begins when scheduled. It should also be noted that most individuals seeking aviation training independent of an employment contract or as part of a degree program will not have F-1 (student) visas.
A manufacturing association stated that “any law or regulation which discourages legitimate pilot candidates from training in the U.S. will undoubtedly compromise aviation safety globally, and could harm U.S. citizens traveling abroad.” While supportive of security measures generally, the association believes that flight training candidates could be more efficiently checked and monitored if the INS and the FTTTF were to combine and coordinate their regulations regarding data collection and processing. In particular, the association made reference to the INS's Student and Exchange Visitor Information System (“SEVIS”) and the Automated Biometric Identification System (“IDENT”). The Department notes that SEVIS and IDENT do not serve the same purpose as the FTCCP. Nevertheless, the Department is making every effort to coordinate the resources of the FTCCP and the INS in implementing this system.
The association also recommended that prospective flight students who were required to apply for M-1 (technical training) or J-1 (exchange visitor programs) visas should submit information regarding their intentions with regard to aviation training at that time. Visas are issued by the State Department; information and risk assessments generated by the FTCCP will be provided to the State Department, which may choose to use these assessments and information in visa determinations.
Several commenters asked the Department to extend the hours of operation for the help line supporting this system because “last minute changes in training schedules occur frequently and need to be addressed immediately.” As noted above, the Department has made amendments to the rule to allow for some additional flexibility with regard to training dates.
There was some confusion as to what constitutes “training” within the meaning of section 113 of ATSA. Accordingly, the Department, in consultation with the FAA, has modified § 105.10(a) of this rule to resolve this concern by including a definition of training that specifically includes “ground school” but excludes the provision of written materials, such as manuals.
Section 113 of ATSA provides that the Under Secretary of Transportation for Security may designate individuals who, in addition to aliens, would be subject to the notification requirements of the statute should they seek training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more. As of this time, the Under Secretary has made no designations. Because this is a matter within the discretion of the Under Secretary, this rule states only that individuals designated by the Under Secretary will not be eligible for expedited processing.
Training by the Coast Guard or a component of the Department of Defense is not covered by section 113 of ATSA and is therefore not subject to this regulation. Likewise, training by Providers pursuant to contracts with the Department of Defense are not covered by the regulation. A question was raised as to whether training by subcontractors was within the ambit of the statute. The Department has added language to § 105.10(a)(2) to clarify that any training conducted at the behest of the Coast Guard or Department of Defense for a military purpose is not subject to this rule, regardless of whether the training itself is administered by a subcontractor.
Initial experience with the regulations implementing section 113 of ATSA generally has been positive. While the Department recognizes the burdens imposed on the aviation industry and individuals by ATSA, it is striving to produce a policy consistent with ATSA that will realize security goals while simultaneously protecting the commercial interests of the aviation industry.
In accordance with the Regulatory Flexibility Act (5 U.S.C. § 605(b)), the Attorney General, by approving this regulation, certifies that this rule will have a significant economic impact on a substantial number of small entities. As a result, the Department has prepared the following Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 603.
Section 113 of ATSA requires the Department to conduct risk assessments to determine if providing flight training to certain aliens presents a risk to aviation or national security. The Department has no authority to waive this requirement.
The small entities affected by this rule include virtually all Providers furnishing flight instruction to aliens or other designated individuals in the operation of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more. Pursuant to section 113 of ATSA, Providers are prohibited from furnishing any instruction to such candidates until the Attorney General is able to provide a means for determining whether the candidate presents a risk to aviation or national security. The purpose of this rule is to provide a mechanism by which Providers may instruct candidates deemed by the Attorney General not to present a risk to aviation or national security as a result of the risk assessment conducted pursuant to section 113 of ATSA.
Because section 113 of ATSA prohibits training of aliens without a prior risk assessment, the issuance of the rule will have a beneficial effect on small businesses because the rule will allow Providers to resume training for aliens determined by the Attorney General not to present a risk to aviation or national security. The only costs incurred by Providers complying with this regulation will be the minimal costs they incur when providing the required notification to the Attorney General. The Department is not aware of any studies or data detailing the effects of this regulation on small entities.
This rule will not result in the expenditure by state, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation; or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
This rule is considered by the Department of Justice to be a significant regulatory action under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget (“OMB”) for review.
The amendments made by ATSA prohibit the training by Providers of any alien without notification and clearance by the Attorney General. Notwithstanding the institution of the expedited processing procedures on June 14, 2002, this prohibition continues to impose a substantial economic burden on both Providers and air carriers utilizing alien pilots and flight engineers because aliens not eligible for expedited processing have been prohibited from receiving training since the enactment of the ATSA. These regulations are essential to providing a means to allow Providers and air carriers to function smoothly by allowing flight instruction for those candidates not provided relief through the publication of the interim final rule.
This information collection has been approved and assigned OMB Control Number 1105-0074. If additional information is required contact: Brenda E. Dyer, Department Deputy Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 1600, Patrick Henry Building, 601 D Street NW, Washington, DC 20530.
This rule 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. Therefore, in accordance with section 6 of Executive
This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Administrative practice and procedure, Airmen, Reporting and recordkeeping requirements, security measures, Terrorism.
Section 113 of Pub. L. 107-71, 115 Stat. 622 (49 U.S.C. 44939).
(a)
Candidate means any person who is an alien as defined in section 101(a)(3) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(3), or a person specified by the Under Secretary of Transportation for Security, who seeks training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more from a Provider.
(b)
(1) Section 113 of ATSA (49 U.S.C. 44939) prohibits Providers from furnishing candidates with training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more without the prior notification of the Attorney General. Training in the operation of smaller aircraft is considered to be training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more if the training would lead to a type rating allowing the candidate to operate a model of the same or substantially similar type of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more in accordance with FAA regulations. The purpose of this notification is to allow the Attorney General to determine whether such an individual presents a risk to aviation or national security before training may begin. The Department believes that it is not required to make a candidate wait for 45 days in order to begin training if the Department has completed its risk assessment. Therefore, after providing the required notification to the Attorney General as described in this subpart, the Provider may begin instruction of a candidate if the Attorney General has informed the Provider that the Attorney General has determined as a result of the risk assessment conducted pursuant to section 113 of ATSA that providing the training does not present a risk to aviation or national security. If the Attorney General does not provide either an authorization to proceed with training or a notice to deny training within 45 days after receiving the required notification, the Provider may commence training at that time. All candidates who are not citizens or nationals of the U.S. must show a valid passport establishing their identity to a Provider before commencing training.
(2) The Department may, at any time, require the resubmission of all or a portion of a candidate's training request, including fingerprints. If, after approving any training application, the Department determines that a candidate presents a risk to aviation or national security, it will notify the Provider to cease training. The Provider who submitted the candidate's identifying information will be responsible for ensuring that the training is promptly halted, regardless of whether another Provider is currently training the candidate.
(3) Providing false information or otherwise failing to comply with section 113 of ATSA may present a threat to aviation or national security and is subject to both civil and criminal sanctions. The United States will take all necessary legal action to deter and punish violations of this section.
(4) Providers should make every effort to ensure that approved training occurs on the dates specified in the training request at the location of the Provider who submitted the request. However, where scheduling problems or other exigent circumstances prevent this from happening, training may be rescheduled for any time within 30 days of the approved training dates without submitting an additional request. If any scheduling change of greater than 30 days occurs, a new request with the
(a)
(1) A valid, unexpired United States passport;
(2) An original or government-issued certified birth certificate with a registrar's raised, embossed, impressed or multicolored seal, registrar's signature, and the date the certificate was filed with the registrar's office, which must be within 1 year of birth, together with a government-issued picture identification of the individual named in the birth certificate (the birth certificate must establish that the person was born in the United States or in an outlying possession, as defined in section 101(a)(29) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(29)));
(3) An original United States naturalization certificate with raised seal, INS Form N-550 or INS Form N-570, together with a government-issued picture identification of the individual named in the certificate;
(4) An original certification of birth abroad with raised seal, Department of State Form FS-545 or Form DS-1350, together with a government-issued picture identification of the individual named in the certificate;
(5) An original certificate of United States citizenship with raised seal, INS Form N-560 or Form N-561, together with a government-issued picture identification of the individual named in the certificate; or
(6) In the case of training provided to a federal employee (including military personnel) pursuant to a contract between a federal agency and a Provider, the agency's written certification as to its employee's United States citizenship/nationality, together with the employee's government-issued credentials or other federally-issued picture identification.
(b)
(a)
(1) Foreign nationals who are current and qualified as pilot in command, second in command, or flight engineer with respective certificates with ratings recognized by the FAA for aircraft with a maximum certificated takeoff weight of over 12,500 pounds, or who are currently employed and qualified by U.S. regulated air carriers as pilots on aircraft with a maximum certificated takeoff weight of 12,500 pounds or more;
(2) Foreign nationals who are commercial, governmental, corporate, or military pilots of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more who are receiving training on a particular aircraft in connection with the sale of that aircraft, provided that the training provided is limited to familiarization (
(3) Foreign military or law enforcement personnel who must receive training on a particular aircraft given by the United States to a foreign government pursuant to a draw-down authorized by the President under section 506(a)(2) of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2318(a)(2)), if the training provided is limited to familiarization.
(b)
(1) The full name of the candidate;
(2) A unique student identification number created by the Provider as a means of identifying records concerning the candidate;
(3) Date of birth;
(4) Country of citizenship;
(5) Passport issuing authority;
(6) Dates of training; and
(7) The category of expedited processing under paragraph (a) of this section for which the candidate qualifies.
(c)
(2) After the complete notification is furnished to the Department, the Provider may commence training the candidate as soon as the Provider receives a response from the Department that the individual does not present a risk to aviation or national security as a result of the risk assessment conducted pursuant to section 113 of ATSA and the foreign national candidate presents a valid passport establishing his or her identity to the Provider. Receipt of this response from the Department will be deemed approval by the Department to commence training.
(d)
(a) A Provider must submit a complete
(b) The completed FTCCP form must be sent to the Attorney General via electronic submission at
(1) In order to ensure that such electronic submissions are made by FAA certificated training providers, Providers must receive initial access to the system through the FAA. Providers should register through their local FAA Flight Standards District Offices. The FAA has decided that registration will be only by appointment. Upon registration, Providers will be sent (via electronic mail) an access password to use the system.
(2) Candidates may complete the online FTCCP form at
(c) Candidates must submit fingerprints to the Federal Bureau of Investigation (FBI) as part of the identification process. These fingerprints must be taken by, or under the supervision of, a federal, state, or local law enforcement agency, or by another entity approved by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division. Where available, fingerprints may be taken by U.S. government personnel at a United States embassy or consulate. Law enforcement agencies and U.S. diplomatic installations are not required to participate in this process, but their cooperation is strongly encouraged. Any individual taking fingerprints as part of the notification process must comply with the following requirements when taking and processing fingerprints to ensure the integrity of the process:
(1) Candidates must provide two forms of identification at the time of fingerprinting. In the case of aliens, one of the forms of identification must be the individual's passport. In the case of United States citizens or nationals designated by the Under Secretary of Transportation for Security, a valid photo driver's license issued in the United States may be submitted in lieu of a passport;
(2) The fingerprints must be taken under the direct observation of a law enforcement or consular officer, or another specifically authorized individual. Individuals other than law enforcement or consular officers will only be approved on a case-by-case basis by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division, upon a showing that they possess the necessary training and will ensure the integrity of the fingerprinting process;
(3) The fingerprints must be processed by means approved by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division;
(4) The fingerprint submissions must be forwarded to the FBI in the manner specified by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division;
(5) Officials taking fingerprints must ensure that any fingerprints provided to the FBI are not placed within the control of the candidate or the Provider at any time; and
(6) Candidates must pay for all costs associated with taking and processing their fingerprints.
(d) In accordance with Public Law 101-515, as amended, the Director of the FBI is authorized to establish and collect fees to process fingerprint identification records and name checks for certain purposes, including non-criminal justice and licensing purposes. In addition to the cost to the FBI for conducting its review, other fees may be imposed, including the cost of taking the fingerprints and the cost of processing the fingerprints and submitting them to the FBI for review. Because the total fee may vary by agency, the candidate must check with the entity taking the fingerprints to determine the applicable total fee. This payment must be made at the designated rate for each set of fingerprints submitted.
(e) In some cases, candidates seeking training from Providers abroad may be unable to obtain fingerprints. If a Provider located in a country other than the United States can demonstrate that compliance with the fingerprint requirement is not practicable, a temporary waiver of the requirement may be requested by contacting the Foreign Terrorist Tracking Task Force. The Director of the Foreign Terrorist Tracking Task Force will have the discretion to grant the waiver, deny the waiver, or prescribe a reasonable, alternative manner of complying with the fingerprint requirement for each Provider location.
(f) The 45-day review period by the Department will not start until all the required information has been submitted, including fingerprints.
(a) It is the responsibility of the Department of Justice to conduct a risk assessment for each candidate. The Department has made an initial determination that providing training to the aliens in the categories set forth in § 105.12(a) of this part presents minimal additional risk to aviation or national security and therefore has established an expedited processing procedure for these aliens. Based on the information contained in each FTCCP form and the corresponding set of fingerprints, the Department will determine whether a candidate not granted expedited processing presents a risk to aviation or national security.
(b) After submission of the FTCCP form by the Provider, the Department will perform a preliminary risk assessment.
(1) If the Department determines that a candidate does not present a risk to aviation or national security as a result of the preliminary risk assessment, the candidate or the Provider will be notified electronically that the Provider may supply the candidate with the appropriate materials and instructions to complete the fingerprinting process described in § 105.13(c) and (d) of this part.
(2) If the Department determines that the candidate presents a risk to aviation or national security, when appropriate, it will notify the Provider electronically that training is prohibited.
(3) For each complete training request submitted by a Provider, the Department will promptly conduct an appropriate risk assessment. Every effort will be made to respond to a training request in the briefest time possible. In routine cases, the Department anticipates granting approval to train within a fraction of the 45-day notification period after receiving a complete, properly submitted request, including fingerprints. In the unlikely event that no notification or authorization by the Department has occurred within 45 days after the proper submission under these regulations of all the required information, the Provider may proceed with the training, upon establishing the candidate's identity in accordance with paragraph (c) of this section.
(c) Providers must ascertain the identity of each candidate. For candidates who are not citizens or nationals of the United States designated by the Under Secretary of Transportation for Security, a Provider must inspect the candidate's passport and visa to verify the candidate's identity before providing training. Candidates who are citizens or nationals of the United States must present the documentation described in § 105.11(a) of this part. If the candidate's identity cannot be verified, then the Provider cannot proceed with training.
(d) If, at any time after training has begun, the Department determines that a candidate subject to this section being trained by a Provider presents a risk to aviation or national security, the Department shall notify the Provider to cease training. A Provider so notified shall immediately cease providing any training to the person, regardless of whether or in what manner such training commenced or had been authorized. The Provider who submitted the candidate's identifying information will be responsible for ensuring that the training is promptly halted, regardless of whether another Provider is currently training the candidate.
(e) With regard to any determination as to an alien candidate's eligibility for training, when appropriate, the Department will inform the Secretary of State and the Secretary of Homeland Security as to the identity of the alien and the determination made.
Environmental Protection Agency (EPA).
Interim final rule.
EPA is making an interim final determination to stay and/or defer imposition of sanctions based on a proposed approval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or District) portion of the California State Implementation Plan (SIP) published elsewhere in today's
This interim final determination is effective on February 13, 2003. However, comments will be accepted until March 17, 2003.
Mail comments to Ed Pike, Permits Office (AIR-3), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
You can inspect copies of the submitted rules that are the basis for today's action at our Region IX office during normal business hours: Permits Office (AIR-3), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
You may also see copies of the submitted rules at the following locations:
A copy of the rules may also be available via the Internet at
Ed Pike, EPA Region IX, (415) 972-3970 or send email to
Throughout this document, “we,” “us” and “our” refer to EPA.
On July 19, 2001, we published a limited approval and limited disapproval of SJVUAPCD Rules 2020 and 2201 as adopted locally on September 17, and August 20, 1998, respectively, and submitted by the State on October 27, and September 29, 1998, respectively. 66 FR 37587 (July 19, 2001). We based our limited disapproval action on certain deficiencies in the submittal. This limited disapproval action started a sanctions clock for imposition of offset sanctions 18 months after August 19, 2001 (the effective date of our limited disapproval) and highway sanctions six months after the offset sanction is imposed, pursuant to section 179 of the Clean Air Act (CAA) and our regulations at 40 CFR 52.31.
On December 19, 2002, the SJVUAPCD adopted revisions to Rules 2020 and 2201 that were intended to correct the deficiencies identified in our limited disapproval action. On December 23, 2002, the State submitted these revisions to EPA.
In the Proposed Rules section of today's
EPA is providing the public with an opportunity to comment on this stay/deferral of sanctions. If comments are submitted that change our assessment described in this final determination, or our proposed approval of revised Rules 2020 and 2201, we may take subsequent final action to reimpose sanctions pursuant to 40 CFR 51.31(d). If no comments are submitted that change our assessment, then the sanctions and sanction clocks that were triggered by our July 19, 2001 limited disapproval will be permanently terminated on the effective date of a final rule approval of SJVUAPCD Rules 2020 and 2201.
We are making an interim final determination to stay and/or defer CAA section 179 sanctions associated with SJVUAPCD Rules 2020 and 2201 based on our proposal to approve the State's SIP revisions as correcting the specified deficiencies that prompted the finding to initiate sanctions.
Because EPA has preliminarily determined that the SJVUAPCD has corrected the specified deficiencies prompting EPA's limited disapproval action, and has also proposed to find that a State-wide agricultural exemption must be corrected, we have determined that it is appropriate to relieve the SJVUAPCD from sanctions as quickly as possible. Therefore, EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). However, by this action EPA is providing the public with a chance to comment on EPA's determination after the effective date, and EPA will consider any comments received in determining whether to reverse such action.
EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. EPA has reviewed the SJVUAPCD's and State's submittal and, through our proposed approval of the District's corrections, is indicating that it is more likely than not that the SJVUAPCD has corrected the deficiencies specified in the limited disapproval. Therefore, it is not in the public interest to impose sanctions solely on the District when the SJVUAPCD has most likely done all it can to correct the deficiencies that triggered the sanctions clocks. Therefore, EPA believes that it is necessary to use the interim final rulemaking process to stay and/or defer sanctions while EPA completes its rulemaking process on the approvability of the SJVUAPCD's revisions of Rules 2020 and 2201. Moreover, with respect to the effective date of this action, EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this notice is to relieve a restriction (5 U.S.C. 553(d)(1)).
This action stays and/or defers federal sanctions and imposes no additional requirements.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.
This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action.
The administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
This rule 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 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 rule 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.
The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply to this rule because it imposes no standards.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 14, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purpose of judicial review nor does it extend the time within which 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, Intergovernmental regulations, Reporting and recordkeeping requirements.
Federal Communications Commission.
Final rule; petition for declaratory ruling.
The Commission seeks comment on a petition for declaratory ruling from the Cellular Telecommunications & Internet Association (CTIA) asking the Commission to rule that wireline carriers are obligated to provide portability of their customers' telephone numbers to wireless carriers whose service area overlaps the wireline carriers' rate centers.
Comments are due on or before February 26, 2003, and reply comments are due on or before March 13, 2003
Jennifer Salhus, Attorney, (202) 418-1310.
1. On January 23, 2003, the Cellular Telecommunications & Internet Association filed a Petition for Declaratory Ruling (Petition), asking the Commission to rule that wireline carriers are obligated to provide portability of their customers' telephone numbers to Commercial Mobile Radio Service (CMRS) providers whose service area overlaps the wireline carriers' rate centers. CTIA contends that some local exchange carriers (LECs) have narrowly construed the number portability obligations (as found at 47 CFR 52.23 and 52.31) with regard to CMRS providers, taking the position that portability is required only where CMRS providers have established a presence in the landline rate center where customers seek to port numbers from the LEC to CMRS providers.
2. We seek comment on the issues raised in the Petition. Interested parties may file comments on or before February 26, 2003. Reply comments are due March 13, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Comments and reply comments should be filed in the docket number, CC Docket No. 95-116.
3. This is a “permit but disclose” proceeding pursuant to § 1.1206 of the Commission's Rules. Ex parte presentations that are made with respect to the issues involved in the Petition will be allowed but must be disclosed in accordance with the requirements of § 1.1206(b) of the Commission's Rules.
4. Comments filed through the ECFS can be sent as an electronic file via the Internet to
5. Parties who choose to file by paper must file an original and four copies of each filing. Each filing should include the applicable docket number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. In addition, a diskette copy should be sent to the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail to
6. The full text of the Petition and responsive comments will be available electronically on the Commission's ECFS under CC Docket No. 95-116. In addition, copies of these documents are available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Documents may also be purchased from the Commission's duplicating contractor. Alternative formats (computer diskette, large print, audio recording and Braille) are available to persons with disabilities by contacting Brian Millin, of the Consumer and Governmental Affairs Bureau, at (202) 418-7426 (voice) or (202) 418-7365 (TTY), or at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the interim 2003 total allowable catch (TAC) of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), February 9, 2003, until superseded by the notice of Final 2003 Harvest Specifications of Groundfish for the GOA, which will be published in the
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The interim 2003 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area is 11,741 metric tons (mt) as established by the interim 2003 harvest specifications of groundfish for the GOA (67 FR 78733, December 26, 2002).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the interim 2003 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 11,691 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.
Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the interim TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of the Secretary, Department of Transportation.
Notice of proposed rulemaking.
The Department is proposing to amend its rules governing airline computer reservations systems (CRSs), 14 CFR part 255, by changing the rules' expiration date from March 31, 2003, to January 31, 2004. If we do not revise the expiration date, the rules will terminate on March 31, 2003. This proposed extension of the current rules would keep them in effect while we carry out our reexamination of the need for CRS regulations. We have tentatively concluded that most of the current rules should be maintained on a temporary basis because they may be necessary for promoting airline competition and protecting consumers, although the Department may determine in its reexamination that the need for most or all of the rules has ended. The Department has previously extended the rules from their original December 31, 1997, expiration date, most recently to March 31, 2003.
Comments must be submitted on or before February 28, 2003. Late filed comments will be considered to the extent possible.
To make sure your comments and related material are not entered more than once in the docket, please submit them (marked with Docket Number OST-2003-4484) by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001.
(2) By hand delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) Electronically through the Web Site for the Docket Management System at
However, due to security procedures in effect since October 2001 on mail deliveries, mail received through the Postal Service may be subject to delays. Commenters should consider using an express mail firm to ensure the timely filing of any comments not submitted electronically or by hand.
Thomas Ray, Office of the General Counsel, 400 Seventh St., SW., Washington, DC 20590, (202) 366-4731.
We adopted rules governing CRS operations, 14 CFR part 255, because almost all airlines operating in the United States relied on the CRSs in marketing their airline services and each system was then controlled by one or more airlines or airline affiliates. 57 FR 43780, September 22, 1992. We found then that rules were necessary to ensure that each of the airlines and airline affiliates that controlled a system did not use the system to unfairly prejudice the competitive position of other airlines and to ensure that travel agents and their customers could obtain accurate and unbiased information from the systems. Our rules contained a sunset date to ensure that we would reexamine whether the rules remained necessary and, if so, whether they were effective.
As contemplated by the sunset date provision, we began a proceeding to reexamine whether the rules were necessary and effective by issuing an advance notice of proposed rulemaking. 62 FR 47606, September 10, 1997.
We later issued a supplemental advance notice of proposed rulemaking that asked the parties to update their comments. 65 FR 45551, July 24, 2000.
We recently issued a notice of proposed rulemaking where we tentatively concluded that most of the rules may remain necessary, at least in the short term, although we also proposed to eliminate some rules and to change others. 67 FR 69366, November 15, 2002. Our notice contains a lengthy and detailed discussion of the rulemaking issues, including our tentative findings on the relevant features of the airline distribution and CRS businesses. Comments and reply comments on our tentative findings on the need for CRS regulation and our proposals are due March 16 and May 15, 2003, respectively. 67 FR 72869, December 9, 2002.
By this notice we are proposing to extend the rules' expiration date to January 31, 2004, so that they will remain in force while we complete the rulemaking where we are reexamining the existing CRS rules. We have established a date for comments in that rulemaking proceeding that is only two weeks before the rules' current expiration date, and the reply comments are due several weeks after the current sunset date. We clearly cannot complete that rulemaking by March 31. Allowing the rules to sunset may be contrary to the public interest. Extending the sunset date will give us time to complete our reexamination of the rules as promptly as possible, so that the rules are updated to reflect current industry conditions and economic realities.
We have set a 15-day comment period so that we can publish a final decision on this proposal before the rules' current expiration date.
Our notice of proposed rulemaking set forth our analysis and preliminary findings on the nature of the airline distribution and CRS businesses and on whether CRS rules appear necessary or
Our notice of proposed rulemaking established a 60-day comment period and a 30-day reply comment period. Sabre and 18 other parties jointly asked us to extend the comment period by 60 days and the reply comment period by 30 days. We granted that request because providing the additional time was reasonable, due to the complexity of the issues, the length of our notice of proposed rulemaking, and the inclusion of three major holidays within the comment period. 67 FR 72869, December 9, 2002. Giving the parties adequate time for preparing comments will help us, since their comments should then be more thorough. The parties' petition to extend the comment period also included a request to extend the sunset date to September 30, 2003. We stated that we saw no reason to rule on that request and that we would consider that issue early this year. 67 FR 72870.
More recently Sabre filed a petition for a fact hearing. Sabre alleged that our notice of proposed rulemaking did not set forth an adequate factual basis for our proposals. We will address Sabre's request in a separate notice.
We have previously extended the sunset date five times, most recently to March 31, 2003. 62 FR 66272, December 18, 1997; 64 FR 15127, March 30, 1999; 65 FR 16808, March 30, 2000; 66 FR 17352, March 30, 2001; and 67 FR 14846, March 28, 2002.
We are again proposing to extend the expiration date for our CRS rules, to January 31, 2004, in order to maintain the rules while we complete our reexamination of the need for the rules and their effectiveness. The time needed for the parties' preparation of comments on our proposed rules, for our consideration of their comments and drafting of a final rule, and for the review by the Office of Management and Budget (“OMB”) will prevent us from issuing revised final rules by March 31, 2003. By changing the sunset date, we would preserve the status quo until we determine which rules, if any, should be adopted. We have tentatively determined that doing so would be in the public interest.
As noted above, in our notice of proposed rulemaking we tentatively concluded that the rules appear to be necessary, at least in the near term, to protect airline competition and consumers against potentially unreasonable and unfair CRS practices, despite the on-going changes in airline distribution and the CRS business, although those changes may well eliminate the need for CRS rules in the longer term. Furthermore, our obligation under 49 U.S.C. 40105(b), formerly section 1102(a) of the Federal Aviation Act, then codified as 49 U.S.C. 1502(a), to act consistently with the United States' obligations under bilateral air services agreements may justify a short-term continuation of the rules. 67 FR 69384. We may decide in our rulemaking that the elimination of all or most of the rules would be consistent with our bilateral agreement obligations. We have asked the parties to comment on that issue.
In addition, any expiration of the current rules could be disruptive, since systems, airlines, and travel agencies have been conducting their operations in the expectation that each system will comply with the rules. Our preliminary regulatory impact assessment tentatively concluded that the continuation of the existing rules would not impose substantial costs on the systems. 67 FR 69421. If the rules are effective, they may also lower the costs for airline participants and increase the efficiency of travel agency operations. Thus, we tentatively believe that we should maintain the CRS rules in effect for 10 more months, during which we intend to make our final decision on whether CRS rules should be readopted and, if so, with what changes. As stated above, we recognize the importance of adopting final rules that reflect current conditions in the CRS and airline distribution businesses, and we intend to complete our reexamination of our rules as soon as reasonably possible.
This rulemaking is a significant regulatory action under section 3(f) of Executive Order 12866 and has been reviewed by the Office of Management and Budget under that order. The proposal is also significant under the regulatory policies and procedures of the Department of Transportation, 44 FR 11034.
Maintaining the current rules for an additional 10 months should not, however, burden the systems with significant costs. Our notice of proposed rulemaking includes a preliminary regulatory assessment that explains why the existing rules do not appear to impose a significant burden on the systems or their users. 67 FR 69418-69423. We think the regulatory assessment included in our notice of proposed rulemaking should be applicable to our proposal to extend the rules' sunset date and that no new regulatory impact statement appears to be necessary. However, we will consider comments from any party on that analysis before we make this proposal final.
This rule would not impose unfunded mandates or requirements that would have any impact on the quality of the human environment.
Congress enacted the Regulatory Flexibility Act of 1980, 5 U.S.C. 601
This notice of proposed rulemaking sets forth the reasons for our proposed extension of the rules' expiration date and the objectives and legal basis for that proposed rule.
Our notice of proposed rulemaking on our overall reexamination of the CRS rules contains a tentative regulatory flexibility analysis on the rules' impact. That analysis appears to be valid for our proposed extension of the rules' termination date. Accordingly, we adopt that analysis as our tentative regulatory flexibility statement. We will consider any comments filed on that analysis in response to this proposal.
Our proposed rule contains no direct reporting, record-keeping, or other compliance requirements that would affect small entities. There are no other Federal rules that duplicate, overlap, or conflict with our proposed rules.
Interested persons may address our tentative conclusions under the Regulatory Flexibility Act in their comments submitted in response to this notice of proposed rulemaking.
I certify under section 605(b) of the Regulatory Flexibility Act (5 U.S.C.
This proposal contains no collection-of-information requirements subject to the Paperwork Reduction Act, Public Law No. 96-511, 44 U.S.C. chapter 35.
This proposed rule has been reviewed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and it has been determined that this action does 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. This proposed rule will not limit the policymaking discretion of the States. Nothing in this proposal would directly preempt any State law or regulation. We are proposing this amendment primarily under the authority granted us by 49 U.S.C. 41712 to prevent unfair methods of competition and unfair and deceptive practices in the sale of air transportation. We believe that the policy set forth in this proposed rule is consistent with the principles, criteria, and requirements of the Federalism Executive Order and the Department's governing statute. Comments on these conclusions are welcomed and should be submitted to the docket.
Air carriers, Antitrust, Consumer protection, Reporting and record-keeping requirements, Travel agents.
Accordingly, the Department of Transportation proposes to amend 14 CFR part 255 as follows:
1. The authority citation for part 255 continues to read as follows:
49 U.S.C. 40101, 40102, 40105, 40113, 41712.
2. Section 255.12 is revised to read as follows:
The rules in this part terminate on January 31, 2004.
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to our authority in section 110(k)(5) of the Clean Air Act (CAA or Act), EPA is proposing to find that the California State Implementation Plan (SIP) is substantially inadequate for all nonattainment air pollution control districts in the State and for all attainment area districts that have an approved Prevention of Significant Deterioration (PSD) program because the State cannot provide “necessary assurances” that it or the districts have authority to carry out the applicable nonattainment New Source Review (NSR) or PSD portions of the SIP. Specifically, sections 110(a)(2)(C) and (I) and 172 of the Act require the applicable implementation plan to contain a program for issuing permits to major stationary sources of air pollution pursuant to parts C and D of title I of the Act. In addition, section 110(a)(2)(E) requires that each SIP provide necessary assurances that the State or districts have adequate authority to carry out the SIP and that no state law prohibits the State or districts from carrying out any portion of the SIP. The California SIP does not meet these requirements because California Health & Safety Code section 42310(e) exempts new and modified major agricultural sources from all permitting, including PSD and NSR permitting otherwise required by parts C and D of title I of the Act. If EPA finalizes this proposed finding of substantial inadequacy, California will be required to amend its state law to eliminate the permitting exemption as it pertains to major agricultural sources of air pollution and submit the necessary assurances by November 23, 2003 to support an affirmative finding by EPA under section 110(a)(2)(E). If the State fails to submit the necessary assurances of authority or if EPA disapproves any such submittal in response to a final SIP call, sanctions will apply statewide pursuant to section 179 of the Act.
Comments must sent by March 17, 2003. EPA will respond to comments in its final action on this proposal.
Send comments to: Gerardo Rios, Permits Office (AIR-3), Air Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901.
You can review and copy the existing SIP rules at EPA's Region 9 office from 8:30 am to 5 pm, Monday-Friday. A reasonable fee may be charged for copying.
Copies of the SIP rules are also available for inspection at the following locations: California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814.
Please call Gerardo Rios, EPA Region IX, at (415) 972-3974 or send e-mail to
Throughout this document, “we,” “us” and “our” refer to EPA.
CAA section 110(k)(5) provides that whenever EPA finds the applicable implementation plan “is substantially inadequate to attain or maintain the relevant national ambient air quality
For areas that fail to meet the National Ambient Air Quality Standards (NAAQS), section 110 and title I, part D of the Act require SIPs to contain a program for issuing “permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 173.” CAA section 172(c)(5). EPA regulations establish that an approvable SIP program for issuing preconstruction permits “shall apply to any new major stationary source or major modification that is major for the pollutant for which the area is designated nonattainment * * * .” 40 CFR 51.165(a)(2). Neither the Act nor EPA regulations allow any exemptions from permitting for new major sources, and our regulations contain only limited exemptions for major modifications. 40 CFR 51.165(a)(1)(v)(C).
For areas that attain the NAAQS, section 110 and title I, part C of the CAA require a PSD preconstruction permitting program for new and modified major stationary sources.
California Health & Safety Code section 42310(e) exempts from all air permitting “equipment used in agricultural operations in the growing of crops or the raising of fowl or animals.” As a result, the State and districts cannot issue permits to these agricultural sources, even if they are major stationary sources under the Act. The CAA NSR and PSD permitting requirements do not provide for this exemption.
Section 110(a)(2)(E) of the Act requires the State to provide assurances that it has “adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof) * * * .” California Health & Safety Code section 42310(e) effectively prohibits the State and districts from fully implementing the SIP-approved NSR and PSD permitting programs for agricultural sources. Thus, the SIP does not comply with the requirement for the State to have adequate legal authority to fully implement the SIP. Therefore, the SIP for nonattainment areas and approved PSD programs in attainment areas in California is substantially inadequate and must be corrected.
To correct the deficiency, EPA recommends that the State legislature amend Health & Safety Code section 42310(e) to remove the exemption as it applies to major agricultural sources. The State is already subject to a sanctions clock based on the Notice of Deficiency (NOD) that EPA issued on May 22, 2002, 67 FR 35990, with respect to the State's title V operating permits program. In that NOD, EPA explained that California Health & Safety Code section 42310(e) improperly exempted major agricultural sources from CAA title V permitting. The NOD stated: “EPA has determined that significant action in this instance means the revision or removal of Health and Safety Code 42310(e) so that local air pollution control districts have the required authority to issue title V permits to stationary agricultural sources that are major sources of air pollution.” A similar correction with respect to NSR and PSD permitting is necessary to comply with this proposed action.
The May 2002 NOD notes that the title V regulations instruct EPA to apply sanctions in accordance with section 179(a) of the Act if California has not corrected the deficiency (removal or revision of the permitting exemption in Health and Safety Code section 42310(e)) prior to November 23, 2003 (18 months after the effective date of the NOD). The State legislature is required to take essentially the same action (
If EPA finalizes this SIP call and determines the State has failed to submit the necessary assurances addressing the deficiency by the required date, a sanctions clock would start for this SIP deficiency in accordance with section 179 of the Act. EPA proposes that if EPA determines the State fails to submit the necessary assurances to address the SIP call by November 23, 2003, or if EPA subsequently finds the correction does not adequately provide such assurances, sanctions would apply as specified under 40 CFR 52.31.
EPA is not calling for specific revisions to district rules at this time. We note that several districts may have exemptions for agricultural sources in their local SIP-approved rules.
If EPA finalizes this SIP call, as proposed, the State would need to submit to EPA a SIP revision providing the necessary assurances that it (or the districts) can fully implement the required NSR and PSD programs within the State. If the State fails to submit the required assurances or if EPA finds the submittal incomplete or disapprovable, sanctions would apply in accordance with CAA sections 179(a) and (b) and EPA regulations at 40 CFR 52.31. There are two types of sanctions: highway funding sanctions (section 179(b)(1)) and offset sanctions (section 179(b)(2)). Pursuant to our regulations at 40 CFR 52.31, offset sanctions will apply 18 months following a finding by EPA under section 179(a); highway funding sanctions would apply six months later.
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The Office of Management and Budget (OMB) has historically exempted from Executive Order 12866 regulatory actions governing revisions to SIPs. It has been determined that today's proposed call for revisions to the SIP would not, in any event, be a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.
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.
Today's proposed SIP call would not establish requirements applicable to small entities. Instead, it would require the State of California and several local air districts to develop, adopt, and submit SIP revisions that would provide the necessary assurances that the applicable NSR and PSD programs do not exempt major agricultural sources.
This rule will not have a significant impact on a substantial number of small entities because the rule does not establish requirements applicable to small entities. Therefore, the Administrator certifies that this action will not have a significant impact on a substantial number of small entities.
Under sections 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 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 has determined that the action proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. The proposed action will require the State of California and several local air districts to revise laws and regulations governing exemptions for agricultural sources. This requirement, even if considered a federal mandate,
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it does not impose a new enforceable duty on the State (see
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 proposed rule does not have tribal implications, as specified in Executive Order 13175 because it does not apply to any Tribes or otherwise 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.
EPA, nonetheless, specifically solicits additional comment on this proposed rule from tribal officials.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Environmental protection, Air pollution control, Intergovernmental relations, New Source Review, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the San Joaquin Valley Unified Air Pollution Control District's (SJVUAPCD or District) revised permit exemption and new source review (NSR) rules, Rules 2020 and 2201, respectively, for stationary sources. The District has revised Rules 2020 and 2201 and submitted them to EPA as a revision to the California State Implementation Plan (SIP). The revisions address deficiencies identified in our July 19, 2001 limited approval and limited disapproval of the previous version of these rules.
EPA is also publishing in today's
Comments must be sent by March 17, 2003. EPA will respond to comments in a final action on this proposed approval.
Send comments to: Ed Pike, Permits Office [AIR-3], Air Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901.
You can review and copy the submitted Rules 2020 and 2201, the existing SIP rules, and EPA's Technical Support Document (TSD) at EPA's Region 9 office from 8:30 am to 5 pm, Monday-Friday. A reasonable fee may be charged for copying.
Copies of the submitted Rules are also available for inspection at the following locations:
California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814.
San Joaquin Valley Unified APCD, 1990 E. Gettysburg Avenue, Fresno, CA 93726.
Please call Ed Pike at (415) 972-3970 or send e-mail to
Throughout this document, “we,” “us” and “our” refer to EPA.
EPA today proposes to approve revisions to the California SIP by incorporating the submitted revised versions of District Rules 2020 and 2201 into the SIP. If EPA finalizes this proposed action after considering public comment, the submitted versions of Rules 2020 and 2201 will replace the existing versions of those rules currently in the SIP for the San Joaquin Valley Unified Air Pollution Control District, which includes the following counties: Fresno, Kern,
The submitted versions of Rules 2020 and 2201 were adopted by the District on December 19, 2002, and submitted to EPA by the California Air Resources Board (CARB) on December 23, 2002. EPA found the submittal to be complete on December 30, 2002. EPA's Technical Support Document (TSD) accompanying this proposed action describes the portions of Rules 2020 and 2201 that were revised.
District Rule 2201 specifies the requirements for the review of new and modified stationary sources and outlines the requirements to be included in authorities to construct (ATCs) and permits to operate (PTOs). Rule 2020 specifies the emission units that are not required to obtain ATCs or PTOs. Together, these rules define the applicability and requirements of the District's NSR program.
On July 19, 2001, EPA finalized a limited approval and limited disapproval of previous versions of Rules 2020 and 2201.
Under section 179(a)(2), if the Administrator disapproves a submission under section 110(k)(3) for an area designated nonattainment because of the submission's failure to meet one or more of the elements required by the Act, the Administrator is required to apply one of the sanctions set forth in section 179(b) if the deficiency has not been corrected within 18 months of such disapproval. Section 179(b) provides two sanctions available to the Administrator: limitations on projects and grants for which the Department of Transportation may approve federal highway funding (“highway sanction”) and increasing the NSR offset requirements (“offset sanction”). By regulation, EPA established that we will apply the offset sanction 18 months after rule disapproval and the highway sanction 6 months after the offset sanction. 40 CFR 52.31. The CAA also provides that final disapproval under section 110(k)(3) triggers the federal implementation plan (FIP) requirement. CAA Section 110(c). The 18 month period referred to in section 179(a) and 40 CFR 52.31, began on August 20, 2001, which was the effective date of EPA's final limited disapproval, and will expire on February 20, 2003.
With the limited disapproval, the July 19, 2001 action simultaneously finalized a limited approval of Rules 2020 and 2201. EPA finalized the limited approval under section 110(k)(3) in light of EPA's authority pursuant to section 301(a) to prescribe regulations necessary to further air quality by strengthening the SIP. Because Rules 2020 and 2201 strengthened the District's NSR program despite the three cited rule deficiencies, EPA's limited approval incorporated Rules 2020 and 2201 into the SIP subject to the section 179 mandatory sanctions triggered by EPA's limited disapproval.
EPA's limited disapproval cited three deficiencies in the previous versions of Rules 2020 and 2201. First, EPA determined that the previous version of Rule 2201 was not approvable because its offset tracking equivalency system failed to contain a mandatory remedy. We also found the previous version of Rule 2201 deficient because it did not require all sources making modifications that result in a significant increase in emissions to meet the Lowest Achievable Emission Rate (LAER). Finally, we concluded the previous version of Rule 2020 was not approvable because section 4.5 of the rule exempted agricultural sources from permitting. For a more detailed discussion of these three rule deficiencies please see our final limited approval and limited disapproval, 66 FR 37587 (July 19, 2001), and the accompanying Technical Support Document dated August 30, 1999 (“1999 TSD”).
EPA's July 2001 limited disapproval informed the District that the following actions were required to correct the rule deficiencies:
1. The District must revise Rule 2201 to provide a mandatory, enforceable and automatic remedy to cure any annual shortfall and, in the future, prevent shortfalls in the District's New Source Review Offset Equivalency Tracking System.
2. The District must remove the agricultural exemption from District Rule 2020.
3. The District must revise Rule 2201 to ensure that all sources meet LAER
a. What is the basis for allowing an annual offset equivalency demonstration?
Section 173(a)(1)(A) provides that new and modified stationary sources seeking to commence operating in a nonattainment area must be required by the state permitting program to obtain sufficient offsetting emission reductions (“offsets”) such that, “the total allowable emissions from existing sources in the region, from new or modified sources which are not major emitting facilities, and from the proposed source will be sufficiently less than total emissions from existing sources * * * so as to represent reasonable further progress * * *.” In our July 19, 2001 final action, we explained that this statutory focus on total regional emissions supported the approval of a District offset program that
The goal of the District's offset equivalency tracking system, therefore, is to show that, notwithstanding certain differences between the District and federal NSR programs, the District's rules would require offsets that are, in the aggregate, equivalent to offsets required under the federal program.
b. What is the offset equivalency tracking system in Rule 2201 and how does it satisfy the deficiency noted in the limited disapproval?
Section 7.0 of the revised District Rule 2201 (adopted Dec. 19, 2002) provides for a system to track and demonstrate the equivalency of the District's NSR offset requirements to the offset requirements of the federal NSR program. There are three basic components of the tracking system provisions. Section 7.1 outlines the parameters to be tracked by the District on an annual basis. Sections 7.2 and 7.3 describe how equivalency is to be demonstrated each year. Section 7.4 describes the remedies to take effect to cure any annual shortfall and prevent future shortfalls. While the District action required in EPA's final limited approval/limited disapproval was “to provide a mandatory and enforceable remedy to cure any annual shortfall and, in the future prevent shortfalls,” as noted above, the provisions for tracking and demonstrating equivalency are critical for ensuring that the remedy is applied automatically and addresses the cause for the shortfall. Thus, each of the components provided in section 7.0 is necessary to ensure the remedy provision satisfies this deficiency.
The District's tracking system requires two demonstrations to be included in the annual report. First, the District is to track and compare on an annual basis the aggregate quantity of offsets required under Rule 2201 and the quantity of offsets that would have been required under the federal NSR provisions. Rule 2201, section 7.2.1. This comparison will show whether the District rule requires as many offsets as the federal rules, regardless of the “creditable” value of the actual emission reduction used to meet the offset requirements. Should there be a shortfall the rule provides for two stages of remedy. The District may first retire unused emission reduction credits that meet federal requirements to make up for the shortfall. Rule 2201, section 7.4.1.1. If sufficient emission reduction credits are not available, the District must apply federal offset requirements to all permits issued after the annual demonstration deadline until the District amends its NSR provisions to require equivalent offsets. Rule 2201, section 7.4.1.2. These remedies reasonably address the source of the demonstrated shortfall and satisfy our requirement for a mandatory, enforceable and automatic remedy.
The second piece of the annual demonstration addresses whether the District's overall approach is equivalent, including the District's decision not to adjust the creditable value of emission reductions at time of use (“surplus adjusting” or “discounting” at time of use). The District will determine the creditable surplus value of the emission reductions actually used each year by applying federal creditability criteria, and compare this adjusted aggregate number to the number of offsets that would have been required under the federal NSR program. The District shall provide an annual report to demonstrate that, in the aggregate, it is achieving an equivalent number of creditable emission reductions as would be achieved under the federal program. Rule 2201, section 7.2.2. If a shortfall is found in this comparison, and it is not the result of different offset requirements identified in the first piece of the demonstration described above, the cause of the shortfall must be related to differences in the way the District determines the creditable value. As a result, the remedy for such a shortfall is to apply federal creditability criteria, including discounting at time of use. In the event of a shortfall in this portion of the annual demonstration, section 7.4.2 will automatically require all ATCs issued after the annual report deadline to ensure emission reductions used to satisfy offset requirements are creditable and that the surplus value of those reductions is determined at the time of ATC issuance. EPA proposes to conclude that this remedy reasonably meets the EPA requirement for a mandatory, enforceable and automatic remedy to cure any shortfall and prevent future shortfalls.
c. Does the tracking system replace applicable NSR requirements?
The tracking system does not replace the applicable requirements of Rule 2201. It is important to clarify that while the tracking system allows EPA to approve the District NSR provisions of Rule 2201 notwithstanding specific differences between the District's rules and federal NSR requirements, nothing in section 7.0 of the rule relieves sources from the obligation to comply with the other requirements of Rule 2201. For example, sources must continue to obtain offsets in compliance with section 4.5 of Rule 2201. Emission reductions used to meet these offset requirements must continue to be “real, enforceable, quantifiable, surplus, and permanent.” Rule 2201, section 3.2.1. Therefore, a source could not rely on the annual aggregate demonstration to cure the use of unenforceable (or otherwise non-creditable) emission reductions to meet the District's offset requirements. Such use would be a violation of the
Major sources (and major modifications) should therefore ensure that the emission reductions used to satisfy offset requirements meet federal creditability criteria.
Because the criteria for determining the creditability of an emission reduction will continue to be important both for sources seeking permits and for the District in implementing the tracking system,
d. What are the requirements for being an enforceable emissions reduction?
CAA sections 173(a) and (c)(1), require emission reductions to be federally enforceable before a construction permit may be issued, and in effect and enforceable by the time a new or modified source commences operation. EPA has explained that the District can make emission reductions enforceable by modifying the permit for the source reducing emissions or by obtaining SIP approval of the rules that result in the emission reduction. EPA has also explained that while the emission reduction need not occur before the new or modified source commences operation, the specific emission reduction credits to be used by the source under review must be identified and enforceable before the authority to construct may be issued.
e. What kinds of emission reductions may be creditable?
Section 7.2.2.2 of Rule 2201 allows the District to include in the annual equivalency demonstration, “the surplus value of additional creditable emission reductions that have not been used as offsets and have been banked or have been generated as a result of permitting actions.” These unused “additional credits” may include emission reductions from a number of actions. Examples of such additional credits include emission reductions used to meet offset requirements by non-major sources and the 10 percent Air quality Improvement Deduction applied under section 4.12 of Rule 2201 for newly banked credits.
The central issue for determining the creditability of a particular action often will be whether the reduction is surplus. The surplus requirement derives from section 173(c)(2) of the Act, which provides, “Emission reductions otherwise required by this Act shall not be creditable as emissions reductions for purposes of any such offset requirement.” To be creditable, a particular emission reduction must not be required by the Act or otherwise relied upon to meet a requirement of the Act. Thus, District requirements that are more stringent than an express requirement of the Act may generate surplus credits as long as the emission reductions are not relied upon elsewhere to comply with a requirement of the Act (
The emission reductions must also be real and quantifiable—actual emissions to the air must be reduced. Paper reductions (
It is not possible for EPA to predict the various potential claims that will be made for emission reduction credits. Even for the examples described in this section and in the TSD, case-specific facts may affect the analysis on creditability. It is therefore critical for the District to raise specific questions to EPA so that these issues can be resolved on a case-by-case basis.
f. Are pre-1990 emission reductions creditable?
Pre-1990 emission reduction credits pose particular problems under each of the criteria for creditability because of the age of these credits. Information on their generation may be missing, making it difficult to verify the quantity of emission reductions and ensure their continued enforceability. These problems, however, can be overcome if
The basic purpose of the surplus requirement is to avoid “double counting” emission reductions. Double counting can occur where emission reductions are the result of, or would have been achieved by, controls expressly required by the Act or controls used to satisfy requirements of the Act. Double counting can also occur if credit for emission reductions is claimed where the State's planning actions do not recognize that the reduced emissions existed in the first place. This is especially a concern for emission reductions that occurred long ago.
To avoid potential double counting, EPA has issued guidance on how emission reductions should be discounted at the time of use and the planning assumptions an area must make to allow the use of pre-1990 credits to meet NSR offset requirements. The 1992 “General Preamble for the Implementation of title I of the Clean Air Act Amendments of 1990” (“General Preamble”) describes the planning requirements of the Act as amended in 1990. 57 FR 13498 (April 16, 1992). The General Preamble addresses the issue of pre-1990 (or “pre-enactment”) emission reductions and how areas need to ensure the use of these does not conflict with planning. The two types of planning actions that need to reflect the use of pre-1990 credits are Rate of Progress (ROP) plans and attainment demonstrations.
Section 172(c)(2) requires implementation plans for nonattainment areas to include provisions requiring reasonable further progress toward attainment. The 1990 Amendments added specific reduction requirements necessary to satisfy the general reasonable further progress requirement. For example, ozone areas classified as moderate nonattainment and above must achieve a 15-percent reduction in volatile organic compound (VOC) emissions from 1990 baseline levels within six years of enactment of the CAA Amendments. CAA section 182(b)(1). Ozone areas classified as serious and above must, in general, achieve an additional 3-percent reduction every three years thereafter until the attainment date. CAA section 182(c)(2)(B).
Because the baseline for measuring reasonable further progress is the level of actual emissions from anthropogenic sources in 1990, pre-1990 emission reductions generally are not included in the baseline. Thus, to avoid giving credit for reductions that the baseline already reflects, pre-1990 credits must be “added back.” The General Preamble explains that the required emission reductions necessary to meet reasonable further progress (
There are different ways that areas can include pre-1990 credits in ROP plans. EPA has explained, “A State may choose to show that the magnitude of pre-1990 ERC's (in absolute tonnage) was included in the growth factor, or the State may choose to show that it was not included in the growth factor, but in addition to anticipated growth.” 1994 Seitz Memo. Under either approach, the quantity of pre-1990 credits added to or included in the growth factor must be distinguishable and identifiable. Id. If the addition of pre-1990 credits cannot be distinguished from general growth, EPA will not be able to determine whether the growth factor used in the plan is reasonable or to compare the actual use of pre-1990 credits to the cap assumed in the plan.
Pre-1990 credits must also be accounted for in an area's attainment demonstration. 57 FR 13509 and 13553;
There are multiple ways that these pre-1990 emissions can be included in the inventories. The simplest would be to include a line item for the emissions to be added for use as potential offsets. No matter what approach an area uses, the demonstration must clearly identify these emissions so that the reasonableness of the approach can be evaluated and the actual use of these pre-1990 credits can be compared to the assumptions in the demonstration.
To date, SJVUAPCD has failed to adequately account for the use of pre-1990 emission reduction credits in its planning activities. As a result, EPA does not consider these reductions to be surplus creditable reductions that can be used to meet federal offset requirements within the District.
The San Joaquin Valley was originally classified as moderate for the PM-10 NAAQS following enactment of the 1990 Clean Air Act Amendments. The District submitted a moderate area plan in December 1991, but this plan was never approved by EPA and, in any event, did not support the use of pre-1990 credits by including these credits in the plan's inventories as emissions in the air. On January 8, 1993, EPA reclassified the San Joaquin Valley as serious for PM-10. 58 FR 3334. The attainment deadline for serious PM
The San Joaquin Valley is currently designated as a severe nonattainment area for the 1-hour ozone NAAQS. 66 FR 56476 (Nov. 8, 2001). EPA approved a serious area plan (the “1994 ozone plan”) for the District on January 8, 1997. 62 FR 1150. The plan included a demonstration that the area would attain the ozone NAAQS by 1999. The attainment demonstration in the 1994 ozone plan did not specifically identify and account for the possible use of pre-1990 emission reductions. The area failed to attain the ozone standard in 1999, and as a result EPA reclassified the area to severe on November 8, 2001. 66 FR 56476. The severe area plan was due on May 31, 2002. 66 FR at 56481. The attainment deadline for severe areas is November 15, 2005. CAA section 181(a)(1). The District failed to submit the required plan by the May 2002 deadline and is now subject to the offset sanction beginning March 18, 2004, for failure to submit the required plan. 67 FR 61784 (Oct. 2, 2002).
The 1994 ozone plan included ROP milestone provisions for 1996 and 1999. The plan, however, did not include pre-1990 credits in the ROP provisions or attainment demonstration. The District has recently prepared and adopted a ROP plan for the 2002 and 2005 milestones.
Based on these findings regarding the creditability of pre-1990 credits, EPA will consider the creditable value of these credits used in the District's tracking system to be zero. EPA, therefore, encourages the District and sources to avoid using these pre-1990 credits and, if problems arise, to work with EPA to explore options for other sources of emission reduction credits.
a. How has the District corrected this deficiency?
On December 19, 2002, the District adopted a version of Rule 2020 that deleted section 4.5, and thereby eliminated any exemption in its NSR rule for permitting a new or modified major stationary source of air pollutants. The District's deletion of the exemption from its NSR rule corrects the rule deficiency set out in our July 2001 limited disapproval. Because the District removed the exemption from its rule and for the reasons discussed below, EPA is proposing to find that the District has corrected the deficiency and to approve Rule 2020 as revised.
b. How is EPA addressing the State exemption?
EPA is aware, however, that California Health & Safety Code 42310(e) continues to preclude the District, as well as all other districts in California, from permitting agricultural sources under either title I or title V of the CAA. While the State is on notice of the need to remove the exemption for major sources for purposes of title V, the State must also remove the exemption for any major sources for purposes of title I. Therefore, concurrent with today's proposed approval of the District's revised version of Rule 2020 (deleting the exemption), EPA is publishing in the
This concurrent proposal will inform the Executive Officer of the CARB that the California SIP is and will remain inadequate until the California legislature amends Health & Safety Code section 42310(e) to the extent necessary to allow the State of California through the air districts to issue permits under title I, parts C and D, to all major sources, including those involved in agriculture. This action proposes to require the State to correct the inadequacy by November 23, 2003 to avoid a finding under section 179 of the Act which would trigger mandatory sanctions.
EPA determined that the previous version of District Rule 2201 did not always require LAER for major modifications because it did not require LAER if a modification resulted in an increase in actual emissions but not an increase in the emission unit's permitted emission rate. Therefore, EPA required the District to modify Rule 2201 to ensure that all major
The District has corrected this deficiency by adding a backstop in addition to the current LAER applicability requirements. This backstop requires that any major modifications, as defined at 40 CFR 51.165, must meet LAER.
EPA is proposing to approve revised versions of SJVUAPCD Rules 2020 and 2201. The revisions to these rules satisfy the requirements outlined in our July 19, 2001 limited approval/limited disapproval of previous versions of these rules. EPA is simultaneously publishing an interim final determination to stay the sanctions clock started by the limited disapproval. Additional information on the amendments to Rules 2020 and 2201 is contained in the TSD for this proposal.
Concurrent with this proposal, we are also proposing to call in the State to repeal or amend Health and Safety Code Section 42310(e). Once EPA determines that the State has provided the necessary assurances required under section 110(a)(2)(E), the NSR program for the SJVUAPCD will fully meet the requirements of sections 172(c)(5), 173 and 182 of the CAA.
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
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.
This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and title I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.
Under sections 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 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 has determined that the approval action proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 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 proposed rule does not have tribal implications, as specified in Executive Order 13175. We are merely proposing to approve a state rule implementing a federal standard. EPA's action does not impose requirements on Tribes and the rules being approved do not significantly or uniquely affect Tribes. Thus, Executive Order 13175 does not apply to this rule.
EPA specifically solicits additional comment on this proposed rule from tribal officials.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks and is not a significant regulatory action.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, New Source Review, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Incorporation by reference of the State Implementation Plan for the State of California was approved by the Director of the Federal Register on July 1, 1982.
Exotic Newcastle disease (END) has been confirmed in the State of Arizona. The disease has been confirmed in backyard poultry, which are raised on private premises for hobby, exhibition, and personal consumption. Previously, END had been confirmed in the States of California and Nevada. The Secretary of Agriculture signed a declaration of extraordinary emergency with respect to END in California on January 6, 2003 (
END is a contagious and fatal viral disease affecting domestic, wild, and caged poultry and birds. It is one of the most infectious diseases of poultry in the world, and is so virulent that many birds die without showing any clinical signs. A death rate of almost 100 percent can occur in unvaccinated poultry flocks. END can infect and cause death even in vaccinated poultry. This disease in poultry and birds is characterized by respiratory signs accompanied by nervous manifestations, gastrointestinal lesions, and swelling of the head.
END is spread primarily through direct contact between healthy birds or poultry and the bodily discharges of infected birds or poultry. Within an infected flock, END is transmitted by direct contact, contaminated feeding and watering equipment, and aerosols produced by coughing, gasping, and other respiratory disturbances. Dissemination between flocks over long distances is often due to movement of contaminated equipment and service personnel, such as vaccination crews. Movement of carrier birds and those in an incubating stage accounts for most of the outbreaks in the pet bird industry.
The existence of END in Arizona represents a threat to the U.S. poultry and bird industries. It constitutes a real danger to the national economy and a potential serious burden on interstate and foreign commerce. The United States Department of Agriculture (the Department) has reviewed the measures being taken by Arizona to control and eradicate END and has consulted with the appropriate State Government and Indian tribal officials in Arizona. Based on such review and consultation, the Department has determined that the measures being taken by the State are inadequate to control or eradicate END. Therefore, the Department has determined that an extraordinary emergency exists because of END in Arizona.
This declaration of extraordinary emergency authorizes the Secretary to (1) hold, seize, treat, apply other remedial actions to, destroy (including preventative slaughter), or otherwise dispose of, any animal, article, facility, or means of conveyance if the Secretary determines the action is necessary to prevent the dissemination of END and (2) prohibit or restrict the movement or use within the State of Arizona, or any portion of the State of Arizona, of any animal or article, means of conveyance, or facility if the Secretary determines that the prohibition or restriction is necessary to prevent the dissemination of END. The appropriate State Government and Indian tribal officials in Arizona have been informed of these facts.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement, a Land Resource Management Plan (LRMP) amendment, issue a call for coal and other resource information, and notice of public meeting.
The U.S. Forest Service (USFS) will prepare an environmental impact statement (EIS) to analyze the environmental impacts of leasing three federal coal reserve tracts. The three tracts total 1,210.44 acres and underlie lands administered by the USFS. The proposed development of the three federal coal reserve tracts involves underground mining of coal using room-and-pillar mining methods. No surface disturbance related to mine openings, haul roads, or processing will occur on the federal tracts. The tracts are adjacent to an existing underground coal mine on private lands.
In conjunction with the EIS, a Land Resource Management Plan Amendment will be prepared in a cooperative effort between the USFS, Bureau of Land Management (BLM) and the Office of Surface Mining (OSM). As part of the initiation of the LRMP Amendment, a Call for Coal and Other Resource Information is being made. This data request solicits (1) information on the coal resource development potential of the three proposed tracts and (2) resources that may be affected by coal development for lands in the project area.
Since the passage of the MLA, the federal government has had the authority to lease minerals on federal lands. The act requires that the lands be included in a comprehensive land use plan, and the lease be compatible with the plan and meet the requirements of
Executive Order 13212, May 18, 2001 is intended to improve the internal management of the federal government in dealing with processing energy-related projects in a timely manner to aid the flow of domestic mineral production. The Forest Plan, as noted previously, identifies standards and guidelines, some of which are applicable to minerals activities. The Daniel Boone National Forest is presently preparing a revision to the Forest Plan that will be accompanied by its own EIS. However, 42 United States Code (USC) Section 885 does not permit the Secretary of Agriculture to delay processing of lease applications pending the completion of the revised Forest Plan. The current Forest Plan guides management of this national forest until the revised plan is completed and the administrative appeal process has ended. The Forest Service is publishing this Notice of Intent pursuant to the Council on Environmental Quality implementing regulations of the National Environmental Policy Act at 40 CFR 1501.7.
Corey Miller is the Interdisciplinary Team Leader for this proposed action. He can be reached by US mail at the Daniel Boone National Forest, 1700 Bypass Road, Winchester, KY 40391; by phone at (859) 745-3149; or by e-mail at
The Bureau of Land Management has the responsibility to address coal lease applications (coal lease sales) on federal mineral reserves. In consultation with the USFS, the responsible official for the BLM will decide whether or not to offer the tracts for competitive leasing, and under what terms, conditions and stipulations.
The Office of Surface Mining will be responsible for providing recommendations to the Secretary of the Interior regarding approval, disapproval, or conditional approval of the mine plan on lands contained within the federal lease area. If it is determined that there may be surface impacts resulting from mining in the proposed lease area, the Office of Surface Mining, with input from the U.S. Forest Service, will also be responsible for providing recommendations to the Secretary of the Interior concerning the issuance of findings as to whether or not the proposed lease and mining areas contain significant recreational, timber, economic or other values that may be incompatible with the proposed mining activities.
In addition to the publication of this Notice of Intent, legal notices will be published in the Lexington (KY) Herald-Leader and the Manchester (KY) Times.
A Public coping open house meeting will be held at the Leslie County Extension Office at 22045 Main Street in Hyden, KY on March 10, 2003 from 6 PM to 9 PM.
Additional hearings pursuant to Title 43 Code of Federal Regulations (CFR) Section 1610.2 and 43 CFR 3425.4, will be announced through the
Lands within the project area, which are acceptable for further leasing consideration after application of the unsuitability criteria will then be addressed in regards to other resource values and uses that could be affected by lease issuance.
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. Firstly, reviewers of the draft EIS must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and concerns (
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft EIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft EIS. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the draft EIS. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
After the comment period ends on the DEIS, the comments will be analyzed, considered, and responded to by the Forest Service in preparing the FEIS. The FEIS is scheduled to be completed in September 2003. The responsible official will consider the comments, responses, environmental consequences discussed in the FEIS, and applicable laws, regulations, and policies in making a decision regarding this proposed action.
The responsible official will document the decision and reasons for the decision in a Record of Decision. That decision will be subject to appeal in accordance with 36 CFR part 215.
Forest Service, USDA.
Notice of meeting.
The Lake County Resource Advisory Committee (RAC) will hold a meeting.
The meeting will be held on March 20, 2003, from 3:30 P.M. to 6 P.M.
The meeting will be held at the Lake County Board of Supervisor's Chambers at 255 North Forbes Street, Lakeport.
Debbie McIntosh, Committee Coordinator, USDA, Mendocino National Forest, Upper Lake Ranger District, 10025 Elk Mountain Road, Upper Lake, CA 95485. (707) 275-23612; EMAIL
Agenda items to be covered include: (1) Roll Call/Establish Quorum; (2) Review and Approval of the Minutes of the September 19, 2002 Meeting; (3) Finalize business for 2002; (4) Discuss excess funds from 2001 projects; (5) Financial Agreements for RAC Projects not Performed by Forest Service; (6) Mendocino County Representatives; (7) Recommend Projects for 2003; (8) Discussion on Next Meeting Date; (10) Public Comment period. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Natural Resources Conservation Service, United States Department of Agriculture.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13), and the Office of Management and Budget (OMB) regulations at 5 CFR part 1320 (60 FR 44978, August 29, 1995), this notice announces the Natural Resources Conservation Service's (NRCS) intention to request a revision to a currently approved information collection, Long Term Contracting.
Comments will be received for a 60-day period commencing with the date of this publication.
The information collected through this package is used by NRCS to ensure the proper use of program funds, including the application for participation, contract implementation, conservation planning, and application for payment. The table below lists the forms in this collection, the use of each document, and the applicable programs for the information collection. These forms constitute this information collection, and reflect the documents used by Department of Agriculture (USDA) program participants to indicate their desire to participate in one or more of the applicable programs. To obtain copies of forms referenced, access the Service Center Web site address at
This request represents a combination of four Information Collection Packages, as follows: OMB Number: 0578-0013, Long Term Contracting; OMB Number: 0578-0018, Application for Payment; OMB Number 0578-0028, Risk Protection Programs; and OMB Number 0560-0174, Environmental Quality Incentives Program, (transferred from the Farm Service Agency). The above table represents all of the forms incorporated into this one information collection, OMB Number 0578-0013. The table below shows a summary of the changes in the package since the previous authorization:
Copies of this information collection and related instructions can be obtained without charge from Phyllis Williams, the Agency OMB Clearance Officer, at 5602 Sunnyside Avenue, Mailstop 5460, Beltsville, Maryland 20705-5000; (301) 504-2170;
All responses to this notice will be summarized and included in the request
Natural Resources Conservation Service.
Notice of a finding of no significant impact.
Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Regulations (40 CFR Part 1500); and the Natural Resources Conservation Service Regulations (7 CFR Part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice that an environmental impact statement is not being prepared for the Williams Creek Watershed Clay County, Missouri.
Roger A. Hansen, State Conservationist, Natural Resources Conservation Service, Parkade Center, Suite 250, 601 Business Loop 70 West, Columbia, Missouri 65203. Telephone: (314) 876-0901.
The environmental assessment of this federally assisted action indicates that the project will not cause significant local, regional, or national impacts on the environment. As a result of these findings, Roger A. Hansen, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.
The project purposes are to rehabilitate an existing structure in order to comply with state and federal dam safety regulations, maintain flood prevention, flood damage reduction, and recreational benefits. The planned works of improvement include raising the height of Structure 2, improving the stilling basin/plunge pool, widening the auxiliary spillway, lowering the second stage of the principal spillway, installing wave protection on the front slope of the dam, installing an additional foundation drain, and replacing all recreational facilities during the construction process.
The Notice of a Finding of No Significant Impact (FONSI) has been forwarded to the Environmental Protection Agency and to various Federal, state, and local agencies and interested parties. A limited number of copies of the FONSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment are on file and may be reviewed by contacting Harold L. Deckerd, Assistant State Conservationist (WR).
No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
Import Administration, International Trade Administration, Department of Commerce.
Notice of initiation and preliminary results of changed circumstances antidumping duty administrative review and intent to revoke order in part.
In accordance with section 751(b) of the Tariff Act of 1930, as amended (the Act), and section 351.216(b) of the Department of Commerce's (the Department's) regulations, The Smencil Company (Smencil Co.) filed a request for a changed circumstances review of the antidumping duty (AD) order on certain cased pencils from the People's Republic of China (PRC). Specifically, Smencil Co. requests that the Department revoke the AD order with respect to the specialty pencil it produces, which is described below. The domestic industry has affirmatively expressed a lack of interest in the continuation of the order with respect to this product. In response to the request, the Department is initiating a changed circumstances review and issuing a notice of preliminary intent to revoke, in part, the AD order on certain cased pencils from the PRC. Interested parties are invited to comment on these preliminary results.
February 13, 2003.
Jack K. Dulberger or Howard Smith, AD/CVD Enforcement, Group II, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-5505 and (202) 482-5193, respectively.
On December 23, 2002, Smencil Co. filed a request with the Department to revoke the AD order on certain cased pencils from the PRC with respect to the patented, scent-infused pencils produced in the PRC that it imports.
Smencil Co. attached to its request a letter dated December 10, 2002 from the petitioners in the pencils AD proceeding,
Imports covered by this order are shipments of certain cased pencils of any shape or dimension which are writing and/or drawing instruments that feature cores of graphite or other materials, encased in wood and/or man-made materials, whether or not decorated and whether or not tipped (
Section 751(d)(1) of the Act and section 351.222 (g) of the Department's regulations provide that the Department may revoke an AD or countervailing duty order, in whole or in part, after conducting a changed circumstances review and concluding from the available information that changed circumstances sufficient to warrant revocation or termination exist. The Department may conclude that changed circumstances sufficient to warrant revocation (in whole or in part) exist when producers accounting for substantially all of the production of the domestic like product to which the order pertains have expressed a lack of interest in the order, in whole or in part.
Imports covered by this order are shipments of certain cased pencils of any shape or dimension which are writing and/or drawing instruments that feature cores of graphite or other materials, encased in wood and/or man-made materials, whether or not decorated and whether or not tipped (
Although the HTSUS subheading is provided for convenience and customs purposes our written description of the scope of the order is dispositive.
Furthermore, pursuant to section 351.221(c)(3)(ii) of the Department's regulations, because domestic producers have expressed a lack of interest, we determine that expedited action is warranted and have combined the notices of initiation and preliminary results.
If the final partial revocation occurs, we intend to instruct Customs to liquidate, without regard to applicable antidumping duties, all unliquidated entries of pencils that meet the above-noted specifications, and to refund any estimated antidumping duties collected on such merchandise entered, or withdrawn from warehouse, for consumption on or after December 1, 2001 (the first day of the period covered by the most recently initiated administrative review), in accordance with 19 CFR 351.222. We will also instruct Customs to pay interest on such refunds with respect to the subject merchandise entered, or withdrawn from warehouse, for consumption on or after December 1, 2001, in accordance with section 778 of the Act. The current requirement for a cash deposit of estimated antidumping duties on pencils that meet the above-noted specifications will continue unless, and until, we publish a final determination to revoke the order in part.
Interested parties are invited to comment on these preliminary results. Case briefs and/or written comments may be submitted by interested parties not later than 14 days after the date of publication of this notice. Parties who submit argument in this proceeding are requested to submit with the argument (1) a statement of the issue, and (2) a brief summary of the argument. Pursuant to section 351.309(d) of the Department's regulations, rebuttals to written comments, limited to the issues raised in the case briefs, may be filed not later than five days after the deadline for submission of case briefs. Also, interested parties may request a hearing within 10 days of publication of this notice. Any hearing, if requested, will be held no later than two days after the deadline for the submission of rebuttal briefs, or the first workday thereafter. All written comments shall be submitted in accordance with section 351.303 of the Department's regulations and shall be served on all interested parties on the Department's service list. The Department will issue the final results of this review within the time limits established in section 351.216 (e) of its regulations.
This notice is published in accordance with section 751(b)(1) of the Act and sections 351.216 and 351.222 of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is extending the time limit of the final results of the administrative review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China until no later than April 14, 2003. The period of review is September 1, 2000, through August 31, 2001. This extension is made pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended.
February 13, 2003.
Eli Blum-Page or Maureen Flannery, Import
Section 751(a)(3)(A) of the tariff Act of 1930 (the Act) requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested, and final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within the prescribed time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 and 180 days, respectively.
Based on timely requests from petitioner and two respondent companies, the Department initiated an administrative review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China, for the period of September 1, 200, through August 31, 2001.
On May 28, 2002, the Department published an extension of time limits for the preliminary results of this administrative review.
This case involves complex issues, including affiliation and the application of facts available. As such, the Department finds that is not practicable to complete this review within the time limits mandated by section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1). Therefore, in accordance with sections 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2), the Department is extending the time limit for the completion of these final results to 180 days from the date of publication of the preliminary results. These final results will now be due no later than April 14, 2003.
This notice is published pursuant to sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of amended final results of antidumping duty administrative review.
On January 14, 2003, the Department of Commerce published the final results of administrative review of the antidumping duty order on gray portland cement and clinker from Mexico. The review covers one manufacturer/exporter, CEMEX, S.A. de C.V., and its affiliate, GCC Cemento, S.A. de C.V. The period of review is August 1, 2000, through July 31, 2001. Based on a correction of an ministerial error, we have changed the assessment rate calculation for CEMEX, S.A. de C.V., and its affiliate, GCC Cemento, S.A. de C.V.
February 13, 2003.
Hermes Pinilla or Brian Ellman, Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3477 or (202) 482-4852, respectively.
On January 14, 2003, the Department of Commerce (the Department) published in the
On January 14, 2003, CEMEX, S.A. de C.V. (CEMEX), and GCC Cemento, S.A. de C.V. (GCCC), alleged that the Department made an ministerial error in calculating the dumping margin for CEMEX and GCCC in the
We agree with respondents' assertion that we neglected to convert the entered-value variable from short tons to metric tons in our calculations. Therefore, we have recalculated the assessment rate for CEMEX and GCCC by converting the entered-value variable from short tons to metric tons.
Correction of this ministerial error does not change the weighted-average margin of 73.74 percent that we calculated for the
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. As amended by this determination and in accordance with 19 CFR 351.212(b), we have calculated an exporter/importer-specific assessment rate value. For the sales in the United States through the respondents' affiliated U.S. parties, we divided the total dumping margin for the reviewed sales by the total entered value of those reviewed sales. We will direct the Customs Service to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of the entries during the review period (see 19 CFR 351.212(a)).
We are issuing and publishing this determination and notice in accordance with sections 751 (h) and 777(i) (1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of amended final results of antidumping duty administrative reviews.
February 13, 2003.
Thomas Martin or Thomas Futtner at (202) 482-3936 or (202) 482-3814, respectively, AD/CVD Enforcement Office IV, Group II, Import Administration, Room 1870, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On September 12, 2002, the Department published the final results of review for the tenth review of heavy forged hand tools (HFHTs) from the People's Republic of China (PRC).
Imports covered by these reviews are shipments of HFHTs from the PRC comprising the following classes or kinds of merchandise: (1) Hammers and sledges with heads over 1.5 kg (3.33 pounds) (hammers/sledges); (2) bars over 18 inches in length, track tools and wedges (bars/wedges); (3) picks/mattocks; and (4) axes/adzes.
HFHTs include heads for drilling, hammers, sledges, axes, mauls, picks, and mattocks, which may or may not be painted, which may or may not be finished, or which may or may not be imported with handles; assorted bar products and track tools including wrecking bars, digging bars and tampers; and steel wood splitting wedges. HFHTs are manufactured through a hot forge operation in which steel is sheared to required length, heated to forging temperature, and formed to final shape on forging equipment using dies specific to the desired product shape and size. Depending on the product, finishing operations may include shot-blasting, grinding, polishing and painting, and the insertion of handles for handled products. HFHTs are currently classifiable under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 8205.20.60, 8205.59.30, 8201.30.00, and 8201.40.60. Specifically excluded are hammers and sledges with heads 1.5 kg (3.33 pounds) in weight and under, hoes and rakes, and bars 18 inches in length and under.
Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the orders is dispositive.
The petitioner alleges (1) that the Department made an error when it did not publish cash deposit rates for the PRC-wide entity; (2) that the Department miscalculated the importer-specific assessment rates; (3) that the Department miscalculated the surrogate values for several factors of production; (4) that the Department miscalculated marine insurance and international freight with respect to SMC; (5) that the Department erred when it excluded certain sales from SMC's margin calculation; (6) that the Department miscalculated inland freight with respect to LMC; and (7) that the Department should apply an adverse facts available margin to LMC for the hammers/sledges class that is higher than the PRC-wide rate. The respondents allege (1) that the Department miscalculated two of the surrogate values that were also cited by the petitioner; and (2) that the Department erred when it did not exclude aberrational values from two surrogate value calculations affecting LMC.
According to 19 CFR 351.224(e), “the Secretary will analyze any comments received and, if appropriate * * * correct any significant ministerial error by amending the final determination or the final results of review * * *” The term “ministerial error” is defined under 19 CFR 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”
After reviewing the allegations made by the petitioner and respondents, we have determined, in accordance with 19 CFR 351.224(e), that the
Therefore, in accordance with 19 CFR 351.224(e), we are amending the final results of the antidumping duty review of HFHTs from the PRC to reflect the correction of ministerial errors made in the margin calculations for SMC and LMC under the hammers/sledges and bars/wedges orders, and TMC under the bars/wedges order. These firm's revised weighted-average dumping margins are listed in the “Amended Final Results” section, below.
We are amending the final results of the antidumping duty review of HFHTs from the PRC to reflect the correction of
The Department will determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an exporter/importer (or customer)-specific assessment rate for merchandise subject to this review. Where the importer-specific assessment rate is above
The following deposit requirements will be effective upon publication of this notice of amended final results of administrative reviews for all shipments of HFHTs from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above except that, for firms whose weighted-average margins are less than 0.5 percent, and therefore,
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of 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 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.
These final results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(i)(1)).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final notice.
At its Twenty-first meeting in Hobart, Tasmania, October 21 to November 1, 2002, the Commission for the Conservation of Antarctic Marine Living Resources (the Commission or CCAMLR), of which the United States is a member, adopted conservation measures, pending members' approval, pertaining to fishing in the CCAMLR Convention Area in Antarctic waters. These have been agreed upon in accordance with Article IX of the Convention for the Conservation of Antarctic Marine Living Resources (the Convention) and are in effect with respect to the United States.
Copies of the CCAMLR measures and the framework environmental assessment may be obtained from the Assistant Administrator for Fisheries, NOAA, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
Robin Tuttle, 301-713-2282.
See 50 CFR part 300, subpart G - Antarctic Marine Living Resources, and 67 FR 77876 (December 19, 2002).
The measures restrict overall catches and bycatch of certain species of fish, krill and crab; limit participation in several exploratory fisheries; restrict fishing in certain areas and to certain gear types; set fishing seasons; amend and clarify the catch documentation scheme for
The measures and resolutions were announced by the Department of State by a preliminary notice in the
The Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures is revised to establish a list of non-Contracting Party vessels (Vessel List) whose fishing activities in the Convention Area have diminished the effectiveness of CCAMLR conservation measures in force.
The Scheme to Promote Compliance by Contracting Party Vessels with CCAMLR Conservation Measures is a new measure. It requires the Commission to identify those Contracting Parties whose vessels have engaged in fishing activities in the Convention Area in a manner which has diminished the effectiveness of CCAMLR conservation measures in force, and to establish a list of such vessels (IUU Vessel List).
Measures regulating new and exploratory fisheries are revised to restrict access to these fisheries to vessels that are equipped and configured so that they can comply with all relevant conservation measures. A vessel with a confirmed involvement in IUU fishing with respect to the CCAMLR schemes to promote compliance by Contracting and non-Contracting Party vessels is not allowed to participate in these fisheries.
The measure on Port Inspections of Vessels Carrying Toothfish is revised to require that Contracting Parties promptly provide the CCAMLR Secretariat with a report on the outcomes of each inspection conducted under the conservation measure.
The measure requiring the use of an Automated Satellite-Linked Vessel Monitoring System on vessels fishing within the Convention Area is revised to require that both the hardware and software components of the VMS must be tamper proof, i.e., must not permit the input or output of false positions nor be capable of being manually overridden. In addition, Contracting Parties may not issue licenses to fish in the Convention Area unless the VMS used on licensed vessels complies with every specification of the conservation measure.
The Commission adopted a resolution on Flags of Non-Compliance (FONC), urging all Contracting and non-Contracting Parties cooperating with the Commission to: (1) without prejudice to the primacy of the responsibility of the Flag State, to take measures or otherwise cooperate to ensure, to the greatest extent possible, that the nationals subject to their jurisdiction do not support or engage in IUU fishing, including engagement on board FONC vessels in the Convention Area is this is consistent with their national law; (2) ensure the full cooperation of their relevant national agencies and industries in implementing the measures adopted by CCAMLR: (3) develop ways to ensure that the export or transfer of fishing vessels from their State to FONC State is prohibited; and (4) prohibit the landings and transhipments of fish and fish products from FONC vessels.
The CDS measure is revised in two ways. First, it requires that the master of a vessel completing a Dissostichus Catch Document(DCD)indicate whether a
The measure to minimize the incidental mortality of seabirds in the course of longline fishing or longline fishing research is amended to require that fishers remove fish hooks from all discarded material, including offal and fish heads.The Commission adopted minor changes to the bottle test in the experimental line-weighting trials required in all longline fisheries.
The conservation measure specifying the application of CCAMLR conservation measures to scientific research is revised to include a taxa-specific schedule for use by Members in notifying the CCAMLR Secretariat of research vessel activity.
Data requirements for the fisheries for
The Commission eliminated a measure requiring fishers to process crab sections on board.
The Commission set the overall catch limit for
The Commission set the catch limit for
The Commission set the catch limit for
The Commission prohibited directed fishing for
The Commission prohibited directed fishing for
The Commission amended the general measures for exploratory fishing for
The Commission set the catch limit for the longline fishery for
The Commission set the catch limit for trawl fishing in Division 58.5.2 during the December 1, 2002, to November 30, 2003, season and for longline fishing for
The Commission approved several fisheries as exploratory fisheries for the 2002/03 fishing season. These fisheries are limited total allowable catch (TAC) fisheries and are open only to the flagged vessels of the countries that notified CCAMLR of an interest by participants in the fisheries. The United States was not a notifying country, and, thus, U.S. fishers are not eligible to participate in them.
The exploratory fisheries for
The Commission extended the limitations on bycatch in new and exploratory fisheries in 58.5.2 for the 2002/03 season.
The Commission limited the bycatch of
The Commission adopted a resolution relating to Harvesting
16 U.S.C. 2431
The United States Copyright Office, Library of Congress; and the United States Patent and Trademark Office, Department of Commerce.
Request for comments and notice of public hearing.
In preparation for the report to the Congress on the Vessel Hull Design Protection Act, the United States Copyright Office and the United States Patent and Trademark Office are requesting written comments and are announcing a public hearing.
Written comments must be received on or before March 20, 2003. Reply comments must be received on or before April 14, 2003. The public meeting will be held on March 27, 2003, starting at 10 a.m. at the address below. Requests to participate or attend the public meeting are on a first-come, first-served basis and must be received by close of business on March 20, 2003.
If sent by mail, five copies of written comments and replies each should be addressed to: William J. Roberts, Jr., Senior Attorney, GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024-0400 and Linda S. Lourie, Attorney-Advisor, Office of External Affairs, United States Patent and Trademark Office, Box 4, Department of Commerce, Washington, DC 20231. If hand delivered, they should be brought to: Office of the General Counsel, James Madison Memorial Building, Room LM-403, First and Independence Avenues, SE., Washington, DC and the Office of External Affairs, United States Patent and Trademark Office, Suite 902, 2121 Crystal Drive, Crystal Park 2, Arlington, VA. The public meeting will take place in LM-414 (CARP Hearing Room), James Madison Memorial Building, First and Independence Avenue, SE., Washington, DC. Notices of intent to participate in the public hearing should be faxed to (202) 252-3423 or e-mailed to
William J. Roberts, Jr., Senior Attorney, P.O. Box 70977, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366. Linda S. Lourie, Attorney-Advisor, Office of External Affairs, U.S. Patent and Trademark Office, Box 4, Department of Commerce, Washington, DC 20231. Telephone: (703) 305-9300. Telefax: (703) 305-8885.
As a part of the Digital Millennium Copyright Act of 1998, Congress passed the Vessel Hull Design Protection Act (“VHDPA”) which created sui generis protection for original designs of watercraft hulls and decks. The VHDPA was slated to sunset after two years but in 1999, as part of the Intellectual Property and Communications Omnibus Reform Act, the VHDPA was made a permanent part of the law. See 17 U.S.C. chapter 13. In making the VHDPA permanent, Congress directed the Register of Copyrights and the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office to conduct a study on the effectiveness of the VHDPA and report their findings to the Judiciary Committees of the Senate and House of Representatives by November 1, 2003.
In conducting the study, the Copyright Office and the U.S. Patent and Trademark Office are required to consider a number of factors. See Section 504 of the Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860. First, we must examine the extent to which the VHDPA has been effective in suppressing infringement of protected vessel hull
Finally, we are directed to consider any other factors deemed relevant to accomplishing the purpose of this study. One item for consideration under this category is what, if any, amendments need to be made to the VHDPA to improve its function and/or effectiveness.
In order to accomplish our assigned task, the cooperation and participation of marine manufacturers, designers and those affected by the VHDPA is essential. Consequently, we request interested parties to submit written comments and information/data relevant to the study factors described above. Although we are desirous of information related to all factors, we are particularly interested in receiving information as to how the VHDPA has stimulated the creation of new vessel hull designs, and what effect, if any, protection for designs has had on the price of watercraft. Interested parties submitting data or information that they consider confidential should appropriately mark such documents so that they are not included in the public record of this proceeding.
To further the goal of obtaining relevant information and drafting the report, a public hearing will be held at the Copyright Office (see above for the specific address) on Thursday, March 27, 2003, at 10 a.m. The public hearing is intended to allow participants to present relevant information and answer questions from staff preparing the report. Those wishing to attend should notify the Copyright Office by fax or e-mail no later than March 20, 2003.
Friday, February 21, 2003, 10 a.m.
Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Open to the Public.
The staff will brief the Commission on Petition CP 01-1 submitted by the Consumer Federation of America (CFA) requesting that the Commission issue a rule requiring product registration cards with every product intended for children.
Certain members of the public have been invited to give oral presentations based on their written comments previously submitted to the Commission.
For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, 4330 East West Highway, Bethesda, MD 20207 (301) 504-7923.
Office of the Secretary, DoD.
Notice.
This notice is to advise interested parties of a demonstration project in which the Department of Defense (DoD) will participate in a clinical trial for prenatal and postnatal myelomeningocele repair approved by the National Institute of Child Health and Human Development (NICHD). The study is being done to find out whether it is better to close a spina bifida defect before the baby is born or shortly after birth. Participation in this clinical trial will improve access to prenatal and postnatal surgical intervention for the repair of myelomeningocele for active duty members, former members, and their dependents when their condition meets protocol eligibility criteria. DoD financing of this procedure will assist in meeting clinical trial goals and arrival at conclusions regarding the safety and efficacy of intrauterine repair of fetal myelomeningocele. It is anticipated that new enrollments into the clinical trial will end in April 2004, with those enrolled having periodic examinations during a three-year follow-up period. This demonstration project is being conducted under the authority of 10 U.S.C. 1092.
March 17, 2003.
Gail L. Jones, Health Care Policy Analyst, Medical Benefits and Reimbursement Systems, TRICARE Management Activity (TMA), 16401 East Centretech Parkway, Aurora, CO 80011-9066, telephone (303) 676-3401.
Myelomeningocele is the most severe form of spina bifida. In a fetus with myelomeningocele, there is evidence that neurologic function deteriorates during gestation. While myelomeningocele is not necessarily life threatening, it is the most common debilitating birth defect. Those who survive are likely to experience significant life-long disabilities. Approximately 2,000 fetuses annually are affected with some kind of open neural tube defect in the United States, half of which are open spina bifida. The surgical repair of myelomeningocele in utero is the technique that may provide early intervention in preserving the neurologic integrity of these children. To date, clinical results of fetal surgery for myelomeningocele are based on comparisons with past controls and addresses efficacy rather than safety. A randomized clinical trial for myelomeningocele is necessary to determine whether fetal repair of myelomeningocele, with its attendant maternal and neonatal morbidity, is warranted.
The Department of Defense (DoD) provides and maintains readiness to provide medical services and support to the Armed Forces during military operations, and to provide health services and support to members of the uniformed forces, their family members, and to others entitled to DoD medical care. The services offered to TRICARE beneficiaries other than active duty members must be medically necessary, appropriate, and proven care and are governed by 10 U.S.C. 1079(a)(13).
Active duty service members are authorized civilian medical care under 10 U.S.C. 1074(c), and may be referred for unproven therapy when controlled in a formal clinical research trial. The trial must be operating under the structure of an institutional review board process, which conforms to the requirements of DoD Directive 3216.2, Protection of Human Subjects and Adherence of Ethical Standards in DoD Supported Research, the requirements of 32 CFR part 219, Protection of Human Subjects, as well as Service specific human experimentation regulations.
DoD has the authority to waive the statutory limitation for all other DoD beneficiaries that health care services must be medically necessary, appropriate, and proven care, as long as these services are provided within the context of an interagency agreement with the National Institutes of Health (NIH) for beneficiary participation in NIH-sponsored or approved clinical trials. The Secretary of Defense must also determine that such waiver will promote access by covered beneficiaries to promising new treatments and contribute to the development of such treatments.
Each year approximately 60,000 TRICARE births occur at the Military Treatment Facilities (MTFs). Approximately 40,000 TRICARE births occur in civilian hospitals. According to the Center of Disease Control, in 2001 there were 20.09 cases of spina bifida per 100,000 births. Based on various studies, we estimate that 95 percent of these reported cases are related to myelomeningocele. We then interpret that approximately 19 cases would occur annually in TRICARE. We expect six to sixteen TRICARE members each year would have a fetus with a prenatal diagnosis of spina bifida that would be eligible for the NICHD clinical trial and would agree to participate.
Treatment protocol costs are estimated between $300,000 and $1.3 million over Fiscal Years 2003 through 2006 for TRICARE participation in the NICHD clinical trial of myelomeningocele fetal repair.
The National Institute of Child Health and Human Development (NICHD) will fund an unblinded randomized controlled clinical trial conducted by three participating centers. The NICHD will provide administrative support, all NICHD enrollments, and study monitoring activities. DoD will provide a Project Officer who will coordinate DoD activities.
The DoD will develop initiatives to educate military healthcare providers and civilian TRICARE network providers about this initiative and the processes that are available for referral and pre-authorization of individuals with affected fetuses. DoD will require pre-authorization for any clinical services necessary or resultant from participation in an NICHD sponsored clinical trail before reimbursement by TRICARE. A pre-authorization for enrollment in the trial will suffice to cover each incidental expense or claim related to participation in the clinical trial extending through the duration of the clinical trial. The pre-authorization process will include verification with the NICHD that the patient has been enrolled in the study.
The TRICARE contractor(s) would not be involved in clinical issues or in directing patients to a particular institution.
Active duty members, former members, and their dependents eligible for TRICARE who meet the clinical trial protocol would be eligible to participate in the demonstration. NICHD anticipates a total of two hundred patients whose fetuses have been diagnosed with myelomeningocele at 16 to 25 weeks' gestation who are over the age of 18 years would be enrolled and referred to the Data and Study Coordinating Center (DSCC) at George Washington University in Rockville, Maryland, to undergo an initial evaluation. Those individuals who remain eligible and interested would be assigned by the DSCC to one of the three centers (Vanderbilt University medical Center in Nashville, the University of California at San Francisco, and Children's Hospital of Philadelphia) where final evaluation and screening will be performed. Patient selection to the three Management of Myelomeningocele Study (MOMS) Centers would be based on convenience to the individual as well as the need to divide evenly the participants among the three centers.
Patients who choose to participate in the clinical trial will have no additional costs for prenatal care beyond what is normally paid by the beneficiary. If TRICARE beneficiaries have other health insurance, the other health insurance is required to pay first before TRICARE to the extent the health care is a benefit under the other plan as stated under 10 U.S.C. 1079(j)(1). If patients are in a prenatal surgery group, the travel, meal and lodging costs for the patient and a relative or friend will be covered by NICHD grant support or the grantee institution until delivery and after delivery, until the patient and baby go home.
If patients are in a postnatal surgery group, travel back to the center for the patient and a support person will be covered by NICHD grant support or the grantee institution, as well as meals and lodging before and after delivery, until the baby and patient are able to go home. The cost of the study follow up, returning at one year and two and a half years of age will also be covered. Meals and lodging will be covered for those visits as well.
Department of the Air Force, DoD.
Notice of meeting.
Pursuant to Pub. L. 92-463, notice is hereby given of the forthcoming meeting of the 2003 S&T Review and the Chief of Staff and Secretary of the Air Force. The purpose of the meeting is to allow the SAB leadership to advise the Air Force leadership on the outcome of the 2003 Review. Because classified and contractor-proprietary information will be discussed, this meeting will be closed to the public.
February 20, 2003.
Room 4E869, The Pentagon.
Maj John Pernot, Air Force Scientific Advisory Board Secretariat, 1180 Air Force Pentagon, Rm 5D982, Washington DC 20330-1180, (703) 697-4811.
Department of the Air Force, DoD.
Notice of meeting.
Pursuant to Pub. L. 92-463, notice is hereby given of the forthcoming meeting of the 2003 S&T Review and the leadership of the Air Force Materiel Command. The purpose of the meeting is to allow the SAB leadership to advise the commander of the AFMC on the outcome of the 2003 Review. Because classified and contractor-proprietary information will be discussed, this meeting will be closed to the public.
February 18, 2003.
Room 4E987, The Pentagon.
Maj John Pernot, Air Force Scientific Advisory Board Secretariat, 1180 Air Force Pentagon, Rm 5D982, Washington DC 20330-1180, (703) 697-4811.
Department of the Army, Army Corps of Engineers, DoD.
Notice of intent.
The U.S. Army Corps of Engineers (Corps), the Port of Los Angeles, the City of Long Beach, and the County of Los Angeles propose to evaluate options for managing dredge materials in Los Angeles County.
A scoping meeting will be held on February 26, 2003, from 6:30 to 8:30 p.m. at the Cesar Chavez Communitiy Center located at 401 Golden Avenue in Long Beach, CA.
Questions regarding the scoping process or preparation of the Environmental Impact Statement/Environmental Impact Report (EIS/EIR) may be directed to Mr. Paul Rose, Chief, Environmental Resources Branch, U.S. Army Corps of Engineers, P.O. Box 532711, Los Angeles, CA, 90053-2325, (213) 452-3840.
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The ROD can be published immediately after the FEIS public comment period ends. A certified EIR indicates that the environmental document adequately assesses the environmental impacts of the proposed project with respect to CEQA. A formal scoping meeting to solicit public comment and concerns on the proposed action and alternatives will be held on Wednesday, February 26, 2003 (
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the collection of information are due by April 9, 2003.
Copies of the proposed collection of information can be obtained from Michael Miller, Office of the Executive Director, ED-30, 888 First Street NE., Washington, DC 20426. Comments on the proposed collection of information may be filed either in paper format or electronically. Those parties filing electronically do not need to make a paper filing. For paper filings, the original and 14 copies of such comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 and should refer to Docket No. 03-423-000.
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Web site at
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the FERRIS link. For user assistance, contact
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 208-2425 and by E-mail at
The information collected under the requirements of FERC Form No. 423, “Monthly Report of Cost and Quality of Fuels for Electric Plants” (OMB No. 1902-0024) is used by the Commission to carry out its responsibilities in implementing provisions of the Federal Power Act (FPA) as amended by the Public Utility Regulatory Policies Act (PURPA).
The Commission uses the information reported on FERC Form No. 423 to conduct fuel reviews under section 205(a) and (e)of the FPA, and to prepare expert testimony in electric utility rate cases filed with the Commission. The Form 423 data provides the only effective means for assessing the potential impact of new developments on the future utility fuel supply patterns. The Commission's staff compare delivered fuel costs for utilities receiving like fuels of similar quality; detect consistently high cost patterns or irregularities indicative of possible uneconomic fuel purchase practices; evaluate the economic effect of unusual fuel purchases practices, such as buying fuel from affiliate fuel sources, as opposed to selecting buyers by competitive bids, and investigate a broad range of fuel costs and fuel purchase practice issues raised in contested rate proceedings.
With the transition to power markets the data from FERC Form 423, in conjunction with other data sources, allow Commission staff to identify potential out-of-merit dispatch practices by system operators, a quick source for estimating the thermal efficiency of individual plants and when used in conjunction with bid data, indicates the efficiency of markets by identifying the key components associated with generators' variable costs.
The Commission implements these filing requirements in the Code of Federal Regulations (CFR) under 18 CFR 141.61. The statutory authorities for this mandatory information collection requirement are sections 205, of the Federal Power Act, as amended by section 208 of the Public Utility Regulatory Policies Act (49 Stat. 851; 16 U.S.C. 824d).
The Commission is requesting a three-year extension of the current expiration date with no changes to the existing collection of data. It should be noted that during OMB's last review of Form 423, the Commission was directed prior to its next submission to OMB, to make a determination as to whether the information reported on Form 423 should be confidential. In order to assist the Commission in making that determination, the Commission seeks comments on how the public disclosure of information contained on Form 423 harms the competitive position of reporting parties and adversely affects the competitiveness of the market.
Estimated cost burden to respondents is $394,338; (
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, or disclose or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than anyone particular function or activity.
Take notice that on January 31, 2003, ANR Pipeline Company (ANR) tendered for filing and approval an amendment to a Service Agreement between ANR and Wisconsin Public Service Corporation, which revises the No-Notice Entitlement and rates under such Agreement. ANR requests that the Commission accept and approve the amendment to be effective February 1, 2003.
ANR states that copies of the filing has been mailed to each of ANR's customers and affected state regulatory commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.314 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on January 31, 2003, ANR Pipeline Company, (ANR) tendered for filing three negotiated rate agreements between ANR and Kerr-McGee Corporation pursuant to ANR's Rate Schedules PTS-2, ITS and ITS (Liquefiables). ANR states that it is tendering these agreements, as well as a Lease Dedication Agreement, pursuant to its authority to enter into negotiated rate agreements. ANR requests that the Commission accept and approve the agreements to be effective February 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.314 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Calpine California Equipment Finance Company, LLC (“CCEFC”), a wholly owned subsidiary of Calpine Corporation, filed an application requesting authority to transact at market-based rates, along with the accompanying tariff. The proposed market-based rate tariff provides for sales of capacity and energy at market-based rates, the sale of ancillary services at market rates, the resale of firm transmission rights, and the reassignment of transmission capacity. CCEFC also requested waiver of various Commission regulations. In particular, CCEFC requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by CCEFC.
On January 24, 2003, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted requests for blanket approval under part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by CCEFC should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214).
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is February 24, 2003.
Absent a request to be heard in opposition by the deadline above, CCEFC is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of CCEFC, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on January 23, 2003., CenterPoint Energy Gas Transmission Company (CEGT), formerly Reliant Energy Gas Transmission Company, tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the tariff sheets attached as Appendix A to the filing, to be effective February 28, 2003. The purpose of this filing is to reflect CEGT's name change.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.314 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before the comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
CES Marketing, LLC, CES Marketing II, LLC, CES Marketing III, LLC, CES Marketing IV, LP, and CES Marketing V, LP (collectively, “Applicants”) filed applications requesting authority to transact at market-based rates along with the accompanying tariffs. The proposed market-based rate tariffs provide for sales of capacity, energy, and ancillary services at market-based rates, and for the reassignment of transmission capacity. Applicants also requested waiver of various Commission regulations. In particular, Applicants requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Applicants.
On January 16, 2003., pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted requests for blanket approval under part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Applicants should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214).
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is February 18, 2003.
Absent a request to be heard in opposition by the deadline above, Applicants are authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Applicants, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Applicants' issuances of securities or assumptions of liability.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on February 3, 2003., Discovery Gas Transmission LLC (Discovery) hereby respectfully (1) requests withdrawal of Substitute First Revised Sheet No. 186 filed on January 13, 2003. in Docket No. RP03-219-001 and (2) tenders for filing as part of its FERC Gas Tariff, Original Volume No. 1, Third Revised Sheet No. 101 and Second Substitute First Revised Sheet No. 186, to be effective February 1, 2003.
Discovery states that this filing is made in response to the Commission's letter order issued in the above-captioned proceeding on January 30, 2003.
Discovery further states that copies of the filing have been mailed to each of its customers, interested State Commissions and other interested persons.
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
Take notice that on January 30, 2003., Dominion Transmission, Inc. (DTI), 445 West Main Street, Clarksburg, West Virginia 26301, and Texas Eastern Transmission, LP (Texas Eastern), 5400 Westheimer Court, Houston, Texas 77056-53101, filed in Docket No. CP03-46-000, an application pursuant to section 7(c) of the Natural Gas Act (NGA), as amended, and part 157 of the regulations of the Federal Energy Regulatory Commission (Commission), for authorization to uprate the horsepower on three electric engines at the Oakford Compressor Station and two electric engines at the South Oakford Compressor Station all located within Westmoreland County, Pennsylvania, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
DTI and Texas Eastern state that these proposed uprates will provide greater operating flexibility and will potentially improve the performance of the Oakford Storage Complex. DTI and Texas Eastern state that as joint owners of the Oakford Storage Complex they are requesting authorization to operate the two existing 5,000 HP Engines #3 and #4 located at the South Oakford Station to an ISO-rated HP of 5,750 each and to operate the three existing 4,000 HP Engines #13, #14 and #15 located at the Oakford Station to an ISO-rated HP of 4,600 each. According to DTI and Texas Eastern, this operation at the higher HP rating is intended to improve the efficiency of the Oakford Storage Complex by allowing them to use the existing certificated level of capacity more efficiently and to maintain design pressures more effectively. In addition, DTI and Texas Eastern state that these operational improvements will facilitate more reliable and more flexible storage and transportation service to DTI and Texas Eastern's existing customers, at no additional cost. DTI and Texas Eastern add that they propose to modify the software controls so that each of the engines may be operated at the design rating described above; that this operation will not require any installation, construction or facility reconfiguration beyond the modifications of the software controls; and, that there will be no air emission issues since these compressor units are powered by electric motors.
Any questions concerning this application may be directed to Sean R. Sleigh, Certificates Manager, Dominion Transmission, Inc., 445 West Main Street, Clarksburg, West Virginia 26301, at (304) 627-3462 or fax (304) 627-3305; or to Steven E. Tillman, General Manager, Regulatory Affairs, Texas Eastern Transmission, LP, P. O. Box 1642, Houston, Texas 77251-1642, at (713) 627-5113 or fax (713) 627-5947.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10) by the comment date, below. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Protests and interventions may be filed electronically via the Internet in lieu of paper;
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying a certificate will be issued.
Element Re Capital Products, Inc. (Element Re) filed an application requesting authority to transact at market-based rates, along with the accompanying tariff. The proposed market-based rate tariff provides for sales of capacity and energy at market-based rates. Element Re also requested waiver of various Commission regulations. In particular, Element Re requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Element Re.
On November 19, 2002, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted requests for blanket approval under part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Element Re should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214).
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is February 17, 2003.
Absent a request to be heard in opposition by the deadline above, Element Re is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Element Re, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Element Re's issuances of securities or assumptions of liability.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on January 31, 2003., Petal Gas Storage, L.L.C. (Petal), tendered for filing as part of FERC Gas Tariff, Original Volume No. 1, Substitute Original Sheet No. 11A, with an effective date of May 1, 2002.
Petal states that this filing is being made in compliance with the Commission's Order issued on January 22, 2003., directing Petal to remove any references to Petal's Electronic Bulletin Board from Petal's tariff.
Petal states that a copy of this filing has been mailed to all parties who have intervened in this proceeding.
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
Take notice that on February 3, 2003, Questar Pipeline Company's (Questar) submitted a tariff filing to implement a negotiated-rate contract for BP Energy Company. Questar states that the contract was authorized by Commission orders issued October 27, 1999, and December 14, 1999, in Docket Nos. RP99-513,
Questar states that a copy of this filing has been served upon all parties to this proceeding.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.314 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on January 31, 2003, Texas Gas Transmission Corporation (Texas Gas) tendered for filing a report that compares its cash-out revenues with its cash-out costs incurred for the annual billing period November 1, 2001 through October 31, 2002, in accordance with its tariff. Texas Gas states that there is no rate impact to customers as a result of this filing.
Texas Gas states that copies of this filing have been served upon all of Texas Gas's jurisdictional customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.314 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before February 13, 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. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on January 31, 2003., Trailblazer Pipeline Company (Trailblazer) tendered for filing to become part of its FERC Gas Tariff, Third Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing, to be effective January 1, 2003.
Trailblazer states that the purpose of this filing is to cancel Trailblazer's Rate Schedules T and I, which provided for firm and interruptible transportation services for Northern Natural Gas Company (Northern) and Natural Gas Pipeline Company of America (Natural) pursuant to service agreements dated October 8, 1982, as amended.
Trailblazer states that these sheets have been submitted in compliance with Ordering Paragraph (A) of the Commission's order issued January 28, 2003 in Docket No. CP03-10-000 (January 28th Order). Such order authorized Trailblazer to abandon firm and interruptible transportation services performed by Trailblazer for Northern and Natural authorized in Docket No. CP79-80, as amended.
Trailblazer states that copies of the filing are being mailed to all parties set out on the Commission's official service list in Docket No. CP03-10-000.
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
(202) 502-8659. The Commission strongly encourages electronic filings.
Take notice that on January 31, 2003, Transcontinental Gas Pipe Line Corporation (Transco), tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the tariff sheets list on Appendix A attached to the filing, with a proposed effective date of April 1, 2003.
Transco states that the tariff sheets enumerated in Appendix A are submitted to comply with the Commission's August 29, 2002 order in the referenced proceedings, which directed that Transco update certain tariff sheets related to the implementation of Transco's new business system, 1Linesm. In addition, Transco proposes to move into effect on April 1, 2003. certain tariff sheets identified in Appendix C, attached to the filing, which require no updating and which already have been accepted by the Commission in the referenced proceedings.
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
Take notice that on February 4, 2003, Transwestern Pipeline Company (Transwestern) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Substitute Fourth Revised Sheet No. 83; Substitute Fourth Sheet No. 84; and Original Sheet No. 84A, to become effective February 5, 2003.
Transwestern states that on December 10, 2002, it filed a Stipulation and Agreement (Settlement) resolving issues raised in the above referenced dockets. The Settlement included, among other things, pro forma tariff sheets setting forth new capacity posting and contract procedures in a new Section 24 of the General Terms and Conditions (GTC) of Transwestern's Tariff. Transwestern explains that, by Order issued January 31, 2003. (January 31 Order), the Commission accepted the Settlement and the pro forma tariff sheets, and directed Transwestern to file actual tariff sheets within five days of the date of the order. Transwestern states that this filing is made in compliance with the January 31 Order.
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 31, 2003, the Detroit Edison Company, DTE Energy Trading, Inc., DTE Edison America, Inc., DTE Energy Marketing, Inc., DTE Georgetown, LLC, DTE River Rouge No. 1, LLC, and Crete Energy Venture, LLC tendered for filing a joint triennial market power analysis in compliance with the Commission's orders in the captioned proceedings. Detroit Edison Co., 77 FERC ¶ 61,279 (1996); DTE Energy Trading, Inc., 80 FERC ¶ 61,348 (1997); DTE Edison America, Inc., 84 FERC ¶ 61,028 (1998); DTE Energy Marketing, Inc., 88 FERC ¶ 61,189 (1999); DTE Georgetown, LLC, 91 FERC ¶ 61,073 (2000); DTE River Rouge No. l, LLC, 91 FERC ¶ 61,139 (2000); Crete Energy Venture, LLC, letter order, Docket No. ER02-963-000, March 15, 2002.
Take notice that on January 31, 2003, ISO New England Inc., filed its Index of Customers for the fourth quarter of 2002 for its Tariff for Transmission Dispatch and Power Administration Services in compliance with Order No. 614.
Take notice that on January 31, 2003., the New York Independent System Operator, Inc. (NYISO) and ISO New England Inc. (ISO New England), tendered for filing a compliance report in connection with the Commission's December 30, 2002, order in the above-referenced dockets.
The NYISO and ISO New England have served a copy of this filing to all parties listed on the official service list maintained by the Secretary of the Commission in docket number ER03-246-000.
Take notice that on January 31, 2003, Virginia Electric and Power Company, doing business as Dominion Virginia Power, tendered for filing a Substitute First Revised Generator Interconnection and Operating Agreement (Substitute First Revised Interconnection Agreement) with Old Dominion Electric Cooperative (ODEC) containing additional information describing the units at ODEC's generating facility and correcting internal references.
Dominion Virginia Power respectfully requests that the Commission allow the Substitute First Revised Interconnection Agreement to become effective February 1, 2003, the day after filing. Dominion Virginia Power also states that copies of the filing were served upon ODEC and the Virginia State Corporation Commission.
Take notice that on January 31, 2003, American Transmission Systems, Incorporated submitted for filing Service Agreement No.313 under its Open Access Transmission Tariff, an Agreement for Construction, Operation, and Compensation of Delivery Points with the Village of Grafton dated January 29, 2003. The purpose of the Service Agreement is to establish the terms and conditions for a second 69 kV delivery point for the Village of Grafton's distribution system. An effective date of April 2, 2003, is requested for the Service Agreement.
American Transmission Systems Inc., states that copies of this filing were served on the representatives of the Village of Grafton, American Municipal Power-Ohio, Inc., and the Public Utilities Commission of Ohio.
Take notice that on January 31, 2003, Minnesota Power tendered for filing the complete wholesale rate schedule, designated as required by Commission Order No. 614, for the City of Hibbing, Minnesota—Public Utilities Commission (Hibbing). This filing included revised rates, which would allow Hibbing the option to purchase wholesale, municipal non-firm energy service from Minnesota Power, for resale to Hibbing's retail customers.
Minnesota Power requests January 1, 2003, as the effective date for these revised rates.
Take notice that on January 31, 2003, Interstate Power and Light Company (IPL), tendered for filing Amendment No. 7 to Rate Schedule FERC No. 48 with the City of Bellevue. IPL states that this Amendment will terminate Rate Schedule FERC No. 48 effective April 1, 2003, and indicates that copies of the filing have been provided to the City of Bellevue and to the Iowa Utilities Board.
Take notice that on January 31, 2003, Southern California Edison Company (SCE) tendered for filing a Service Agreement For Wholesale Distribution Service under SCE's Wholesale Distribution Access Tariff and an Interconnection Facilities Agreement (Agreements) between SCE and the City of Corona (Corona), California. SCE respectfully requests the Agreements become effective on January 4, 2003.
The Agreements specify the terms and conditions under which SCE will provide wholesale distribution service form the California Independent System Operator Controlled Grid at SCE's Mira Loma Substation 230 kV bus to the Corona Crossings Business Center development, located at the Northwest corner of Cajalco Road and Temescal Canyon Road in the City of Corona.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California and Corona.
Take notice that on January 31, 2003, PacifiCorp Power Marketing, Inc., informed the Federal Energy Regulatory Commission (Commission) that effective January 15, 2003, the name of PacifiCorp Power Marketing, Inc., had been changed to PPM Energy, Inc. in accordance with 18 CFR 35.16.
Take notice that on January 31, 2003, Great Bay Power Marketing, Inc. (GBPM), filed a notice of succession with the Federal Energy Regulatory Commission pursuant to sections 35.16 and 131.51 of the Commission's rules and regulations, 18 CFR 35.16 and 131.51. This filing was made as a result of the transfer of a purchased power agreement entered into between Great Bay Power Corporation (GBPC) and Unitil Power Corp. (Unitil PPA) from GBPC to GBPM. GBPM adopted and ratified the Unitil PPA. GBPM requested that the revised rate schedule be made effective as of January 1, 2003.
Take notice that on January 31, 2003, Oklahoma Gas and Electric Company (OG&E) submitted for filing a delivery point and transmission interconnection agreement (the Agreement) between OG&E and The City of Paris, Arkansas (Paris).
OG&E requests an effective date of February 1, 2003, for the Agreement. Accordingly, OG&E requests waiver of the Commission's notice requirements. Copies of this filing were served upon Paris and the Oklahoma Corporation Commission.
Take notice that on January 31, 2003, Duke Energy Corporation, on behalf of Duke Electric Transmission, (collectively, Duke) tendered for filing the First Amended and Restated Generation Interconnection and Operating Agreement (Restated IOA) between Duke and Rowan County Power, LLC, as the successor in interest to Carolina Power and Light Company. Duke seeks an effective date for the restated IOA of January 30, 2003.
Take notice that on January 31, 2003, Duke Energy Corporation, on behalf of Duke Electric Transmission, (collectively, Duke) tendered for filing (1) a revised Service Agreement for Network Integration Transmission Service (NITSA) and (2) a revised Network Operating Agreement (NOA) between Duke and North Carolina Municipal Power Authority No. 1. Duke seeks an effective date for the revised NITSA and NOA of January 1, 2003.
Take notice that on January 31, 2003., in accordance with section 35.13 of the Commission's regulations, 18 CFR 35.13, Unitil Power Corp. (UPC) and Unitil Energy Systems, Inc. (UES) (collectively, Unitil Companies) submitted for filing the Amended Unitil System Agreement between UPC and UES. The Amended Unitil System Agreement is Attachment I to Rate Schedule FERC No. 1 (the Unitil System Agreement). The Amended Unitil System Agreement is necessary to facilitate the divestiture of the portfolio of entitlements in generation and transmission facilities acquired by UPC to supply the requirements of UES. Following the divestiture of such portfolio and upon receipt of the necessary regulatory approvals, the terms and conditions, including rate provisions of the Amended Unitil System Agreement will replace those of the Unitil System Agreement. The Unitil Companies request an effective date of May 1, 2003, for the Amended Unitil System Agreement, but reserves the right not to implement the Amended Unitil System Agreement if the necessary regulatory approvals are not obtained.
The Unitil Companies states that a copy of the filing was served upon the
Take notice that on January 31, 2003, the New England Power Pool (NEPOOL) Participants Committee filed for acceptance materials to (1) permit NEPOOL to expand its membership to include Lake Road Generating Company, LP (Lake Road) and Outback Power Marketing, Inc., (Outback); and (2) to terminate the memberships of Allied Utility Network (Allied), Enron Power Marketing, Inc., (EPMI), Great Bay Power Corporation (GBPC), MIECO Inc., (MIECO), and PSEG Power Connecticut, LLC, (PSEG PCT). The Participants Committee requests the following effective dates: January 1, 2003, for the termination of Allied, EPMI, GVPC, MIECO, and PSEG PCT; February 1, 2003, for the commencement of participation in NEPOOL by Lake Road; and March 1, 2003, for commencement of participation in NEPOOL by Outback.
The participants Committee states that copies these materials were sent to the New England state governors and regulatory commissions and the Participants in NEPOOL.
Take notice that on January 31, 2003, Gilroy Energy Center, LLC (Gilroy) filed an executed Must-Run Service Agreement and accompanying schedules (RMR Agreement) between Gilroy and the California Independent System Operator Corporation (ISO) setting forth the rates, terms and conditions under which Gilroy will provide reliability must-run services to the ISO.
Take notice that on January 31, 2003, PJM Interconnection, LLC (PJM), submitted amendments to Schedule 2 of the PJM Open Access Transmission Tariff to include WPS Westwood Generation LLC's (Westwood) revenue requirement for Reactive Supply and Voltage Control from Generation Sources Service that the Federal Energy Regulatory Commission (Commission) accepted for filing, subject to refund, in WPS Westwood Generation, LLC, 101 FERC ¶ 61,290.
Consistent with the effective date of the Commission's acceptance of Westwood's revenue requirements in WPS Westwood Generation, LLC, 101 FERC ¶ 61,290 PJM requests an effective date of November 1, 2002, for the amendments.
PJM states that copies of this filing have been served on all PJM members, Westwood, and each state electric utility regulatory commission in the PJM region.
Take notice that on January 31, 2003, Idaho Power Company (Idaho Power) tendered for filing two Service Agreements for Network Integration Transmission Service (NITSAs) (with attached Network Operating Agreements (NOAs)) with Idaho Power Company—Power Supply.
Take notice that on January 31, 2003, Idaho Power Company (Idaho Power) tendered for filing (1) four Service Agreements for Network Integration Transmission Service (NITSAs) (with attached Network Operating Agreements (NOAs)) ; and (2) the Boise Diversion Dam Letter Agreement between Idaho Power and Bonneville Power Association (BPA).
Take notice that on January 28, 2003, Mid-American Energy Company (Mid-American) submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to issue promissory notes and other evidences of short-term, unsecured indebtedness, in an amount not to exceed $500 million.
Any person desiring to be hear or to protest said filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 18 CFR 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on February 3, 2003., Westar Generating, Inc., (WG) submitted for filing a revised Rate Schedule FERC No. 1, Purchase Power Agreement between WG and Westar Energy, Inc., (WE). WG states that the purpose of this revision is to remove certain language with respect to WE's purchase option for WG's ownership interest in the State Line combined-cycle generating project.
This revision is proposed to be effective February 1, 2003. WG states that copies of the filing were served upon WE and the Kansas Corporation Commission.
Take notice that on February 3, 2003, Tampa Electric Company (TEC) tendered for filing in compliance with the January 2, 2003, letter order a revised Interconnection and Operating Agreement between TEC and Cargill
Take notice that on January 30, 2003, Unitil Energy Systems, Inc. (UES), filed a supplemental to the January 2, 2003, notice of succession, with the Federal Energy Regulatory Commission (Commission) pursuant to 18 CFR 35.16 and 131.51. UES adopted and ratified all applicable rate schedules filed with the Commission by Concord Electric Company and Exeter & Hampton Electric Company. UES also resubmitted its rate schedules to conform them to the formatting requirements of Order No. 614. UES requested that the revised rate schedules be made effective as of December 2, 2002.
Take notice that on February 3, 2003, Florida Power & Light Company (FPL) filed with the Federal Energy Regulatory Commission an executed Service Agreement for Point-to-Point Transmission Service between FPL and Georgia Transmission Corporation (an Electric Membership Corporation). This Service Agreement No. 219 provides for 5 Megawatts of firm point-to-point transmission service for the period January 1, 2003, through December 31, 2004, which is a continuation of service begun on January 1, 2002. The preceding firm point-to-point service between FPL and Georgia Transmission Corporation that begun on January 1, 2002 was provided under Service Agreement No. 192. The parties have filed a notice of cancellation of Service Agreement No. 192.
FPL states that a copy of this filing has been served on Georgia Transmission Corporation and the Florida Public Service Commission.
Take notice that on February 3, 2003, Westar Energy, Inc., (WE) submitted for filing revisions to rate schedule FERC No. 300 removing certain agreements inadvertently submitted in an earlier docket and revising a Control Area Service Agreement between WE and Missouri Joint Municipal Electric Utility Commission (MJMEUC). WE states that the purpose of these changes is to permit MJMEUC to continue taking Scheduling, System Control, and Dispatch Services from WE. These changes are proposed to be effective January 1, 2003.
WE states that copies of the filing was served upon MJMEUC and the Kansas Corporation 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
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.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. 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
l. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the
m. Competing Development Application—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
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.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. 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
l. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the
m. Competing Development Application—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
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.
The Commission's rules of practice and procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. 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
l. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (
m. Competing Development Application—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. 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
n. Competing Applications—Public notice of the filing of the initial preliminary permit application, which has already been given, established the due date for filing competing preliminary permit applications or
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Compliance and Administration, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
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.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. 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
l. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (
m. Competing Development Application—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
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.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. 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
l. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (
m. Competing Development Application—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
Universal Electric Power Corp (P-12415-000): The proposed run-of-river project would utilize the Corps' existing dam and consist of: (1) Two proposed 80-foot-long, 9-foot-diameter steel penstocks, (2) a proposed powerhouse containing two generating units having an installed capacity of 1.5 MW, (3) a proposed 400-foot-long, 14.7 kV transmission line, and (4) appurtenant facilities. Applicant estimates that the average annual generation would be 9.3 GWh.
k. 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
l. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (
m. Competing Development Application—Any qualified
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
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.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. 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
l. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (
m. Competing Development Application—Any qualified
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of rules of practice and procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing an original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following Amendment to the North Umpqua Hydroelectric Project Settlement Agreement has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments: February 25, 2003. Reply comments and any revised recommendations, terms and conditions, and prescriptions are due March 7, 2003.
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 may be filed electronically via the internet in lieu of paper.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. A copy of the Amendment is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the Executive Committee of the U.S. EPA Science Advisory Board (SAB) will meet on Wednesday, March 5, 2003 from 11 am-2 pm Eastern Time. The meeting will be coordinated through a conference call connection in Room 6013 in the USEPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. The public is encouraged to attend the meeting in the conference room noted above. However, the public may also attend through a telephonic link, to the extent that lines are available. Additional instructions about how to participate in the conference call can be obtained by calling Ms. Betty Fortune (see contact information below). The meeting is open to the public, however, seating is limited and available on a first come basis.
Please check with Ms. Betty Fortune (see contact information below) prior to the meeting to determine which reports will be on the agenda as last minute changes can take place.
In accord with the Federal Advisory Committee Act (FACA), the public and the Agency are invited to submit written comments on these three questions that are the focus of the review. Written comments should be received in the SAB Staff Office by February 27, 2003. Forward comments to Ms. Betty Fortune (see contact information below).
The SAB will have a brief period available for applicable public comment. Therefore, anyone wishing to make oral comments on the three focus questions above, but that are not duplicative of the written comments, should contact the Designated Federal Officer for the Executive Committee, Mr. A. Robert Flaak (see contact information below).
It is the policy of the EPA Science Advisory Board to accept written public comments of any length, and to accommodate oral public comments whenever possible. The EPA Science Advisory Board expects that public statements presented at its meetings will not be repetitive of previously submitted oral or written statements.
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces applicability determinations, alternative monitoring decisions, and regulatory interpretations that EPA has made under the New Source Performance Standards (NSPS), 40 CFR part 60; the National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 CFR parts 61 and 63; and the Stratospheric Ozone Protection Program, 40 CFR part 82. This notice also clarifies the Notice of Availability published in the
An electronic copy of each complete document posted on the Applicability Determination Index (ADI) database system is available on the Internet through the Office of Enforcement and Compliance Assurance (OECA) Web site at:
EPA currently compiles EPA-issued NSPS and NESHAP applicability determinations, alternative monitoring decisions, and regulatory interpretations, and posts them on the Applicability Determination Index (ADI) on a quarterly basis. In addition, the ADI contains EPA-issued responses to requests pursuant to the stratospheric ozone regulations, contained in 40 CFR part 82. The ADI is an electronic index on the Internet with over one thousand EPA letters and memoranda pertaining to the applicability, monitoring, recordkeeping, and reporting requirements of the NSPS and NESHAP. The letters and memoranda may be searched by date, office of issuance, subpart, citation, control number or by string word searches.
Today's notice comprises a summary of 55 such documents added to the ADI on December 20, 2002. The subject, author, recipient, date and header of each letter and memorandum are listed in this notice, as well as a brief abstract of the letter or memorandum. Complete copies of these documents may be obtained from the ADI through the OECA Web site at:
EPA has received questions regarding the applicability of the documents whose availability was noticed in the November 15, 2001 Notice of Availability (66 FR 57453). EPA has reviewed those documents, and through today's notice clarifies that to the extent any of those documents constituted “final action of the Administrator” for purposes of section 307(b)(1) of the Clean Air Act, they were not “nationally applicable” actions within the meaning of section 307(b)(1). For purposes of establishing venue for judicial review of any such document, the document may be considered a “local or regionally applicable” action as that phrase is employed in section 307(b)(1).
The following table identifies the database control number for each document posted on the ADI database system on December 20, 2002; the applicable category; the subpart(s) of 40 CFR parts 60, 61, or 63 (as applicable) covered by the document; and the title of the document, which provides a brief description of the subject matter. We have also included an abstract of each document identified with its control number after the table. These abstracts are provided solely to alert the public to possible items of interest and are not intended as substitutes for the full text of the documents.
Abstract for [A020001]:
Q1: Are residential structures owned by the State subject to the asbestos NESHAP if they have less than four dwelling units?
A1: Yes, if the structures are part of a State project such as road construction or urban renewal.
Q2: Is spray on ceiling texture considered part of the wall system like tape joint compound?
A2: No. The analyses of these individual layers may not be composited with the wallboard analyses.
Q3: If the ceilings are not disturbed or demolished during the move, does the asbestos need to be removed before the move?
A3: Prior to the move, the owner or operator must determine if the move will break up, dislodge, or similarly disturb the asbestos. If such disturbances occur, the owner or operator may be subject to enforcement action.
Q4: Can the State avoid the requirements of the asbestos NESHAP by having the demolition of a residential structure occur prior to the State taking official ownership?
A4: If the structure is part of an installation, as occurs when a group of houses are demolished for a project, such activities would be considered
Q5: Is the movement of a single-family home purchased from a private party subject to the asbestos NESHAP?
A5: No, unless the home is part of an installation, planned development, or public project.
Q6: Is the movement of a single-family home purchased from a land developer subject to the asbestos NESHAP?
A6: Yes. Residential structures that are demolished or renovated as part of a commercial or public project are not exempt from the rule.
Q7: Is the movement of a structure that has been used for educational purposes and will contain four or less dwelling units subject to the asbestos NESHAP?
A7: Yes. Mobile classroom structures are considered institutional buildings.
Q8: Is the movement of a single-family home (not modular or mobile) purchased from a house manufacturing company subject to the asbestos NESHAP?
A8: No, based on the limited information provided.
Q9: Is the movement of portable school classrooms subject to the asbestos NESHAP?
A9: Yes. Large mobile structures for public or commercial use are regulated.
Q10: Is the movement of agricultural buildings subject to the asbestos NESHAP?
A10: Agricultural buildings used for commercial purposes, such as a dairy barn or crop storage structure, are subject. However, the rule does not apply to sheds used to store equipment for a homeowner's garden, or to farm stands that sell fresh produce and have no utilities.
Q11: Is the movement of garages subject to the asbestos NESHAP?
A11: Yes, if the residential structure associated with the garage is subject, if the garage is located at a commercial operation, or if the garage itself is used for commerce.
Q: Will EPA approve an alternative scrap inspection monitoring program for a facility that accepts no fabrication or press scrap containing paint or coatings?
A: Yes, provided the facility includes a recordkeeping provision like 40 CFR 63.1510(p)(6).
Q: Can the Boise Cascade paper mill in International Falls, Minnesota use the UNOX system biomass, as calculated using the mixed liquor volatile suspended solids (MLVSS), to meet the continuous monitoring requirements for kraft pulping condensates? The pulp and paper NESHAP does not specify a monitoring parameter for closed biological systems.
A: Yes. The UNOX system destruction efficiency depends on the number of biological organisms in the system, the biomass accounts for the majority of organic solids, and MLVSS is a measure of organic solids. Boise Cascade must use the average MLVSS measured during a compliant performance test as the minimum MLVSS demonstrating continuous compliance.
Q: Will EPA waive the performance test for a backup portable vapor combustion unit that Marathon Ashland Petroleum (MAP) has used at its St. Paul Park, Minnesota refinery to control VOC emissions from a gasoline loading rack during maintenance and repair work on the primary carbon adsorption unit controls?
A: Yes. Tests showed that the unit's VOC emissions were only 15 percent of the emission standard at another MAP location. The unit is scheduled for use at other MAP facilities, and bringing it back to St. Paul Park for a test would not provide any new information.
Q: What is the correct location for measuring freeboard refrigeration temperature in a halogenated solvent cleaning machine?
A: The temperature should be measured in the center of the chilled air blanket, at the center cooling coil of the machine.
Q: Is a facility that includes a chamber that delaminates aluminum foil from paper and plastic subject to the secondary aluminum NESHAP?
A: No. Subpart RRR defines a scrap dryer as a unit used to remove organic contaminants from aluminum scrap prior to melting. No melting occurs at the facility in question, and there are no other affected sources subject to subpart RRR.
Q: Will EPA approve surrogate parameters for daily monitoring of an open biological treatment system?
A: Yes, based on the information submitted, EPA approves the request. However, EPA may require use of another specified monitoring method if it finds reasonable grounds to dispute the results obtained under this alternative monitoring method.
Q: A refinery has process area reactors and distillation columns whose only gas streams are combusted in the refinery's fuel gas system. These gas streams are exempt from any compliance monitoring requirements under 40 CFR part 63, subpart G. Does 40 CFR 63.110(d)(10) also exempt those gas streams from the requirements of NSPS subparts NNN and RRR?
A: No. 40 CFR 63.110(d)(10) does not exempt the gas streams from meeting the requirements of NSPS subparts NNN and RRR.
Q: Do the halogenated solvent cleaner NESHAP standards apply to the process described for stripping epoxy resins from steel bowls?
A. The applicability section of this rule, 40 CFR 63.460(a), states that if any of the named solvents, including methylene chloride, which this facility uses, is used in any of four types of solvent cleaning machines as a cleaning and/or drying agent, then the subpart applies. Although the hand cleaning portion of the removal of the epoxy resin from the steel bowl is exempt from Subpart T, the mechanical cleaning inside the custom design tank is not exempt, but rather is an applicable batch cold cleaning machine under the halogenated solvent MACT standard.
Q: Do the halogenated solvent cleaner NESHAP standards apply to the stripping (thinning/diluting) of a coating of catalyzed epoxy resin in various stages of cure from metal bowls in the following process? The metal bowl is placed upside down in a custom designed tank containing approximately 3″ of Methylene Chloride liquid. The tank cover is closed and spray is directed upward into the part in a 45 minute stripping process. The parts are removed and then hand cleaned about 15 minutes per bowl. Is this a cold cleaning operation or a stripping operation?
A: 40 CFR 63.461 defines a cold cleaning machine as any device or piece of equipment that contains and/or uses liquids, into which parts are placed to remove soils from the surface of the parts. In this case, the cleaning of the parts once they exit the solvent bath using spray headers to begin the stripping process and then the continued cleaning of parts by hand would identify this operation as a stripping operations. Based on the information supplied, EPA has determined that the operation is not subject to the halogenated solvent cleaning NESHAP.
Q1: USGC Almeg has a processing chamber in which foil is delaminated from paper and plastic. This processing chamber operates at a maximum temperature of 900 degrees Fahrenheit; no melting occurs here, nor does melting occur subsequently in any of
A1: Yes. Units that use heat to remove contaminants from scrap aluminum are subject to 40 CFR part 63, subpart RRR, irrespective of whether the aluminum is subsequently melted.
Q2: USGC Almeg has a unit that dries aluminum chips in the absence of any melting of aluminum at the site. Is the unit subject to subpart RRR?
A2: Yes. A device that uses heat to evaporate water, oil, or oil/water mixtures from unpainted/uncoated aluminum chips is subject to the requirements of subpart RRR.
Q: What is the correct wastewater classification of low-point drains which are drained on a routine basis as part of proper function of the process?
A: The procedures followed by Celanese result in process wastewater because the draining of the wastewater is essential to maintaining the proper function of the process equipment; the draining occurs at a frequent, routine, planned interval; and the draining is not done for the purposes of maintenance or repair.
Q: Will EPA approve an alternative initial performance test for roller mill transfer chutes at a Portland cement facility?
A: Yes. Because of the design and operation of the chutes and the nature of the material being processed, EPA believes that emissions are not likely and accordingly approves the request for an alternative initial performance test.
Q: Will EPA approve alternative monitoring using a bag leak detection system in lieu of daily visual observations for finish mill stacks?
A: Yes. EPA approves a request for the use of a bag leak detection system (BLDS) in lieu of daily visual observations on finish mill stacks.
Q: Will EPA approve a waiver from Method 9 initial performance testing for transfer chutes, load spouts and Magnetic Separator Discharge Chute at a Portland cement facility?
A: EPA approves the waiver from Method 9 for transfer chutes, load spouts and Magnetic Separator Discharge Chute at the facility on condition that any change in operation will require further EPA review.
Q: Will EPA approve a waiver from Method 9 initial performance testing and monitoring for the coal mill stack and related air pollution control device at a Portland cement facility?
A: Yes. EPA approves a waiver of performance testing and alternative monitoring for the coal mill stack. Performance test requirements and the monitoring requirements shall be applicable to the main kiln stack and its related air pollution control device.
Q: Can Consolidated Edison Energy Massachusetts obtain a relaxed sulfur-in-fuel monitoring schedule under NSPS subpart GG for the operation of two stationary gas turbines which operate solely on natural gas?
A: Yes, EPA routinely grants custom monitoring schedules under 40 CFR part 60, subpart GG for units burning low sulfur fuels.
Q: Can Consolidated Edison Energy Massachusetts obtain a waiver from the requirement to conduct an initial performance test for NO
A: Yes, EPA will waive the performance test requirement where it believes that the source can demonstrate compliance with the standard using other means. In this case, the source will demonstrate compliance with the subpart GG NO
Q: Can Massachusetts Institute of Technology obtain a relaxed sulfur-in-fuel monitoring schedule under NSPS subpart GG for the operation of a stationary gas turbine which operates solely on natural gas?
A: Yes, EPA routinely grants custom monitoring schedules under 40 CFR part 60, subpart GG for units burning low sulfur fuels.
Q: Can Sithe's Fore River and Mystic facilities obtain a relaxed sulfur-in-fuel monitoring schedule under NSPS subpart GG for the operation of stationary gas turbines with a primary fuel of natural gas and a secondary fuel of very-low sulfur distillate oil?
A: Yes, EPA routinely grants custom monitoring schedules under 40 CFR part 60, subpart GG for units burning low sulfur fuels.
Q: May Sithe's Fore River and Mystic facilities measure nitrogen oxides (NO
A: Yes, EPA has determined that in these specific cases the proposed alternatives to the test methods, sampling points, and CEMS QA/QC requirements will continue to ensure compliance with the emission limits.
Q: Contrary to what is required under 40 CFR 60.153(b)(2), subpart O, is it permissible to locate an oxygen monitor downstream of any multiple hearth incinerator rabble shaft cooling air inlet into the incinerator exhaust gas stream, fan, ambient air recirculation damper, or any other source of dilution air?
A: Yes, providing certain conditions are met. EPA has concurred with a multiple hearth incinerator owner/operator's determination that a stack gas extractive oxygen CEMS can provide a valid surrogate indicator of incinerator exhaust gas oxygen content with minimal interference from sources of dilution air, provided certain testing and operation and maintenance (O&M) practices are implemented, including reporting requirements.
Q: Will EPA exempt the U.S. Navy under 40 CFR 60.332 for a new Turbine Test Facility to be installed in the City of Philadelphia?
A: Yes, Region III approves the exemption from the nitrogen oxides standard in subpart GG because this new installation meets the conditions specified in 40 CFR 60.332 as both a military turbine installation and a manufacturer test facility for efficiency improvements and emissions reductions.
Q: Does EPA consider a “drop out” box with water sprays an example of a wet scrubbing control device?
A: Yes. The Stationary Source Control Techniques Document for Fine Particulate Matter (EPA, 1998) defines wet scrubbers as “particulate matter (PM) control devices that rely on direct and irreversible contact of a liquid with the PM.” Therefore, a “drop-out” box with water sprays is considered to be an example of a wet scrubbing control device and should be in compliance with the regulations accordingly.
Q: Will EPA approve an alternative testing procedure for four simple cycle combustion turbines that use a certified continuous emission monitor that has been certified under 40 CFR part 75?
A: The owner has demonstrated that the concentration of oxygen is not
Q: Will EPA approve an alternative monitoring plan for a portable combustor at the gasoline loading rack at Marathon Ashland Petroleum LLC's Detroit, Michigan refinery?
A: Yes. Because the request is consistent with EPA's policy for approval of an alternative monitoring plan for miscellaneous fuel gas streams, EPA approves the request.
Q1: Does the replacement of an air grid on an FCCU catalyst regenerator trigger NSPS subpart J?
A1: If the Air Grid Replacement Project does not cause an increase in the emission rate of PM, SO
Q2: Does the Air Grid Replacement Project qualify for the exemption of modification for routine maintenance, repair, and replacement in 40 CFR 60.14(e)(1)?
A2: No. The Air Grid Replacement Project is not a regular, customary or standard undertaking for the purposes of maintaining the plant in its present condition.
Q: Will EPA approve a higher operating temperature for ten wells at a landfill?
A: Yes. Based on the supporting information presented by the landfill, it appears that the methanogenic process is still at an anaerobic phase at the higher landfill gas temperatures and no evidence of subsurface landfill fire is present at the site.
Q: Will EPA grant a coal preparation plant a waiver from the NSPS general provision reporting and recordkeeping requirements for all of its coal handling system, except the dust collector?
A: No. The NSPS general provisions do not provide for the complete waiving of such reporting or recordkeeping requirements.
Q: Will EPA grant a waiver from the NSPS general provision reporting and recordkeeping requirements for a coal mine's processing and conveying equipment?
A: No. The NSPS general provisions do not provide for the complete waiving of such reporting or recordkeeping requirements.
Q: At what point does the custody transfer exemption apply to petroleum liquid storage vessels in natural gas production processes?
A: There is no set point for every facility where the custody transfer exemption applies. If the petroleum liquid storage vessels are located after any type of processing or treatment, the custody transfer exemption does not apply. It is possible that the custody transfer exemption may apply to different facilities at different points in the natural gas production process.
Q1: Are turbines manufactured before October 3, 1977 and maintained by Alyeska before that date, but that did not begin initial operation on the Trans-Alaska Pipeline System (TAPS) until after that date subject to NSPS subpart GG?
A1: In the case of stationary gas turbines that are mass-produced and purchased in completed form, EPA considers the manufacturer as the original owner or operator. The turbines are not subject to subpart GG provided that they were not modified or reconstructed after October 3, 1977.
Q2: Are turbines manufactured before October 3, 1977 and not purchased by Alyeska until after that date, and that therefore did not begin initial operation on the TAPS until after that date subject to subpart GG?
A2: In the case of stationary gas turbines that are mass-produced and purchased in completed form, EPA considers the manufacturer as the original owner or operator. The turbines are not subject to subpart GG provided that they were not modified or reconstructed after October 3, 1977.
Q3: Are turbines manufactured before October 3, 1977, and purchased by Alyeska after that date from another owner who bought them before that date, subject to subpart GG even if they may not have been placed into operation by the previous owner before October 3, 1997?
A3: In the case of stationary gas turbines that are mass-produced and purchased in completed form, EPA considers the manufacturer as the original owner or operator. The turbines are not subject to subpart GG provided that they were not modified or reconstructed after October 3, 1977.
Q4: Do the requirements of subparts A and GG apply only to a turbine, as the “affected facility,” so that a turbine that is subject to these subparts is operated as a GG turbine no matter where it is operated on the TAPS?
A4: Under subparts A and GG, the turbine is the affected facility and the requirements of these subparts follow a turbine constructed, modified, or reconstructed after October 3, 1977, regardless of where the turbine is relocated. The affected facility is the stationary gas turbine and does not include the equipment that is powered by the turbine (such as a generator or pump).
Q5: Do turbines manufactured before October 3, 1977, become subject to subpart GG if they are treated as a pool of identical turbines and moved from location to location between TAPS pump stations to allow for the maintenance of turbines?
A5: Assuming that the maintenance does not result in a modification or reconstruction, and that the turbines are not otherwise modified or reconstructed, relocation of the turbine as part of a pool of identical turbines would not subject the turbine to subpart GG.
Q6: Does a turbine that is not subject to subpart GG (because it was not constructed, modified, or reconstructed after October 3, 1977) become subject to subpart GG if it is rotated into a location to replace a turbine that is subject to this subpart?
A6: No. A turbine that was not constructed, modified, or reconstructed after October 3, 1977, does not become subject to subpart GG simply because it is rotated into a location to replace a turbine that is subject to this subpart.
Q1: Will EPA approve a custom fuel monitoring schedule under NSPS subpart GG for a facility?
A1: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel monitoring schedules on a case-by-case basis.
Q2: Will EPA approve use of the length-of-stain tube test for certain gas turbines?
A2: Yes, EPA approves the use of the length-of-stain tube test provided that the sulfur content of the gaseous fuel is well below the 2,000 ppmw threshold.
Q: Will EPA approve use of the length-of-stain tube test for certain gas turbines?
A: Yes, EPA approves the use of the length-of-stain tube test provided that the sulfur content of the gaseous fuel is well below the 1,600 ppmw threshold.
Q: Will EPA approve a custom fuel monitoring schedule under NSPS subpart GG for a facility?
A: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel
Q1: Will EPA approve a custom fuel monitoring schedule under NSPS subpart GG for a facility?
A1: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel monitoring schedules on a case-by-case basis. In this case, approval is based on the understanding that there is no fuel-bound nitrogen and on following specific conditions for confirming sulfur variability of the pipeline natural gas.
Q2: Will EPA approve use of the length-of-stain tube test for certain gas turbines?
A2: Yes, EPA approves the use of the length-of-stain tube test provided that the sulfur content of the gaseous fuel is well below the 1,600 ppmw threshold.
Q3: Will EPA approve a request to perform fuel sampling and analysis in lieu of sulfur dioxide stack testing under subpart Da?
A3: Yes, based upon the fact that sulfur dioxide emissions generated by burning pipeline quality natural gas should be at least one order of magnitude below the standard in subpart Da, EPA approves the request to perform fuel sampling in lieu of stack testing.
Q1: Will EPA grant a request to use the procedures for fuel sulfur content determination in section 2.3.3.1 of appendix D to part 75?
A1: Yes, EPA approves the use of this method when pipeline quality natural gas is the only fuel being burned.
Q2: Will EPA approve a custom fuel monitoring schedule under subpart GG for a facility?
A2: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel monitoring schedules on a case-by-case basis. In this case, approval is based on the understanding that there is no fuel-bound nitrogen.
Q1: Will EPA approve a custom fuel monitoring schedule under NSPS subpart GG for a facility?
A1: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel monitoring schedules on a case-by-case basis. In this case, approval is based on the sulfur content of the fuel being used and an understanding that there is no fuel-bound nitrogen.
Q2: Will EPA approve use of the length-of-stain tube test for certain gas turbines?
A2: Yes, EPA approves the use of the length-of-stain tube test provided that the sulfur content of the gaseous fuel is well below the 1,600 ppmw threshold.
Q: Will EPA approve a custom fuel monitoring schedule under NSPS subpart GG for a facility?
A: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel monitoring schedules on a case-by-case basis. In this case, approval is based on the sulfur content of the fuel being used and the understanding that there is no fuel-bound nitrogen.
Q1: Will EPA approve a custom fuel monitoring schedule under NSPS subpart GG for a facility?
A1: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel monitoring schedules on a case-by-case basis. In this case, approval is based on the sulfur content of the fuel being used and the understanding that there is no fuel-bound nitrogen.
Q2: Will EPA approve use of the length-of-stain tube test for certain gas turbines?
A2: Yes, EPA approves the use of the length-of-stain tube test provided that the sulfur content of the gaseous fuel is well below the 1,600 ppmw threshold.
Q3: Will EPA approve use of NO
A3: Yes, EPA grants this request because it is consistent with approval in a March 12, 1993, EPA guidance memorandum.
Q4: Will EPA approve a request not to have to correct NO
A4: Yes, EPA finds it acceptable to maintain NO
Q5: Will EPA allow use of NO
A5: Yes, EPA will allow this use because the amount of sampling conducted during the RATA (a minimum of nine 21-minute test runs using the EPA reference methods) provides enough representative emissions data to determine compliance status.
Q: Will EPA approve a custom fuel usage monitoring schedule under subpart Dc for a facility?
A: Yes, the request is consistent with previous custom fuel usage monitoring schedules allowed under subpart Dc.
Q: Will EPA approve an alternative ASTM test method for monitoring the nitrogen content of fuel being burned?
A: Yes, because the proposed alternative method is capable of measuring close to the test target levels with minimal deviation and well within 5 percent of the mean, EPA approves the test method.
Q: Will EPA approve alternative monitoring requests for a refinery facility subject to subpart J?
A: Yes, EPA will approve the alternative monitoring requests, but with specific conditions and one modification from the proposed approach.
Q: Will EPA approve a custom fuel monitoring schedule under NSPS subpart GG for a facility?
A: Yes, EPA will approve the custom fuel monitoring schedule according to an August 14, 1987, national policy which allows the EPA regional offices to approve subpart GG custom fuel monitoring schedules on a case-by-case basis. In this case, approval is based on the understanding that there is no fuel-bound nitrogen and on following specific conditions for confirming sulfur variability of the pipeline natural gas.
Q: Will EPA approve water and fuel flow meters for two gas turbines?
A: Yes, EPA approves these meters because their accuracy meets the requirements of 40 CFR 60.334(a).
Q: Will EPA approve custom fuel monitoring for nitrogen and sulfur for a planned natural gas-fueled, turbine-driven pipeline compressor subject to subpart GG?
A: Yes, EPA approves a custom monitoring schedule, per 40 CFR 60.334(b)(2), that allows for no monitoring of fuel nitrogen as long as the affected source is supplied with solely pipeline quality natural gas. In addition, EPA approves a custom fuel monitoring schedule for sulfur. The
Q1: Will EPA allow Mirant Kendall to measure NO
A1: Yes, EPA has determined that in these specific cases the proposed alternatives to the test methods and sampling points will continue to ensure compliance with the emission limits.
Q2: Will EPA allow a custom CEMS QA/QC regimen?
A2: Yes, EPA has determined that in these specific cases the proposed alternative to the CEMS QA/QC requirements will continue to ensure compliance with the emission limits.
Q: Is the use of an adsorber and incinerator an acceptable alternate control system for subpart NNN and subpart RRR affected facilities?
A: Yes. Use of the control system and the proposed procedures for monitoring and ensuring proper operation and maintenance are acceptable.
Q: A refinery has process area reactors and distillation columns whose only gas streams are combusted in the refinery's fuel gas system. These gas streams are exempt from any compliance monitoring requirements under 40 CFR part 63, subpart G. Does 40 CFR 63.110(d)(10) also exempt those gas streams from the requirements of NSPS subparts NNN and RRR?
A: No. Section 63.110(d)(10) does not exempt the gas streams from meeting the requirements of NSPS subparts NNN and RRR.
Q: Are electric arc furnaces in steel forging plants regulated by subparts AA and AAa?
A: If a plant manufactures a product that comes from a mold and that product, as it comes out from the mold, is modified by rolling, forging, hot or cold working to alter its shape, the furnaces are regulated.
Q. Is outdated pharmaceutical waste considered an industrial waste that would make an incinerator a Commercial and Industrial Solid Waste Incineration (CISWI) Unit?
A. No. As the waste in question is from a warehouse, it is a municipal waste and, as a result, the unit is not subject to the CISWI regulations.
Q: For purposes of NSPS subpart H, what portions of a facility containing both sulfuric acid and liquid sulfur dioxide operations constitute a sulfuric acid plant?
A: On the basis of the information provided on this particular facility, only the sulfuric acid operations constitute a sulfuric acid plant under subpart H.
Q: A facility mines and crushes argillite and then fires it in kilns to produce lightweight aggregate. Are the lightweight aggregate product crushers/grinders, conveyors, screeners, and storage bins which follow the kilns subject to subpart OOO?
A: Yes. Even if no crushing or grinding takes place after the kilns, the subsequent material handling equipment would still be subject to subpart OOO as it is part of the nonmetallic mineral production line in which crushing and grinding of raw material takes place. The lightweight aggregate product is a nonmetallic mineral. The facility should also consider the potential applicability of subpart UUU to specific operations at the facility.
Q: Should facilities subject to NSPS subpart OOO submit routine reports to the appropriate agency with delegated authority for implementing the regulation, instead of EPA Region 4?
A: Yes. Facilities subject to NSPS subpart OOO only need to submit routine reports to the appropriate agency with delegated authority for implementing the regulation. There is no need to submit the reports to EPA Region 4.
Q: A facility crushes and grinds clay and then deposits it onto a storage pile. The clay is later removed from the storage pile and transferred by a conveyor to brick manufacturing equipment in a making room. Is the conveyor subject to subpart OOO?
A: No. The conveyor is not an affected facility in a production line at a nonmetallic mineral processing plant.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than February 26, 2003.
Board of Governors of the Federal Reserve System, February 6, 2003.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than February 28, 2003.
Board of Governors of the Federal Reserve System, February 7, 2003.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 7, 2003.
Board of Governors of the Federal Reserve System, February 6, 2003.
• To study the extent to which different HtE approaches impact employment, earnings, income, welfare dependence, and the presence or persistence of employment barriers;
• To collect data on a wider range of outcome measures than is available through Welfare, Medicaid, Food Stamps, Social Security, the Criminal Justice System or Unemployment Insurance records in order to understand the family circumstances and attributes and situations that contribute to the difficulties in finding employment; job retention and job quality; educational attainment; interactions with and knowledge of the HtE program; household composition; childcare; transportation; health care; income; physical and mental health problems; substance abuse; domestic violence; and criminal history.
• To conduct non-experimental analyses to explain participation decisions and provide a descriptive picture of the circumstances of individuals who are hard-to-employ;
• To obtain participation information important to the evaluation's benefit-cost component;
• And to obtain contact information for possible future follow-up, information that will be important to achieving high response rates for the 42-month survey.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments 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 of the proposed collection of information; (c) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that Kerry, Inc., has filed a petition proposing that the food additive regulations be amended to provide for the safe use of gum arabic as a thickener, emulsifier, or stabilizer in the manufacture of creamers for use in alcoholic beverages at a maximum level of use of 20 percent.
Andrew D. Laumbach, Center for Food Safety and Applied Nutrition (S-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 202-418-3071.
Under the Federal Food, Drug, and Cosmetic Act (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), notice is given that a food additive petition (FAP 1A4730) has been filed by Kerry, Inc., c/o Bell, Boyd, and Lloyd LLC, Three First National Plaza, 70 West Madison St., suite 3300, Chicago, IL 60602-4207. The petition proposes to amend the food additive regulations in part 172
The food additive petition filed as FAP 1A4730 was initially filed as a generally recognized as safe (GRAS) affirmation petition GRP 3G0287 as announced in a notice that was published in the
The agency has determined under 21 CFR 25.32(r) 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.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for
Submit written comments and petitions to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Claudia Grillo, Office of Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3460.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product Avandia (rosiglitazone maleate). Avandia is indicated for use in combination with a sulfonylurea in patients with type 2 diabetes mellitus when diet and exercise with either single agent does not achieve adequate glycemic control. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for Avandia (U.S. Patent No. 5,002,953) from Smithkline Beecham Corp., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated April 26, 2000, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of Avandia represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for Avandia is 2,042 days. Of this time, 1,859 days occurred during the testing phase of the regulatory review period, while 183 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,021 days of patent term extension.
Anyone with knowledge that any of the dates as published is incorrect may submit to the Dockets Management Branch (see
Comments and petitions should be submitted to the Dockets Management Branch. Three copies of any information are to be submitted, except that individuals may submit a single copy. Copies are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for Rapamune and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent that claims that human drug product.
Submit written comments and petitions to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Claudia Grillo, Office of Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3460.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product Rapamune (sirolimus (also rapamycin)). Rapamune is indicated for prophylaxis of organ rejection in patients receiving renal transplants. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for Rapamune (U.S. Patent No. 5,100,899) from Sir Roy Caine, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated April 13, 2000, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of Rapamune represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for Rapamune is 2,709 days. Of this time, 2,434 days occurred during the testing phase of the regulatory review period, while 275 days occurred during the approval phase. These periods of time were derived from the following dates:
1. The date an exemption under section 505 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355) became effective: April 17, 1992. FDA has verified the applicant's claim that the date the investigational new drug application became effective was on April 17, 1992.
2. The date the application was initially submitted with respect to the human drug product under section 505 of the act: December 15, 1998. FDA has verified the applicant's claim that the new drug application (NDA) for Rapamune (NDA 21-083) was initially submitted on December 15, 1998.
3. The date the application was approved: September 15, 1999. FDA has verified the applicant's claim that NDA 21-083 was approved on September 15, 1999.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,492 days of patent term extension.
Anyone with knowledge that any of the dates as published is incorrect may submit to the Dockets Management Branch (see
Comments and petitions should be submitted to the Dockets Management Branch. Three copies of any information are to be submitted, except that individuals may submit a single copy. Copies are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Health Resources and Services Administration, HHS.
Notice of grant awards.
The Maternal and Child Health Bureau (MCHB), Health Resources and Services Administration (HRSA), has awarded the following grants. Funds for these grants were appropriated under Public Law 107-116, the “Departments of Labor, HHS, Education, and Related Agencies Appropriations Act for FY 2002.” The awards are Special Projects of Regional and National Significance (SPRANS), authorized by Section 501(a)(2) of the Social Security Act, the MCH Federal Set-Aside Program (42 U.S.C. 701(a)(2)).
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Contact Ellen Hutchins, ScD, Division of Perinatal Systems and Women's Health, Maternal and Child Health Bureau, 5600 Fishers Lane, Room 11A-55, Rockville, MD 20857, (301) 443-9534.
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Contact Hae Young Park, M.P.H., Division of Research, Training and Education, Maternal and Child Health Bureau, HRSA, 5600 Fishers Lane, Room 18A-55, Rockville, MD 20857, (301) 443-2127.
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Contact Hae Young Park, M.P.H., Division of Research, Training and Education, Maternal and Child Health Bureau, HRSA, 5600 Fishers Lane, Room 18A-55, Rockville, MD 20857, (301) 443-2127.
Substance Abuse and Mental Health Services Administration, HHS.
In keeping with the Substance Abuse and Mental Health Services Administration's (SAMHSA) delegation of authority from the Secretary and in compliance with title XIX, subpart II, section 1932(c) and with section 1926 of the Public Health Service Act, SAMHSA is issuing the following guidance to be used in determining whether to approve a U.S. Territory's request for a waiver from the requirements of section 1926 of the Public Health Service (PHS) Act (the Synar Amendment), and its implementing regulations, 45 CFR 96.130.
This guidance will become effective only at such time that an appropriation act for the Department of Health and Human Services (HHS) does not contain a prohibition on penalizing the territories under section 1926 of the PHS Act that receive less than $1,000,000. (
Section 1926 of the Public Health Service (PHS) Act and its implementing regulation, require each State, the District of Columbia and each U.S. Territory, as a condition for receiving a Substance Abuse Prevention and Treatment (SAPT) Block Grant award, to enact and enforce laws making illegal the sale or distribution of tobacco products to individuals under the age of 18 years. States, the District of Columbia and the Territories are also required to annually conduct unannounced inspections of tobacco retail outlets to ensure compliance with the law. These inspections must be based on a statistically valid random sample of retail outlets across the State, the District of Columbia or the Territory. Additionally, States, the District of Columbia and Territories are required, unless extraordinary circumstances exist, to meet negotiated annual retailer violation target rates, and to annually submit a report to the Secretary describing their activities to enforce the laws and reduce the availability of tobacco products to minors. Section 1926 also stipulates that any State, the District of Columbia or Territory failing to meet the requirements stated above may receive a 40 percent penalty against their SAPT Block Grant.
Section 1932(c) of the PHS Act authorizes the Secretary, in the case of any territory of the United States except Puerto Rico, to waive such provisions of this subpart II and subpart III as the Secretary determines to be appropriate, * * *” The reference is to subpart II and III of title XIX of the PHS Act which authorize the SAPT Block Grant. This discretionary authority extends to section 1926. This authority has been delegated by the Secretary to the Administrator of SAMHSA. This guidance explains the conditions under which the Administrator of SAMHSA, in his discretion, will grant a waiver for any Territory other than Puerto Rico from the requirements of section 1926.
Comments on the guidance must be in writing and should be sent to Mr. David Robbins, Acting Director, Division of State and Community Systems Development, Center for Substance Abuse Prevention (CSAP), Rockwall II Building, Room 930, 5600 Fishers Lane, Rockville, MD 20857, by April 14, 2003.
Mr. David Robbins, Acting Director, Division of State and Community Systems Development, Center for Substance Abuse Prevention (CSAP), Rockwall II Building, Room 930, 5600 Fishers Lane, Rockville, MD 20857. Mr. Robbins may be reached on (301) 443-2068.
U.S. Territories have faced many challenges in meeting the Synar legislative and regulatory requirements. Specifically, cultural issues have created significant challenges for the conduct of tobacco outlet inspections to assess the youth tobacco access rates within each of the U.S. Territories, as required by the Synar legislation. For example, in some Territories it is customary for individuals under the age of 18 to buy provisions, including tobacco, for their elders. In others, it is considered inappropriate to ask a person's age for
In addition to cultural barriers to the conduct of inspections, accessibility to tobacco outlets often presents significant human and resource challenges for the U.S. Territories. Many Territories include outlying islands with very small populations. In order to conduct compliance inspections in these outlying areas, travel by boat and overnight stays are often required. Such travel is often costly and requires staff to work substantial numbers of hours to complete the required work. These logistical issues further burden the process of complying with the Synar legislative and regulatory requirements. Currently, a Territory must commit significant resources toward the development, implementation, and analysis of the survey of tobacco retail outlets across the Territory, as well as the conduct of law enforcement activities for violators of a Territory's youth tobacco access control law. Given that eligible Territories receive relatively small SAPT Block Grant awards (between $85,919 and $756,531), SAMHSA believes that resources expended directly toward the implementation of broader tobacco prevention and control programming would be more productive for obtaining the overall goal of the Synar program—reducing the use of tobacco products by youth.
• A waiver is requested by the eligible Territory at the same time it submits its application for SAPT funds;
• The waiver request is signed by the chief executive officer of the Territory in question;
• The request contains a comprehensive tobacco prevention and control program acceptable to the Administrator; and
• The Territory in question agrees to submit to the Administrator an annual report on its progress in implementing the plan.
A waiver may be granted for up to three years during which period the Territory in question will be obligated to submit an annual progress report. However, a waiver may be withdrawn as determined appropriate by the Administrator of SAMHSA if the territory fails to submit an annual report or if the progress is determined to be unsatisfactory by the Administrator of SAMHSA. If that should occur, the territory will be required to once again abide by the legislative and regulatory requirements of Synar.
SAMHSA recommends that Territories include the following in their comprehensive tobacco prevention and control plans:
• Public education including information regarding the health consequences of tobacco use, and the problem of youth access to tobacco. Public education may include media campaigns.
• Education and training for retail store owners, managers, and sales clerks on the health consequences of tobacco use and the problem of youth access to tobacco.
• Distribution of culturally sensitive educational materials.
• Community mobilization, which may occur through the formation of community-based coalitions. To be effective, such community coalitions shall support the Territorys capacity to reduce youth use of tobacco products by involving youth in tobacco issues, and by gaining support of the community to reduce a minor's access to tobacco products.
• Environmental strategies including proposals to change or enforce Territorial laws and policies to support efforts to reduce youth use of tobacco products. Examples of possible policy initiatives may include, but not be limited to, encouraging clean indoor air policies, increasing tobacco taxes, or formally supporting youth tobacco cessation programs.
On March 12, 2001, (FR Vol. 66, No. 48, pages 14410-14411), the Substance Abuse and Mental Health Services Administration (SAMHSA), HHS, published policy outlining procedures that applicants were required to follow when resubmitting revised applications in response to SAMHSA Program Announcements. The purpose of this notice is to rescind the policy effective February 1, 2003.
The Substance Abuse and Mental Health Services Administration and its three Centers, the Center for Substance Abuse Treatment (CSAT), the Center for Mental Health Services (CMHS), and the Center for Substance Abuse Prevention (CSAP), publish Program Announcements and Requests for Applications (RFAs) to solicit applications for their grant programs. Program Announcements, unlike RFAs, have continuous application receipt dates; thereby, giving applicants an opportunity to resubmit, for a later receipt date, revised applications that were not funded. Although applicants may still revise and resubmit applications, effective February 1, 2003, SAMHSA is rescinding the policy that outlined specific instructions for revising and resubmitting the applications.
Fish and Wildlife Service, Interior.
Notice of availability, receipt of application.
The Urban Wildlands Group, Inc. (Applicant) has applied to the Fish and Wildlife Service (Service) for an enhancement of survival permit pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (Act). The permit application includes a proposed Safe Harbor Agreement (SHA) between the Applicant and the Service. The SHA provides for habitat enhancement and creation for the El Segundo blue butterfly
The Service has made a preliminary determination that the proposed SHA and permit application are eligible for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). The basis for this determination is contained in an Environmental Action Statement, which also is available for public review.
Written comments must be received by 5 p.m. on March 17, 2003.
Comments should be addressed to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 92009, facsimile number (760) 918-0638 (see
Karen A. Evans, Assistant Field Supervisor, at the above address or by calling (760) 431-9440.
The primary objective of this SHA is to encourage voluntary habitat restoration or enhancement activities to benefit El Segundo blue butterfly by relieving a landowner, who enters into the provisions of a Cooperative Agreement with the Applicant, from any additional Section 9 liability under the Endangered Species Act beyond that which exists at the time the Cooperative Agreement is signed (“regulatory baseline”). A SHA encourages landowners to conduct voluntary conservation activities and assures them that they will not be subjected to increased endangered species restrictions should their beneficial stewardship efforts result in increased endangered species populations. Application requirements and issuance criteria for enhancement of survival permits through SHAs are found in 50 CFR 17.22(c). As long as enrolled landowners allow the agreed upon habitat improvements to be completed on their property and maintain their baseline responsibilities, they may make any other lawful use of the property during the permit term, even if such use results in the take of individual El Segundo blue butterflies or harm to their habitat.
Landowners within the Torrance Recovery Unit identified by the El Segundo Blue Butterfly Recovery Plan may be enrolled with the Applicant under the SHA. They will receive a Certificate of Inclusion when they sign a Cooperative Agreement. The Cooperative Agreement will include: (1) A map of the property; (2) delineation of the portion of the property to be enrolled and its acreage; (3) a description of the vegetation of the enrolled area of the property; (4) a description of the habitat improvements that will be completed, and; (5) the responsibilities of the Cooperator and the Applicant.
The Applicant will provide draft copies of Cooperative Agreements to the Service for an opportunity to review and concur with the recommended habitat management activities. The Service will have a period of 30 days in which to make comments. If no comments are received within 30 days, the Applicant may proceed to finalize the Cooperative Agreement. The Applicant, as the permittee, will be responsible for annual monitoring and reporting related to implementation of the SHA and Cooperative Agreements and fulfillment of their provisions. Upon request by the Service, the Applicant will make available records and materials related to implementation of the program.
Each Cooperative Agreement will cover restoration activities to create or enhance habitat for El Segundo blue butterfly and achieve species' recovery goals. These actions, where appropriate, could include (but are not limited to): (1) Removal of exotic vegetation to allow for native plant revegetation or to reduce the adverse effect on existing habitat; (2) revegetation with food plant for El Segundo blue butterfly as part of a native dune scrub or bluff scrub community; (3) repair or installation of fences to protect existing or created habitat from human disturbance; and (4) facilitation of the implementation of other objectives recommended by the El Segundo Blue Butterfly Recovery Plan. None of the Cooperative Agreements entered into under this SHA will allow conversion of native habitat into another habitat type.
Each Cooperative Agreement will stipulate that the habitat improvement measures be maintained for a period that is expected to result in the maturation of plants used in revegetation and for a period of 5 years beyond. Most Cooperative Agreements are expected to last at least 13 years. Based on experience elsewhere, this term is more than adequate to allow native plant revegetation to mature to a point usable by the butterflies for nectaring and egg-laying, as well as multiple seasons for dispersal to and from adjacent occupied habitat patches.
After maintenance of the restored/created/enhanced El Segundo blue butterfly habitat on the property for the agreed-upon term, Cooperators may then conduct otherwise lawful activities on their property that result in the partial or total elimination of the restored habitat and the incidental taking of El Segundo blue butterfly as a result of such habitat elimination. However, the restrictions on returning a property to its original baseline condition include: (1) El Segundo blue butterflies may not be captured, killed, or otherwise directly “taken”; (2) the Applicant and the Service will be notified a minimum of 60 days prior to the activity and given the opportunity to capture, rescue, and/or translocate any El Segundo blue butterflies, if necessary and appropriate; and (3) return to baseline conditions must be completed within the 30-year term of the permit issued to the Applicant. Cooperative Agreements may be extended if the Applicant's permit is renewed and that renewal allows for such extension.
In emergency situations, such as storm-related geological instability, the Service may authorize a Cooperator to carry out an action likely to result in incidental taking of El Segundo blue butterfly before the end of the agreed-upon duration of habitat maintenance, as identified in the Cooperative Agreement, provided the landowner notifies the parties to the Agreement in writing at least 14 days prior to the action, with the nature of the emergency, and an explanation of the extenuating circumstances.
The Service has made a preliminary determination that approval of the SHA qualifies as a categorical exclusion under the NEPA, as provided by the Department of Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1) based on the following criteria: (1) Implementation of the SHA would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of the SHA would result in minor or negligible effects on
Based upon this preliminary determination, we do not intend to prepare further NEPA documentation. The Service will consider public comments in making its final determination on whether to prepare such additional documentation.
Individuals wishing copies of the permit application, the Environmental Action Statement, or copies of the full text of the SHA, including a map of the proposed permit area, references, and legal descriptions of the proposed permit area, should contact the office and personnel listed in the
The Service provides this notice pursuant to section 10(c) of the Act and pursuant to implementing regulations for NEPA (40 CFR 1506.6). All comments received on the permit application and SHA, including names and addresses, will become part of the administrative record and may be released to the public. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, are available for public inspection in their entirety.
We will evaluate the permit application, the SHA, and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act and NEPA regulations. If the requirements are met, the Service will sign the proposed SHA and issue an enhancement of survival permit under section 10(a)(1)(A) of the Act to the Applicant for take of the El Segundo blue butterfly incidental to otherwise lawful activities of the project. The Service will not make a final decision until after the end of the 30-day comment period and will fully consider all comments received during the comment period.
Bureau of Land Management, Interior.
Notice.
This notice cancels and terminates the segregative effect of a proposed land exchange of 16,929.85 acres. The land will be opened to location and entry under the general land laws, including the mining laws, subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law.
March 17, 2003.
Jim Andersen, BLM Phoenix Field Office, 21605 North 7th Avenue, Phoenix, Arizona 85027, 623-580-5500.
A Decision was issued on May 16, 2001, which segregated the land described therein from location and entry under the general land laws, including the mining laws, subject to valid existing rights for a five-year period. The Bureau of Land Management has determined that the proposed land exchange of the following described lands will not be needed and has been canceled.
Above described property aggregates approximately 16,929.85 acres in Yavapai County.
At 9 a.m. on March 17, 2003 the land will be opened to the operation of the general land laws and to location and entry under the United States mining laws, subject to valid existing rights, the provision of existing withdrawals, and other segregations of record. Appropriation of any of the land described in this order under the general mining laws prior to the date and time of restoration is unauthorized. Any such attempted appropriation, including attempted adverse possession under 30 U.S.C. 38 (1988), shall vest no rights against the United States. Acts required to establish a location and to initiate a right of possession are governed by State law where not in conflict with Federal law. The Bureau of Land Management will not intervene in disputes between rival locators over possessory rights since Congress has provided for such determinations in local courts. All valid applications under any other general land laws received at or prior to 9 a.m. on March 17, 2003 shall be considered as simultaneously filed at that time. Those received thereafter shall be considered in the order of filing.
Bureau of Land Management, Interior.
Public land order.
This order withdraws approximately 2,998 acres of National Forest System land from location and entry under the United States mining laws for a period of 20 years to protect the Russian River and Upper Russian Lake Recreation Corridor. The land will remain open such uses as may by law be made of National Forest System lands, and all public uses consistent with the recreational utilization and protection of the Russian River watershed.
February 13, 2003.
Robbie J. Havens, Bureau of Land Management, Alaska State Office, 222 W. 7th Avenue, No. 13, Anchorage, Alaska 99513-7599, 907-271-5477.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), it is ordered as follows:
1. Subject to valid existing rights, the following described National Forest System land is hereby withdrawn from location and entry under the United States mining laws (30 U.S.C. Ch.2 (1994)) to protect the Russian River and Upper Russian Lake Recreation Corridor:
The area described contains approximately 2,998 acres.
2. The withdrawal made by this order does not alter the applicability of those public land laws governing the use of National Forest System lands under lease, license, or permit, or governing the disposal of their mineral or vegetative resources other than under the mining laws.
3. This withdrawal will expire 20 years from the effective date of this order unless, as a result of a review conducted before the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f)(1994), the Secretary determines the withdrawal shall be extended.
Bureau of Land Management, Interior.
Public land order.
This order withdraws 268.40 acres of National Forest System lands from location and entry under the United States mining laws, for a period of 50 years, for protection, operation and maintenance of the Bureau of Reclamation's Trial, Washington, and Lost Lake Dams in the Upper Provo River component of the Bonneville Unit of the Central Utah Project.
February 13, 2003.
David Krueger, Bureau of Reclamation, Provo Area Office, 302 East 1860 South, Provo, Utah 84606-7317; 801-379-1083.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), it is ordered as follows:
1. Subject to valid existing rights, the following described National Forest System lands are hereby withdrawn from location and entry under the United States mining laws, 30 U.S.C. Ch. 2 (1994), to protect the Bureau of Reclamation's Trial, Washington, and Lost Lake Dams in the Upper Provo River component of the Bonneville Unit of the Central Utah Project:
T. 2 S., R. 9 E.,
Excepting therefrom a cabin lot situated in the NE
Beginning at a point, which lies North, 4,460 feet and West, 366 feet from the Southeast Corner of said Section 6; thence West, 134 feet; thence North, 163 feet; thence East, 132 feet; thence along the high water line of Trial Lake, South 02°26′45″ West, 54.60 feet; thence South 09°20′17″ East, 34.14 feet; thence South 09°45′06″ East, 36.13 feet; thence South 21°48′53″ West, 31.75 feet; thence South 24°15′26″ East, 10.66 feet; to the point of beginning. Containing 0.50 acre, more or less.
The areas described aggregate 268.40 acres in Summit County.
2. This withdrawal will expire 50 years from the effective date of this order unless, as a result of a review conducted before the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f) (1994), the Secretary determines that the withdrawal shall be extended.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on January 8, 2003, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Deere & Company of Moline, Illinois. Letters supplementing the complaint were filed on January 27 and 28, 2003. The complaint as supplemented alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain agricultural vehicles and components thereof by reason of infringement and dilution of U.S. Registered Trademark Nos. 1,254,339, 1,502,103, 1,503,576, and 91,860. The complaint further alleges that an industry in the United States exists as required by subsections (a)(1)(A) and (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent general exclusion order and permanent cease and desist orders.
The complaint and supplements, except for any confidential information contained
David O. Lloyd, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2576.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2002).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine:
(a) Whether there is a violation of subsection (a)(1)(C) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain agricultural vehicles or components thereof by reason of infringement of U.S. Registered Trademark No. 1,254,339, 1,502,103, 1,503,576, or 91,860, and whether an industry in the United States exists as required by subsection (a)(2) of section 337; and
(b) Whether there is a violation of subsection (a)(1)(A) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain agricultural vehicles or components thereof by reason of dilution of U.S. Registered Trademark No. 1,254,339, 1,502,103, or 1,503,576, the threat or effect of which is to destroy or substantially injure an industry in the United States.
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—
(b) The respondents are the following companies alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) David O. Lloyd, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Room 401, Washington, DC 20436, who shall be the Commission investigative attorney, party to this investigation; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern is designated as the presiding administrative law judge
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received no later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and to authorize the administrative law judge and the Commission, without further notice to that respondent, to find the facts to be as alleged in the complaint and this notice and to enter both an initial determination and a final determination containing such findings, and may result in the issuance of a limited exclusion order or a cease and desist order or both directed against that respondent.
By order of the Commission.
30-day notice of information collection under review; reinstatement, with change, of a previously approved collection for which approval has expired; national drug threat survey.
The United States Department of Justice, National Drug Intelligence
The proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until March 17, 2003. This process is in accordance with 5 CFR 1320.10.
If you have any comments, especially on the estimated public burden or associated response time, or suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mr. Robert B. Briggs, Department Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, 601 D Street, NW., Washington, DC 20004.
In accordance with Departmental policy, 28 U.S.C. 50.7, and in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C. 9622(d)(2), notice is hereby given that a proposed Consent Decree in
In this action the United States sought the recovery of its response costs that were incurred by the United States Environmental Protection Agency in response to releases or threatened releases of hazardous substances from the Gulf Coast Vacuum Services Site located 3.5 miles southwest of Abbeville, Vermillion Parish, Louisiana. The Consent Decree settles an action brought under Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9607. The Consent Decree provides that
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice, Washington, D.C. 20530, and should refer to
The proposed Consent Decree may be examined at the office of the United States Attorney, Western District of Louisiana, 800 Lafayette Street, Suite 2200, Lafayette, Louisiana 70501; the Region VI Office of the Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas. During the pubic comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Under 28 CFR 50.7, notice is hereby given that on January 17, 2003, a proposed Consent Decree in
In this action the United States sought injunctive relief and civil penalties under Sections 112 and 113 of the Clean Air Act, 42 U.S.C. 7412 and 7413, and the National Emission Standards for
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, District of Arizona, U.S. Courthouse, 230 N. First Ave., Phoenix, AZ 85025, and at U.S. EPA Region IX, Office of Regional Counsel, 75 Hawthorne Street, San Francisco, CA 94105. A copy of the Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $5.25 (25 cents per page reproduction cost) payable to the U.S. Treasury.
In accordance with Departmental Policy, 28 U.S.C. 50.7, notice is hereby given that on February 3, 2003, a proposed consent decree in
In this action the United States sought cost recovery and natural resource damages under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Resource Conservation Recovery Act (“RCRA”) against Charles George, Sr., Dorothy George and the Charles George Land Reclamation Trust (collectively, the “settling defendants”) and other defendants (who have settled under prior agreements) with respect to the Charles George Land Reclamation Trust Superfund Site in Tynsborough, Massachusetts. Under the terms of the proposed settlement, the settling defendants will pay up to $3.8 million to reimburse the United States and the Commonwealth of Massachusetts for costs incurred at the Site. In addition, to resolve the governments' claims of natural resource damages at the Site, the settling defendants will impose a conservation restriction on approximately 15 acres of undeveloped land in Tynsborough, Massachusetts. This settlement is the third and final settlement entered into by the United States concerning response costs at this Site.
The Department of Justice will receive for a period of 30 days from the date of this publication comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, D.C. 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, 1 Courthouse Way, Suite 9200, Boston, Massachusetts 02210, and at U.S. EPA Region I, One Congress Street—Suite 1100, Boston, Massachusetts 02114. A copy of the consent decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, or by faxing a request to Tonia Fleetwood, fax no. (202) 514-0097, phone confirmation number (202) 514-1547. In requesting a copy, please enclose a check in the amount of $14.25 (25 cents per page reproduction cost) payable to the U.S. Treasury.
Notice is hereby given that on January 27, 2003, a proposed consent decree in
The Consent Decree resolves claims brought in a complaint filed concurrently with the lodging of the Consent Decree. The complaint alleges that defendant Del Webb Communities, Inc. failed to comply with Clean Air Act requirements to control fugitive dust at construction projects in Clark County, Nevada.
Under the proposed Consent Decree, Del Webb will pay a $50,000 civil penalty. In addition, Del Webb will commit to injunctive relief requiring that it implement necessary work practices to control dust emissions in the future and provide training in such practices to its employees.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The consent decree may be examined at the offices of U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, California 94105, and at the Office of the United States Attorney, District of Nevada, 333 Las Vegas Blvd. So., #5000, Las Vegas, Nevada 89101 (refer to NSAO No.: 2000V00330). During the public comment period, the consent decree may be examined on the following Department of Justice Web site:
60-day notice of information collection under review: extension of a currently approved collection; Federal Firearms Licensee Firearms Inventory Theft/Loss Report.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until April 14, 2003. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Ben Hayes, National Tracing Center, 244 Needy Road, Martinsburg, WV 25401.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Robert B. Briggs, Department Clearance Officer, Information Management and Security Staff, Justice Management Division, Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
In 1998, the Workforce Investment Act, the nation's most comprehensive effort at streamlining and transforming public employment, job training and education programs and agencies into a system that meets the skill needs of today's economy, was passed. The implementation of the Workforce Investment Act (WIA) of 1998 combines a variety of workforce development programs and initiatives under one umbrella—the One-Stop System—to effectively serve the needs of job-seekers, workers and employers in the changing workforce development environment at the onset of the 21st century economy.
Under the provisions of the WIA, the Secretary of Labor is required every two years to prepare a five-year research plan for research, pilot and demonstration initiatives. This research plan reflects a strategic vision for research efforts based upon input from stakeholders in employment and training research, a review of recent efforts, an identification of areas where future research may be needed, and a review of possible research methodologies.
In light of major changes in the macro-economy that have taken place in the areas of technological transformation, increasing globalization and changing demographics over the
This is a call for empirical/non-empirical papers related to workforce investment issues. ETA is seeking recently completed papers and papers that will be completed prior to the conference. We encourage contributions by researchers from academia, state or local agencies, business organizations, labor associations, research consulting firms and other relevant organizations. Possible topics may include, but are not limited to:
• Workforce Investment Act (program implementation and administration of adult, dislocated worker and youth programs; issues relating to WIA reauthorization).
• Skills Requirements of Employers (skills needed by employers in particular sectors and industries, the effect of new technologies, including the internet and e-commerce, on skill needs of employers).
• Changes in the Structure and Organization of Work (changes in tenure and the rise of contingent work arrangements).
• Effect of Contingent Work on Hiring Practices (the effect of hiring practices of employers and the job search behavior of individuals).
• Role of Intermediaries in the Labor Market (whether intermediaries offer new approaches and techniques that can be adapted by the public-sector employment and training community).
• Adaptability of the Unemployment Insurance Program to an evolving U.S. economy. (program administration, coverage, eligibility, benefit adequacy, benefit duration, recipiency, benefit financing, economic stabilization, special populations and changing work patterns).
• Changes in Wages and Compensation (effect of education on workers' earnings).
• Wages and Compensation Trends (recent trends in the receipt of benefits, including health insurance and retirement benefits) Interventions (employment and training intervention responses to wage and compensation trends).
• Impact of technology, Internet and Labor Market Information on labor exchange processes.
• Education—Workforce Training Continuum (appropriate roles of public K-12 and higher education integrated with Workforce Investment System).
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: 29 CFR part 825, The Family and Medical Leave Act of 1993. 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 April 14, 2003.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, E-mail
The Family and Medical Leave Act of 1993 (FMLA), Public Law 103.3, 107 Stat. 6, 29 U.S.C. 2601, which became effective on August 5, 1993, requires private sector employers of 50 or more employees, and public agencies to provide up to 13 weeks of unpaid, job-protected leave during any 12-month
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor seeks approval for the extension of this information collection in order to ensure that both employers and employees are aware of and can exercise their rights and meet their respective obligations under FMLA, and in order for the Department of Labor to carry out its statutory obligation under FMLA to investigate and ensure employer compliance have been met. Since OMB extended the expiration dates of the forms in July 2002, the Department has initiated a review of FMLA's implementing regulations to address issues raised by the U.S. Supreme Court in
The Department expects to revise Forms WH-380 and WH-381, and these forms also may need to reflect changes that may be proposed to the FMLA regulations. The Department is requesting a one-year extension on the expiration date to the ICR. 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; they will also become a matter of public record.
Office of Federal Contract Compliance Programs, Labor.
Notice of debarment: BFI Waste Services, L.L.C.'s 260 West Dickman Street, Baltimore, facility (Division #50).
This notice advises of the debarment of BFI Waste Services, L.L.C.'s 260 West Dickman Street, Baltimore, Maryland Facility (Division #50), (hereinafter “BRI”), as an eligible bidder on Government contracts or extensions or modifications of existing contracts. The debarment is effective immediately.
Charles E. James, Sr., Deputy Assistant Secretary for Federal Contract Compliance, U.S. Department of Labor, 200 Constitution Ave., NW., Room C-3325, Washington, DC 20210 (202-693-1062).
On January 30, 2003, the United States Department of Labor's Administrative Law Judge Thomas M. Burke approved a Consent Decree, pursuant to Executive Order 11246, and its implementing regulations (41 CFR parts 60-1
This Consent Decree (hereinafter “Consent Decree” or “Decree”) is entered into between the Plaintiff, United States Department of Labor, Office of Federal Contract Compliance Programs (hereinafter “OFCCP”), and Defendant BFI Waste Services, LLC (hereinafter “BFI” or “Defendant”), in resolution of the Administrative Complaint filed by OFCCP pursuant to Executive Order 11246 (30 FR 12319), as amended by Executive Order 11375 (32 FR 14303) and Executive Order 12086 (43 FR 46501) (“Executive Order”). The Administrative Complaint alleged that Defendant violated the terms of a Conciliation Agreement that was executed by Defendant and OFCCP and that became effective in March 2000.
1. The record on the basis of which this Consent Decree is entered shall consist of the Complaint and the Consent Decree and the attachments thereto.
2. Attachment A of the Consent Decree consists of the Conciliation Agreement between OFCCP and Defendant which became effective in March 2000.
3. This Consent Decree shall not become final until it has been signed by the Administrative Law Judge, and the effective date of the Decree shall be the date it is signed by the Administrative Law Judge.
4. This Consent Decree shall be binding upon Defendant and any and all purchasers, successors, assignees, and/or transferees, and shall have the same force and effect as an order made after a full hearing.
5. All further procedural steps to contest the binding effect of the Consent Decree, and any right to challenge or contest the obligations entered into in accordance with the agreement contained in this Decree, are waived by the parties, except as provided hereunder.
6. Subject to the performance by Defendant of all duties and obligations contained in this Consent Decree, all alleged violations identified in the Administrative Complaint shall be deemed fully resolved. However, nothing herein is intended to relieve Defendant from compliance with the requirements of Executive Order 11246, Section 503 of the Rehabilitation Act, the Vietnam Era Veterans' Readjustment and Assistance Act, or their regulations, nor to limit OFCCP's right to review Defendant's compliance with such requirements.
7. Defendant agrees that there will be no retaliation of any kind against any beneficiary of this Consent Decree, or against any person who has provided information or assistance in connection with this Decree.
8. Defendant denies that it violated Executive Order 11246.
9. Defendant does not admit any violation of law or obligation. The parties agree that this Consent Decree is not, and may not be used, as an admission of any violation by Defendant, or as a basis for asserting Defendant's noncompliance with any labor and employment law, rules, or regulations, except for any action initiated pursuant to Paragraphs 27 to 30 of this Decree.
10. In its initial compliance review of Defendant in November 1999, OFCCP identified three violations of Executive Order 11246.
11. In March 2000, OFCCP and Defendant entered into a Conciliation Agreement to resolve the three violations.
12. Defendant was obligated to correct three alleged violations under the Conciliation Agreement, including: (1) Defendant's failure to provide accurate applicant flow data in support of its Affirmative Action Program; (2) Defendant's failure to offer equal employment opportunity to an applicant, Ms. Julie Ann Dunlap, for a position in the office and clerical job group; and (3) Defendant's failure to make good faith efforts to develop and execute an affirmative action plan to recruit women for the underutilized craftworker and laborer job groups.
13. The Conciliation Agreement obligated Defendant to provide two annual reports to enable OFCCP to monitor the company's compliance with the terms of the Conciliation Agreement. After Defendant submitted the first of the two reports, OFCCP determined that Defendant failed to comply with two provisions of the Conciliation Agreement. Specifically, OFCCP found that Defendant failed to (1) offer a customer service position to Ms. Julie Ann Dunlap with retroactive seniority and vesting status dating back to September 8, 1998, as well as a check for $32,708.98 in back pay and interest through December 31, 1999; and (2) provide the specified recruitment sources with timely notice of its employment opportunities in the craftworker and laborer job groups.
14. Defendant contends that it made good faith efforts to offer Ms. Julie Ann Dunlap employment, but that Ms. Dunlap never responded.
15. If Ms. Dunlap executes and returns the General Release and Covenant Not to Sue described in paragraph 16 below, Defendant will offer the next available full-time customer service position at its Baltimore, Maryland facility to Ms. Julie Ann Dunlap as set forth below. The terms of this job offer will include retroactive seniority and vesting status dating back to September 8, 1998, the date of Ms. Dunlap's original application. The job offer will be made in writing by certified mail, return receipt requested, and will describe the job title, rate of pay, job site, description of job benefits, start date, expected duration of the job, and will specify a time period of at least two weeks for Ms. Dunlap to respond to the employment offer. The written job offer will explicitly state that it includes retroactive seniority and vesting status dating back to September 8, 1998. If Ms. Dunlap's address is unknown, Defendant will make all reasonable efforts to obtain Ms. Dunlap's current address. When Ms. Dunlap's current address is obtained, BFI will offer her the next available full-time customer service position. If Ms. Dunlap does not respond or execute and return the General Release and Covenant Not to Sue described in paragraph 16 below to “BFI Waste Services, L.L.C., at 260 West Dickman Street, Baltimore, Maryland 21230, Attn: Bill Booth, General Manager”, within (14) days of receiving the offer, Defendant's hiring obligation hereunder shall cease. Defendant's hiring obligation will also cease if Ms. Dunlap fails the drug screen or the background check (consisting of a check of criminal records and references). Defendant affirms that these screens are administered to all applicants for customer service positions, and will be handled in a non-discriminatory manner and in accordance with policy and procedure. If Defendant determines that the results of Ms. Dunlap's drug screen or background check preclude her from employment, Defendant will provide information and documentation to OFCCP demonstrating that the failure to hire Ms. Dunlap is non-discriminatory and consistent with Defendant's policies and practices. Defendant will provide the name, job title, and business telephone number of each employee who made, or
16. Within 10 days of the date upon which it receives a fully executed copy of this Decree, Defendant will send Ms. Dunlap by certified mail, return receipt requested the letter contained in Attachment B, along with a W-4 form and a General Release and Covenant Not to Sue, and ask that she complete both and return them at the address specified in the letter to Defendant within 14 days of her receipt thereof (as determined by the date she signs the return receipt card). Within 10 days of receiving the completed W-4 form and executed General Release and Covenant Not to Sue, Defendant will submit by certified mail, return receipt requested two checks to Ms. Julie Ann Dunlap in the total amount of $44,838.91 minus legal payroll deductions. The parties agree that this payment represents back pay (the first check) and interest (the second check) due to Ms. Dunlap for the period of September 8, 1998, to December 31, 2002. For tax purposes, the parties agree that $35,289.58 of the total payment represents back pay and the remaining $9,549.33 represents interest.
17. If Ms. Dunlap's address is unknown as of 10 days from the date upon which Defendant receives a fully executed copy of this Decree, Defendant will deposit the check for Ms. Dunlap into an interest bearing escrow account at that time. Defendant and OFCCP, jointly, will make all reasonable efforts to obtain Ms. Dunlap's current address. Defendant will pay Ms. Dunlap the balance of the escrow account, including accrued interest, within 10 days of the date upon which Defendant receives a completed W-4 form and the executed General Release and Covenant Not to Sue. In the event Ms. Dunlap does not receive the letter from BFI, the money shall remain in the escrow account until the cessation of the term of this Consent Decree. At the cessation of the term of the Consent Decree, the escrow account shall revert to the Department of Labor, which will maintain the escrow account for Ms. Dunlap's benefit. If Ms. Dunlap is located thereafter, the Department of Labor will tender the money to Ms. Dunlap upon receipt of the executed General Release and Covenant Not to Sue, which it will forward to Defendant.
18. For a period of two years from the effective date of this Consent Decree, Defendant agrees to notify the recruitment and community agencies listed on page 11 of the Conciliation Agreement at least two weeks before interviewing is initiated for positions in the craftworker and laborer job groups. Defendant shall inform such recruitment sources of the minimum job qualifications required, wages, closing date for the vacancy, a job description, and the application procedures.
19. Defendant agrees to provide reports to the U.S. Department of Labor, Office of the Solicitor, Division of Civil Rights, 200 Constitution Avenue NW., Room N-2464, Washington, DC 20210. Defendant will file a total of four reports according to the following schedule:
a. Defendant's job offer to Ms. Dunlap; or, if Ms. Dunlap is not hired due to the results of a drug screen and/or background check, Defendant will provide the information specified in Paragraph 15 of this Decree;
b. Defendant's deposit of monetary relief into an interest bearing escrow account, if Ms. Dunlap's address in unknown or she does not respond, send a W-4 form or execute the General Release and Covenant Not to Sue, including a statement of the balance of the account;
c. Defendant's payment of monetary relief to Ms. Dunlap when (and if) her current address is obtained, including the address to which the check was sent, the amount of the check, the date on which the check was mailed, and documentation verifying payment on the check; and
d. Defendant's good faith efforts to recruit and hire women in the craftworker and laborer job groups. Such documentation shall include, but shall not be limited to copies of letters sent to recruitment sources and an applicant log for positions in the craftworker and laborer job groups, specifying the name, gender, position applied for, job group number, date of application, referral source, and disposition of each applicant.
20. The Office of Administrative Law Judges shall retain jurisdiction in this case for a period of two years from the effective date of this Consent Decree.
21. Defendant's 260 West Dickman Street, Baltimore, Maryland facility (Division #050) agrees not to bid for or enter into Government contracts or subcontracts for a period of one-hundred and eighty (180) days from the effective date of this Consent Decree. This debarment period shall be effective against the officers, agents, servants, employees, successors, divisions, subsidiaries, and persons in active concert or participation with Defendant's 260 West Dickman Street, Baltimore, Maryland facility (Division #050). During the debarment period, no BFI facility will enter into any Government contracts or subcontracts that BFI's 260 West Dickman Street, Baltimore, Maryland facility (Division #050) would have otherwise bid for and entered into during the debarment period.
22. Notice of the debarment of “BFI's 260 West Dickman Street, Baltimore, Maryland facility (Division #050)” shall be printed in the
23. The debarment shall be lifted at the conclusion of the one-hundred and eighty (180) day period if Defendant satisfies the Director of OFCCP that it is in compliance with Executive Order 11246.
24. OFCCP shall review each of Defendant's reports and shall determine whether Defendant has complied with the terms of this Consent Decree and the terms of Executive Order 11246 and its implementing regulations. OFCCP shall notify Defendant in writing, within 30 days of receipt of the report, if there is a deficiency. Defendant shall have 30 days from its receipt of the deficiency notice to correct such deficiency.
25. If OFCCP finds that Defendant has complied with the terms of this Consent Decree and with the terms of Executive Order 11246, the debarment shall be lifted and Defendant shall be free to enter into future Government contracts and subcontracts. Beginning 30 days before the conclusion of the 180-day period, Defendant may request reinstatement pursuant to 41 CFR § 60-1.31. Reinstatement proceedings shall be in accordance with 41 CFR § 60-1.31. Notice of the reinstatement shall be printed in the
26. Jurisdiction, including the authority to issue any additional orders or decrees necessary to effectuate the implementation of the provisions of this Consent Decree, is retained by the Office of Administrative Law Judges for a period of two years from the date this Consent Decree becomes final. If any motion is pending before the Office of Administrative Law Judges two years from the date this Consent Decree becomes final, jurisdiction shall continue beyond two years and until such time as the pending motion is finally resolved.
27. If at any time during the two years OFCCP believes that Defendant has violated any portion of this Consent Decree, Defendant will be promptly notified of that fact in writing. This notification will include a statement of the facts and circumstances relied upon in forming that belief. In addition, the notification will provide Defendant with 15 days to respond in writing except where OFCCP alleges that such a delay would result in irreparable injury.
28. Enforcement proceedings for violation of this Consent Decree may be initiated at any time after the 15-day period referred to in Paragraph 24 has elapsed (or sooner, if irreparable injury is alleged) upon filing with the Court a motion for an order of enforcement and/or sanctions. The issues in a hearing on the motion shall relate solely to the issues of the factual and legal claims made in the motion.
29. Liability for violation of this Consent Decree shall subject Defendant to sanctions set forth in the Executive Order and its implementing regulations, as well as other appropriate relief, including contract cancellation.
30. If an application or motion for an order of enforcement or clarification indicates by signature of counsel that the application or motion is unopposed by the plaintiff or Defendant, as appropriate, the application or motion may be presented to the Court without hearing and the proposed Order may be implemented immediately. If an application or motion is opposed by any party, the party in opposition shall file a written response within twenty (20) days of service. The Office of Administrative Law Judges may, if it deems it appropriate, schedule an oral hearing on the application or motion.
31. The Consent Decree herein set forth is hereby approved and shall constitute the final Administrative Order in this case.
32. It is so ordered adjudged and decreed.
Dated: December 19, 2002.
Dated: December 27, 2002
Attachments A & B are available from the U.S. Department of Labor's Wirtz Labor Library, 200 Constitution Avenue, NW., Room N2439, Washington, DC 20210. It is open to the public from 8:15 am to 4:45 pm. For further information call (202) 693-6613.
Envirocare of Utah, Inc. (Envirocare) operates a low-level waste (LLW) disposal facility in Clive, Utah. This facility is licensed by the State of Utah, an Agreement State. Envirocare is also licensed by Utah to dispose of mixed radioactive and hazardous wastes. In addition, Envirocare has a U.S. Nuclear Regulatory Commission (NRC) license to dispose of by product material as defined in 10 CFR part 40.
Section 70.3 of 10 CFR part 70 requires persons who own, acquire, deliver, receive, possess, use, or transfer special nuclear material (SNM) to obtain a license pursuant to the requirements in 10 CFR part 70. The licensing requirements in 10 CFR part 70 apply to persons in Agreement States possessing greater than critical mass quantities as defined in 10 CFR 150.11.
Pursuant to 10 CFR 70.14, “the Commission may * * * grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.”
On May 24, 1999, NRC transmitted an Order to Envirocare of Utah, Inc. The Order was published in the
Envirocare, in a letter dated July 3, and 29, 2002, proposes that NRC issue further exemptions by amending the 1999 Order as follows: (1) Include stabilization of liquid waste streams containing SNM; (2) include the thermal
A principal emphasis of 10 CFR part 70 is criticality safety and safeguarding SNM against diversion or sabotage. The staff considers that criticality safety can be maintained by relying on concentration limits, under the conditions specified. Safeguarding SNM against diversion or sabotage is not considered a significant issue because of the diffuse form of the SNM in waste meeting the conditions specified. These conditions are considered an acceptable alternative to the criticality definition provided in 10 CFR 150.11, thereby assuring the same level of protection. The staff reviewed safety aspects of the proposed action (
1. Concentrations of SNM in individual waste containers must not exceed the following values at time of receipt:
The measurement uncertainty values in column 3 above represent the maximum one-sigma uncertainty associated with the measurement of the concentration of the particular radionuclide.
The SNM must be homogeneously distributed throughout the waste. If the SNM is not homogeneously distributed, then the limiting concentrations must not be exceeded on average in any contiguous mass of 600 kilograms of waste.
2. Except as allowed by notes a, b, c, and d in Condition 1, waste must not contain “pure forms” of chemicals containing carbon, fluorine, magnesium, or bismuth in bulk quantities (
3. Except as allowed by notes c and d in Condition 1, waste accepted must not contain total quantities of beryllium, hydrogenous material enriched in deuterium, or graphite above one percent of the total weight of the waste. The presence of the above materials will be determined by the generator, based on process knowledge, physical observations, or testing.
4. Waste packages must not contain highly water soluble forms of uranium greater than 350 grams of uranium-235 or 200 grams of uranium-233. The sum of the fractions rule will apply for mixtures of U-233 and U-235. Highly soluble forms of uranium include, but are not limited to: uranium sulfate, uranyl acetate, uranyl chloride, uranyl formate, uranyl fluoride, uranyl nitrate, uranyl potassium carbonate, and uranyl sulfate. The presence of the above materials will be determined by the generator, based on process knowledge or testing.
5. Waste processing of waste containing SNM will be limited to stabilization (mixing waste with reagents), micro-encapsulation, macro-encapsulation using low-density and high-density polyethylene and thermal desorption.
When waste is processed using the thermal desorption process, Envirocare shall confirm the SNM concentration following processing and prior to returning the waste to temporary storage.
Liquid waste may be stabilized provided the SNM concentration does not exceed the SNM concentration limits in Condition 1. For containers of liquid waste with more than 600 kilograms of waste, the total activity (pCi) of SNM shall not exceed the SNM concentration in Condition 1 times 600 kilograms of waste. Waste containing free liquids and solids shall be mixed prior to treatment. Any solids shall be maintained in a suspended state during transfer and treatment.
6. Envirocare shall require generators to provide the following information for each waste stream:
1. Waste Description. The description must detail how the waste was generated, list the physical forms in the waste, and identify uranium chemical composition.
2. Waste Characterization Summary. The data must include a general description of how the waste was characterized (including the volumetric extent of the waste, and the number, location, type, and results of any analytical testing), the range of SNM concentrations, and the analytical results with error values used to develop the concentration ranges.
3. Uniformity Description. A description of the process by which the waste was generated showing that the spatial distribution of SNM must be uniform, or other information supporting spatial distribution.
4. Manifest Concentration. The generator must describe the methods to be used to determine the concentrations on the manifests. These methods could include direct measurement and the use of scaling factors. The generator must describe the uncertainty associated with sampling and testing used to obtain the manifest concentrations.
Envirocare shall review the above information and, if adequate, approve in writing this pre-shipment waste characterization and assurance plan before permitting the shipment of a waste stream. This will include statements that Envirocare has a written copy of all the information required above, that the characterization information is adequate and consistent with the waste description, and that the information is sufficient to demonstrate compliance with Conditions 1 through 4. Where generator process knowledge is used to demonstrate compliance with Conditions 1, 2, 3, or 4, Envirocare shall review this information and determine when testing is required to provide additional information in assuring compliance with the Conditions. Envirocare shall retain this information as required by the State of Utah to permit independent review.
Envirocare shall require generators of SNM waste to provide a written certification with each waste manifest that states that the SNM concentrations reported on the manifest do not exceed the limits in Condition 1, that the measurement uncertainty does not exceed the uncertainty value in Condition 1, and that the waste meets Conditions 2 through 4.
7. Sampling and radiological testing of waste containing SNM must be performed in accordance with the following: one sample for each of the first ten shipments of a waste stream; or one sample for each of the first 100 cubic yards of waste up to 1,000 cubic yards of a waste stream, and one sample for each additional 500 cubic yards of waste following the first ten shipments or the following the first 1,000 cubic yards of a waste stream. Sampling and radiological testing of debris waste containing SNM (that is exempted from sampling by the State of Utah) can be eliminated if the SNM concentration is lower than one tenth of the limits in Condition 1.
8. Envirocare shall notify the NRC, Region IV office within 24 hours if any of the above conditions are not met, including if a batch during a treatment process exceeds the SNM
9. Envirocare shall obtain NRC approval prior to changing any activities associated with the above conditions.
Based on the staff's evaluation, the Commission has determined, pursuant to 10 CFR 70.14, that the exemption of above activities at the Envirocare disposal facility is authorized by law, and will not endanger life or property or the common defense and security and is otherwise in the public interest. Accordingly, by this Order, the Commission grants an exemption subject to the stated conditions. The exemption will become effective after the State of Utah has incorporated the above conditions into Envirocare's radioactive materials license. In addition, at that time, the Order transmitted on May 24, 1999, will no longer be effective.
Pursuant to the requirements in 10 CFR part 51, the Commission has prepared an Environmental Assessment for the proposed action and has determined that the granting of this exemption will have no significant impacts on the quality of the human environment. This finding was noticed in the
The requests for the modifying the Order are available for inspection at NRC's Public Electronic Reading Room at
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”).
Notice of Application (the “Application”) for an order under Sections 12(d)(1)(J), 17(b) and 6(c), of the Investment Company Act of 1940, as amended (the “Act”), providing exemptions from the limitations of Sections 12(d)(1)(A) and (B) and 17(a) of the Act.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549; Applicants, c/o Great-West Life & Annuity Insurance Company, GW Capital Management, LLC, and Maxim Series Fund, Inc., 8515 East Orchard Road, Greenwood Village, Colorado 80111.
Patrick F. Scott, Attorney, or Lorna J. MacLeod, Branch Chief, Office of Insurance Products, Division of Investment Management, at (202) 942-0670.
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 ((202) 942-8090).
1. GWL&A is a stock life insurance company organized and existing under the laws of the State of Colorado. GWL&A was originally organized udner the laws of the State of Kansas as National Interment Association, and later changed its name to Ranger National Life Insurance Company, and then to Insuramerica Corporation until 1982 when it was changed to GWL&A. In 1990, GWL&A was re-domesticated as a Colorado corporation.
2. GWL&A is an indirect, wholly owned subsidiary of Great-West Lifeco Inc., an insurance holding company. Great-West Lifeco Inc. is a subsidiary of Power Financial Corporation, a financial services holding company based in Montreal, Canada. Power Corporation of Canada, a holding and management company, has voting control of Power Financial Corporation. Mr. Paul Desmarais, through a group of private holding companies, which he controls, has voting control of Power Corporation of Canada.
3. GWL&A is authorized to write annuities and life insurance in forty-nine states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam. As of December 31, 2001,
4. The Adviser is a limited liability company organized under the laws of the State of Colorado and a wholly owned subsidiary of GWL&A. The Adviser is registered with the Commission as an investment adviser under the Investment Advisers Act of 1940, as amended. The Adviser serves as an investment adviser to the Fund. In addition to the Fund, the Adviser serves as an investment adviser to the Orchard Series Fund, a Delaware business trust that is registered with the Commission under the Act as an open-end management investment company of the series type. The Adviser also serves as investment adviser to Great-West Variable Annuity Account A, a managed separate account of GWL&A. As of December 31, 2001, the Adviser's assets under management totaled $7.5 billion.
5. The Fund is a Maryland corporation registered with the Commission under the Act as an open-end management company of the series type. The Fund is managed under the direction of its board of directors, and is not required to hold annual meetings of shareholders. The Fund currently consists of 36 series. Each series represents a separate investment portfolio (each a “Portfolio”). Each Portfolio has its own investment objectives and policies. Shares of the Portfolios are offered for sale pursuant to a registration statement filed with the Commission under the Securities Act of 1933, as amended (the “1933 Act”). Shares of the Portfolios are offered for sale to insurance companies, including GWL&A and its affiliates, for the purpose of funding variable life insurance policies and variable annuity contracts issued by those insurance companies. Shares of the Portfolios are also offered for sale to qualified plans of the type described in Treasury Regulation 1-817.5(f)(3)(iii), as permitted under an order of the Commission granting to the Fund an exemption from certain provisions of the Act.
6. There are currently ten Profile Portfolios, each an existing Portfolio of the Fund. Each Profile Portfolio operates as a “fund of funds” pursuant to an order of the Commission permitting the Profile Portfolios to invest in other funds that are part of the same group of investment companies as the Profile Portfolios and in funds that are not part of the same group of investment companies in reliance on Section 12(d)(1)(F) of the Act. Each Profile Portfolio is designed to provide a different asset allocation program based on an investor's investment goals, risk tolerance, and investment horizon. The Profile Portfolios currently pursue their investment objectives by investing in other registered, open-end management companies that are part of the same group of investment companies as the Profile Portfolios (“Underlying Portfolios”). In addition, pursuant to an order of exemption issued in 1999 (the “1999 Order”), the Profile Portfolios may invest in funds that are not part of the same group of investment companies in accordance with section 12(d)(1)(F) of the Act (“Other Portfolios”).
7. The Profile Portfolios are designated into two groups, Profile I Portfolios and Profile II Portfolios, designed for two different distribution channels. Each group has one Portfolio with one of the following investment objectives: (i)
8. Subject to the supervision of the Board of Directors of the Fund, the Adviser uses a proprietary investment process for selecting Underlying Portfolios and Other Portfolios, which are placed in one of four equity asset classes (International, Small-Cap, Mid-Cap or Large-Cap) or one of two fixed income asset classes (Bond or Short-Term Bond). The assets of each Profile Portfolio are allocated among those asset classes within specified percentages of assets based on the Profile Portfolio's investment objective. Each Profile Portfolio is periodically “balanced” to maintain the appropriate asset allocation based on the Profile Portfolio's investment objective, policies and restrictions. Additional Profile Portfolios may be established in the future. Any Future Profile Portfolio that purchases a Fixed Contract as a portfolio investment will be subject to the terms and conditions of this Application.
9. GWL&A will issue the Fixed Contracts from its general account. As owner of a Fixed Contract, a Profile Portfolio will have the right to deposit funds from time to time with GWL&A. The deposits will accrue interest at a declared rate of interest, adjustable on a calendar quarter or other periodic basis, which is guaranteed to be no less than 3% on an annual basis. A Profile Portfolio or GWL&A will be able to terminate a Fixed Contract at any time upon seven-days' written notice to the other party. Upon termination, GWL&A will be obligated to pay the Profile Portfolio within seven days the amount of the Profile Portfolio's deposits, plus interest earned thereon.
10. The Profile Portfolios will pay no sales load of any kind in purchasing a Fixed Contract, and the guaranteed interest rate paid on the Fixed Contract will be at least as favorable as the guaranteed interest rate paid on other similar Fixed Contracts issued by GWL&A or other comparable companies. In addition, each Profile Portfolio will also be permitted to terminate a Fixed Contract at any time without the imposition of a market value adjustment or other charge or reduction.
11. The Profile Portfolios currently pursue their investment objectives by investing exclusively in Underlying Portfolios and Other Portfolios. At a special meeting of shareholders held on April 4, 2002, the Fund sought and obtained shareholders' approval of a proposal that would allow the Profile Portfolios to pursue their overall investment objectives by investing primarily in Underlying Portfolios, and also in liquid, short-term fixed income investments, the Fixed Contracts, and “government securities” as defined in Section 2(a)(16) of the Act. Applicants believe that they will be able to implement the asset allocation programs of the Profile Portfolios more efficiently and cost-effectively, and therefore at less expense to shareholders, if the Profile Portfolios are able, consistent with their investment objectives, to invest in Fixed Contracts and other short-term fixed income investments.
12. The registration statement for each Profile Portfolio will describe the nature and extent of the Profile Portfolio's permissible investments in Underlying Portfolios and Other Portfolios, subject
1. Section 12(d)(1)(A) of the Act provides that no registered investment company may acquire securities of another investment company if such securities represent more than 3% of the acquired company's outstanding voting stock, more than 5% of the acquiring company's total assets, or if such securities, together with the securities of any other acquired investment companies, represent more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies.
2. Section 12(d)(1)(G) of the Act provides that Section 12(d)(1) shall not apply to the securities of an acquired company purchased by an acquiring company if: (i) The acquiring company and the acquired company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to Section 22(b) or Section 22(c) of the Act by a securities association registered under Section 15A of the Securities Exchange Act of 1934, or the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end investment companies or registered unit investment trusts in reliance on Section 12(d)(1)(F) or (G). Section 12(d)(1)(G)(ii) defines the term “group of investment companies” to mean any two or more registered investment companies that hold themselves out to investors as related companies for purposes of investment and investor services. Because the Profile Portfolios will invest in shares of Other Portfolios, they cannot rely on the exemption from Sections 12(d)(1)(A) and (B) afforded by Section 12(d)(1)(G).
3. Section 12(d)(1)(F) of the Act provides that Section 12(d)(1) shall not apply to securities purchased by an acquiring company if the company and its affiliates own no more than 3% of an acquired company's securities, provided that the acquiring company does not impose a sales load of more than 1.5% on its shares. In addition, Section 12(d)(1)(F) provides that no acquired company is obligated to honor any acquiring company redemption request in excess of 1% of the acquired company's securities during any period of less than 30 days, and the acquiring company must vote its acquired company shares either in accordance with instructions from its shareholders or in the same proportion as all other shareholders of the acquired company.
4. Applicants may not rely on the exemption provided by Section 12(d)(1)(G) for several reasons. First, Section 12(d)(1)(G)(i)(I) requires that a fund of funds relying on subparagraph (G), as well as all underlying funds, be part of the same “group of investment companies” as defined in Section 12(d)(1)(G)(ii). Pursuant to the 1999 Order, the Profile Portfolios may invest not only in shares of Underlying Portfolios, but also, subject to the limitations described above, in shares of Other Portfolios. Second, Section 12(d)(1)(G)(i)(II) limits the types of investments which a fund of funds relying on subparagraph (G) may hold to securities of funds that are part of the same “group of investment companies” as the fund of funds, Government securities and short-term paper. The Profile Portfolios, however, propose to invest not only in the types of securities that are described in Section 12(d)(1)(G)(i)(II) and in Other Portfolios, but also in shares of the Fixed Contracts.
5. Section 12(d)(1)(J) of the Act provides that the Commission may exempt persons or transactions from any provision of Section 12(d)(1) if and to the extent such exemption is consistent with the public interest and the protection of investors.
6. Applicants request relief under Section 12(d)(1)(J) of the Act from the limitations of Sections 12(d)(1)(A) and (B) to permit the Profile Portfolios to invest in the Underlying Portfolios and the Fixed Contract. Applicants are not requesting relief from any provision of Section 12(d)(1)(F), upon which the Profile Portfolios rely to invest in Other Portfolios.
7. Applicants state that the Profile Portfolios' investments in the Underlying Portfolios do not raise the concerns about undue influence that Sections 12(d)(1)(A) and (B) were designed to address. Applicants further state that the proposed conditions would appropriately address any concerns about the layering of sales charges or other fees.
8. The Profile Portfolios will invest in Other Portfolios only within the limits of Section 12(d)(1)(F).
9. Section 17(a)(1) prohibits any affiliated person of a registered investment company, or an affiliated person of such affiliated person, from selling any security or other property to such registered company. Section 17(a)(2) of the Act prohibits any of the persons described in subsection (a)(1) from purchasing any security or other property from such registered investment company.
10. Section 2(a)(3) of the Act defines “affiliated person” of another person in pertinent part as (i) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (ii) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the other person; (iii) any person directly or indirectly controlling, controlled by, or under common control with, such other person; or (iv) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof.
11. The Applicants submit that the Adviser may be deemed to be an affiliated person of the Fund because the Adviser is an investment adviser of the Fund and GWL&A may be deemed to be an affiliated person of the Adviser because GWL&A owns more than five percent of the outstanding voting securities of the Adviser, a wholly owned subsidiary of GWL&A. Therefore, any sale by GWL&A of a Fixed Contract to the Profile Portfolios could be deemed, absent relief, to be a principal transaction between the Fund and an affiliated person of an affiliated person
12. Section 17(b) of the Act provides that, notwithstanding Section 17(a), a person may file with the Commission an application for an order exempting a proposed transaction of the applicant from one or more provisions of that subsection. The Commission shall grant such application and issue such order of exemption if evidence establishes that: (i) The terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned; (ii) the proposed transaction is consistent with the policy of each registered investment company concerned as recited in its registration statement and reports filed under the Act; and (iii) the proposed transaction is consistent with the general purposes of the Act.
13. Section 6(c) of the Act provides that the Commission, by rules and regulations upon its own motion, or by order upon application, may conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provisions of the Act or of any rule or regulation thereunder. The Commission shall grant such exemption 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 Act.
14. Applicants seek an order of the Commission under Section 17(b) and Section 6(c) of the Act, granting an exemption from the prohibitions of Section 17(a), that would permit GWL&A to sell, and any Profile Portfolio to purchase, from time to time, one or more Fixed Contracts in a manner consistent with the applicable Profile Portfolio's investment objective, policies and restrictions. Applicants are seeking relief pursuant to Section 6(c) in addition to Section 17(b) because Section 17(b) could be interpreted as giving the Commission power to exempt only a single transaction from Section 17(a), as opposed to an ongoing series of future transactions. Applicants contend that relief is appropriate under Section 17(b) because the proposed arrangement meets the requirements of that section, for the reasons set forth herein. Applicants also contend that relief under Section 6(c) is appropriate for the same reasons.
15. Applicants assert that the terms of the proposed arrangement are fair and reasonable and do not involve overreaching. The proposed arrangement is not susceptible to the kinds of serious harms that could result from a violation of Section 17(a). For example, Section 17(a) was intended to guard against the possibility that “an unscrupulous investment company might “dump” undesirable securities on a registered investment company or transfer desirable securities from a registered investment company to another more favored advisory client in the complex.” Therefore, the Applicants contend that, under the facts presented in this Application, there is no likelihood of any overreaching in this regard because the Fixed Contracts will not be transferable. A Profile Portfolio will only invest in a Fixed Contract in a manner consistent with its investment policies and restrictions, and will not be permitted to transfer its ownership of a Fixed Contract to any other Profile Portfolio or other person. Rather, each Profile Portfolio will be permitted to remove its assets from a Fixed Contract at any time without imposition of any market value adjustment or other charge or deduction.
16. Applicants further assert that Section 17(a) was also designed to guard against the possibility that an affiliated transaction might be effected at a price that is disadvantageous to the registered investment company. Under the proposed arrangement, however, the Applicants emphasize that the Profile Portfolios will pay no type of sales load in purchasing a Fixed Contract, and the guaranteed rate paid on the Fixed Contract will be at least as favorable as the guaranteed rate paid on other similar Fixed Contracts issued by GWL&A or other comparable companies, leaving no likelihood of overreaching by an affiliated person.
17. Applicants assert that subject to any necessary shareholder approvals, the proposed transaction will be consistent with the investment objectives and policies of each Profile Portfolio. The assets of each Profile Portfolio will be invested in the Fixed Contracts in accordance with the investment policies and restrictions of the applicable Profile Portfolio, as set forth in its then-current registration statement.
18. Applicants assert that the proposed arrangement is consistent with the general purposes of the Act. Section 17(a) is intended to prohibit affiliated persons in a position of influence or control over an investment company from furthering their own interest by selling securities or property that they own to an investment company at an inflated price, purchasing securities or property from an investment company at less than its fair value, or selling or purchasing securities or property on terms that involve other types of self-dealing or overreaching by the affiliated person. For the reasons discussed above, Applicants contend that the proposed arrangement does not involve any such overreaching or self-dealing.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. All Underlying Portfolios will be part of the same “group of investment companies,” as defined in Section 12(d)(1)(G)(ii) of the Act, as the Profile Portfolios.
2. No Underlying Portfolio will acquire securities of any other investment company in excess of the limits contained in Section 12(d)(1)(A) of the Act, except to the extent that such Underlying Portfolio (a) receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading Section 12(d)(1) of the Act); or (b) acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Portfolio to (i) acquire securities of one or more affiliated investment companies for short-term cash management purposes; or (ii) engage in interfund borrowing and lending transactions. No Profile Portfolio will acquire securities of an Other Portfolio if, at the time of acquisition, the Other Portfolio owns securities of any other investment company in excess of the limits contained in Section 12(d)(1)(A) of the Act.
3. No Profile Portfolio will impose a front-end sales charge in excess of one and one-half percent. Furthermore, any sales charges, distribution-related fees and service fees relating to the shares of the Profile Portfolios, when aggregated with any sales charges, distribution-related fees and service fees paid by the Profile Portfolios relating to their
4. Before approving any advisory contract under Section 15 of the Act, the Board, including a majority of the Directors who are not “interested persons,” as defined in Section 2(a)(19), will find that the advisory fees charged under the contract are based on services provided that are in addition to, rather than duplicative of, services provided under any Underlying Portfolio or Other Portfolio advisory contract. This finding, and the basis upon which the finding was made, will be recorded fully in the minute books of the Fund.
For the reasons stated herein, the Applicants submit that the terms of the contemplated transaction meet all of the requirements of Sections 12(d)(1)(J), 17(b) and 6(c) of the Act. Pursuant to Section 12(d)(1)(J), exemption of this transaction is consistent with the public interest and the protection of investors. Pursuant to Section 17(b), the terms of the proposed transaction are reasonable and fair and do not involve overreaching, the proposed transaction is consistent with the investment objectives and policies of each Profile Portfolio, and the proposed transaction is consistent with the general purposes of the Act. Similarly, under Section 6(c) of 3 the Act, Applicants submit that their request for an order 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. Furthermore, Applicants seek relief relating to Future Profile Portfolios and Future Fixed Contracts in order to avoid incurring the expense and effort of drafting, and to relieve the Commission from the corresponding burden of reviewing, duplicative exemptive applications. Applicants submit that an order should, therefore, be granted.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
In connection with the launch of the options intermarket linkage (“Linkage”), the PCX proposes to amend its Schedule of Fees and Charges for Exchange Services in order to clarify that unless otherwise provided, executions resulting from Linkage orders will be subject to the same billing treatment as current executions.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The PCX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On July 28, 2000, the Commission approved a national market system plan for the purpose of creating and operating an intermarket options market linkage (“Linkage Plan” or “Plan”)
In connection with the launch of the Linkage, the Exhange seeks to clarify its Schedule of Fees and Charges for Exchange Services in order to add a provision stating that executions resulting from Linkage orders will be subject to the same billing treatment as current executions. Accordingly, executions arising from either a Principal Acting as Agent (“P/A”) Linkage order, or a Principal Linkage Order that are routed to the Exchange from other market centers will be subject to the same trade related charges assessed on market maker executions originating from the PCX. The proposal specifies that no fees will apply to Satisfaction Orders, which result after a trade-through.
The Exchange does not seek to make any other changes to its Schedule of Fees and Charges for Exchange Services.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
The Exchange has designated the proposed rule change as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-2003-05 and should be submitted by March 6, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
We are granting the application by Columbia Body Manufacturing Co. (“Columbia”) of Clackamas, Oregon, for an exemption of three years from Motor Vehicle Safety Standard No. 224,
We published a notice of receipt of the application on December 4, 2002, asking for comments from the public (67 FR 72266).
Columbia manufactures and sells a dump body type of trailer (the “trailer”) requiring that the body's front end be lifted in order to discharge the load out of the back. The load is asphalt, used in road construction. This design of trailer generally has an overhang at the rear for funneling asphalt material into a paving machine; consequently, the trailer needs 16 to 18 inches of unobstructed clearance behind its rear wheels to hook up with the paving machine and dump its load. Standard No. 224 specifies that the rearmost surface of an underride guard to be located not more than 305mm (12 inches) from the “rear extremity” of the trailer.
Standard No. 224 requires, effective January 26, 1998, that all trailers with a GVWR of 4536 kg or more, including Columbia's, be fitted with a rear impact guard that conforms to Standard No. 223
Columbia is a small volume manufacturer. Its average production over the past three years has been 12 trailers a year, “none of which were asphalt paving trailers.” Normally, it would produce 10 to 40 trailers annually. The company employs 30 people full time and has annual sales of $4-5,000,000. Columbia “has had requests to quote on 14” trailers and “14 truck mounted dump boxes, bringing the total sales figure to around $750,000.00.” Absent an exemption, Columbia “will be unable to quote these units substantially decreasing our projected sales figures.” Its application reflected that its cumulative net loss for the fiscal years 1998, 1999, and 2000 was $99,764. We asked Columbia to provide data on its fiscal year ending December 31, 2001, while the application was pending, and the company replied that its net loss for 2001 was $755,722.19.
Columbia asserted that it has sought manufacturers of underride guards since 1998. As a result of its search,
We only found one English company, Quinton-Hazell that is no longer making either type, telescoping or hydraulic. Their research found that because of the expense of these two types of guards they would not be marketable. We have also investigated the work done by SRAC, located in Los Angeles, CA in the hopes that we might be able to use or modify the guards they designed for the trailers we wish to build. Neither was suitable because retracting the bumper and finding a way to keep the build up of asphalt off of any moving parts was not possible.
The company stated that it intended to continue to try and resolve the problems through continued research.
Columbia argued that an exemption would be in the public interest and consistent with traffic safety objectives because, “our type of trailer helps state and municipal governments to produce the safe highways that are needed.” It contemplates building less than 50 units a year while an exemption is in effect. According to Columbia, the amount of time actually spent on the road is limited because of the need to move the asphalt to the job site before it hardens.
We received one comment in response to our notice of December 4, 2002. The National Truck Equipment Association (NTEA) recommended granting the petition, commenting that “the type of trailer for which Columbia Body is representing a temporary exemption is vital to the proper construction and maintenance of the
Columbia's present average production of only 12 trailers a year has been insufficient to generate a net profit for the company, and its net loss of over $750,000 in 2001 reflects a severe downturn in the company's financial fortunes. It anticipates that it could realize $750,000 in sales of 14 trailers of the type for which it has requested exemption, and for which potential customers have requested a price quotation. The company has investigated, unsuccessfully, means of compliance with Standard No. 224. There seems to be agreement, as indicated by NTEA's comment, that there is no feasible way for these trailers to be brought into compliance without compromising the function for which they were designed.
The public interest is served by allowing the production of these special-purpose road construction trailers, balanced against the limited number in which they are produced and the relatively limited time that they spend in transit on the public roads from one job site to another. Further, there is no substantial difference between Columbia Body's petition and other hardship applications that we have granted in the past (
Accordingly, for the reasons set above, we hereby find that compliance with Standard No. 224 would cause substantial economic hardship to Columbia Body, which has tried in good faith to comply with Standard No. 224, and we further find that an exemption would be in the public interest and consistent with the objectives of traffic safety. We accordingly grant NHTSA Temporary Exemption No. 2003-1 to Columbia Body Manufacturing Co. for its dump body type trailer only, from 49 CFR 571.224 Standard No. 224, Rear Impact Protection, expiring February 1, 2006.
49 U.S.C. 30113; delegations of authority at 49 CFR 1.50 and 501.4.
Customs Service, Department of the Treasury.
Notice of final determination.
This document provides notice that Customs has issued a final determination concerning the country of origin of certain bowling pinsetters which are installed at military facilities in the United States and which will be offered to the United States Government. The final determination found that based upon the facts presented, the country of origin of the bowling pinsetters is the United States.
The final determination was issued on February 7, 2003. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination within 30 days of February 13, 2003.
Karen S. Greene, Special Classification and Marking Branch, Office of Regulations and Rulings (202-572-8838).
Notice is hereby given that on February 7, 2003, pursuant to subpart B of part 177, Customs Regulations (19 CFR part 177, subpart B), Customs issued a final determination concerning the country of origin of certain bowling pinsetters offered to the United States Government. The U.S. Customs ruling number is HQ 562583. This final determination was issued at the request of Brunswick Corporation, under procedures set forth at 19 CFR part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). The final determination concluded that, based upon the facts presented, the assembly in the United States of numerous foreign and U.S. subassemblies and parts to create the pinsetters and the installation of the pinsetters in facilities in the United States result in a substantial transformation of the foreign subassemblies. Accordingly, the country of origin of the bowling pinsetters is the United States.
Section 177.29, Customs Regulations (19 CFR 177.29), provides that notice of final determinations shall be published in the
Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination within 30 days of (date of publication in the
Attachment.
Dear Mr. Belanger: This is in response to your letters dated November 18, 2002, and January 17, 2003, on behalf of Brunswick Corporation, requesting a final determination of origin pursuant to 19 CFR 177.22(c) regarding U.S. Government procurement of certain bowling pinsetters assembled in the United States.
Brunswick Corporation is the importer of the components of the bowling pinsetters and therefore, is a party-in-interest as defined in 19 CFR 177.22(d).
This case involves the GS-X model of bowling pinsetters, which are automated machines designed to return bowling balls, pick up standing bowling pins and clear the deck at bowling facilities. The pinsetters are sold to military installations and other U.S. Government entities. This request involves a contract for installation of the GS-X pinsetters at bowling alleys located inside the United States. Brunswick anticipates that it will enter into contracts in the future for facilities at U.S. military bases in foreign countries as well as in the United States.
The GS-X pinsetter is typically sold in sets of two mechanical subassemblies and one electrical controller assembly plus other parts, although Brunswick may occasionally sell a single mechanical assembly with an attached electrical controller. The electrical assembly is manufactured in the United States by Controls, Inc., an unrelated company.
The mechanical assemblies are comprised of seven subassemblies consisting of thousands of components from numerous countries. The mechanical assemblies consist of three major parts: (1) The central block; (2) the “six-pack”; and (3) the ball accelerator. The central block is a large steel box that contains four subassemblies: the sweep wagon subassembly; the setting table subassembly; the drive frame sub-assembly; and the distributor subassemblies. Included in the drive frame subassembly are three
The six-pack assembly contains the pin elevator subassembly with two pin elevators and the ball pit subassembly with two ball cushions and two rollers. The pin elevator subassembly receives the pins from the ball pit subassembly and raises them into the distributor subassembly. The ball pit subassembly handles the initial impact of the pins and ball and cycles them through the pinsetter to get ready for the next ball.
The ball accelerator includes the ball accelerator motor. The ball accelerator subassembly returns the ball to the bowler.
In addition to the above-described mechanical subassemblies, the complete pinsetter, as installed, contains the U.S.-origin electrical controller assembly as well as other U.S. parts.
In foreign country X, Brunswick constructs the large steel frame that houses the central block. Numerous other parts from various countries are also shipped to foreign country X for assembly of the seven principal subassemblies of the mechanical assembly. Brunswick then attaches the distributor subassembly to the steel casing of the central block. The six remaining subassemblies and the central block casing are then shipped to a manufacturing facility in Muskegon, Michigan.
In the United States (Muskegon, Michigan), Brunswick integrates the sweep wagon and setting table subassemblies, as well as the three motors of the drive frame subassembly, into the central block.
The integration of the sweep wagon mechanical subassembly involves installing it into the central block in a front orientation at a 45 degree diagonal position, with the right end being placed into the right sweep track first. Brunswick then adjusts the rollers to a minimum clearance of five millimeters on each side between the roller screw, taking care to ensure that adequate clearance is maintained during the entire length of travel by manually running the wagon forward and aft. Brunswick then attaches the sweep wagon to the sweep crank arms with nylon bushings, large flat shim washers and retaining rings. This procedure is then repeated on the opposite side. Finally, Brunswick adjusts the clearance to an average of ten millimeters between the gutter adapter and the flat gutter, with slots and screws provided in both adapters. This final adjustment must be made at the midpoint of wagon travel to allow the necessary clearance at extreme front and rear positions.
Brunswick integrates the setting table mechanical subassembly into the central block. This process involves the initial placement of spacers onto the corners of the test stand deck. The assembly team then delivers the setting table to the test stand deck and sets it onto the spacers, ensuring that the spacers are clear of the spotting tong attachment screws that protrude from the underside of the setting table. Brunswick then manually turns the setting table drive pulley on the left side of the drive frame to drop the left and right deck racks to the lowest point. The deck rack teeth are aligned to the drive gear teeth and plumb. Brunswick removes the hex nuts and lock washers from the setting table studs and installs the feet of the deck rack onto studs. Brunswick then rotates the bottom hex nuts until the first interference is detected against the deck rack feet. The top hardware is reinstalled and tightened. Brunswick manually turns the setting table drive pulley in the opposite direction to raise the setting table slightly so that the spacers can be removed. The setting table is re-lowered to the lowest position. Brunswick verifies that a 5 to 15 millimeter gap exists on all points between the setting table frame and the deck of the test stand. If proper clearance is not correct, or if the table frame is not level, appropriate adjustments are made. The top sections are then assembled for the telescoping square drive shafts for each of the setting table pivot shafts, and the spotting tongs with hardware are provided. Finally, Brunswick assembles and routes the setting table function switch and solenoid cable into the panduit channel at the front of the machine.
Brunswick integrates the distributor motor of the drive frame subassembly into the central block. This involves the assembly and placement of the motor pulley to the motor shaft. A 60 Hz sheave must be facing away from the motor assembly. The motor and mount assembly must first be placed into the forward motor location in the left drive frame and then be assembled into the frame with bushing, spacer and hitch pins. Brunswick then assembles the tension spring from the mount to the frame. Brunswick assembles the V-belt to the motor pulley and drive pulley.
The sweep motor of the drive frame subassembly is integrated into the central block. This involves a process identical to the assembly of the distributor motor described above except that the assembly is located in the middle motor location of the drive frame.
The setting table step motor of the drive frame subassembly is integrated into the central block. This involves a process identical to the assembly of the distributor and sweep motors described above except that the assembly is located in the rear motor location of the drive frame.
After assembly of the three subassemblies into the central block, the fully assembled central block is quality tested at the Michigan facility. Each central block undergoes 400 cycles of testing, which can take several hours.
Counsel states that the processing performed at the Michigan facility requires complex and detail-oriented labor and precise calibrations performed by highly skilled employees.
At the bowling facility, the ball pit and pin elevator subassemblies are joined to create the six-pack component of the mechanical assembly. The central block, six-pack, and ball accelerator are then assembled to form the mechanical assemblies, after which the U.S.-made electrical controller assembly and other miscellaneous parts are integrated into the mechanical assemblies to form the GS-X pinsetter.
The GS-X pinsetter is installed into the bowling facility. This process takes approximately 20 hours of skilled labor per pinsetter, using tools and large moving equipment specially constructed for that particular installation. The project manager and field foreman manage the quality-assurance procedures and certify that each pinsetter is installed and functioning according to Brunswick specifications, which counsel states surpass those of the American Bowling Congress.
Whether the bowling pinsetters are substantially transformed in the United States so that they become products of the United States for U.S. Government procurement purposes.
Under subpart B of part 177, 19 CFR 177.21
Under the rule of origin set forth under 19 U.S.C. 2518(4)(B): “An article is a product of a country or instrumentality only if (i) it is wholly the growth, product, or manufacture of that country or instrumentality, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.”
If the manufacturing or combining process is a minor one which leaves the identity of the imported article intact, a substantial transformation has not occurred.
Customs ruled in Headquarters Ruling Letter (“HRL”) 561734, dated March 22, 2001, 66 FR 17222, that Sharp multifunctional machines (printer, copier and fax machine) assembled in Japan were a product of Japan for procurement purposes. The machines were comprised of 227 parts (108 parts sourced from Japan, 92 parts from
In HRL 560433, dated September 19, 1997, Customs held that the assembly in the United Kingdom of audio/video stereo receivers from 16 subassemblies and other components originating from various countries resulted in a substantial transformation. Customs noted in that ruling that numerous skilled workers assembled the stereo receivers from numerous components and hundreds of raw materials. In HRL 734045, dated October 8, 1991, Customs held that foreign subassemblies and other components imported into Hong Kong which were processed and assembled with other Hong Kong components to make laptop and notebook personal computers were substantially transformed as a result of the Hong Kong operations.
In HRL 558919, dated March 20, 1995, Customs held that an extruder subassembly manufactured in England was substantially transformed in the United States when it was wired and combined with U.S. components (motor, electrical controls and extruder screw) to create a vertical extruder. In HRL 559887, dated October 3, 1996, Customs held that swivel joints and torsion spring balance assemblies from India were substantially transformed when assembled in the U.S. with U.S.-origin components to produce top and bottom loading/unloading arms (petroleum handling equipment). Therefore, the loading arms were considered products of the United States. Customs recently ruled in HRL 562502, dated November 8, 2002, that a Chinese-origin transfer feeder unit and Chinese-origin outer covers were substantially transformed when assembled in Japan with a Japanese-origin laser scanner unit to produce a printer engine. “When taken together, the manufacture of the laser scanner unit and the final assembly of the printer engine is complex and meaningful.” Therefore, for procurement purposes, the printer engines were considered to be products of Japan.
In this case, the complex assembly of the central block from three subassemblies, including the incorporation of three motors from the drive frame subassembly into the central block, combined with the subsequent assembly of the central block, six-pack, ball accelerator, and U.S.-origin electrical controller assembly and the installation of the pinsetters in bowling facilities in the United States, when taken together, result in a substantial transformation of the foreign-origin subassemblies involved. The processing in the United States requires precise calibration and involves the assembly of numerous parts and subassemblies and highly skilled labor. The name, character and use of the foreign-origin subassemblies and parts change as a result of the processing and other assembly operations performed in the United States. Therefore, pursuant to 19 U.S.C. 2518(4)(B), and 19 CFR 177.22(a), we find that the country of origin of the bowling pinsetters is the United States.
Based on the facts presented, the components imported into the United States that are used in the manufacture of the bowling pinsetters involved in this case are substantially transformed in the United States. Accordingly, pursuant to 19 U.S.C. 2518(4)(B), and 19 CFR 177.22(a), the country of origin of the bowling pinsetters is the United States.
Notice of this final determination will be given in the
Any party-at-interest may, within 30 days after publication of the
Sincerely,
In rule document 03-1771 beginning on page 4836 in the issue of Thursday, January 30, 2003, make the following correction:
On page 4841, in § 81.326, in the table, in the first column, under the heading “St. Louis Area”, in the fourth entry, “St. Louis County” should read, “St. Louis”.
In proposed rule document 03-1946 beginning on page 4406 in the issue of Wednesday, January 29, 2003, make the following corrections:
1. On page 4416, in §55.11, in the third column, in the sixth line from the bottom, after “perchlorate,” add “sulphur”.
2. On page 4419, in §55.207, in the third column, in paragraph (c)(8), in the third line, “6-inches” should read, “6
3. On page 4420, in §55.208, in the third column, in paragraph (d)(18), in the seventh line, “ “-inch ” should read, “