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Nuclear Regulatory Commission.
Final rule; correcting amendments.
This document contains a correction to an amendment included with the final regulations establishing licensing criteria for the decommissioning trust provisions for nuclear power plants that the Nuclear Regulatory Commission published in the
December 24, 2003.
Brian J. Richter, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-1978; e-mail
The final regulations that are the subject of this correction become effective on December 24, 2003. The final rule, published December 24, 2002 (67 FR 78332), amended parts 50 and 72 of 10 CFR Chapter 1. One of the amendments included in the final rule was to § 50.75(e). However, as a result of that amendment, paragraphs (e)(1)(ii)(A) and (e)(1)(ii)(B) would be inadvertently removed from the NRC's regulations at § 50.75(e) when the December 24, 2002, final rule becomes effective. The NRC does not intend to remove these paragraphs.
As published, the final regulations erroneously omit two paragraphs of § 50.75(e) that address the requirements for an external sinking fund sufficient to fund decommissioning costs for a nuclear power facility at the time permanent termination of operations is expected. This correction restores those paragraphs to 10 CFR Part 50.
Antitrust, Classified information, Criminal penalties, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, and Reporting and recordkeeping requirements.
1. The authority citation for Part 50 continues to read as follows:
Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80—50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
2. In § 50.75, revise paragraph (e)(1)(ii) to read as follows:
(e) * * *
(1) * * *
(ii) External sinking fund. An external sinking fund is a fund established and maintained by setting funds aside periodically in an account segregated from licensee assets and outside the administrative control of the licensee and its subsidiaries or affiliates in which the total amount of funds would be sufficient to pay decommissioning costs at the time permanent termination of operations is expected. An external sinking fund may be in the form of a trust, escrow account, or Government fund, with payment by certificate of deposit, deposit of Government or other securities, or other method acceptable to the NRC. This trust, escrow account, Government fund, or other type of agreement shall be established in writing and maintained at all times in the United States with an entity that is an appropriate State or Federal government agency, or an entity whose operations in which the external linking fund is managed are regulated and examined by a Federal or State agency. A licensee that has collected funds based on a site-specific estimate under § 50.75(b)(1) of this section may take credit for projected earnings on the external sinking funds using up to a 2 percent annual real rate of return from the time of future funds' collection through the decommissioning period, provided that the site-specific estimate is based on a period of safe storage that is specifically described in the estimate. This includes the periods of safe storage, final dismantlement, and license termination. A licensee that has collected funds based on the formulas in § 50.75(c) of this section may take credit for collected earnings on the decommissioning funds using up to 2 percent annual real rate of return up to the time of permanent termination. A licensee may use a credit of greater than 2 percent if the licensee's rate-setting authority has specifically authorized a higher rate. However, licensees certifying only to the formula amounts (
(A) By a licensee that recovers, either directly or indirectly, the estimated total cost of decommissioning through rates established by “cost of service” or similar ratemaking regulation. Public utility districts, municipalities, rural electric cooperatives, and State and Federal agencies, including associations of any of the foregoing, that establish their own rates and are able to recover their cost of service allocable to decommissioning, are assumed to meet this condition.
(B) By a licensee whose source of revenues for its external sinking fund is a “non-bypassable charge,” the total amount of which will provide funds estimated to be needed for decommissioning pursuant to §§ 50.75(c), 50.75(f), or 50.82 of this part.
For the Nuclear Regulatory Commission.
Federal Election Commission.
Final rules and transmittal of regulations to Congress.
The Commission is amending its administrative fines regulations to reduce the civil money penalties for political committees with less than $50,000 in financial activity in a reporting period that file reports late or that do not file them at all. The revised rules create two additional levels-of-activity brackets for such committees to make further distinctions in the amount of the civil money penalty assessed. The amendments also change the method for calculating the “level of activity” on which civil money penalties are based for unauthorized committees by excluding certain non-Federal activity from the calculation. Additionally, these amended rules: clarify how late filers and non-filers will be notified of reason-to-believe findings, final determinations and other actions; and clarify the factors that will not be considered “extraordinary circumstances” when findings or penalties are challenged. Further information is provided in the
April 16, 2003.
Ms. Mai T. Dinh, Acting Assistant General Counsel, or Ms. Dawn M. Odrowski, Attorney, at 999 E Street, NW., Washington, DC., 20463, (202) 694-1650 or (800) 424-9530.
The Commission is issuing final rules to make certain revisions to its administrative fines program. The program enables the Commission to adjudicate reporting violations of section 434(a) of the Federal Election Campaign Act of 1971, as amended (“FECA” or “Act”), 2 U.S.C. 431
Under the Administrative Procedures Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate and publish them in the
The Commission initiated this rulemaking by publishing a Notice of Proposed Rulemaking (“NPRM”) on April 25, 2002 in which it sought comment on proposed rules amending the current administrative fines regulations based on its experience with the program. 67 FR 20461 (April 25, 2002). The NPRM sought comment on proposed amendments to lower the civil money penalties for all late- and non-filers, and to clarify how it notifies respondents in the administrative fines program of reason-to-believe findings and final determinations. The NPRM also sought comment generally on: (1) Whether to limit the scope of the civil money penalty reduction to those committees with less than $50,000 in financial activity in a reporting period, or alternatively, to limit reduction to the fine schedule applicable to late-or non-filed non-election sensitive reports; (2) Whether to clarify that certain circumstances do not constitute “extraordinary circumstances” for purposes of challenging a reason-to-believe finding; and (3) Whether to revise the method of calculating the “level of activity” on which civil money penalties are based to exclude certain non-Federal activity.
The comment period closed on May 28, 2002. Comments were received from FEC Watch and from the law firm of Sandler, Reiff and Young.
11 CFR 111.35(b) sets forth the requirements for written responses that a respondent may choose to make to challenge a reason-to-believe finding or a proposed civil money penalty. It contains specific circumstances that the Commission will consider in determining whether to levy a civil money penalty, including the existence of “extraordinary circumstances” that were beyond the respondents' control, that continued for at least 48 hours, and that prevented the timely filing of a report. Paragraph (b)(4) provides four broad examples of circumstances that the Commission will not consider to be “extraordinary.” Respondents have raised a number of other defenses that the Commission has determined are not “extraordinary circumstances.”
The NPRM sought comment as to whether 11 CFR 111.35 should be revised to state more specifically the kinds of circumstances that the Commission will not accept as an
In the final rules that follow, the Commission adds to section 111.35(b)(4) two more examples of circumstances that are not considered extraordinary. Specifically, paragraph (b)(4)(iii) of 11 CFR 111.35 is being amended to include, in addition to staff illness, staff “inexperience” and “unavailability.” The revision also clarifies that the term “staff” includes the treasurer. The Commission strongly encourages political committees to name an assistant treasurer so that their financial activities will not be disrupted, thus avoiding violating the reporting requirements when their treasurer is unavailable.
The NPRM proposed amendments to the civil money penalty schedule for election sensitive and non-election sensitive reports that would have lowered civil money penalties for all late- and non-filed reports. The Commission was concerned that, based on its experience with the administrative fines program, the published fines schedules for political committees with lower levels of financial activity, generally below $50,000 in a reporting period, may have been too high. Committees in this category are often those of candidates who have lost an election or who have withdrawn from the race and fail to continue filing the required disclosure reports until they are eligible to terminate. Fines for these committees can be relatively high due to their failure to file because the civil money penalties are calculated using the estimated level of activity from previously filed reports. Therefore, the fines may create a hardship for some authorized committees and their treasurers since many unsuccessful campaigns lack fundraising ability and their treasurers, who are sometimes volunteers, are legally liable for the fines.
The Commission was also concerned that the civil money penalty schedules at all levels of activity may result in fines that are substantial compared with civil penalties for other types of FECA violations that the Commission approves in conciliation agreements reached through the traditional enforcement process.
The Commission sought comment in the NPRM on the impact of lowering civil money penalties across the board, specifically: Whether the proposed reductions would still provide an incentive for committees to file timely their reports and not become merely a cost of doing business, and whether reductions would affect committees' decisions to challenge reason-to-believe findings and proposed civil money penalties. The Commission specifically sought comment on two alternatives to lowering the civil money penalties across the board: Lowering the penalties only for committees with levels of financial activity below $50,000 per report, or lowering the penalties only for non-election sensitive reports.
One of the commenters generally agreed with more lenient treatment for committees with minimal financial activity during a reporting period because such committees are often “defunct, moribund or winding down and are often staffed by volunteer treasurers who are not able to deal with complex federal election laws and regulations.” This commenter did not specifically address reducing fines overall but rather urged a change in calculating the “level of activity” on which the administrative fines are based. (See below).
The other commenter generally disagreed with lowering the civil money penalties “until an adequate administrative record can be established.” The commenter rejected as a justification for lowering fines across the board the concern that civil penalties in the administrative fines program were high relative to civil penalties approved in conciliation agreements for other types of FECA violations. The commenter argued that this disparity could also be interpreted as evidence that civil penalties in conciliation agreements are too low. The commenter also suggested that the recidivist factor could be lowered if the Commission was concerned it might contribute to disproportionately high civil penalties. This commenter further urged that the standard applied in adjusting the fines should be whether the fines are higher than necessary to serve as incentive to file reports timely. The commenter referred to an April 25, 2002, Commission press release that credited the administrative fines program with reducing the percentage of late filers from 24% to 11% between 1998 and 2000. The commenter noted that, although 11% non-compliance is still too high, these gains in disclosure should not be undermined without substantial justification. Finally, the commenter urged that if the Commission reduced the fines, it should selectively target the reduction at committees with lower levels of financial activity where, according to the NPRM, the most undesirable results have occurred.
Neither commenter opined on whether lowering the fines would affect committees' decisions to challenge reason-to-believe findings or proposed civil money penalties.
Based on its continued experience with the administrative fines program, the Commission has decided to target the reductions in the civil money penalty schedules to committees with levels of financial activity below $50,000 per report. As of January 31, 2003, 60% of the political committees against whom the Commission made reason-to-believe findings and proposed a civil money penalty had under $50,000 of financial activity on the late-or non-filed report. As noted in the NPRM, many committees in this category are winding down, or are established by candidates who have lost, or have withdrawn from, an election. The concern that a reduction in fines will serve as a disincentive to file timely future reports is not as relevant for such committees. Moreover, the fact that these committees still face a fine continues to provide an incentive for them to file a final report.
Although the Commission has decided not to reduce civil money penalties “across the board,” it notes that it has revised its method of calculating the “level of activity” to exclude receipts and disbursements for unauthorized committees that report a non-Federal share of allocated Federal/non-Federal activity. This change, discussed below, will effectively lower “across the board” penalties faced by certain unauthorized committees that allocate expenses between Federal and non-Federal accounts. This will result in penalties that are more reflective of a committee's level of participation in Federal elections.
Accordingly, the final rules at amended 11 CFR 111.43 include two sets of civil money penalty schedules. Paragraphs (a)(1) and (b)(1) maintain the previous penalty schedules for non-election sensitive and election sensitive reports, respectively, with due dates before the effective date of these rules. Paragraphs (a)(2) and (b)(2) include new schedules that reduce civil money penalties for non-election sensitive and election sensitive reports of committees with less than $50,000 in activity. These new schedules will apply to reports that
The previous and current civil money penalty schedules for late filers have two components: A base amount that increases with the level of activity reflected in a report and an additional charge for each day a report is late. The previous and current schedules for nonfilers consist of a base amount that increases with the level of activity. Both late and nonfilers are subject to a recidivist escalator that increases the penalty by 25% for each previous violation.
The reduction in civil money penalties for committees with levels of activity below $50,000 is being accomplished in two ways. First, the bracket previously covering levels of activity of under $25,000 is now divided into three brackets covering levels of activity of $1-$4,999.99, $5,000-$9,999.99 and $10,000-$24,999.99, respectively. This subdivision makes more refined distinctions in penalties for committees at the lowest levels of financial activity. Second, the base amount and/or the per day charge is being reduced in each level of activity bracket below $50,000. The civil money penalty reductions at these levels are identical to the reductions proposed in the NPRM. The civil money penalty schedules for committees with levels of activity of $50,000 and above are unchanged from former 11 CFR 111.43(a) and (b).
For late-filed non-election sensitive reports with levels of activity of $1-$4,999.99, the per day charge is being reduced from $25 to $5 and the base penalty is being reduced from $100 to $25; for reports with levels of activity of $5,000-$9,999.99, the per day charge is being reduced from $25 to $5 and the base penalty is being reduced from $100 to $50; for reports with levels of activity of $10,000-$24,999.99, the per day charge is being reduced from $25 to $5 and the base penalty remains at $100; and for reports with levels of activity of $25,000-$49,999.99, the per day charge is being reduced from $50 to $20 and the base penalty remains at $200. Reductions in the civil money penalties for late-filed non-election sensitive reports with less than $50,000 of activity range between 12% and 79.4%. A chart illustrating the penalty reductions for late-filed non-election sensitive reports follows:
Non-election sensitive reports are deemed not filed if they are filed more than 30 days late or not filed at all. The final rule at 11 CFR 111.43(a)(2)(iii) reduces the base penalty for reports with levels of activity of $1-$4,999.99 from $900 to $250; for reports with levels of activity of $5,000-$9,999.99 from $900 to $300; for reports with levels of activity of $10,000-$24,999.99 from $900 to $500; and for reports with levels of activity of $25,000 $49,999.99 from $1800 to $900. Reductions in the civil money penalties for non-filed non-election sensitive reports with less than $50,000 in activity range between 50% and 72%. A chart illustrating the penalty reductions for non-filed non-election sensitive reports follows:
For late-filed election sensitive reports with levels of activity of $1-$4,999.99, the per day charge is being reduced from $25 to $10 and the base penalty is being reduced from $150 to $50; for reports with levels of activity of $5,000-$9,999.99, the per day charge is being reduced from $25 to $10 and the base penalty is being reduced from $150 to $100; for reports with levels of activity of $10,000-$24,999.99, the per day charge is being reduced from $25 to $10 and the base penalty remains at $150; and for reports with levels of activity of $25,000-$49,999.99, the per day charge is being reduced from $50 to $25 and the base charge remains at $300. Reductions in the civil money penalties for late-filed election sensitive reports with less than $50,000 of activity range between 7.1% and 65.7%. A chart illustrating the penalty reductions for late-filed election sensitive reports follows:
Election sensitive reports are deemed not filed if they are not filed prior to four days before an election. The final rule at 11 CFR 111.43(b)(2)(iii) reduces the base penalty for these reports with levels of activity of $1-$4,999.99 from $1,000 to $500; for levels of activity of $5,000-$9,999.99 from $1,000 to $600; for levels of activity of $10,000-$24,999.99 from $1,000 to $900; and for levels of activity of $25,000-$49,999.99 from $2,000 to $1,400. Reductions in the civil money penalties for non-filed election sensitive reports with less than $50,000 of activity range between 10% and 50%. A chart illustrating the penalty reductions for non-filed election sensitive reports follows:
The Commission calculates civil money penalties by applying the civil money penalty schedules at 11 CFR 111.43 to a political committee's “level of activity.” Under the previous rule at 11 CFR 111.43(d), the “level of activity” is defined as the “total amount of receipts and disbursements for the period covered by the late-filed report.” If the report is not filed, the “level of activity” is based on the “estimated level of activity,” which is an estimate of total receipts and disbursements based on previously reported amounts.
The NPRM reflected the Commission's concern, based on its experience with the administrative fines program, that using total receipts and disbursements as the basis for the penalty calculation may have unfairly resulted in higher fines for political committees that finance non-Federal activity through their Federal accounts. For example, unauthorized committees that finance activities in connection with both Federal and non-Federal elections must allocate disbursements for those activities between their Federal and non-Federal accounts and must pay for those expenses from their Federal account or from a separate Federal allocation account.
The NPRM sought comment on whether the Commission should alter the way it calculates the level of activity. 67 FR 20463. The Commission sought comment generally on whether the level of activity should exclude all receipts or disbursements that are not for the purpose of influencing a Federal election. In addition to the receipt of non-Federal transfers to pay for the non-Federal share of allocable activity, the Commission asked whether other types of disbursements should be excluded and gave several examples, such as disbursements by an authorized committee made to influence the election of candidates to State or local office.
One of the commenters urged the Commission to exclude from the “level of activity” definition those disbursements for the non-Federal portion of allocated Federal/non-Federal activity, such as certain generic get-out-the-vote drives, as well as the receipt of non-Federal fund transfers to pay for those disbursements. The commenter maintained that including these receipts and disbursements “unfairly punished” State and local political party committees, whose activities are focused more on State and local elections. The commenter illustrated this point by using an example of a local party committee. Using a similar example under the current allocation regime for State and local party committees, depending on the election cycle, only 15% to 36% of allocable activity under 11 CFR 106.7 is considered Federal. Under the Commission's allocation regulations, such a committee must make disbursements from its Federal account to cover the 64% to 85% of the activity that is attributable to non-Federal elections and then reimburse the Federal account via transfers from its non-Federal account. Under the prior rules, the civil money penalty was based on the total of Federal and non-Federal activity since both are reported. As an alternative to changing the way “level of activity” is calculated, the commenter argued that the Commission should create a separate, more lenient schedule for committees that allocate expenses.
The other commenter disagreed with that approach. It noted that the Explanation and Justification (“E&J”) for the administrative fines rules issued in May 2000 rejected a suggestion that the “level of activity” be based on contributions and expenditures rather than total receipts and disbursements. The E&J noted that 2 U.S.C. 437g(a)(4), which permits the Commission to
The Commission continues to believe that, in most cases, “total receipts and disbursements” is a fair basis on which to calculate a civil money penalty for violations of 2 U.S.C. 434(a). However, based on its experience with the administrative fines program, the Commission concludes that basing a civil money penalty on “total receipts and disbursements” may unfairly inflate the level of activity for unauthorized committees that allocate expenses between Federal and non-Federal accounts because a large portion of their receipts and disbursements may be attributable to non-Federal activity that must be reported through a Federal account. The Commission concludes that it is a permissible construction of 2 U.S.C. 437g(a)(4) to exclude from the definition of “level of activity” receipts and disbursements attributable to the payment of allocable non-Federal activity. Section 437g(a)(4) of FECA permits the Commission to establish and publish a schedule of penalties “which takes into account the amount of the violation involved . . .
Other disbursements that may be characterized as non-Federal but that are paid for with Federal funds, such as a disbursement by an authorized committee to a State or local candidate, will not be excluded from the “level of activity” calculation. In these cases, a political committee chooses to use Federally-permissible receipts deposited in a Federal account for a non-Federal purpose. In contrast, where non-Federal funds are used to pay the non-Federal share of allocable activities, these funds flow through, and are reported by, the Federal account because Commission regulations so require.
Because only unauthorized committees are affected by the allocation rules, the definitions of “level of activity” and “estimated level of activity” have been amended only as applied to them. The definitions of these terms remain the same for late-filed or non-filed reports of all political committees before the effective date of these rules and for late-or non-filed reports of authorized committees due on or after the effective date of these rules. To make these distinctions clear, the definitions of “level of activity” and “estimated level of activity” have been moved in the final rules from 11 CFR 111.43(d) into revised section 111.43(a) and (b).
Specifically, the definitions of “level of activity” and “estimated level of activity” remain the same for late- and non-filed reports of all political committees that are due before the effective date of these rules as set forth in 11 CFR 111.43(a)(1)(i), 111.43(a)(1)(ii), 111.43(b)(1)(i) and 111.43(b)(1)(ii) and correspond to the schedule of penalties for reports due before the effective date of these final rules. The definitions of these terms also remain unchanged when applied to late- and non-filed reports of authorized committees that are due on or after the effective date of these rules as set forth in 11 CFR 111.43(a)(2)(i)(A), 111.43(a)(2)(ii)(A), 111.43(b)(2)(i) and 111.43(b)(2)(ii).
However, the final rules include revised definitions of “level of activity” and “estimated level of activity” as applied to late-filed and non-filed reports of unauthorized committees due on or after the effective date of these rules. Specifically, the final rule applicable to late-or non-filed non-election sensitive reports in 11 CFR 111.43(a)(2)(i)(B) provides that the definition of “level of activity” for these unauthorized committees means “total amount of receipts and disbursements” for the period covered by the late report minus the total of: (1) transfers received from non-Federal account(s) (from Schedule H3) as reported on Line 18(a) of FEC Form 3X, and (2) disbursements for the non-Federal share of operating expenditures attributable to allocated Federal/non-Federal activity (from Schedule H4) as reported on Line 21(a)(ii) covered by the late report. The final rule applicable to late-filed or non-filed election-sensitive reports at new 11 CFR 111.43(b)(2)(i) refers back to that definition.
Similarly, the final rule applicable to late- and non-filed non-election sensitive reports of unauthorized committees due on or after the effective date contains a new definition of “estimated level of activity” expressed in a formula. New 11 CFR 111.43(a)(2)(ii)(B)(1) provides that “estimated level of activity” is calculated as follows: [(total receipts and disbursements reported in the current two-year election cycle) − (transfers received from non-Federal account(s) as reported on either Line 18(a) of FEC Form 3X or Line 18 of FEC Form 3X if before March 1, 2003 + disbursements for the non-Federal Share of operating expenditures attributable to allocated Federal/non-Federal activity as reported on Line 21(a)(ii) of Form 3X)] ÷ number of reports filed covering the activity in the current two-year election cycle. The final rule applicable to late-filed or non-filed election-sensitive reports of unauthorized committees at new 11 CFR 111.43(b)(2)(ii) refers back to that definition. Please note that the line number for transfers is different when referring to pre-BCRA reports.
Finally, new 11 CFR 111.43(a)(2)(ii)(B)(2) addresses the calculation of “estimated level of activity” when an unauthorized committee has not filed a non-election sensitive report covering activity in the current two-year election cycle. In that case, “estimated level of activity” is calculated as: [(total receipts and disbursements reported in the prior two-year election cycle) − (transfers received from non-Federal account(s) as reported on either Line 18(a) of FEC Form 3X or Line 18 of FEC Form 3X if before March 1, 2003 + disbursements for the non-Federal Share of operating expenditures attributable to allocated Federal/non-Federal activity as reported on Line 21(a)(ii) of Form 3X)] ÷ number of reports filed covering the activity in the prior two-year election cycle. New 11 CFR 111.43(b)(2)(ii) refers back to that definition for election-sensitive reports.
The Commission emphasizes that the exclusion of non-Federal receipts and disbursements attributable to allocable activity from the calculation of “level of activity” does not change an unauthorized committee's obligation to fully disclose these amounts. Failure to do so is a violation of the Act and
11 CFR 111.45 is being revised to correct citations to regulations establishing the Federal Claims Collection Standards. After the Commission's administrative fines rules were promulgated on May 19, 2000, the Department of Justice and the Department of Treasury, in place of the General Accounting Office, revised and recodified the Federal Claims Collection Standards at 31 CFR parts 900 through 904.
Respondents who have challenged reason-to-believe findings in the administrative fines program have sometimes maintained that they did not receive notification because it was sent to an old address even though the Commission sent the notification to the political committee's address of record in the Statement of Organization on file with the Commission.
In the NPRM, the Commission proposed revisions to four regulations to clarify how notifications and other communications called for in subpart B of 11 CFR part 111 would be delivered to respondents. 67 FR 20464. Neither of the commenters addressed this issue.
The Commission has since concluded that this issue may be addressed more efficiently by adding a new regulation rather than by amending several current regulations. New 11 CFR 111.46 addresses how respondents will be notified of reason-to-believe findings, final determinations and all other communications authorized in subpart B of part 111 governing the administrative fines program. The final rule clarifies that unless a respondent has filed a statement designating counsel in accordance with 11 CFR 111.23, all notifications or other communications from the Commission or the administrative fines reviewing officer will be sent to a respondent political committee and its treasurer at the committee address listed in the most recent Statement of Organization or amendment thereto, filed with the Commission. If counsel has been designated, all contact will be with counsel unless the respondent authorizes direct contact in writing.
This new rule is supported by the statute and case law. 2 U.S.C. 433(c) requires a political committee to file any changes in a previously filed Statement of Organization, including an address, within ten days after the change. Moreover, in a recent case in which a respondent in the administrative fines program challenged the Commission's final determination, the district court held that mailing a notification to the committee's last known address constitutes constitutionally significant notice.
The Commission certifies that the attached final rules will not have a significant economic impact on a substantial number of small entities. The basis for this certification for any small entities subject to the amended rules is that the civil money penalties are lower than those previously assessed and are scaled to better take into account the amount of financial activity on reports filed by political committees. Thus, committees with lower levels of financial activity are subject to lower fines than political committees with higher amounts. Moreover, the calculation of the civil money penalty has been revised so that it better takes into account the level of Federal activity for committees that finance allocable Federal and non-Federal activity. These committees would also be subject to lower civil penalties since they are now based only on the portion of their finances attributable to Federal activity. Finally, some entities affected by the rules, such as political committee treasurers and committees of the two major political parties, are not small entities under 5 U.S.C. 601 because they are not small businesses, organizations or small governmental jurisdictions.
Administrative practice and procedures, Elections, Law enforcement.
2 U.S.C. 437g, 437d(a), 438(a)(8).
(b) * * *
(4) * * *
(iii) Illness, inexperience, or unavailability of staff, including the treasurer;
The revised text reads as follows:
(a) The civil money penalty for all reports that are filed late or not filed, except election sensitive reports and pre-election reports under 11 CFR 104.5, shall be calculated as follows:
(1) For reports due before April 16, 2003:
(i)
(ii)
(iii) The civil money penalty shall be calculated in accordance with the following schedule:
(2) For reports due on or after April 16, 2003:
(i)
(A) For an authorized committee, the total amount of receipts and disbursements for the period covered by the late report. If the report is not filed, the level of activity is the estimated level of activity as set forth in paragraph (a)(2)(ii)(A) of this section.
(B) For an unauthorized committee, the total amount of receipts and disbursements for the period covered by the late report minus the total of: transfers received from non-Federal account(s) as reported on Line 18(a) of FEC Form 3X and disbursements for the non-Federal share of operating expenditures attributable to allocated Federal/non-Federal activity as reported on Line 21(a)(ii) of FEC Form 3X for the period covered by the late report. If the report is not filed, the level of activity is the estimated level of activity as set forth in paragraph (a)(2)(ii)(B) of this section.
(ii)
(A) For an authorized committee, total receipts and disbursements reported in the current two-year election cycle divided by the number of reports filed to date covering the activity in the current two-year election cycle. If the respondent has not filed a report covering activity in the current two-year election cycle, estimated level of activity for an authorized committee means total receipts and disbursements reported in the prior two-year election cycle divided by the number of reports filed covering the activity in the prior two-year election cycle.
(B)(
(iii) The civil money penalty shall be calculated in accordance with the following schedule:
(b) The civil money penalty for election sensitive reports that are filed late or not filed shall be calculated as follows:
(1) For reports due before April 16, 2003:
(i)
(ii)
(iii) The civil money penalty shall be calculated in accordance with the following schedule:
(2) For reports due on or after April 16, 2003:
(i) Level of activity has the same meaning as paragraph (a)(2)(i) of this section.
(ii)
(iii) The civil money penalty shall be calculated in accordance with the following schedule:
If a statement designating counsel has been filed in accordance with 11 CFR 111.23, all notifications and other communications to a respondent provided for in subpart B of this part will be sent to designated counsel. If a statement designating counsel has not been filed, all notifications and other communications to a respondent provided for in subpart B of this part will be sent to respondent political committee and its treasurer at the political committee's address as listed in the most recent Statement of Organization, or amendment thereto, filed with the Commission in accordance with 11 CFR 102.2.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued to Bombardier Aerospace for the Model BD-100-1A10 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes, associated with engine size and torque load which affects sudden engine stoppage. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is March 6, 2003. Comments must be received on or before May 1, 2003.
Comments on these special conditions may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM245, 1601 Lind Avenue SW., Renton, Washington 98055-4056; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked: Docket No. NM245. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Todd Martin, FAA Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (425) 227-1178; facsimile (425) 227-1320.
The FAA has determined that notice and opportunity for prior public comment are unnecessary in accordance with 14 CFR 11.38, because the FAA has provided previous opportunities to comment on substantially identical special conditions and has fully considered and addressed all the substantive comments received. Based on a review of the comment history and the comment resolution, the FAA is satisfied that new comments are unlikely. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
Although this action is in the form of final special conditions and, for the reasons stated above, is not preceded by notice and an opportunity for public comment, comments are invited on these special conditions. We invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.
If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On June 28, 1999, Bombardier Aerospace applied for a new type certificate for their Model BD-100-1A10 airplane. The BD-100-1A10 is a medium range transport category airplane, powered by two rear fuselage-mounted Allied Signal AS907 engines. This engine model is a high bypass turbofan engine, with 6826 lb. takeoff thrust at sea level flat rated to ISA+20°.
Under the provisions of 14 CFR 21.17, Bombardier Aerospace must show that the Model BD-100-1A10 meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-98. The type certification basis for the Model BD-100-1A10 will therefore include 14 CFR part 25, effective February 1, 1965, including Amendments 25-1 through 25-98; 14 CFR, part 34, effective September 10, 1990, including Amendment 34-1, and any subsequent amendments that will be applicable on the date the type certificate is issued; and 14 CFR part 36, effective December 1, 1969, including Amendments 36-1 through 36-22, and any subsequent amendments that will be applicable on the date the type certificate is issued. The certification basis may also include certain exceptions, exemptions, and other special conditions that are not relevant to these special conditions:
If the Administrator finds that the applicable airworthiness regulations (that is, part 25) do not contain adequate or appropriate safety standards for the Model BD-100-1A10 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to the applicable airworthiness regulations and special conditions, the Model BD-100-1A10 must comply with the fuel vent and exhaust emission requirements of part 34 and the noise certification requirements of part 36; and the FAA must issue a finding of regulatory adequacy pursuant to Section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1) [Amendment 21-69, effective September 16, 1991].
The Bombardier Aerospace Model BD-100-1A10 will incorporate novel or unusual design features involving engine size and torque load that affect sudden engine stoppage conditions.
The limit engine torque load imposed by sudden engine stoppage due to malfunction or structural failure (such as compressor jamming) has been a specific requirement for transport category airplanes since 1957. In the past, the design torque loads associated with typical failure scenarios have been estimated by the engine manufacturer and provided to the airframe manufacturer as limit loads. These limit loads were considered simple, pure torque static loads. The size, configuration, and failure modes of jet engines have changed considerably from those envisioned when the engine seizure requirement of § 25.361(b) was first adopted. Current engines are much larger and are now designed with large bypass fans capable of producing much larger torque loads if they become jammed. It is evident from service history that the frequency of occurrence of the most severe sudden engine stoppage events is rare.
Relative to the engine configurations that existed when the rule was developed in 1957, the present generation of engines are sufficiently different and novel to justify issuance of special conditions to establish appropriate design standards. The latest generation of jet engines are capable of producing, during failure, transient loads that are significantly higher and more complex than the generation of engines that were present when the existing standard was developed. Therefore, the FAA has determined that special conditions are needed for the Bombardier Aerospace Model BD-100-1A10 airplane.
In order to maintain the level of safety envisioned in § 25.361(b), more comprehensive criteria is needed for the new generation of high-bypass engines. The special conditions would distinguish between the more common engine failure events and those rare events resulting from structural failures. For these rarer but more severe seizure events, the criteria could allow some deformation in the engine supporting structure (ultimate load design) in order to absorb the higher energy associated with the high-bypass engines, while at the same time protecting the adjacent primary structure in the wing and fuselage by providing a higher safety factor. The criteria for the more severe events would no longer be a pure static torque load condition, but would account for the full spectrum of transient dynamic loads developed from the engine failure condition.
As discussed above, these special conditions are applicable to the Bombardier Aerospace Model BD-100-1A10 airplane. Should Bombardier Aerospace apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1) [Amendment 21-69, effective September 16, 1991].
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Aerospace Model BD-100-1A10 airplanes.
1.
a. For turbine engine installations, the engine mounts, pylons, and adjacent supporting airframe structure must be designed to withstand 1g level flight loads acting simultaneously with the maximum limit torque loads imposed by each of the following:
(1) Sudden engine deceleration due to a malfunction which could result in a temporary loss of power or thrust.
(2) The maximum acceleration of the engine.
b. For auxiliary power unit installations, the power unit mounts and adjacent supporting airframe structure must be designed to withstand 1g level flight loads acting simultaneously with the maximum limit torque loads imposed by each of the following:
(1) Sudden auxiliary power unit deceleration due to malfunction or structural failure.
(2) The maximum acceleration of the auxiliary power unit.
c. For engine supporting structure, an ultimate loading condition must be considered that combines 1g flight loads with the transient dynamic loads resulting from each of the following:
(1) The loss of any fan, compressor, or turbine blade.
(2) Where applicable to a specific engine design, and separately from the conditions specified in paragraph c(1) above, any other engine structural failure that results in higher loads.
d. The ultimate loads developed from the conditions specified in paragraphs c(1) and c(2) above are to be multiplied by a factor of 1.0 when applied to engine mounts and pylons and multiplied by a factor of 1.25 when applied to adjacent supporting airframe structure.
Federal Aviation Administration (FAA), DOT.
Final rule; delay of effective date.
This corrective action changes the effective date for the establishment of the Class D airspace area at Rome, NY. The proposed commissioning date for the Airport Traffic Control Tower (ATCT) has been delayed; therefore, the effective date of the establishment of the Class D airspace must also be delayed.
0901 UTC May 15, 2003
Mr. Francis Jordan, Airspace Specialist, Airspace Branch, AEA-520, Air Traffic Division, Eastern Region, Federal Aviation Administration, 1 Aviation Plaza, Jamaica, New York 11434-4809, telephone: (718) 553-4521.
The effective date on Airspace Docket No. 02-AEA-13 is hereby delayed from March 20, 2003 to May 15, 2003
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Commodity Futures Trading Commission.
Final rules.
The Commodity Futures Trading Commission (the “Commission” or “CFTC”) has adopted amendments to part 4 of its rules, which governs Commodity Pool Operators (“CPOs”) and Commodity Trading Advisors (“CTAs”). These amendments make clear that certain Disclosure Documents need only be filed with the National Futures Association (“NFA”) and need not also be filed with the Commission. The Commission, in a separate Notice and Order published elsewhere in the
March 17, 2003.
Kevin P. Walek, Assistant Director, Audit and Financial Review Section, or Michael A. Piracci, Attorney Advisor, Compliance and Registration Section, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5430.
In 1997, the Commission authorized NFA to review Disclosure Documents that CPOs are required to file, pursuant to Commission rule 4.26(d), with regard to those Disclosure Documents filed for “privately offered” pools.
In a separate notice published elsewhere today in the
The Paperwork Reduction Act of 1995 (“PRA”)
Section 15(a) of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.
Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.
The amendment herein is intended to minimize the filing burdens imposed upon CPOs by making clear that the subject documents need only be filed with NFA and not also the Commission. The Commission is considering the costs and benefits of this rule in light of the specific provisions of section 15(a) of the Act:
1.
2.
3.
4.
5.
After considering these factors, the Commission has determined to adopt the amendment discussed above.
The Commission has determined that the amendment discussed herein relates solely to agency organization, procedure, and practice. Accordingly, the provisions of the Administrative Procedure Act that generally require notice of proposed rulemaking and that provide other opportunities for public participation are not applicable.
Advertising, Customer protection, and Reporting and recordkeeping requirements.
7 U.S.C. 1a, 2, 6b, 6c, 6(c), 6l, 6m, 6n, 6o, 12a, and 23.
Food and Drug Administration, HHS.
Final rule; correction.
The Food and Drug Administration (FDA) is correcting a final rule that appeared in the
Joyce Strong, Office of Policy (HF-27), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-7010.
In FR Doc. 03-2969, appearing on page 6062 in the
1. On page 6081, in the second column, at the end of the document, the phrase “Dated: October 4, 2002” is corrected to read “Dated: December 4, 2002”.
Departmental Offices, Treasury.
Interim final rule.
This interim final rule amends Treasury's regulations that govern access to information and records in connection with legal proceedings, including litigation in which neither the United States nor the Department of the Treasury is a party. The amendments elaborate on the procedures used when determining whether employees in the Departmental Offices will be permitted to testify or provide records relating to their official duties when they are directly subpoenaed or otherwise requested to testify. The amendments also specify and clarify the criteria that Treasury officials use when deciding whether to allow an employee to testimony or provide records.
This interim final rule is effective March 17, 2003. Written comments may be submitted by April 16, 2003.
Submit written comments to Thomas M. McGivern, Counselor to the General Counsel, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Room 3000, Washington, DC 20220.
Tom McGivern, Counselor to the General Counsel, at (202) 622-2317 or Traci J. Sanders, Deputy Counselor, at (202) 622-2744 (not toll-free numbers).
Under 5 U.S.C. 301, heads of Executive or military departments may prescribe regulations governing the conduct of its employees and the custody, use, and preservation of the department's records, papers, and property. Many departments and agencies have promulgated such regulations to provide procedures for the disclosure of official records and
Treasury's Touhy regulations are codified in sections 1.8 through 1.12 of title 31 of the Code of Federal Regulations. These regulations provide that employees of the Departmental Offices of the Department of the Treasury may not disclose documents or information in response to a demand or other order of a court or any other authority without first being authorized to do so. The purpose of these regulations is to conserve valuable agency resources, protect Treasury employees from becoming enmeshed in litigation, and to protect sensitive government information and decision making processes.
This interim final rule revises the regulations to prescribe the factors Treasury officials should consider when deciding whether to allow disclosure of documents and information and which officials may make these decisions. This rule also makes a number of clarifying and technical amendments to the current regulations.
This section is amended to exclude references to the United States Savings Bonds Division and the United States Secret Service. The Savings Bond Division is currently a part of the Bureau of the Public Debt and the Secret Service will become a component of the Department of Homeland Security on March 1, 2003. This section also is amended to make clear that all offices and bureaus of the Department are covered by this subpart, except to the extent that the bureaus enact their own regulations governing the subject matter of a provision of this subpart.
This section sets forth the policies and procedures of the Department regarding the testimony of employees as witnesses in legal proceedings and the production or disclosure of Treasury documents for use in legal proceedings.
Paragraph (a) describes the applicability of section 1.11. It specifies that section 1.11 does not apply (1) to an employee's testimony regarding matters that are unrelated to the official business of the Department and (2) to access to records pursuant to the Freedom of Information Act, the Privacy Act, or the Trade Secrets Act. Paragraph (a) also clarifies that the procedures of section 1.11 only provide guidance for the internal operations of the Department and do not create any rights or benefits enforceable at law by a party against the United States.
Paragraph (b) defines various terms used in section 1.11.
Paragraph (c) sets forth the general policy of the Department concerning requests that employees testify or provide documents or other information in litigation. This policy provides that employees may not respond to a demand, produce any documents, provide testimony regarding any information relating to, or based upon Department documents, or disclose any information or produce materials acquired as part of the performance of that employee's official duties or official status, without the prior authorization of the General Counsel or the appropriate agency counsel.
Paragraph (d) sets forth procedures applicable to requests for testimony or the production of documents. Paragraph (d)(1) provides that requests directed at the Department for testimony by an employee of the Departmental Offices or for the production of documents are to be directed to the General Counsel of the Department. Requests for testimony by an employee of a Treasury office or bureau are to be directed to the Chief or Legal Counsel of the office or bureau.
Paragraph (d)(2) provides that subpoenas or other requests for testimony or the production of documents directed at a Department employee be served in accordance with the Federal Rules of Civil or Criminal Procedure, or applicable State procedure.
Paragraph (d)(3) provides that any request for testimony or the production of documents in litigation in which neither the Department nor the United States is a party be supported by an affidavit setting forth the nature of the litigation, describing the nature of the testimony and/or documents sought, and explaining why the testimony and/or documents are desired.
Paragraph (d)(4) provides that employees may not give testimony or produce documents in connection with legal proceedings without the approval of agency counsel.
Paragraph (e) sets forth the factors to be considered by agency counsel when reviewing requests for testimony or records. These factors include (1) the burden on government resources, (2) applicable privileges, and (3) the potential release of classified documents. The factors enumerated in paragraph (e) are not exclusive and other relevant factors may be considered in appropriate circumstances.
Paragraph (f) provides that requests for employees to provide expert testimony shall be denied except in cases of exceptional need and when the matter is not adverse to the interests of the Department. This provision is designed to ensure that the Department's resources are not consumed by repeated requests for employee expert testimony. This provision also allows former employees who hire themselves out as experts in the subject area in which they worked while with the government to provide testimony, as long as the testimony involves only the employee's general expertise.
Paragraph (g) sets forth procedures to be followed by an employee when agency counsel determines that it is not appropriate to comply with a request for testimony or the production of documents.
This section currently provides that subpart B does not apply to official requests made by other government agencies or officials, unless it appears that granting a request would be in violation of law or inimical to the public interest. The interim final rule clarifies that agency counsel should be consulted if an employee has any doubt concerning the applicability of this section to a particular request.
Because this rule relates to agency management and personnel, and because it merely amends Treasury's existing regulations to more closely parallel similar regulations adopted by other Federal agencies, it is not subject to notice and public procedure pursuant to 5 U.S.C. 553(a)(2) and (b)(B). For the same reasons, a delayed effective date is not required pursuant to 5 U.S.C. 553(a)(2) and (d)(3). Nevertheless, the Department will consider any public comments on this interim final rule before issuing a final rule.
Because no notice of proposed rulemaking is required, the provisions
It has been determined that this interim final rule is not a significant regulatory action for purposes of Executive Order 12866.
Courts, Freedom of information, Government employees, and Privacy.
Therefore, for the reasons discussed in the preamble, 31 CFR part 1 is amended as set forth below:
5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C. 552a.
* * * This subpart is applicable to the Departmental Offices and to the bureaus of the Department as defined in § 1.1(a) of this part, except to the extent that bureaus of the Department have adopted separate guidance governing the subject matter of a provision of this subpart.
Except in accordance with this part, or as otherwise authorized, Treasury Department officers and employees are prohibited from making records or duplicates available to any person who is not an officer or employee of the Department, and are prohibited from withdrawing any such records or duplicates from the files, possession or control of the Department.
(a) Officers and employees of the Department may, in response to requests, orally provide information contained in records of the Department that are determined to be available to the public. If the obtaining of such information requires a search of records, a written request and the payment of the fee for a record search set forth in § 1.6 will be required.
(a)
(2) This section does not apply to any legal proceeding in which an employee is to testify while on leave status regarding facts or events that are unrelated to the official business of the Department.
(3) (i) Nothing in this section affects the rights and procedures governing public access to records pursuant to the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a).
(ii) Demands in legal proceedings for the production of records, or for the testimony of Department employees regarding information protected by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act (18 U.S.C. 1905), or other confidentiality statutes, must satisfy the requirements for disclosure set forth in those statutes and the applicable regulations of this part before the records may be provided or testimony given.
(4) This section is intended only to provide guidance for the internal operations of the Department and to inform the public about Department procedures concerning the service of process and responses to demands or requests, and the procedures specified in this section, or the failure of any Treasury employee to follow the procedures specified in this section, are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party against the United States.
(b)
(1)
(i) With respect to the Departmental Offices, the General Counsel; and
(ii) With respect to a bureau or office of the Department, the Chief Counsel or Legal Counsel (or his/her designee) of such bureau or office.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(c)
(d)
(2) A subpoena or other demand for testimony directed to an employee or former employee shall be served in accordance with the Federal Rules of Civil or Criminal Procedure or applicable State procedure and a copy of the subpoena shall be sent to agency counsel.
(3)(i) In court cases in which the United States or the Department is not a party, where the giving of testimony or the production of documents by the Department or a current or former employee is desired, an affidavit (or if that is not feasible, a statement) by the litigant or the litigant's attorney, setting forth the information with respect to which the testimony or production is desired, must be submitted in order to obtain a decision concerning whether such testimony or production will be authorized. Such information shall include: the title of the legal proceeding, the forum, the requesting party's interest in the legal proceeding, the reason for the demand, a showing that the desired testimony or document is not reasonably available from any other source and, if testimony is requested, the intended use of the testimony, a general summary of the desired testimony, and a showing that no document could be provided and used in lieu of testimony. The purpose of this requirement is to assist agency counsel in making an informed decision regarding whether testimony or the production of document should be authorized. Permission to testify or produce documents will, in all cases, be limited to the information set forth in the affidavit or statement, or to such portions thereof as may be deemed proper.
(ii) Agency counsel may consult or negotiate with an attorney for a party, or the party if not represented by an attorney, to refine or limit a demand so that compliance is less burdensome or obtain information necessary to make the determination required by paragraph (e) of this section. Failure of the attorney or party to cooperate in good faith to enable agency counsel to make an informed determination under this subpart may serve, where appropriate, as a basis for a determination not to comply with the demand.
(iii) A determination under this subpart to comply or not to comply with a demand is without prejudice as to any formal assertion or waiver of privilege, lack of relevance, technical deficiency or any other ground for noncompliance.
(4)(i) Employees shall immediately refer all inquiries and demands made on the Department to agency counsel.
(ii) An employee who receives a subpoena shall immediately forward the subpoena to agency counsel. Agency counsel will determine the manner in which to respond to the subpoena.
(e)
(i) Whether the request or demand is unduly burdensome;
(ii) Whether the request would involve the Department in controversial issues unrelated to the Department's mission;
(iii) Whether the time and money of the United States would be used for private purposes;
(iv) The extent to which the time of employees for conducting official business would be compromised;
(v) Whether the public might misconstrue variances between personal opinions of employees and Department policy;
(vi) Whether the request demonstrates that the information requested is relevant and material to the action pending, genuinely necessary to the proceeding, unavailable from other sources, and reasonable in its scope;
(vii) Whether the number of similar requests would have a cumulative effect on the expenditure of agency resources;
(viii) Whether disclosure otherwise would be inappropriate under the circumstances; and
(ix) Any other factor that is appropriate.
(2) Among those demands and requests in response to which compliance will not ordinarily be authorized are those with respect to which any of the following factors exists:
(i) The disclosure would violate a statute, Executive order, or regulation;
(ii) The integrity of the administrative and deliberative processes of the Department would be compromised;
(iii) The disclosure would not be appropriate under the rules of procedure governing the case or matter in which the demand arose;
(iv) The disclosure, including release in camera, is not appropriate or necessary under the relevant substantive law concerning privilege;
(v) The disclosure, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified or other matters exempt from unrestricted disclosure; or
(vi) The disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, or disclose trade secrets or similarly confidential commercial or financial information.
(f)
(2) Upon a showing by the requestor of exceptional need or unique circumstances and that the anticipated testimony will not be adverse to the interests of the Department or the United States, agency counsel may, in writing, grant authorization for an employee, or former employee, to appear and testify at no expense to the United States.
(3) Any expert or opinion testimony by a former employee of the Department shall be excepted from § 1.11(f)(1) where the testimony involves only general expertise gained while employed at the Department.
(g)
(2) If, despite the determination of the agency counsel that testimony should not be given and/or documents not be produced, a court of competent jurisdiction or other appropriate authority orders the employee or former employee to testify and/or produce documents, the employee shall notify agency counsel of such order.
(i) If agency counsel determines that no further legal review of, or challenge to, the order will be sought, the employee or former employee shall comply with the order.
(ii) If agency counsel determines to challenge the order, or that further legal
* * * Cases of doubt should be referred for decision to agency counsel (as defined in § 1.11(b)(1)).
Postal Rate Commission.
Final rule.
The Commission recently implemented a comprehensive electronic (online) document handling system. This system's ability to provide rapid notice of filings has overtaken practices that were adopted some time ago to address certain situations where there was special interest in expediting notice of Postal Service requests and distribution of other documents. Accordingly, the Commission is making minor conforming changes to four sets of provisions to align them with the new online system. These changes preserve or increase the expedition these provisions were originally designed to provide.
This rule is effective April 16, 2003.
Submit comments via the Commission's Filing Online system, which can be accessed at
Stephen L. Sharfman, General Counsel, 202-789-6818.
66 FR 33034
67 FR 67552
68 FR 46
On October 21, 2002, the Commission issued Order No. 1349 amending its rules of practice. This order made submitting documents via the Internet using the Commission's Filing Online system the standard method for filing documents in Commission proceedings. The effective date of the new filing system was January 7, 2003.
The Commission's rules of practice provide expedited procedures for considering Postal Service requests for a recommended decision on certain, narrowly defined changes to postal rates, classifications, or terms of service. Currently, the Commission has four sets of rules authorizing expedited proceedings that seek to achieve expedition, in part, through special accelerated notice, service, intervention, or discovery procedures. They were adopted before Filing Online became the standard procedure for filing and serving documents in formal Commission dockets. Filing Online now provides a faster and more effective means for performing most of these functions. The Commission is eliminating or simplifying these special procedures, as appropriate, wherever standard Filing Online procedures provide a faster and more effective alternative.
In 1989, the Postal Service proposed, and the Commission adopted, a set of special rules for processing “Express Mail Market Response Rate” requests. See Order No. 836, issued August 10, 1989, and 39 CFR 3001.57 through 3001.60. They are designed to allow such requests to be processed within 90 days of filing. 39 CFR 3001.60. To help speed the processing of such requests, existing rule 59(c)(1) authorizes persons wishing to participate in such a proceeding to register their name and business address with the Commission. Registrants are automatically made parties to a Market Response rate proceeding at the time that the request is filed. Existing rule 59(c)(2) requires the Postal Service to hand deliver a copy of its request on the day that it is filed to registrants who maintain a service address in the Washington metropolitan area, and to serve other registrants with a copy by Express Mail. Rule 59(c)(3) requires the Postal Service to send by Express Mail to all participants in the most recent omnibus rate case, a notice briefly describing its Market Response Rate Request, the special rules under which it was filed, and advising them of the deadline for intervention.
This registration and notification scheme provides a model for three other sets of rules authorizing expedited proceedings. Almost identical provisions are included in the set of rules for processing “expedited minor classification cases” (
For each of these four sets of rules, the purpose of these special notice, intervention, and service procedures was to accelerate the processing of these requests. The Commission's Filing Online system and related electronic document handling procedures can now serve this purpose more quickly and more effectively.
Under the Commission's electronic document handling procedures, there is no longer a need to maintain a list of registrants who are entitled to receive a hard copy of a Postal Service request of one of these special types promptly after it is filed. On the Commission's website, an interested person may define a “Document Alert” rule that will result in notice from the Commission by e-mail when the Postal Service files a request to institute a proceeding of any kind, expedited or otherwise. That person should be able to download the request from the Commission's website within 30 minutes of the time that the request was accepted for filing by the Commission. This is earlier than the person would have received hard copy delivery of the request from the Postal Service. Because requests under these expedited rules are expected to be much smaller and simpler documents than omnibus rate requests, downloading them from the Commission's website is unlikely to strain the computing resources of any interested person. Under the Commission's electronic document handling procedures, therefore, the opportunity to register to promptly receive a hard copy of a request in an expedited proceeding does not provide an additional benefit of any significance to interested persons.
As noted above, the existing registration scheme includes a provision that automatically makes a person on the register an intervenor in any docket that the Postal Service institutes under these various sets of expedited procedures. The only rationale for this procedure that can be inferred from the administrative history of this rule is that this reduces the delay involved in intervening. For example, there was no thought that registrants should be required to intervene and respond to discovery as a condition of registration, since they were allowed to withdraw as intervenors at any time. See Memorandum of United States Postal Service in Response to Presiding Officer's Ruling No. RM88-2/1 at 7. As a means of accelerating intervention, registration is now obsolete. Under Filing Online, persons interested in intervening may accomplish this almost instantaneously by filing a notice of intervention under a temporary account.
Accordingly, under the revised rules adopted in this order, the provisions found in these four sets of expedited docket rules that contemplate delivery of hardcopy Requests to a list of registrants and their automatic intervention will be deleted.
As noted above, these four sets of expedited procedures currently require the Postal Service to mail a notice to all participants in the most recent omnibus rate case that briefly describes its request, the special rules under which it was filed, and alerts them of the deadline for intervention. This function is also one that can be performed faster and more effectively under the Commission's electronic document handling system. Under the revised rules adopted in this order, the Postal Service must still prepare a notice summarizing its request to institute an expedited docket. Rather than mailing it to all participants in the most recent omnibus rate case, however, the Postal Service will be required only to file that notice online. The Commission will then post the notice on its Daily Listing Page of its Web site, where the public may view it and download it immediately. This will provide those actively monitoring the Daily Listing Page with notice that a request to institute an expedited docket has been filed, and will provide it earlier than under the current notice procedure.
The Commission's electronic document handling system can also provide notice to those who do not actively monitor its website. An important part of that system is the “Document Alert” feature. As discussed above, it allows a person to choose a notification rule that will result in an e-mail from the Commission when the Postal Service files a request to institute a Commission proceeding of any kind, including an expedited proceeding. Using the “Document Alert” function, an interested person will receive immediate notice of the filing of such a request. The Daily Listing page can then be accessed to view and download either the notice summarizing the request, or the request itself, depending on the person's degree of interest. This electronic notice will be both earlier, and more effective, than receiving a hard copy notice in the mail.
The Commission will soon mail to every person that participated in the most recent omnibus rate case (Docket No. R2001-1) a letter that will specifically describe this use of the “Document Alert” function, and will include a Filing Online User Guide that explains how to take advantage of it.
The implementation of Filing Online makes an additional revision of the rules governing Express Mail Market Response Rate requests appropriate. In order to accelerate motion practice, existing rule 59(e)(4) provides that objections to discovery requests made in such proceedings be made within 10 days of the discovery request, and served “by hand, facsimile, or expedited delivery.” There is no comparable provision in the other three sets of expedited procedures addressed by this order. Since filing objections online will provide a faster way to communicate them to the questioning party, these special service requirements will be deleted from rule 59(e)(4).
The minor revisions made in this order to these four sets of expedited procedures conform their filing and service provisions to the general Filing Online rules. They do so while preserving or increasing the expedition that they were originally designed to provide. Since these changes are not prejudicial to the interests of any prospective participants in Commission proceedings, the Commission considers it appropriate to make these revision without first issuing a notice of proposed rulemaking. They will become effective 30 days from the date of this Order.
1. The revisions to § 3001.59(c) and (e)(4), § 3001.69b(b) through (d), § 3001.163(b) through (d), and § 3001.173(b) through (d) of the Commission's rules of practice, as set forth in the attachment to this order, shall take effect 30 days from their publication in the
2. The Secretary shall cause this order to be published in the
39 U.S.C. 3603.
Administrative practice and procedure, Postal Service.
39 U.S.C. 404(b); 3603; 3622-24; 3661; 3662; 3663.
(c)(1) Persons who are interested in participating in Express Mail Market Response Rate Request cases may intervene pursuant to § 3001.20 within 28 days of the filing of a formal request made under the provisions of §§ 3001.57 through 3001.60. Parties may withdraw from a case by filing a notice with the Commission.
(2) When the Postal Service files a request under the provisions of §§ 3001.57 through 3001.60 it shall comply with the standard Filing Online procedures of §§ 3001.9 through 3001.12.
(3) When the Postal Service files a request under the provisions of §§ 3001.57 through 3001.60, it shall on that same day file a notice that briefly describes its proposal. Such notice shall indicate on its first page that it is a notice of an Express Mail Market Response Rate Request to be considered under §§ 3001.57 through 3001.60, and identify the last day for filing a notice of intervention with the Commission.
(e) * * *
(4) In order to assist in the rapid development of an adequate evidentiary record, all participants may file appropriate discovery requests on other participants as soon as an Express Mail Market Response Rate Request is filed. Answers to such discovery requests will be due within 10 days. Objections to such discovery requests must be filed
(b) Persons who are interested in participating in proceedings to consider Postal Service requests for minor changes in mail classification may intervene pursuant to § 3001.20. Parties may withdraw from a particular case by filing a notice with the Secretary of the Commission.
(c) When the Postal Service files a request under the provisions of §§ 3001.69 through 3001.69c, it shall comply with the standard Filing Online procedures of §§ 3001.9 through 3001.12.
(d) When the Postal Service files a request under the provisions of §§ 3001.69 through 3001.69c, it shall on that same day file a notice that briefly describes its proposal. This notice shall indicate on its first page that it is a notice of a request for a minor change in mail classification to be considered under §§ 3001.69 through 3001.69c, and identify the last day for filing a notice of intervention with the Commission.
(b) Persons who are interested in participating in proceedings to consider Postal Service requests to conduct a market test may intervene pursuant to § 3001.20 within 28 days after the filing of a formal request made under the provisions of this subpart. Parties may withdraw from a particular case by filing a notice with the Secretary of the Commission.
(c) When the Postal Service files a request under the provisions of this subpart, it shall comply with the standard Filing Online procedures of §§ 3001.9 though 3001.12.
(d) When the Postal Service files a request under the provisions of this subpart, it shall on that same day file a notice that briefly describes its proposal. This notice shall indicate on its first page that it is a notice of a Market Test Request to be considered under §§ 3001.161 through 3001.166, and identify the last day for filing a notice of intervention with the Commission.
5. Amend § 3001.173 by revising paragraphs (b) through (d) to read as follows:
(b) Persons who are interested in participating in proceedings to consider Postal Service requests to establish a provisional service may intervene pursuant to § 3001.20 within 28 days after the filing of a formal request made under the provisions of this subpart. Parties may withdraw from a particular case by filing a notice with the Secretary of the Commission.
(c) When the Postal Service files a request under the provisions of this subpart, it shall comply with the standard Filing Online procedures of §§ 3001.9 through 3001.12.
(d) When the Postal Service files a request under the provisions of this subpart, it shall on that same day file a notice that briefly describes its proposal. Such notice shall indicate on its first page that it is a notice of a Request for Establishment of a Provisional Service to be considered under §§ 3001.171 through 3001.176, and identify the last day for filing a notice of intervention with the Commission.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the EPA is withdrawing the direct final rule approving Ohio's State Implementation Plan for the Oxides of Nitrogen (NO
The direct final rule published at 68 FR 2211 on January 16, 2003, is withdrawn as of March 17, 2003.
John Paskevicz, Engineer, Regulation Development Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois, 60604. Telephone: (312) 886-6084. E-Mail Address:
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule; technical correction.
On June 10, 2002, EPA issued the national emission standards for hazardous air pollutants (NESHAP) for the surface coating of metal coil. This action will correct the timeline for beginning the first semiannual reporting period and submitting the first semiannual report as published in the NESHAP. The correction is necessary because the compliance period was changed from monthly in the proposed NESHAP (65 FR 44616, July 18, 2000) to annual in the final NESHAP (67 FR 39794, June 10, 2002), and the timeline was not corrected in the final NESHAP to reflect that change. This action will not change the level of health protection of the Metal Coil Surface Coating NESHAP or the basic control requirements. The NESHAP requires new and existing major sources to control emissions of hazardous air pollutants (HAP) to the level reflecting application of the maximum achievable control technology.
March 17, 2003.
Docket No. A-97-47 contains the supporting information used in developing the Metal Coil Surface Coating NESHAP. The EPA Docket Center is located at the U.S. EPA, 1301 Constitution Avenue, NW., Room B102, Washington, DC 20460.
Ms. Rhea Jones, Coatings and Consumer Products Group (C539-03), Emission Standards Division, U.S. EPA, Research Triangle Park, NC 27711; telephone number (919) 541-2940; facsimile number (919) 541-5689; electronic mail address:
Regulated Entities. All entities regulated under the Metal Coil Surface Coating NESHAP will be affected by this correction. Categories and entities potentially regulated by the NESHAP include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. To determine whether your facility is regulated by the Metal Coil Surface Coating NESHAP, you should examine the applicability criteria in § 63.5090 of the NESHAP. If you have any questions regarding the applicability of this action to a particular entity, consult the appropriate Regional Office representative.
Today's action consists of corrections to 40 CFR 63.5180(g)(1), subparagraphs (i) and (ii). In the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because EPA has made a “good cause” finding that this action is not subject to notice and comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601,
The technical corrections action does not involve technical standards. The EPA's compliance with § 12(d) of the
The technical corrections are not subject to Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because they are not a significant regulatory action under Executive Order 12866.
The Congressional Review Act (CRA) (5 U.S.C. 801,
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(g) * * *
(1) * * *
(i) The first semiannual reporting period begins 1 day after the end of the initial compliance period described in § 63.5130(d) that applies to your affected source and ends 6 months later.
(ii) The first semiannual compliance report must cover the first semiannual reporting period and be postmarked or delivered no later than 30 days after the reporting period ends.
Environmental Protection Agency.
Final rule.
The U.S. Environmental Protection Agency (EPA) today modifies the designation of the Historic Area Remediation Site (hereinafter referred to as HARS) by establishing a HARS-specific worm tissue polychlorinated biphenyl (PCB) criterion of 113 parts per billion (ppb) for use in determining the suitability of proposed dredged material for use as Remediation Material. This amendment to the HARS designation establishes a pass/fail criterion for evaluating PCBs in worm tissue from bioaccumulation tests performed on dredged material proposed for use at the HARS as Remediation Material. The PCB criterion will remain in effect until after EPA and the U.S. Army Corps of Engineers (USACE) complete their review of the 2002 scientific peer review comments on the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use at the HARS as Remediation Material for human health effects, conduct and respond to the comments on the future scientific peer review on the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use at the HARS as Remediation Material for ecological effects, and revise, as necessary, the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use as Remediation Material at the HARS for all contaminants of concern in accordance with the September 27, 2000 Memorandum of Agreement (MOA) (USEPA, 2000a) between EPA and the USACE.
Among other things, the September 27, 2000 MOA established an interim guidance value of 113 ppb for PCBs in the tissues of bioassayed worms, to be considered when determining whether proposed dredged material from the New York/New Jersey Harbor is acceptable for placement at the HARS. At the time of the MOA, the agencies agreed that, while the peer review was not complete, the implementation of this interim change was warranted based upon existing information. This
Upon signing the MOA, EPA withdrew its concurrence (given prior to the MOA) for the U.S. Gypsum Corporation to place dredged material at the HARS as Remediation Material. U.S. Gypsum brought suit against the USACE and EPA, and in a July 10, 2002 decision, the U.S. District Court, Southern District of New York, held that the announcement of the 113 ppb interim value in the MOA was
This final regulation is effective on April 16, 2003.
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Mr. Douglas Pabst, Team Leader, Dredged Material Management Team, U.S. Environmental Protection Agency Region 2, 290 Broadway, New York, NY 10007-1866 (E-mail
Entities potentially affected by this action include those who might have sought or will seek permits or authorizations to place dredged material into ocean waters at the HARS for purpose of remediation, under the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. 1401
Other entities potentially affected by today's final rule would include commercial and recreational fishing interests using New York Bight Apex fishing and shellfishing grounds. However, by establishing a pass/fail interim PCB tissue criterion that is approximately 75 percent lower than the previously established 400 ppb worm tissue guideline for remediation of areas adversely impacted by historic disposal activities (
On October 8, 2002 EPA proposed modifying the designation of the HARS by establishing a HARS-specific worm tissue PCB criterion of 113 ppb for use in determining the suitability of proposed dredged material for use as Remediation Material. (67 FR 62659).
The MPRSA was enacted in 1972 to address and control the dumping of materials into ocean waters. Title I of MPRSA authorized EPA (and the USACE in the case of dredged material) to regulate dumping in ocean waters. Since the MPRSA was enacted, and through its subsequent amendments (including the Ocean Dumping Ban Act of 1988, which prohibited ocean dumping of sewage sludge and industrial waste), dumping in the New York Bight has been dramatically reduced.
With few exceptions, the MPRSA prohibits the transportation of material from the United States for the purpose of ocean dumping except as may be authorized by a permit issued under the MPRSA. The MPRSA divides permitting responsibility between EPA and the
Section 102(c) of the MPRSA provides that EPA shall designate recommended times and sites for ocean dumping, and section 103(b) further provides that the USACE shall use such EPA designated sites to the maximum extent feasible. Regulations implementing these and other provisions of MPRSA are set forth at 40 CFR parts 220 through 229. Forty CFR part 228 provides that EPA's designation of an ocean dumping site is accomplished by promulgation of a site designation specifying the site. On October 1, 1986, the Administrator delegated the authority to designate/de-designate ocean dumping sites for dredged material to the Regional Administrator of the Region in which the site is located. In accordance with that authority, EPA Region 2 designated the HARS in September 1997 for placement of dredged material suitable for use as Material for Remediation, 40 CFR 228.15(d)(6); 62 FR 46142 (August 29, 1997). Pursuant to that designation, use of the HARS is restricted to dredged material determined to be suitable for use as Material for Remediation.
Material for Remediation, or Remediation Material, is defined in 40 CFR 228.15(d)(6)(A) as material “selected so as to ensure it will not cause significant undesirable effects including through bioaccumulation or unacceptable toxicity, in accordance with 40 CFR 227.6.” The HARS was designated for continuing use until EPA determines that the PRA (Primary Remediation Area: a nine square nautical mile area to be remediated) has been sufficiently capped with at least 1 meter of the Material for Remediation. This Remediation Material is, “uncontaminated dredged material (
On September 27, 2000, EPA and the U.S. Army Corps of Engineers (USACE) entered into a Memorandum of Agreement (MOA) that announced a schedule and a process by which EPA and USACE would review the science and the guidelines used in the evaluation of dredged material proposed for placement as Remediation Material at the HARS. Specifically, the Agencies committed to the shared objective of completing the scientific peer review process initiated by EPA, and responding to input from both the peer review and the public.
EPA is today modifying the HARS designation (40 CFR 228.15(d)(6)) by establishing a HARS-specific worm tissue PCB criterion of 113 ppb for dredged material proposed for use as Material for Remediation, pursuant to 40 CFR 228.10 and 228.11(c). This value will remain in effect until after EPA and the U.S. Army Corps of Engineers (USACE) complete their review of the 2002 scientific peer review comments on the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use at the HARS as Remediation Material for human health effects, conduct and respond to the comments on the future scientific peer review on the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use at the HARS as Remediation Material for ecological effects, and revise, as necessary, the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use as Remediation Material at the HARS for all contaminants of concern in accordance with the September 27, 2000 MOA between EPA and the USACE. It should be noted that MPRSA site designation does not constitute or imply EPA's approval of the placement of particular material at the site. Before placement of the Material for Remediation at the HARS may commence, the USACE must evaluate permit applications according to EPA's Ocean Dumping Regulations and obtain EPA's concurrence.
In the preamble to the proposed rule, EPA requested public comment by November 8, 2002, and held two public hearings (attended by an estimated total of 120 people) as follows:
Dredging and remediation of the HARS has proven to be a controversial and complex issue in recent years. As would be expected in light of such controversy, EPA received both supportive and non-supportive comments. In developing the final rule, EPA reviewed and considered all the written comments as well as those received verbally at the two public hearings. Most of the comments received were e-mails from elected officials, local governments, citizens and environmental/public interest groups that expressed, to varying degrees, support for the 113 ppb HARS-specific worm tissue PCB criterion. Many of these comments requested that the proposed rule be adopted without change. Thus, the 113 ppb HARS-specific PCB worm tissue criterion appears to be acceptable to the majority of those who provided comments. Approximately 40 commenters requested an end to ocean dumping and placement of dredged material at the HARS; for these commenters, the 113 ppb HARS-specific PCB worm tissue criterion appears not to have been sufficiently conservative. Approximately 20 comment letters were critical and non-supportive. Although in the minority based upon number of comments received, they presented the majority of issues raised. These non-supportive comment letters were from the USACE, New York Shipping Association, New York City Economic Development Corporation, private marina owners, ferry operators, dredging applicants, and other business groups. These comment letters requested that EPA not finalize the proposed rule until completion of the human health and ecological scientific peer review process. (That process commenced in 1998, and is expected to be completed in four to five more years.) The non-supportive comments had similar criticism of the proposed rule. Most expressed reservations concerning the scientific basis and economic consequences for the HARS-specific worm tissue PCB criterion of 113 ppb and offered alternative ideas for estimating a HARS-specific PCB worm tissue criterion. Following are summaries of the most significant among these comments:
A few comments requested that EPA include a definition of PCBs in the final rule. For purposes of this rule total PCBs are defined in the EPA Region 2/USACE
The recommended method for estimating total PCB concentrations referenced in the RTM was changed on February 14, 1996 (EPA, 1996). The change was based on a review of various data sets that measured an extended list of PCB congeners (106 or more). The data indicated that total PCB tissue residue could be more reliably estimated by doubling the subtotal of the 22 PCB congeners listed above. The rationale and data sets supporting this change are described in the human health scientific peer review charge for the scientific peer review (EPA, 2001). After doubling the dredging project 28-day worm tissue bioaccumulation results of the 22 PCB congeners to obtain a total PCB tissue residue value for dredged material, the resulting total PCB tissue residue value is adjusted to reflect equilibrium conditions (steady state) by multiplying by 2. The resulting total PCB tissue residue value for dredged material will be compared to the 113 ppb HARS-specific PCB worm tissue criterion, for each dredging project.
A number of those who commented on the proposed rule suggested that EPA should wait for completion of the scientific peer review prior to promulgating any revision to the old 400 ppb matrix value for PCBs. EPA categorically rejects this view. The 400 ppb worm tissue matrix value, established as guidance in 1981, was based entirely on a non-degradation policy, and was not based on any kind of risk assessment. There is broad scientific consensus that the 400 ppb guidance value is not adequately protective of human health and the environment. Failure to revise the matrix value could result in propagating adverse impacts at the HARS that EPA is endeavoring to remediate.
In contrast, the 113 ppb worm tissue value is a rational, risk-based value, protective of human health and the environment, based upon available scientific information pending completion of the current scientific peer review and evaluation process. There is, moreover, solid evidence that further protective measures are needed. For example, for a number of years, the States of New York and New Jersey have had advisories for “limited consumption” of several species of fish (striped bass and bluefish) and lobster tomalley caught in the waters of the New York/New Jersey Harbor and Bight area, and have, in some cases, prohibited the sale, consumption, and/or harvesting of fish, crustacea, and shellfish due to toxic contamination, especially of PCBs and dioxins.
The HARS designation Supplemental Environmental Impact Statement (SEIS) (USEPA, 1997a), among other documents, contains significant evidence that dredged material disposal has contributed contaminants to the area, and therefore has likely contributed to the present conditions observed in the New York Bight Apex. Organisms living in or near these degraded surface sediments in nearshore waters will be continually exposed to contaminants until the contaminants are buried by natural sedimentation, placement of Remediation Material, or otherwise isolated or removed. Exposed sediments can directly and indirectly impact benthic and pelagic organisms. Impacts to terrestrial organisms (including human beings) are also possible if the contaminants were to undergo trophic transfer. Those conditions are cause for concern. In particular, contaminant bioaccumulation by infaunal organisms presents the potential for food chain/trophic transfer, potentially posing a risk not only to aquatic animals but also to seafood consumers. For example, elevated levels of PCBs and dioxin/furan compounds were found in the tissues of infaunal species and the hepatopancreas of lobsters collected from the vicinity of the former Mud Dump Site (MDS). The total PCB and 2,3,7,8-TCDD (dioxin) levels in lobster hepatic tissue sampled in the Bight Apex exceeded Food and Drug Administration (FDA) consumption guidance that, in most cases, recommends no consumption, or at least limited consumption, at those levels. (
The 113 ppb criterion appropriately furthers the remediation goals of the HARS. The need for remediating the HARS is extensively documented in the HARS designation rulemaking record, including the
EPA strongly disagrees with those comments that suggest that the current peer review process should be completed before any action is taken to update the old 1981 matrix value of 400 ppb. EPA believes that it is entirely inappropriate to perpetuate an outdated and non-protective criterion simply because scientific consideration of the matter is ongoing. Indeed, science is by definition always ongoing, and in this context scientific developments will continue long after the current peer review of the HARS criteria is completed. Completion of the peer review process will certainly be an important milestone, and EPA anticipates that at that time, the criteria for many contaminants of concern will be revised. It is possible, perhaps even likely, that further revisions of the value for PCBs will also be made at that time. But it is unreasonable to suggest that EPA should not act today, based on the best scientific information available at present, to replace a demonstrably unprotective value with a protective one, simply because better information may be available several years from now.
The scientific peer review process was initiated in 1998, continues today, and more time will be necessary to complete it. EPA believes that the interim PCB criterion is reasonable, based on the currently available scientific information, and is appropriately conservative to provide for the continued management of the HARS to reduce impacts within the Primary Remediation Area (PRA) to acceptable levels in accordance with 40 CFR 228.11(c), as required in 40 CFR 228.15(6)(A). It is important to implement a more appropriately conservative PCB criterion now, rather than to continue using guidelines that could potentially perpetuate benthic conditions that would need further remediation.
It is also important to note that the human health portion of the 2002 scientific peer review has been completed. The consensus opinions of
One of the central consensus opinions of the 2002 scientific peer review panel is that improvement of estimates of key exposure parameters requires that site-specific studies be conducted to obtain updated or better information. The USACE and EPA have developed several scopes of work for studies to obtain this information. It is clear, however, that many of these necessary studies will require substantial time to complete. The interim PCB tissue criterion would ensure that material that is placed at the HARS attains a level of protection consistent with the current best estimates of exposure and with the remedial intent of the HARS.
The PCB criterion will remain in effect until after EPA and the USACE complete their review of the 2002 scientific peer review comments on the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use at the HARS as Remediation Material for human health effects, conduct and respond to the comments on the future scientific peer review on the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use at the HARS as Remediation Material for ecological effects, and revise, as necessary, the HARS testing evaluation process used for bioaccumulation data from dredged material proposed for use as Remediation Material at the HARS for all contaminants of concern in accordance with the September 27, 2000 MOA between EPA and the USACE. When the above steps are completed, any further changes to the HARS testing evaluation process used to evaluate PCBs, or other contaminants of concern, will be the subject of further rulemaking, as necessary. EPA estimates that it will take four to five years to fully complete this process, including additional rulemaking, as necessary.
A frequent observation made in the negative comments on the proposed rule is that the site-specific exposure assumptions used by EPA in calculating the 113 ppb HARS-specific PCB worm tissue criterion are “overly conservative” or “unrealistic.” EPA rejects this assertion. The 113 ppb HARS-specific PCB worm tissue criterion is designed to be appropriately conservative to protect human health and the marine environment. The value was calculated using a non-cancer Hazard Quotient of 1, the level recommended by EPA Superfund guidance for remediation of sites with hazardous substance contamination; and a cancer risk factor of 10
Where EPA was conservative in calculating the PCB criterion, this conservative approach was appropriate given the relative paucity of data from which to derive alternative, site-specific exposure figures. However, the conservativism of individual exposure assumptions made in the calculation is balanced by EPA's use of a less conservative cancer risk level of 1 × 10
The comments that criticized EPA's conservative exposure assumptions also failed to note the ultimate intent of the proposed rule, which is to further the remediation of the HARS. The need for and intent of such remediation was clearly established in the HARS designation in 1997 (62 FR 46142).
Some comments have made dire predictions about economic dislocations if EPA proceeds with the proposed promulgation of the 113 ppb HARS-specific PCB worm tissue criterion. EPA does not believe that this will be a likely outcome. On the contrary, dredging activity, and placement of dredged material at the HARS, has continued apace in the more than two years since the September 2000 MOA, when EPA and USACE first started using the PCB value of 113 ppb. Undoubtedly, some dredgers who would wish to use the HARS will be unable to do so because their material does not satisfy the 113 ppb criterion; and it may cost more for these individual dredgers to dispose of the material elsewhere. However, EPA disagrees that widespread, adverse economic consequences are to be expected from this rulemaking. Specifically, there has been more dredged material placed at the HARS since the 113 ppb PCB value was announced under the September 2000 MOA (approximately 11 million cubic yards, based on scow volume, of maintenance and deepening dredged material), than was placed in previous years (approximately 4 million cubic yards, based on scow volume, of maintenance and deepening) (USACE, 2002). A PCB criterion of 113 ppb would render only approximately 300,000 cubic yards of maintenance dredged material from 3 past projects, since the September 2000 MOA (U.S. Gypsum, Port Imperial, and a portion of Naval Weapons Station Earle), unsuitable for placement at the HARS at an estimated cost of $14.1 million. A PCB criterion of 113 ppb would render approximately 1.2 million cubic yards (including the 300,000 mentioned earlier) of maintenance dredged material from 8 past projects (including the three discussed above) since the HARS was designated (Buttermilk Channel, Raritan River, Raritan Cutoff, Refined Sugars [now American Sugars], and Castle Astoria) unsuitable for placement at the HARS, which represents an average of 240,000 cubic yards per year (over a 5 year period). EPA estimated a worst case scenario of 1.33 million cubic yards in any given year would be unsuitable for the HARS based upon todays rule, at a cost of $62.5 million. See response to comment 7-2 in the Response to
Nevertheless, MPRSA section 103(b) expressly provides an opportunity for the USACE to select a disposal site meeting the criteria of 40 CFR part 228, should use of an EPA-designated site prove not to be feasible. Existence of an EPA-designated disposal site thus is not a prerequisite for ocean disposal, nor does it bar use of other sites selected in accordance with section 103(b).
Further, MPRSA section 103(b) states that in considering permit applications, the Secretary's determination as to the need for the dumping is to be “[b]ased upon an evaluation of the potential effect of a permit denial on navigation, economic and industrial development, and foreign and domestic commerce of the United States * * *” And, in the highly unlikely event that there was to be no economically feasible alternative to ocean disposal, MPRSA section 103(d) provides the opportunity for the Secretary of the Army to seek a waiver of the environmental criteria. EPA's rulemaking in no way affects that authority.
One comment requested that EPA “grandfather” existing dredging projects that have an approved Testing Evaluation Memo (signed by EPA and the USACE), but do not have a USACE permit or authorization. EPA considered this comment and has determined that the 113 ppb HARS-specific PCB worm tissue criterion will be applied to all USACE permit and authorization requests pending as of the effective date of the final rule and all permit and authorization requests filed thereafter.
EPA carefully considered and responded to each comment received. A complete Response to Comments Document has been prepared which contains all the comments received and EPA's responses to each of these comments. That document is available for viewing at the location specified in the section titled, “How Can You Get Additional Information or Copies of Support Documents” below.
1.
2.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.”
Today's action, which establishes a HARS-specific PCB worm tissue criterion of 113 ppb, is not a significant regulatory action under E.O. 12866. In particular, as explained in the Response to Comments Document included in the record for this rule, even if one assumes a worst case scenario of 4 million cubic yards of maintenance dredged material from New York/New Jersey Harbor for one year, the projected worst-case economic impact could be approximately $62.5 million or as low as $14.1 million per year depending upon the dredging volume determined to be unsuitable for the HARS (
This final rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
After considering the economic impact of today's final rule on small entities, the Agency certifies that this action will not have a significant economic impact on a substantial number of small entities as explained below.
For the purposes of assessing the impacts of today's rule on small entities, a small entity is defined as: (1) A small business based on the Small Business Administration's (SBA) size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The SBA thresholds define minimum employment, sales revenue, or other factors than may qualify an industry segment as small. Size standards have been established for types of economic activity, or industry, generally under the North American Industry Classification System (NAICS) defined at 13 CFR 121.201. Table 1 lists the SBA size standards and NAICS codes for businesses potentially applicable to today's rule.
EPA obtained information about all permits issued and any current permit applications in order to assess the potential universe of small entities that could be affected by today's rule. Since the HARS was first designated in 1997, the U.S. Army Corps of Engineers has received 19 private permit application for HARS placement (USEPA, 2003b), of which 15 permits were issued (Federal authorizations were not included in this analysis as the USACE is not a small entity), and there are currently 2 active permit applications pending (New York Waterways and Naval Weapons Station Earle Pier 3). The remaining permit applications (New York State Thruway and Department of Army, Op Sail) are no longer active. As the HARS is expected to exist for a limited time, until the PRA has been remediated with at least one meter of Remediation Material, EPA believes it is reasonable to assume that the universe of current and pending applications (based upon over 5 years of application history) constitutes the reasonable universe of entities affected by the todays' rule. Of the 19 permit applications, only 4 (Castle Astoria Terminals, Inc., Port Imperial Marina, New York WaterWays, and International Matex Tank Terminals) are small entities, which is not a substantial number of small entities. Of the four, three (Castle Astoria Terminals, Inc., Port Imperial Marina, and New York WaterWays) would have been affected by today's proposal, based upon past permitting information. Castle Astoria Terminals, Inc. has had a permit for HARS placement since 1999, which expired in January 2003, but they never dredged. Port Imperial Marina recently received a permit for HARS placement, but dredges very infrequently. New York WaterWays does not currently have a HARS placement permit, and has not dredged for many years. Further, these small entities are only a very small percentage of their SIC code. This analysis was included in the preamble to the proposed rule (67 FR 62659) and no additional small businesses were identified during the comment period.
In summary, based on past permit information, there would have been only a few small entities affected by the final rule, with low impacts. As such, EPA concludes that the final rule will not have a significant impact on a substantial number of small entities. Therefore, for the reasons explained above, the Regional Administrator certifies, pursuant to section 605(b) of the RFA, that the final rule will not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal Mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have
EPA has determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. EPA estimated total annualized (post-tax) costs of compliance for the final rule to be between $14.1 million and $62.5 million (worst case scenario).
EPA also has determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments. This final rule would apply equally to all dredged material to be placed at the HARS, thus there would be no unique effect of the rule on small governments. This rule is not anticipated to result in significant expenditures for small governments based on the universe of permit holders and applicants for the HARS. Thus, the requirements of section 203 of UMRA also do not apply to this rule.
Executive Order 13132, entitled “Federalism” (64
This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus Executive Order 13132 does not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65
This final rule does not have Tribal implications. It would not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. EPA does not have information indicating that any Tribe would incur costs because of this rule. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045 (62
This final rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66
Section 12(d) of the National Technology Transfer Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency must conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.
No action from this final rule will have a disproportionately high and adverse human health and environmental effect on any segment of the population. In addition, this rule does not impose substantial direct
The Congressional Review Act, 5 U.S.C. 801
Section 102(c) of the National Environmental Policy Act of 1969, section 4321
In August 1982, EPA published a final EIS for the designation of the New York Dredged Material Disposal Site (Mud Dump Site). The EIS assessed the environmental impacts of establishing an ocean disposal site for 100 million cubic yards (mcy) of dredged materials generated within the Port of New York and New Jersey. After completion of the EIS, EPA designated the Mud Dump Site as an Impact Category I disposal site (
However, EPA received comments on the proposed rule questioning EPA's determination that no further NEPA evaluation is required to establish the 113 ppb HARS-specific PCB worm tissue criterion. Specifically, these comments questioned whether EPA was remiss in not evaluating the need for, and impacts associated with the use of, other disposal methods in light of the new PCB criterion. In point of fact, EPA does not evaluate such issues when designating ocean disposal sites because permission to use an ocean site for the disposal of dredged material can be granted only after a determination has been made that no alternative disposal options exist. Evaluations of alternative disposal options are more properly performed in the review process for individual ocean dumping permit applications. As such, EPA again concludes that no further NEPA documentation is needed to establish a 113 ppb HARS-specific PCB worm tissue criterion.
Under section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), Federal agencies are required to “insure that any action authorized, funded, or carried on by such agency * * * is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species. * * *”. Under regulations implementing the Endangered Species Act, a federal agency is required to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (depending on the species involved) if the agency's action “may effect” endangered or threatened species or their critical habitat.
EPA initiated its consultation process with the U.S. Fish and Wildlife Service (USFWS) on April 6, 1995 for what was then the Mud Dump Site and surrounding areas. The consultation process was concluded with them on July 28, 1995, with the USFWS's concurrence that EPA's action was not likely to adversely affect federally listed species under its jurisdiction. The action covered by this final rule is more protective of the marine environment. Accordingly, the conclusions of our earlier consultation with the USFWS for the designation of the HARS are still valid.
EPA initiated threatened and endangered species consultation with the National Marine Fisheries Service (NMFS) on April 4, 1996. As directed by the NMFS, EPA prepared a Biological Assessment (BA) (USEPA, 1997c) to assess the impacts of the designation of the HARS on the Kemp's ridley and loggerhead sea turtles, and the humpback and fin whales. In May 1997, EPA sent the NMFS a copy of the BA, which concluded that the designation of the HARS is not likely to adversely affect the species in question; NMFS concurred with this conclusion. Since the BA utilized a PCB worm tissue matrix value of 400 ppb and this final rule proposes 113 ppb, any impacts to endangered or threatened species, or their critical habitats resulting from this action will be positive; the conclusion of the earlier consultation with NMFS is still valid.
The 1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) require the designation of essential fish habitat (EFH) for federally managed species of fish and shellfish. Pursuant to section 305(b)(2) of the MSFCMA, federal agencies are required to consult with the National Marine Fisheries Service (NMFS) regarding any action they authorize, fund, or undertake that may adversely affect EFH. An adverse effect has been defined by the Act as follows: “Any impact which reduces the quality and/or quantity of EFH. Adverse effects may include direct (
Executive Order 12866 requires each agency to write all rules in plain language. EPA has written this final rule in plain language to make this final rule easier to understand.
Executive Order 13158 (65
The HARS-specific PCB worm tissue criterion of 113 ppb is the non-cancer (hazard quotient of 1), and is the lower of the 282 ppb cancer (1 × 10
Environmental protection, Water pollution control.
In consideration of the foregoing, EPA is amending part 228, Chapter I of title 40 of the Code of Federal Regulations as follows:
33 U.S.C. 1412 and 1418.
(d) * * *
(6) * * *
(v) * * *
(E) HARS-specific Polychlorinated Biphenyl (PCB) Tissue Criterion: Total PCB bioaccumulation worm test results for dredged material approved for placement at the HARS as Material for Remediation shall not exceed the HARS-specific PCB tissue criterion of 113 ppb. This HARS-specific PCB tissue criterion will be applied to the arithmetic mean concentration reported for the analyses of the worm tissue replicates exposed to the tested sediments, without the use of statistical confidence limits.
Office of Governmentwide Policy, Travel Management Policy Division, GSA.
Final rule.
This final rule amends the Federal Travel Regulation (FTR), Chapter 304 for payment of travel expenses from a non-Federal source. This final rule permits after-the-fact agency acceptance of some payments from a non-Federal source for travel expenses to a meeting.
This final rule is effective June 16, 2003, and applies to payment of expenses from a non-Federal source on or after June 16, 2003.
Umeki Thorne, Program Analyst, telephone (202) 208-7636 for clarification of content. For status or publication schedules, contact the Regulatory and Federal Assistance Publications Division, Room 4035 GS Building, Washington, DC 20405, at (202) 208-7312.
This final rule revises Interim Rule 3 published in the
This final rule sets forth allowable expenses authorized under 31 U.S.C. 1353 and 5 U.S.C. 5701-5709 to allow agencies the acceptance of payment from a non-Federal source for travel expenses and under the authority of 5 U.S.C. 4111(b) to accept payment for the reduction in meetings and training allowances. A proposed rule with request for comment was published in the
Section 304-2.1 sets the definitions of terms for this chapter. One Federal agency commented that the word “definition” should be replaced with the word “term”. GSA is not persuaded that this change is needed. Therefore, the word “definition” remains unchanged. One Federal agency commented that under the definition of “meeting(s) or similar functions” there is no distinction between events essential to an agency's mission and those merely in furtherance of that mission's needs. GSA has considered this comment and has added a parenthetical within this definition to adequately describe a distinction that remains fundamental to the interpretation of 31 U.S.C. 1353. Under the definition of “meeting(s) or similar functions”, this term is not intended to encompass long-term temporary duty or training travel.
Section 304-3.8 exempts air transportation paid by a non-Federal source from the requirements of the Fly America Act (Act). One Federal agency commented that this section implies that an employee will have a working knowledge of the Act's requirements and that the explanation of the Act is confusing. GSA appreciates this comment. Although § 304-3.8 exempts air transportation paid by a non-Federal source from the requirements of the Fly America Act, additional language has been inserted within the answer of this section to address where an employee may find the regulations implementing the Fly America Act.
Section 304-3.11 generally limits payment of travel expenses by a non-Federal source to the maximum subsistence allowances prescribed in the Federal Travel Regulation, or other applicable governmentwide travel entitlement for military and foreign service personnel. One Federal agency recommended that this policy also include conference lodging as a form of subsistence allowance. GSA agrees with this comment and has modified § 304-3.11 to include conference lodging as a form of maximum subsistence allowance for travel expenses paid by a non-Federal source.
Section 304-3.13 of the proposed rule permits after-the-fact agency acceptance of payment from a non-Federal source for travel expenses to a meeting under certain circumstances.
Four comments were received from Federal agencies regarding after-the-fact authorization for acceptance of travel expenses. Comments from two Federal agencies are in approval of and appreciate this policy change. One Federal agency questions the reason for this policy change. One Federal agency opposes this policy change and recommended that this section be removed. GSA carefully reviewed these comments. The inclusion of this policy change will allow Federal employees the flexibility to accept payment from a non-Federal source only when the limited conditions under § 304-3.13 are met. Therefore, this policy change remains as published in the proposed rule.
In addition, one Federal agency commented that §§ 304-3.13(b)(3) and (4) should be revised and combined to specifically inform employees that they are subject to penalties specified in § 304-3.18 if they are not in compliance with the requirements of §§ 304-3.13(a) and 304-3.13(b). GSA considered this comment, and for better clarification has replaced § 304-3.13(b)(4) under a separate section as § 304-3.13(c).
Section 304-3.14 establishes the conditions under which an agency may pay for a spouse to accompany an employee to a meeting. One Federal agency commented that this section omitted a current condition that determined when a spouse's attendance at a meeting may be in the interest of the agency. GSA inadvertently omitted this requirement and has thereby revised § 304-3.14 to include this requirement.
This part 304 includes new language in §§ sections 304-3.19 and 304-4.3 to clarify the distinction between the authority for an agency to accept payment for travel and related expenses to a meeting as defined in this part versus the authority for an employee to accept free attendance at a widely attended gathering under 5 CFR 2635.204(g)(2). We made this change in consultation with the Office of Government Ethics because of concerns that the widely attended gathering authority might be used to avoid the reporting requirements of this part 304. For travel to a meeting, part 304 is the only authority agencies may use to accept payment from a non-Federal source. There may be cases where the widely attended gathering authority could be used while an employee is on official travel. For example, when an agency accepts payment from a non-Federal source or pays for an employee's travel to attend a meeting, any event for which the widely attended gathering authority is used must be separate from the meeting. This is true regardless of whether the agency uses part 304 authority to accept travel expenses or the agency pays the travel expenses itself.
In addition to the distinction as to whether the employee is traveling to a meeting, or is attending a separate event, part 304 and the widely attended gathering authorities also differ in that use of the part 304 acceptance authority is appropriate when the employee is on official travel and performing an official function. By contrast, the rules governing widely attended gatherings state, “For employees subject to a leave system, attendance at the event shall be on the employee's own time, or if authorized by the employee's agency, on excused absence pursuant to applicable guidelines for granting such absence, or otherwise without charge to the employee's leave account.” (5 CFR 2635.204(g)(2)). Another distinction to note is that travel expenses may not be accepted under the widely attended gatherings exception. (5 CFR 2635.204(g)(4)).
Section 304-6.4 requires an agency head or designee to submit Standard Form (SF) 326, Semiannual Reports of Payments Accepted from a Non-Federal source. One Federal agency commented that the current policy does not mandate the requirement of this form and that the Office of Government Ethics (OGE) currently accepts an internal agency form that includes all of the information required by § 304-6.4. GSA appreciates this comment. It is not GSA's intent to make a significant substantive policy change through the required use of SF 326. Section 304-6.4 has been modified to allow agencies the ability to request an exemption from the use of SF 326 through OGE.
Section 304-6.6 tells agencies how to determine the value of payments in kind for reporting on SF 326. One Federal agency commented that § 304-6.6(e) should include a statement that where a commercial rate is not available all employees must report the maximum lodging rate for the per diem locality where the meeting is held as established by GSA for CONUS, Department of Defense for OCONUS, and Department of State for foreign locations. GSA considered this comment as appropriate and has amended § 304-6.6(e) accordingly.
One Federal agency commented that in the answer to this question employees should be informed of The Federal Claims Collection Standards which provides detailed guidance regarding Governmentwide debt collection policies and procedures. GSA has considered this comment and has modified § 304-9.4 accordingly.
This final rule is written in the “plain language” style of regulation writing as a continuation of the General Services Administration's (GSA) effort to make the FTR easier to understand and use. Questions are in the first person, and answers are in the second person. GSA uses a “we” and “you” question when referring to an agency, and an “I” and “you” question when referring to the employee. However, the rules stated in either section apply to both the employee and agency. Another example of GSA's implementation of plain language is the use of the term “meeting” throughout this part instead of the phrase “meeting(s) or similar functions.” This change is indicated in the definition of “meeting(s) or similar functions” and no substantive change is intended by this change.
The final rule permits after-the-fact agency acceptance of some payments from a non-Federal source for travel expenses to a meeting under the provisions prescribed in § 304-3.13.
GSA has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866 of September 30, 1993.
This final rule is not required to be published in the
The Paperwork Reduction Act does not apply because the final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget under 44 U.S.C. 501,
This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Government employees, Travel and transportation expenses.
5 U.S.C. 5707; 5 U.S.C. 5738; 5 U.S.C. 5741-5742; 20 U.S.C. 905(a); 31 U.S.C. 1353; 40 U.S.C. 121(c); 49 U.S.C. 40118; E.O. 11609, 1971-1975 Comp. p.586.
31 U.S.C. 1353 and 5 U.S.C. 5707.
Use of pronouns “I”, “you”, and their variants throughout this part refers to the employee.
Under the authority of this part and 31 U.S.C. 1353, you may accept payment of travel expenses from a non-Federal source on behalf of your agency, but not on behalf of yourself, when specifically authorized to do so by your agency and only for official travel to a meeting. Except as provided in § 304-3.13 of this subchapter, your agency must approve acceptance of such payments in advance of your travel.
5 U.S.C. 5707; 31 U.S.C. 1353.
The following definitions apply to this chapter:
(1) An event where the employee will participate as a speaker or panel participant focusing on his/her official duties or on the policies, programs or operations of the agency.
(2) A conference, convention, seminar, symposium or similar event where the primary purpose is to receive training other than promotional vendor training, or to present or exchange substantive information of mutual interest to a number of parties.
(3) An event where the employee will receive an award or honorary degree, which is in recognition of meritorious public service that is related to the employee's official duties, and which may be accepted by the employee consistent with the applicable standards of conduct regulations.
5 U.S.C. 5707; 31 U.S.C. 1353.
Use of pronouns “I”, “you”, and their variants throughout this part refers to the employee.
The purpose of this part is to establish Governmentwide policy and guidance
Yes, you or your agency may accept such a payment from a non-Federal source, but you may only accept when your agency specifically authorizes such acceptance under the requirements of this part. Except as provided in § 304-3.13 of this part, your agency must approve acceptance of such payment in advance of your travel.
You or your agency may accept payments other than cash from a non-Federal source for all of your official travel expenses to attend a meeting of mutual interest, or any portion of those travel expenses mutually agreed upon between your agency and the non-Federal source. You may not accept payments for travel that is not to attend a meeting under this part. However, you may be able to accept payments under other authorities (see § 304-3.19).
No, you may not solicit payment for travel expenses from a non-Federal source to attend a meeting.
Yes, you or your agency may inform the non-Federal source of your agency's authority to accept payment for travel expenses to attend a meeting.
If you are contacted directly by a non-Federal source offering to pay any part of your travel expenses to attend a meeting, you must inform your agency, so that the authorized agency official can determine whether to accept the payment.
No, if the payment or ticket was paid in full directly by the non-Federal source or reimbursed to your agency by the non-Federal source, the provisions of the Fly America Act do not apply. (See §§ 301-10.131 through 301-10.143 of this title for the regulations implementing the Fly America Act.)
Yes, you may use premium other than first-class common carrier accommodations if your agency authorizes you to do so in accordance with § 304-5.5 of this chapter.
Generally no. You may not use first-class common carrier accommodations unless you meet one of the criteria for first class travel contained in §§ 301-10.123, 301-10.162 and 301-10.183 of this title and are authorized to do so by your agency in accordance with § 304-5.6 of this chapter.
Generally yes. Subsistence expenses are usually limited to the maximum subsistence allowances (per diem, actual expenses or conference lodging) prescribed in Chapter 301 of this title for travel in CONUS, by the Secretary of Defense for travel in non-foreign areas and by the Secretary of State for travel in foreign areas. However, acceptance of payment for, and when applicable, reimbursement by an agency to an employee and the accompanying spouse of such employee are not subject to the maximum per diem or actual subsistence expense rates when traveling in CONUS or in non-foreign areas under the following conditions:
(a) The non-Federal source pays the full amount of the subsistence expense, as authorized by your agency; and
(b) The subsistence expense paid by the non-Federal source is comparable in value to that offered to or purchased by other meeting attendees; and
(c) Your agency has approved acceptance of payment from the non-Federal source prior to your travel; if your agency has not approved any acceptance from the non-Federal source, you may not exceed the maximum allowances. See § 304-3.13.
The maximum subsistence allowances established by the Secretary of State for travel to foreign areas may not be exceeded.
Yes, you must receive advance approval from your agency before performing travel paid by a non-Federal source to attend a meeting except as provided in § 304-3.13.
(a) If your agency has already authorized acceptance of payment for some of your travel expenses for that meeting from a non-Federal source, then you may accept on behalf of your agency, payment for any of your additional travel expenses from the same non-Federal source as long as—
(1) The expenses paid or provided in kind are comparable in value to those offered to or purchased by other similarly situated meeting attendees; and
(2) Your agency did not decline to accept payment for those particular expenses in advance of your travel.
(b) If your agency did not authorize acceptance of any payment from a non-Federal source prior to your travel, then—
(1) You may accept, on behalf of your agency, payment from a non-Federal source as authorized in this section—
(i) Only the types of travel expenses that are authorized by your travel authorization (
(ii) Only travel expenses that are within the maximum allowances stated on your travel authorization (
(2) You must request your agency's authorization for acceptance from the non-Federal source within 7 working days after your trip ends; and
(3) If your agency does not authorize acceptance from the non-Federal source, your agency must either—
(i) Reimburse the non-Federal source for the reasonable approximation of the market value of the benefit provided,
(ii) Require you to reimburse the non-Federal source that amount and allow you to claim that amount on your travel claim for the trip.
(c) If you accept payment from a non-Federal source for travel expenses in violation of paragraph (a) or paragraph (b) of this section, you may be subject to the penalties specified in § 304-3.18.
Yes, a non-Federal source may pay for your spouse to accompany you when it is in the interest of and authorized in advance by your agency. All limitations and requirements of this part apply to the acceptance of payment from a non-Federal source for travel expenses and/or agency reimbursement of travel expenses for your accompanying spouse. Your agency may determine that your spouse's presence at an event is in the interest of the agency if your spouse will—
(a) Support the mission of your agency or substantially assist you in carrying out your official duties;
(b) Attend a ceremony at which you will receive an award or honorary degree; or
(c) Participate in substantive programs related to the agency's programs or operations.
Yes. Your agency must submit to the U.S. Office of Government Ethics (OGE) a semiannual report (SF 326) of all payments it accepts under this part. You must be prepared to give your agency the information it needs in order to submit its report.
You must submit a travel claim listing all allowable travel expenses that you incurred which were not paid in kind by a non-Federal source. Do not claim travel expenses that were furnished in kind by a non-Federal source. Your reimbursement is limited to the types of expenses authorized in Chapter 301 of this title or analogous provisions of the Joint Travel Regulations or Foreign Affairs Manual. Reimbursement from your agency for expenses will not in any case exceed the amount of the expenses you incur. Such reimbursement will also adhere to established regulatory limitations except where your agency accepts payments under §§ 304-5.4, 304-5.5 or 304-5.6 of this chapter.
Generally, no. As long as payments you receive from a non-Federal source are made to or on behalf of your agency, you are not required to report them as gifts on any confidential or public disclosure report you are personally required to file pursuant to law or Office of Government Ethics (OGE) regulations (5 CFR part 2634). However, you may be required to report any such payments that you and/or your accompanying spouse receive on your own behalf, rather than on the agency's behalf, pursuant to other reporting requirements (
The confidential financial disclosure report is OGE Form 450 and the public financial disclosure report is SF 278.
If you accept payment from a non-Federal source in violation of this part—
(a) You may be required, in addition to any other penalty provided by law and applicable regulations, to pay the general fund of the Treasury, an amount equal to any payment you accepted; and
(b) In the case of reimbursement under paragraph (a) of this section, you will not be entitled to any reimbursement from the Government for your travel expenses that the payment was intended to cover.
Yes, you may also accept payment of travel expenses from a non-Federal source under the following authorities, in addition to this part:
(a) Under 5 U.S.C. 4111 for acceptance of contributions, awards, and other payments from tax-exempt entities for non-Government sponsored training or meetings (see regulations issued by the Office of Personnel Management at 5 CFR part 410).
(b) Under 5 U.S.C. 7342 for travel taking place entirely outside the United States which is paid by a foreign government, where acceptance is permitted by your agency and any regulations which may be prescribed by your agency.
(c) Under 5 U.S.C. 7324(b) when payment is for travel to be performed for a partisan rather than an official purpose in accordance with the Hatch Act (5 U.S.C. 7321-7326); or
(d) Pursuant to the applicable standards of ethical conduct regulations concerning personal acceptance of gifts. For example, under 5 CFR 2635.204(e), which authorizes executive branch employees to accept gifts based on outside business employment relationships. (Note: You may also be able to accept attendance at (but not other travel expenses to) a widely attended gathering under 5 CFR 2635.204(g)(2) when the gathering is not a meeting, as defined in this part, and you are not attending in your official capacity.)
5 U.S.C. 5707; 31 U.S.C. 1353.
Use of pronouns “we”, “you”, and their variants throughout this part refers to the agency.
The purpose of this part is to establish Governmentwide policy and guidance for acceptance by a Federal agency of payment for travel expenses from a non-Federal source for employees to attend meetings under 31 U.S.C. 1353. It prescribes how such payments may be accepted.
You may accept payment for travel expenses to events other than meetings from a non-Federal source pursuant to an agency gift statute or similar statutory authority. However, this part 304 is the only authority you may use to accept (or authorize your employee to accept on your behalf) payment for travel expenses from a non-Federal source to attend a meeting. For example, you could not pay the travel expenses
Employees may also be able to accept payment for travel expenses from non-Federal sources in their individual capacities under the authorities referenced in § 304-3.19.
5 U.S.C. 5707; 31 U.S.C. 1353.
You may accept payment from a non-Federal source or authorize an employee and/or the employee's spouse to accept payment on your behalf only when-
(a) You have issued the employee (and/or the employee's spouse, when applicable) a travel authorization before the travel begins;
(b) You have determined that the travel is in the interest of the Government;
(c) The travel relates to the employee's official duties; and
(d) The non-Federal source is not disqualified due to a conflict of interest under § 304-5.3.
An official at the highest practical administrative level who can evaluate the requirements in § 304-5.3, must approve acceptance of such payments.
(a) The approving official must not authorize acceptance of the payment if he/she determines that acceptance of the payment under the circumstances would cause a reasonable person with knowledge of all the facts relevant to a particular case to question the integrity of agency programs or operations. The approving official must be guided by all relevant considerations, including but not limited to the—
(1) Identity of the non-Federal source;
(2) Purpose of the meeting;
(3) Identity of other expected participants;
(4) Nature and sensitivity of any matter pending at the agency which may affect the interest of the non-Federal source;
(5) Significance of the employee's role in any such matter; and
(6) Monetary value and character of the travel benefits offered by the non-Federal source.
(b) The agency official may find that, while acceptance from the non-Federal source is permissible, it is in the interest of the agency to qualify acceptance of the offered payment by, for example, authorizing attendance at only a portion of the event or limiting the type or character of benefits that may be accepted.
(a) Generally, yes. Subsistence allowances are usually limited to the maximum subsistence allowances (per diem, actual expense, or conference lodging) prescribed in chapter 301 of this title for travel in CONUS, by the Secretary of Defense for travel in non-foreign areas, and by the Secretary of State for travel in foreign areas. However, the maximum subsistence allowances established by this title and by the Secretary of Defense may be exceeded as long as—
(1) The non-Federal source pays the full amount of the subsistence expenses, at issue; and
(2) The subsistence expense paid by the non-Federal source is comparable in value to that offered to or purchased by meeting attendees.
(b) The maximum subsistence allowances prescribed by the Secretary of State for travel to foreign areas may not be exceeded.
Yes, you may authorize an employee to travel by premium other than first-class common carrier accommodations as long as the—
(a) Non-Federal source makes full payment for such transportation services in advance of travel; and
(b) Transportation accommodations furnished are comparable in value to those offered to, or purchased by, other similarly situated meeting attendees.
Generally, no; however, you may authorize an employee to travel by first-class common carrier accommodations if the—(a) Travel meets at least one of the conditions in §§ 301-10.123, 301-10.162 and 301-10.183 of this title; and
(b) Transportation accommodations furnished are comparable in value to those offered to, or purchased by, other similarly situated meeting attendees.
Yes, you may accept payment from more than one non-Federal source for a single trip, as long as the total of such payments do not exceed the total cost of the trip.
5 U.S.C. 5707; 31 U.S.C. 1353.
No, you may not accept a monetary payment in the form of cash from a non-Federal source. Monetary payment(s) received from a non-Federal source must be in the form of a check or similar instrument made payable to the agency.
If you determine in advance of the employee's travel that payment from a non-Federal source will cover some but not all of the employee's allowable travel and subsistence expenses you should state on the employee's travel authorization that the employee will be reimbursed the difference between the full allowances and the payment from the non-Federal source. See chapter 301 of this Title, 6 Foreign Affairs Manual, Chapter 100, or the Joint Travel Regulations (JTR), Chapter 4, Parts L and Q, as applicable to determine the applicable maximum allowances.
If an employee accepts payment from a non-Federal source in violation of this part—
(a) You may require the employee, in addition to any penalty provided by law and applicable regulations, to pay the general fund of the Treasury, an amount equal to the payment so accepted; and
(b) The employee shall not be entitled to any reimbursement from the Government for such expenses.
Your agency head or designee must submit Standard Form (SF) 326, Semiannual Report of Payments Accepted From a Non-Federal Source (fully completed) to report payments received from non-Federal sources. This applies to all payments that are more than $250 per event for an employee and accompanying spouse. For purposes of the $250 threshold, payments for an employee and accompanying spouse shall be aggregated. If you wish to use a form other than SF 326 to report such payments, you may seek permission to do so by contacting the Office of Government Ethics at United States Office of Government Ethics, 1201 New York Avenue, NW., Suite 500, Washington, DC 20005-3917.
When completing the SF 326—
(a) You must fully complete each block on SF 326 without exception (including payments accepted for an accompanying spouse).
(b) You must also—
(1) Submit the SF 326 no later than May 31 for payments received from the preceding October 1 through March 31;
(2) Submit a SF 326 no later than November 30 for payments received from the preceding April 1 through September 30; and
(c) Submit the SF 326 including negative reports, to: Director of the Office of Government Ethics (OGE), 1201 New York Avenue, NW., Suite 500, Washington, DC 20005-3917.
The following should be used in the determination of the value of payments in kind for reporting on SF 326:
(a) For conference, training, or similar fees waived or paid by a non-Federal source, you must report the amount charged other participants.
(b) For transportation or lodging, you must report the cost that the non-Federal source paid or usually would have been charged for such event.
(c) For meals or other benefits that are not provided as part of the transportation, lodging, or a conference, training or similar fee, you must report the cost to the non-Federal source or provide a reasonable approximation of the market value of the benefit.
(d) For chartered, corporate or other private aircraft—
(1) When common carrier is available, you must report the first-class rate that would have been charged by a commercial air carrier at the time the event took place.
(2) When a common carrier is not available, you must report the cost of chartering a similar aircraft using a commercially available service.
(e) Lodging where no commercial rate is available: You must report the maximum lodging rate established by GSA for CONUS, Department of Defense for non-foreign areas and the Secretary of State for foreign areas. These rates are available on the Internet at the GSA Web site
No. Information that is protected by statute from disclosure to the public should not be reported on the SF 326. However, if you omit otherwise reportable information from the SF 326 because the information may not be disclosed, you must notify OGE unless otherwise prohibited by law and, if requested by the Director of OGE, make the information available for inspection by an OGE employee with the requisite clearance.
Yes, OGE must make any report filed by an agency under this part (that is not protected from disclosure by statute) available for public inspection and copying on the later of the following two dates:
(a) Within 30 days after the applicable due date.
(b) Within 30 days after the date OGE actually receives the report.
No. OGE is responsible for making the information provided by the agencies available to the public. It is each agency's responsibility to file the accurate and complete reports and to make the appropriate conflict of interest analysis.
5 U.S.C. 4111(b); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1975 Comp., p. 586.
The purpose of this subchapter is to provide for reductions in per diem and other travel reimbursement when employees receive contributions, awards and other payments from non-Federal sources for training in non-Government facilities and attendance at meetings under 5 U.S.C. 4111.
This subchapter applies to—
(a) Civilian officers and employees of—
(1) Executive departments as defined in 5 U.S.C. 101;
(2) Independent establishments as defined in 5 U.S.C. 104;
(3) Government corporations subject to chapter 91 of title 31 U.S.C.;
(4) The Library of Congress;
(5) The Government Printing Office (GPO);
(6) The government of the District of Columbia; and
(b) Commissioned officers of the National Oceanic and Atmospheric Administration.
The following, under 5 U.S.C. 4102 and the implementing regulation at 5 CFR 410.101(b), are exempt from this subchapter:
(a) A corporation supervised by the Farm Credit Administration if private interests elect or appoint a member of the board of directors.
(b) The Tennessee Valley Authority.
(c) An individual (except a commissioned officer of the National Oceanic and Atmospheric Administration) who is a member of a uniformed service during a period in which he is entitled to pay under 37 U.S.C. 204.
(d) The U.S. Postal Service, Postal Rate Commission and their employees.
5 U.S.C. 4111(b); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1975 Comp., p. 586.
A donor, for the purpose of this subchapter, is a non-profit charitable organization described by 26 U.S.C. 501(c)(3), that is exempt from taxation under 26 U.S.C. 501(a).
5 U.S.C. 4111(b); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1975 Comp., p. 586.
Use of pronouns “I”, “you”, and their variants throughout this part refers to the agency.
Yes, you may allow an employee to accept contributions and awards pertaining to training and payments incident to attendance at meetings when you specifically authorize them to do so in accordance with OPM guidelines issued under section 401(b) of Executive Order 11348 (see 5 CFR part 410) and section 303(j) of Executive Order 11348 (3 CFR, 1966-1970 Comp., p. 639). The OPM guidelines may be found at 5 CFR 410.501 through 410.503.
No, you may not reimburse an employee for expenses that are fully reimbursed by a donor for training in a non-Government facility, or travel expenses incident to attendance at a meeting.
Yes, you may reimburse an employee for training expenses that are not fully paid by a donor an amount considered sufficient to cover the balance of expenses to the extent authorized by law and regulation, including 5 U.S.C. 4109 and 5 U.S.C. 4110.
If you reimburse an employee for expenses that are also paid by a donor, you must establish and carry out policy in accordance with 5 U.S.C. 5514 and the Federal Claims Collection Standards (31 CFR parts 900-904) to recover any excess amount paid to the employee.
No, when a donor pays for travel expenses that the Government is not authorized to pay (such as travel expenses for an employee's family) no reduction in reimbursement to the employee is required.
Yes, you must set agency policy to ensure collection of expense data in such detail as you deem necessary to carry out this part.
Federal Communications Commission.
Final rule.
The Commission, at the request of Duluth-Superior Area Educational Television Corporation, substitutes DTV channel *31 for channel *18 at Hibbing, Minnesota.
Effective April 21, 2003.
Pam Blumenthal, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's Report and Order, MB Docket No. 01-116, adopted February 27, 2003, and released March 6, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail
Television broadcasting.
47 U.S.C. 154, 303, 334 and 336.
47 U.S.C. 154, 303, 334 and 336.
Fish and Wildlife Service, Interior.
Final rule; notice of reopening of comment period.
The U.S. Fish and Wildlife Service (Service), in response to the December 26, 2002, memorandum opinion and order of the United States District Court for the District of Columbia, in the case of
Comments must be postmarked or e-mailed by April 16, 2003.
Written comments and materials concerning this notice should be sent to the Field Supervisor, U.S. Fish and Wildlife Service, Montana Field Office, 100 N. Park Avenue, Suite 320, Helena, Montana 59601; or e-mail
Lori Nordstrom, Biologist, Montana Field Office, (
On March 24, 2000 (65 FR 16052), the Service published a final rule listing the contiguous United States DPS of the lynx as threatened under the Act. As described in the final rule, the range of the lynx where listed includes portions of the States of Colorado, Idaho, Maine, Michigan, Minnesota, Montana, New Hampshire, New York, Oregon, Utah, Vermont, Washington, Wisconsin, and Wyoming.
After the final rule was published, plaintiffs in the case of
On December 26, 2002, the Court issued its memorandum opinion and order, deciding that the Service's determination that “[c]ollectively, the Northeast, Great Lakes and Southern Rockies do not constitute a significant portion of the range of the DPS” must be set aside and “remanded to the agency for further consideration of the lynx's status under the ESA consistent with the analysis set forth in the accompanying memorandum opinion.” The Court explained that the Service's determination about the four regions was “counterintuitive and contrary” to the plain meaning of the Act's phrase “significant portion of the range.” The
This notice addresses the issues we will consider on remand. This notice does not address critical habitat for the lynx. We will request public comment on a proposed rule for critical habitat when it is published.
The Act defines the term “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act generally defines the term “endangered species” as a species which is in danger of extinction throughout all or a significant portion of its range. In the final rule, we found that “[c]ollectively, the Northeast, Great Lakes and Southern Rockies do not constitute a significant portion of the range of the DPS” and listed the species as threatened in 14 States. As directed by the Court, we are re-evaluating that determination.
Therefore, our re-evaluation will include an analysis of—(1) The quantity of lynx habitat and (2) the quality of lynx habitat in its range. In assessing habitat quality for lynx, we examine a variety of elements, such as primary prey (snowshoe hare) abundance, forest type, forest structure, snow conditions, denning habitat, inherent habitat patchiness, and connectivity with larger lynx populations and habitat in Canada. Lynx reproduction and recruitment into the population are indicators of habitat quality. Some qualitative information addressing some of these elements is contained in the administrative record for the final rule listing the lynx. In the brief time available to us, we will also re-examine available data on habitat quantity and any other factors relevant to the new determinations required by the court.
Listing decisions under the Act must be based on the best scientific information available. Additional information has become available since the lynx was listed in March 2000 that will be helpful to our analysis of what constitutes the “significant portion” of the lynx's range.
We are reopening the comment period on our determination concerning the significant portion of the range of the lynx. In particular, we are seeking comment on—(1) The quantity of lynx habitat and (2) the quality of lynx habitat. We also invite comments on other elements relevant to our determination concerning the significant portion of the range of the lynx. Our re-assessment will not be limited solely to the information identified in this notice or available on our website.
We intend to examine the following information that has become available since the listing of the lynx in March 2000 and may be pertinent to our analysis of a significant portion of the range for lynx—(1) Research on the historical occurrence and habitat ecology of lynx in eastern North America, (2) research on lynx movements, survival, habitat use, reproduction, and interspecific competition in Maine, (3) evidence of recent lynx occurrence and reproduction in Minnesota, (4) a report on historic lynx occurrence in Michigan, (5) research on the ecology of lynx in western Montana, (6) information from lynx reintroductions into Colorado, (7) information from the National Lynx Survey, (8) any available estimates of amount of lynx habitat on Federal lands, and (9) any additional information that may be applicable to our determination concerning the significant portion of the range issue that States, Tribes, or others have not already submitted to us prior to the listing in March 2000. This information will be included in the administrative record for this remanded determination.
The information identified above can be retrieved from the Internet at
The author of this notice is Lori Nordstrom, U.S. Fish and Wildlife Service, Montana Field Office (
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of removal of haddock trip limit.
NMFS announces that the Administrator, Northeast Region, NMFS (Regional Administrator) is suspending the haddock trip limit for the groundfish fishery for the remainder of the 2002 fishing year. The Regional Administrator has projected that less than 75 percent of the haddock target total allowable catch (TAC) will be harvested for the 2002 fishing year under the restrictive trip limits. This action is intended to allow fishermen to catch more of the haddock TAC, without exceeding it. Therefore, this action removes the haddock trip limit for the remainder of the 2002 fishing year.
Effective March 17, 2003 through April 30, 2003.
Susan Chinn, Fishery Management Specialist, 978-281-9218.
Framework Adjustment 33 to the NE Multispecies Fishery Management Plan, which became effective May 1, 2000, implemented the current haddock trip limit regulations (65 FR 21658, April 24, 2000). To ensure that haddock landings do not exceed the appropriate target TAC, Framework 33 established a haddock trip limit of 3,000 lb (1,360.8 kg) per NE Multispecies day-at-sea (DAS) fished and a maximum trip limit of 30,000 lb (13,608 kg) of haddock for the period May 1 through September 30; and 5,000 lb (2,268 kg) of haddock per DAS and 50,000 lb (22,680 kg) per trip
The Regional Administrator has projected that, for fishing year 2002, Georges Bank haddock landings are estimated to be about 16,209,000 lb (7,352 mt), accounting for about 63 percent of the assumed target TAC (11,680 mt). Based on the March 2002 “Final Report of the Working Group on Re-Evaluation of Biological Reference Points for New England Groundfish,” the projected Georges Bank haddock target TAC for the 2002 fishing year is 17,337 mt (based on an average of the target TAC for the 2002 and 2003 calendar years). The projected 2002 landings for Georges Bank haddock with the trip limits in effect would use only about 42 percent of the target TAC (17,337 mt). Given that under current management measures less than 75 percent of the 2002 fishing year haddock target TAC is projected to be harvested by April 30, 2003, the Regional Administrator has determined that suspending the haddock trip possession limits will provide the industry with the opportunity to harvest at least 75 percent of the TAC for the 2002 fishing year.
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to all BAE Systems (Operations) Limited Model ATP airplanes. This proposal would require installing a baulking device for the pintle pin in the nose landing gear (NLG). This action is necessary to prevent failure of the NLG due to an unlocked pintle pin migrating from its support housings, and consequent jamming or collapse of the NLG. This action is intended to address the identified unsafe condition.
Comments must be received by April 16, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-162-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-162-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-162-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified the FAA that an unsafe condition may exist on all BAE Systems (Operations) Limited Model ATP airplanes. The CAA advises that there have been reports of the nose landing gear (NLG) failing to retract and/or lock down on Model ATP airplanes and on certain British Aerospace Model HS 748 series airplanes. Investigation revealed that incorrect assemblies of the NLG installed during scheduled maintenance on those models caused the pintle pins to become unlocked during functional checks on two Model ATP airplanes and on three Model HS 748 series airplanes. This condition, if not corrected, could result in failure of the NLG due to an unlocked pintle pin migrating from its support housings, and consequent jamming or collapse of the NLG.
The subject area on certain Model HS 748 series airplanes is similar to that on Model ATP airplanes. Therefore, both of these models may be subject to the same unsafe condition. The FAA may consider further rulemaking to address the identified unsafe condition on certain Model HS 748 series airplanes.
BAE Systems (Operations) Limited has issued Service Bulletin ATP-32-105 dated April 9, 2002, including Accomplishment Report, which describes procedures for installing a baulking device for the pintle pin in the NLG. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The CAA classified this service bulletin as mandatory and issued British airworthiness directive 004-04-2002, in
This airplane model is manufactured in the United Kingdom and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.19) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except that the proposed AD does not require completing the Accomplishment Report.
The FAA estimates that 3 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 20 work hours per airplane to accomplish the proposed installation, and that the average labor rate is $60 per work hour. Required parts would cost approximately $900 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $6,300, or $2,100 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the installation, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent failure of the nose landing gear (NLG) due to an unlocked pintle pin migrating from its support housings, and consequent jamming or collapse of the NLG, accomplish the following:
(a) Within 3 years after the effective date of this AD, install a baulking device for the pintle pin in the NLG by accomplishing the actions specified in the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin ATP-32-105, dated April 9, 2002, excluding the Accomplishment Report. The actions must be done per the service bulletin.
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(c) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in British airworthiness directive 004-04-2002.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-135 and EMB-145 series airplanes. This proposal would require a one-time inspection of the trailing arm cardan of each main landing gear (MLG) to identify a certain part number; a one-time inspection of certain trailing arm cardans to detect cracking, if necessary; and replacement of incorrect trailing arm cardans with cardans having a certain part number. This action is necessary to ensure that correct trailing arm cardans of the MLGs are installed. Installation of affected cardans could lead to accelerated fatigue cracking, which, if not detected and corrected in a timely manner, could cause the cardan(s) to fracture, resulting in consequent failure of the MLG(s). This action is intended to address the identified unsafe condition.
Comments must be received by April 16, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-04-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Robert D. Breneman, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1263; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-04-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-04-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and EMB-145 series airplanes. The DAC advises that, during a sampling program, fatigue cracks were found on certain trailing arm cardans of the main landing gears (MLG). This condition, if not detected and corrected in a timely manner, could cause the cardan to fracture, resulting in consequent failure of the affected MLG.
EMBRAER has issued Alert Service Bulletin 145-32-A080, Change 01, dated August 22, 2002. This alert service bulletin describes procedures for a one-time detailed inspection to detect cracking of the trailing arm cardan of each MLG, and replacement of trailing arm cardans having part number (P/N) 2309-2041-001 with new cardans having P/N 2309-2041-401 or 2309-2041-003.
Alert Service Bulletin 145-32-A080, Change 01, refers to EMBRAER Service Bulletin 145-32-0035, Change 01, dated November 10, 1999, as an additional source of service information for replacement of subject trailing arm cardans with cardans having P/N 2309-2041-003.
Accomplishment of the actions specified in EMBRAER Alert Service Bulletin 145-32-A080, Change 01, dated August 22, 2002, is intended to adequately address the identified unsafe condition. The DAC classified EMBRAER Alert Service Bulletin 145-32-A080, Change 01, as mandatory and issued Brazilian emergency airworthiness directive 2002-08-01, dated August 28, 2002, in order to assure the continued airworthiness of these airplanes in Brazil.
These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require a one-time inspection of the trailing arm cardan of each MLG to identify cardans having a certain part number which are
Operators should note that the applicability of the parallel Brazilian airworthiness directive affects, in part, Model EMB-135ER/LR and EMB-145 series airplanes equipped with certain MLG struts, except for certain struts modified by EMBRAER Service Bulletin 145-32-0035, original issue, or further revisions approved by the DAC. The affected trailing arm cardans (P/N 2309-2041-001) were originally installed during production only on airplanes having serial numbers (S/N) 145004 through 145087 inclusive. However, because MLGs are interchangeable on these airplane models, there is a possibility that airplanes having S/N 145001 through 145003 inclusive, and 145088 through 145617 inclusive, may have an MLG with the subject trailing arm cardan that was installed by operators during normal maintenance. Therefore, the applicability of this proposed AD includes airplanes having S/N 145001 through 145617 inclusive. We have determined that a one-time inspection of the trailing arm cardan of each MLG to identify affected cardans is necessary on those airplanes.
We have received verification that the affected cardans installed during production have already been removed from U.S.-registered airplanes and MLGs in stock. Therefore, we have extended the compliance time for this inspection (intended to also identify affected cardans installed during normal maintenance) to within 45 days after the effective date of this AD, instead of within 7 days, as required by the Brazilian airworthiness directive.
These issues have been coordinated and concurred with by the DAC.
The FAA estimates that 401 Model EMB-135 and EMB-145 series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $24,060, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To ensure that correct trailing arm cardan of each main landing gear (MLG) are installed, accomplish the following:
(a) Within 45 days after the effective date of this AD: Perform a one-time inspection of the trailing arm cardans of the MLGs to identify cardans having P/N 2309-2041-001.
(b) If any trailing arm cardan having P/N 2309-2041-001 is found installed during the inspection required by paragraph (a) of this AD: Prior to further flight, perform a detailed inspection to detect cracking of that trailing arm cardan of the MLG, per “Part I” of the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145-32-A080, Change 01, dated August 22, 2002.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(1) If no cracking is detected: Within 60 days or 500 flight hours after the effective date of this AD, whichever occurs first, replace the trailing arm cardan of the MLG with a new cardan having P/N 2309-2041-401 or 2309-2041-003, per “Part II” of the Accomplishment Instructions of the alert service bulletin.
(2) If any cracking is detected: Prior to further flight, replace the trailing arm cardan of the MLG with a new cardan having P/N 2309-2041-401 or 2309-2041-003, per “Part II” of the Accomplishment Instructions of the alert service bulletin.
EMBRAER Alert Service Bulletin 145-32-A080, Change 01, dated August 22, 2002, refers to EMBRAER Service Bulletin 145-32-0035, Change 01, dated November 10, 1999, as an additional source of service information for replacement of subject trailing arm cardans with cardans having P/N 2309-2041-003.
(c) Inspection and replacement accomplished prior to the effective date of this AD per EMBRAER Alert Service Bulletin 145-32-A080, dated August 16, 2002, are acceptable for compliance with the actions required by paragraph (b) of this AD.
(d) As of the effective date of this AD, no person shall install a trailing arm cardan, P/N 2309-2041-001, on any airplane.
(e) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(f) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in Brazilian emergency airworthiness directive 2002-08-01, dated August 28, 2002.
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD), applicable to certain McDonnell Douglas airplanes, that would have required inspections of the linear variable differential transducers (LVDTs) of the autopilot for discrepancies, and follow-on actions, if necessary. This new action revises the proposed rule by expanding the applicability. The actions specified by this new proposed AD are intended to prevent failure of the LVDTs, which could result in an automatic pitch trim malfunction or an autopilot disconnect, and consequent reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by April 11, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-358-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Ron Atmur, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5224; fax (562) 627-5210.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-NM-358-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-358-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F, DC-10-30F (KC10A and KDC-10), MD-10-10F, and MD-10-30F airplanes, was published as a notice of proposed rulemaking (NPRM) in the
The applicability statement of the NPRM specified that it would apply to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F, DC-10-30F (KC10A and KDC-10), MD-10-10F, and MD-10-30F airplanes; as listed in Boeing Alert Service Bulletin DC10-22A126, dated October 31, 2001; and Boeing Alert Service Bulletin DC10-22A127, dated December 17, 2001. We inadvertently omitted specifying Model DC-10-40 and DC-10-40F airplanes; however, those airplanes are listed in the specified service bulletins. In addition, it has been determined that Model MD-10-10F and MD-10-30F airplanes have a different design and are not affected by the NPRM. For the convenience of affected operators, the FAA has changed the applicability statement of this supplemental NPRM to reflect these changes.
Due consideration has been given to the comments received in response to the NPRM:
One commenter asks that the language in paragraph (a)(1) of the NPRM which specifies, “including replacing the LVDT with a new LVDT and doing an automatic pitch trim adjustment/test” be changed. The commenter states that the manufacturer has repaired several LVDTs with the affected serial numbers and those LVDTs are being installed on the airplanes. The commenter suggests that the language state, “including replacing the LVDT with a new LVDT, or LVDT with an affected serial number that was repaired after January 22, 2001, by the parts manufacturer; and doing an automatic pitch trim adjustment/test.”
We do not agree with the commenter. There is no specific designation or modification level for identifying the correct nylok strip size to be installed on a repaired LVDT; only a label titled “Rework” and the date are engraved on those units. All returned LVDT units are marked “Rework” after repair, regardless of the reason for repair, and returned to operators with the same serial number. We acknowledge that certain LVDT units have been repaired by the parts manufacturer by adding the correct nylok strip size. However, we do not have any data validating proper control and identification of the nylok strip size required for installation in an LVDT with an affected serial number. In light of these factors, we find that no change to the supplemental NPRM is necessary in this regard.
The same commenter requests clarifying the text in paragraph (a)(1) of the NPRM which specifies, “If no discrepancy is found, install a shield assembly per Condition 2 of the service bulletin.” The commenter states that Condition 2 of the service bulletin specifies that no further action is needed if no discrepancy is found. The commenter believes that if no discrepancy is found, the existing shield on the LVDT would be reinstalled if removed during any inspection/repair process. The commenter adds that the text in the NPRM implies installing something additional, which is not the case.
We agree with the commenter and have clarified paragraph (a)(1) of this supplemental NPRM.
The same commenter asks that paragraph (b) of the NPRM be changed to state, “As of the effective date of this AD, no one may install a LVDT on any airplane autopitch trim system with a serial number listed in the ‘Affected Serial Numbers’ table in Figure 1 of Boeing Alert Service Bulletin DC10-22A127, dated December 17, 2001; unless the LVDT serial number has been repaired by OEM Kavlico after January 22, 2001.”
We do not agree with the commenter. The intent of paragraph (b) of this supplemental NPRM is to prohibit any LVDT with a serial number listed in the “Affected Serial Numbers” table in Figure 1 of the service bulletin from being installed on any airplane after the effective date of this AD. No change to the supplemental NPRM is necessary in this regard.
We have changed the service bulletin citations in this supplemental NPRM to exclude the Evaluation Forms. The forms are intended to be completed by operators and submitted to the manufacturer to provide input on the quality of the service bulletins; however, this AD does not include such a requirement.
Since the change in applicability expands the scope of the originally proposed rule, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
There are approximately 394 airplanes of the affected design in the worldwide fleet. The FAA estimates that 252 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 1 work hour per airplane to accomplish the inspection specified in Boeing Alert Service Bulletin DC10-22A126, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this proposed inspection on U.S. operators is estimated to be $15,120, or $60 per airplane.
It would take approximately 1 work hour per airplane to accomplish the inspections specified in Boeing Alert Service Bulletin DC10-22A127, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these proposed inspections on U.S. operators is estimated to be $15,120, or $60 per airplane.
Should an operator be required to perform the follow-on actions specified in Boeing Alert Service Bulletin DC10-22A126, the cost estimates are as follows:
• Condition 2-Repair/inspect: 1 work hour per airplane at $60 per work hour.
• Condition 4-Realign: 1 work hour per airplane at $60 per work hour.
• Condition 5-Replace LVDT: 1 work hour per airplane at $60 per work hour; estimated parts cost of $900.
• Condition 6-Replace hangar: 1 work hour per airplane at $60 per work hour; estimated parts cost of $100.
Should an operator be required to perform the follow-on actions specified in Boeing Alert Service Bulletin DC10-22A127, the cost estimates are as follows:
• Option 1-Replace LVDT and do adjustment/test: 2 work hours per
• Option 2-Install a heat shrinkable sleeve and inspect: 2 work hours per airplane at $60 per work hour.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent failure of the linear variable differential transducers (LVDTs) of the autopilot, which could result in an automatic pitch trim malfunction or an autopilot disconnect, and consequent reduced controllability of the airplane, accomplish the following:
(a) Within 90 days after the effective date of this AD: Do the detailed inspections of the LVDTs of the autopilot for discrepancies as required by paragraphs (a)(1) and (a)(2) of this AD.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(1) Inspect the LVDTs for affected serial numbers (with undersize nylok elements) per Figure 1 of Boeing Alert Service Bulletin DC10-22A127, dated December 17, 2001, excluding Evaluation Form. If any affected serial number is found, before further flight, do either Option 1 (including replacing the LVDT with a new LVDT and doing an automatic pitch trim adjustment/test), or Option 2 (including installing a heat-shrinkable sleeve over the LVDT jamnut and doing repetitive inspections for any loose jamnut every 500 flight hours until the LVDT is replaced with a new LVDT), of Condition 1 of the service bulletin, per the service bulletin. If any discrepancy is found, before further flight, replace the LVDT with a new LVDT. If no discrepancy is found, no further action is required by this paragraph.
(2) Inspect the shear rivets of the LVDTs of the drive assembly of the automatic pitch trim for discrepancies (shearing and/or looseness), per Boeing Alert Service Bulletin DC10-22A126, dated October 31, 2001, excluding Evaluation Form. If any discrepancy is found, before further flight, do Conditions 2 through 6 (including repairing the driver assembly and inspecting the LVDT within 9 months after doing the repair; doing an automatic pitch trim adjustment/test; aligning the LVDT; replacing the existing LVDT with a new LVDT; and replacing the hangar assembly with a new assembly), as applicable, of the service bulletin, per the service bulletin. If no discrepancy is found, no further action is required by this paragraph.
(b) As of the effective date of this AD, no one may install an LVDT with a serial number listed in the “Affected Serial Numbers” table in Figure 1 of Boeing Alert Service Bulletin DC10-22A127, dated December 17, 2001, excluding Evaluation Form, on any airplane.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(d) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This notice proposes to establish Class E airspace at Lake Placid Airport (LKP), Lake Placid, NY. The development of Standard Instrument Approach Procedures (SIAP) based on the Global Positioning System (GPS) to serve flights operating into Lake Placid Airport under Instrument Flight Rules (IFR) makes this action necessary. Controlled airspace extending upward from 700 feet Above Ground Level (AGL) is needed to contain aircraft executing the approach. The area would be depicted on aeronautical charts for pilot reference.
Comments must be received on or before April 16, 2003.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2003-114454/Airspace Docket No. 03-AEA-01 at the beginning of your comments. You may also submit comments on the Internet at
An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, Eastern Region, 1 Aviation Plaza, Jamaica, NY 11434-4809.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2003-114454/Airspace Docket No. 03-AEA-01”. The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
The FAA is considering an amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace area at Lake Placid, NY. The development of SIAPs to serve flights operating IFR into Lake Placid Airport makes this action necessary. Controlled airspace extending upward from 700 feet AGL is needed to accommodate the SIAPs. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface are published in Paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that would only affect air traffic procedures and air navigation, it is certified that this proposed rule would not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; EO 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9K dated August 30, 2002 and effective September 16, 2002, is proposed to be amended as follows:
That airspace extending upward from 700 feet above the surface within a 7.5-mile radius of Lake Placid Airport, excluding that portion that coincides with the Saranac Lake, NY Class E airspace area.
Office of the Secretary, Department of Transportation.
Notice of proposed rulemaking; correction.
The Department is correcting a notice of proposed rulemaking that appeared in the
Thomas Ray, Office of the General Counsel, 400 Seventh St., SW., Washington, DC 20590, (202) 366-4731.
The sentence appearing at the bottom of the middle column on 67 FR 69386 that cites
Commodity Futures Trading Commission.
Proposed rules.
The Commodity Futures Trading Commission (Commission or CFTC) is proposing to amend Rule 4.5, which provides an exclusion from the definition of the term “commodity pool operator” (CPO) for certain persons, and Rules 4.13 and 4.14, which provide exemption from CPO and commodity trading advisor (CTA) registration, respectively, for certain other persons, so as to expand the availability of the relief provided by these rules. The Commission also is proposing rule amendments to facilitate communications by CPOs and CTAs, including proposals that would: (1) Permit certain communications prior to Disclosure Document distribution; (2) relieve CPOs from duplicative disclosure and reporting requirements in the “master/feeder fund” context; (3) establish criteria for CPOs to distribute periodic Account Statements electronically; and (4) harmonize the various signature requirements of Part 4. Further, the Commission is affirming, with certain modifications, the no-action relief it previously has issued with respect to the trading criteria of Rule 4.5 for certain persons and the need to register as a CPO or CTA for certain other persons.
Comments must be received by May 1, 2003.
Comments on the proposed rules should be sent to Jean A. Webb, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Comments may be sent by facsimile transmission to (202) 418-5528, or by email to
Barbara S. Gold, Associate Director, or Christopher W. Cummings, Special Counsel, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581, telephone number: (202) 418-5450 or (202) 418-5445, respectively; facsimile number: (202) 418-5536, or (202) 418-5547, respectively; and electronic mail:
Section 1a(5) of the Commodity Exchange Act (Act) defines the term “commodity pool operator” to mean:
Commission Rule 4.10(d)(1) correspondingly defines the term “pool” to mean “any investment trust, syndicate or similar form of enterprise operated for the purpose of trading commodity interests.” Unless otherwise noted, Commission rules cited to herein are found at 17 CFR Ch. I (2000). Both the Act and the Commission's rules issued thereunder can be accessed through the Commission's Web site:
CFTC Staff Letters from 1995 on can be accessed through the Commission's Web site
Section 4m(1) of the Act
Rule 4.13 provides an exemption from CPO registration for the operators of essentially “family, club or small pools,” as those pools are described in the rule.
Section 1a(6)(A) of the Act defines the term “commodity trading advisor” to mean any person who:
(i) For compensation or profit, engages in the business of advising others, either directly or through publications, writings or electronic media, as to the value or the advisability of trading in—
(I) Any contract of sale of a commodity for future delivery made or to be made on or subject to the rules of a contract market or derivatives transaction execution facility;
(II) Any commodity option authorized under section 4c; or
(III) Any leverage transaction authorized under section 19; or
(ii) For compensation or profit, and as part of a regular business, issues or promulgates analyses or reports concerning any of the activities referred to in clause (i).
Section 1a(6) also excludes certain persons not at issue here from the CTA definition, and provides the Commission with authority to exclude additional persons from that definition.
If a person is exempt from registration as a CPO or CTA, its associated persons (APs) are not required to register as such. Further, neither the exempt CPO or CTA, nor any of its APs, is required to become a member of a registered futures association.
Generally, CPOs and CTAs who are, or who are required to be, registered with the Commission, must provide prospective pool participants or advisory clients, as the case may be, with a Disclosure Document containing specified information
While Rules 4.7 and 4.12(b) provide relief for certain registered CPOs from the Disclosure Document, periodic and annual reporting, and recordkeeping requirements of Rules 4.21, 4.22, and 4.23, they do not affect the applicability of Rules 4.20 and 4.41 to these CPOs. Similarly, CTAs who have claimed relief under Rule 4.7 continue to remain subject to Rules 4.30a nd 4.41.
Rule 4.5 makes available to certain persons (eligible persons) an exclusion from the definition of CPO with respect to their operation of certain entities (qualifying entities) that would otherwise be treated as commodity pools under the Act, but that are already subject to extensive operating requirements of another federal or state regulator.
Additionally, Rule 4.5 provides that certain pension plans are not commodity pools. Because this exclusion is self-executing, no notice must be
Based upon its staff's experience in administering Rule 4.5, the Commission has made various revisions to the rule subsequent to the rule's initial adoption. These revisions have expanded the range of persons eligible to claim relief under the rule
To address certain market developments and changed circumstances applicable to persons who do not qualify for an exclusion from the CPO definition under Rule 4.5 or an exemption from CPO or CTA registration under the existing statutory and regulatory framework, the Commission issued the ANPR.
When the Commission adopted Rule 4.13, there were fewer than a dozen designated commodity interest contracts based on stock indices, interest rates or other financial instruments. Since 1979, however, the Commission has designated, and trading has commenced in, more than 180 commodity interest contracts based on various financial instruments. These contracts frequently have attracted the interest of operators of collective investment vehicles, some of whom have registered with the Commission as CPOs so that they can use commodity interest contracts in their investment and risk management strategies. Others, however, have avoided participation in the commodity interest markets. While Rules 4.5 and 4.13 do provide CPO registration relief, their criteria are too restrictive for many operators of collective investment vehicles to meet.
Over time, persons who traditionally gave advice to collective investment vehicles solely on securities trading have become interested in providing trading advice to collective investment vehicles on commodity interest contracts based on various financial instruments as well. Absent the availability of an exemption, these persons have had to either register with the Commission as CTAs or refrain from providing any such commodity interest advice. 67 FR 68785, 68786.
By the ANPR, the Commission published for public comment two proposals it had received that would provide additional exemptions from CPO registration (one of these also would provide an additional exemption from CTA registration). These proposals were submitted by NFA and the Managed Funds Association (MFA).
Based upon the comments received on the ANPR,
Section 125 of the Commodity Futures Modernization Act of 2000 (CFMA)
The Commission received five comment letters in response to the Prior Rule 4.5 Proposal.
One commenter suggestsed that the Commission adopt specified additional categories of eligible persons and non-pools under Rule 4.5. This suggestion is, however, outside the scope of this proposed rulemaking. The Commission nonetheless intends to consider it in the future.
The Commission received twenty-three comment letters in response to the ANPR.
The relief the Commission is proposing today is consistent with the purpose and intent of the CFMA, and with the input the Commission has received in connection with its prior initiatives (
Currently, Rule 4.5(c)(2)(i) provides that the Notice of Eligibility must contain a representation that the eligible person will operate the qualifying entity such that the entity:
This representation has come to be known as the “Five Percent Test.”
Because futures margins have generally been set at levels near or below 5 percent of contract value, the Five Percent Test has permitted the notional value of non-hedging commodity futures and option positions to approximate the liquidation value of an entity's portfolio. Recently, however, eligible persons and qualifying entities have expressed concern to Commission staff over the Five Percent Test, because margin levels for certain stock index futures have come to significantly exceed 5 percent of contract value, thereby limiting the use of such contracts in non-hedging strategies to a much greater extent than other types of contracts with lower margins. They also have expressed concern that a similar constraint could arise with respect to security futures contracts, because the required margin for security futures is 20 percent of contract value.
However, by this
Accordingly, the Commission is proposing to delete paragraphs (c)(2)(i) and (c)(2)(iii) from Rule 4.5. This would result in paragraphs (c)(2)(ii) and (c)(2)(iv) of the rule, which concern the other representations that the Notice of Eligibility must contain, being redesignated as paragraphs (c)(2)(i) and (c)(2)(ii), respectively. Thus, the Rule 4.5 operating criteria would continue to include: (1) A prohibition against marketing a qualifying entity as a commodity pool or otherwise as a vehicle to trade commodity interests; and (2) a requirement to submit to special calls to demonstrate compliance with eligibility for relief under Rule 4.5. The Commission believes it is appropriate to maintain the marketing restriction because, unlike the case with the proposed CPO registration exemption, members of the retail public may participate in the trading vehicles subject to Rule 4.5. The Commission nonetheless requests comment on the merits of maintaining current Rule 4.5(c)(2)(ii) (which would be redesignated as Rule 4.5(c)(2)(i)).
Rule 4.13(a)(2) currently provides that a person is exempt from registration as a CPO if:
(2)(i) The total gross capital contributions it receives for units of participation in all of the pools that it operates or that it intends to operate do not in the aggregate exceed $200,000; and
(ii) None of the pools operated by it has more than 15 participants at any time. For purposes of computing the number of participants for paragraph (a)(2)(ii) of this section, the following participants shall be excluded:
(A) The pool's operator, commodity trading advisor, and the principals thereof; and
(B) Any relative, spouse or relative of such spouse living in the same household as such participant.
The Commission adopted the exemptive criteria of Rule 4.13(a)(2) in 1981.
First, the Commission is proposing to increase the total of the gross capital contributions criterion under Rule 4.13(a)(2) to $400,000 from $200,000.
Second, the Commission is proposing to expand the range of participants excluded from the “no more than 15 participants” limitation of the rule and to clarify that the contributions of these participants do not count toward the capital contributions limit of the rule.
Paragraph (a)(2)(i) of Rule 4.13 does not address whether the gross capital contributions to a pool by its operator or advisor should be excluded from the $200,000 limit in the rule, even though a pool's operator, advisor, and the principals thereof specifically are excluded from the “no more than fifteen participants” limit in paragraph (a)(2)(ii) of the rule. That paragraph provides that for the purposes of computing the number of participants allowable in a pool for which the operator thereof seeks to claim an exemption from registration under Rule 4.13(a)(2), the pool's operator, advisor and their principals are excluded. This provision was patterned after Rule 501(e)(1)(i) under the Securities Act of 1933 (‘the '33 Act’), which provides that for the purposes of computing the number of non-accredited purchasers allowed to participate in an exempt offering under Rule 506 under the '33 Act, ‘the following purchasers shall be excluded: any relative, spouse or relative of the spouse of a purchaser who has the same principal residence as the purchaser.’ Since Rule 506 provides an exemption from the registration of securities otherwise required under the '33 Act for limited offers and sales
(2)(i) None of the pools operated by it has more than 15 participants at any time; and
(ii) The total gross capital contributions it receives for units of participation in all of the pools it operates or that it intends to operate do not in the aggregate exceed $400,000.
(iii) For the purposes of determining eligibility for exemption under paragraph (a)(2) of this section, the person may exclude the following participants and their contributions:
(A) The pool's operator, commodity trading advisor, and the principals thereof;
(B) A child, sibling or parent of any of these persons;
(C) The spouse of any person specified in paragraph (a)(2)(iii)(A) or (B) of this section; and
(D) Any relative of a person specified in paragraph (a)(2)(iii)(A), (B) or (C) of this section, its spouse or a relative of its spouse, who has the same principal residence as such person.
Proposed Rule 4.13(a)(3) is based on the NFA Proposal and also on the Commission's Prior Rule 4.5 Proposal. It would provide an exemption from CPO registration where the pool a person operates engages in a limited amount of commodity interest trading—
(5) Any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000; [or]
(6) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.
The chart below illustrates that a significant number of commodity interest contracts could be established under the proposed “Two Percent Test.”
In response to comments, the Commission is clarifying in Proposed Rule 4.13(a)(3)(i) that the pool may at any time meet
As with the NFA Proposal, this new rule would require that each participant in the pool is an “accredited investor” and would require a person claiming relief thereunder to “not market participations in the pool as or in a vehicle for trading in the commodity futures or commodity options markets.” In response to comments on the ANPR, the Commission is further clarifying in Proposed Rule 4.13(a)(3) that a CPO claiming relief thereunder could also operate certain other pools—
Proposed Rule 4.13(a)(4) is based on the MFA Proposal. It provides that a person is exempt from CPO registration if interests in the pool for which it seeks to claim relief (1) are exempt from registration under the Securities Act of 1933, and (2) are offered and sold without marketing in the United States (U.S.). In addition, the CPO must reasonably believe that: (1) Natural person participants are “qualified eligible persons [QEPs],” as that term is defined in Rule 4.7(a)(2);
(i) any natural person (including any person who holds a joint, community property, or other similar shared ownership interest in an issuer that is excepted under section 80a-3(c)(7) of this title with that person's qualified purchaser spouse) who owns not less than $5,000,000 in investments, as defined by the [SEC]; or
(iv) any person, acting for its own account or the accounts of other qualified purchasers, who in the aggregate owns and invests on a discretionary basis, not less than $25,000,000 in investments.
Rule 2a51-1(b) under the ICA defines “investments” generally to include (when held for investment purposes, as defined in the rule): securities; real estate; commodity interests; physical commodities; and cash and cash equivalents. Pursuant to ICA Rule 2a51-1(e), the amount of outstanding indebtedness incurred to acquire investments must be deducted from the amount of owned and invested investments when determining if the person is a “qualified purchaser.”
Here, too, and in response to the comments received on the ANPR, Rule 4.13(a)(4) would make clear that a CPO claiming relief thereunder could also operate pools meeting the criteria of Rule 4.13(a)(3) without voiding the availability of the relief under either rule.
Under the proposed amendments, Rule 4.13 would also contain introductory text and certain additional provisions, which would be based on the provisions of the existing rule, the NFA Proposal, the MFA Proposal and the comments on the ANPR. Generally speaking, these provisions concern: certain disclosures that a CPO who has claimed relief under the rule must make
As an alternative to the foregoing proposals for certain CPOs, and the following proposals for certain CTAs, the Commission seeks comment on adoption of a notice registration scheme. The notice registration approach would be identical to the proposed exemption approach with respect to information required to be filed with the Commission and compliance with Part 4 requirements. Specifically, the Commission seeks comment on whether a notice registration scheme could make it more clear to the public and other regulatory authorities that this group of CPOs and CTAs remains subject to the CFTC's jurisdiction under the CEA, the Bank Secrecy Act and other statutes, while providing the same amount of regulatory relief as the proposed exemption.
Currently, Rule 4.14(a)(8) provides an exemption from CTA registration for certain IAs registered as such, or excluded from such registration, under the Investment Advisers Act of 1940 (IAA)
When the Commission adopted Rule 4.14(a)(8) in 1987,
Also in response to Roundtable comments, and to acknowledge and codify Commission staff's activity in this area,
Further, and based on the NFA Proposal, the Commission is proposing CTA registration relief for advisors to commodity pools that meet the requirements of the new exemptions being proposed based upon participant sophistication or trading limitations. (Proposed Rule 4.14(a)(8)(i)(D)). In response to the comments on the ANPR, the Commission also has included a proviso in this proposal to make clear that a person may claim relief from CTA registration if it also advises the other trading vehicles specified in the rule—
The foregoing relief would remain subject to compliance with the existing criteria of Rule 4.14(a)(8)—
Several commenters on the registration no-action relief issued through the ANPR noted that, like the NFA Proposal, it only provided relief in the context of pools. They claimed that CTA registration relief should be available with respect to accounts that meet the criteria of Rule 4.14(a)(3) or 4.14(a)(4)—regardless of the form of the account (
Section 4m(1) of the Act provides an exemption from CTA registration for any person:
Congress patterned Section 4m(1) after Section 203(b)(3) of the IAA,
In response to Roundtable comments on this difference in regulatory treatment, the Commission is proposing in new Rule 4.14(a)(10) to provide an exemption from registration for any CTA who meets the criteria of Section 4m(1) of the Act. (Proposed paragraph (a)(10).) For the purpose of this exemption, the CTA may deem certain persons a single person. In making this proposal, the Commission is patterning the single “persons” specified therein on the single “clients” specified in SEC Rule 203(b)(3).
Under the proposed amendments, Rule 4.14 would also contain introductory text and certain additional provisions, which would be based on the provisions of the current rule, the NFA Proposal and the comments on the ANPR. Generally speaking, these provisions concern: the notice of registration exemption that a CTA seeking exemption under paragraph (a)(8) must file (proposed paragraph (a)(8)(iii));
Commission Rules 4.21 and 4.31 prohibit CPOs and CTAs from soliciting prospective pool participants or clients prior to providing a Disclosure Document. However, the Commission has increasingly received comments, including testimony from Roundtable participants, that Rules 4.21(a) and 4.31(a) unnecessarily restrict communications by CPOs and CTAs. In response, the Commission is proposing to amend these rules to provide that the Disclosure Documents referred to therein must be delivered by no later than the time a CPO delivers a subscription agreement for the pool for which it is soliciting or a CTA delivers an advisory agreement for the trading program for which it is soliciting.
Nothing in this Act shall relieve any person of any obligation or duty, or affect the availability of any right or remedy available to the Securities and Exchange Commission or any private party arising under the Securities Act of 1933 or the Securities Exchange Act of 1934 governing the issuance, offer, purchase, or sale of securities of a commodity pool, or of persons engaged in transactions with respect to such securities, or reporting by a commodity pool.
As explained above, Rule 4.21 requires each person registered (or required to be registered) as a CPO to deliver a Disclosure Document to prospective participants in the commodity pool for which it is soliciting. Rule 4.22 requires the CPO to distribute periodic Account Statements
In addition to the other amendments it is proposing to Rule 4.22, the Commission is proposing to delete from paragraph (c) of the rule the now obsolete requirement that the “first fiscal year for which an Annual Report is due shall be the first fiscal year that begins on or after January 1, 1979.”
Commission staff has provided relief on numerous occasions from the requirements of Rules 4.21 and 4.22 where the CPOs of two pools (
The Commission is also proposing to amend Rule 4.22 to establish the procedures pursuant to which a CPO may distribute periodic Account Statements to pool participants by electronic means, provided the CPO obtains the prior consent of each such participant. This proposal is patterned on the Commission's recent amendments to Rules 1.33 and 1.46,
As proposed, before a CPO could electronically distribute Account Statements to a participant, new paragraph (b)(2) of Rule 4.22 would require the CPO to obtain a signed consent from the participant acknowledging that the CPO had disclosed the following information to it: the participant's right to receive Account Statements in paper form or electronically; the electronic medium or source through which the CPO will distribute the Account Statements; the duration of the period during which the consent to receive Account Statements electronically will be effective; any charges for electronic distribution; and the participant's right to revoke consent to electronic distribution at any time. For a participant that is not an “institutional customer,”
The Commission understands that there may be special concerns surrounding the electronic distribution of Annual Reports that are required to be certified by an independent public accountant and, in particular, surrounding the attachment of the certification itself that the public accountant provides with the report.
In the preamble of the
Certain Part 4 rules, including several of the rules being proposed in this
Upon review of this list of permitted signatories, the Commission believes that it may be unnecessarily restrictive in that it leaves no room for other organizational structures under which CPOs and CTAs operate—
By this
The Commission will not commence any enforcement action against an eligible person for failure to register as a CPO in accordance with Section 4m(1) of the Act, where the eligible person operates a qualifying entity such that at any time, with respect to non-hedge positions in commodity futures or commodity option contracts, either of the following tests is met:
(i) The aggregate initial margin and premiums required to establish such positions, determined at the time the most recent position was established, does not exceed five percent of the liquidation value of the qualifying entity's portfolio, after taking into account unrealized profits and unrealized losses on any such contracts it has entered into;
(ii) The aggregate net notional value of such positions, determined at the time the
Neither eligible persons who have claimed relief under Rule 4.5 nor eligible persons who claim such relief in the future need to take any additional action to operate their qualifying entities in accordance with the notional test. Rather, making the representations currently required by the rule in a Notice filed with the NFA and the Commission—including the representation concerning the Five Percent Test—is all that is required.
This relief will remain in effect until such time as the Commission takes final action on the amendment to Rule 4.5 it is proposing herein. This relief is, however, subject to the condition that, upon adoption of any amendment to Rule 4.5, the eligible person must comply in full with the terms of any amendment the Commission may adopt. When the Commission adopts a final rule, it will, if necessary, provide affected eligible persons and qualifying entities with sufficient time within which to comply with the rule adopted or to liquidate positions entered into in accordance with the no-action relief.
The Commission will not commence any enforcement action against a CPO for failure to register as a CPO under Section 4m(1) of the Act, where each pool for which the CPO claims registration no-action relief hereunder meets and remains in compliance with the following criteria:
a. Participation in the pool is restricted to: “accredited investors” as defined in Rule 501(a) under the Securities Act; “knowledgeable employees” as defined in Rule 3c-5 under the Investment Company Act of 1940;
(ii) At any time, the pool's commodity interest trading, whether entered into for
(A) The aggregate initial margin and premiums required to establish commodity interest positions, determined at the time the most recent position was established, does not exceed two percent of the liquidation value of the pool's portfolio, after taking into account unrealized profits and unrealized losses on any such positions it has entered into;
(B) The aggregate net notional value of the pool's commodity interest positions, determined at the time the most recent position was established, does not exceed fifty percent of the liquidation value of the pool's portfolio, after taking into account unrealized profits and unrealized losses on any such positions it has entered into. For this purpose, the term ‘notional value’ should be calculated for each such futures position by multiplying the number of contracts by the size of the contract, in contract units (taking into account any multiplier specified in the contract), by the current market price per unit and for each such option position by multiplying the number of contracts by the size of the contract, in contract units (taking into account any multiplier specified in the contract), by the strike price per unit.
In a footnote to the ANPR, the Commission addressed the situation where a commodity pool indirectly trades commodity interests as a “fund of funds.”
The operator of a ‘fund of funds’ (an Investor Fund) that indirectly trade[s] commodity interests through participation in one or more funds that directly trades commodity interests (each an Investee Fund) could claim exemption from registration under the No-Action Relief where that Investor Fund trades commodity interests solely through participation in one or more Investee Funds, and the CPO of each such Investee Fund has itself claimed the No-Action Relief. The operator of an Investor Fund that additionally directly trades commodity interests could also claim the no-action relief, so long as the portion of the Investor Fund that directly trades commodity interests does not exceed the limit referred to above.
For example, assume that the Investor Fund has a liquidation value of $1 million, four-fifths of which is invested in four Investee Funds whose operators have claimed the No-Action Relief. With the remaining one-fifth of liquidation value, or $200,000, the operator of the Investor Fund may have the Fund directly trade commodity interests, provided that the notional value of the Fund's commodity interest positions does not exceed fifty percent of the Fund's liquidation value, adjusted for unrealized profits and unrealized losses on positions directly entered into by the Fund.
If, however, the notional value of those positions exceeded fifty percent of the liquidation value of $200,000, the operator would only be able to claim the No-Action Relief if the operator knew that the notional value of all of the Investor Fund's commodity interest positions (
In response to these examples, the Commission received two sets of comments. One set claimed that, under these examples, it appeared that fund-of-funds CPOs wishing to claim the no-action relief could invest only in pools operated by CPOs who had themselves already claimed the no-action relief, to the disadvantage of registered CPOs. The other set of comments claimed that the requirements for “direct knowledge of” and “immediate access to” Investee Funds set unnecessarily high standards. The Commission believes these comments have merit. Accordingly, by this
The Commission will not commence enforcement action against a CTA for failure to register as a CTA under Section 4m(1) of the Act, where the CTA
a. It claims relief from CPO registration under the no-action relief provided herein and its commodity interest trading advice is directed solely to, and for the sole use of, the pool or pools that it operates;
b. It is registered as an investment adviser under the Investment Advisers Act of 1940 or with the applicable securities regulatory agency of any State, or it is exempt from such registration, or it is excluded from the definition of the term “investment adviser” pursuant to section 202(a)(2) or 202(a)(11) of the Investment Advisers Act of 1940, provided that:
(A) The person's commodity interest trading advice:
(
(
(
(B) The person is not otherwise holding itself out as a CTA.
By this
As stated in the ANPR, this registration no-action relief for CPOs and CTAs is not self-executing. Rather, a CPO or CTA eligible for the no-action relief must file a Claim to perfect the relief and must make a one-way disclosure to its participants and clients, respectively, whether prospective or existing. A Claim of Registration No-Action Relief will be effective upon filing, so long as the Claim is materially complete.
Specifically, the Claim of Registration No-Action Relief must:
a. State the name, main business address, and main business telephone number of the CPO or CTA claiming the relief;
b. State the capacity (
c. Represent that the CPO and CTA qualifies for the no-action relief, that it will comply with the criteria of the no-action relief, and that it will provide the CFTC-specified disclosure, set forth below;
d. Be signed by a duly authorized representative of the CPO or CTA; and
e. Be filed with the NFA at its headquarters office in Chicago, Illinois (Attn: Director of Compliance), with a copy to the Commission at its headquarters office in Washington, DC (Attn: Division of Clearing and Intermediary Oversight, Audit and Financial Review Section), prior to the date upon which the CPO or CTA first engages in business that otherwise would require registration as such.
a. For CPOs: To comply with the terms of a Claim of Registration No-Action Relief that it has filed, a CPO must provide the following disclosure to prospective and existing participants in each pool it operates or intends to operate prior to engaging in activities that otherwise would require it to register as a CPO:
Pursuant to No-Action Relief issued by the Commodity Futures Trading Commission, [Name of CPO] is not required to register, and is not registered, with the Commission as a CPO. Among other things, the No-Action Relief requires this CPO to file a Claim of No-Action Relief with the National Futures Association and the Commission. It also requires that at all times either: (a) The aggregate initial margin and premiums required to establish commodity interest positions does not exceed two percent of the liquidation value of the pool's portfolio; or (b) the aggregate net notional value of this pool's commodity interest positions does not exceed fifty percent of the liquidation value of the pool's portfolio.
You should also know that this registration No-Action Relief is temporary. In the event the Commission ultimately adopts a registration exemption rule that differs from the No-Action Relief, [Name of CPO] must comply with that rule to be exempt from CPO registration. If [Name of CPO] determines not to comply with that rule, it must either register with the Commission or cease having this pool trade commodity interests. A reasonable opportunity to trade for liquidation only will be provided.
b. For CTAs: To comply with the terms of a Claim of Registration No-Action Relief that it has filed, a CTA must provide the following disclosure to each pool it advises or intends to advise prior to engaging in activities that otherwise would require it to register as a CTA:
Pursuant to No-Action Relief issued by the Commodity Futures Trading Commission, [Name of CTA] is not required to register, and is not registered, with the Commission as a CTA. Among other things, the No-Action Relief requires this CTA to file a claim of No-Action Relief with the National Futures Association and the Commission. It also requires that this CTA provide advice solely to pools whose CPOs have filed a corresponding claim of No-Action Relief.
You should also know that this registration No-Action Relief is temporary. In the event the Commission ultimately adopts a registration exemption rule that differs from the No-Action Relief, [Name of CTA] must comply with that rule to be exempt from CTA registration. If [Name of CTA] determines not to comply with that rule, it must either register with the Commission or cease providing commodity interest trading advice to this pool. A reasonable opportunity to trade for liquidation only will be provided.
Persons that have filed a Claim of No-Action Relief will be exempt from Commission registration requirements under Section 4m(1) of the Act. Such persons will remain subject, however, to prohibitions in the Act and the Commission's rules against fraud that apply to all CPOs and CTAs regardless of registration status. They also will remain subject to all other relevant provisions of the Act and the Commission's rules that apply to all commodity interest market participants, such as the prohibitions on manipulation and the trade reporting requirements.
The no-action relief the Commission is announcing today by this
The Commission is aware that there may be persons that do not meet the criteria of the no-action relief under Rule 4.5 for eligible persons or Section 4m(1) of the Act for CPOs and CTAs but that nonetheless, under their particular facts or circumstances, merit relief. The Commission also is aware that, in the past, its staff has provided no-action relief from the criteria of Rule 4.5 and from the registration requirement of Section 4m(1) of the Act on a case-by-case basis. Consistent with that practice, the Commission directs its staff to continue to issue such relief in appropriate cases.
The Regulatory Flexibility Act (RFA)
The Commission's definitions of small entities do not address the persons and qualifying entities set forth in Rule 4.5 because, by the very nature of the rule, the operations and activities of such persons and entities generally are regulated by federal and state authorities other than the Commission. Assuming,
Accordingly, the Chairman, on behalf of the Commission, certifies pursuant to Section 605(b) of the RFA
This proposed rulemaking affects information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Commission has submitted a copy of this section to the Office of Management and Budget for its review.
Rules Relating to the Operations and Activities of Commodity Pool Operators and Commodity Trading Advisors and to Monthly Reporting by Futures Commission Merchants, OMB Control Number 3038-0005.
The expected effect of the proposed amended rules will be to reduce the burden previously approved by OMB for this collection of information by 31,025.97 hours because, while it will result in an increase in the number of filings under Rules 4.5, 4.13 and 4.14, it will result in a larger decrease in the information collection requirements under the disclosure, reporting and recordkeeping rules that otherwise would be applicable.
Specifically:
The burden associated with Commission Rule 4.5 is expected to be increased by 25 hours:
This annual reporting burden of 325 hours represents an increase of 25 hours as a result of the proposed amendment to Rule 4.5.
The burden associated with Commission Rule 4.13 is expected to be increased by 187.5 hours:
This annual reporting burden of 300 hours represents an increase of 187.5 hours as a result of the proposed amendments to Rule 4.13.
The burden associated with Commission Rule 4.14 is expected to be increased by 5 hours:
This annual reporting burden of 30 hours represents an increase of 5 hours as a result of the proposed amendments to Rule 4.14.
The burden associated with Commission Rule 4.21 is expected to be decreased by 1540 hours:
This annual reporting burden of 560 hours represents a decrease of 1,540 hours as a result of the proposed amendments to Rules 4.5, 4.13 and 4.21.
The burden associated with Commission Rule 4.22(a) is expected to be decreased by 7,796.25 hours:
This annual reporting burden of 3,465 hours represents a decrease of 7,796.25 hours as a result of the proposed amendments to Rules 4.5, 4.13 and 4.22.
The burden associated with Commission Rule 4.22(c) is expected to be reduced by 4,050 hours:
This annual reporting burden of 1,800 hours represents a decrease of 4,050 hours as a result of the proposed amendments to Rules 4.5, 4.13 and 4.22.
The burden associated with Commission Rule 4.23 is expected to be reduced by 11,700 hours:
This annual reporting burden of 5,200 hours represents a decrease of 11,700 hours as a result of the proposed amendments to Rules 4.5, 4.13 and 4.22.
The burden associated with Commission Rule 4.31 is expected to be reduced by 577.22 hours:
This annual reporting burden of 577.22 hours represents a decrease of 577.22 hours as a result of the proposed amendments to Rule 4.14.
The burden associated with Commission Rule 4.33 is expected to be reduced by 29,880 hours:
This annual reporting burden of 5,580 hours represents a decrease of 5,580 hours as a result of the proposed amendments to Rule 4.14.
As stated, these changes will result in an overall reduction of 31,025.97 hours in burden for this collection.
Organizations and individuals desiring to submit comments on the information collection requirements should direct them to the Office of Information and Regulatory Affairs, OMB, Room 10235 New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Commodity Futures Trading Commission.
The Commission considers comments by the public on this proposed collection of information in—
• Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• Evaluating the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of 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,
OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
Copies of the information collection submission to OMB are available from the CFTC Clearance Officer, 1155 21st Street NW., Washington, DC 20581, (202) 418-5160.
Section 15(a) of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.
Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.
The proposed amendments are intended to facilitate increased flexibility and consistency, and to rationalize application of Commission regulations to entities subject to other regulatory frameworks. The Commission is considering the costs and benefits of these rules in light of the specific provisions of Section 15(a) of the Act:
While certain of the proposed amendments are expected to lessen the burden imposed upon CPOs and CTAs, any exclusion or exemption of persons from regulatory requirements would be based on such factors as financial sophistication of pool participants and advisory clients or a low level of exposure to commodity interest markets. Accordingly, the proposed amendments should have no effect on the Commission's ability to protect market participants and the public.
The proposed amendments are expected to benefit efficiency and competition by removing barriers to participation in the commodity interest markets, resulting in greater liquidity and market efficiency.
The proposed amendments should have no effect, from the standpoint of imposing costs or creating benefits, on the financial integrity or price discovery function of the commodity futures and options markets.
The proposed amendments should increase the available range of risk management alternatives for Rule 4.5 eligible persons, as well as for CTAs and CPOs.
The proposed amendments will also take into account certain effects of legislative changes (
After considering these factors, the Commission has determined to propose the amendments discussed above. The
Advertising, Commodity futures, Consumer protection, Reporting and recordkeeping requirements.
For the reasons presented above, the Commission hereby proposes to amend Chapter I of Title 17 of the Code of Federal Regulations as follows:
1. The authority citation for part 4 continues to read as follows:
7 U.S.C. 1a, 2, 6b, 6c, 6(c), 6
2. Section 4.5 is proposed to be amended by:
a. deleting paragraph (c)(2)(i);
b. redesignating paragraph (c)(2)(ii) as paragraph (c)(2)(i);
c. deleting paragraph (c)(2)(iii); and
d. redesignating paragraph (c)(2)(iv) as paragraph (c)(2)(ii).
3. Section 4.7 is proposed to be amended by revising paragraph (d)(1)(vii) to read as follows:
(d) * * *
(1) * * *
(vii) Be manually signed by a duly authorized representative of the commodity pool operator or commodity trading advisor;
4. Section 4.12 is proposed to be amended by revising paragraph (b)(3)(vi) to read as follows:
(b) * * *
(3) * * *
(vi) Be manually signed by a duly authorized representative of the pool operator; and
5. Section 4.13 is proposed to be amended by:
a. adding introductory text;
b. deleting the “or” at the end of paragraph (a)(1)(iv);
c. revising paragraph (a)(2);
d. adding new paragraphs (a)(3), (a)(4) and (a)(5);
e. revising paragraph (b);
f. redesignating paragraphs (c) and (d) as paragraphs (d) and (e) and revising the redesignated paragraphs; and
g. adding a new paragraph (c), to read as follows:
This section is organized as follows: Paragraph (a) specifies the criteria that must be met to qualify for exemption from registration under this section; paragraph (b) governs the notice that must be filed to claim exemption from registration; paragraph (c) sets forth the continuing obligations of a person who has claimed exemption under this section; paragraph (d) specifies information certain persons must provide if they subsequently register; and paragraph (e) specifies the effect of registration on a person who has claimed an exemption from registration under this section or who is eligible to claim an exemption from registration under this section.
(a) * * *
(2)(i) None of the pools operated by it has more than 15 participants at any time; and
(ii) The total gross capital contributions it receives for units of participation in all of the pools it operates or that it intends to operate do not in the aggregate exceed $400,000.
(iii) For the purpose of determining eligibility for exemption under paragraph (a)(2) of this section, the person may exclude the following participants and their contributions:
(A) The pool's operator, commodity trading advisor, and the principals thereof;
(B) A child, sibling or parent of any of these persons;
(C) The spouse of any person specified in paragraph (a)(2)(iii)(A) or (B) of this section; and
(D) Any relative of a person specified in paragraph (a)(2)(iii)(A), (B) or (C) of this section, its spouse or a relative of its spouse, who has the same principal residence as such person;
(3)(i) At any time, each pool for which the operator claims exemption from registration under this paragraph (a)(3) meets either of the following tests with respect to its commodity interest positions, whether entered into for
(A) The aggregate initial margin and premiums required to establish such positions, determined at the time the most recent position was established, will not exceed two percent of the liquidation value of the pool's portfolio, after taking into account unrealized profits and unrealized losses on any such positions it has entered into;
(B) The aggregate net notional value of such positions, determined at the time the most recent position was established, does not exceed fifty percent of the liquidation value of the pool's portfolio, after taking into account unrealized profits and unrealized losses on any such positions it has entered into. For the purpose of this paragraph, the term “notional value” shall be calculated for each such futures position by multiplying the number of contracts by the size of the contract, in contract units (taking into account any multiplier specified in the contract), by the current market price per unit, and for each such option position by multiplying the number of contracts by the size of the contract, in contract units (taking into account any multiplier specified in the contract), by the strike price per unit;
(ii) It reasonably believes, at the time of investment (or, in the case of an existing pool, at the time of conversion to a pool meeting the criteria of paragraph (a)(3) of this section), that each person who participates in the pool is an “accredited investor,” as that term is defined in § 230.501 of this title;
(iii) It does not market participations in the pool as or in a vehicle for trading in the commodity futures or commodity options markets; or
(4) For each pool for which the operator claims exemption from registration under this paragraph (a)(4):
(i) Interests in the pool are exempt from registration under the Securities Act of 1933, and such interests are offered and sold without marketing to the public in the United States;
(ii) It reasonably believes, at the time of investment (or, in the case of an existing pool, at the time of conversion to a pool meeting the criteria of paragraph (a)(4) of this section), that:
(A) Each natural person participant (including the person's self-directed employee benefit plan, if any), is a “qualified eligible person,” as that term is defined in § 4.7(a)(2); and
(B) Each non-natural person participant is a “qualified eligible person,” as that term is defined in § 4.7, or an “accredited investor,” as that term is defined in § 230.501(a)(1) through (3), (a)(7) and (a)(8) of this title;
(5)(i) Eligibility for exemption under this section is subject to the commodity pool operator furnishing in writing to each prospective participant in the pool:
(A) A statement that the pool operator is exempt from registration with the Commission as a commodity pool operator and that therefore, unlike a registered commodity pool operator, it is not required to deliver a Disclosure Document and a certified annual report to participants in the pool; and
(B) A description of the criteria pursuant to which it qualifies for such exemption from registration.
(ii) The pool operator must make these disclosures by no later than the time it delivers a subscription agreement for the pool to a prospective participant in the pool.
(b)(1) A commodity pool operator who desires to claim the relief from registration provided by this section must file a notice of exemption from commodity pool operator registration with the National Futures Association (Attn: Director of Compliance). The notice must:
(i) Provide the name, main business address, main business telephone number, main facsimile number and main email address of the pool operator claiming the exemption and the name of the pool for which it is claiming exemption;
(ii) Contain the section number pursuant to which the operator is filing the notice (
(iii) Be signed by a duly authorized representative of the pool operator.
(2) The commodity pool operator must file the notice by no later than the time it delivers a subscription agreement for the pool to a prospective participant in the pool;
(3) The notice will be effective upon filing, provided the notice is materially complete.
(4) A commodity pool operator who has filed a notice of exemption from registration under this section must, in the event that any of the information contained or representations made in the notice becomes inaccurate or incomplete, file a supplemental notice with the National Futures Association to that effect which, if applicable, includes such amendments as may be necessary to render the notice accurate and complete. This supplemental notice must be filed within 15 business days after the pool operator becomes aware of the occurrence of such event.
(c)(1) Each commodity pool operator who has filed a notice of exemption from registration under this section must:
(i) Make and keep all books and records prepared in connection with its activities as a pool operator for a period of five years from the date of preparation;
(ii) Keep such books and records readily accessible during the first two years of the five-year period. All such books and records must be available for inspection upon the request of any representative of the Commission, the United States Department of Justice, or any other appropriate regulatory agency; and
(iii) Submit to such special calls as the Commission may make to demonstrate eligibility for and compliance with the applicable criteria for exemption under this section.
(2) In the event the pool operator distributes an annual report to participants in the pool for which it has filed the notice, the annual report must be presented and computed in accordance with generally accepted accounting principles consistently applied and, if certified by an independent public accountant, so certified in accordance with § 1.16 of this chapter as applicable.
(3) Each commodity pool operator who has filed a notice of exemption from registration pursuant to paragraph (a)(1) or (a)(2) of this section must:
(i) Promptly furnish to each participant in the pool a copy of each monthly statement for the pool that the pool operator received from a futures commission merchant pursuant to § 1.33 of this chapter; and
(ii) Clearly show on such statement, or on an accompanying supplemental statement, the net profit or loss on all commodity interests closed since the date of the previous statement.
(d) Each person who applies for registration as a commodity pool operator subsequent to claiming relief under paragraph (a)(1) or (a)(2) of this section must include with its application the financial statements and other information required by § 4.22(c)(1) through (5) for each pool that it has operated as an operator exempt from registration. That information must be presented and computed in accordance with generally accepted accounting principles consistently applied. If the person is granted registration as a commodity pool operator, it must comply with the provisions of this part with respect to each such pool.
(e)(1) Subject to the provisions of paragraph (e)(2) of this section, if a person who is eligible for exemption from registration as a commodity pool operator under this section nonetheless registers as a commodity pool operator, the person must comply with the provisions of this part with respect to each commodity pool identified on its registration application or supplement thereto.
(2) If a person operates one or more commodity pools described in paragraph (a)(3) or (a)(4) of this section, and one or more commodity pools for which it must be, and is, registered as a commodity pool operator, the person is exempt from the requirements applicable to a registered commodity pool operator with respect to the pool or pools described in paragraph (a)(3) or (a)(4) of this section;
(i) Furnishes in writing to each prospective participant in a pool described in paragraphs (a)(2), (a)(3) or (a)(4) of this section that it operates:
(A) A statement that it will operate the pool as if the person was exempt from registration as a commodity pool operator;
(B) A description of the criteria pursuant to which it will so operate the pool; and
(ii) Complies with paragraph (c) of this section.
6. Section 4.14 is proposed to be amended by:
a. adding introductory text;
b. revising paragraph (a)(8);
c. removing the period and adding a semi-colon followed by the word “or” at the end of paragraph (a)(9)(ii);
d. adding new paragraph (a)(10); and
e. revising paragraph (c), to read as follows:
This section is organized as follows: Paragraph (a) specifies the criteria that
(a) * * *
(8) It is registered as an investment adviser under the Investment Advisers Act of 1940 or with the applicable securities regulatory agency of any State, or it is exempt from such registration, or it is excluded from the definition of the term “investment adviser” pursuant to the provisions of sections 202(a)(2) and 202(a)(11) of the Investment Advisers Act of 1940,
(i) The person's commodity interest trading advice is directed solely to, and for the sole use of, one or more of the following:
(A) “Qualifying entities,” as that term is defined in § 4.5(b), for which a notice of eligibility has been filed;
(B) Collective investment vehicles that are excluded from the definition of the term commodity “pool” under § 4.5(b); and
(C) Commodity pools that are organized and operated outside of the United States, its territories or possessions, where:
(
(
(
(
(D) A commodity pool operator who has claimed an exemption from registration under § 4.13(a)(3) or 4.13(a)(4), or, if registered as a commodity pool operator, who may treat each pool it operates that meets the criteria of § 4.13(a)(3) or 4.13(a)(4) as if it were not so registered;
(ii) The person:
(A) Provides commodity interest trading advice solely incidental to its business of providing securities or other investment advice to qualifying entities, collective investment vehicles and commodity pools as described in paragraph (a)(8)(i) of this section; and
(B) Is not otherwise holding itself out as a commodity trading advisor.
(iii)(A) A commodity trading advisor who desires to claim the relief from registration provided by this paragraph (a)(8) must file a notice of exemption from commodity trading advisor registration with the National Futures Association (ATTN: Director of Compliance). The notice must:
(
(
(
(B) The commodity trading advisor must file the notice by no later than the time it delivers an advisory agreement for the trading program pursuant to which it will offer commodity interest advice to a client;
(C) The notice will be effective upon filing, provided the notice is materially complete.
(D) A commodity trading advisor who has filed a notice of registration exemption under this section must, in the event that any of the information contained or representations made in the notice becomes inaccurate or incomplete, file a supplemental notice with the National Futures Association to that effect which, if applicable, includes such amendments as may be necessary to render the notice accurate and complete. This supplemental notice must be filed within 15 business days after the trading advisor becomes aware of the occurrence of such event.
(iv) Each commodity trading advisor who has filed a notice of registration exemption under this paragraph (a)(8) must:
(A)(
(
(B) Submit to such special calls as the Commission may make to demonstrate eligibility for and compliance with the applicable criteria for exemption under this section;
(10) During the course of the preceding 12 months, it has not furnished commodity trading advice to more than 15 persons and it does not hold itself out generally to the public as a commodity trading advisor.
(i) For the purpose of paragraph (a)(10) of this section, the following are deemed a single person:
(A) A natural person, and:
(
(
(
(
(B)(
(
(ii)
(A) An owner must be counted in its own capacity as a person if the commodity trading advisor provides advisory services to the owner separate and apart from the advisory services provided to the legal organization;
(B)(
(
(C) A commodity trading advisor that has its principal office and place of business outside of the United States, its territories or possessions must count only clients that are residents of the United States, its territories and possessions; a commodity trading advisor that has its principal office and place of business in the United States or in any territory or possession thereof must count all clients.
(iii)
(c)(1) Subject to the provisions of paragraph (c)(2) of this section, if a person who is eligible for exemption from registration as a commodity trading advisor under this section nonetheless registers as a commodity trading advisor, the person must comply with the provisions of this part with respect to those clients for which it could have claimed an exemption from registration under this section.
(2) If a person provides commodity interest trading advice to a client described in paragraph (a) of this section and to a client for which it must be, and is, registered as a commodity trading advisor, the person is exempt from the requirements applicable to a registered commodity trading advisor with respect to the clients so described;
7. Section 4.21 is proposed to be amended by revising paragraph (a) to read as follows:
(a)(1) Subject to the provisions of paragraph (a)(2) of this section, each commodity pool operator registered or required to be registered under the Act must deliver or cause to be delivered to a prospective participant in a pool that it operates or intends to operate a Disclosure Document for the pool prepared in accordance with §§ 4.24 and 4.25 by no later than the time it delivers to the prospective participant a subscription agreement for the pool;
(2) For the purpose of the Disclosure Document delivery requirement, including any offering memorandum delivered pursuant to § 4.7(b)(1) or 4.12(b)(2)(i), the term “prospective pool participant” does not include a commodity pool operated by a pool operator that is the same as, or that controls, is controlled by, or is under common control with, the pool operator of the offered pool.
8. Section 4.22 is proposed to be amended by:
a. revising paragraph (a) introductory text;
b. adding new paragraph (a)(4),
c. redesignating paragraph (b) as paragraph (b)(1),
d. adding a new paragraph (b)(2),
e. revising paragraph (c) introductory text,
f. adding a new paragraph (c)(6),
g. revising paragraph (h)(1),
h. revising paragraph (h)(3), and
i. adding new paragraph (h)(4), to read as follows:
(a) Except as provided in paragraph (a)(4) of this section, each commodity pool operator registered or required to be registered under the Act must periodically distribute to each participant in each pool that it operates, within 30 calendar days after the last date of the reporting period prescribed in paragraph (b) of this section, an Account Statement, which shall be presented in the form of a Statement of Income (Loss) and a Statement of Changes in Net Asset Value, for the prescribed period. These financial statements must be presented and computed in accordance with generally accepted accounting principles consistently applied. The Account Statement must be signed in accordance with paragraph (h) of this section.
(4) For the purpose of the Account Statement delivery requirement, including any Account Statement distributed pursuant to § 4.7(b)(2) or 4.12(b)(2)(ii), the term “participant” does not include a commodity pool operated by a pool operator that is the same as, or that controls, is controlled by, or is under common control with, the pool operator of a pool in which the commodity pool has invested.
(b)(1) * * *
(2)(i) The Account Statement may be distributed to a pool participant by means of electronic media if the participant so consents;
(ii) The pool operator must obtain a signed consent acknowledging disclosure of the information set forth in paragraph (b)(2)(i) of this section prior to the transmission of any Account Statement by electronic media to any participant who does not qualify as an institutional customer under § 1.3(g) of this chapter.
(c) Except as provided in paragraph (c)(6) of this section, each commodity pool operator registered or required to be registered under the Act must distribute an Annual Report to each participant in each pool that it operates, and must file two copies of the Report with the Commission, within 90 calendar days after the end on the pool's fiscal year or the permanent cessation of trading, whichever is earlier, but in no event longer than 90 days after funds are returned to pool participants;
(6) For the purpose of the Annual Report distribution requirement, including any annual report distributed pursuant to § 4.7(b)(3) or 4.12(b)(2)(iii), the term “participant” does not include a commodity pool operated by a pool operator that is the same as, or that controls, is controlled by, or is under common control with, the pool operator of a pool in which the commodity pool has invested;
(h)(1) Each Account Statement and Annual Report, including an account statement or annual report provided pursuant to § 4.7(b) or 4.12(b), must contain an oath or affirmation that, to the best of the knowledge and belief of the individual making the oath or affirmation, the information contained in the document is accurate and complete;
(3) Subject to the provisions of paragraph (h)(4) of this section, the oath or affirmation must be manually signed by a representative duly authorized to bind the pool operator.
(4)(i) An Account Statement or Annual Report may contain a facsimile signature,
(A) The CPO maintains in accordance with § 4.23 the Account Statement or Annual Report containing the manual signature from which the facsimile signature was made; and
(B) The Annual Report the CPO files with a registered futures association is manually signed.
(ii) For each pool for which the CPO distributes an Account Statement by means of electronic media, the CPO must make and keep in accordance with § 4.23 a manually signed copy of the Statement.
9. Section 4.31 is proposed to be amended by revising paragraph (a) to read as follows:
(a) Each commodity trading advisor registered or required to be registered under the Act must deliver or cause to be delivered to a prospective client a Disclosure Document containing the information set forth in §§ 4.34 and 4.35 for the trading program pursuant to which the trading advisor seeks to direct the client's commodity interest account or to direct the client's commodity interest trading by means of a systematic program that recommends specific transactions by no later than the time the trading advisor delivers to the prospective client an advisory agreement to direct or guide the client's account;
Social Security Administration.
Advance notice of proposed rulemaking.
We are planning to update and revise the rules that we use to evaluate mental disorders of adults and children who apply for, or receive, disability benefits under title II and Supplemental Security Income (SSI) payments based on disability under title XVI of the Social Security Act (the Act). We invite you to send us comments and suggestions for updating and revising these rules.
After we have considered your comments and suggestions, as well as information about advances in medical knowledge, treatment, and methods of evaluating mental impairments, and our program experience, we intend to publish for public comment a Notice of Proposed Rulemaking (NPRM) that will propose specific revisions to the rules.
As part of our long-term planning for the disability programs, we are also interested in your ideas for how we may be able to improve our programs for people who have mental disorders, especially those who would like to work.
To be sure your comments are considered, we must receive them by June 16, 2003.
You may give us your comments using: our Internet site facility (
Cathy Lively, Office of Disability and Income Security Programs, Social Security Administration, 4422 Annex Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 966-1180 or TTY (410) 966-5609. For information on eligibility or filing for benefits, call our national toll-free number 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet web site, Social Security Online, at
We are planning to update and revise the rules that we use to evaluate mental disorders of adults and children who apply for, or receive, disability benefits under title II and SSI payments based on disability under title XVI of the Act. The purpose of this notice is to give you an opportunity to send us comments and
Anyone who has an interest in the rules that we use to evaluate mental disorders of adults and children should comment. We are interested in getting comments and suggestions from people who apply for or receive disability benefits from us, members of the general public, advocates and organizations who advocate for people who have mental disorders, experts in the evaluation of mental disorders, researchers, people who make disability determinations for us, and any other people who have ideas for us to consider.
No, we will not respond directly to comments you send us because of this notice. However, after we consider your comments in response to this notice, along with other information such as medical research and our program experience, we will decide how to revise the rules we use to evaluate mental disorders. When we propose specific revisions to the rules, we will publish an NPRM in the
We are considering two regulations sections and two sections of our listings for revision. The two regulations sections are §§ 404.1520a and 416.920a, and are both titled, “Evaluation of mental impairments.” These rules discuss the special technique we use to evaluate all claims of adults who have mental disorders. The two sections of our listings are sections 12.00 and 112.00. These are the listings for mental disorders for adults (Part A, 12.00) and children (Part B, 112.00).
You can find all of these rules on our Internet site.
• § 404.1520a is at
• § 416.920a is at
• Sections 12.00 and 112.00 are in the Listing of Impairments in appendix 1 to subpart P of part 404 of our regulations at
• You can also look up sections 12.00 and 112.00 at this site:
If you do not have Internet access, you can find the Code of Federal Regulations in some public libraries, Federal depository libraries, and public law libraries.
• The current listings for mental disorders for adults (12.00) and children (112.00) will no longer be in effect on July 2, 2003, unless we extend them or revise and promulgate them again, so we must consider now whether to update and revise them.
• Although we have made some changes to the listings since we first published them, including changes to the listings in 2000 (65 FR 50746, corrected at 65 FR 60584), we have not comprehensively revised the adult listings since 1985 and the childhood listings since 1990.
• Many of our rules for adults are based on the American Psychiatric Association's
• There is also new information about mental retardation (MR) that we need to consider. We recently funded research through the National Research Council (NRC) that assessed our current criteria for evaluating MR in the context of state-of-the-art scientific knowledge and clinical practice. In its final report,
• We will also be considering information from other sources, including the following recent documents, for relevance to our policy for evaluating MR:
• Schroeder, Stephen R.; Gerry, Martin; Gertz, Gabrielle; and Velazques, Fiona,
•
We are interested in any comments and suggestions you have for revising any or all parts of §§ 404.1520a and 416.920a and sections 12.00 and 112.00 of our listings. For example, we are interested in knowing if:
• You have concerns about any of the current listings provisions for adults or children; such as whether you think we should change any of our criteria or whether you think a listing is difficult to use or understand.
• You would like to see our listings include something that they do not include now.
You can also comment about the recommendations in the NRC report and about information in the other two sources we cite above and make any other comments or suggestions to help us improve our rules for evaluating whether adults and children who have mental disorders qualify for benefits.
In addition to your comments about our regulations, we are also interested in any ideas you have about how the disability requirements of the Act and our regulations affect people who have mental disorders and:
• Need access to treatment or rehabilitation,
• Want to work, or
• May benefit from some employment.
For example, we know that many people who have mental disorders might not need benefits from us if they could get treatment before their disorders make them unable to work. Others may be disabled and unable to work, but may not need to remain unemployed, if they receive treatment or other interventions. Many people with permanent disorders can work if they have a supporting safety net (including title II disability benefits and SSI payments). Work can also be therapeutic for some people. Although the Act and our regulations include some access to health care through Medicare and Medicaid, some provision for vocational rehabilitation, and a number of work incentives, these provisions are generally for people who already qualify for benefits under our disability programs.
We are interested in your ideas for how we may be able to improve our programs for people who have mental disorders, especially those who would like to work full-time or part-time with supports. Your ideas can address our existing rules and regulations or suggest changes to the law. We will consider your ideas as we develop the NPRM we intend to publish for public comment, and, where applicable, as part of our long-term planning for the disability program.
Under title II of the Act, we provide for the payment of disability benefits if you are disabled and belong to one of the following three groups:
• Workers insured under the Act,
• Children of insured workers, and
• Widows, widowers, and surviving divorced spouses (see 20 CFR 404.336) of insured workers.
Under title XVI of the Act, we provide for Supplemental Security Income (SSI) payments on the basis of disability if you are disabled and have limited income and resources.
Under both the title II and title XVI programs, disability must be the result of any medically determinable physical or mental impairment or combination of impairments that is expected to result in death or which has lasted or is expected to last for a continuous period of at least 12 months. Our definitions of disability are shown in the following table:
The listings are examples of impairments that we consider severe enough to prevent a person from doing any gainful activity, or that result in “marked and severe functional limitations” in children seeking SSI payments under title XVI of the Act. Although we publish the listings only in appendix 1 to subpart P of part 404 of our rules, we incorporate them by reference in the SSI program in § 416.925 of our regulations, and apply them to claims under both title II and title XVI of the Act.
The listings are in two parts. There are listings for adults (part A) and for children (part B). If you are a person age 18 or over, we apply the listings in part A when we assess your claim, and we never use the listings in part B.
If you are a person under age 18, we first use the criteria in part B of the listings. If the listings in part B do not apply, and the specific disease process(es) has a similar effect on adults and children, we then use the criteria in part A. (
If your impairment(s) does not meet any listing, we will also consider whether it medically equals any listing; that is, whether it is as medically severe. (
We use the listings only to decide that people are disabled or that they are still disabled. We will never deny your claim or decide that you no longer qualify for benefits simply because your impairment(s) does not meet or medically equal a listing. If you have a severe impairment(s) that does not meet or medically equal any listing, we may still find you disabled based on other rules in the “sequential evaluation process” that we use to evaluate all disability claims. (
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors, and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
Administrative practice and procedure, Aged, Bind, Disability benefits, Public assistance programs, Supplemental Security Income (SSI), Reporting and recordkeeping requirements.
Mine Safety and Health Administration (MSHA), Labor.
Proposed rules; notice of public hearings; close of record.
MSHA will hold public hearings to receive comments on the proposed rule addressing Verification of Underground Coal Mine Operators' Dust Control Plans and Compliance Sampling for Respirable Dust (Plan Verification), and the notice of reopening addressing Determination of Concentration of Respriable Coal Mine Dust (Single Sample), both published in the
These hearings will be held pursuant to section 101 (30 U.S.C. 811) of the Federal Mine Safety and Health Act of 1977 (Mine Act).
Post-hearing comments must be received on or before June 4, 2003.
The public hearing dates and locations are listed in the Public Hearings section below under
If individuals or organizations wish to make an oral presentation for the record, please submit your request at least 5 days prior to the hearing date.
You may use mail, facsimile (fax), or electronic mail to send us your requests to make oral presentations at the public hearings. Clearly identify your requests and send them (1) By mail to MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington, Virginia 22209-3939; (2) By fax to (202) 693-9441; or (3) By electronic mail to:
Marvin W. Nichols, Jr., Director, Office of Standards, Regulations and Variances, MSHA; phone: (202) 693-9440; facsimile: (202) 693-9441; E-mail:
On March 6, 2003, (68 FR 10784), MSHA published a proposed rule in the
The use of approved powered, air-purifying respirators (PAPRs) and/or verifiable administrative controls would be allowed as a supplemental means of compliance when MSHA determines that all feasible engineering or environmental controls are being used. The proposed rule would also rescind operator compliance sampling in underground coal mines. The use of a personal, continuous dust monitor (PCDM), once developed and approved, could be used by an operator in conjunction with the dust control parameters specified in the mine ventilation plan. The proposed rule would significantly improve miners' health protection by limiting the exposure of individual miners to respirable coal mine dust.
Also, on March 6, 2003 (68 FR 10940), the Secretaries of Labor and Health and Human Services published a notice, “Determination of Concentration of Respirable Coal Mine Dust (Single Sample),” reopening the rulemaking record on a July 7, 2000 joint proposed rule that would determine that the average concentration of respirable dust to which each miner in the active workings of a coal mine is exposed can be accurately measured over a single shift. In that proposed rule the Secretaries proposed to rescind a previous 1972 finding by the Secretary of the Interior and the Secretary of Health, Education and Welfare, on the accuracy of single shift sampling (63 FR 42068).
The Agency will hold public hearings to receive further comment on the Plan Verification proposed rule and the Single Sample proposed rule.
The public hearings will begin at 8 a.m. each day and end after the last scheduled speaker.
The public hearings will be held on the following dates and at the following locations:
The hearings will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. You do not have to make a written request to speak. Speakers will speak in the order that they sign in. Any unalloted time will be made available for persons making same-day requests. At the discretion of the presiding official, the time allocated to speakers for their presentation may be limited. Speakers and other attendees may also present information to the MSHA panel for inclusion in the rulemaking record.
The hearings will be conducted in an informal manner. The hearing panel may ask questions of speakers. Although formal rules of evidence or cross-examination will not apply, the presiding official may exercise discretion to ensure the orderly progress of the hearing and may exclude irrelevant or unduly repetitious material and questions.
A verbatim transcript of the proceedings will be prepared and made a part of the rulemaking record. The transcripts will be made available for public review and can be accessed from MSHA's hompage at
We will accept additional written comments and other appropriate data for the record from any interested party, including those not presenting oral statements. Written comments and data submitted to us will be included in the rulemaking record.
To allow for the submission of post-hearing comments, the rulemaking record will remain open until June 4, 2003.
Minerals Management Service (MMS), Interior.
Request for comments, solicitation of interest.
In conjunction with the President's National Energy Policy on renewable energy resources, MMS proposes to convene discussions with geothermal producers and other stakeholders to explore the possibility of developing a consensus on geothermal royalty valuation approaches. The discussions will be in the form of public workshops and written comments and will be open for both electrical generation and direct-use valuation. MMS wishes to gauge the extent to which geothermal producers and other stakeholders desire new or modified royalty valuation approaches. Accordingly, MMS at this time requests the following information: Comments on the need for new or modified valuation procedures; an expression of interest in holding workshops to discuss alternative valuation procedures, with the goal of developing a consensus on new or modified approaches; and suggestions for alternatives or modifications to the existing procedures, with the objective of maintaining royalty neutrality.
You must submit comments on or before April 16, 2003.
Address your comments and suggestions regarding this proposal to Paul Knueven, Manager, Records and Information Management Team.
Sharron L. Gebhardt at telephone (303) 231-3211, fax (303) 231-3781, email
In response to concerns raised by stakeholders over declining royalties in 1999, MMS reopened the geothermal valuation rules to public comment to consider alternatives to both the netback procedure and the alternative fuel method (Advance Notice of Proposed Rulemaking, 64 FR 45213, August 19, 1999). However, owing to successful resolution of the concerns that prompted this action, as well as no clear consensus from industry to alter the existing rules, MMS withdrew the proposed rulemaking (65 FR 49957, August 16, 2000).
On May 17, 2001, the President released his National Energy Policy (NEP) that emphasized the importance of renewable energy in contributing to the nation's electricity supply. In response to recommendations in the NEP, the Departments of the Interior and Energy co-sponsored a national conference in Washington, DC, on November 28, 2001, to hear testimony on opportunities to expand renewable energy production from public lands. A follow-up conference was held in Palm Springs, California, on February 27, 2002, for more in-depth discussions of the issues raised in November. Few industry representatives at either conference commented on the current Federal geothermal valuation methods. However, those representatives who did speak raised concerns about the effects of royalty valuation on project costs.
MMS wishes to gauge the extent to which geothermal producers and other stakeholders desire new or modified royalty valuation approaches. In this regard we request responses to the following questions:
1. Is there a need for new or modified geothermal royalty valuation approaches, especially for the no-sales resources? Why or why not.
2. Are you interested and would you participate in public workshops to discuss alternative valuation procedures, with the goal of developing a consensus on new or modified approaches?
3. What alternatives or modifications to the existing valuation procedures do you propose? (
Depending on the responses to questions 1 and 2, MMS will schedule public workshops in the spring or summer of 2003. MMS proposes two workshops, one in Denver, Colorado, and the other in either Sacramento, California, or Reno, Nevada. Please indicate your preference. We will consider other locations if there is enough interest.
If you propose an alternative valuation method, please describe it in sufficient detail to provide an understanding of its workings and effects. Please use examples where possible.
Saint Lawrence Seaway Development Corporation, DOT.
Notice of proposed rulemaking.
The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls in their respective jurisdictions. The Tariff sets forth the level of tolls assessed on all commodities and vessels transiting the facilities operated by the SLSDC and the SLSMC. The SLSDC will be revising its regulations to reflect the fees and charges charged by the SLSMC in Canada starting in the 2003 navigation season, which are effective only in Canada. The SLSDC also proposes an amendment to increase the minimum charge per lock transited for full or partial transit of the Seaway to be charged by the SLSDC for transit through the U.S. locks of vessels that are not pleasure craft or vessels subject in Canada to the tolls under items 1 and 2 of the Tariff. Since this latter proposed amendment would be of applicability in the United States, comments are invited on only on this. (
Any party wishing to present views on the proposed amendment may file comments with the Corporation on or before April 16, 2003.
Marc C. Owen, Chief Counsel, Saint Lawrence Seaway Development Corporation, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-6823.
The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls in their respective jurisdictions. (The Tariff is called the Schedule of Fees and Charges in Canada.) The proposed amendments are described in the following summary.
The Tariff sets forth the level of tolls assessed on all commodities and vessels transiting the facilities operated by the SLSDC and the SLSMC. The SLSDC is revising § 402.8, “Schedule of Tolls,” to reflect the fees and charges charged by the SLSMC in Canada starting in the 2003 navigation season. With one exception, the changes affect the tolls for commercial vessels and are applicable only in Canada as the collection of the U.S. portion of tolls for commercial vessels is waived by law (33 U.S.C. 988a(a)). Accordingly, no notice and comment is necessary on these amendments. The SLSDC also proposes an amendment to increase the minimum charge per lock transited for full or partial transit of the Seaway to be charged by the SLSDC for transit through the U.S. locks of vessels that are not pleasure craft or vessels subject in Canada to the tolls under items 1 and 2 of the Tariff. Since only this latter proposed amendment would be of applicability in the United States, comments are invited on only on this.
The specific change proposed is to amend § 402.8, “Schedule of Tolls”, to increase the per lock charge for transit through a U.S. lock from $16.24 to $16.44. This increase is due to higher operating costs at the locks. The footnote to § 402.8 would also be amended to clarify that this charge will be collected by the SLSDC for the U.S. locks in U.S. funds instead of at par.
This proposed regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required.
The Saint Lawrence Seaway Development Corporation certifies that this proposed regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Tariff of Tolls primarily relates to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.
This proposed regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321,
The Corporation has analyzed this proposed rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that it does not have sufficient federalism implications to warrant a Federalism Assessment.
The Corporation has analyzed this proposed rule under title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.
This proposed regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.
Vessels, Waterways.
Accordingly, the Saint Lawrence Seaway Development Corporation proposes to amend 33 CFR part 402, Tariff of Tolls, as follows:
1. The authority citation for part 402 would continue to read as follows:
33 U.S.C. 983(a), 984(a)(4), and 988, as amended; 49 CFR 1.52.
2. Section 402.8 would be revised to read as follows:
Environmental Protection Agency (EPA).
Proposed rule; amendments.
On October 7, 1997, the EPA issued national emission standards for primary aluminum reduction plants under section 112 of the Clean Air Act (CAA). This proposal would amend the existing rule by revising the emission limits for polycyclic organic matter applicable to one potline subcategory. The proposed amendments would also revise the compliance provisions by clarifying the dates by which all plants must meet the rule requirements and adding provisions specifying the time allowed to demonstrate initial compliance for a new or reconstructed potline, anode bake furnace, or pitch storage tank as well as an existing potline or anode bake furnace that has been shutdown and subsequently restarted. We are proposing these amendments to reduce compliance uncertainties and improve understanding of the final rule requirements.
Steve Fruh, Policy, Planning, and Standards Group (MD-C439-04), Emission Standards Division, Office of Air Quality Planning and Standards, U.S. EPA, Research Triangle Park, NC 27711, telephone number (919) 541-2837, electronic mail address,
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 63.840 of the national emission standards for primary aluminum reduction plants. If you have any questions regarding the applicability of these amendments to a particular entity, consult the person listed in the preceding
Certain types of information will not be placed in the EPA Dockets. Information claimed as confidential business information (CBI) and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. The EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility previously identified in this document.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at
Comments may be sent by electronic mail (e-mail) to
You may submit comments on a disk or CD ROM that you mail to the mailing address identified in this document. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.
Section 112 of the CAA establishes a technology-based program to reduce stationary source emissions of hazardous air pollutants (HAP) from major sources. Major sources of HAP are those that have the potential to emit greater than 10 tons/year of any one HAP or 25 tons/year of any combination of HAP. The CAA requires the national emission standards to reflect the maximum degree of reduction in HAP emissions that is achievable. This level of control is commonly known as the maximum achievable control technology (MACT).
On October 7, 1997, the EPA published final standards (62 FR 52384) for the control of HAP from primary aluminum reduction plants (40 CFR part 63, subpart LL). The rule contains emission limitations and standards applicable to total fluorides (TF), which is a surrogate for hydrogen fluoride, and polycyclic organic matter (POM). These limits apply to each new or existing potline, paste production plant, and anode bake furnace; they also apply to each new pitch storage tank associated with primary aluminum production and located at a major source.
After promulgation, two significant compliance-related issues were identified by the industry. The concerns at issue are:
• Review of the POM emission limit for the vertical stud Soderberg-2 (VSS2) subcategory of existing potlines, based on the availability of additional data; and
• The date by which the owner or operator must conduct a performance test to demonstrate initial compliance for an existing potline or anode bake furnace that has been shut down and subsequently restarted.
We received a petition from the industry requesting a proposed rulemaking to revise the POM emission limits for VSS2 potlines. As part of the request, the petition included additional test data (collected from 1999 through 2000) for all VSS2 potlines. We agreed to analyze the additional data and evaluate the achievability of the existing MACT limit for POM.
The VSS2 subcategory includes all existing vertical stud Soderberg potlines. Paragraph (a)(2)(i) in § 63.843 of the existing rule limits POM emissions from each existing VSS2 potline to 1.8 kilograms (kg) per Megagram (Mg) or 3.6 pounds per ton (lb/ton) of aluminum produced for each potline. The proposed amendments would change the POM limit to 2.85 kg/Mg (5.7 lb/ton) of aluminum produced. Table 2 of subpart LL gives the POM emission limits for potlines at those plants that comply by emissions averaging. The proposed POM emission averaging limits for VSS2 potlines are:
Section 63.847(a) of the rule currently requires the owner or operator to demonstrate initial compliance by specified dates. The proposed amendments would clarify the introductory text of paragraph (a) by replacing the phrase “demonstrate initial compliance” with the word “comply.” This proposed change distinguishes the compliance date of the rule from the date by which a plant must actually conduct their initial performance test.
Section 63.847(c) of the rule currently requires the owner or operator to conduct an initial performance test during the first month following the applicable compliance date. For a new or reconstructed affected source, we are proposing that the owner or operator conduct the initial performance test by:
• The 180th day after startup for a potline (or potroom group). The 180-day period would start when the first pot in a potline (or potroom group) is energized.
• The 45th day after startup for an anode bake furnace. The 45-day period would start at the beginning of the first anode bake cycle.
• The 30th day after startup for a pitch storage tank (if the owner or operator elects to conduct an initial performance test rather than a design evaluation). Today's proposed amendments would not change the timing of the initial performance test for existing affected sources (
We are also proposing to add performance test dates following startup of an existing potline or anode bake furnace that was shut down at the time compliance would have otherwise been required and subsequently restarted. Again, we are proposing 180 days after startup for a potline (or potroom group) and 45 days for an anode bake furnace. In addition, we are proposing to amend the notification requirements in § 63.850(a) of the rule to require advance notice to the Administrator at least 30 days before restart of an affected source that has been shut down.
Appendix A to subpart LL shows the requirements in the General Provisions (40 CFR part 63, subpart A) that do not apply to primary aluminum reduction plants. We are also proposing to amend appendix A to reflect the changes in performance test dates and the new notification requirement. A detailed explanation for the proposed changes to the compliance provisions follows in section III.B of this document.
We received a petition to revise the POM limit for VSS2 potlines, which the petitioner said was not achievable. The petitioner believes that the limited data used to develop the original emission limit did not reflect the normal variability of VSS2 potlines. The petitioner submitted additional test data and requested that we reevaluate the achievability of the original emission limit. We agreed to consider the petition and to analyze the additional data.
When we promulgated the current rule, we based the POM limit for VSS2 potlines on data that consisted of seven performance tests from two potlines. We used data for only two of the potlines in this subcategory because that was the only data available for calculating the MACT floor and determining the MACT level of control. At that time, we assumed that these tests for two potlines represented the performance level achievable by the best performing VSS2 potlines. This assumption was based on the fact that VSS2 potlines are all of the same design, operate in the same manner, use the same feed materials, and employ the same equipment and work practices to control emissions. We had no reason to believe that the original POM limit associated with MACT could not be achieved by the affected sources in the subcategory.
We have subsequently obtained data for the five best-performing potlines in the subcategory from additional testing performed during 1999 and 2000. The database consists of information from 88 runs, which is equivalent to 29 performance tests, because one test is the average of three runs. The new data cover all months of the year, which means that seasonal variations that may affect emission control performance (such as changes in ventilation rates) are included. The original data covered a period of only 4 months, which does not include seasonal variations and does not capture the true variability over time. The expanded database is far superior to the original database and more representative of the VSS2 subcategory.
The expanded database indicates that the two potlines we used to develop the original emission limit are actually the two best-performing potlines in the subcategory. Moreover, the data indicate that the MACT limit in the current rule is not achievable even by these two potlines on a continuing basis. We have revised the MACT floor based on the expanded database which is now available. The revised MACT floor level of control is 5.7 lb/ton of aluminum instead of 3.6 lb/ton. We derived this new MACT floor level of control from the currently available data using the same statistical methodology which we employed in the original rulemaking.
Since the data we originally utilized to establish an emission standard for this subcategory indicate that lower emissions have been attained in some circumstances, we also evaluated the new data to determine whether a level of control beyond the revised MACT floor would be achievable by the sources in this subcategory. We examined the factors affecting the operation of the potlines and the techniques used to control emissions. The VSS2 potlines are all designed and operated in the same manner and use the same raw materials. The same emission controls and work practices are also applied to each of the potlines. We have not identified any obvious reasons for the variability in performance other than the normal variability associated with processes, testing procedures, and temporal variations. In fact, the performance of the various potlines from test to test overlaps, and although there are small differences in average performance, the overall distributions of performance for the VSS2 potlines are similar.
We have identified no changes in processes, work practices, or control strategies that could be implemented to improve the performance of an individual potline. Consequently, we believe it is not practicable for sources in the VSS2 subcategory to achieve levels of control beyond the MACT floor on a consistent basis. Therefore, we are proposing to revise the emission limit to 5.7 lb/ton, to represent the MACT level of control for VSS2 potlines.
The petitioner had requested that we revise the emission limit to 7.2 lb/ton; however, our analysis indicates that the revised emission limit should be 5.7 lb/ton. We discussed with the petitioner what test data should be used to assess emission control performance and what procedures should be used to analyze the data. Our goal was to be consistent with the approach used for the original limit and also for limits developed for other subcategories of potlines. Based on these discussions, we believe that the petitioner understands and accepts our rationale for the new emission limit we are proposing. Although this numerical emission limit differs from the limit
Section 63.847 of the existing rule establishes compliance provisions for affected sources. Section 63.847(a) gives compliance dates but requires the owner or operator to demonstrate initial compliance by the specified dates. Upon review, we believe the phrase “demonstrate initial performance” could cause misunderstanding of the rule requirements. For example, regulatory authorities could interpret this provision to require a new or reconstructed affected source to demonstrate initial compliance (
Section 63.847(c) of the existing rule requires the owner or operator to demonstrate initial compliance by conducting a performance test for a potline or anode bake furnace “during the first month following the compliance date.” The rule does not address the questions of either when initial compliance must be demonstrated for a new or reconstructed affected source or for an existing affected source that is shut down and subsequently restarted.
Since promulgation of the rule, nearly all primary aluminum plants in northwestern States shut down their potlines as a result of the short supply and high cost of electric power in that region. Some plants may curtail operations through 2003. As the electrical power crisis has eased, primary aluminum plants have begun returning these potlines and anode bake furnaces to active service. In some cases, regulatory authorities have interpreted the rule to require that plants conduct the performance test for these potlines and anode bake furnaces within the first month after startup. While 30 days is sufficient time to conduct a performance test for an existing potline or anode bake furnace which is currently in operation, we believe that 30 days is not sufficient time for startup conditions. A 30-day period would require plants to demonstrate compliance before the startup of a potline could feasibly be completed and to conduct testing under conditions that are not representative of normal operation.
Aluminum potlines are unique emission sources in the sense that the affected source consists of numerous (100 to 150 or more) smelting cells. At the beginning of startup, a small number of cells are charged with raw materials. When they become functional, they provide a molten liquid bath that is used to start up additional cells. All of the cells cannot be started and stabilized simultaneously because the electrolytic chemical process requires a stable equilibrium between the molten bath and cell operating temperatures. Until equilibrium is achieved, the emission rates from the potline are not representative of normal operation. For these reasons, the startup, stabilization, and testing of an existing potline after a long-term shutdown may require as long as 6 months to complete.
Therefore, we are proposing additional time for initial startup of new or reconstructed potlines and startup of existing potlines that have been shut down for long periods. The additional time proposed (180 days) is reasonable and is consistent with § 63.7 of the General Provisions (40 CFR part 63, subpart A), which allows up to 180 days after startup for existing, new, or reconstructed affected sources to come online, complete performance tests, and establish parametric monitoring limits.
Anode bake furnaces do not have the startup complexities associated with the dozens of cells in a potline. Bake furnaces are restarted a few sections at a time and require several days rather than several weeks to stabilize. For this reason, we are proposing to allow 45 days after initial startup of a new or reconstructed anode bake furnace or startup of an existing anode bake furnace that was shut down for a long period and subsequently restarted.
We are proposing that the 180-day period for startup of a potline begin when the first pot is energized. For an anode bake furnace, the 45-day period would start at the beginning of the first anode bake furnace cycle. This approach is consistent with the definition of
Existing paste production plants also may have been shut down along with potlines and anode bake furnaces. However, no performance test or other type of compliance demonstration is required for paste plants. Initial compliance with the equipment standard for this affected source is based on inspections and review of their records to ensure that the proper equipment has been installed. Under the rule, unless a compliance extension is granted, an existing paste production plant must comply with the rule by the required date. A new or reconstructed paste production plant must meet the rule requirements upon startup; this also applies if the plant has been shut down and subsequently restarted. However, the owner or operator is required to provide advance notice of the startup.
Section 63.847(g) of the rule allows the owner or operator to demonstrate initial compliance with the requirements for new pitch storage tanks either by conducting a performance test or by a design evaluation. The proposed amendments would require the owner or operator to demonstrate initial compliance within 30 days of the compliance date if the owner or operator elects to conduct a performance test. We are proposing a 30-day period because we believe this is adequate time to complete the emission test.
During startup, the plant must meet all of the EPA requirements for maintaining control equipment and minimizing emissions as much as possible during the startup period. We have not added specific requirements to the rule because this is already required by the operation and maintenance requirements in § 63.6(e) of the General Provisions. Section 63.6(e)(3) also requires the owner or operator to operate and maintain the affected source and control equipment according to the procedures in the startup, shutdown, and malfunction plan.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
It has been determined that the proposed amendments are not a “significant regulatory action” under the terms of Executive Order 12866 and are therefore not subject to OMB review.
The OMB has approved the information collection requirements in the 1997 NESHAP for primary aluminum reduction plants under the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
Today's proposed rule amendments will have no impact on the information collection burden estimates made previously. The proposed requirement for advance notification of startup for an existing affected source that has been shut down has no impact because similar advance notification is already required for a new or reconstructed affected source. Consequently, the ICR has not been revised.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
The U.S. Small Business Administration defines a small entity in this industry sector as: (1) A firm having no more than 1,000 employees; (2) a government jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and that is not dominant in its field.
After considering the economic impacts of today's proposed amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The proposed rule will not impose any requirements on small entities. None of the plants in this industry is classified as a small entity.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Today's proposed amendments contain no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, or tribal governments. The EPA has determined that the proposed amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Thus, today's proposed amendments are not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” These proposed amendments do not have federalism implications. They 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. None of the affected facilities are owned or operated by State governments. Thus, Executive Order 13132 does not apply to the proposed amendments.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”
These proposed amendments will not have tribal implications, as specified in Executive Order 13175. They will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. No tribal governments own facilities subject to the NESHAP. Thus, Executive Order 13175 does not apply to these proposed amendments.
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. These proposed amendments are not subject to Executive Order 13045 because they are based on technology performance and not on health or safety risks.
These proposed amendments are not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because they are not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C 272 note), directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (such as material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
The proposed amendments do not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Primary aluminum reduction plants, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 63 continues to read as follows:
42 U.S.C. 7401
2. Section 63.843 is amended by revising paragraph (a)(2)(iii) to read as follows:
(a) * * *
(2) * * *
(iii) 2.85 kg/Mg (5.7 lb/ton) of aluminum produced for each VSS2 potline.
3. Section 63.847 is amended by:
a. Revising the introductory text of paragraph (a); and
b. Revising paragraph (c).
The revisions read as follows:
(a)
(c)
(1) During the first month following the compliance date for an existing potline (or potroom group) or anode bake furnace;
(2) By the date determined according to the requirements in paragraph (c)(2)(i), (ii), or (iii) of this section for a new or reconstructed potline, anode bake furnace, or pitch storage tank (for which the owner or operator elects to conduct an initial performance test):
(i) By the 180th day following startup for a potline or potroom group. The 180-day period starts when the first pot in a potline or potroom group is energized.
(ii) By the 45th day following startup for an anode bake furnace. The 45-day period starts at the beginning of the first anode bake cycle.
(iii) By the 30th day following startup for a pitch storage tank. The 30-day period starts when the tank is first used to store pitch.
(3) By the date determined according to the requirements in paragraph (c)(3)(i) or (ii) of this section for an existing potline or anode bake furnace that was shut down at the time compliance would have otherwise been required and is subsequently restarted:
(i) By the 180th day following startup for a potline or potroom group. The 180-day period starts when the first pot in a potline or potroom group is energized.
(ii) By the 45th day following startup for an anode bake furnace. The 45-day period starts at the beginning of the first anode bake cycle.
4. Section 63.850 is amended by removing the word “and” at the end of paragraph (a)(7) and removing the period at the end of paragraph (a)(8) and replacing it with “; and” and by adding new paragraph (a)(9) to read as follows:
(a) * * *
(9) One-time notification of startup of an existing potline or potroom group, anode bake furnace, or paste production plant that was shut down for a long period and subsequently restarted. The owner or operator must provide written notice to the Administrator at least 30 days before the startup.
5. Table 2 to subpart LL is amended by revising the entry for “VSS2 potlines” to read as follows:
6. Appendix A to subpart LL is amended by:
a. Revising the title of Appendix A;
b. Adding a new entry for § 63.7(a)(2)(ii) and (iii) in numerical order; and
c. Adding a new entry for § 63.9(b)(1)-(b)(5) in numerical order.
The revisions and additions read as follows:
Federal Communications Commission.
Proposed rule; petition for rulemaking.
The Media Bureau (“Bureau”) seeks comment on a proposal to establish a “Rural Translator Service.” The National Translator Association asserts that implementation of this service will help to ensure the delivery of broadcast services to rural areas. According to National Translator Association, the Commission's goals of transitioning broadcast television from analog to digital service, providing for availability and attendant benefits of high definition television, and providing for free over-the-air broadcast television, both commercial and non-commercial, can only be accomplished in rural areas by the use of translator stations.
Comments due on or before May 16, 2003. Reply comments due on or before June 16, 2003.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Brad Lerner (202) 418-7066, Video Division, Media Bureau.
This is a synopsis of the Commission's Public Notice, RM-10666, released March 6, 2003. The full text of this Public Notice is available for inspection and copying during normal business hours in the FCC Reference Room, Room CY-A257, Portals II, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY B402, Washington, DC 20554.
The National Translator Association (“NTA”) seeks to establish a “Rural Translator Service.” Among other things, NTA proposes that in order for an applicant to apply in this “Rural Translator Service,” it must propose a translator that can provide a signal to an area in which its residents are unable to receive at least four “free” primary over-the-air television signals, based on a combination of predictive methods. For areas outside the predicted Grade B contour of a television station, the NTA would presume that no service is received. For areas within a predicted Grade B contour, applicants would be permitted to use the “Longley Rice Terrain Dependant Population Count” and the methods prescribed in the FCC Office of Engineering and Technology Bulletin 69 (“OET 69”) to show that actual service is not available. NTA also proposes to limit the effective radiated power of these stations to 1 kilowatt for UHF Translators and 100 watts for VHF Translators. The NTA proposes that applications for stations in the Rural Translator Service be processed on an expedited basis using a “one-day rolling window or day-by-day cutoff procedures for mutually exclusive applications” in lieu of the Commission's filing window procedures for the Low Power Television Service.
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before May 16, 2003, and reply comments on or before June 16, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper
Comments filed through the ECFS can be sent as an electronic file via the Internet to
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.
Fish and Wildlife Service, Interior.
Proposed rule.
Increasing populations of the double-crested cormorant (
Comments on this proposed rule will be accepted through May 16, 2003.
Comments on the information collection aspects of this proposed rule will be considered if received by May 16, 2003. The Office of Management and Budget (OMB) has up to 60 days to approve or disapprove information collection but may respond after 30 days. Therefore, to ensure maximum consideration, your comments should be received by OMB by April 16, 2003.
Comments can be mailed to the Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-4107, Arlington, Virginia 22203; or e-mailed to
Comments specific to the information collection aspects of the proposed rule should be mailed to Office of Management and Budget, Office of Information and Regulatory Affairs, Attn: Department of Interior Desk Officer, 725 17th Street, NW., Washington, DC 20503, and Anissa Craghead, Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop 222, Arlington, VA 22203;
Brian Millsap, Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service (see
The Service is the Federal agency with primary responsibility for managing migratory birds. Our authority is based on the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
The authority for the proposed regulations set forth in this rule is the MBTA, which authorizes the Secretary, subject to the provisions of, and in order to carry out the purposes of, the applicable conventions, to determine when, if at all, and by what means it is compatible with the terms of the conventions to allow the killing of migratory birds. DCCOs are covered under the terms of the Convention for the Protection of Migratory Birds and Game Mammals with Mexico. The DCCO is a non-game, non-insectivorous bird for which the applicable treaty does not impose specific prohibitions or requirements other than the overall purpose of protection so as not to be exterminated and to permit rational utilization for sport, food, commerce, and industry. In the DEIS for this proposed action, the Service has considered all of the statutory factors as well as compatibility with the provisions of the convention with Mexico. The Russian convention (Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, concluded November 19, 1976) provides an authority to cover DCCOs even though not listed in the Appendix. To the extent we choose to apply the convention, it contains an exception from the prohibitions that may be made for the protection against injury to persons or property. We note, therefore, that there is no conflict between our responsibility for managing migratory birds and our proposed action.
Regulations governing the issuance of permits for migratory birds are contained in title 50, Code of Federal Regulations, parts 13 and 21. Regulations in subpart D of part 21 deal
This proposed rule is directly related to the DEIS on DCCO management that was completed in November 2001 and made available for public comment via a
APHIS/WS was a cooperating agency in the development of the DEIS. Additionally, States and Canadian provinces were involved through the International Association of Fish and Wildlife Agencies. The DEIS examined six management alternatives for addressing conflicts with DCCOs: (A) No action, (B) Nonlethal control, (C) Increased local damage control, (D) Public resource depredation order, (E) Regional population reduction, and (F) Regulated hunting. The proposed action/preferred alternative in the DEIS was alternative D. This alternative is intended to enhance the ability of resource agencies to deal with immediate, local concerns by giving them more management flexibility. To address DCCO populations from a broader and more coordinated perspective, a population objectives approach will need to be considered over the longterm. In the future, if supported by biological evidence and appropriate monitoring resources, the Service may authorize management that focuses on setting and achieving regional population goals. At that time, a cormorant management plan will be developed. Until then, our strategy will continue to focus on alleviating localized damages.
In addition to establishing a public resource depredation order, alternative D would make two other changes to the current management program. It would also revise 50 CFR 21.47, the depredation order for double-crested cormorants at aquaculture facilities, and revise Director's Order 27. The establishment of the public resource depredation order and the revision of the aquaculture depredation order require us to amend the regulations in 50 CFR, part 21, governing the issuance of migratory bird permits. This proposed rule outlines those amendments, clarifying the proposed action presented in the DEIS.
The Service received many comments as a result of the public review of the DEIS. In consideration of these comments, we are proposing to make some modifications to the proposed action. A description of these changes follows. In this proposed rule, the public resource depredation order will: (1) Apply to 24 States (those States where Interior and Southern DCCO populations present the greatest risk to public resources); (2) apply specifically to State fish and wildlife agencies, federally recognized Tribes, and APHIS/WS, rather than to “State, Tribal, and Federal land management agencies” as stated in the DEIS, in order to streamline cormorant control activities and give more responsibility to APHIS/WS, the primary Federal agency responsible for alleviating wildlife damage conflicts; (3) apply only to land and freshwater (not saltwater), since all of the documented fisheries impacts occur in freshwater; and (4) allow egg oiling, egg and nest destruction, cervical dislocation, shooting, and CO
The information in this section is derived from the DEIS (to obtain a copy, see
According to Breeding Bird Survey (BBS) data, DCCOs in the United States increased at a statistically significant average rate of 7.9 percent per year between 1975 and 2000 (Sauer
Literature on DCCO feeding habits and fisheries impacts has shown that: (1) DCCOs are a generalist fish predator with prey selection varying opportunistically throughout the seasons and among locations; (2) present composition of cormorant diet has been strongly influenced by human-induced changes in the natural balance of fish stocks; (3) an impact can occur at different scales, such that ecological effects on fish populations are not necessarily the same as effects on recreational or commercial catches, or vice versa; (4) cormorant impact is generally most significant in artificial, highly managed situations; (5) cormorant diet typically consists of low percentages of sport fish, but conclusions about fisheries impacts cannot be based on diet studies alone; and (6) conflicts with cormorants will vary locally since ecological conditions vary locally.
Revisions to the aquaculture depredation order in this proposed rule would authorize APHIS/WS personnel to conduct winter roost control in the area of aquaculture facilities. In recent years, APHIS/WS has been involved extensively with nonlethal roost harassment efforts to reduce DCCO depredation on aquaculture facilities in the southern U.S. The Service trusts APHIS/WS personnel to decide which damage management techniques are most appropriate in a given situation and is therefore not requiring that nonlethal strategies be used first.
We analyzed our proposed action in the DEIS. We predict the proposed action will not have significant negative impacts on DCCO populations, will benefit fisheries in some situations, will not adversely affect federally protected species (
A complete list of citation references is available upon request from the Division of Migratory Bird Management (
If you wish to comment on this proposed rule, you may submit your comments by any one of several methods. We may accept comments on the degree to which the rule's data sources comply with Service information quality guidelines (these guidelines can be found at
This proposed rule would implement the DEIS proposed action in the following ways: it would (1) revise the 1998 aquaculture depredation order that allows APHIS/WS to protect public and private aquacultural stock in the 13 States listed in 50 CFR 21.47 by also allowing the take of DCCOs at winter roost sites; and (2) establish a new depredation order authorizing State fish and wildlife agencies, federally recognized Tribes, and APHIS/WS to take DCCOs without a Federal permit to protect public resources on public and private lands and freshwaters in 24 States (the 13 States listed in 50 CFR 21.47 and 11 additional States with significant resource threats). Both of the actions would amend subpart D of 50 CFR part 21.
In compliance with the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the Council on Environmental Quality's regulation for implementing NEPA (40 CFR parts 1500-1508), we prepared a DEIS in November 2001, followed by a 100-day public comment period. This DEIS is available to the public (see
Section 7(a)(2) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1531-1543; 87 Stat. 884) provides that “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out...is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of (critical) habitat * * *.” We have initiated Section 7 consultation under the ESA for this proposed rule. The result of this consultation will be included in the final Environmental Impact Statement.
In accordance with the criteria in Executive Order 12866, this proposed action is not a significant regulatory action subject to Office of Management and Budget review. OMB has made this determination of significance under the Executive Order. This rule will not have an annual economic effect of $100 million or more or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit and economic analysis is not required. The purpose of this rule is to help reduce adverse effects caused by cormorants, thereby providing economic relief. The total estimated economic impact of DCCOs is less than $50 million per year. Assuming that landowners (
This proposed action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. The action proposed is consistent with the policies and guidelines of other Department of the Interior bureaus. This proposed action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This proposed action will not raise novel legal or policy issues because we have previously managed DCCOs under the Migratory Bird Treaty Act.
Executive Order 12866 also requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not have an annual effect on the economy of $100 million or more, nor will it cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
Simultaneous with the publication of this proposed rule, we have submitted an application for information collection approval from the Office of Management and Budget (OMB). Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), information collections must be approved by OMB. Agencies may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. This proposed rule would institute new information collection burden hours, as described below. We will notify the public of OMB's response to our application in the final rule for this regulation.
We intend to collect information from State, Tribal, and Federal agencies and private aquaculture producers who conduct DCCO management under the authority of the depredation orders. The specific monitoring and reporting requirements associated with this rule are listed below in the proposed language for 50 CFR 21.47 and 21.48. The information collected will help us to determine how many DCCOs are being taken and for what purposes.
Information collections associated with this proposed rule are §§ 21.47(d)(7) and (d)(8) and 21.48(d)(7), (d)(8), (d)(9), and (d)(11) listed below in the proposed amendments to 50 CFR part 21. The breakdown of the information collection burden is as follows: We estimate that 21.47(d)(7) will have 50 annual respondents with 25 total annual burden hours valued at $750; we estimate that 21.47(d)(8) will have 900 annual respondents with 1,800 total annual burden hours valued at $54,000; we estimate that 21.48(d)(7) will have 10 annual respondents with 5 total annual burden hours valued at $150; we estimate that 21.48(d)(8) will have 60 annual respondents with 60 total annual burden hours valued at $1,800; we estimate that 21.48(d)(9) will have 60 annual respondents with 1,200 total annual burden hours valued at $36,000; and we estimate that 21.48(d)(11) will have 10 annual respondents with 800 total annual burden hours valued at $24,000. Overall, we estimate that a total of 960 respondents will annually submit a total of 1,090 responses to the recordkeeping and reporting requirements associated with these depredation orders. Each response will require an average of 3.6 hours to complete, for a total of 3,890 hours per year for all of the information collection and recordkeeping requirements in this proposed rule. We estimate that the average wage of the individuals collecting the information is $30.00 per hour and, thus, the dollar value of the total annual hour burden is $116,700. OMB regulations at 5 CFR part 1320 require that interested members of the public and affected agencies have an opportunity to comment on information collection and record keeping activities. Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden of the information collection; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the information collection on respondents. Send comments on this information collection within 30 days of the date of publication of this proposed rule to the addresses listed in the
The Unfunded Mandates Reform Act of 1995 requires agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. We have determined, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
In accordance with Executive Order 12630, this proposed action does not have significant takings implications and does not affect any constitutionally protected property rights. This action will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this proposed action will help alleviate private and public property damage and allow the exercise of otherwise unavailable privileges.
Due to the migratory nature of certain species of birds, the Federal Government has been given statutory responsibility over these species by the Migratory Bird Treaty Act. While legally this responsibility rests solely with the Federal Government, in the best interest of the migratory bird resource, we work cooperatively with States and other relevant agencies to develop and implement the various migratory bird management plans and strategies. For example, in the establishment of migratory game bird hunting regulations, we annually prescribe frameworks from which the States make selections and employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations.
This proposed action does not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. It will allow, but will not require, States to develop and implement their own DCCO management program. Therefore, in accordance with Executive Order 13132, this proposed action does not have significant federalism effects and does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Under Executive Order 12988, the Office of the Solicitor has determined that this policy does not unduly burden the judicial system and meets the requirements of Sections 3(a) and 3(b)(2) of the Order.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and Executive Order 13175, we have determined that this action has no significant effects on federally recognized Indian Tribes. In order to promote consultation with Tribes, a copy of the DEIS was mailed to all federally recognized Tribes in the continental United States.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this proposed action is not expected to significantly affect energy supplies, distribution, or use, this proposed action is not a significant energy action and no Statement of Energy Effects is required.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons stated in the preamble, we hereby propose to amend part 21, of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 21 is revised to read as follows:
Pub. L. 95-616; 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106-108; sec. 3 of the Migratory Bird Treaty Act (16 U.S.C. 704), 40 Stat. 755; and sec. 3 of the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712), 92 Stat. 3112.
2. In subpart D, revise § 21.47 to read as follows:
(a)
The purpose of this depredation order is to help reduce depredation of aquacultural stock by double-crested cormorants at private fish farms and State and Federal fish hatcheries.
(b)
This depredation order applies to commercial freshwater aquaculture facilities and to State and Federal fish hatcheries in the States of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Minnesota, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas.
(c)
(1) This depredation order authorizes landowners, operators, and tenants (or their employees or agents) actually engaged in the commercial, Federal, or State production of freshwater aquaculture stocks to take, without a Federal permit, double-crested cormorants when they are found committing or about to commit depredations to aquaculture stocks. This authority is applicable only during daylight hours and only within the boundaries of freshwater commercial aquaculture facilities or State and Federal hatcheries.
(2) This depredation order authorizes employees of the Wildlife Services program of the U.S. Department of Agriculture Animal and Plant Health Inspection Service to take double-crested cormorants, with appropriate landowner permission, at roost sites in the vicinity of aquaculture facilities, at any time, day or night, during the months of October, November, December, January, February, and March.
(3) Authorized employees of the Wildlife Services program of the U.S. Department of Agriculture Animal and Plant Health Inspection Service may designate agents to carry out control, provided these individuals act under the conditions of the order.
(d)
(1) Persons operating under paragraph (c)(1) of this section may only do so in conjunction with an established nonlethal harassment program as certified by officials of the Wildlife
(2) Double-crested cormorants may be taken only by shooting with firearms, including rifles. Persons using shotguns are required to use nontoxic shot as listed in 50 CFR 20.21(j).
(3) Persons operating under this depredation order may use decoys, taped calls, or other devices to lure within gun range birds committing or about to commit depredations.
(4) Persons operating under this depredation order must obtain appropriate landowner permission before implementing activities authorized by the order.
(5) Double-crested cormorants may not be killed contrary to the laws or regulations of any State, and none of the privileges of this section may be exercised unless the person possesses the appropriate State or other permits, if required.
(6) Persons operating under this depredation order must properly dispose of double-crested cormorants killed in control efforts:
(i) Individuals may donate birds killed under authority of this order to museums or other such scientific and educational institutions for the purposes of scientific or educational exhibition. Recipients of such donations must have a scientific collecting permit as outlined in 50 CFR 21.23;
(ii) Individuals may also bury or incinerate birds taken; and
(iii) Individuals may not allow birds taken under this order, or their plumage, to be sold, offered for sale, bartered, or shipped for purpose of sale or barter.
(7) Nothing in this depredation order authorizes the take of any migratory bird species other than double-crested cormorants. Two look-alike species co-occur with double-crested cormorants in the southeastern States, the anhinga, which occurs across the southeastern United States, and the neotropic cormorant, which is found in varying numbers in Texas, Louisiana, and Oklahoma. Both species can be mistaken for double-crested cormorants, but take of these two species is not authorized under this depredation order. Persons operating under this order must immediately report the take of a migratory bird species other than DCCOs to the appropriate Service Regional Migratory Bird Permit Office. Additionally, this depredation order does not authorize the take of any species protected by the Endangered Species Act, unless as permitted. Persons operating under this order must immediately report the take of species protected under the Endangered Species Act to the Service.
(8) Persons operating under this depredation order must:
(i) Keep a log recording the date and number of all birds killed each month under this authorization;
(ii) Maintain this log for a period of 3 years (and maintain records for 3 previous years of takings at all times thereafter); and
(iii) Annually provide the most recent log to the appropriate Service Regional Migratory Bird Permit Office. Regional Office addresses are found in § 2.2 of subchapter A of this chapter.
(9) The authority to take double-crested cormorants under this order can be revoked by the Regional Director for violations of or failure to comply with the terms and conditions of the order. Persons whose authority is revoked may apply for a depredation permit under 50 CFR 21.41.
(e)
Yes. This information collection is authorized by OMB control number 1018-XXXX.
(f)
This depredation order will automatically expire on April 30, 2005, unless revoked or extended prior to that date.
3. In Subpart D, add § 21.48 to read as follows:
(a)
The purpose of this depredation order is to reduce the occurrence and/or minimize the risk of adverse impacts to public resources (fish, wildlife, plants, and their habitats) caused by double-crested cormorants.
(b)
This depredation order applies to all lands and freshwaters in the States of Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Vermont, West Virginia, and Wisconsin.
(c)
(1) This depredation order authorizes State fish and wildlife agencies, federally recognized Tribes, and State Directors of the Wildlife Services program of the U.S. Department of Agriculture Animal and Plant Health Inspection Service (collectively termed “Agencies”) to take without a permit double-crested cormorants found committing or about to commit, and to prevent, depredations on the public resources of fish (including hatchery stock at Federal, State, and Tribal facilities), wildlife, plants, and their habitats.
(2) Agencies may designate agents to carry out control, provided those individuals act under the conditions of the order.
(3) Federally recognized Tribes and their agents may carry out control only on reservation lands or ceded lands within their jurisdiction.
(d)
(1) Persons operating under this order must first utilize nonlethal control methods such as harassment and exclusion devices when these are considered effective and practicable by the responsible Agency.
(2) Double-crested cormorants may be taken only by means of egg oiling, egg and nest destruction, cervical dislocation, shooting, and CO
(3) Persons operating under this depredation order may use decoys, taped calls, or other devices to lure within gun range birds committing or about to commit depredation of public resources.
(4) Persons operating under this depredation order must obtain appropriate landowner permission before implementing activities authorized by the order.
(5) Persons operating under this depredation order may not take double-crested cormorants contrary to the laws or regulations of any State, and none of the privileges of this section may be exercised unless the person possesses the appropriate State or other permits, if required.
(6) Persons operating under this depredation order must properly dispose of double-crested cormorants killed in control efforts:
(i) Individuals may donate birds killed under authority of this order to museums or other such scientific and educational institutions for the purposes of scientific or educational exhibition. Recipients of such donations must have a scientific collecting permit as outlined in 50 CFR 21.23;
(ii) Individuals may also bury or incinerate birds taken; and
(iii) Individuals may not allow birds taken under this order, or their plumage, to be sold, offered for sale, bartered, or shipped for purpose of sale or barter.
(7) Nothing in this depredation order authorizes the take of any migratory bird species other than double-crested cormorants. Two look-alike species co-occur with double-crested cormorants in the southeastern States, the anhinga, which occurs across the southeastern United States, and the neotropic cormorant, which is found in varying numbers in Texas, Louisiana, and Oklahoma. Both species can be mistaken for double-crested cormorants, but take of these two species is not authorized under this depredation order. Persons operating under this order must immediately report the take of a migratory bird species other than DCCOs to the appropriate Service Regional Migratory Bird Permit Office. Additionally, this depredation order does not authorize the take of any species protected by the Endangered Species Act, unless as permitted. Persons operating under this order must immediately report the take of species protected under the Endangered Species Act to the Service.
(8) Responsible Agencies must, before they initiate control, provide a one-time notice, in writing, to the appropriate Service Regional Migratory Bird Permit Office of their intention to carry out control activities under this order. Regional Office addresses are found in § 2.2 of subchapter A of this chapter.
(9) Persons operating under this order must keep records of all activities, including those of designated agents, carried out under this order. The Service will review Agencies' reports and will periodically assess the overall impact of this program to ensure compatibility with the long-term conservation of double-crested cormorants and other public resources. On an annual basis, Agencies must provide the Service Regional Migratory Bird Permit Office with a report detailing activities conducted under the authority of this order, including:
(i) By date and location, a summary of the number of double-crested cormorants killed and/or number of nests in which eggs were oiled;
(ii) A statement of efforts being made to minimize incidental take of nontarget species and a report of the number and species of migratory birds involved in such take, if any;
(iii) A description of the impacts or anticipated impacts to public resources by double-crested cormorants and a statement of the management objectives for the area in question;
(iv) A description of the evidence supporting the hypothesis that double-crested cormorants are causing or will cause these impacts;
(v) A discussion of other limiting factors affecting the resource (
(vi) A discussion of how control efforts are expected to alleviate resource impacts.
(10) Agencies must provide annual reports, as described above, by December 31 for the reporting period September 1 of the previous year to August 31 of the same year. For example, reports for the period September 1, 2003, to August 31, 2004, would be due on or before December 31, 2004.
(11) For actions that are conducted with the intent of reducing or eliminating local double-crested cormorant populations, Agencies must:
(i) Monitor effects of their management activities on cormorants and other migratory birds at sites of control;
(ii) Monitor effects of their management activities on the public resources being protected at control sites; and
(iii) Evaluate effects of the management activities listed in paragraphs (d)(11)(i) and (ii) of this section and adjust management actions accordingly. Upon request, Agencies must provide the Service with documentation of their monitoring and evaluation efforts.
(12) The authority to take double-crested cormorants under this order can be revoked by the Regional Director for violations of or failure to comply with the terms and conditions of the order. Persons whose authority is revoked may apply for a depredation permit under 50 CFR 21.41.
(e)
Yes. This information collection is authorized by OMB control number 1018-XXXX.
Forest Service, USDA.
Notice of Intent to Prepare an Environmental Impact Statement.
The Forest Service (FS) will prepare an Environmental Impact Statement (EIS) to document the analysis and disclose the environmental and human effects of authorizing a gas exploration well and associated road access on the Manti-La Sal National Forest. The proposed wells, designated the Joe's Valley Federal 20-1, and Lowery Water Federal 32-12, were proposed by Fortuna US (proponent). The BLM (Bureau of Land Management) will participate as a cooperating agency.
The BLM is responsible for administration of oil and gas leases under the Mineral Leasing Act of 1920, as amended, and Federal Regulations in 43 CFR part 3100. The BLM Moab Field Office Manager must decide whether or not to approve the Application for Permit to Drill (APD). The Forest Supervisor, Manti-La Sal National Forest must decide whether or not to approve the Surface-Use Plan of Operations and what conditions to require for the protection of non-mineral resources. Forest Service authority is provided under the Mineral Leasing Act of 1920, as amended, Federal Onshore Oil and Gas Leasing Reform Act of 1987, and Federal Regulations in 36 CFR part 228, Subpart E.
Written comments concerning issues and alternatives to be considered and the scope of the analysis described in this notice should be received within 30 days from the date of publication of this notice in the
Send written comments to Forest Supervisor, Ferron/Price Ranger District, Manti-La Sal National Forest, 115 West Canyon Road, PO Box 310, Ferron, Utah 84523, ATTN: Tom Lloyd.
Questions concerning the proposed action and EIS should be addressed to Tom Lloyd or Carter Reed, Manti-La Sal National Forest, phone (435) 384-2372 or (435) 637-2817.
Fortuna US has proposed to conduct gas exploration activities in 2003/2004 and reclamation activities in 2004/2005 on Federal Oil and Gas Lease(s) UTU-78146 and UTU-14623. Exploration activities would consist of reconstruction of about 3 miles of Forest Service Roads (FSR) 50038 and 50059, construction of temporary project access roads (about 0.31 miles), construction of drill pads (4.5 acres total estimated disturbance) and drilling two (2) wells. Analysis of possible production lines to nearby gas pipelines would also be considered.
The proposed Joe's Valley Federal 20-1 is located in NW
The proponent's purpose for this exploration project is to assess the economic recoverability of its lease holdings. The proposed drilling program would provide geologic data necessary to assess oil and gas potential within Federal Oil and Gas Lease(s) UTU-78416 and UTU-14623. If economic quantities of oil and gas were located, further development would likely be proposed for recovery. Oil and gas are needed to meet future energy demands of the state and nation.
The Forest Service's purpose and need is to evaluate the environmental effects of the Surface Use Plan contained within the APD in accordance with the Manti-La Sal Land and Resource Management (Plan Forest) Plan management direction (page III-12). The decision must be consistent with the rights granted by the oil and gas leases, applicable laws, and Forest Plan direction.
The proponent's proposed action is to drill the wells and if possible, produce and market natural gas at a profit consistent with the right granted by Federal Oil and Gas Leases UTU-78416 and UTU-14623.
The proposed action is for the Manti-La Sal Nation Forest to authorize Fortuna US to construct/reconstruct the roads and occupancy National Forest System land in order to drill two exploration holes within Federal Leases UTU-78416 and UTU-14623, consistent with their lease rights, applicable laws and regulation, and Forest Plan direction for management of the National Forest System lands. Authorization would be granted by approval of the Surface Use Plan of Operation. A Forest Service Road-Use Permit would also be needed to authorize commercial use of the Forest Service Roads. Additional mitigation and monitoring may be deemed necessary by the Forest Service to minimize environmental effects.
The Forest Service is seeking information and comments from Federal, State, and local agencies as well as individuals and organizations that may be interested in, or affected by, the proposed action. The agency invites written comments regarding potential issues and alternatives related to the proposed action and the area being analyzed. Information received will be used to prepare the Draft and Final EIS and considered in making agency decisions.
The EIS and Record of Decision (ROD) will tier to the Final EIS and ROD for the Manti-La Sal Nation Forest Land and Resource Management Plan (Forest Plan), 1986, as amended, by the 1994 Record of Decision for Oil and Gas Leasing on Lands Administered by the Manti-La Sal Nation Forest.
Draft preliminary issues include effects to wildlife, visual quality, roadless character, and dispersed recreation use of Upper Joe's Valley, Middle Mountain, Lower Water areas.
Agency representatives and other interested people are invited to visit with Forest Service and BLM officials at any time during the EIS process. Two specific time periods are identified for the receipt of formal comments on the analysis. The two comment periods are, (1) during the scoping process, the next 30 days following publication of this Notice in the
The Draft EIS is estimated to be filed with the Environmental Protection Agency (EPA) and available for public review in June 2003. At that time the EPA will publish an availability in the
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. First, reviewers of draft environmental impact statements 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 contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. 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.
(Mineral Leasing Act of February 25, 1920 (Pub. L. 66-146, 41 Stat. 437, as amended; 30 U.S.C. 181-287)).
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The USDA Forest Service, will prepare an environmental impact statement (EIS) for a fire salvage timber sale and connected actions within the Panther Creek watershed planning area of the North Umpqua Ranger District. These actions include timber salvage sales, the construction of temporary roads, site preparation, tree planting, hazardous fuels (slash) reduction, road decommissioning, road repair, restoration of non-commercial stands, and soil restoration through felling of snags to create down wood. The planning area is located approximately 43 miles east of Roseburg, Oregon. The project is expected to be implemented starting in 2004 through 2006. The agency gives notice of the full environmental analysis and decision-making process that will occur on the proposal so that interested and affected people may become aware of how they can participate in the process and contribute to the final decision.
Comments concerning the scope of the analysis should be received in writing, by April 18, 2003.
Send written comments and suggestions concerning this proposal to Carol Cushing, District Ranger, North Umpqua Ranger District, 18782 North Umpqua Highway, Glide, Oregon, 97443.
Direct questions about the proposed action or EIS to Debbie Anderson, ID Team Leader, North Umpqua Ranger District, 18782 North Umpqua Highway, Glide, Oregon 97443, or (541) 496-3532.
The area being analyzed in the Baked Apple Fire Salvage Project EIS encompasses approximately 13,925 acres of National Forest System land on the North Umpqua Ranger District. The planning area is bounded to the North by the North Umpqua River, to the South by the North Umpqua River/Little River Divide, to the East by Calf Ridge, and to the West by Panther Ridge. The planning area includes all or portions of sections 9, 10, and 14 through 36, T26S, R1E; sections 19 and 30, T26S, R2E; and sections 2 through 5, and 9 through 11, T27S, R1E, Willamette Meridian, Douglas County, Oregon.
The proposed action is based on the need to recover portions of the Panther Creek subwatershed burned by the 2002 Apple Fire. The Apple Fire, which started on August 16, 2002, burned almost 18,000 acres of early, mid, and late seral forests on the North Umpqua Ranger District. Within the perimeter of the Apple Fire, the Panther Creek subwatershed burned with the highest intensity, completely consuming large swaths of forest over a 4,000-acre area, particularly within Limpy Creek. All treatments occur on lands allocated as Matrix and are consistent with the 1990 Umpqua National Forest Land and Resource Management Plan (Forest Plan), as amended. All salvage treatments specifically avoid roadless areas, the wild and scenic river corridor and visually sensitive area, owl cores, cultural sites, and areas identified as unsuitable, unstable, or riparian reserves. The timber salvage proposal is based on the need to recover the economic value of the burned wood in the scorched and severely burned portion of the watershed before it decays, which will contribute wood products to the local economy and jobs to the County and State. Slash treatment is based on the need to reduce activity-generated fuels in order to keep fuel loads within parameters prescribed by the Forest. Reforestation is based on the need to return the burned areas within subwatershed to the productive forest that is was prior to the fire. Haul related roadwork is needed in order to ensure that the road system is safe for haul. Construction and reconstruction of temporary spur roads, reconstruction and/or expansion of landings, construction new landings, and use of existing rock pits is needed to facilitate removal and hauling of wood. Snag felling for large wood is needed to
The proposed action timber sale related activities include: Salvage harvest on approximately 1,226 acres (retaining between 6 and 12 trees per acre for shade and large wood recruitment); reforestation and seedling protection (with species native to the site) on about 1,095 acres; slash treatment on about 1,171 acres (including grapple piling, underburning, hand pile burning, and yarding of tops attached); road work (culvert replacement and road stabilization of two sites) along Forest Service Road 4714 and construction and reconstruction (about 1.1 miles) of temporary spur roads; construct and reconstruct up to 39 landings; and use 2 existing rock pits and establish 6 stockpile sites along existing roads to store rock and excavated material. Connected actions that would be accomplished include: Felling of snags on salvage units; site preparation and reforestation; and road reconstruction and decommissioning work.
The acreage proposed for harvest is estimated to yield up to 50 million board feet of timber, which may result in 5 to 6 separate timber sales. This volume and acreage estimates are likely to decrease as a result of finalizing riparian reserves and unsuitable or unstable soils boundaries, and as the smaller diameter wood begins to decay. The areas prescribed for harvest will require a combination of helicopter, skyline and ground-based harvesting equipment. Alternatives may reflect different harvest equipment combinations. Alternatives to be considered include the No Action Alternative, the proposed action, and alternatives to the proposed action.
Preliminary issues, as identified by the Forest and by scoping that has been conducted to date, include the following related to the proposed action: The economic efficiency and viability; the potential affect on the late successional habitat and species within the Panther Creek Watershed; and the potential affect on water quality and aquatic conditions for aquatic and riparian dependent species.
The scoping effort is intended to identify issues, which may lead to the development of alternatives to the proposed action. One of the purposes of this notice of intent is to solicit input from the public as part of the overall scoping effort. In addition to this notice, the public will be notified of the EIS through the Umpqua National Forest's April 2003 quarterly publication “Schedule of Proposed Actions”.
Comments received in response to this notice and through scoping, including names and addresses of those who comment, will be considered part of the public record on this proposed action and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR parts 215 or 217. Additionally, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentiality should be aware that, under the FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality, and where the request is denied, the agency will return the submission and notify the requester that the comments may be resubmitted with or without name and address within a specified number of days.
Public comments are appreciated throughout the analysis process. The draft EIS is expected to be filed with the Environmental Protection Agency (EPA) and be available for public review by July 2003. The comment period on the draft EIS will be 45 days from the date the EPA publishes the notice of availability in the
The Forest Service believes it is important to give reviewers notice of this early stage of public participation and of several court rulings related to public participation in the environmental review process. First, reviewers of a 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 contentions.
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 statement. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the statement. (Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act of 40 CFR 1503.3 in addressing these points.)
In the final EIS, the Forest Service is required to respond to substantive comments and responses received during the comment period that pertain to the environmental consequences discussed in the draft EIS and applicable laws, regulations, and policies considered in making a decision regarding the proposal. The Responsible Official is Carol Cushing, District Ranger of the North Umpqua Ranger District, Umpqua National Forest. The Responsible Official will document the decision and rationale for the decision in a Record of Decision. The decision will be subject to review under Forest Service Appeal Regulations (36 CFR part 215).
Forest Service, USDA.
Notice of meeting.
The Intergovernmental Advisory Committee (IAC) will meet on April 1, 2003, at the Lloyd Center Double Tree Hotel, located at 1000 NE., Multnomah Street in Portland, Oregon, subject to the advance approval of the committee's Federal Advisory Committee Act charter by the Department of Agriculture. The meeting is scheduled to begin at 10 a.m. and
Questions regarding this meeting may be directed to Kath Collier, Management Analyst, Regional Ecosystem Office, 333 SW., First Avenue, P.O. Box 3623, Portland, OR 97208 (Phone: 503-808-2165).
Forest Service, USDA.
Notice of meeting.
The Flathead County Resource Advisory Committee will meet in Kalispell, Montana April 7th and April 14th. The purpose of the meetings is to discuss potential Title II projects for fiscal year 2004 funded by the Secure Rural Schools and Community Self Determination Act.
The meetings will be held April 7th from 4 p.m. to 6:30 p.m. and April 14th from 4 p.m. to 6:30 p.m.
The meeting will be held at the Flathead National Forest Supervisors Office, Conference Rooms A & B, 1935 Third Ave East, Kalispell, Montana, 59901.
Kaaren Arnoux, Flathead National Forest, Administrative Assistant, (406) 758-5251.
The meeting is open to the public. Time will be available for public input on potential projects the committee may be discussing.
Rural Utilities Service, USDA.
Notice of availability of a record of decision.
Notice is hereby given that the Rural Utilities Service (RUS) has issued its Record of Decision (ROD) for the Nucla-Telluride 115 kV Transmission Line Project. The decision of RUS is that the National Environmental Policy Act review process has been satisfied with respect to a potential request for financing assistance from Tri-State Generation and Transmission Association, Inc. (Tri-State), of Westminster, Colorado.
Dennis E. Rankin, Environmental Protection Specialist, RUS, Engineering and Environmental Staff, Stop 1571, 1400 Independence Avenue, SW., Washington, DC 20250-1571 or e-mail:
Tri-State has proposed a 115 kV transmission line in order to improve the reliability of power to Telluride and other surrounding communities, as well as increase the capacity of the regional transmission grid to transfer bulk power through southwestern Colorado. The 115 kV transmission line would replace and potentially relocate an existing 69 kV line that is owned and operated by San Miguel Power Association. The U. S. Forest Service (FS) served as the lead Federal agency in the environmental review process. RUS and the Bureau of Land Management (BLM) are cooperating agencies in the process.
The RUS preferred alternative is the construction of an overhead 115 kV transmission line using the Nucla—Norwood Central Alternative and the Norwood—Sunshine Alternative corridors. Subalternative corridors C and D may also be used in the final line route. Associated facilities include the expansion of the Norwood Substation at its current location; the modification of the Nucla, Species Mesa, Wilson Mesa and Sunshine Substations; and the dismantling of the Oakhill Substation. Modifications to sections of San Miguel Power Association's distribution system would also be required. The FS and BLM have previously issued their Records-of-Decision regarding the project.
Federal, State, and local agencies and the public who had previously requested copies of the Record-of-Decision will receive a copy of the ROD by direct mail. RUS’ ROD is also available online at
Import Administration, International Trade Administration, Department of Commerce.
Preliminary determination of sales at less than fair value and postponement of final determination.
March 17, 2003.
We preliminarily determine that barium carbonate from the People's Republic of China (the PRC) is being sold, or is likely to be sold, in the United States at less than fair value (LTFV), as provided in section 733 of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are shown below in the “Suspension of Liquidation” section of this notice.
David Layton or Tisha Loeper-Viti at (202) 482-0371 or (202) 482-7425, respectively; AD/CVD Enforcement, Office 5, Group II, Import Administration, Room 1870, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
The petitioner in this investigation is Chemical Products Corporation. This investigation was initiated on October 21, 2002.
On November 14, 2002, the U.S. International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that an industry in the United States is materially injured by reason of barium carbonate imports from the PRC.
On November 18, 2002, the Department issued its antidumping questionnaire
On January 31, 2003, we invited interested parties to provide comments on the surrogate country selection and publicly available information for valuing the factors of production. We received comments from Qingdao Red Star on February 10 and 13, 2003. We received comments from the petitioner on February 10, 13 and 19, 2003.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2) (2002), require that requests by respondents for postponement of a final determination be accompanied by a request for an extension of the provisional measures from a four-month period to not more than six months.
On February 13, 2003, Qingdao Red Star requested that, in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination until not more than 135 days after the publication of the preliminary determination. The respondent included a request to extend the provisional measures to not more than six months after the publication of the preliminary determination. In accordance with section 351.210(e) of the Department's regulations, because we have made an affirmative preliminary determination, the requesting party accounts for a significant proportion of exports of the subject merchandise, and no compelling reasons exist to deny the request, we have postponed the final determination until not later than 135 days after the date of the publication of the preliminary determination, and are extending the provisional measures accordingly.
The POI is January 1, 2002, through June 30, 2002. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition (
The merchandise covered by this investigation is barium carbonate, regardless of form or grade. The product under investigation is currently classifiable under subheading 2836.60.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this proceeding is dispositive.
The Department has treated the PRC as a non-market economy (NME) country in all its past antidumping investigations.
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs the Department to base normal value (NV) on the NME producer's factors of production, valued in a market economy at a comparable level of development that is a significant producer of comparable merchandise. The sources of individual factor prices are discussed under the “Normal Value” section, below.
In an NME proceeding, the Department presumes that all companies within the country are subject to governmental control and should be assigned a single antidumping duty rate unless the respondent demonstrates the absence of both
The Department's separate-rates test is not concerned, in general, with macroeconomic/border-type controls (
To establish whether a firm is sufficiently independent from government control to be entitled to a separate rate, the Department analyzes each exporting entity under a test arising out of the
The Department considers the following
Qingdao Red Star has placed on the record a number of documents to demonstrate the absence of
The Department typically considers four factors in evaluating whether each respondent is subject to
With regard to the issue of
Although the Department provided BOFT and all PRC exporters of the subject merchandise, including Qingdao Red Star, with the opportunity to respond to its questionnaire, only Qingdao Red Star submitted responses thereto. Our review of U.S. import statistics reveals that there are other PRC companies, in addition to Qingdao Red Star, that exported barium carbonate to the United States during the POI. Because these exporters did not submit a response to the Department's questionnaire, and thus did not demonstrate their entitlement to a separate rate, we have implemented the Department's rebuttable presumption that these exporters constitute a single enterprise under common control by the PRC government, and we are applying adverse facts available to determine the single antidumping duty rate, the PRC-wide rate, applicable to all other PRC exporters comprising this single enterprise.
Section 776(a)(2) of the Act provides that, if an interested party withholds information that has been requested by the Department, fails to provide such information in a timely manner or in the form or manner requested, significantly impedes a proceeding under the antidumping statute, or provides information which cannot be verified, the Department shall use, subject to sections 782(d) and (e) of the Act, facts otherwise available in reaching the applicable determination. As explained above, with the exception of the exporter, Qingdao Red Star, and its manufacturer, Guizhou Red Star Development Co., Ltd. (Guizhou Red Star), no other Chinese manufacturer or exporter of the subject merchandise responded to the Department's request for information. Therefore, the curative provisions of section 782 of the Act are not applicable because there is no information on the record of this investigation on which the Department can determine separate rates for these manufacturers and exporters. Accordingly, the Department is applying the PRC-wide rate to all PRC exporters of the subject merchandise except for Qingdao Red Star. The Department cannot determine a separate rate for these companies because this information is within the sole possession of the parties at issue and cannot be obtained otherwise. No other Chinese manufacturer or exporter of the subject merchandise responded to the Department's request for information. For this reason, we are unable to
In applying facts otherwise available, section 776(b) of the Act provides that, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of that party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”
An adverse inference may include reliance on information derived from the petition, the final determination in the investigation, any previous review, or any other information placed on the record.
For our preliminary determination, as adverse facts available, we have used as the PRC-wide rate, the highest recalculated dumping margin from the petition with certain adjustments made to the values (see below). In the petition, the petitioner based export price (EP) on actual price quotes for barium carbonate produced in the PRC and offered for sale by several different Chinese trading companies.
With regard to the EP calculation in the petition, the petitioner also provided AUVs by port of entry which the petitioner obtained from the ITC's Interactive Tariff and Trade DataWeb (DataWeb).
We compared the petitioner's factor consumption rates to the respondent's factor consumption rates, which is the only other factor consumption data on the record of this investigation. As discussed in the Corroboration Memo, we were unable to corroborate the petitioner's factor consumption data with the data provided by the respondent. Nevertheless, we consider the petitioner's factor consumption rates for materials, labor and energy to have probative value on the basis that these consumption factors are derived from the petitioner's own experience in producing the subject merchandise.
The surrogate values for the factors of production in the petition were based on publicly available information for comparable inputs in India, and in the case of barite ore, on a price quote from an Australian producer. With the exception of the values for packing material, which differed only slightly, and water, which was the same, we updated Indian surrogate values used in the petition with values based on more current values from publicly available sources and revised the NV calculation accordingly.
Because all elements of NV have been corroborated, we consider this revised NV to be reasonable and of probative value. As a result of this recalculation, the PRC-wide rate is, for the preliminary determination, 75.10 percent.
To determine whether Qingdao Red Star's sales of barium carbonate to customers in the United States were made at LTFV, we compared EP to NV, calculated using our NME methodology, as described below in the “Export Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(1)(A)(i) of the Act, we calculated weighted-average EPs.
In accordance with section 772(a) of the Act, export price is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c). In accordance with section 772(a) of the Act, we used EP for Qingdao Red Star because the subject merchandise was sold directly to unaffiliated customers in the United States prior to importation and because constructed export price was not otherwise indicated.
We calculated EP for Qingdao Red Star based on packed F.O.B. and C.I.F. prices to unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included domestic inland freight, international freight, and marine insurance, where applicable. Because transportation for all sales was provided by an NME company, we based movement expenses associated with these sales on surrogate values.
Section 773(c)(4) of the Act requires that the Department value the NME producer's factors of production, to the extent possible, on the prices or costs of factors of production in one or more market economy countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. The Department's Office of Policy initially identified five countries that are at a level of economic development comparable to the PRC in terms of per capita GNP and the national distribution of labor. Those countries are India, Pakistan, Indonesia, Sri Lanka and the Philippines (
In its questionnaire response, Qingdao Red Star reported factors of production for the manufacture of the subject merchandise during the POI. The factors of production include: (1) Hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs.
In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. For those values not contemporaneous with the POI, we adjusted the values to account for inflation using the applicable price indices published in the International Monetary Fund's
We valued certain material inputs, packing materials, and byproducts (including coal, limestone, plastic bags, and sulfur) using publicly available 2002 Indian import statistics from the appropriate Indian Trade Classification categories, based on the Harmonized Commodity Description and Coding System (HS), published by the
For energy, we valued coal using
We valued labor using the latest regression-based wage rate for China found on Import Administration's Web page
To value foreign inland truck freight costs, we relied upon per-kilometer price quotes used by the Department in the
To value factory overhead, selling, general and administrative expenses (SG&A) and profit, we used the audited financial statements for the year ended March 31, 2000, from an Indian producer of barium carbonate, Victory Chemicals Pvt., Ltd. (Victory).
For a complete analysis of surrogate values used in the preliminary determination,
In accordance with section 782(i) of the Act, we intend to verify all information relied upon in making our final determination.
We are directing the U.S. Customs Service (Customs) to suspend liquidation of all entries of barium carbonate from the PRC that are entered, or withdrawn from warehouse, for consumption on or after the date on which this notice is published in the
We determine that the following percentage weighted-average margins exist for the POI:
The PRC-wide rate applies to all entries of the subject merchandise except for entries from Qingdao Red Star.
In accordance with 19 CFR 351.224(b), the Department will disclose to interested parties within five days of the date of publication of this notice the calculations performed in the preliminary determination.
In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the final determination in this proceeding is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of barium carbonate from the PRC are materially injuring, or threaten material injury to, the U.S. industry.
In accordance with 19 CFR 351.301(c)(3)(i), interested parties may submit publicly available information to value the factors of production for purposes of the final determination within 40 days after the date of publication of this preliminary determination. Case briefs or other written comments must be submitted to the Assistant Secretary for Import Administration no later than one week after issuance of the verification reports. Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days after the deadline for the submission of case briefs. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Further, we request that parties submitting briefs and rebuttal briefs provide the Department with a copy of the public version of such briefs on diskette.
In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, we will tentatively hold the hearing two days after the deadline for submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone the date, time, and location of the hearing 48 hours before the scheduled date.
Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. At the hearing, oral presentations will be limited to issues raised in the briefs.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results and rescission in part of antidumping duty administrative review of barium chloride from the People's Republic of China.
On November 8, 2002, the Department of Commerce (the Department) published in the
March 17, 2003.
John Conniff or Drew Jackson, AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1009 or (202) 482-4406, respectively.
On November 8, 2002, the Department published in the
The Department is conducting this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The imports covered by this review are shipments of barium chloride, a chemical compound having the formulas BaCl
The POR is October 1, 2000, through September 30, 2001.
All issues raised in the case and rebuttal briefs submitted by parties to this administrative review are addressed in the “Issues Decision Memorandum” (
We are rescinding this review with respect to Zhangjiaba because it reported that it made no shipments of subject merchandise to the United States during the POR and our review of Customs data supports Zhangjiaba's claim.
Consistent with the approach taken in petroleum wax candles from the PRC, we have inflated the surrogate value for electricity using an industry-specific wholesale price index.
We determine that the following weighted-average percentage margin exists for the period October 1, 2000, through September 30, 2001:
The following cash deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of barium chloride 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 rate for all Chinese exporters will be the rate shown above; and (2) for non-PRC exporters of subject merchandise from the PRC, the cash deposit rate will be the rate applicable to their PRC suppliers.
These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
Customs shall assess antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to Customs within 15 days of publication of these final results of review. We will direct Customs to assess the resulting assessment rate against the entered customs values for all entries of subject merchandise during the review period.
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 the only reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under an APO in
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Comment 1: Whether the Department Should Redetermine the PRC-Wide Rate
Comment 2: Whether the Department Should Grant Zhangjiaba a Separate Rate
Comment 3: Whether the Department Inappropriately Resorted to Adverse Facts Available With Respect to Zhangjiaba
Import Administration, International Trade Administration, Department of Commerce.
March 17, 2003.
Carol Henninger or Constance Handley at (202) 482-3003 or (202) 482-0631, Office of AD/CVD Enforcement 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department of Commerce (the Department) to complete the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order/finding for which a review is requested and the 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 these time periods, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary results to a maximum of 365 days after the last day of the anniversary month of an order/finding for which a review is requested, and for the final results to 180 days (or 300 days if the Department does not extend the time limit for the preliminary results) from the date of publication of the preliminary results.
On August 27, 2002, the Department of Commerce (the Department) published a notice of initiation of administrative review of the antidumping duty order on fresh Atlantic salmon from Chile, covering the period July 1, 2001, through June 30, 2002 (67 FR 55000). The preliminary results are currently due no later than April 2, 2003.
We determine that it is not practicable to complete the preliminary results of this review within the original time limit for the reasons stated in our memorandum from Gary Taverman, Director, Office V, to Holly Kuga, Acting Deputy Assistant Secretary, which is on file in the Central Records Unit, Room B-099 of the main Commerce building. Therefore, the Department is extending the time limit for completion of the preliminary results until no later than May 1, 2003. We intend to issue the final results no later than 120 days after publication of the preliminary results notice.
This extension is in accordance with section 751(a)(3)(A) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit for preliminary results of antidumping duty new shipper review.
March 17, 2003.
Brian Smith or Davina Hashmi, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-0984, respectively.
The Department received timely requests from Xiamen Zhongjia Imp. and Exp. Co., Ltd. (“Zhongjia”) and Zhangzhou Longhai Minhui Industry and Trade Co., Ltd. (“Minhui”) in accordance with 19 CFR 351.214(c), for a new shipper review of the antidumping duty order on certain preserved mushrooms from the People's Republic of China (“PRC”), which has a February annual anniversary month and an August semiannual anniversary month. On September 30, 2002, the Department found that the requests for review met all of the regulatory requirements set forth in 19 CFR 351.214(b) and initiated this antidumping duty new shipper review covering the period February 1, 2002, through July 31, 2002 (
Pursuant to section 751(a)(2)(B) of the Act, the Department may extend the deadline for completion of the preliminary results of a new shipper review if it determines that the case is extraordinarily complicated. The Department has determined that this case is extraordinarily complicated, and
Accordingly, the Department is extending the time limit for completion of the preliminary results by 120 days, to July 27, 2003,
Import Administration, International Trade Administration, Department of Commerce.
On September 10, 2002, the Department of Commerce (the Department) published the preliminary results of the antidumping duty administrative review of seamless pipe from Romania. This review covers one manufacturer/exporter of the subject merchandise. The period of review is February 4, 2000 through July 31, 2001. Based on our analysis of comments received, these final results differ from the preliminary results. The final results are listed below in the “Final Results of Review” section.
March 17, 2003.
Magd Zalok or Martin Claessens, Office 5, Group II, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4162 and (202) 482-5451, respectively.
On May 10, 2002, the Department received a letter from the Government of Romania (GOR) requesting a review of the status of Romania as a non-market economy (NME) country, either in a free-standing investigation or in the context of this administrative review. On September 10, 2002, in response to the GOR's request, the Department initiated an inquiry into Romania's NME status in the context of the instant administrative review.
At the same time, the Department of Commerce (the Department) published the preliminary results of the antidumping duty administrative review of seamless pipe from Romania.
We invited parties to comment on our preliminary results of review. On October 10, 2002, Silcotub and United States Steel Corporation (U.S. Steel), a domestic producer of subject merchandise and interested party in this review, filed case briefs. Both parties filed rebuttal briefs on October 22, 2002.
The products covered by the order are seamless carbon and alloy (other than stainless) steel standard, line, and pressure pipes and redraw hollows produced, or equivalent, to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and the API 5L specifications and meeting the physical parameters described below, regardless of application. The scope of the order also includes all products used in standard, line, or pressure pipe applications and meeting the physical parameters described below, regardless of specification. Specifically included within the scope of the order are seamless pipes and redraw hollows, less than or equal to 4.5 inches (114.3 mm) in outside diameter, regardless of wall-thickness, manufacturing process (hot finished or cold-drawn), end finish (plain end, beveled end, upset end, threaded, or threaded and coupled), or surface finish. The seamless pipes subject to the order is currently classifiable under the subheadings 7304.10.10.20, 7304.10.50.20, 7304.31.30.00, 7304.31.60.50, 7304.39.00.16, 7304.39.00.20, 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.51.50.05, 7304.51.50.60, 7304.59.60.00, 7304.59.80.10, 7304.59.80.15, 7304.59.80.20, and 7304.59.80.25 of the Harmonized Tariff Schedule of the United States (HTSUS).
Specifications, Characteristics, and Uses: Seamless pressure pipes are intended for the conveyance of water, steam, petrochemicals, chemicals, oil products, natural gas and other liquids and gasses in industrial piping systems. They may carry these substances at elevated pressures and temperatures and may be subject to the application of external heat. Seamless carbon steel pressure pipes meeting the ASTM A-106 standard may be used in temperatures of up to 1000 degrees Fahrenheit, at various ASME code stress levels. Alloy pipes made to ASTM A-335 standard must be used if temperatures and stress levels exceed those allowed for ASTM A-106. Seamless pressure pipes sold in the United States are commonly produced to the ASTM A-106 standard. Seamless standard pipes are most commonly produced to the ASTM A-53 specification and generally are not intended for high temperature service. They are intended for the low temperature and pressure conveyance of water, steam, natural gas, air and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipes (depending on type and code) may carry liquids at elevated temperatures but must not exceed relevant ASME code requirements. If exceptionally low temperature uses or conditions are anticipated, standard pipes may be manufactured to ASTM A-333 or ASTM A-334 specifications.
Seamless line pipes are intended for the conveyance of oil and natural gas or other fluids in pipe lines. Seamless line pipes are produced to the API 5L specification.
Seamless water well pipes (ASTM A-589) and seamless galvanized pipes for fire protection uses (ASTM A-795) are used for the conveyance of water.
Seamless pipes are commonly produced and certified to meet ASTM A-106, ASTM A-53, API 5L-B, and API 5L-X42 specifications. To avoid maintaining separate production runs and separate inventories, manufacturers typically triple or quadruple certify the pipes by meeting the metallurgical requirements and performing the required tests pursuant to the respective specifications. Since distributors sell the vast majority of this product, they can thereby maintain a single inventory to service all customers.
The primary application of ASTM A-106 pressure pipes and triple or quadruple certified pipes is in pressure piping systems by refineries, petrochemical plants, and chemical plants. Other applications are in power generation plants (electrical-fossil fuel or nuclear), and in some oil field uses (on shore and off shore) such as for separator lines, gathering lines and metering runs. A minor application of this product is for use as oil and gas distribution lines for commercial applications.
These applications constitute the majority of the market for the subject seamless pipes. However, ASTM A-106 pipes may be used in some boiler applications.
Redraw hollows are any unfinished pipes or “hollow profiles” of carbon or alloy steel transformed by hot rolling or cold drawing/hydrostatic testing or other methods to enable the material to be sold under ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications. The scope of the order includes all seamless pipe meeting the physical parameters described above and produced to one of the specifications listed above, regardless of application, with the exception of the specific exclusions discussed below, and whether or not also certified to a non-covered specification. Standard, line, and pressure applications and the above-listed specifications are defining characteristics of the scope of the order. Therefore, seamless pipes meeting the physical description above, but not produced to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications shall be covered if used in a standard, line, or pressure application, with the exception of the specific exclusions discussed below. For example, there are certain other ASTM specifications of pipe which, because of overlapping characteristics, could potentially be used in ASTM A-106 applications. These specifications generally include ASTM A-161, ASTM A-192, ASTM A-210, ASTM A-252, ASTM A-501, ASTM A-523, ASTM A-524, and ASTM A-618. When such pipes are used in a standard, line, or pressure pipe application, with the exception of the specific exclusions discussed below, such products are covered by the scope of the order. Specifically excluded from the scope of the order is boiler tubing and mechanical tubing, if such products are not produced to ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications and are not used in standard, line, or pressure pipe applications. In addition, finished and unfinished Oil Country Tubular Goods (OCTG) are excluded from the scope of the order, if covered by the scope of another antidumping duty order from the same country. If not covered by such an OCTG order, finished and unfinished OCTG are included in this scope when used in standard, line or pressure applications.
With regard to the excluded products listed above, the Department will not instruct Customs to require end-use certification until such time as U.S. Steel or other interested parties provide to the Department a reasonable basis to believe or suspect that the products are being used in a covered application. If such information is provided, we will require end-use certification only for the product(s) (or specification(s)) for which evidence is provided that such products are being used in covered applications as described above. For example, if, based on evidence provided by U.S. Steel, the Department finds a reasonable basis to believe or suspect that seamless pipe produced to the A-161 specification is being used in a standard, line or pressure application, we will require end-use certifications for imports of that specification. Normally we will require only the importer of record to certify to the end use of the imported merchandise. If it later proves necessary for adequate implementation, we may also require producers who export such products to the United States to provide such certification on invoices accompanying shipments to the United States.
Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the merchandise subject to this scope is dispositive.
The Department has treated Romania as an NME country in all past antidumping duty investigations and administrative reviews.
As indicated above, on September 10, 2002, in response to the GOR's request, the Department initiated an inquiry into Romania's NME status in the context of the instant administrative review. As part of the inquiry, the Department invited the public to comment on the GOR's request. The Department received and granted requests from the public for time extensions to submit comments. All comments were received by November 8, 2002, followed by rebuttal comments by December 30, 2002.
In determining whether a country will be accorded market-economy status for purposes of antidumping and countervailing duty proceedings, the Department considers, consistent with the factors described in section 771(18)(B) of the Act, the extent to which resources are allocated by market or government, taking into account currency and labor markets, pricing, and production and investment decisions. After a thorough examination of all relevant information available to the Department, we have reclassified Romania as a market economy for purposes of antidumping and countervailing duty proceedings, pursuant to section 771(18)(A) of the Act, effective January 1, 2003.
Silcotub has requested a separate, company-specific antidumping duty rate in this review. In the preliminary results, we found that Silcotub had met the criteria for the application of separate antidumping duty rates.
All issues raised in the case and rebuttal briefs by parties to this review are addressed in the “Issues and Decision Memorandum” (Decision Memorandum) from Holly A. Kuga, Acting Deputy Assistant Secretary, Import Administration, to Joseph Spetrini, Acting Assistant Secretary for Import Administration, dated March 10, 2003, which is hereby adopted by this notice.
A list of the issues which parties have raised and to which we have responded in the Decision Memorandum is attached to this notice as an Appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099 of the main Commerce building.
In addition, a complete version of the Decision Memorandum can be accessed directly on the Internet at
Based on our analysis of comments received, we have made certain changes in the margin calculations. We have also revised certain financial ratios, and the factor value for natural gas used in the calculation of the normal value. These changes are discussed in the relevant section of the Decision Memorandum.
As a result of our review, we determine that the following weighted-average percentage margin exists for the period February 4, 2000 through July 31, 2001:
The Department shall 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 importer-specific assessment rates by dividing the dumping margin found on the subject merchandise examined by the entered value of such merchandise. Where the importer-specific assessment rate is above
Furthermore, the following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, as provided by section 751(a) of the Act: (1) For Silcotub, because the margin is
This notice also serves as the 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 in the subsequent assessment of double antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before May 16, 2003.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW,
Requests for additional information or copies of the information collection instrument and instructions should be directed to Dianne Stephan, phone 978/281-9397; Highly Migratory Species Division, NMFS, 1 Blackburn Drive, Gloucester, MA 01930.
The purpose of BFT catch reporting is to provide real-time catch information for monitoring the recreational BFT fishery. Under the Atlantic Tunas Convention Act of 1975 (ATCA, 16 U.S.C. 971), the United States is required to abide by recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), including a specified BFT quota. This program supports BFT management and scientific research authorized under ATCA and the Magnuson Stevens Fishery Conservation and Management Act (MSFMCA,16 U.S.C. 1801
Atlantic swordfish and billfish are also managed internationally by ICCAT and nationally under the ATCA and the MSFMCA. This collection will provide information needed to monitor the recreational limit established by ICCAT for Atlantic blue and white marlin, and the recreational catch of swordfish, which is applied to the ICCAT established U.S. quota. This collection will also provide information on recreational landings of West Atlantic sailfish which is unavailable from established monitoring programs. Collection of sailfish information is authorized under MSFCMA for purposes of stock management.
Once a recreational fisherman lands a bluefin tuna, he is required to report his catch via one of three methods. If the fish is landed in the states of North Carolina (NC) or Maryland (MD), the fisherman must obtain a harvest tag from the state fisheries agency by submitting a landing card at a state BFT reporting station. Under this tag method participating States (MD and NC) also submit weekly written reports and one annual report summarizing results and data for the prior time period.
In all other Atlantic and Gulf coast states, fishermen report via either a toll-free telephone call or an Internet Web site. A follow-up call to the angler is made by NOAA Fisheries personnel when the landed fish is a trophy BFT (greater than or equal to 73” curved fork length).
When a fisherman lands an Atlantic marlin, West Atlantic sailfish and/or North Atlantic swordfish, they must report their catch by calling a toll-free telephone number. Agency personnel then place a follow-up call to the angler to verify the initially-reported information.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; 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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration, U.S. Department of Commerce, and the U.S. Environmental Protection Agency.
Notice of availability of Proposed Findings Document, Environmental Assessment, and Finding of No Significant Impact on conditional approval of coastal nonpoint pollution control program for Minnesota.
Notice is hereby given of the availability of the Proposed Findings Document, Environmental Assessment (EA), and Finding of No Significant Impact for Minnesota. Coastal States and Territories were required to submit their coastal nonpoint programs to the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) for approval. The Findings Document was prepared by NOAA and EPA to provide the rationale for the agencies' decision to approve each State and Territory coastal nonpoint pollution control program. Section 6217 of the Coastal Zone Act Reauthorization Amendments (CZARA), 16 U.S.C. section 1455b, requires States and Territories with coastal zone management programs that have received approval under section 306 of the Coastal Zone Management Act to develop and implement coastal nonpoint pollution control programs. The EA was prepared by NOAA, pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. 4321
NOAA and EPA have proposed to approve, with conditions, the coastal nonpoint pollution control program submitted by Minnesota. The
Copies of the Proposed Findings Document, EA, and Finding of No Significant Impact may be found on the NOAA Web site at
Individuals or organizations wishing to submit comments on the proposed Findings Document or EA should do so by April 16, 2003.
Comments should be made to: John King, Acting Chief, Coastal Programs Division (N/ORM3), Office of Ocean and Coastal Resource Management, NOS, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, phone (301) 713-3155, x188, e-mail
Helen Farr, Coastal Programs Division (N/ORM3), Office of Ocean and Coastal Resource Management, NOS, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, phone (301) 713-3155, x150, e-mail
National Marine Fisheries Service (NOAA Fisheries), National Oceanic and Atmospheric Administration (NOAA), Commerce.U.S. Fish and Wildlife Service (FWS), Department of the Interior.
Notice of Intent to Prepare an Environmental Impact Statement.
Notice is hereby given pursuant to the National Environmental Policy Act, as amended (NEPA), that NOAA Fisheries and FWS (known hereafter as the Services) intend to gather information necessary to prepare a Draft Environmental Impact Statement (DEIS) related to anticipated applications from the State of Washington (State) for take authorization or a take limit under the Endangered Species Act of 1973, as amended (ESA). Washington State has entered into discussions with the Services in anticipation of submitting an application for take authorization pursuant to the ESA (see Background Section for specific sections) for the Washington State Forest Practices Rules, regulating forest management activities on non-Federal forest lands in the state of Washington.. Both Services have listed threatened and endangered species in the State that are likely to be affected by this action. The species are identified below in
The Services are providing this notice: (1) to advise other agencies and the public of their intent to prepare a DEIS on the State application(s); and (2) to obtain suggestions and information on the scope of issues to include in the DEIS.
Written scoping comments for the DEIS from all interested parties must be received no later than 5 p.m. Pacific time on April 16, 2003. Interested parties may contact the Services for more information at the addresses and phone numbers listed below. Four public scoping workshops will be held in 2003. Each meeting will begin with a one-hour open house to accommodate informal discussion and questions; the presentation portion of the meeting will begin at 6 p.m.
1. March 18, 2003, 5 - 8 p.m., Tacoma, WA.
2. March 20, 2003, 5 - 8 p.m., Port Angeles, WA.
3. March 25, 2003, 5 - 8 p.m., Spokane, WA.
4. March 26, 2003, 5 - 8 p.m., Ellensburg, WA.
Written comments and requests for information should be sent to Craig Hansen, U.S. Fish and Wildlife Service, 510 Desmond Drive, S.E., Suite 102, Lacey, WA 98503-1273, telephone (360)753-6046, facsimile (360)753-9518; or Steve Keller, NOAA Fisheries, 510 Desmond Drive, S.E., Suite 103, Lacey, WA 98503-1273, telephone (360)534-9309, facsimile (360)753 9517. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above addresses.
The meeting locations are:
1. Tacoma, Tacoma Sheraton Hotel, 1328 Broadway Plaza, Tacoma, WA.
2. Port Angeles, Red Lion Hotel, 221 North Lincoln, Port Angeles, WA.
3. Spokane, Red Lion Hotel at the Park, 303 W. North River Drive, Spokane, WA.
4. Ellensburg, Grupe Center at Central Washington University, 400 East 8th Avenue, Ellensburg, WA.
Steve Keller, (360) 534-9309.
NMFS listed species potentially addressed in this action include Ozette Lake sockeye salmon (
Refer to the following website for NMFS listing status and protective regulations: http://www.nwr.noaa.gov/1salmon/salmesa/index/htm
FWS listed species potentially addressed in this action include bull trout (Salvelinus confluentus) and any or all unlisted Washington native fish and six stream breeding amphibians.
NEPA requires Federal agencies to conduct an environmental analysis of their proposed actions to determine if the actions may affect the human environment. The Services expect to take action on ESA section 10(a)(1)(B) and/or 4(d)Limit submittals expected from the State. Therefore the Services are seeking public input on the scope of the required NEPA analysis, including the range of reasonable alternatives and associated impacts of any alternatives.
Section 9 of the ESA and implementing regulations prohibit the “taking” of a species listed as endangered or threatened. The term take is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). Harm is defined by the FWS to include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering (50CFR17.3). NOAA Fisheries' definition of harm includes significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, spawning, migrating, rearing, and sheltering (64 FR 60727, November 8, 1999).
The Services may promulgate rules under section 4(d) of the ESA establishing specific take prohibitions for threatened species that the Services determine to be consistent with the conservation needs of threatened species. Section 10(a)(1)(B) of the ESA provides a mechanism by which both Services may permit take through the issuance of an Incidental Take Permit (ITP). An ITP may be issued for take that could occur incidental to otherwise lawful activities, provided all permit issuance criteria are met, including the requirement that permit issuance would not appreciably reduce the likelihood of the survival and recovery of the species in the wild. The applicant for an ITP must prepare and submit to the Services for approval, a Habitat Conservation Plan (HCP) containing strategies for minimizing and mitigating the impacts of take associated with the proposed activities to the maximum extent practicable. The applicant must also ensure adequate funding will be provided for the HCP. An HCP and associated ITP could cover the threatened bull trout and salmon, plus any endangered and unlisted species that might be affected by the Washington State Forest Practices Rules. In addition, the “No Surprises” rule assures that the Services will not require the commitment of any additional land, water or financial compensation for HCPs that are being properly implemented throughout the term of the HCP and ITP. It is important to note that section 10 is the only ESA mechanism by which take authorization can be granted to non-Federal landowners for take of endangered species. On July 10, 2000, NOAA Fisheries promulgated and published an ESA section 4(d) rule for threatened salmon and steelhead(65 FR 42422). In addition to establishing take prohibitions, the rule provides that certain specified activities or conservation plans may qualify for a limit from the rule's take prohibitions provided that such activities or programs qualify for one of 13 categories known as “limits”. Limit 13 of this rule applies to forest management in Washington and specifically relates to non-Federal forest management activities that are at least as protective as the elements of the Forests and Fish Report. The Forests and Fish Report is a document that makes recommendations for improving forest management and timber harvest for the benefit of salmon and aquatic and riparian species. The report was prepared collaboratively by a group of stakeholders from private industry, public interest groups, State and Federal Government agencies, and Tribes. NOAA Fisheries has not yet determined whether the State's Forest Practices Rules as revised by the Forests and Fish report comply with this rule.
FWS has not issued a comparable 4(d) rule, but is considering whether to exempt the take of bull trout that may occur through implementation of the Washington State Forest Practices Rules by adopting a 4(d) rule. A FWS 4(d) rule could be structured to exempt take that might occur as a result of implementing the State regulatory program, provided that the program is consistent with the conservation needs of the species. However, a 4(d) rule can only address take of species listed as threatened. The Forests and Fish Report addresses some endangered and unlisted species, as well as threatened species.
Because both threatened and endangered species are likely to be affected and because there are alternative methods for meeting the requirements of the ESA, the State is working with both Services to develop one or more proposals.
The Washington State Forest Practices Board was established in 1975 by the Washington State Legislature under the State Forest Practices Act. By law, the board is charged with establishing rules governing forest management activities on non-Federal forest land in the State in order to protect public resources while maintaining a viable timber industry. Those rules, as embodied in the Washington Administrative Code (Title 222 WAC), specifically consider the effects of various forest practices on fish, wildlife and water quality. The Forest Practices Act also requires the Washington Department of Natural Resources to administer and enforce all board-adopted rules on non-Federal forest land. The board adopts Forest Practices rules pertaining to water quality protection after reaching agreement with the director of the Department of Ecology (Ecology) or the director's designee on the board.
Beginning in late 1996, stakeholders determined additional protections should be developed because of the imminent listing of several salmon species in Washington under the Act, and because new information from watershed analyses and other sources indicated riparian protections in place at that time were not adequate for public resource protection. In response, the participants in a stakeholder negotiation process known as Timber, Fish, and Wildlife (TFW) began working on riparian issues and agreed to negotiate collaboratively in an effort to submit a proposal to the Forest Practices Board. Over the course of the negotiations, representatives from Federal agencies and Washington counties joined the effort, and representatives of environmental interests and some Tribes withdrew from the process. The remaining caucuses continued negotiating and went on to write the Forests and Fish Report (April 1999), which ultimately became the basis for new Forest Practices Rules with increased attention to the needs of salmon and other aquatic and riparian species on forest lands. The groups contributing to the development of the report included Federal agencies (FWS,
Following publication of the Forests and Fish Report, the Washington State Legislature directed the Forest Practices Board to adopt rules consistent with the Forest and Fish Report. The board conducted an evaluation of the proposal, and alternatives to the proposal, for modifying the Forest Practices Rules. This evaluation included a State Environmental Impact Statement (SEIS), under the Washington State Environmental Policy Act. The State's Final SEIS, entitled “Alternatives for Forest Practices Rules for Aquatic and Riparian Resources” was published in April 2001.
In consideration of this evaluation, the Forest Practices Board adopted new rules in May 2001, which were based on the Forests and Fish Report. Effective July 2001, these new rules cover a wide variety of forest practices and include a new, more functional classification of rivers and streams on non-Federal forest land; improved plans for properly designing, maintaining, and upgrading existing and new forest roads; additional protections for unstable slopes; greater protections for riparian areas intended to maintain properly functioning conditions; a process for adaptive management; and other features.
Washington State has now entered into discussions with the Service's in anticipation of submitting an application for ESA take authorization pursuant to Section 10(a)(1)(B) of the Act, a 4(d) Limit or both for the Washington State Forest Practices Rules, regulating forest management activities on non-Federal forest lands in the state of Washington.
The Services will conduct an environmental review of the application package(s) to be submitted by the State and prepare a Federal DEIS. The DEIS will analyze the proposal, as well as a full range of reasonable alternatives and the associated impacts of each. The Services are in the process of developing alternatives for analysis. Alternatives currently under consideration include: a No Action alternative; an alternative resulting in the issuance of a Section 10 Permit based on an HCP, which includes the full complement of practices endorsed by the Forests and Fish Report; an alternative resulting in NOAA Fisheries determining that the State Forest Practices Rules and non-regulatory elements of the State's program are at least as protective of threatened fish as the Forests and Fish Report, thus qualifying the program under Limit 13 of the July, 2000 4(d) rule; an alternative that includes the adoption of a similar 4(d) rule by the FWS; and alternatives involving an ESA incidental take permit or 4(d) rules associated with measures that are either more or less protective than the complete Forests and Fish Report package. Additional alternatives may be developed based on input received from this and future public comment opportunities during the development of the DEIS.
Comments and suggestions are invited from all interested parties to ensure the full range of alternatives related to this proposed action and all significant issues are identified. The Services request that comments be as specific as possible. Comments should include information, issues, and concerns regarding: the direct, indirect, and cumulative effects that implementation of the proposal could have on endangered and threatened species or their habitats; other possible alternatives; potential adaptive management and/or monitoring provisions; funding issues; baseline environmental conditions; other plans or projects that might be relevant to this project; and minimization and mitigation measures. In addition to considering impacts to threatened and endangered species and their habitats, the DEIS will analyze the effects the alternatives would cause to other components of the human environment. As a result comments specific to the following are also requested: air quality; water quality and quantity; geology and soils; cultural resources; social resources; economic resources; and environmental justice.
This notice is provided pursuant to NEPA regulations (40 CFR 1506.6). Comments or questions should be directed to the Services at the addresses or telephone numbers provided above. All comments and materials received, including names and addresses, will become part of the administrative record and may be released to the public.
This environmental review by the Services will be conducted in accordance with the requirements of the NEPA, NEPA Regulations (40 CFR 1500-1508), other appropriate Federal laws and regulations, and policies and procedures of the Services for compliance with those regulations.
National Telecommunications and Information Administration, Commerce.
Notice of availability of funds.
The National Telecommunications and Information Administration (NTIA) issues this Notice describing the conditions under which applications will be received under the Technology Opportunities Program (TOP) and how NTIA will select applications for funding.
As an agency of the U.S. Department of Commerce, NTIA is the Executive Branch's principal voice on domestic and international telecommunications and information technology issues. NTIA works to spur innovation, encourage competition, help create jobs and provide consumers with more choices and better quality telecommunications products and services at lower prices.
TOP supports this mission through funding demonstrations of new telecommunications and information applications for the provision of educational, cultural, health care, public information, public safety, or other social services.
Complete applications for the Fiscal Year 2003 TOP grant program must be either postmarked no later than April 23, 2003, or hand-delivered no later than 5 P.M. Eastern Daylight Time on April 23, 2003, to the respective addresses listed in the
1. A legibly dated U.S. Postal Service postmark;
2. A legible mail receipt with the date of mailing stamped by the U.S. Postal Service; or
3. A dated shipping label, invoice, or receipt from a commercial carrier.
If an application is sent through the U.S. Postal Service, neither of the following will be accepted as proof of mailing:
1. A private metered postmark; or
2. A mail receipt that is not dated by the U.S. Postal Service.
Applicants should note that the U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, applicants should check with their local post office.
Due to screening procedures at the Department of Commerce, packages arriving via the United States Postal Service's Priority Mail, First Class, and Parcel Post services are irradiated, which can damage the contents, or delay delivery to the TOP Program Office. Thus, applicants are encouraged to consider the impact of these procedures in selecting their chosen method for application delivery.
Applications will not be accepted via facsimile machine transmission or electronic mail.
Applications with postmarked dates after April 23, 2003, will not be considered in the current grant round and will be returned to the applicant.
Completed applications must be mailed, shipped, or sent overnight express to:
Room 1874 is located at entrance #10 on 15th Street NW., between Pennsylvania and Constitution Avenues.
Lammot du Pont by telephone: (202) 482-2048; fax: (202) 501-8009; or e-mail:
NTIA issues this notice pursuant to Public Law 108-7, the Consolidated Appropriations Resolution, FY 2003.
CFDA Number 11.552; Technology Opportunities Program (TOP)
Non-profit entities, public sector organizations as well as state, local and tribal governments are eligible to apply. Eligible applicants include, but are not limited to, faith-based organizations, national organizations and associations, non-profit community-based organizations, non-profit health care providers, schools, libraries, museums, colleges, universities, public safety providers or other providers of social services.
Individual persons are not eligible to apply.
For-profit organizations are not eligible to apply. They are encouraged, however, to participate as project partners as described in the “Matching Funds Requirements” and “Review Criteria” sections of this Notice.
Applications submitted by those who are or designate themselves as “individuals” or “for-profit organizations” on the Standard Form 424 (SF-424), Application for Federal Assistance, will not be considered in the current grant round and will be returned to the applicant.
Approximately $12.4 million is available for Federal assistance under a grant. Based on past experience, NTIA expects this year's grant round to be very competitive. In Fiscal Year 2002, NTIA received 741 applications collectively requesting more than $330 million in federal funds. From these applications, the Department of Commerce announced 25 awards totaling $12.4 million in federal funds.
An applicant may request up to a total of $700,000 in funds from NTIA. TOP expects the federal amounts awarded to range from $350,000 to $700,000, with an average of approximately $500,000. The amount awarded covers the duration of the project.
Grant recipients under this program will be required to provide matching funds toward the total project cost. Applicants must document their capacity to provide matching funds. Matching funds may be in the form of cash or in-kind contributions.
NTIA will provide up to 50 percent of the total project cost, unless the applicant can document extraordinary circumstances warranting a grant of up to 75 percent. Grant funds under this program are usually released in direct proportion to local matching funds utilized and documented as having been expended.
Generally, federal funds may not be used as matching funds, except as provided by federal statute. If you plan to use funds from a federal agency as matching funds, you should contact the federal agency that administers the funds in question and obtain documentation from that agency's Office of General Counsel to support the use of federal funds for matching purposes.
TOP will initially review all applications to determine whether all required elements are present and clearly identifiable. In order to be accepted for review, each application must contain, at a minimum, the following required elements: (1) A Standard Form 424 (SF-424), Application for Federal Assistance, with an original signature, (2) a project narrative, and (3) a budget narrative.
Applications that are missing any of the three required elements with the appropriate signatures will not be considered in the current grant round and will be returned to the applicants.
Standard forms and materials needed to complete an application can be obtained electronically via TOP's Web site at
More details regarding the required elements and suggestions for preparing a competitive application are described in the Guidelines for Preparing Applications—Fiscal Year 2003. Applicants can obtain a copy of the Guidelines for Preparing Applications—Fiscal Year 2003, via TOP's Web site at
As a national program, TOP emphasizes innovation, learning, and diffusion of new ideas and practical knowledge. Through TOP, NTIA provides organizations with opportunities to explore the possibilities that new telecommunications and information technology offer to improve the provision of educational, cultural, health care, public information, public safety, or other social services.
TOP projects demonstrate innovative applications of new telecommunications and information technology to address pressing needs in the public and non-profit sectors. Therefore, TOP expects applicants to present a clear vision and
All funded projects must be interactive in that they foster the exchange and sharing of information among individuals and/or groups, as opposed to one-way or broadcast systems. Because these grants will serve as national models for other communities, NTIA expects each project to include provisions for a thorough, independent evaluation that will provide valid and reliable data as well as valuable lessons learned to be shared with others interested in the project.
In previous fiscal years, NTIA supported planning projects. The emphasis for Fiscal Year 2003 is on projects that deploy, use, and evaluate applications of new telecommunications technology. NTIA will, however, support projects that incorporate some planning activities as part of the proposed project.
Each TOP project is expected to include a range of activities that support project development, implementation, and evaluation. However, TOP will not support projects whose primary purpose falls into the categories discussed below.
1.
2.
3.
4.
5.
6.
In addition, NTIA places a priority on avoiding duplication of other federal initiatives. As indicated in the “Selection Procedures” section of this notice, the selection official will recommend awards based, in part, on avoidance of redundancy with initiatives of other federal agencies. Therefore, applicants should carefully review other federal initiatives, and, if necessary, describe how their project would not be eligible for support by other federal initiatives. For assistance in researching other federal initiatives, please see the discussion of Electronic Information in the “Other Information” section of this Notice.
Reviewers will analyze and rate each application using the following criteria. The relative weights of each criterion are identified in parentheses.
Each application must describe a clearly defined project that uses telecommunications and information technology for the provision of educational, cultural, health care, public information, public safety, or other social services.
In assessing the project purpose, reviewers will examine the degree to which the applicant clearly describes and convincingly links three major elements: (1) The problem(s) to be addressed, (2) the proposed solution, and (3) the anticipated outcomes of the project.
Reviewers will assess the evidence and severity of the identified problem(s) and need(s). With respect to the proposed solution, reviewers will assess the degree to which the project will address the identified problem(s). With respect to anticipated project outcomes, reviewers will assess the degree to which the proposed results and outcomes of the project are both realistic and measurable. Reviewers will also assess the degree to which an applicant convincingly links the three major elements-problem(s), solution(s), and outcome(s).
Reviewers will assess innovation by examining both the technology to be used and the application of the technology in a particular setting, to serve a particular population, or to solve a particular problem. TOP defines innovation broadly. For example, projects that involve imaginative partnerships, the introduction of new business processes designed to offer more effective services, untested strategies for overcoming access barriers, or new techniques that transform inter-organizational relationships can all be considered innovative. TOP encourages applicants to experiment with leading edge technologies. It is, however, the creativity behind the application of the technology to meet community needs that ultimately determines the level of innovation.
Using experience gained in their respective fields, reviewers will examine each project in a national context and evaluate how an application compares with, complements, and improves on what is known about using telecommunications and information technology for the provision of educational, cultural, health care, public information, public safety, or other social services.
Each application will be rated on the level of community involvement in the development and implementation of the proposed project. Reviewers will:
(1) Analyze the applicant's partnerships to ensure that they include linkages among unaffiliated organizations (from the public, non-profit, or private sectors) as an ongoing and integral part of project planning and implementation. TOP considers partners to be organizations that supply cash, in-kind resources (including personnel,
(2) consider the degree of attention paid to the needs, skills, working conditions, and living environments of the targeted end users.
(3) examine the steps the applicant has taken to include and sustain the involvement of a variety of community stakeholders. Reviewers will look for documented evidence of demand—from the community, end users, and potential beneficiaries—for the services proposed by the project.
Each application will be rated on its proposed plans for evaluating the project and sharing the knowledge learned. Reviewers will assess the extent to which the applicant's research or evaluation design: (1) Provides for continuous feedback for project planning, implementation, review, and revision; (2) addresses the problems, solutions, and anticipated outcomes described in the project purpose; (3) proposes a research design that yields valid and reliable findings; (4) captures lessons learned and sufficient descriptive data so that others may easily adapt and replicate the project; and (5) meets TOP's requirements for an independent evaluation as described in the “Reporting Requirements” section of this Notice.
In assessing evaluation, reviewers will examine:
(1) The research design and methodology;
(2) evaluation questions, data collection, and data analysis plans;
(3) the qualifications of any staff or external evaluators working on the evaluation; and
(4) the allocation of resources for implementing the evaluation and reporting project findings.
With respect to dissemination of the lessons learned, reviewers will assess:
(1) the extent to which the project would be easy to replicate or adapt, based on considerations such as cost and complexity;
(2) the applicant's plans and budget resources dedicated to disseminate actively the best practices and lessons learned from the project's successes and failures; and
(3) the capability and experience of an applicant or their partner organizations to reach communities across the country and disseminate their findings.
In assessing the feasibility of each application, reviewers will focus on five issues: The technical approach, the qualifications of the project staff, the implementation schedule, plans for protecting privacy, and the applicant's plan for sustaining the project beyond the grant period.
(1) In assessing the technical approach, reviewers will examine the degree to which the proposed system offers advantages over established approaches to addressing the specified problems and would work and operate with other systems. In addition, reviewers will assess the technological alternatives that have been considered; designs for system maintenance and periodic upgrades; and plans for project expansion. Applicants are expected to make use of existing infrastructure and commercially available telecommunications services, unless extraordinary circumstances require the construction of new network facilities.
(2) In assessing the qualifications of the project team, reviewers will assess the applicant and its partners to determine if they have the resources, expertise, and experience necessary to undertake, evaluate, and complete the project and disseminate results within the proposed period.
(3) Reviewers will assess the degree to which the proposed project, from implementation through evaluation, will be completed in the proposed time frame.
(4) Reviewers will evaluate the applicant's plans to safeguard the privacy of the project's end users and others affected by the project.
(5) Finally, reviewers will examine the applicant's strategies to sustain the project after the completion of the grant.
Reviewers will analyze the budget in terms of clarity and cost-effectiveness. Reviewers will also assess the reasonableness of the proposed budget and whether the allocation of funds is sufficient to complete the tasks outlined in the project narrative.
All costs must be reasonable and directly related to the project.
Costs associated with the construction or major renovation of buildings are not eligible. While costs for the construction of new network facilities are eligible, applicants are expected to make use of existing infrastructure and commercially available telecommunications services. Only under extraordinary circumstances will the construction of new network facilities be approved.
Costs for professional services are also ineligible. TOP defines professional services as activities delivered over a network that would otherwise be provided in a face-to-face setting such as teaching students, counseling clients, providing direct patient care, or interpreting services, etc. For example, if the project proposes to create a telemedicine network, the costs of setting up, maintaining, and evaluating the use of the network are eligible, but payment for the time or services of physicians or other health professionals providing care over the network is not an eligible cost.
Note that costs ineligible for TOP support may not be included as part of the applicant's matching fund contribution.
In addition, Pub. L. 108-7, the Consolidated Appropriations Resolution, FY 2003, places restrictions on eligible project costs for applicants that are recipients of Universal Service Fund discounts and applicants receiving assistance from the Department of Justice's Regional Information Sharing Systems Program as part of the project costs. The statute provided:
That, notwithstanding any other provision of law, no entity that receives telecommunications services at preferential rates under section 254(h) of the Act (47 U.S.C. 254(h)) or receives assistance under the regional information sharing systems grant program of the Department of Justice
Accordingly, recipients of the above-described preferential rates or assistance are prohibited from including any costs that would be covered by such preferential rates or assistance in their proposed TOP grant budget. More details on this restriction can be found in the Guidelines for Preparing Applications—Fiscal Year 2003.
Applicants may propose projects that last a minimum of 18 months and will be completed by 36 months. While the completion time will vary depending on the complexity of the project, NTIA has found that most grant recipients require at least two years to complete and evaluate fully their projects.
NTIA anticipates the processing and selection of applications for funding will require six months. The selection process involves four stages outlined below:
1. During the first stage, each eligible application will be reviewed by a panel of outside peer reviewers, who have demonstrated expertise in both the programmatic and technological aspects of the application. The peer review panel members will evaluate applications according to the review criteria provided in this Notice and provide ratings to the program staff. As discussed below, these ratings constitute one of the selection factors to be used by the TOP Director when preparing the slate of recommended grant awards.
2. Upon completion of the external peer review process, program staff will analyze applications considered for award to assess: (1) Whether a proposed project meets the program's funding scope as described in the section entitled “Limitations on Project Scope”; (2) the eligibility of costs and matching funds included in an application's budget; and (3) the extent to which an application complements or duplicates projects previously funded or under consideration by NTIA or other federal programs.
The TOP Director then prepares and presents a slate of recommended grant awards to the Office of Telecommunications and Information Applications' (OTIA) Associate Administrator for review and approval.
(1) The evaluations of the outside peer reviewers;
(2) the analysis of program staff;
(3) the degree to which the proposed grants meet the program's purpose as described in the section entitled “Program Description”;
(4) the geographic distribution of the proposed grant awards;
(5) the variety of technologies and diversity of uses of the technologies employed by the proposed grant awards;
(6) the provision of access to and use of telecommunications and information technologies by rural communities and other underserved groups;
(7) avoidance of redundancy and conflicts with the initiatives of other Federal agencies; and,
(8) the availability of funds.
3. Upon approval by the OTIA Associate Administrator, the Director's recommendations will then be presented to the Selecting Official, the NTIA Administrator. The NTIA Administrator selects the applications to be negotiated for possible grant award taking into consideration the Director's recommendations and the degree to which the slate of applications, taken as a whole, satisfies the selection factors described above and the program's stated purposes as set forth in the section entitled “Program Description.”
4. After applications have been selected in this manner, negotiations will take place between TOP staff and the applicant. These negotiations are intended to resolve any differences that exist between the applicant's original request and what TOP proposes to fund, and if necessary, to clarify items in the application. Not all applicants who are contacted for negotiation will necessarily receive a TOP award. Final selections made by the Administrator will be based upon the recommendations by the Director and the OTIA Associate Administrator and the degree to which the slate of applications, taken as a whole, satisfies the program's stated purposes as set forth in the section entitled “Program Description,” upon the conclusion of negotiations.
Applicants are advised that any program income generated by a proposed project is subject to special conditions. Anticipated program income must be documented appropriately in the project budget. In addition, should an application be funded, unanticipated program income must be reported to TOP, and the budget for the project must be renegotiated to reflect receipt of this program income. Program income means gross income earned by the recipient that is either directly generated by a supported activity, or earned as a result of the award. In addition, federal policy prohibits any recipient or subrecipient receiving federal funds from the use of equipment acquired with these funds to provide services to non-federal outside organizations for a fee that is less than private companies charge for equivalent services. This prohibition does not apply to services provided to outside organizations at no cost.
Applicants are advised that on December 22, 1995, NTIA issued a notice in the
To ensure compliance with federal regulations and collect systemic evaluation data on each project, successful TOP applicants have a number of basic reporting requirements once they are awarded a grant. At project outset, TOP grantees provide detailed baseline information on the project objectives, goals, partners, and populations served. Grantees then provide periodic financial reports and updates on project activities. At project completion, TOP grantees must also provide a closeout report.
Finally, because evaluation results play such a critical role in helping other organizations learn about what works well and what does not, each TOP-supported project will provide NTIA a final evaluation report.
To ensure the validity of the findings, the final evaluation report must be completed by an independent evaluator
It is the general intent of NTIA not to waive any of the provisions set forth in this Notice. However, under extraordinary circumstances and when it is in the best interest of the federal government, NTIA, upon its own initiative or when requested, may waive the provisions in this Notice. Waivers may only be granted for requirements that are discretionary and not mandated by statute. Any request for a waiver must set forth the extraordinary circumstances for the request and be included in the application or sent to the address provided in the
As noted in the
Applications under this program are subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.” All applicants are required to submit a copy of their application to their state Single Point of Contact (SPOC) offices, if they have one. For information on contacting state SPOC offices, refer to the Guidelines for Preparing Applications—Fiscal Year 2003.
Through TOP's online tools available at
As indicated above, each application must contain, at a minimum, the following required elements: (1) A Standard Form 424 (SF-424), Application for Federal Assistance, with an original signature, (2) a project narrative, and (3) a budget narrative. Applications that are missing any of these three required elements with the appropriate signatures will not be accepted for review and will be returned to the applicants.
In addition, applicants can use TOP's online tools to provide an electronic version of their executive summary that will be available to the public. TOP's online tools are optional and not required to prepare an application.
If an application is considered for funding, the grant applicant will be asked to submit appropriate documentation of IRB approval or exemption status to the Federal Program Officer for approval by Department officials. More details on human subjects research protection are available through the TOP's Web site at
Because notice and comment are not required under 5 U.S.C. 553, or any other law, for notices relating to public property, loans, grants, benefits or contracts (5 U.S.C. 553(a)), a Regulatory Flexibility Analysis is not required and has not been prepared for this Notice, 5 U.S.C. 601
It has been determined that this Notice does not contain policies with Federalism implications as that term is defined in E.O. 13132.
This document contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The use of Standard Forms 424, 424A, 424B, and SF-LLL have been approved by OMB under the respective control numbers 0348-0043, 0348-0044, 0348-0040, and 0348-0046.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act, unless that collection displays a currently valid OMB control number.
11 a.m., Friday, April 4, 2003.
1155 21st St., NW., Washington, DC, 9th floor conference room.
Closed.
Surveillance matters.
Jean A. Webb, 202-418-5100.
11 a.m., Friday, April 11, 2003.
1155 21st St., NW., Washington, DC., 9th floor conference.
Closed.
Surveillance matters.
Jean A. Webb, 202-418-5100.
11 a.m., Friday, April 18, 2003.
1155 21st St., NW., Washington, DC, 9th floor of conference room.
Closed.
Surveillance matters.
Jean A. Webb, 202-418-5100.
11 a.m., Friday, April 25, 2003.
1155 21st St., NW., Washington, DC 9th floor conference room.
Closed.
Surveillance matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
Notice and order.
The Commodity Futures Trading Commission (the “Commission”) is authorizing the National Futures Association (“NFA”) to conduct reviews of Disclosure Documents required to be filed with the Commission by commodity pool operators (“CPOs”) for publicly-offered commodity pools.
March 17, 2003.
Kevin P. Walek, Assistant Director, Audit and Financial Review Section, or Michael A. Piracci, Attorney Advisor, Compliance and Registration Section, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5430.
The Commission previously has authorized NFA to perform many functions that, until that time, were performed by Commission staff. These functions include: The processing of applications for registration of intermediaries and floor traders under the Commodity Exchange Act (the “Act”);
In 1997, the Commission authorized NFA to receive and review Disclosure Documents required to be filed with the Commission by CPOs, pursuant to Commission rule 4.26(d), with regard to “privately offered” commodity pools.
In December 2002, concurrently with authorizing NFA to review annual financial reports filed by CPOs, the Commission made certain amendments to part 4 of its rules
As the Commission noted in December 2002, the futures industry is continually expanding and transforming itself and as the industry changes and evolves, the Commission must also change and evolve, reassessing the manner in which it allocates its resources.
Section 4n(3)(A) of the Act provides, among other things, that each CPO shall “file such reports in such form and manner as may be prescribed by the Commission.” The Commission also notes that, in amending the Act through passage of the Commodity Futures Modernization Act of 2000 (the “CFMA”),
The Commission has also determined to authorize NFA to maintain and serve as official custodian of record for the Disclosure Documents filed by CPOs with regard to publicly-offered pools, as required under rule 4.26(d). This determination is based upon NFA's representations regarding procedures for maintaining and safeguarding all such records, in connection with NFA's assumption of the responsibilities for the activities referenced above. In maintaining the Commission's records pursuant to this Order, NFA shall be subject to all other requirements and obligations imposed upon it by the Commission in existing or future orders or regulations. In this regard, NFA shall also implement such additional procedures (or modify existing procedures) as are acceptable to the Commission and as are necessary: (1) To ensure the security and integrity of the records in NFA's custody; (2) to facilitate prompt access to those records by the Commission and its staff, particularly as described in other Commission orders or rules; (3) to facilitate disclosure of public or nonpublic information in those records when permitted by Commission orders or rules and to keep logs as required by the Commission concerning disclosure of nonpublic information; and (4) to otherwise safeguard the confidentiality of the records.
For the reasons discussed above, and pursuant to its authority under the Act, the Commission has determined to authorize NFA to receive and review Disclosure Documents filed by CPOs pursuant to rule 4.26(d) with regard to publicly-offered commodity pools. In addition, the Commission has determined to authorize NFA to maintain and to serve as the official custodian of such records.
These determinations are based upon: (1) The Congressional intent that the Commission be permitted to determine the best manner in which to oversee CPOs; (2) the Congressional intent that a registered futures association, where appropriate, assume responsibility under the Act for regulatory functions the Commission has deemed unnecessary to retain; and (3) NFA's representation and demonstration of its willingness and ability to administer the required regulatory functions in accordance with the standards established by the Act, the Commission's regulations and orders promulgated thereunder, any supplemental direction established by the Commission or Commission staff, and relevant case law, and to provide the Commission with whatever information, reports, summaries, or records the Commission may determine are necessary for effective oversight of NFA's administration of the functions delegated herein, or for the Commission to fulfill its role of regulatory oversight of the futures markets.
This order does not authorize NFA to accept or act upon requests for exemption from the requirements of rule 4.26(d). Moreover, NFA is not authorized to issue any interpretations, “no-action” positions, or exemptions with respect to the requirements of rule 4.26(d).
NFA is authorized to perform all functions specified in this order until the Commission orders otherwise. Nothing in this order shall prevent the Commission from exercising the authority delegated herein. NFA may submit to the Commission for decision any specific matter regarding the functions delegated to it by this order. Nothing in this order affects the applicability of any previous orders issued by the Commission.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0150).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning Small Business Procurement Credit Programs. This OMB clearance expires on June 30, 2003.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate
Submit comments on or before May 16, 2003.
Submit comments including suggestions for reducing this burden, to the General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Rhonda Cundiff, Acquisition Policy Division, GSA, 501-0044.
This FAR requirement concerning small disadvantaged procurement credit programs implements the Department of Justice proposal to reform affirmative action in Federal procurement, which was designed to ensure compliance with the constitutional standards established by the Supreme Court. The credits include price evaluation factor targets and certifications.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0149).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning Subcontract Consent. This OMB Clearance expires on July 31, 2003.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before May 16, 2003.
Submit comments including suggestions for reducing this burden to the General Services Administration, FAR Secretariat (MVA), Room 4035, 1800 F Street, NW., Washington, DC 20405.
Rhonda Cundiff, Acquisition Policy Division, GSA (202) 501-0044.
The objective to consent to subcontract, as discussed in FAR part 44, is to evaluate the efficiency and effectiveness with which the contractor spends Government funds, and complies with Government policy when subcontracting. The consent package provides the administrative contracting officer a basis for granting, or withholding consent to subcontract.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 17, 2003.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Acting Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 1000.
Burden Hours: 66000.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grant Information Collections (1890-0001). Therefore, the 30-day public comment period notice will be the only public comment notice published for this information collection.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to CAREY at (202) 708-6287. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 17, 2003.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Acting Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Responses: 1200.
Burden Hours: 30000.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grant Information Collections (1890-0001). Therefore, the 30-day public comment period notice will be the only public comment notice published for this information collection.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to CAREY at (202) 708-6287. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy (DOE).
Notice inviting grant applications.
The Office of Biological and Environmental Research (OBER) of the Office of Science (SC), U.S. Department of Energy (DOE), hereby announces its interest in receiving applications for enhancement of the AmeriFlux Research Program.
The deadline for receipt of formal applications is 4:30 p.m., e.d.t., May 5, 2003, to be accepted for merit review and to permit timely consideration for award in Fiscal Year 2003.
Formal applications referencing Program Notice DE-FG01-03ER03-22 must be sent electronically by an authorized institutional business official through DOE's Industry Interactive Procurement System (IIPS) at:
If you are unable to submit the application through IIPS, please contact the Grants and Contracts Division, Office of Science at: (301) 903-5212, in order to gain assistance for submission through IIPS or to receive special approval and instruction on how to submit printed applications.
Dr. Roger C. Dahlman, Program Manager, SC-74, OBER/Germantown Bldg, U.S. Dept of Energy, 1000 Independence Ave, SW., Washington, DC 20585-1290 (301) 903-4951, E-mail:
Applicants are strongly encouraged to match their research applications to the terms of scope for this announcement, and therefore preapplications are not required. Brief questions for clarification can be addressed to Dr. Dahlman, by e-mail,
The North American Carbon Program (NACP) is a framework for providing scientific information on sources and sinks of CO
Carbon dioxide flux measurement is one key approach for estimating net carbon gain or loss by terrestrial ecosystems of North America. Such measurements are currently carried out at a network of AmeriFlux sites that are partially representative of different ecosystems of North America. As described in the NACP Report (2002), AmeriFlux measurements are expected to contribute significantly to the goals of NACP, and a “high priority enabling development” calls for the “transformation of the AmeriFlux network into an integrated, near-real time network” that will support goals of the NACP. With upgraded instrumentation and advanced measurement technology, it is anticipated that atmospheric CO
The intent of this solicitation therefore is to augment the AmeriFlux network and enhance CO
(1)
The NACP envisions a number of intensive field studies possibly at other geographical locations in the south east, north east, and western United States, and ultimately decisions on location and phasing of future intensives will guide the selection of new AmeriFlux sites. Strong consideration in the selection of new sites will be based on potential contributions to NACP priorities, particularly those that fill geographical or biogeographical gaps within the region of the first intensive field program, and with critical biomes and/or climatic zones that currently lack coverage. Pending availability of funds, applications for creating new sites at other geographical locations of the U.S. may be supported in Fiscal Year 2004 or later.
New-site applications must, of course, be based on representative vegetation, and demonstrate that sites possess appropriate physical attributes amendable to producing high-quality net ecosystem exchange (NEE) or CO
(2)
For both items (1) and (2) applicants are strongly encouraged to review NACP goals and major elements (NACP, 2002), and explain and justify how proposed research will likely contribute to the overall NACP research strategy, and specifically how the research will improve measurements of carbon flux measurements and estimates of carbon budgets and sinks. Importantly, the proposed research must demonstrate a capability to produce high-quality measurements and provide seasonal and annual estimates of net ecosystem exchange of CO
(3)
NACP Reference: The North American Carbon Program (NACP), A Report of the NACP Committee of the U.S. Carbon Cycle Science Steering Group, Steven C. Wofsy and Robert C. Harriss, Co-chairs, 2002. Available from the USGCRP Office, 1717 Pennsylvania Avenue, NW., Suite 250, Washington, DC 2006.
It is anticipated that approximately $2.0 million will be available for grant awards in Fiscal Year 2003, contingent upon availability of appropriated funds. Previous awards for the creation and operation of a new site have ranged from $100,000 up to $300,000 per year, with most not exceeding $200,000. Each site application must provide a “facility” budget and an “operational” budget. Applications to create a new AmeriFlux site may be eligible for a multi-year award, where the first-year budget would include costs of site development and instrumentation, and successive-year budgets would include nominal operational costs. Applications to upgrade measurement capacity at an existing AmeriFlux site would be limited to a one-year award because most of the investment is expected to be for equipment. Sustaining operational budgets would be reflected in existing grants or renewal applications. Multi-year applications may not exceed 3 years in duration. Most awards are expected to meet these criteria; however, applications with exceptional budgeting circumstances should discuss them with the Program Manager for this solicitation. Funding of multiple year grant awards is contingent upon availability of appropriated funds.
Applications will be subjected to scientific merit review (peer review) and will be evaluated against the following evaluation criteria listed in descending order of importance as codified at 10 CFR 605.10(d):
1. Scientific and/or technical merit of the project.
2. Appropriateness of the proposed method or approach,
3. Competency of applicant's personnel and adequacy of proposed resources,
4. Reasonableness and appropriateness of the proposed budget.
The evaluation process will include program policy factors such as the relevance of the proposed research to the terms of the announcement and agency's programmatic needs. Note that external peer reviewers are selected with regard to both their scientific expertise and the absence of conflict-of-interest issues. Non-Federal reviewers may be used, and submission of an application constitutes agreement that this is acceptable to the investigator(s) and the submitting institution.
Information about the development and submission of applications, eligibility, limitations, evaluation, selection process, and other policies and procedures may be found in 10 CFR part 605, and in the Application Guide for the Office of Science Financial Assistance Program. Electronic access to the Guide and required forms is made available via the World Wide Web at:
The research project description must be 15 pages or less, exclusive of attachments and must contain an abstract or summary of the proposed research. On the SC grant face page, form DOE F 4650.2, in block 15, also provide the PI's phone number, fax number and e-mail address. Attachments include curriculum vitae, a listing of all current and pending federal support, and letters of intent when collaborations are part of the proposed research. Curriculum vitae should be submitted in a form similar to that of NIH or NSF (two to three pages).
The applicants are asked to submit an electronic copy of the abstract in ASCII format to
The Catalog of Federal Domestic Assistance Number for this program is 81.049, and the solicitation control number is ERFAP 10 CFR part 605.
Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Secretary of Energy Advisory Board. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770), requires that agencies publish these notices in the
Tuesday, April 1, 2003, 8:30 a.m.-12:30 p.m.
Hyatt Sainte Claire Hotel, Ballroom, 302 S. Market Street, San Jose, California 95113.
Dr. Craig R. Reed, Executive Director, Secretary of Energy Advisory Board (AB-1), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-7092 or (202) 586-6279 (fax).
The purpose of the Secretary of Energy Advisory Board (The Board) is to provide the Secretary of Energy with essential independent advice and recommendations on issues of national importance. The Board and its subcommittees provide timely, balanced, and authoritative advice to the Secretary of Energy on the Department's management reforms, research, development and technology activities, energy and national security responsibilities, environmental cleanup activities, and other issues relating to the Department's missions.
• Recommendations Regarding Industry Partnering/Technology Transfer Within the Department of Energy: A Report of the External Members The Laboratory Operations Board Industry Partnering/Technology Transfer Working Group, dated December 31, 2002.
• Recommendations Regarding the Application of “Other Transactions Authority” Within the Department of Energy: A Report of the External Members of the Laboratory Operations Board, dated September 24, 2002.
Copies of the two draft reports submitted by the Laboratory Operations Board may be obtained from the Board's internet address
Members of the public wishing to comment on issues before the Secretary of Energy Advisory Board will have an opportunity to address the Board during the public comment period. The final agenda will be posted on the Board's web site when available, and will be provided at the meeting.
Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Biomass Research and Development Technical Advisory Committee under the Biomass Research and Development Act of 2000. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that agencies publish these notices in the
April 10, 2003—8:30 a.m.
Hilton Crystal City Hotel at National Airport, Farragut Room, 2399 Jefferson Davis Highway, Arlington, VA 22202.
John Ferrell, Designated Federal Officer for the Committee, Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; (202) 586-7766.
Tentative Agenda: Agenda will include discussions on the following:
• Development of recommendations to the Biomass R&D Board on the future direction for federal biomass research
Take notice that on March 10, 2003, American Municipal Power-Ohio, Inc. (AMP-Ohio), on behalf of itself and thirteen of its municipal electric system members, tendered for filing a complaint pursuant to sections 206 and 306 of the Federal Power Act against The Dayton Power & Light Company (DP&L) and PJM Interconnection, L.L.C. (PJM) concerning the need to revise grandfathered contracts in order to eliminate the possible pancaking of transmission charges within PJM and any PJM/Midwest ISO “super region” that might be created.
AMP-Ohio states that copies of the filing were served upon DP&L and PJM.
Any person desiring to be heard or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. The answer to the complaint and all comments, interventions or protests must be filed on or before the comment date. 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 4, 2003, the PJM Transmission Owners Group consisting of Baltimore Gas and Electric Company, Jersey Central Power & Light
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
On March 4, 2003, Northwest Pipeline Corporation (Northwest), P.O. Box 58900, Salt Lake City, Utah, 84158-0900 filed in Docket No. CP03-58-000, an application pursuant to section 7(b) of the natural Gas Act (NGA), as amended and part 157 of the regulations of the Federal Energy Regulatory Commission (Commission) for authorization to abandon its Stanfield Compressor Station in Umatilla County, Oregon, 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
Any questions concerning this application may be directed to Gary K. Kotter, Manager, Certificates and Tariffs, Northwest Pipeline Corporation, P.O. Box 58900, Salt Lake City, Utah, 84158-0900, at (801) 584-7117 or
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 an 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.
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on March 5, 2003, WPS New England Generation, Inc., (WPS New England), submitted a notice of change in status under its market-based rate authority to reflect its future long-term lease agreement for 5.5 MW of generation from the Loring Diesel Station in Northern Maine. In addition, WPS New England submitted a three-year update of the justification for their
Take notice that on July 1, 2002, Green Mountain Energy Company tendered for filing revised tariff sheets in accordance with the Commission Order dated May 9, 2002.
Take notice that on March 5, 2003, Termoelectrica U.S., LLC (Termoelectrica US) tendered for filing a Substitute First Revised Rate Schedule FERC No. 1 to clarify language prohibiting sales between Termoelectrica U.S. and its affiliate, San Diego Gas & Electric Company and requesting a shortened notice period for such filing.
Take notice that on March 4, 2003, the Detroit Edison Company (Detroit Edison) tendered for filing with the Federal Energy Regulatory Commission (Commission), a compliance filing pursuant to the Commission's order issued on February 20, 2003, in Docket Nos. EC03-40-000 and ER03-343-000, ITC Holding Corp.,
Take notice that, on March 5, 2003, Duke Energy Trenton, LLC tendered for filing a Notice of Cancellation pursuant to 18 CFR 35.15, in order to reflect the cancellation of its market-based rate tariff, designated as FERC Electric Tariff, Original Volume No. 1, originally accepted for filing in Docket Nos. ER00-1782-000 and ER00-1782-001.
Take notice that on March 5, 2003, Florida Power Corporation, doing business as Progress Energy Florida, Inc. (Progress Energy Florida or the Company), tendered for filing a modification to its Agreement for Partial Requirements Resale Service, Transmission/Distribution Service and Demand and Energy Loss Service with Florida Municipal Power Agency, FERC Rate Schedule 107, to add an additional delivery point and delete a delivery point.
Progress Energy Florida states that copies of the filing were served upon the public utility's jurisdictional customers, and the Florida Public Service Commission.
Take notice that on March 5, 2003, Aquila, Inc. (Aquila), filed with the Commission, pursuant to Section 205 of the Federal Power Act, 16 U.S.C. 824d, and part 35 of the Commission regulations, 18 CFR part 35, an Interconnection Agreement between Aquila, Inc. d/b/a WestPlains Energy-Kansas and the Glen Elder City Government dated as of February 7, 2003. The Interconnection Agreement is filed as Service Agreement No. 105 to Aquila's FERC Electric Tariff, Third Revised Volume No. 26.
Take notice that on March 5, 2003, CinCap VII, LLC tendered for filing a Notice of Cancellation, pursuant to 18 CFR 35.15, giving notice of cancellation of its market-based electric tariff filed with the Federal Energy Regulatory Commission.
Take notice that on March 5, 2003, CinCap Madison, LLC tendered for filing a Notice of Cancellation, pursuant to 18 CFR 35.15, giving notice of cancellation of its market-based electric tariff filed with the Federal Energy Regulatory Commission.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an Environmental Assessment (EA) that will discuss the environmental impacts of the Oakford HP Project involving the upgrade of horsepower at the Oakford and South Oakford Compressor Stations by Dominion Transmission, Inc. (DTI) and Texas Eastern Transmission, LP (Texas Eastern) in Westmoreland County, Pennsylvania.
In Docket No. CP03-46-000, DTI and Texas Eastern request authorization to increase the horsepower on two existing electrical motor-driven compressor units at the South Oakford Station and three eletrical motor-driven compressor units at the Oakford Station in order to provide greater operating flexibility. This increase in horsepower would allow the stations to increase the daily withdrawl rate as needed. DTI and Texas Eastern proposes to:
• increase the horsepower of engines #3 and #4 from 5,000 to 5,750 at the South Oakford Compressor Station
• increase the horsepower of engines #13, #14, and #15 from 4,000 to 4,600 at the Oakford Compressor Station.
DTI and Texas Eastern would modify the software controls so that each of the engines may be operated at the design rating as described above. This operation would not require any installation, construction, or facility reconfiguration beyond the modifications of the software controls. Therefore, there would be no issues involving land use, vegetation and wildlife, water use and quality, cultural resources, socioeconomics, geological resources, and soils. There would be no issues regarding air emissions because these compressor units are powered by electrical motors. However, based on a comment letter, preliminary review of the proposed modifications and the environmental information provided by DTI and Texas Eastern, existing and proposed noise levels attributed to the South Oakford Compressor Station may warrant additional public comment.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
Our independent analysis of the issues will be presented in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section below.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Magalie R. Salas, Jr., Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of the Gas 1, PJ-11.1.
• Reference Docket No. CP03-46-000
• Mail your comments so that they will be received in Washington, DC on or before April 14, 2003.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must provide 14 copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
This notice is being sent to individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. It is also being sent to all identified potentially affected landowners.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC
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.
k. Deadline for filing comments, protests, and motions to intervene: April 11, 2003.
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.
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. Development Application—Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified deadline date for the particular application, a competing development application, or a notice of intent to file such an application. Submission of a timely notice of intent allows an interested person to file the competing development application no later than 120 days after the specified deadline date for the particular application. Applications for preliminary permits will not be accepted in response to this notice.
o. 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.
p. Protests or Motions to Intervene—Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests 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 protests or motions to intervene must be received on or before the specified deadline date for the particular application.
q. Filing and Service of Responsive Documents—The application is ready for environmental analysis at this time, and the Commission is requesting comments, reply comments, recommendations, terms and conditions, and prescriptions.
r. The Commission directs, pursuant to section 4.34(b) of the Regulations (
s. All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION,” “COMPETING APPLICATION,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Any of these 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, Office of Energy Projects, Federal Energy Regulatory Commission, at the above address. A copy of any protest or motion
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. Filed pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).
h.
i.
j.
The Commission's Rules of Practice and Procedure require all interveners filing a document with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the documents on that resource agency.
k.
l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. 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.
o. 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 the original and eight copies to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 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;
p. 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.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy
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. This application has been accepted and is ready for environmental analysis at this time.
l.
m. A copy of application is on file with the Commission and is available for public inspection. The application may be viewed on the web at
n. The Commission directs, pursuant to section 4.34(b) of the Regulations (
Anyone may obtain an extension of time for these deadlines from the Commission only upon a showing of good cause or extraordinary circumstances in accordance with 18 CFR 385.2008.
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
o.
The Federal Energy Regulatory Commission hereby gives notice that on March 14, 2003, members of its staff will attend the New England Transmission Cost Allocation Stakeholder Workshop #4, concerning mechanisms for the allocation of transmission costs. The staff's attendance is part of the Commission's ongoing outreach efforts. The meeting will be held on March 14, 2003 at 10 a.m. at the Swissotel, 1 Avenue de Lafayette, Boston, MA 02111. This meeting is open to the public. Further information about the meeting and a copy of the registration form is available at
The meeting may discuss matters at issue in Docket Nos. ER02-2330,
For more information, contact David Kathan, Office of Markets, Tariffs and Rates, Federal Energy Regulatory Commission at (202) 502-6404 or
Petitions for Reconsideration have been filed in the Commission's rulemaking proceedings listed in this public notice and published pursuant to 47 CFR 1.429(e). The full text of this document is available for viewing and copying Room CY-A257, 445 12th Street, SW., Washington DC or may be purchased from the Commission's copy contractor, Qualex International (202) 863-2893. Oppositions to these petitions must be filed by April 1, 2003. See § 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1)). Replies to an opposition must be filed within 10 days after the time for filing oppositions has expired.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Currently, the FDIC is soliciting comments concerning the following collections of information titled: (1) Application Pursuant to section 19 of the Federal Deposit Insurance Act; and (2) Activities and Investments of Insured State Banks.
Comments must be submitted on or before May 16, 2003.
Interested parties are invited to submit written comments to Tamara R. Manly, Management Analyst (Consumer and Compliance Unit), (202) 898-7453, Legal Division, Room MB-3109, Attention: Comments/Legal, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. All comments should refer to the OMB control number. Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7 a.m. and 5 p.m.; Internet address:
A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Joseph F. Lackey, Jr., Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10236, Washington, DC 20503.
Tamara R. Manly, at the address identified above.
Proposal to renew the following currently approved collections of information:
1.
2.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the collection should be modified prior to submission to OMB for review and approval. Comments submitted in response to this notice also will be summarized or included in the FDIC's requests to OMB for renewal of these collections. All comments will become a matter of public record.
Federal Deposit Insurance Corporation
Board of Governors of the Federal Reserve System
Notice
Background. Notice is hereby given of the final approval of proposed information collections by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the OMB 83-I's and supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer Cindy Ayouch--Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202-452-3829). OMB Desk Officer Joseph Lackey--Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
1.
Small businesses are not affected.
Small businesses are not affected.
Board of Governors of the Federal Reserve System, March 4, 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 March 31, 2003.
Board of Governors of the Federal Reserve System, March 4, 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 March 31, 2003.
Board of Governors of the Federal Reserve System, March 11, 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
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 April 10, 2003.
Board of Governors of the Federal Reserve System, March 4, 2003.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 31, 2003.
Board of Governors of the Federal Reserve System, March 4, 2003.
On January 29, 2003, the Commission's amended Telemarketing Sales Rule, 16 CFR Part 310 (“Rule”), was published in the
The Centers for Disease Control and Prevention (CDC) announces the intent to award fiscal year (FY) 2003 funds for a cooperative agreement program for the expansion of HIV/AIDS, STD and TB laboratory activities in the Republic of South Africa. The Catalog of Federal Domestic Assistance Number for this program is 93.941.
Assistance will be provided only to the National Institute of Communicable Diseases (NICD) in South Africa. NICD has the legal authority, expertise, and capacity to perform the key public health role of monitoring communicable diseases such as AIDS, sexually transmitted diseases, and tuberculosis in South Africa.
Approximately $500,000 is available in FY 2003 to fund this award. It is expected that the award will begin on or about March 1, 2003, and will be made for a 12-month budget period within a project period of up to five years. Funding estimates may change.
For general comments or questions about this announcement, contact: Technical Information Management,
For technical questions about this program, contact: David M. Allen, M.D., M.P.H., CDC Global AIDS Program, U.S. Embassy, P.O. Box 9536, Pretoria, South Africa 0001, Telephone: 27 12 346 0170, E-mail:
In accordance with section l0(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following committee meeting.
8:30 a.m.—12 p.m., May 16, 2003.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (the PRA).
Fax written comments on the information collection provisions by April 16, 2003.
Fax written comments on the information collection provisions to the Office of Information and Regulatory Affairs, OMB, Attn: Stuart Shapiro, Desk Officer for FDA, FAX 202-395-6974, or electronically mail comments to sshapiro@omb.eop.gov.
Karen L. Nelson, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA is requesting OMB approval under the PRA (44 U.S.C. 3501—3520) for the labeling requirements for aluminum content in large volume parenterals (LVPs), small volume parenterals (SVPs), and pharmacy bulk packages (PBPs) used in total parenteral nutrition (TPN). As explained in the final rule on aluminum content labeling requirements published in the
Aluminum toxicity is difficult to identify in infants because few reliable techniques are available to evaluate bone metabolism in premature infants. Techniques used to evaluate the effects of aluminum on bone in adults cannot be used in premature infants. Although aluminum toxicity is not commonly detected clinically, it can be serious in selected patient populations, such as neonates, and may be more common than is recognized.
FDA amended its regulations to add labeling requirements for aluminum content in LVPs, SVPs, and PBPs used in TPN. FDA specified an upper limit of aluminum permitted in LVPs and required applicants to submit to FDA validated assay methods for determining aluminum content in parenteral drug products. The agency added these requirements because of evidence linking the use of parenteral drug products containing aluminum to morbidity and mortality among patients on TPN therapy, especially among premature neonates and patients with impaired kidney function.
The information collection reporting requirements resulting from this rulemaking are as follows:
21 CFR 201.323(b)—Requires that the package insert of all LVPs used in TPN therapy state that the drug product
21 CFR 201.323(c)—Requires that the maximum level of aluminum present at expiry be stated on the immediate container label of all SVP drug products and PBPs used in the preparation of TPN solutions. The aluminum content must be stated as prescribed in the regulation. The immediate container label of all SVP drug products and PBPs that are lyophilized powders used in the preparation of TPN solutions must contain the statement prescribed in the regulation.
21 CFR 201.323(d)—Requires that the package insert for all LVPs, SVPs, and PBPs used in TPN contain a warning statement, prescribed in the regulation, intended for patients with impaired kidney function and for neonates receiving TPN therapy. This information must be contained in the “Warnings” section of the labeling.
21 CFR 201.323(e)—Requires that applicants and manufacturers must use validated assay methods to determine the aluminum content in parenteral drug products. The assay methods must comply with current good manufacturing practice requirements. Applicants must submit to FDA both validation of the method used and release data for several batches. Manufacturers of parenteral drug products not subject to an approved application must make assay methodology available to FDA during inspections. Holders of pending applications must submit an amendment to the application.
Compliance with the information collection burdens under §201.323(b), (c), and (d) (21 CFR 201.323(b), (c), and (d)) consists of submitting application supplements to FDA containing the revised labeling for each product. Based on data concerning the number of applications for LVPs, SVPs, and PBPs used in TPN received by the agency, FDA estimates that the labeling for approximately 200 products will be changed under §201.323(b), (c), and (d). FDA estimates that it will take approximately 14 hours to prepare and submit to FDA each labeling change. FDA estimates that approximately 65 respondents will each submit 1 validated assay method annually under §201.323(e). FDA estimates that it will take approximately 14 hours to prepare and submit to FDA each validated assay.
In the
The burdens can be charted as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electric comments on the collection of information by May 16, 2003.
Submit electronic comments on the collection of information to
Karen Nelson, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
FDA is requesting OMB approval for the reporting requirements contained in the FDA regulation entitled “Environmental Impact Considerations.”
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347), states national environmental objectives and imposes upon each Federal agency the duty to consider the environmental effects of its actions. Section 102(2)(C) of NEPA requires the preparation of an environmental impact statement (EIS) for every major Federal action that will significantly affect the quality of the human environment.
FDA's NEPA regulations are at part 25 (21 CFR part 25). All applications or petitions requesting agency action require the submission of a claim for a categorical exclusion or an environmental assessment (EA). A categorical exclusion applies to certain classes of FDA-regulated actions that usually have little or no potential to cause significant environmental effects and are excluded from the requirements to prepare an EA or EIS. Section 25.15(a) and (d) specifies the procedures for submitting to FDA a claim for a categorical exclusion. Extraordinary circumstances (§ 25.21), which may result in significant environmental impacts, may exist for some actions that are usually categorically excluded. An EA provides information that is used to determine whether an FDA action could result in a significant environmental impact. Section 25.40(a) and (c) specifies the content requirements for EAs for nonexcluded actions.
This collection of information is used by FDA to assess the environmental impact of agency actions and to ensure that the public is informed of environmental analyses. Firms wishing to manufacture and market substances regulated under statutes for which FDA is responsible must, in most instances, submit applications requesting approval. Environmental information must be included in such applications for the purpose of determining whether the proposed action may have a significant impact on the environment. Where significant adverse effects cannot be avoided, the agency uses the submitted information as the basis for preparing and circulating to the public an EIS, made available through a
Under 21 CFR 312.23(a)(7)(iv)(e), 314.50(d)(1)(iii), and 314.94(a)(9)(i), each investigational new drug application (IND), new drug application (NDA), and abbreviated new drug application (ANDA) must contain a claim for categorical exclusion under § 25.30 or § 25.31 or an EA under § 25.40. In 2002, FDA received 2,374 INDs from 1,809 sponsors, 109 NDAs from 79 applicants, 2,575 supplements to NDAs from 276 applicants, 392 ANDAs from 107 applicants, and 3,343 supplements to ANDAs from 222 applicants. FDA estimates that it receives approximately 8,771 claims for categorical exclusions as required under § 25.15(a) and (d) and 22 EAs as required under § 25.40(a) and (c). Based on information provided by the pharmaceutical industry, FDA estimates that it takes sponsors or applicants approximately 8 hours to prepare a claim for a categorical exclusion and approximately 3,400 hours to prepare an EA.
Under 21 CFR 171.1, 71.1, 170.39, and 170.100, food additive petitions, color additive petitions, requests for exemption from regulation as a food additive, and submission of a premarket notification for a food contact substance must contain a claim of categorical exclusion under § 25.30 or § 25.32 or an EA under § 25.40. In 2002, FDA received 12 food additive petitions and 106 food contact substance notifications. FDA estimates that it received approximately 87 claims of categorical exclusions as required under § 25.15(a) and (d) and 31 EAs as required under § 25.40(a) and (c). FDA estimates that it takes petitioners or requestors approximately 8 hours to prepare a claim of categorical exclusion and approximately 210 hours to prepare an EA.
Under 21 CFR 814.20(b)(11), premarket approvals (PMAs) (original PMAs and supplements) must contain a claim for categorical exclusion under § 25.30 or §25.34 or an EA under § 25.40. In 1998, FDA received 568 claims (original PMAs and supplements) for categorical exclusions as required under § 25.15(a) and (d), and 0 EAs as required under § 25.40(a) and (c). Based on information provided by less than 10 sponsors, FDA estimates that it takes approximately less than 1 hour to prepare a claim for a categorical exclusion and an unknown number of hours to prepare an EA.
Under 21 CFR 312.23(a)(7)(iv)(e) and 601.2(a), IND and biologics license applications (BLAs) must contain a claim for categorical exclusion under § 25.30 or § 25.31 or an EA under § 25.40. In 2001, FDA received 535 INDs from 376 sponsors, 80 BLAs from 22 applicants, and 837 BLA supplements to license applications from 168 applicants. FDA estimates that approximately 10 percent of these supplements would be submitted with a claim for categorical exclusion or an EA.
FDA estimates that it received approximately 699 claims for categorical exclusion as required under § 25.15(a) and (d), and 2 EAs as required under § 25.40(a) and (c). Based on information provided by industry, FDA estimates that it takes sponsors and applicants approximately 8 hours to prepare a claim for categorical exclusion and approximately 3,400 hours to prepare an EA for a biological product.
Under 21 CFR 514.1(b)(14), new animal drug applications (NADAs) and ANADAs, 514.8(a)(1), supplemental NADAs and ANADAs, 511.1(b)(10) investigational new animal drug applications (INADs), 570.35(c)(1)(viii) generally recognized as safe (GRAS) affirmation petitions, and 571.1(c) food additive petitions must contain a claim for categorical exclusion under § 25.30 or § 25.33 or an EA under § 25.40. Since the last OMB approval of these collections of information, FDA's Center of Veterinary Medicine has received approximately 547 claims for categorical exclusion as required under § 25.15(a) and (d) and 19 EAs as required under § 25.40(a) and (c). Based on information provided by industry, FDA estimates that it takes sponsors/applicants approximately 8 hours to prepare a claim for a categorical exclusion and an average of 2,160 hours to prepare an EA.
Based on information provided by industry, FDA estimates that the combined burden for the Environmental Impact Considerations is as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by April 16, 2003.
Fax written comments on the collection of information to the Office of Information and Regulatory Affairs, OMB, Attn: Stuart Shapiro, Desk Officer for FDA, FAX 202-395-6974, or electronically mail comments to
Peggy Robbins, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 903(d)(2) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 393(d)(2)), the Commissioner of Food and Drugs is authorized to implement general powers (including conducting research) to carry out effectively FDA's mission. Section 510 of the act (21 U.S.C. 360) requires that domestic establishments engaged in the manufacture, preparation, propagation, compounding, assembly, or processing of medical devices intended for human use and commercial distribution register their establishments and list the devices they manufacture with FDA. Section 522 of the act (21 U.S.C. 360l) authorizes FDA to require manufacturers to conduct postmarket surveillance of medical devices. Section 705(b) of the act (21 U.S.C. 375(b)) authorizes FDA to collect and disseminate information regarding medical products or cosmetics in situations involving imminent danger to health, or gross deception of the consumer. These sections of the act enable FDA to enhance consumer protection from risks associated with medical devices usage that are not foreseen or apparent during the premarket notification and review process.
Subsequent to the events of September 11, 2001, FDA began planning for handling device-related issues related to counterterrorism. One of the activities related to planning for addressing terrorism-related medical device shortages is that FDA, working with medical experts and medical device industry organizations, developed a medical device formulary that identifies which medical devices would be needed in responding to terrorist incidents. The National Pharmaceutical Stockpile Program managed by the Centers for Disease Control appears to have not given adequate consideration to medical devices. Therefore, FDA has developed a plan to ensure adequate availability of medical devices in case of terrorist incidents.
Most particularly, consumable supplies or disposable devices are supplied through large regional distributors. Adequate supplies should be available through these existing commercial supply chains. Problems in supplying these items will be due to logistics. In an emergency, FDA plans to ensure adequate availability of these types of devices by working with industry/distributor organizations. These organizations have actively pursued working relationships with appropriate government agencies to facilitate adequate response in emergency situations.
However, there are more sophisticated or specialized devices, for example, ventilators, defibrillators, and portable x-ray machines are sold directly by the manufacturer but are not sold through independent distributors. For these devices, FDA plans to maintain a database of device manufacturers so that specific contact information can be supplied to emergency response personnel as needed. FDA has identified 17 of these devices and has identified 205 manufacturers.
FDA estimates the burden of this collection of information as follows:
FDA has based these estimates on conversations with industry and trade association representatives and from internal FDA experience and estimates.
The total number of medical device manufacturers regulated by FDA is estimated to be 70,000. Because most of the medical devices which might be needed in a terrorist attack are available through regular commercial channels, FDA focused this collection of information on the 250 manufacturers who manufacture 17 medical devices. Therefore, FDA estimates that approximately 150 manufacturers would be contacted in a 1-year period. It is also estimated from FDA experience that the survey will take approximately 20 to 30 minutes to complete over the telephone.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written and electronic comments on the collection of information by May 16, 2003.
Submit electronic comments on the collection of information to
Peggy Robbins, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA has the statutory authority under section 304(g) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 334(g)), to detain during establishment inspections devices that are believed to be adulterated or misbranded. FDA issued a final rule that published in the
FDA also has the statutory authority under section 516 of the act (21 U.S.C. 360f) to ban devices that present substantial deception or an unreasonable and substantial risk of illness or injury. The final rule for banned devices that published in the
Respondents to this collection of information are those manufacturers,
FDA estimates the burden of this collection of information as follows:
Over the past several years, there has been an average of less than one new administrative detention action per year. Each administrative detention will have varying amounts of data and information that must be maintained. Historically, the Center for Devices and Radiological Health has had very few or no annual responses for this information collection and normally reports one response per year.
FDA's estimate of the burden under the administrative detention provision is based on FDA's discussion with one of the three firms whose devices had been detained.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Blood Establishment Registration and Product Listing, Form FDA 2830” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is amending its determination regarding the regulatory review period for purposes of patent extension for VITREON that appeared in the
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.
In its application for patent term extension, the applicant claimed November 10, 1989, as the date the investigational new drug (IND) application for VITREON (IND 33,858) was initially submitted. FDA records showed that IND 33,858
FDA reviewed its records and confirmed that IND 33,858 became effective on November 10, 1989. This application was subsequently transferred to CDRH because the agency decided to regulate the product as a device rather than a drug. Though the transfer of IND 33,858 to IDE G900050 occurred for administrative reasons the application was sufficiently complete to permit a substantive review. For this reason, FDA now accepts the date of November 10, 1989, submitted by the applicant in its request, as the date that the investigational application for VITREON became effective. Therefore, the applicable regulatory review period for the VITREON application is 2,883 days. Of this time, 757 days occurred during the testing phase of the regulatory review period, while 2,126 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 1,826 days of patent term extension.
Any interested person may petition FDA, on or before September 15, 2003, for a determination regarding whether the applicant for extension acted with due diligence during the regulatory review period. To meet its burden, the petition must contain sufficient facts to merit an FDA investigation. (See H. Rept. 857, part 1, 98th Cong., 2d sess., pp. 41-42, 1984.) Petitions should be in the format specified in 21 CFR 10.30.
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 one copy. Comments 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.
Office of the Chief Information Officer, HUD.
Notice of proposed information collection.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for emergency review and approval, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments must be received within fourteen (14) days from the date of this Notice. Comments should refer to the proposal by name/or OMB approval number) and should be sent to: Lauren Wittenberg, HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; e-mail:
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This Notice informs the public that the U.S. Department of Housing and Urban Development (HUD) has submitted to OMB, for emergency processing, a proposed revision to the currently approved information collection for selecting applicants for the Fair Housing Initiatives (FHIP) Program grants.
This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by April 16, 2003.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
The public is invited to comment on the following application(s) for a permit to conduct certain activities with endangered species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973,
The applicant requests permits to export captive-born tigers (
The applicant requests a permit to export three captive-born tigers (
The applicant requests renewal of a permit to authorize interstate and foreign commerce, export, and cull of excess male barasingha (
The applicant requests a permit to authorize the transfer in interstate commerce of three sub-adult, captive-bred Komodo monitors (
The applicant requests a permit to import biological samples collected from maned wolves (
The applicant requests renewal of a permit to import, export and reexport live Mexican or lobo wolves (
The public is invited to comment on the following applications for a permit to conduct certain activities with marine mammals. The applications were submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Concurrent with the publication of this notice in the
The applicant requests a permit to import a polar bear (
The U.S. Fish and Wildlife Service has information collection approval from OMB through March 31, 2004, OMB Control Number 1018-0093. Federal agencies may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a current valid OMB control number.
Fish and Wildlife Service, Interior.
Notice of document availability.
The U.S. Fish and Wildlife Service (Service) announces availability for public review of the draft recovery plan for the Mead's milkweed, a species that is federally listed as threatened under the Endangered Species Act of 1973 (Act). The purpose of this plan is to recover this species in order that it can be removed from the list of Threatened and Endangered Species. This species occurs or may occur on public and private land in Illinois, Indiana, Iowa, Kansas, Missouri, and Wisconsin. The Service solicits review and comment from the public on this draft plan.
Comments on the draft recovery plan must be received on or before May 16, 2003.
Persons wishing to review the draft recovery plan may obtain a copy by contacting the Field Supervisor, U.S. Fish and Wildlife Service, Chicago, Illinois, Ecological Services Field Office, 1250 South Grove Avenue, Suite 103, Barrington, Illinois 60010-5091 or by accessing the Web site:
Mr. Kristopher Lah, (847) 381-2253. TTY users contact the Federal Relay Service at (800) 877-8339.
Restoring an endangered or threatened animal or plant to the point where it is again a secure self-sustaining member of its ecosystem is a primary goal of the Service's endangered species program. To help guide the recovery effort, the Service is working to prepare recovery plans for most of the Federally listed threatened and endangered species native to the United States. Recovery plans describe actions considered necessary for conservation of the species, establish criteria for reclassification and delisting, and provide estimates of the time and costs for implementing the recovery measures needed.
The Act requires the development of recovery plans for listed species unless such a plan would not promote the conservation of a particular species. Section 4(f) of the Act, as amended in 1988, requires public notice and opportunity for public review and comment be provided during recovery plan development. The Service will consider all information presented during a public comment period prior to approval of each new or revised recovery plan. The Service and other Federal agencies will also take these comments into consideration in the course of implementing approved recovery plans.
The Mead's milkweed was listed as threatened on September 1, 1988. The species is known to persist at 171 sites in 34 counties in eastern Kansas, Missouri, south-central Iowa, and southern Illinois. Populations no longer occur in Wisconsin and Indiana. Seventy-five percent of the Mead's milkweed populations are in the Osage Plains Physiographic Region in Kansas and Missouri. The remainder of the populations occur in the Shawnee Hills of Illinois; the Southern Iowa Drift Plain in Iowa; the Glaciated Plains, Ozark Border, Ozark Springfield Plateau, and the Ozark-St. Francois Mountains of Missouri; and the Glaciated Physiographic Region of Kansas. Mead's milkweed populations have been eliminated by wide-scale agriculture in the eastern part of the species' range. Many large populations occur in private hay meadows where a century of annual mowing, which prevents sexual reproduction, has severely reduced genetic diversity. Among the surviving populations in eastern Missouri, Illinois and Iowa, most apparently consist of a few genetically invariant clones that are incapable of sexual reproduction. Population restoration efforts are being made in Illinois, Indiana, and Wisconsin by introducing Mead's milkweed into suitable habitat.
Mead's milkweed occurs primarily in tallgrass prairie, and occasionally in thin-soil glades or barrens. This plant is essentially restricted to late-successional prairie habitat, which has never been plowed and only lightly grazed, or hay meadows that are cropped annually for hay. Plants reproduce sexually by seed and spread vegetatively by rhizomes, especially under midsummer haymowing regimes. As with other native milkweeds, Mead's is either self-incompatible or subject to severe inbreeding depression. Mead's milkweed populations that are managed by prescribed burning experience an increase in flowering, reproduction, and seedling establishment and are more genetically diverse than sites that are mowed.
In order to accomplish recovery, the following actions are recommended in
Recovery will be achieved, and the species may be removed from the list of Threatened and Endangered Species when the following criteria are met: (1) 26 populations are distributed across plant communities and physiographic regions within the historic range of the species, (2) each of these 26 populations is highly viable, and (3) monitoring data indicates that these populations have been stable or increasing for 15 years.
The Service solicits written comments on the recovery plan described. All comments received by the date specified will be considered prior to approval of the plan. Written comments and materials regarding the plan should be sent to the Field Supervisor, Ecological Services Field Office (see
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Fish and Wildlife Service, Interior.
Notice of availability.
This notice advises the public and other agencies of the availability of a draft Environmental Assessment (EA)/Habitat Conservation Plan (HCP) and Incidental Take Permit (ITP) application for review and comment. The draft EA/HCP and ITP application were submitted to the U.S. Fish and Wildlife Service (Service) by the Long Point Homeowner's Association proposing residential development of the Long Point Subdivision on Kelleys Island, Erie County, Ohio. Federally-threatened Lake Erie water snakes (
Written comments must be received on or before May 16, 2003.
Written comments can be mailed to the address or fax number below. Electronic mail comments should be submitted to:
Mr. Peter Fasbender, Regional HCP Coordinator, Telephone: (612) 713-5343, or e-mail
The draft EA/HCP is available for public review and comment for a period of 60 days. This notice is provided pursuant to section 10(a) of the Endangered Species Act and National Environmental Policy Act (NEPA) regulations (40 CFR 1506.6). Copies of the documents can be obtained as indicated in the
All comments received from individuals become part of the official public record. Requests for such comments will be handled in accordance with the Freedom of Information Act and the Council on Environmental Quality's NEPA regulations [40 CFR 1506.6(f)]. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. If a respondent wishes us to withhold his/her name and/or address, this must be stated prominently at the beginning of the comment.
Section 9 of the Endangered Species Act (Act) and Federal regulations prohibit “take” of fish or wildlife species listed as endangered or threatened. Take of listed fish or wildlife is defined under the Act to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct (16 U.S.C. 1538). Harm may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering [50 CFR 17.3(c)]. The Service may under limited circumstances issue permits to take listed species, provided such take is incidental to, and not the purpose of, an otherwise lawful activity. Regulations governing permits for endangered species are found in 50 CFR 17.22.
The Long Point Homeowner's Association proposes to develop the 15-acre Long Point Subdivision on Kelleys Island, Erie County, Ohio. The Lake Erie water snake and its habitat occur on the 15-acre tract. Within the HCP boundary, 7 acres will be cleared and 6.1 acres permanently maintained for the proposed development of the seven residential lots known as the Long Point Subdivision. Incidental take of Lake Erie water snakes is expected to occur due to the loss and degradation of sheltering and hibernation habitat and due to the increase in human activity in the project area. Loss of suitable habitat would
The purpose of the HCP is to ensure incidental take will be minimized and mitigated to the maximum extent practicable and will not appreciably reduce the likelihood of the survival and recovery of this species in the wild. The Long Point Homeowner's Association designed the HCP in consultation with the Service to ensure the project area will continue to support suitable habitat for the species, while allowing for incidental take of Lake Erie water snakes from the proposed activities. Measures in the HCP designed to avoid, minimize, and mitigate the impacts of the proposed action on Lake Erie water snakes include: (1) Seasonal and temperature restrictions on ground disturbing activities including construction and mowing; (2) establishment of a shoreline buffer area to conserve habitat; (3) restrictions on pesticide and fertilizer use; (4) construction of artificial hibernacula; (5) restrictions on size and placement of structures including residences, garages, decks, driveways, and septic systems; and (6) monitoring the Lake Erie water snake population response to the proposed construction and mitigation for 15 years.
The Proposed Action consists of issuing an ITP and implementation of the HCP. The draft EA considers three action alternatives and the “No Action” alternative. The NEPA process will be completed after the comment period, at which time the Service will evaluate the permit application (if appropriate to the selected alternative), the HCP, and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. If the requirements are met, the Service will issue a permit to the Long Point Homeowner's Association for the incidental take of Lake Erie water snakes associated with the proposed activities on Kelleys Island, Erie County, Ohio. The final permit decision will be made no sooner than 60 days from the date of this notice.
The area encompassed by the HCP may contain facilities eligible to be listed on the National Register of Historic Places and other historical or archeological resources may be present. The National Historic Preservation Act and other laws require these properties and resources be identified and considered in project planning. The public is requested to inform the Service of concerns about archeological sites, buildings and structures, historic events, sacred and traditional areas, and other historic preservation concerns.
16 U.S.C. 1531,
Fish and Wildlife Service, Interior.
Notice of issuance of permit for marine mammals.
The following permits were issued.
Documents and other information submitted for these applications are available for review by any party who submits a written request to the U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax (703) 358-2281.
Division of Management Authority, telephone 703/358-2104.
On December 24, 2002, a notice was published in the
Notice is hereby given that on February 13, 2003, as authorized by the provisions of the Marine Mammal Protection Act of 1972,
On January 15, 2003, a notice was published in the
Notice is hereby given that on February 14, 2003, as authorized by the provisions of the Marine Mammal Protection Act of 1972,
On December 11, 2002, a notice was published in the
Notice is hereby given that on February 27, 2003, as authorized by the provisions of the Marine Mammal Protection Act of 1972,
Bureau of Land Management, Interior.
Announcement of meeting.
The Bureau of Land Management (BLM) announces that the Wild Horse and Burro Advisory Board will conduct a meeting on matters pertaining to management and protection of wild, free-roaming horses and burros on the Nation's public lands.
The Advisory Board will meet Monday, April 7, 2003 from 8 a.m. to 5 p.m. local time, and on Tuesday, April 8, 2003 from 8 a.m. to 3 p.m. local time.
The Advisory Board will meet at the Four Points Sheraton Hotel, 10220 N. Metro Parkway East, Phoenix, AZ.
Written comments pertaining to the Advisory Board meeting should be sent
Janet Nordin, Wild Horse and Burro Public Outreach Specialist, (775) 861-6583. Individuals who use a telecommunications device for the deaf (TDD) may reach
Under the authority of 43 CFR part 1784, the Wild Horse and Burro Advisory Board advises the Secretary of the Interior, the Director of the BLM, the Secretary of Agriculture, and the Chief, Forest Service, on matters pertaining to management and protection of wild, free-roaming horses and burros on the Nation's public lands. The tentative agenda for the meeting is:
The meeting site is accessible to individuals with disabilities. An individual with a disability needing an auxiliary aid or service to participate in the meeting, such as interpreting service, assistive listening device, or materials in an alternate format, must notify the person listed under
The Federal advisory committee management regulations [41 CFR 101-6.1015(b),] require BLM to publish in the
Members of the public may make oral statements to the Advisory Board on April 7, 2003, at the appropriate point in the agenda. This opportunity is anticipated to occur at 4 p.m. local time. Persons wishing to make statements should register with the BLM by noon April 7, 2003, at the meeting location. Depending on the number of speakers, the Advisory Board may limit the length of presentations. At previous meetings, presentations have been limited to three minutes in length. Speakers should address the specific wild horse and burro-related topics listed on the agenda. Speakers must submit a written copy of their statement to the address listed in the
Participation in the Advisory Board meeting is not a prerequisite for submission of written comments. The BLM invites written comments from all interested parties. Your written comments should be specific and explain the reason for any recommendation. The BLM appreciates any and all comments, but those most useful and likely to influence decisions on management and protection of wild horses and burros are those that are either supported by quantitative information or studies or those that include citations to and analysis of applicable laws and regulations. Except for comments provided in electronic format, speakers should submit two copies of their written comments where feasible. The BLM will not necessarily consider comments received after the time indicated under the
In the event there is a request under the Freedom of Information Act (FOIA) for a copy of your comments, the BLM will make them available in their entirety, including your name and address. However, if you do not want the BLM to release your name and address in response to a FOIA request, you must state this prominently at the beginning of your comment. BLM will honor your request to the extent allowed by law. BLM will release all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, in their entirety, including names and addresses.
Speakers may transmit comments electronically via the Internet to:
Bureau of Reclamation, Interior.
Notice of extension of comment period for the Banks Lake Drawdown, Washington, draft Environmental Impact Statement.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, as amended, the Department of the Interior, Bureau of Reclamation (Reclamation), prepared a draft Environmental Impact Statement (draft EIS) to examine the impacts of alternatives to lower the minimum surface elevation for Banks Lake in August from 1,565 feet to 1,560 feet. The notice of availability appeared in 68 FR 1196-1197 on January 9, 2003.
The comment period for written comments on the draft EIS has been extended to April 11, 2003.
Written comments on the Draft EIS should be submitted to Mr. Jim Blanchard, Special Projects Officer, Bureau of Reclamation, 32 C Street, PO Box 815, Ephrata, WA 98823-0815; or by fax 509-754-0239, or by email at:
See the
Mr. Jim Blanchard, Special Projects Officer, at 509-754-0226 (relay users may dial 711). Those wishing to obtain a copy of the draft EIS in the form of a printed document or on compact disk (CD-ROM with reader included) or a summary of the draft EIS may contact Mr. Blanchard.
Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from public disclosure, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.
Copies of the DEIS are available for public review and inspection at the following locations:
• Bureau of Reclamation, U.S. Department of the Interior, Room 7455, 18th and C Streets, NW., Washington, DC 20240.
• Bureau of Reclamation, Denver Office Library, Denver Federal Center, Building 67, Room 167, Denver, Colorado 80225.
• Bureau of Reclamation, Pacific Northwest Regional Office, 1150 North Curtis Road, Suite 100, Boise, Idaho 83706-1234.
• Bureau of Reclamation, Upper Columbia Area Office, 1917 Marsh Road, Yakima, Washington 98901.
• Bureau of Reclamation, Ephrata Field Office, 32 C Street, Ephrata, Washington 98823.
• Bridgeport Community Library, Douglas County, 1206 Columbia Street, Bridgeport, WA 509-686-7281.
• Coulee City Community Library, 405 W. Main Street., Coulee City, WA 509-674-2313.
• Des Moines Library, 21620 11th Avenue S, Des Moines, WA 206-824-6066.
• East Wenatchee Community Library, Douglas County, 271 9th Street NE., East Wenatchee, WA 509-886-7404.
• Ephrata Public Library, 45 Alder NW., Ephrata, WA 509-754-3971.
• Grand Coulee Community Library, 225 Federal, Grand Coulee, WA 509-633-0972.
• Moses Lake Public Library, 418 E. 5th Avenue, Moses Lake, WA 509-765-3489.
• Quincy Community Library, 108 B Street SW., Quincy, WA 509-787-2359.
• Royal City Community Library, 356 Camelia, Royal City, WA 509-346-9281.
• Seattle Public Library, 800 Pike Street, Seattle, WA 206-386-4636.
• Soap Lake Community Library, 32 E Main, Soap Lake, WA 509-246-1313.
• Warden Community Library, 305 S Main, Warden, WA 509-349-2226.
• Wenatchee Public Library, Chelan County, 310 Douglas Street Wenatchee, WA 509-662-5021.
The DEIS is also available on the Internet at
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ's”) initial determination (“ID”) granting complainant's motion to terminate the investigation based on withdrawal of the complaint.
Mark B. Rees, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3116. Copies of the ALJ's ID and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (http://www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810.
On August 14, 2002, the Commission instituted this investigation based on a supplemented complaint (“complaint”) filed by Bose Corporation (“complainant”) against Sun Coast Merchandise Corporation (“respondent”). The complaint alleged violations of section 337 of the Tariff Act of 1930 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain radios and components thereof by reason of infringement of U.S. Trademark Registration No. 2,299,158. 67 FR 53007 (2002).
On February 4, 2003, after the private parties reached a confidential settlement agreement (“Settlement”), complainant filed a Motion to Terminate Investigation (“motion”). On February 10, 2003, complainant supplemented its motion with a copy of the Settlement. Respondent did not oppose the motion or the supplement's filing. On February 14, 2003, the Commission investigative attorney filed a response in support of the motion and the investigation's termination. On February 21, 2003, the ALJ issued an ID (Order No. 22) granting the motion. No petitions for review of the ID were filed.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
Judicial Conference of the United States, Advisory Committee on Rules of Bankruptcy Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Bankruptcy Procedure will hold a two-day meeting. The meeting will be open to public observation but not participation.
April 3-4, 2003.
8:30 a.m. to 5 p.m.
Longboat Key Club, 301 Gulf of Mexico Drive, Longboat Key, Florida.
John K. Rabeij, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Judicial Conference of the United States, Advisory Committee on Rules of Evidence.
Notice of open meeting.
the Advisory Committee on Rules of Evidence will hold a one-day meeting. The meeting will be open to public observation but not participation.
April 25, 2003.
8:30 a.m. to 5 p.m.
Thurgood Marshall Federal Judiciary Building, Judicial Conference Center, One Columbus Circle, NE., Washington, DC
John K. Rabiej, Chief, Rules Committee of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Judicial Conference of the United States, Advisory Committee on Rules of Criminal Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Criminal Procedure will hold a two-day meeting. The meeting will be open to public observation but not participation.
April 28-29, 2003.
8:30 a.m. to 5 p.m.
Fess Parker's Double Tree, 633 East Cabrillo Boulevard, Santa Barbara, California.
John K. Rabiej, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Judicial Conference of the United States, Advisory Committee on Rules of Civil Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Civil Procedure will hold a two-day meeting. The meeting will be open to public observation but not participation.
May 1-2, 2003.
May 1 (8:30 a.m. to 5 p.m.), May 2 (8:30 a.m. to 12 noon).
Thurgood Marshall Federal Judiciary Building, Judicial Conference Center, One Columbus Circle, NE., Washington, DC.
John K. Rabiej, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Judicial Conference of the United States, Advisory Committee on Rules of Appellate Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Appellate Procedure will hold a one-day meeting. The meeting will be open to public observation but not participation.
May 15, 2003.
8:30 a.m. to 5 p.m.
Thurgood Marshall Federal Judiciary Building, Judicial Conference Center, One Columbus Circle, NE., Washington, DC.
John K. Rabiej, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
The Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with emergency review procedures of the Paperwork Reduction Act of 1995. OMB approval has been requested by March 27, 2003. The proposed information collection is published to obtain comments from the public and affected agencies. If granted, the emergency approval is only valid for 180 days. Comments should be directed to OMB, Office of Information and Regulation Affairs, Attention: Department of Justice Desk Officer (202) 395-6466, Washington, DC 20503.
During the first 60 days of this same review period, a regular review of this information collection is also being undertaken. All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, Attn: Megan Morehouse, Public Safety Branch, 800 K Street, NW., Suite 710, Washington, DC 20001.
Request written comments and suggestions from the public and affected agencies concerning the proposed
(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, United States Department of Justice, 601 D Street, NW., Patrick Henry Building, Suite 1600, NW., Washington, DC 20530.
60-day notice of information collection under review: extension of a currently approved collection; application and permit for temporary importation of firearms and ammunition by nonimmigrant aliens.
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 May 16, 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 Thomas R. Stewart, Chief, Firearms and Explosives Import Branch, 650 Massachusetts Avenue, NW., Washington, DC 20226.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: 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.
National Science Foundation.
Submission for OMB review; comment request.
Under the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3501 et seq.), and as part of its continuing effort to reduce paperwork and respondent burden, the National Science Foundation (NSF) is inviting the general public and other Federal agencies to comment on this proposed continuing information collection. This is the second notice for public comment; the first was published in the
Comments regarding these information collections are best assured of having their full effect if received by OMB within 30 days of publication in the
Written comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of NSF, including whether the information will have practical utility; (b) the accuracy of NSF's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; or (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for National Science Foundation, 725 17th Street, NW., Room 10235, Washington, DC 20503, and to Teresa R. Pierce, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 295, Arlington, Virginia 22230 or send e-mail to
Teresa R. Pierce, NSF Reports Clearance Officer at (703) 292-7555 or send e-mail to
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The 2003 NSCG will be the baseline survey for NSCG surveys for the rest of the decade. The purpose of this longitudinal study is to provide national estimates on the science and engineering workforce and changes in employment, education, and demographic characteristics. The study is one of three components of the Scientists and Engineers Statistical Data System (SESTAT), which produces national estimates of the size and characteristics of the nation's science and engineering population.
The National Science Foundation Act of 1950, as subsequently amended, includes a statutory charge to “* * * provide a central clearinghouse for the collection, interpretation, and analysis of data on scientific and engineering resources, and to provide a source of information for policy formulation by other agencies of the Federal Government.” The NSCG is designed to comply with these mandates by providing information on the supply and utilization of the nation's scientists and engineers. Collected data will be used to produce estimates of the characteristics of these individuals. They will also provide necessary input into the SESTAT labor force data system, which produces national estimates of the size and characteristics of the country's science and engineering population. The Foundation uses this information to prepare congressionally mandated reports such as
The Bureau of the Census, as in the past, will conduct the study for NSF. Questionnaires will be mailed in October 2003 and nonrespondents to the mail questionnaire will be followed by computer-assisted interviewing. The survey will be collected in conformance with the Privacy Act of 1974 and the individual's response to the survey is voluntary. NSF will insure that all information collected will be kept strictly confidential and will be used only for research or statistical purposes, analyzing data, and preparing scientific reports and articles.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
A.M.: Introductions and Updates—Office of Budget, Finance, and Award Management and Office of Information and Resource Management activities.
Presentation and Discussion—NSTC Sub-Committee on Research Business Models; Information Technology Security.
P.M.: Presentation and Discussion—Emergency Preparedness: Meeting with NSF Deputy Director; Committee Discussion; Planning for next meeting; feedback; other business.
Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to OMB and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Information pertaining to the requirement to be submitted:
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Submit, by May 16, 2003, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F23, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide web site:
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Brenda Jo. Shelton, U.S. Nuclear Regulatory Commission, T-6 E6, Washington, DC 20555-0001, by telephone at 301-415-7233, or by Internet electronic mail at
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering issuance of an amendment to Facility Operating License DPR-77 issued to the Sequoyah Nuclear Plant (SQN) for operation of Unit 1 located in Hamilton County, Tennessee.
The proposed amendment would revise the SQN, Unit 1, Updated Final Safety Analysis Report (UFSAR). The revision provides an alternative methodology using a Bar-Lock Mechanical Splice in lieu of the Cadweld splice used in the original design and construction of the Unit 1 concrete shield building dome. This proposed Bar-Lock mechanical splice is described in Topical Report No. 24370-TR-C-001, “Alternate Rebar Splice—Bar-Lock Mechanical Splices,” and is requested for implementation upon the restoration of the dome as part of the upcoming steam generator replacement project for SQN, Unit 1.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in title 10 of the Code of Federal Regulations (10 CFR), section 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
No. No changes in event classification, as discussed in UFSAR chapter 15, will occur due to use of the Bar-Lock couplers.
The restoration of the temporary concrete construction openings in the shield building will utilize Bar-Lock couplers to splice new rebar to the existing rebar. The shield building structure limits the release of radioactivity following an accident and protects the systems, structures, and components inside containment from external events. The accidents of interest are those that rely on the shield building to limit the release of radioactivity to the environment, and those that result from some external events. The design of the shield building is such that it is not postulated to fail and initiate an accident described in the UFSAR.
The Bar-Lock coupler qualification tests detailed in Topical Report 24370-TR-C-001 demonstrate that the Bar-Lock coupler meets the American Society of Mechanical Engineers (ASME) strength requirements and is, therefore, acceptable for use in nuclear safety-related applications. Based on these test results, it is concluded that use of the Bar-Lock couplers in restoring the temporary
Therefore, the proposed use of the Bar-Lock couplers will not significantly increase the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
No. The design of the shield building is such that it is not postulated to fail and initiate an accident described in the UFSAR. The Bar-Lock couplers are passive devices and as such will not initiate or cause an accident.
The restoration of the temporary concrete construction openings in the shield building will utilize Bar-Lock couplers to splice new rebar to the existing rebar. The Bar-Lock coupler qualification tests detailed in Topical Report 24370-TR-C-001 demonstrate that the Bar-Lock coupler meets the ASME strength requirements and is, therefore, acceptable for use in nuclear safety-related applications. Based on these test results, it is concluded that use of the Bar-Lock couplers in restoring the temporary concrete construction openings will not reduce the structural capability of the shield building. The shield building will, therefore, continue to perform its design functions as described in the SQN UFSAR.
Therefore, the possibility of a new or different accident situation occurring as a result of this condition is not created.
3. Does the proposed change involve a significant reduction in a margin of safety?
No. As indicated in the SQN UFSAR, the structural design of the shield building is in compliance with the American Concrete Institute (ACI) 318-63 building code working stress design requirements. The reinforcing steel conforms to the requirements of ASTM (American Society for Testing and Materials) A 615, Grade 60. The SQN UFSAR states that reinforcing bars were lap spliced in accordance with ACI 318-63 requirements for Strength Design.
The restoration of the temporary concrete construction openings in the shield building will utilize Bar-Lock couplers to splice new rebar to the existing rebar. The restoration of the construction openings, including use of the Bar-Lock couplers, will conform to the requirements of ACI 318. Therefore, following completion of the modification, the shield building will continue to comply with ACI 318 requirements.
In addition to conforming to ACI 318 requirements, the Bar-Lock coupler qualification tests detailed in Topical Report 24370-TR-C-001 demonstrate that the Bar-Lock coupler meets the ASME strength requirements.
Therefore, a significant reduction in the margin to safety is not created by this modification.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By April 16, 2003, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714,
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. Because of the continuing disruptions in delivery of mail to United States Government offices, it is requested that petitions for leave to intervene and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action,
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of error in Draft Environmental Impact Statement; extension of public comment period.
U.S. Nuclear Regulatory Commission (NRC) noticed in the
Since issuing the DEIS, NRC has identified an error in the DEIS. The error affects the calculation of the 1-year exposure to members of the public following hypothetical accidents at the proposed MOX facility, pit disassembly and conversion facility, and waste solidification building. The risk associated with these potential accidents is still considered to be very small. Correcting the error will not change the estimated low probability that such accidents would ever occur, but correcting the error is expected to substantially reduce these potential impacts.
NRC is revising the calculations of the 1-year public accident impacts and plans to issue errata sheets in early April to stakeholders who were mailed a copy of the DEIS. The NRC will also post the revised information on the MOX website, which is provided below. The NRC plans to discuss this issue at the above noted public meetings.
For further information regarding this notice, please contact: Tim Harris at (301) 415-6613.
For the Nuclear Regulatory Commission,
Postal Rate Commission.
Notice of Commission tours.
Postal Rate Commissioners and staff members will tour several facilities in March and April. The purpose of the tours is to observe various printing, mailing and shipping operations.
1. March 26-27, 2003: FedEx facility (Memphis, TN).
2. March 28, 2003: The Oxford Eagle (Oxford, MS).
3. April 11, 2003: AOL/Time Warner (Birmingham, AL).
4. April 15, 2003: Brookhaven/Prentiss Printers (Brookhaven, MS).
Stephen L. Sharfman, General Counsel, 202-789-6818.
The RRB currently uses the electronic AA-3cert, Application Summary and Certification process and manual Form AA-3, Application for Spouse/Divorced Spouse Annuity, to obtain the information needed to determine an applicant's entitlement to an annuity and the amount of the annuity.
The AA-3cert process obtains information from an applicant by means of an interview with an RRB field-office representative. During the interview, the field-office representative enters the information obtained into an on-line information system. Upon completion of the interview, the applicant receives Form AA-3cert, Application Summary and Certification, which summarizes the information that was provided by/or verified by the applicant, for review and signature. The RRB also uses manual Form AA-3 in instances where the RRB representative is unable to contact the applicant in person or by telephone,
The RRB estimates the burden for the collection as follows:
No changes are proposed to Form AA-3cert or Form AA-3. Completion is required to obtain a benefit. One response is requested of each respondent.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f-1 [17 CFR § 270.17f-1] under the Investment Company Act of 1940 (the “Act”) is entitled: “Custody of Securities with Members of National Securities Exchanges.” Rule 17f-1 provides that any registered management investment company (“fund”) that wishes to place its assets in the custody of a national securities exchange member may do so only under a written contract that must be ratified initially and approved annually by a majority of the fund's board of directors. The written contract also must contain certain specified provisions. In addition, the rule requires an independent public accountant to examine the fund's assets in the custody of the exchange member at least three times during the fund's fiscal year. The rule requires the written contract and the certificate of each examination to be transmitted to the Commission. The purpose of the rule is to ensure the safekeeping of fund assets.
Commission staff estimates that approximately 10 funds maintain their assets with a national securities exchange member.
Form N-17f-1 is entitled: “Certificate of Accounting of Securities and Similar Investments of a Management Investment Company in the Custody of Members of National Securities Exchanges.” Form N-17f-1 is the cover sheet for accountant examination certificates filed under rule 17f-1 of the Act. Rule 17f-1 requires the accountant's certificate of each examination be attached to form N-17f-1 and transmitted to the Commission promptly after each examination. The form facilitates the filing of the accountant's certificate, and increases the accessibility of the certificate to both Commission's staff and interested investors.
The annual burden of the rule's requirements is estimated to be approximately 27 minutes for each of the 10 funds estimated to maintain their assets with a national securities exchange member.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Compliance with the collections of information required by rule 17f-1 and Form N-17f-1 is mandatory for funds that place their assets in the custody of a national securities exchange member. Responses will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid control number.
The Commission requests written comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burdens of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Kenneth A. Fogash, Acting Associate Executive Director/CIO, Office of Information Technology, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549.
Koppers Inc. (formerly known as Koppers Industries, Inc.), a Pennsylvania corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities Exchange Act of 1934 (“Act”)
In making its decision to withdraw the Issuer's Security from the Exchange, the Issuer states that: (i) As of January 28, 2003, there were approximately 18 holders of the Security, including holders of record and those firms that hold the Security through Cede & Co.; (ii) based upon the covenants contained in the indenture under which the Security was issued, the Issuer will continue to provide to the holders of the Security information as if the Issuer were required by law to file 1934 Act reports; (iii) the Issuer is not obligated under the indenture under which the Security was issued, nor any other documents, to maintain a listing of the Security on the NYSE or any other exchange; (iv) the Issuer believes that the burden and expense of complying with requirements of the 1934 Act, particularly in view of certain of the enhanced obligations imposed by the Sarbanes-Oxley Act of 2002, upon companies whose securities are listed
The Issuer stated in its application that it has met the requirements of the NYSE rules governing an issuer's voluntary withdrawal of a security from listing and registration. The Issuer's application relates solely to the Security's withdrawal from listing on the NYSE and from registration under section 12(b) of the Act
Any interested person may, on or before April 3, 2003, submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the NYSE and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meetings during the week of March 17, 2003:
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meetings. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), (9)(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), (9)(ii) and (10), permit consideration of the scheduled matters at the Closed Meetings.
The subject matter of the Closed Meeting scheduled for Tuesday, March 18, 2003 will be:
The subject matter of the Closed Meeting scheduled for Thursday, March 20, 2003 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted, or postponed, please contact:
The Office of the Secretary at (202) 942-7070.
On May 30, 2002, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that the Exchange's marketing performance standards should help promote a better understanding of the needs of listed companies and certain member organizations of the Exchange, as well as an understanding of the specialist's function, the operations of the Exchange market, and the markets that are maintained in the issuers' stocks. In addition, the standards will help specialists to perform their functions better by receiving input on performance by issuers and member firms.
The Commission further notes that, to ensure that specialist contacts can occur without the distractions of a normal business day and that such communications will fall within the scope of permissible disclosures as provided by Exchange rules, specialists will be required to either make contacts
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to the delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to waive for thirty calendar days certain fees assessed under NASD Rule 7010(q) upon distributors for each new subscriber to Nasdaq ViewSuite products. Proposed new language is in italics; proposed deletions are in brackets.
(a)-(p) No Change.
(q) Nasdaq Data Entitlement Packages:
(1) Depth View and Power View—
(A) No Change.
(B) No Change.
(C) No Change.
(2) Total View—
(A) No Change.
(B) No Change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth below in sections A, B, and C, of the most significant aspects of such statements.
The launch of SuperMontage, Nasdaq's integrated quotation and execution system, vastly expanded Nasdaq's ability to offer market data to market participants that choose to display trading interest on Nasdaq that goes beyond the best bid and offer: Nasdaq DepthView, PowerView, and TotalView, collectively referred to as the “ViewSuite” products, offer a wide array of quotation information to market data vendors and broker/dealer distributors. DepthView shows the aggregate size, by price level, of all Nasdaq market participants' attributed and unattributed quotations/orders that are in the top five price levels in SuperMontage. PowerView bundles the Nasdaq Quotation Dissemination Service or “NQDS” and DepthView. TotalView offers the PowerView services plus all Nasdaq market participants' attributed quotations/orders that are in the top five price levels in SuperMontage, in addition to the aggregate size of all unattributed quotes/orders at each of the top five price levels.
On November 18, 2002, the Commission approved a rule proposal that established fees assessed for the ViewSuite products, which are offered exclusively through distributors.
In order to increase the availability of the ViewSuite Products within the securities industry, Nasdaq proposes to waive all fees that are incremental to the NQDS fees assessed upon distributors for new individual subscribers to each ViewSuite product for a period of up to 30 days. Nasdaq has repeatedly been asked to offer a free trial period so that potential subscribers can test the ViewSuite products before committing to subscribe. Based upon these requests, Nasdaq believes that offering a free trial period will make this data more widely available and enable ViewSuite to reach viability sooner. This fee waiver period would be applied on a rolling basis, determined by the date on which a new individual subscriber or potential individual subscriber contacts a distributor to receive access to a ViewSuite product. A new individual subscriber who has already signed a Level 1 or NQDS agreement would not be obligated to sign any additional agreement or addendum regarding the ViewSuite product(s) until and unless he or she decided to continue to subscribe to such product(s) after the expiration of the free trial period. Nasdaq believes that this waiver is fair and non-discriminatory because it applies to all potential subscribers to ViewSuite products.
The fee waiver only covers the fees assessed for the ViewSuite product(s) over and above the NQDS charges because NQDS is currently a product covered and shareable under the UTP Plan. All fees (including fee waivers) for data services covered under the UTP Plan are subject to review and approval by the UTP Plan Participants, and therefore are not solely governed by Nasdaq. Therefore, Nasdaq chooses to offer a waiver only to those fees assessed for the portion of the ViewSuite data services that are solely governed by Nasdaq.
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A of the Act,
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A(b)(5)
Nasdaq believes that the proposed rule change will not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received on the proposed rule change contained in this filing.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act
Nasdaq has requested that the Commission waive the 30-day operative delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. The Commission notes that the rule filing will establish a voluntary program available to all Nasdaq distributors that may increase the availability and distribution of market data. The voluntary program applies to market data that Nasdaq offers exclusively to distributors and not directly to individual investors. In addition, acceleration of the operative date will permit Nasdaq to establish the fee waiver program immediately. For these reasons, the Commission designates the proposal to be effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to introduce a new product known as the ACT Workstation. The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
(a)-(g) No change.
(h) The term
(i)-(k) No change.
(l) The term “Pre-alert” shall mean the alert notifying the correspondent executing broker and the clearing broker that the correspondent executing broker has equaled or exceeded 70% of [the]
(m)-(n) No change.
(o) The term “Single Trade Limit” shall mean the
(p) No change.
(a) No change.
(b)(1)-(3) No change.
(A) No change.
(B) ACT clearing brokers may utilize the ACT Risk Management functions upon execution of the ACT Participant Risk Management Agreement. Clearing brokers that utilize[d] the ACT Risk Management functions may establish for each correspondent executing broker daily Gross Dollar Thresholds and may raise or lower the thresholds on an inter-day or intra-day basis. ACT clearing brokers will receive a system alert when a correspondent executing broker equals or exceeds [its]
(C) For trades effected by a correspondent executing broker that equal or exceed [the ACT system's]
(a) No change.
(b) If a clearing broker voluntarily uses ACT risk management, the ACT system will provide the following risk management capabilities to clearing brokers that have executed an ACT Participant Risk Management Agreement:
Clearing brokers will be able to scan the trading activities of their correspondent executing brokers through a Nasdaq terminal.
Clearing brokers will be able to establish, on an inter-day or intra-day basis, gross dollar thresholds (
(B) Other ACT Risk Management Users.
[In addition to the gross dollar threshold alert, t]
Clearing brokers that access ACT through computer interface will be able to receive an end of day recap of all trade detail information of their correspondents.
Clearing brokers that access ACT through computer interface will be able to receive intra-day activity of their correspondents as it is reported.
Clearing brokers will have 15 minutes from trade report input to ACT to review any single trade executed by their correspondent executing brokers that equals or exceeds [$1,000,000]
[(g) Super Cap]
[The Super Cap is set at two times the gross dollar thresholds for purchases and sales, but in no event less than $1,000,000. When a correspondent's super cap is exceeded, notice will be furnished to ACT participants and no trade in excess of $200,000 will be accepted for ACT processing unless the clearing broker accepts the trade within 15 minutes of execution.]
(a)-(f) No change.
(g) Automated Confirmation Transaction Service
The following charges shall be paid by the participant for use of the Automated Confirmation Transaction Service (ACT):
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for its proposal and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
ACT is an automated trade reporting and reconciliation service that speeds the post-execution steps of price and volume reporting, comparison, and clearing of trades completed in Nasdaq, OTC Bulletin Board, and other over-the-counter securities. ACT handles transactions executed through Nasdaq's automated trading systems, as well as transactions negotiated over the telephone. It also manages post-execution procedures for transactions in exchange-listed securities that are traded in the Nasdaq InterMarket.
An integral part of ACT is the risk management function. The ACT risk management function provides firms that clear for other firms with the capability to establish acceptable levels of credit for their introducing firms. ACT risk management also enables clearing brokers to monitor buy/sell trading activity of their introducing firms, establish trading thresholds, allow or inhibit large trades, add or delete clearing relationships, and access a real-time database of correspondent trading activity.
On or about March 10, 2003, Nasdaq will be introducing the ACT Workstation, a new product that is designed to allow clearing firms to access the ACT risk management function without using an NWII terminal. In conjunction with the launch of the new product, Nasdaq is also making several minor modifications to the ACT risk management function, and offering certain enhancements to ACT risk management that will be available through the ACT Workstation. Following the launch of the ACT Workstation, however, ACT risk management will continue to be available through NWII terminals and WebLink ACT.
Currently, ACT risk management allows users to receive alerts when a correspondent broker's trading activity exceeds user-defined gross dollar thresholds. In addition, when a correspondent broker's trading activity exceeds a “Super Cap” equal to twice its gross dollar threshold, ACT provides notice of this event to all ACT participants and allows the clearing broker to decline trades compared through ACT that are in excess of $200,000 (known as “sizeable” trades). Nasdaq is combining the functionality of the gross dollar threshold and the Super Cap, so that the limit on sizeable trades will apply whenever a correspondent broker's trading activity exceeds its gross dollar threshold. In effect, a firm's gross dollar threshold and its Super Cap will be the same dollar amount. Nasdaq has made this change in response to requests from ACT risk management users, who view the restriction of sizeable trades as a more meaningful risk management tool than the alerts associated with gross dollar thresholds in the current system.
Users of the ACT Workstation will be able to establish gross dollar thresholds and sizeable limits for their correspondent firms that vary based on the type of security being traded by the correspondent firm (
Currently, ACT risk management imposes a “single trade limit” of $1,000,000. When a trade in excess of this amount is negotiated by a correspondent broker, its clearing broker has 15 minutes to decide whether to accept or decline the trade. If the clearing broker takes no action, the trade is automatically accepted for normal ACT processing. The ACT Workstation will allow clearing brokers to establish single trade limits that vary based on the type of security (
The ACT Workstation will also include improvements in the system's graphical user interface, such as customizable screen layouts, summary screens, and pop-up alerts. Like an NWII terminal, the ACT Workstation will connect to Nasdaq through Nasdaq's application programming interface (“API”). In fact, firms will be able to download the ACT Workstation software directly to the same equipment that currently serves as an NWII terminal. Accordingly, transition to the new product will be easy for firms to achieve.
The price for the ACT Workstation will be $525 per logon per month. However, for the first three months following the launch of the new product, Nasdaq will offer the ACT Workstation to existing NWII users as a complimentary service. This will allow current users to test the new product without having to eliminate their existing NWII terminals or pay simultaneously for both products.
Nasdaq believes that the proposal is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not:
(i) significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) 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 Association. All submissions should refer to file number SR-NASD-2003-29 and should be submitted by April 7, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq has proposed to modify and extend until December 31, 2004, the existing pilot program relating to compliance periods for the bid price criteria for Nasdaq National Market and Nasdaq SmallCap Market issuers; to eliminate the provision which permitted, on a pilot basis, certain companies that transferred to the SmallCap Market to return to the Nasdaq National Market under the continued inclusion criteria;
Below is the text of the proposed rule change. Proposed new language is italicized; proposed deletions are in brackets.
To qualify for inclusion in Nasdaq, a security of a domestic or Canadian issuer shall satisfy all applicable requirements contained in paragraphs (a) or (b), and (c) hereof.
(a)-(b) No change.
(c) In addition to the requirements contained in paragraph (a) or (b) above, and unless otherwise indicated, a security shall satisfy the following criteria for inclusion in Nasdaq:
(1)-(7) No change.
(8)(A)-(C) No change.
(D) A failure to meet the continued inclusion requirement for minimum bid price on The Nasdaq SmallCap Market shall be determined to exist only if the deficiency continues for a period of 30 consecutive business days. Upon such failure, the issuer shall be notified promptly and shall have a period of 180 calendar days from such notification to achieve compliance. If the issuer has not been deemed in compliance prior to the expiration of the 180 day compliance period, it will be afforded an additional 180 day compliance period, provided that on the 180th day following notification of this deficiency, the issuer meets any of the three criteria for initial inclusion set forth in Rule 4310(c)(2)(A) based on the issuer's most recent publicly filed financial information.
(E) No change.
(9)-(29) No change.
(d) No change.
After designation as a Nasdaq National Market security, a security must substantially meet the criteria set forth in paragraphs (a) or (b), and (c), (d), (e), (f), (g), (h) or (i) below to continue to be designated as a national market system security. A security maintaining its designation under paragraph (b) need not also be in compliance with the quantitative maintenance criteria in the Rule 4300 series.
(a) No change.
(b) Maintenance Standard 2—First Class of Common Stock, Shares or Certificates of Beneficial Interest of Trusts, Limited Partnership Interests in Foreign or Domestic Issues and American Depositary Receipts
(1)-(3) No change.
(4) Minimum bid price per share of [$3]
(5)-(6) No change.
(c)-(d) No change.
(e) Compliance Periods.
(1) No change.
(2) [For issuers subject to the $1.00 bid price requirement under Maintenance Standard 1 or the $3.00 bid price requirement under Maintenance Standard 2, a] A failure to meet the continued inclusion requirement for minimum bid price shall be determined to exist only if the deficiency continues for a period of 30 consecutive business days. Upon such failure, the issuer shall be notified promptly and shall have a period of 180 [90] calendar days from such notification to achieve compliance. Compliance can be achieved by meeting the applicable standard for a minimum of 10 consecutive business days during the
(3)-(4) No change.
(f)-(h) No change.
(i) Transfers between The Nasdaq National and SmallCap Markets For Bid Price Deficient Issuers
(1) If a National Market issuer has not been deemed in compliance prior to the expiration of [the 90 day]
(2) Following a transfer to The Nasdaq SmallCap Market pursuant to paragraph (1), a domestic or Canadian Nasdaq National Market issuer [under Maintenance Standard 1] will be afforded the remainder of [the initial]
[(3) Following a transfer to The Nasdaq SmallCap Market pursuant to paragraph (1), an issuer formerly qualifying for listing on The Nasdaq National Market under Maintenance Standard 2 or a non-Canadian foreign issuer, which is not subject to the $1 bid price requirement, may transfer back to The Nasdaq National Market without satisfying the initial inclusion criteria if it maintains compliance with the applicable bid price requirement for continued listing on The Nasdaq National Market for a minimum of 30 consecutive business days within 360 days following the notification of the initial bid price deficiency, and if it has continually maintained compliance with all other requirements for continued listing on The Nasdaq National Market since being transferred. An issuer qualifying for such a transfer pursuant to the maintenance requirements is not required to pay the entry fee set forth in Rule 4510(a) upon transferring back to The Nasdaq National Market.]
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Following the extraordinary market conditions surrounding the September 11th tragedy, Nasdaq implemented a moratorium on enforcement of its bid price rules.
After careful consideration, Nasdaq continues to believe that the bid price requirements are a valuable measure of compliance. However, Nasdaq believes that the measurement periods for the requirements should be extended and modified to provide additional flexibility to both National Market and SmallCap Market issuers that are engaged in turnaround strategies in what Nasdaq considers to be a continuing difficult and historically unique climate. Nasdaq proposes that these modifications also be subject to implementation on a pilot basis, in order to allow Nasdaq to assess the efficacy of the changes and whether it is appropriate to recommend further, more permanent action.
Specifically, this proposal would modify and extend the pilot as follows:
• Extend the bid price grace period for all National Market issuers from 90 calendar days to 180 calendar days. Pursuant to a separate rule filing,
• Maintain the initial 180-calendar-day bid price compliance period for all SmallCap Market issuers as well as the additional 180-day compliance period for SmallCap Market issuers demonstrating compliance with the core SmallCap Market initial listing criteria (
• Extend the expiration date of the pilot program from December 31, 2003, to December 31, 2004.
Nasdaq believes that this proposal is consistent with the public interest because it conditions entitlement to the extended grace periods upon compliance with heightened requirements—core financial initial listing standards,
In addition, Nasdaq proposes to change the National Market continued
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act
Nasdaq does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Nasdaq asserts that the proposed rule change is effective upon filing pursuant to Section 19(b)(3)(A) of the Act
Nasdaq has requested that the Commission waive the 30-day period, which would make the rule operative immediately. The Commission finds that it is consistent with the protection of investors and the public interest to waive the 30-day pre-operative period in this case.
At any time within 60 days of this filing, the Commission may summarily abrogate this proposal if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2003-34 and should be submitted by April 7, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Department of State.
Notice.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
The following summarizes the information collection proposal to be submitted to OMB: Type of Request: A new Internet Based Information Collection system that permits U.S. citizens who travel or reside abroad to register their destination and emergency contacts with the Department of State. This facilitates the provision of emergency assistance to U.S. citizens during crisis or disaster.
Public comments are being solicited to permit the agency to:
• Evaluate whether the proposed information collection is necessary for the proper performance of the functions of the agency.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including through the use of automated collection techniques or other forms of technology.
The Department of State announces that the Advisory Committee for the Study of Eastern Europe and the Independent States of the Former Soviet Union (Title VIII) will convene on Monday, April 28, 2003, beginning at 10 a.m. in Room 1408, U.S. Department of State, Harry S Truman Building, 2201 C Street, NW., Washington, DC.
The Advisory Committee will recommend grant recipients for the FY 2003 competition of the Program for the Study of Eastern Europe and the Independent States of the Former Soviet Union in connection with the “Research and Training for Eastern Europe and the Independent States of the Former Soviet Union Act of 1983, as amended.” The agenda will include opening statements by the Chairman and members of the committee, and, within the committee, discussion, approval, and recommendation that the Department of State negotiate grant agreements with certain “national organizations with an interest and expertise in conducting research and training concerning the countries of Eastern Europe and the independent states of the former Soviet Union,” based on the guidelines contained in the call for applications published in the
This meeting will be open to the public; however, attendance will be limited to the seating available. Entry into the Harry S Truman building is controlled and must be arranged in advance of the meeting. Those planning to attend should notify Susan Nelson, INR/RES, U.S. Department of State, (202) 736-4610 by Wednesday, April 23, 2003, providing their date of birth, Social Security Number, and any requirements for special needs. All attendees much use the 2201 C Street, NW., entrance to the building. Visitors who arrive without prior notification and without photo identification will not be admitted.
9 a.m. (EST), March 19, 2003, TVA Chattanooga Office Complex Auditorium, 1101 Market Street, Chattanooga, Tennessee.
Open.
Approval of minutes of meeting held on January 14, 2003.
B1. Contract with Edwards Supply Co., Inc., for custodial supplies and equipment.
B2. Supplement to Contract No. 2232 with SSC Service Solutions for custodial services at various TVA locations.
B3. Contracts with Milan Express and Overnite Transportation for purchase of less-than-truckload transportation services for TVA operations.
C1. Contract with VA Tech Elin Transformatoren GMBH & Co for extra-high voltage transformers.
C2. Contract with Roberts & Schaefer Company/AZCO, Inc., for coal-handling system equipment and engineering services for any TVA fossil plant.
C3. Contract with Twentymile Coal Company for bituminous coal for Widows Creek Fossil Plant Units 1-6.
C4. Contract with Mitsui Babcock LLC to design, manufacture, deliver, and install NO
C5. Contract with Industrial Control Distributors, LLC, for valves and gauges and their related parts.
E1. Grant of a 30-year public recreation easement, with conditional option for renewals, to the city of Soddy-Daisy, Tennessee, affecting approximately 23.3 acres of land on Chickamauga Reservoir in Hamilton County, Tennessee, Tract No. XTCR-163RE.
E2. Grant of permanent and temporary construction easements to the State of North Carolina for a highway and bridge project, affecting approximately 1.6
E3. Deed modification to allow placement of fill and construction of residences for Sunset Bay Development planned by Tennessee Emmons, LLC, affecting approximately 14 acres of former TVA land on Norris Reservoir in Union County, Tennessee, Tract Nos. XNR-721, S.2X, and XNR-255, S.2X.
E4. Sale of noncommercial, nonexclusive permanent easements to William K. Kerr and Adam A. McCall for construction, operation, and maintenance of private water-use facilities, affecting approximately 0.12 acre of land on Tellico Reservoir in Loudon and Monroe Counties, Tennessee, Tract Nos. XTELR-237RE and XTELR-238RE.
E5. Abandonment of certain easement rights affecting approximately 0.2 acre of land on Fort Loudoun Reservoir in Knox County, Tennessee, Tract No. FL-198F, S.1X, to allow placement of fill and construction of a residence by Patrick Schaad.
1. Approval of the abandonment of a portion of the easements for TVA's Trinity-Finley No. 1 and No. 2 161-kV transmission line, affecting approximately 11.57 acres of land in exchange for transmission line easement rights affecting approximately 39.14 acres in Morgan County, Alabama, and satisfaction of certain contingencies.
2. Approval of a contract supplement for continued Electric Power Research Institute membership.
3. Approval of the sale of a permanent easement to Knoxville Tourism and Sports Corporation affecting approximately 0.13 acre of land in Knoxville, Tennessee, Tract No. XKOC-2E.
4. Approval to enter into lease financing arrangements for combustion turbine generating facilities at the Lagoon Creek Combustion Turbine Plant and the Kemper County, Mississippi, site.
5. Approval of the accounting treatment for the minimum unfunded pension liability for fiscal year 2002, the adoption of SFAS No. 143, and the change in methodology for estimating and recording unbilled revenue.
6. Certification and approval of the Tennessee Valley Authority Fiscal Year 2002 Information Statement and Analysis of Results of Operations and Financial Condition contained in the Fiscal Year 2002 Annual Report.
7. Approval of the Corporate Accountability and Disclosure Plan, creation of and delegation of authority to a Disclosure Control Committee, and the Disclosure and Financial Ethics Code.
8. Approval of the sale of an option to enter into an interest rate swap associated with a call provision which TVA has on $1 billion of TVA Power Bonds and for delegations to take related actions.
9. Approval of the sale of a permanent easement to RiverCity Company affecting approximately 1.95 acres of land in Chattanooga, Tennessee, Tract No. XHBOB-1E.
Please call TVA Media Relations at (865) 632-6000, Knoxville, Tennessee. Information is also available at TVA's Washington Office (202) 898-2999. People who plan to attend the meeting and have special needs should call (865) 632-6000. Anyone who wishes to comment on any of the agenda in writing may send their comments to: TVA Board of Directors, Board Agenda Comments, 400 West Summit Hill Drive, Knoxville, Tennessee 37902.
Federal Aviation Administration (DOT).
Notice of availability and request for public comment.
This notice announces the availability of and requests comments on a draft Advisory Circular (AC) 20-73A, Aircraft Ice Protection. The draft AC provides general information related to the approval of aircraft ice protection provisions in accordance with Title 14 of the Code of Federal Regulations (14 CFR) parts 23, 25, 29, and 33. This draft AC also provides guidance and general information relative to operation of aircraft in icing environments that may affect the aircraft's airworthiness.
Sumbit comments on or before May 10, 2003.
Send all comments on the proposed draft AC to: Federal Aviation Administration, Aircraft Certification Service, Room 815, AIR-130, 800 Independence Avenue, SW., Washington, DC 20591. You may deliver comments to: Federal Aviation Administration, 800 Independence Avenue, SW., Room 815, Washington, DC 20591.
Mr. George T. Soteropoulos, Federal Aviation Administration, Aircraft Certification Service, Room 815, AIR-120, 800 Independence Avenue, SW., Washington, DC 20591, Telephone: (202) 267-97960, FAX: (202) 267-5340.
You are invited to comment on the draft AC listed in this notice by submitting written data, views, or arguments, to the address listed above. Your comments should identify “Commments to AC 20-73A.” You can examine all comments on the draft AC before and after the closing date, at the Federal Aviation Administration, Room 815, 800 Independence Avenue, SW., Washington, DC 20591, weekdays except Federal Holidays between 8:30 a.m. and 4:30 p.m. The Director of the Aircraft Certification Service considers all communications received on or before the closing date before issuing the final AC.
Since its release on April 21, 1971, AC 20-73 continues to be followed as a means of compliance for inflight icing regulations. The objective of this revision is to provide a uniform and modern means of compliance with regulations for aircraft and engine ice protection requirements. This revision of AC 20-73 is extensive. It addresses common ice protection means of compliance for airplanes, rotorcrafts, and engines, with references to other applicable advisory circulars that address specific types of aircraft, engines, or regulations. An effort has been made in this revision to make the information congruent with compliance means provided in other existing guidance material and policies. Note however that there are instances where current technology is considered sufficient to justify changes, and means of compliance not previously addressed in guidance and policy material are discussed in this proposed document.
You may get a copy of the draft AC from the Internet at:
See the section entitled
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 201 meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 201: Aeronautical Operational Control.
The meeting will be held on April 15-17, 2003, from 9 a.m.-5 p.m.
The meeting will be held at Fedex, MD-10/MD-Training Module D, Memphis, TN.
(1) RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC, 20036-5133; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 201 meeting. The agenda will include:
• April 15-17:
• Opening Session (Welcome, Introductory and Administrative Remarks, Review Federal Advisory Committee Act and RTCA Procedures, Review Agenda, Background).
• Review comments to Aeronautical Operational Control (AOC) Message Hazard Mitigation draft document Version 0A.
• Drafting group work on other sections of the document.
• Closing Session (Other Business, Date and Place of Next Meeting, Closing Remarks, Adjourn).
This agenda will be followed as appropriate over the course of 3 days.
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Members of the public may present a written statement to the committee at any time.
Federal Aviation Administration (FAA), DOT.
Notice of proposed policy; request for comments.
The Federal Aviation Administration (FAA) announces the availability of proposed policy on no-smoking placards.
Send your comments on or before April 16, 2003.
Address your comments to the individual identified under
Michael T. Thompson, Federal Aviation Administration, Transport Airplane Directorate, Transport Standards Staff, Airframe and Cabin Safety Branch, ANM-115, 1601 Lind Avenue SW., Renton, WA 98055-4056; telephone (425) 227-1157; fax (425) 227-1149; e-mail:
The proposed policy is available on the Internet at the following address:
The FAA invites your comments on this proposed policy. We will accept your comments, data, views, or arguments by letter, fax, or e-mail. Send your comments to the person indicated in
Use the following format when preparing your comments:
• Organize your comments issue-by-issue.
• For each issue, state what specific change you are requesting to the proposed policy.
• Include justification, reasons, or data for each change you are requesting.
We also welcome comments in support of the proposed policy.
We will consider all communications received on or before the closing date for comments. We may change the proposed policy because of the comments received.
The proposed policy will further simplify the certification process pertaining to the requirement for no-smoking placards legible to each occupant seated in compartments where smoking is prohibited. The FAA has determined that a lighted sign can be considered a placard if it is continuously illuminated for the occupants. These signs must illuminate without the cockpit or cabin crew having to turn the signs on, which can be accomplished by hardwiring the signs such that the signs are illuminated whenever the airplane's normal electrical power is on or by providing equivalent control of the signs by software.
Federal Highway Administration (FHWA), DOT.
Extend comment period for an environmental impact statement.
The FHWA is issuing this notice to advise the public that we are extending the comment period for an environmental impact statement (EIS) for improvements on I-64 in the City of St. Louis and St. Louis County, Missouri.
Donald L. Neumann, Programs Engineer, FHWA Division Office, 209 Adams Street, Jefferson City, MO 65101; Telephone: (573) 636-7104 or Mr. Kevin Keith, Chief Engineer, Missouri
The FHWA, in cooperation with the Missouri Department of Transportation (MoDOT), prepared a draft EIS for a project that has been proposed to improve the transportation system in the City of St. Louis and St. Louis County, Missouri. The Notice of Availability for the New I-64 EIS (volumes 1 and 2) was published in the
Federal Highway Administration (FHWA), DOT.
Extend comment period for an environmental impact statement.
The FHWA is issuing this notice to advise the public that we are extending the comment period for an environmental impact statement (EIS) for improvements on Route 17 in Texas and Howell Counties, Missouri.
Donald L. Neumann, Programs Engineer, FHWA Division Office, 209 Adams Street, Jefferson City, MO 65101; Telephone: (573) 636-7104 or Mr. Kevin Keith, Chief Engineer, Missouri Department of Transportation, PO Box 270, Jefferson City, MO 65102.
The FHWA, in cooperation with the Missouri Department of Transportation (MoDOT), prepared a draft EIS for a project that has been proposed to improve the transportation system in Texas and Howell Counties, Missouri. The Notice of Availability for the Route 17 draft EIS was published in the
Office of Pipeline Safety, Research and Special Programs Administration, DOT.
Notice of public meeting.
The Research and Special Programs Administration's (RSPA) Office of Pipeline Safety (OPS) will conduct a public meeting to discuss progress in implementing the operator qualification (OQ) rule for gas and hazardous liquid pipelines. OPS will continue to develop the protocols and guidance materials, and provide an opportunity for public comment. A panel of experts will address technical issues associated with protocols and related materials. A record of the previous public meeting on Qualification of Pipeline Personnel that was held in San Antonio, TX, is available in this docket (RSPA-03-14448).
The public meeting will be held on March 25, 2003, beginning at 8:30 a.m., ending at 4 p.m.
The public meeting will be held at the Sheraton Phoenix East Hotel & Convention Center, 200 N. Centennial Way, Mesa, AZ 85201 (Tel: 800-456-6372 or 480-898-8300); Fax: 480-964-9279; web:
The program will continue to address the 13 issues generated by the first public meeting held in January 2003, and will be open for technical input. This will include presentations on definitions of terms discussed at the last meeting. Persons wishing to make a presentation or statement at the meeting should notify Janice Morgan, (202) 366-2392, no later than March 21, 2003.
Although we encourage persons wishing to comment on operator qualification and inspection protocols to participate in the public meeting, written comments will be accepted. You may submit written comments on operator qualification and inspection issues by mail or delivery to the Dockets Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. The dockets facility is open from 10 a.m. to 5 p.m., Monday through Friday, except on Federal holidays. You should submit the original and one copy. Anyone who wants confirmation of receipt of their comments must include a stamped, self-addressed postcard. You may also submit comments to the docket electronically. To do so, log on to the Internet Web address
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comments, if submitted on behalf of an association, business, labor union, etc.). You may review the U.S. Department of Transportation's complete Privacy Act Statement in the
You may contact Richard Sanders at (405) 954-7214 or (405) 954-7219, regarding the agenda of this public meeting. General information about OPS programs may be obtained by accessing OPS's Internet home page at
For information on facilities or services for individuals with disabilities
The operator qualification rules at 49 CFR 192.801 (for gas pipelines) and at 49 CFR 195.501 (for hazardous liquid pipelines) require every pipeline operator to have and follow a written qualification program that includes provisions to identify covered tasks and to ensure that all persons performing these tasks are qualified. By October 28, 2002, all gas and hazardous liquid pipeline operators should have completed the qualification of all individuals performing covered tasks on pipeline facilities.
On March 25, 2003, OPS will conduct a public meeting to continue discussions on the progress in implementing the operator qualification rule for gas and hazardous liquid pipelines. OPS will present a detailed review of the development of the operator qualification inspection protocols. The meeting will focus on areas considered high priority and discussion on compliance issues from Federal and State pipeline safety personnel. These issues, as identified at a previous public meeting on January 22, 2003, in San Antonio, TX, are as follows:
All persons attending the meeting will have an opportunity to comment on operator qualification compliance issues and to question the expert panel on the new operator qualification compliance protocols.
Surface Transportation Board, DOT.
Notice of exemption.
The Board grants an exemption under 49 U.S.C. 10502, from the prior approval requirements of 49 U.S.C. 10901, for the reinstitution of service by Norfolk Southern Railway Company (NSR) over 3.2 miles of the Toledo to Maumee branch line extending from milepost TM-9.3 in Toledo to milepost TM-12.5 near Maumee, in Lucas County, OH.
This exemption is effective April 16, 2003. Petitions to stay must be filed by April 1, 2003. Petitions to reopen must be filed by April 11, 2003.
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34233, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of all pleadings must be served on petitioner's representative, John V. Edwards, Norfolk Southern Corporation, Three Commercial Place, Norfolk, VA 23510-9241.
Beryl Gordon (202) 565-1600. (Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.)
Additional information is contained in the Board's decision. Copies of the decision may be purchased from Da
Board decisions and notices are available on our Web site at
By the Board, Chairman Nober, Vice Chairman Burkes, and Commissioner Morgan.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 911, Application for Taxpayer Assistance Order (ATAO).
Written comments should be received on or before May 16, 2003, to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carol Savage, (202) 622-3945, or through the Internet (CAROL.A.SAVAGE@irs.gov.), Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8725, Excise Tax on Greenmail.
Written comments should be received on or before May 16, 2003, to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carol Savage, (202) 622-3945, or through the Internet (
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Department of Veterans Affairs (VA).
Notice of New System of Records—Call Detail Records—VA (90VA194).
The Privacy Act of 1974, 5 U.S.C. 552a(e), requires that all agencies publish in the
Comments on the establishment of this new system of records must be received no later than April 16, 2003. If no public comment is received, the new system will become effective April 16, 2003.
You may mail or hand-deliver written comments concerning the proposed new system of records to the Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; or fax comments to (202) 273-9289; or email comments to “
Veterans Health Administration (VHA) Privacy Act Officer, Department of Veterans Affairs, 810 Vermont Avenue,
Some Veterans Health Administration (VHA) facilities use call detail records to verify telephone usage, to allocate costs of telephone services to individual users, to identify unofficial telephone calls, to seek reimbursement for unofficial calls, and as a basis for taking action when employees or other individuals misuse or abuse VHA telephone systems. The establishment of the VHA telephone Call Detail Records as a new system of records is required because of the ability to retrieve information about individuals from the system through the use of a personal identifier such as the name of the individual, office symbol, or some other identifying information.
The purpose of the system of records is to establish a repository for the information that is collected to accomplish the purposes described.
Designated individuals at each facility maintain records. These records cover individuals who are assigned VHA telephone numbers or are authorized to use VHA telephone services, as well as other agencies and individuals who receive or make calls billed to VHA. Records are maintained on electronic media (hard disk and floppy disks) and paper and are stored in secure areas available only to facility staff that issue authorization codes, maintain the user database and produce monthly activity reports. Individuals including VA employees, contractors, and non-VA employees authorized to use VHA telephone services, who inappropriately make unofficial calls billed to VHA, can be responsible for the cost of those calls. Pursuant to 5 U.S.C. 552a(b)(12), VA may disclose records from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)) to recover this cost.
We are proposing to establish the following routine use disclosures of information which will be maintained in the system:
1. Disclosure may be made to individuals to determine their responsibility for telephone calls.
Records from this system of records may be disclosed to appropriate VA employees to assist in the planning and effective management of VA telephone services, and to determine that VA telephones are being used in an efficient and economical manner.
2. Disclosure may be made to another Federal agency or a telecommunications company providing telephone services to permit maintenance and repair of the account.
Records may be disclosed to a telecommunications company as requested by VA for such uses as repairing or upgrading the system.
3. Information from this system of records may be disclosed to a congressional office from the record of an individual in response to an inquiry from the congressional office made on behalf of that individual.
Individuals sometimes request the help of a member of Congress in resolving some issues relating to a matter before VA. The member of Congress then writes VA, and VA must be able to give sufficient information in response to the inquiry.
4. Disclosure may be made to the National Archives and Records Administration (NARA) for records management inspections under authority of Title 44 United States Code.
NARA is responsible for archiving old records no longer actively used, but which may be appropriate for preservation; they are responsible in general for the physical maintenance of the Federal government's records. VA must be able to turn records over to these agencies in order to determine the proper disposition of such records.
5. Disclosure may be at VA's initiative made to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where the agency becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation.
6. A record from this system of records may be disclosed to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a security or suitability investigation of an individual, the reporting of an investigation, the letting of a grant or other benefit, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
VA must be able to provide information to agencies conducting background checks on applicants for employment.
7. Records from this system of records may be disclosed in a proceeding before a court, adjudicative body, or other administrative body when the Agency, or any Agency component or employee (in his or her official capacity as a VA employee), is a party to litigation; when the Agency determines that litigation is likely to affect the Agency, any of its components or employees, or the United States has an interest in the litigation, and such records are deemed to be relevant and necessary to the legal proceedings; provided that the disclosure is compatible with the purpose for which the records were collected.
Whenever VA or another party is involved in litigation and VA policies or operations could be affected by the outcome of the litigation, VA would be able to disclose information to the court or parties involved. A determination would be made in each instance that, under the circumstances involved, the purpose served by the use of the information in the particular litigation is compatible with a purpose for which VA collects the information.
8. Disclosure of relevant information may be made to individuals, organizations, private or public agencies, etc., with whom VA has a contract or agreement to perform such services as VA may deem practicable for the purposes of laws administered by VA, in order for the contractor or subcontractor to perform the services of the contract or agreement.
VA occasionally contracts out certain functions when this would contribute to effective and efficient operations. VA must be able to give a contractor whatever information is necessary for the contractor to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor from using or disclosing the information for any purpose other than that described in the contract.
9. Disclosure may be made to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
10. Disclosure may be made to officials of the Merit Systems Protection Board, including the Office of the Special Counsel, when requested in connection with appeals, special studies of the civil service and other merit systems, review of rules and regulations, investigation of alleged or possible prohibited personnel practices, and such other functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be authorized by law.
11. Disclosure may be made to the Equal Employment Opportunity Commission when requested in connection with investigations of alleged or possible discrimination
12. Disclosure may be made to the Federal Labor Relations Authority, including its General Counsel, when requested in connection with investigation and resolution of allegations of unfair labor practices, in connection with the resolution of exceptions to arbitrator awards when a question of material fact is raised and matters before the Federal Service Impasses Panel.
Routine uses 9—12 are necessary in order for the VA to comply with the statutory mandates.
13. Disclosure may be made to the VA-appointed representative of an employee, including all notices, determinations, decisions, or other written communications issued to the employee in connection with an examination ordered by VA under medical evaluation (formerly fitness-for-duty) examination procedures or Department-filed disability retirement procedures.
The Privacy Act permits VA to disclose information about individuals without their consent for a routine use when the information will be used for a purpose that is compatible with the purpose for which VA collected the information. In all of the routine use disclosures described above, either the recipient of the information will use the information in connection with a matter relating to one of VA's programs, will use the information to provide a benefit to VA, or disclose the information as required by law.
The notice of intent to publish and an advance copy of the system notice have been sent to the appropriate Congressional committees and to the Director of the Office of Management and Budget (OMB) as required by 5 U.S.C. 552a(r) (Privacy Act) and guidelines issued by OMB (65 FR 77677), December 12, 2000.
Call Detail Records-VA.
Records are maintained at Veterans Health Administration (VHA) facilities. Address locations for Department of Veterans Affairs (VA) facilities are listed in VA Appendix 1 of the biennial publication of the VA's systems of records.
Individuals who are assigned VHA telephone numbers or are authorized to use VHA telephone services, and individuals who receive or make calls billed to VHA.
Call detail records consist of information on Federal Telecommunication System (FTS) telephone calls placed from VHA telephones or otherwise billed to VHA including the originating and destination telephone numbers; states and cities called; date and time of call; duration of each call; cost of call; name and title of caller; request number; account code; deactivation code; authorization code records indicating the assignment of telephone numbers to organizations and individuals; and the organizational location of telephones.
The records are used to generate call detail records; to verify telephone usage; to allocate costs of telephone services to individual users; to identify unofficial telephone calls; and to justify action when individuals misuse or abuse VA telephone services.
Title 38 United States Code, section 501.
1. Disclosure may be made to individuals to determine their responsibility for telephone calls.
2. Disclosure may be made to another Federal agency or a telecommunications company providing telephone services to permit maintenance and repair of the account.
3. Information from this system of records may be disclosed to a congressional office from the record of an individual in response to an inquiry from the congressional office made on behalf of that individual.
4. Disclosure may be made to the National Archives and Records Administration (NARA) for records management inspections under Title 44 of United States Code.
5. Disclosure may be made at VA's initiative to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where the agency becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation.
6. A record from this system of records may be disclosed to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a security or suitability investigation of an individual, the reporting of an investigation, the letting of a grant or other benefit, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
7. Records from this system of records may be disclosed in a proceeding before a court, adjudicative body, or other administrative body when the Agency, or any Agency component or employee (in his or her official capacity as a VA employee), is a party to litigation; when the Agency determines that litigation is likely to affect the Agency, any of its components or employees, or the United States has an interest in the litigation, and such records are deemed to be relevant and necessary to the legal proceedings; provided that the disclosure is compatible with the purpose for which the records were collected.
8. Disclosure of relevant information may be made to individuals, organizations, private or public agencies, etc., with whom VA has a contract or agreement to perform such services as VA may deem practicable for the purposes of laws administered by VA, in order for the contractor or subcontractor to perform the services of the contract or agreement.
9. Disclosure may be made to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
10. Disclosure may be made to the VA-appointed representative of an employee, including all notices, determinations, decisions, or other written communications issued to the employee in connection with an examination ordered by VA under medical evaluation (formerly fitness-for-duty) examination procedures or Department-filed disability retirement procedures.
11. Disclosure may be made to officials of the Merit Systems Protection Board, including the Office of the Special Counsel, when requested in
12. Disclosure may be made to the Equal Employment Opportunity Commission when requested in connection with investigations of alleged or possible discrimination practices, examination of Federal affirmative employment programs, compliance with the Uniform Guidelines of Employee Selection Procedures, or other functions vested in the Commission by the President's Reorganization Plan No. 1 of 1978.
13. Disclosure may be made to the Federal Labor Relations Authority, including its General Counsel, when requested in connection with investigation and resolution of allegations of unfair labor practices, in connection with the resolution of exceptions to arbitrator awards when a question of material fact is raised and matters before the Federal Service Impasses Panel.
Pursuant to 5 U.S.C. 552a(b)(12), VA may disclose records from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Records are maintained on electronic media (hard disk and floppy disks) and paper.
Records may be retrieved by name, authorization code, VA organizational unit, originating telephone number, destination telephone number, location code, date, time, cost, and/or duration of call.
1. Access to telecommunication areas at health care facilities is generally limited by appropriate locking devices and restricted to authorized VA employees and vendor personnel. Generally, VA telecommunication areas are locked at all times and the facilities are protected from outside access by the Federal Protective Service or other security personnel.
2. Access to file information or the user database is controlled by access codes. The system recognizes authorized VA employees by individually unique passwords or access codes. Contractors accessing the database remotely use encryption and access codes.
Records are maintained and disposed of in accordance with record disposition authority approved by the Archivist of the United States. Destruction of hard copy (paper) records is by shredding or burning or some other method that will macerate the record content. Working disks are erased as soon as the purpose for which they have been established has been served.
Director, Implementation and Training Services, Communications Services Office (194D), Office of Information, State Route 9, Building 307A, Martinsburg, West Virginia 25401.
Individuals wishing to inquire whether this system of records contains information about themselves should contact the designated individual at the VHA facility where the records are maintained. Individuals must furnish the following information for their records to be located and identified: a. Full name; b. VA assigned telephone number or telephone service authorization number; and c. description of information being sought, including the time frame of information being sought.
Individuals wishing to request access to records about themselves should contact the designated individual at the VHA facility where the records are maintained. Individuals must furnish the following information for their records to be located and identified: a. Full name; b. VA assigned telephone number or telephone authorization number, and; c. Description of information being sought, including the time frame of information being sought. Individuals requesting access must also follow VA's Privacy Act regulations regarding verification of identify and access to records (38 CFR Part 1).
Individuals wishing to request amendment of records about themselves should contact the designated individual at the VHA facility where the records are maintained. Individuals must furnish the following information for their records to be located and identified: a. Full name; b. VA assigned telephone number or telephone service authorization number; and c. Description of information being sought, including the time frame of the information being sought. Individuals requesting amendment must also follow VA's Privacy Act regulations regarding verification identify and amendment of records (38 CFR part 1).
The information in this system of records is obtained from the following sources: a. Local VA telephone directories and other telephone assignment records; b. call detail records provided by suppliers of telephone services; and c. the individual on whom the record is maintained.
Federal Communications Commission.
Final rule.
This document amends our rules pertaining to the Broadcast Auxiliary Services (BAS) to permit BAS stations to introduce new technologies and create a more efficient BAS that can more readily adapt as the broadcast industry converts to the use of digital technology, such as digital television (DTV). We also make conforming amendments our rules pertaining to the Radio Broadcast Services, the Cable Television Relay Service (CARS), and to our rules pertaining to Fixed Microwave Services (FS). In many cases, the BAS, CARS, and FS share frequency bands and have technically and operationally similar stations, and our rule changes will permit these three services to operate under consistent regulatory guidelines.
Effective April 16, 2003, except for §§ 74.535 and 74.637 which became effective on October 30, 2002.
Ted Ryder, Office of Engineering and Technology, (202) 418-2803.
This is a summary of the Commission's
1. The
2. Section 74.637 of the Commission's rules sets forth emission requirements for TV BAS operations. Digital modulation provides for analog or digital modulation in the 6425-6525 MHz, 17.7-19.7 GHz, and 31.0-31.3 GHz bands. Although the rules do not specifically prohibit digital modulation in other TV BAS bands (
3. The
4. In order to facilitate the expeditious processing of the approximately 500 pending applications for digital BAS operations, the following BAS rules will became effective October 30, 2002, the adopted date of the
5. We have modified the rules to implement in §§ 74.644 and 78.108 the same equation codified at § 101.143 for determining the maximum effective isotrophic radiated power for short paths (EIRP) for path lengths shorter than the specified minimum. Further, we are grandfathering existing fixed links that are less than 17 km in length in the 2450-2483.5 MHz band. However, we will not permit grandfathered or other existing links that are modifying from analog operation to analog/digital or digital operation, to retain grandfathered status, and thus continue operation at their current elevated power levels, or be
6. We decline to designate the 1990-2110 MHz and 2450-2483.5 MHz bands for use by Remote Pickup BAS operations. We also decline to phase out fixed operation in these bands, to prohibit new fixed path lengths shorter than 17 km in these bands, or to phase out existing short paths in these bands in five years. We recognize that it is possible that the removal of fixed paths could free up spectrum for mobile use in some areas. However, we find that such action would unnecessarily limit the flexibility of TV BAS to accommodate fixed paths, where such paths are feasible and desirable with respect to mobile use of the band. This is particularly true for short paths, whose reduced EIRP can accommodate them in a spectrally efficient way. Moreover, the forced relocation of existing fixed links would be a burden on licensees.
7. We find that the proposals to harmonize power limits among parts 74, 78, and 101, and to express those limits as maximum EIRPs will provide consistency and promote greater efficiency in our rules. We have adopted our proposals as stated in the
8. Comsearch asked that the part 101 EIRP limit for the 12,200-13,250 MHz band be amended from 50 dBW to conform to the parts 74 and 78 limit of 55 dBW. We generally agree. We believe that providing common technical standards for similar stations simplifies the manufacturing and licensing process. We note that, except for LTTS, fixed stations under part 101 have not been eligible for new licenses in the 12,700-13,200 MHz portion of the band since 1983. These stations were designed and have been operating for the last 19 years or more with the 50 dBW limit. Thus, we see no reason to modify that limit for these stations. We will increase the EIRP limit to 55 dBW for all FS stations in the 13,200-13,250 MHz portion of the band. Further, we note that the rules for common carriers in the LTTS specify that they are subject to the technical rules of parts 74 and 78 in certain frequency bands shared with BAS and CARS. Therefore, they also will be subject to the higher 55 dBW limit we are adopting for fixed stations. To avoid confusion in the rules, we will amend § 101.807 to clearly state that LTTS stations in certain bands shared with BAS and CARS should follow the power rules of parts 74 and 78.
9. We found that maintaining the same EIRP limits for digital and analog systems is appropriate because, although digital systems would normally require less EIRP to operate, lowering their maximum EIRP could render them more susceptible to interference from higher powered analog systems. Finally, regarding BAS station operations at 2483.5-2500 MHz, the new EIRP limits should not apply to grandfathered systems. Accordingly, in the final rules, we will specify that only the 2450-2483.5 MHz band is available for BAS stations. We note, however, that this action in no way affects the continued rights of grandfathered BAS stations in the 2483.5-2500 MHz band, as described in footnote NG147 of the Table of Frequency Allocations.
10. Emission masks serve to maximize spectrum efficiency by permitting reasonable and practical information transfer within a channel and at the same time limiting out-of-band emissions to minimize adjacent channel interference. Our rules contain a number of emission masks tailored to specific operations and channel sizes. For example, different emission masks are authorized under parts 74, 78, and 101. Although the same equipment is often certified and used by licensees in different services, our rules, in some cases, allow each service to use a different emission mask for the same type of emission (
11. Commenters did not address our proposals to standardize the emission masks between part 74 and part 101. Most comments addressed nuances of the rules, such as how they apply to composite systems. On the specific emission masks proposed, the comments received were supportive. We believe that maintaining the status quo in the 2 GHz band would harm the industry more than help it. By providing certainty to manufactures and users regarding equipment, we believe that the industry will be able to move forward and begin making wide scale use of digital equipment to increase spectral efficiency and to ensure that equipment is available for broadcasters as they transition to DTV. Accordingly, we adopted the proposals to amend the part 74 aural and TV BAS emission masks to make them consistent with the emission masks of part 101. As stated in the
12. We will require Coded Orthogonal Frequency Division Multiplexing (COFDM) systems to meet the emission limitations of the digital mask. We will grandfather existing equipment and equipment of current production lines for two years consistent with our decision. Finally, we clarify that the correct emission type for COFDM is W7D.
13. MRC, the only commenter to address the issue of hybrid digital/analog systems, supports our proposal to apply the digital mask to such systems if the digital traffic is 50% or more of the total peak deviation. We adopted this proposal. For comparison digital/analog systems, similar to hybrid systems, we will apply the appropriate analog or digital emission mask based on the percentage of the channel that carries a digital signal. Specifically, this percentage will be calculated as the system's digital necessary bandwidth divided by the aggregate necessary bandwidth. For purposes of equipment authorization and licensing, the output power and EIRP of a composite system will be its aggregate output power and EIRP. Both composite and hybrid systems will ease the transition to DTV as they provide a migration path for licensees to transition from an analog NTSC signal to a dual analog/digital (NTSC/ATSC) signal, and eventually to only a digital signal. We believe that the procedures we have adopted will simplify and advance the transition to DTV while protecting the ability of coordinators to engineer systems.
14. To determine the emission designator for a composite system, we will use the aggregate necessary bandwidth of the system, which is comprised of the analog necessary bandwidth, any band between the analog and digital signals, and the digital necessary bandwidth. The emission designator will also use the appropriate emission type, such as F9F or F9W, indicating that the system accommodates at least one analog and at least one digital signal. We note that licensees who modify their equipment from an analog system to a composite analog/digital system, must also modify their station authorization to show the new emission type using ULS. Under the rules, such a change would be considered major and require a new frequency coordination.
15. We did not receive any comments with regard to our proposals for standardized measurement procedures. We continue to believe that our procedures should ensure that all equipment is measured consistently. Therefore, for measuring compliance with the emission mask, for emissions removed from the center frequency by 250% of the emission bandwidth or less, we will permit a reduction of the measurement reference bandwidth below the mask reference bandwidth to a value not less than 1% of the emission bandwidth, or the next higher measurement bandwidth available. This will allow for more accurate emissions measurements just outside the edge of the emission bandwidth, which might otherwise be blurred by the contribution of much greater emissions within the emission bandwidth. For measurements outside this range, we will use the International Telecommunication Union (ITU) guidelines of a 100 kHz resolution bandwidth for systems operating on frequencies below 1 GHz and a 1 MHz resolution bandwidth for systems operating on frequencies above 1 GHz. We realize that this may create a situation where the emissions mask reference bandwidth stated in the rule is less than the measurement resolution bandwidth. If this occurs, there could be some blurring of spectral spikes that might otherwise be detected. We believe that the benefits of simplification and standardization outweigh the potential for such effects to result in interference to adjacent channels. Further, to protect adjacent channel operations, we will require that the emission mask attenuation requirement be corrected to decrease with the ratio of measurement resolution bandwidth to mask reference bandwidth,
16. Automatic transmit power control (ATPC) is a function that provides for more efficient spectrum use by ensuring that the transmitter only uses the power necessary to maintain reliable communications. Radios that use ATPC operate with certain power levels during normal propagation conditions. When the receiver detects a drop in received signal level, due to multipath or a rain fade, for example, the receiver sends a signal to the transmitter to gradually increase power. When the received signal level begins to rise, the receiver sends a signal to the transmitter to reduce power. By operating in this manner, interference levels into nearby microwave paths are reduced and more frequencies can be coordinated and used in any given geographic area. Additionally, by keeping signal levels low, ATPC reduces power consumption of the radio, which lowers operating costs and increases equipment reliability.
17. As proposed in the
18. We have adopted our proposal to consolidate in part 101 any parts 74 and 78 technical rules that pertain to protecting geostationary satellites from interference from terrestrial systems. This action will decrease redundancy in our rules and ensure that future changes to GSO protection requirements are consistent across affected services. In this connection, we have updated the frequencies listed in § 101.145(b) and (c) to encompass the BAS and CARS bands subject to RF radiation limits directed towards satellites. We note that this will result in the addition of the frequency
19. We adopted frequency coordination procedures for all TV and aural BAS and CARS frequency bands. The rules adopted in the
20. For the 1990-2110 MHz band, we will continue to maintain procedures which allow for local frequency coordination for all stations “ fixed and mobile. In this band, we deviate from the policy articulated above for fixed stations based on unique circumstances of this band. Specifically, it is used predominantly by mobile TV pickup stations, but also supports some fixed links and it is currently transitioning to accommodate MSS in the 1990-2025 MHz portion of the band. Because each area of the United States may transition to MSS at different times, local frequency coordinators may be in the best position to accommodate requests to local operating conditions. We have adopted changes to §§ 74.638 and 78.36 which supplement local frequency coordination procedures for fixed systems to require the submission of a certification attesting that all co-channel and adjacent-channel licensees and applicants potentially affected by the proposed fixed use of the frequencies have been notified and are in agreement that the proposed facilities can be installed without causing harmful interference to other users.
21. An additional issue related to frequency coordination involves protection standards for stations. The
22. We have eliminated separate frequency tolerance requirements for base and mobile operations, and adopted a frequency tolerance of 0.001% for fixed and mobile TV BAS equipment operating in the 2450-2483.5 MHz band. We found that having consistent frequency tolerance requirements for both fixed and mobile transmitters will simplify frequency coordination and improve spectrum efficiency. Similarly, by adopting a frequency tolerance requirement, we will ensure that spectrally efficient equipment is used and, for example, in the 2450-2483.5 MHz band, that the potential for adjacent channel interference is reduced. In that regard, to accommodate existing product lines in the 2450-2483.5 MHz band such as those of MRC, we will delay the effective date of the 0.001% tolerance in that band for two years. We found that this will accommodate MRC's existing product line, and strikes a balance between the benefits of spectrum efficiency afforded by a tighter tolerance and the indefinite accommodation sought by MRC for non-compliant product lines. Thus, we will grandfather existing equipment and equipment of current production lines exceeding the new 0.001% tolerance in the 2450-2483.5 MHz band and authorized, via certification or verification, up to two years after the adoption of the
23. As proposed in the
24. We adopted the proposals in the
25. The Commission proposed in the
• The applicant must be eligible to operate the particular class of broadcast auxiliary station.
• The station must be operating in conformance with the rules for that particular class of station and in accordance with the terms of the frequency coordination.
• The application does not propose operation in an area that requires international coordination.
• The application does not request a waiver of the Commission's rules.
• The proposed station will not significantly affect the environment as defined in part 1, subpart I of the Commission's rules.
• The antenna structure either has a FCC Registration Number or is determined to not need one.
• The proposed station affords protection to radio “quiet” zones and monitoring stations.
The Commission also proposed to allow temporary conditional authority for low power auxiliary stations authorized under part 74, subpart H. To effectuate these changes, the Commission proposed to remove § 74.431(g) and to adopt new § 74.25 to allow temporary conditional authorizations for all broadcast auxiliary services. We find that providing BAS applicants with the ability to operate under temporary conditional authority is appropriate. We are removing § 74.431(g) and adopting a new § 74.25 to allow temporary conditional authorizations for all broadcast auxiliary services.
26. Section 74.24 provides broadcast licensees regulated under part 73 of our rules (
27. Extending this rule to cover additional entities raises questions regarding compliance with the various station identification rules. Therefore, because broadcast network and cable network entities do not have individual station call signs for identification purpose, we will require them to use their network or cable entity name along with their base of operations city for compliance with the station identification rules. Using such a scheme will make it easy to identify the proper point of contact should a problem arise.
28. We adopt, with some modification, our proposals with respect to the future use of UHF-TV channels by TV STLs, TV relay stations, and TV translator relay stations. We will permit these stations to obtain authorizations without submitting an engineering analysis so long as they meet the specified technical parameters—maximum EIRP of 35 dBW, maximum transmitting antenna beamwidth of 25 degrees, and use of vertical polarization. In addition, we will limit future licensing, beginning as of the effective date of the rules of the
29. We decline to adopt any additional restrictions or review procedures which would unnecessarily burden licensees or the licensing process. We will however make a slight wording change to § 74.602(h)(1) to clarify that if any of the specified parameters are exceeded, an engineering analysis must accompany the application. We also point out that stations licensed under § 74.602(h) are secondary and regardless of their operating parameters, must protect all primary stations using the UHF-TV spectrum, including land mobile stations.
30. In the
31. The Commission amends the channel plan for 150 MHz and 160 MHz Remote Pickup stations to list channels every 7.5 kilohertz and allow licensees to stack up to four channels for a total of 30 megahertz. In addition, we will modify the Group N1 and N2 450 MHz channels to list channels every 6.25 kilohertz and allow licensees to stack up to eight channels for a total of 50
32. To ease the transition to this new channel plan, we adopted our proposal to provide a three-year period for licensees operating on the channels adopted in 1984 to modify their licenses to the new channels. After three years, they may remain on their current channel assignments, but on a secondary, non-interference basis. Consistent with our action for the N
33. In accordance with the comments of SBE and our proposal, we amended the rules to require that existing and applied for Remote Pickup BAS facilities on 166.25 MHz and 170.15 MHz use no more than 12.5 kilohertz channel bandwidth by January 1, 2005. This will apply to all stations on these frequencies that obtained licenses or applied for licenses on or before the effective date of the rules in this
34. With respect to Remote Pickup BAS base stations operating as an integral part of the EAS, we are adopting a procedure recommended by NTIA to ensure that such stations will be protected Under this procedure NTIA will place a notation in the Government Master Frequency (GMF) database licensing record of these stations which will require Government stations to protect them from harmful interference. Thus, there is no need to amend footnote US11.
35. The
36. The
37. We have adopted the proposals from the
38. We have also adopted the proposed rule amendments to remove the construction requirements for BAS stations from part 73 and place them in a new § 74.34. This approach will promote timely construction of facilities, ensure consistent construction requirements among the services, and prevent warehousing of spectrum. We note that the rules already require licensees to file a notification of completion of construction. Failure to file such a notification results in the termination of the license by the Commission.
39. The Commission proposed to amend the part 74 rules to adhere to the procedures adopted in the ULS proceeding for major and minor amendments and modifications;
40. We have adopted our proposals to amend the part 74 rules so that BAS applicants and licensees are subject to the same rules as specified for the land mobile and microwave services for determining major and minor application and license changes. This action will align Remote Pickup BAS processing rules with those for similar services under part 90 and align the rules for TV and aural BAS with the rules for part 101. Thus, similar stations will be treated in a consistent manner.
41. We note that changes in emissions, such as a conversion from analog to digital modulation or to composite analog/digital modulation, are already classified as major changes under the rules in §§ 1.929(c)(4)(ii) and (d)(1)(iv), and frequency coordination would be required when a major change is requested. With regard to location changes of less than 5 seconds in latitude and/or longitude, we note that the Commission in the
42. Section 74.462 of the Commission's rules specifies authorized emissions for Remote Pickup BAS frequencies and frequency bands. In the
43. Video assist devices produce low resolution images that can be used by a production crew to make decisions with respect to content, lighting, and image framing. Often, these video assist devices are connected via cable. However, cable is not always practical due to the distance from the camera to the video monitor or because the camera needs to be mobile to follow the action. To improve their utility and increase safety, the Commission, based on a petition filed by AMPTP on November 15, 1999, RM-9856, proposed to allow the use of wireless assist video devices (WAVDs) on a secondary, non-interference basis on unused TV channels in the upper VHF and the UHF bands.
44. We have adopted our proposal to allow the use of WAVDs on a secondary, non-interference basis on vacant upper VHF-TV and UHF-TV channels. In the
45. As proposed in the
46. We have also adopted our proposal to require that WAVD stations be licensed prior to operating. Such licenses will be obtained through the ULS using FCC Form 601. In addition, consistent with our licensing of other low power auxiliary devices, WAVD licenses will normally be issued for a period of eight years and, for those held by a broadcast station, run concurrently with the license term of that station. For other license holders, the expiration date will be determined by the area of the country in which the station operates.
47. We address the request of AMPTP to allow third party contractors to obtain WAVD licenses. AMPTP states that third party contractors may wish to operate and/or rent WAVDs to studios. We will not expand the eligibility for WAVD licenses to entities beyond those proposed. We stress that this does not preclude the operation of WAVDs by third party contractors. A party under contract to a television or motion picture producer may rent equipment and even operate it for the producer. However, such operation would be under the authority of the producer's license. This arrangement is consistent with rules in other services where entities are able to operate equipment under the authority of another entity's license. Based on our experience, we believe that this arrangement best promotes accountability and compliance with our rules.
48. In light of the lack of comments on this issue, we have adopted our proposals regarding authorized frequencies as proposed in the
49. We adopt the proposal to exclude WAVDs from using land mobile radio channels in the 470-512 MHz band (TV channels 14-20) in areas around the coordinates listed in § 90.303 because
50. The frequencies on which we will exclude WAVD use are summarized in the following table. We reiterate that these exclusions will not prevent WAVDs from operating on channels listed in the table when WAVDs are a sufficient distance from the cities listed in the following table.
51. Finally, as proposed in the
52. The
53. The various technical and operational requirement proposals for WAVDs set forth in the NPRM were designed to protect other users of the TV bands without unnecessarily hindering WAVD operations. Most of these were unopposed, and we will adopt them as proposed. Specifically, we have adopted the ERP limit of 250 mW, the bandwidth limit of 6 megahertz on a single TV channel, the requirement to meet the same emissions limitations as other part 74 transmitters, part 2 certification procedures for WAVD transmitters, the proposed separation distances from TV and land mobile stations, the requirement that WAVD licensees follow the station identification requirements of § 74.882; and the requirement that manufacturers include certain information in their product literature.
54. With respect to the antenna issue raised by commenters, we agree with SBE that the use of unintended antennas should be avoided because they could increase the interference potential. We also agree with AMPTP that a permanently attached antenna may result in increased repair costs. We believe that a reasonable compromise between these positions exists. We note that our part 15 rules contain a provision allowing either permanently attached antennas or devices with unique couplings to permit antennas to be more easily repaired. This has worked well in the preventing unintended antennas from being attached to low power unlicensed devices and we believe a similar requirement would work here. Accordingly, we have adopted a
55. We believe that notification is more appropriate than full coordination for WAVDs. We take this position based on the low ERP, limited range, and non-interference status of WAVDs. In addition, because WAVDs may be used at multiple locations in support of a production, notification will be less burdensome than coordination for both the WAVD licensee and the coordinator while still providing adequate protection to broadcast transmissions. In this connection, have adopted our proposal to consider the absence of a response from a coordinator after ten business days have passed as an approval. Once the WAVD operator has made reasonable attempts to notify the BAS coordinator or appropriate TV stations, we find that failure of these entities to respond to the WAVD operator approval is an insufficient basis to delay use of WAVDs. We find that this approach strikes a reasonable balance between the requirements of producers and the needs of the coordinator to study notifications and respond to operators as necessary. We will require WAVD licensees to notify, for informational purposes only, nearby co-channel and adjacent channel TV stations (
56. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
57. The
58. In the Notice, the Commission performed an IRFA and asked for comments that specifically addressed issues raised in the IRFA. No parties filed comments directly in response to the IRFA. However, commenters made recommendations regarding channel splitting, and the Commission, in response, is overlaying narrowband channels in various bands and is authorizing an effective date for channel splitting in the 950 MHz aural BAS band.
59. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the action taken.
60. The rules adopted in the
61. According to Census Bureau data for 1997, there were 906 Television Broadcasting firms, total that operated for the entire year.
62. According to Census Bureau data for 1997, there were 4,476 Radio Stations (firms), total, that operated for the entire year.
63. Under the rules adopted in the
64. Additionally, we have conformed some of the rules that affect frequency bands that are shared among BAS licensees (part 74), CARS licensees (part 78), and fixed microwave licensees (part 101). Specifically, we have updated the rules that protect interference to geostationary satellites from receiving harmful interference from fixed stations to those currently listed in the ITU International Radio Regulations. The effect of this update is to expand the number of frequency bands to which these rules apply. We also have adopted for BAS equipment, emission limitations that are consistent with those already being used for fixed microwave stations. We also are generally requiring that all BAS applicants for fixed stations operating above 944 MHz comply with the same frequency coordination guidelines in place for fixed microwave stations.
65. Further changes entail providing technical guidelines for TV studio-to-transmitter links and TV relay stations that operate on UHF-TV channels. These guidelines have always been imposed, but never codified. Also, with respect to BAS Remote Pickup stations, we are altering their channel plan to be consistent with the same channel spacing requirements as are used for Private Land Mobile Radio stations in part 90 of our rules. Finally, as noted, we have allowed a new type of device to operate on certain VHF and UHF TV channels, wireless assist video devices. These devices will follow the existing
66. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
67. We have reduced burdens wherever possible. Our rules regarding the BAS would reduce burdens on small entities. First, we have simplified and expanded the opportunity for aural and TV BAS licensees to use digital modulation techniques in all of their allocated frequency bands. Currently, they can use these techniques only in a few bands and must file waiver requests and requests for special temporary authority (STA) to transmit digital signals in other bands. Our rules eliminate the need for these waivers and STAs, thus saving businesses the time it takes to prepare these requests and their associated filing fees. Second, we have altered the equation used to determine the allowable EIRP for short path lengths. Under our new rules, there will no longer be a large drop-off in allowable EIRP when the path length of a fixed station is slightly shorter than the minimum necessary for maximum power. The effect of this is to provide more flexibility in the way small entities design their systems. Because they will be able to use fewer sites, this has the effect of a reduction in the cost of a system. Third, we have allowed automatic transmit power control (ATPC). ATPC benefits small entities by reducing outages to digital receivers and expanding battery life. Both of these effects benefit small businesses by making their systems more reliable.
68. Many of our rule amendments and their benefits stem from the use of the ULS for application filing. This system, by providing for electronic filing on standardized forms, benefits small entities in several ways. Applicants can submit applications to the Commission as soon as they have the necessary information on-hand, and they receive instant feedback as to the correctness of that application because ULS will not accept the application for filing unless it is correct. If there are errors, ULS provided error messages so that the application can be corrected and resubmitted. Also, the system makes extensive use of electronic processing, so that many of the tasks that were done by hand are now one by computer. The overall effect is that applications are processed faster and licenses are issued sooner, thus allowing small entities to begin providing service in a more timely manner.
69. We have also adopted rule amendments that conform rules for similar services that share spectrum. These are TV BAS, CARS, and the fixed microwave service. As a whole, these amendments reduce burdens to small entities because many of these entities have licenses in each of these rule parts, but must currently contend with different rules in each part. Thus, small entities will benefit because they will, in many instances, be able to comply with a common set of rules for their systems, which operate in any of the named services.
70. Additionally, we have adopted many other rule changes that will benefit small entities. We are requiring that fixed BAS systems prior coordinate their frequency use, which will ensure that systems operate in a manner that minimizes the potential of causing interference. This protects the new system from possibly being shut down due to causing interference and protects the existing system from suffering a service disruption from receiving interference. Both of these results will benefit small entities operating in the BAS service. Along with the frequency coordination requirement, we have extended the ability to operate under temporary conditional authority to all BAS frequency bands. This benefits small entities by allowing them to begin operating sooner. Further, we have extended the reach of the short-term operation rule to all entities eligible for a BAS license. This benefits small entities because many would not need to obtain additional licenses from the Commission to provide limited service a few times a year in areas in which they do not traditionally operate. Such a change saves small entities the time and money that they would otherwise expend obtaining a license. Another change entails the Commission establishing technical requirements for operating TV STLs or TV relay stations on UHF-TV channels. This change permits applicants to know the requirements they must meet before applying for a license, thereby reducing the number or applications that must be returned by the Commission. Thus, small entities will benefit by having to respond to returned applications less often. We have also altered the channel plan for Remote Pickup BAS to conform to the channel plan adopted for PLMR services. Unless the same technical criteria are used for both services, different radios must be developed. Thus, our rules change will benefit small entities by lowering equipment costs. Finally, we have permitted motion picture and television producers to operate new wireless assist video devices on certain unused VHF and UHF TV channels. This will benefit small entities by providing a more cost effective means for producers to monitor multiple camera angles when producing program material.
71. The regulatory burdens we have retained, such as filing applications on appropriate forms, are necessary to ensure that the public receives the benefits of new and existing services in a prompt and efficient manner. We also considered revising the burden of frequency coordination for fixed BAS systems, but found that this alternative would unnecessarily increase the potential of harmful interference. However, under our frequency coordination procedures, entities may self coordinate rather than paying a frequency coordinator. We will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing significant economic impact on small entities.
72. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the
73. Pursuant to sections 1, 4(i), 302, 303(f) and (r), 332, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 4(i), 154(i), 302, 303(f) and (r), 332, 337, the
74. Pursuant to 5 U.S.C. 553(d)(1) and 553(d)(3), the rules implementing digital modulation of BAS stations specified in the rules section, specifically §§ 74.535 and 74.637 of the Commission's Rules, 47 CFR 74.535 and 74.637, became effective on October 30, 2002, adoption date of the
Administrative practice and procedure, Radio, Television.
Communications equipment, Radio.
Communications equipment, Radio, Reporting and recordkeeping requirements, Television.
Communications equipment, Radio, Reporting and recordkeeping requirements, Television.
Cable television, Communications equipment, Radio, Reporting and recordkeeping requirements.
Communications equipment, Radio.
47 U.S.C. 151, 154(i), 154(j) 155, 255, 303(r), 309 and 325(e).
These rules are issued pursuant to the Communications Act of 1934, as amended, 47 U.S.C. 151
In case of any conflict between the rules set forth in this subpart and the rules set forth in Parts 13, 20, 22, 24, 26, 27, 74, 80, 87, 90, 95, 97, and 101 of title 47, chapter I of the Code of Federal Regulations, the rules in part 1 shall govern.
(c) * * *
(4) In the Private Land Mobile Radio Services (PLMRS), the remote pickup broadcast auxiliary service, and GMRS systems licensed to non-individuals:
(d) In the microwave, aural broadcast auxiliary, and television broadcast auxiliary services:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
a. Revise pages 25, 26, 37, 38 and 76 of the Table.
b. In the list of United States Footnotes, revise footnote US11 and remove footnote US291.
c. In the list of non-Federal government footnotes, revise footnotes NG53 and NG115 and add footnote NG175.
The additions and revisions read as follows:
US11 The use of the frequencies 166.25 and 170.15 MHz may be authorized to non-Federal Government remote pickup broadcast base and land mobile stations and to non-Federal Government base, fixed and land mobile stations in the public safety radio services on the condition that harmful interference shall not be caused to present or future Federal Government stations in the band 162-174 MHz. Authorization on these frequencies shall be in the lower 48 contiguous States only, except within the area bounded on the west by the Mississippi River, on the north by the parallel of latitude 37°30′ N., and on the east and south by that are of the circle with center at Springfield, Illinois, and radius equal to the airline distance between Springfield, Illinois, and Montgomery, Alabama, subtended between the foregoing west and north boundaries. The use of these frequencies by remote pickup broadcast stations shall not be authorized for locations within 150 miles (241.4 km) of New York City; and use of these frequencies by the public safety radio services shall not be authorized except for locations within 150 miles of New York City.
NG53 In the band 12.7-13.15 GHz, television pickup stations and CARS pickup stations shall be assigned channels on a co-equal basis and shall operate on a secondary basis to fixed stations operating in accordance with the Table of Frequency Allocations. In the band 13.15-13.20 GHz, television pickup stations and CARS pickup stations shall be assigned channels on a primary co-equal basis within 50 kilometers of the television markets defined in 47 CFR 76.53. In the band 13.20-13.2125 GHz, television pickup stations shall be assigned channels on a primary basis, and CARS fixed and pickup stations shall operate on a secondary basis to television broadcast auxiliary stations.
NG115 In the bands 54-72 MHz, 76-88 MHz, 174-216 MHz, 470-608 MHz, and 614-806 MHz, wireless microphones and wireless assist video devices may be authorized on a non-interference basis, subject to the terms and conditions set forth in 47 CFR part 74, subpart H.
NG175 Television pickup stations in the mobile services authorized to use frequencies in the band 38.6-40.0 GHz on or before April 16, 2003, may continue to operate on a secondary basis to stations operating in accordance with the Table of Frequency Allocations.
47 U.S.C. 154, 303, 3334, and 336.
(a) * * *
(a) Each original construction permit for the construction of a new TV, AM, FM or International in such existing stations, shall specify a period of three years from the date of issuance of the original construction permit within which construction shall be completed and application for license filed.
47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.
(a) * * *
(4) Subpart F, “Wireless Telecommunications Services Applications and Proceedings”. (§§ 1.901 to 1.981).
(f) Part 101, “Fixed Microwave Services”.
Applicants for and licensees of remote pickup broadcast stations, aural broadcast auxiliary stations, television broadcast auxiliary stations, and low power auxiliary stations authorized under subparts D, E, F, and H of this part are subject to the application and procedural rules for wireless telecommunications services contained in part 1, subpart F of this chapter. Applicants for these stations may file either manually or electronically as specified in §§ 1.913(b) and (d) of this chapter.
(f) Licenses held by broadcast network-entities under Subpart F will ordinarily be issued for a period of 8 years running concurrently with the
All classes of broadcast auxiliary stations provided for in subparts D, E, F and H of this part, except wireless video assist devices, may be operated on a short-term basis under the authority conveyed by a part 73 license or a broadcast auxiliary license without prior authorization from the FCC, subject to the following conditions:
(a) Licensees operating under this provision must be eligible to operate the particular class of broadcast auxiliary station.
(d) Short-term operation under this section shall not exceed 720 hours annually per frequency.
Certain frequencies shared with other services which are normally available for permanent broadcast auxiliary station assignment may not be available for short-term operation. Refer to any note(s) which may be applicable to the use of a specific frequency prior to initiating operation.
(f) Stations operated pursuant to this section shall be identified by the transmission of the call sign of the associated part 73 broadcast station or broadcast auxiliary station, or, in the case of stations operated by broadcast network and cable network entities, by the network or cable entity's name and base of operations city.
(g) Prior to operating pursuant to the provisions of this section, licensees shall, for the intended location or area-of-operation, notify the appropriate frequency coordination committee or any licensee(s) assigned the use of the proposed operating frequency, concerning the particulars of the intended operation and shall provide the name and telephone number of a person who may be contacted in the event of interference. Except as provided herein, this notification provision shall not apply where an unanticipated need for immediate short-term mobile station operation would render compliance with the provisions of this paragraph impractical.
(1) A CARS licensee shall always be given advance notification prior to the commencement of short-term operation on or adjacent to an assigned frequency.
(2) The Commission may designate a frequency coordinator as the single point of contact under this section for advance coordination of major national and international events. Once designated, all short-term auxiliary broadcast use under this section must be coordinated in advance through the designated coordinator.
(i) Coordinators under this provision will not be designated unless the Commission receives an initial request, in writing, to designate a coordinator.
(ii) The Commission will issue a Public Notice with information regarding the designation of such a coordinator.
(iii) All coordination must be done on a non-discriminatory basis.
(iv) All licensees must abide by the decision of the coordinator. The Commission will be the final arbiter of any disputes.
(3) An unanticipated need will never be deemed to exist for a scheduled event, such as a convention, sporting event, etc.
(h) * * *
(1) Use of broadcast auxiliary service frequencies below 470 MHz is limited to areas of the United States south of Line A or west of Line C unless the effective radiated power of the station is 5 watts or less.
(i) Short-term operation of a remote pickup broadcast base station, a remote pickup automatic relay station, an aural broadcast STL station, an aural broadcast intercity relay station, a TV STL station, a TV intercity relay station or a TV translator relay station in the National Radio Quiet Zone, the Table Mountain Radio Receiving Zone, or near FCC monitoring stations is subject to the same advance notification procedures applicable to regular applications as provided for in §§ 73.1030 and 74.12, except that inasmuch as short-term operation does not involve an application process, the provisions relating to agency objection procedures shall not apply. It shall simply be necessary for the licensee to contact the potentially affected agency and obtain advance approval for the proposed short-term operation. Where protection to FCC monitoring stations is concerned, approval for short-term operation may be given by the District Director of a Commission field facility.
An applicant for a new broadcast auxiliary radio service station or a modification of an existing station under subparts D, E, F, or H of this part may operate the proposed station during the pendency of its applications upon the filing of a properly completed formal application that complies with the rules for the particular class of station, provided that the conditions set forth are satisfied.
(a) Conditions applicable to all broadcast auxiliary stations.
(1) Stations operated pursuant to this section shall be identified by the transmission of the call sign of the associated part 73 of this chapter broadcast station, if one exists, or the prefix “WT” followed by the applicant's local business telephone number for broadcast or cable network entities.
(2) The antenna structure(s) has been previously studied by the Federal Aviation Administration and determined to pose no hazard to aviation safety as required by subpart B of part 17 of this chapter; or the antenna or tower structure does not exceed 6.1 meters above ground level or above an existing man-made structure (other than an antenna structure), if the antenna or tower has not been previously studied by the Federal Aviation Administration and cleared by the FCC;
(3) The grant of the application(s) does not require a waiver of the Commission's rules;
(4) The applicant has determined that the facility(ies) will not significantly affect the environment as defined in § 1.1307 of this chapter;
(5) The station site does not lie, within a radio “Quiet Zone” identified in § 1.924 of this chapter.
(b) Conditions applicable to remote pickup broadcast auxiliary stations.
(1) The auxiliary station must be located within 80 km (50 mi) of the broadcast studio or broadcast transmitter.
(2) The applicant must coordinate the operation with all affected co-channel and adjacent channel licensees in the area of operation. This requirement can be satisfied by coordination with the local frequency committee if one exists.
(3) Operation under this provision is not permitted between 152.87 MHz and 153.35 MHz.
(c) Conditions applicable to aural and television broadcast auxiliary stations.
(1) The applicable frequency coordination procedures have been successfully completed and the filed application is consistent with that coordination.
(2) The station site does not lie within an area requiring international coordination.
(3) If operated on frequencies in the 17.8-19.7 GHz band, the station site does not lie within any of the areas identified in § 1.924 of this chapter.
(d) Operation under this section shall be suspended immediately upon notification from the Commission or by the District Director of a Commission field facility, and shall not be resumed until specific authority is given by the Commission or District Director. When authorized by the District Director, short test operations may be made.
(e) Conditional authority ceases immediately if the application(s) is returned by the Commission because it is not acceptable for filing.
(f) Conditional authorization does not prejudice any action the Commission may take on the subject application(s). Conditional authority is accepted with the express understanding that such authority may be modified or cancelled by the Commission at any time without hearing if, in the Commission's discretion, the need for such action arises. An applicant operating pursuant to this conditional authority assumes all risks associated with such operation, the termination or modification of the conditional authority, or the subsequent dismissal or denial of its application(s).
(a) Each aural and television broadcast auxiliary station authorized under subparts E and F of this part must be in operation within 18 months from the initial date of grant.
(b) Each remote pickup broadcast auxiliary station authorized under subpart D of this part must be in operation within 12 months from the initial date of grant.
(c) Failure to timely begin operation means the authorization terminates automatically.
(d) Requests for extension of time may be granted upon a showing of good cause pursuant to § 1.946(e) of this chapter.
(e) Construction of any authorized facility or frequency must be completed by the date specified in the license and the Commission must be notified pursuant to § 1.946 of this chapter.
Operation on all channels listed in this section (except: frequencies 26.07 MHz, 26.11 MHz, and 26.45 MHz, and frequencies listed in paragraphs (a)(4) and (c)(1) of this section shall be in accordance with the “priority of use” provisions in § 74.403(b)). The channel will be assigned by its center frequency, channel bandwidth, and emission designator. In general, the frequencies listed in this section represent the center of the channel or channel segment. When an even number of channels are stacked in those sections stacking is permitted, channel assignments may be made for the frequency halfway between those listed.
(a) The following channels (except 1606, 1622, and 1646 kHz) may be assigned for use by broadcast remote pickup stations using any emission (other than single sideband or pulse) that will be in accordance with the provisions of § 74.462.
(1) MF Channels: 1606, 1622, and 1646 kHz. The channel 1606 kHz is subject to the condition listed in paragraph (e)(1) of this section.
(2) HF Channels: 25.87, 25.91, 25.95, 25.99, 26.03, 26.07, 26.09, 26.11, 26.13, 26.15, 26.17, 26.19, 26.21, 26.23, 26.25, 26.27, 26.29, 26.31, 26.33, 26.35, 26.37, 26.39, 26.41, 26.43, 26.45, and 26.47 MHz. The channels 25.87-26.09 MHz are subject to the condition listed in paragraph (e)(2) of this section.
(3) VHF Channels: 166.25 and 170.15 MHz. These channels are subject to the condition listed in paragraph (e)(8) of this section.
(4) UHF Channels: Up to two of the following 6.25 kHz segments may be stacked to form a channel which may be assigned for use by broadcast remote pickup stations using any emission contained within the resultant channel in accordance with the provisions of § 74.462: 450.00625 MHz, 450.0125 MHz, 450.01875 MHz, 450.025 MHz, 450.98125 MHz, 450.9875 MHz, 450.99375 MHz, 455.00625 MHz, 455.0125 MHz, 455.01875 MHz, 455.025 MHz, 455.98125 MHz, 455.9875 MHz, and 455.99375 MHz. These channels are subject to the condition listed in paragraph (e)(9) of this section.
(b) Up to four of the following 7.5 kHz VHF segments and up to eight of the following 6.25 kHz UHF segments may be stacked to form a channel which may be assigned for use by broadcast remote pickup stations using any emission contained within the resultant channel in accordance with the provisions of § 74.462.
(1) VHF segments: 152.8625, 152.870, 152.8775, 152.885, 152.8925, 152.900, 152.9075, 152.915, 152.9225, 152.930, 152.9375, 152.945, 152.9525, 152.960, 152.9675, 152.975, 152.9825, 152.990, 152.9975, 153.005, 153.0125, 153.020, 153.0275, 153.035, 153.0425, 153.050, 153.0575, 153.065, 153.0725, 153.080, 153.0875, 153.095, 153.1025, 153.110, 153.1175, 153.125, 153.1325, 153.140, 153.1475, 153.155, 153.1625, 153.170, 153.1775, 153.185, 153.1925, 153.200, 153.2075, 153.215, 153.2225, 153.230, 153.2375, 153.245, 153.2525, 153.260, 153.2675, 153.275, 153.2825, 153.290, 153.2975, 153.305, 153.3125, 153.320, 153.3275, 153.335, 153.3425, 153.350, and 153.3575. These channels are subject to the conditions listed in paragraphs (e)(3), (4), (5), and (10) of this section.
(2) VHF segments: 160.860, 160.8675, 160.875, 160.8825, 160.890, 160.8975, 160.905, 160.9125, 160.920, 160.9275, 160.935, 160.9425, 160.950, 160.9575, 160.965, 160.9725, 160.980, 160.9875, 160.995, 161.0025, 161.010, 161.0175, 161.025, 161.0325, 161.040, 161.0475, 161.055, 161.0625, 161.070, 161.0775, 161.085, 161.0925, 161.100, 161.1075, 161.115, 161.1225, 161.130, 161.1375, 161.145, 161.1525, 161.160, 161.1675, 161.175, 161.1825, 161.190, 161.1975, 161.205, 161.2125, 161.220, 161.2275, 161.235, 161.2425, 161.250, 161.2575, 161.265, 161.2725, 161.280, 161.2875, 161.295, 161.3025, 161.310, 161.3175, 161.325, 161.3325, 161.340, 161.3475, 161.355, 161.3625, 161.370, 161.3775, 161.385, 161.3925, 161.400. These channels are subject to the condition listed in paragraph (e)(6) and (10) of this section.
(3) VHF segments: 161.625, 161.6325, 161.640, 161.6475, 161.655, 161.6625, 161.670, 161.6775, 161.685, 161.6925, 161.700, 161.7075, 161.715, 161.7225, 161.730, 161.7375, 161.745, 161.7525, 161.760, 161.7675, 161.775. These channels are subject to the conditions listed in paragraphs (e)(4), (7), and (10) of this section.
(4) UHF segments: 450.03125, 450.0375, 450.04375, 450.050, 450.05625, 450.0625, 450.06875, 450.075, 450.08125, 450.0875, 450.09375, 450.100, 450.10625, 450.1125, 450.11875, 450.125, 450.13125, 450.1375, 450.14375, 450.150, 450.15625, 450.1625, 450.16875, 450.175, 450.18125, 450.1875, 450.19375, 450.200, 450.20625, 450.2125, 450.21875, 450.225, 450.23125, 450.2375, 450.24375, 450.250, 450.25625, 450.2625, 450.26875, 450.275, 450.28125, 450.2875, 450.29375, 450.300, 450.30625, 450.3125, 450.31875, 450.325, 450.33125, 450.3375, 450.34375, 450.350, 450.35625, 450.3625, 450.36875, 450.375, 450.38125, 450.3875, 450.39375, 450.400, 450.40625, 450.4125, 450.41875, 450.425, 450.43125, 450.4375, 450.44375, 450.450, 450.45625, 450.4625,
(c) Up to two of the following 25 kHz segments may be stacked to form a channel which may be assigned for use by broadcast remote pickup stations using any emission contained within the resultant channel in accordance with the provisions of § 74.462. Users committed to 50 kHz bandwidths and transmitting program material will have primary use of these channels.
(1) UHF segments: 450.6375, 450.6625, 450.6875, 450.7125, 450.7375, 450.7625, 450.7875, 450.8125, 450.8375, 450.8625, 455.6375, 455.6625, 455.6875, 455.7125, 455.7375, 455.7625, 455.7875, 455.8125, 455.8375, 455.8625 MHz.
(2) [Reserved]
(d) Up to two of the following 50 kHz segments may be stacked to form a channel which may be assigned for use by broadcast remote pickup stations using any emission contained within the resultant channel in accordance with the provisions of § 74.462. Users committed to 100 kHz bandwidths and transmitting program material will have primary use of these channels.
(1) UHF segments: 450.900, 450.950, 455.900, and 455.950 MHz.
(2) [Reserved]
(e) Conditions on Broadcast Remote Pickup Service channel usage as referred to in paragraphs (a) through (d) of this section:
(1) Operation is subject to the condition that no harmful interference is caused to the reception of AM broadcast stations.
(2) Operation is subject to the condition that no harmful interference is caused to stations in the broadcast service.
(3) Operation is subject to the condition that no harmful interference is caused to stations operating in accordance with the Table of Frequency Allocations set forth in part 2 of this chapter. Applications for licenses to use frequencies in this band must include statements showing what procedures will be taken to ensure that interference will not be caused to stations in the Industrial/Business Pool (Part 90).
(4) These frequencies will not be licensed to network entities.
(5) These frequencies will not be authorized to new stations for use on board aircraft.
(6) These frequencies are allocated for assignment to broadcast remote pickup stations in Puerto Rico or the Virgin Islands only.
These frequencies are shared with Public Safety and Industrial/Business Pools (Part 90).
(7) These frequencies may not be used by broadcast remote pickup stations in Puerto Rico or the Virgin Islands. In other areas, certain existing stations in the Public Safety and Industrial/Business Pools (Part 90) have been permitted to continue operation on these frequencies on the condition that no harmful interference is caused to broadcast remote pickup stations.
(8) Operation on frequencies 166.25 MHz and 170.15 MHz is subject to the condition that harmful interference shall not be caused to present or future Government stations in the band 162-174 MHz and is also subject to the bandwidth and tolerance limitations and compliance deadlines listed in § 74.462 of this part. Authorization on these frequencies shall be in the lower 48 contiguous States only, except within the area bounded on the west by the Mississippi River, on the north by the parallel of latitude 37°30′ N., and on the east and south by that arc of the circle with center at Springfield, Illinois, and radius equal to the airline distance between Springfield, Illinois, and Montgomery, Alabama, subtended between the foregoing west and north boundaries, or within 150 miles (241.4 km) of New York City.
(9) The use of these frequencies is limited to operational communications, including tones for signaling and for remote control and automatic transmission system control and telemetry. Stations licensed or applied for before April 16, 2003, must comply with the channel plan by March 17, 2006, or may continue to operate on a secondary, non-interference basis.
(10) Stations licensed or applied for before April 16, 2003, must comply with the channel plan by March 17, 2006, or may continue to operate on a secondary, non-interference basis.
(f) License applicants shall request assignment of only those channels, both in number and bandwidth, necessary for satisfactory operation and for which the system is equipped to operate. However, it is not necessary that each transmitter within a system be equipped to operate on all frequencies authorized to that licensee.
(g) Remote pickup stations or systems will not be granted exclusive channel assignments. The same channel or channels may be assigned to other licensees in the same area. When such sharing is necessary, the provisions of § 74.403 shall apply.
(b) The following order of priority of transmissions shall be observed on all frequencies except frequencies 26.07 MHz, 26.11 MHz, and 26.45 MHz, and frequencies listed in § 74.402(a)(4) and (c)(1):
(i) Remote pickup mobile or base stations may be used for activities associated with the Emergency Alert System (EAS) and similar emergency survival communications systems. Drills and test are also permitted on these stations, but the priority requirements of § 74.403(b) must be observed in such cases.
(b) Base stations may operate as automatic relay stations on the frequencies listed in § 74.402(b)(4) and (c)(1) under the provisions of § 74.436, however, one licensee may not operate such stations on more than two frequency pairs in a single area.
(g) An application for a remote pickup broadcast station or system shall specify the broadcasting station with which the remote pickup broadcast facility is to be principally used and the licensed area of operation for a system which includes mobile stations shall be the area considered to be served by the associated broadcasting station. Mobile stations may be operated outside the licensed area of operation pursuant to § 74.24 of this part. Where the applicant for remote pickup broadcast facilities is the licensee of more than one class of broadcasting station (AM, FM, TV), all licensed to the same community, designation of one such station as the associated broadcasting station will not preclude use of the remote pickup broadcast facilities with those broadcasting stations not included in the designation and such additional use shall be at the discretion of the licensee.
(k) In case of permanent discontinuance of operations of a station licensed under this subpart, the licensee shall cancel the station license using FCC Form 601. For purposes of this section, a station which is not operated for a period of one year is considered to have been permanently discontinued.
(b) A request for special temporary authority for the operation of a remote pickup broadcast station must be made in accordance with the procedures of § 1.931(b) of this chapter.
(c) All requests for special temporary authority of a remote pickup broadcast station must include full particulars including: licensee's name and address, facility identification number of the associated broadcast station or stations, call letters of remote pickup station (if assigned), type and manufacturer of equipment, power output, emission, frequency or frequencies proposed to be used, commencement and termination date, location of operation and purpose for which request is made including any particular justification.
(a) Applications for new remote pickup broadcast stations or systems or for changing transmitting equipment of an existing station will not be accepted unless the transmitters to be used have been certificated by the FCC pursuant to the provisions of this subpart, or have been certificated for licensing under part 90 of this chapter and do not exceed the output power limits specified in § 74.461(b).
(a) Modifications may be made to an existing authorization in accordance with §§ 1.929 and 1.947 of this chapter.
(b) All transmitters initially installed after November 30, 1977, must be certificated for use in this service or other service as specified in § 74.451(a).
(a) Each authorization for a new remote pickup broadcast station or system shall require the use of certificated equipment and such equipment shall be operated in accordance with emission specifications included in the grant of certification and as prescribed in paragraphs (b), (c), and (d) of this section.
(b) * * *
(c) For emissions on frequencies above 25 MHz with authorized bandwidths up to 30 kHz, the emissions shall comply with the emission mask and transient frequency behavior requirements of §§ 90.210 and 90.214 of this chapter. For all other emissions, the mean power of emissions shall be attenuated below the mean output power of the transmitter in accordance with the following schedule:
For operations on frequencies above 25 MHz using authorized bandwidths up to 30 kHz, the licensee of a remote pickup broadcast station or system shall maintain the operating frequency of each station in compliance with the frequency tolerance requirements of § 90.213 of this chapter. For all other operations, the licensee of a remote pickup broadcast station or system shall maintain the operating frequency of each station in accordance with the following:
(a) Each remote pickup broadcast station shall be identified by the transmission of the assigned station or system call sign, or by the call sign of the associated broadcast station. For systems, the licensee (including those operating pursuant to § 74.24 of this part) shall assign a unit designator to each station in the system. The call sign (and unit designator, where appropriate) shall be transmitted at the beginning and end of each period of operation. A period of operation may consist of a single continuous transmission, or a series of intermittent transmissions pertaining to a single event.
(e) For stations using F1E or G1E emissions, identification shall be transmitted in the unscrambled analog (F3E) mode or in International Morse Code pursuant to the provisions of paragraph (d) of this section at intervals not to exceed 15 minutes. For purposes of rule enforcement, all licensees using F1E or G1E emissions shall provide, upon request by the Commission, a full and complete description of the encoding methodology they currently use.
(b) The frequency band 944-952 MHz is available for assignment to aural STL and ICR stations. One or more of the following 25 kHz segments may be stacked to form a channel which may be assigned with a maximum authorized bandwidth of 300 kHz except as noted in the following Table. The channel, will be assigned by its center frequency, channel bandwidth, and emission designator. The following frequencies are the centers of individual segments. When stacking an even number of segments, the center frequency specified will deviate from the following frequencies in that it should correspond to the actual center of stacked channels. When stacking an odd number of channels, the center frequency specified will correspond to one of the following frequencies.
(c) * * *
(1) * * *
(ii) Licensees may use either a two-way link or one frequency of a frequency pair for a one-way link.
(d) For the coordination of all frequency assignments for fixed stations above 944 MHz, for each frequency authorized under this part, the interference protection criteria in § 101.105(a), (b), and (c) of this chapter and the frequency usage coordination procedures of § 101.103(d) of this chapter will apply.
(f) In case of permanent discontinuance of operations of a station licensed under this subpart, the licensee shall cancel the station license using FCC Form 601. For purposes of this section, a station which is not operated for a period of one year is considered to have been permanently discontinued.
(a)
(2) In the 17,700 to 19,700 MHz band, transmitter output power shall not exceed 10 watts.
(b) In no event shall the average equivalent isotropically radiated power (EIRP), as referenced to an isotropic radiator, exceed the values specified in the following table. In cases of harmful interference, the Commission may, after notice and opportunity for hearing, order a change in the equivalent isotropically radiated power of this station.
(c) The EIRP of transmitters that use Automatic Transmitter Power Control (ATPC) shall not exceed the EIRP specified on the station authorization. The EIRP of non-ATPC transmitters shall be maintained as near as practicable to the EIRP specified on the station authorization.
(a) The mean power of emissions shall be attenuated below the mean transmitter power (P
(1) When using frequency modulation:
(i) On any frequency removed from the assigned (center) frequency by more than 50% up to and including 100% of the authorized bandwidth: At least 25 dB in any 100 kHz reference bandwidth (B
(ii) On any frequency removed from the assigned (center) frequency by more than 100% up to and including 250% of the authorized bandwidth: At least 35 dB in any 100 kHz reference bandwidth;
(iii) On any frequency removed from the assigned (center) frequency by more than 250% of the authorized bandwidth: At least 43+10 log
(2) When using transmissions employing digital modulation techniques:
(i) For operating frequencies below 15 GHz, in any 4 kHz reference bandwidth (B
(ii) For operating frequencies above 15 GHz, in any 1 MHz reference bandwidth (B
(iii) In any 4 kHz reference bandwidth (B
(b) For all emissions not covered in paragraph (a) of this section, the peak power of emissions shall be attenuated below the peak envelope transmitter power (P
(1) On any frequency 500 Hz inside the channel edge up to and including 2500 Hz outside the same edge, the following formula will apply:
(2) On any frequency removed from the channel edge by more than 2500 Hz: At least 43+10 Log
(d) For purposes of compliance with the emission limitation requirements of this section:
(1) If the transmitter modulates a single carrier, digital modulation techniques are considered as being employed when digital modulation occupies 50 percent or more of the total peak frequency deviation of a transmitted radio frequency carrier. The total peak frequency deviation will be determined by adding the deviation produced by the digital modulation signal and the deviation produced by any frequency division multiplex (FDM) modulation used. The deviation (D) produced by the FDM signal must be determined in accordance with § 2.202(f) of this chapter.
(2) If the transmitter modulates two or more carriers, with at least one using digital modulation and one using frequency or other analog modulation, digital modulation techniques are considered as being employed when the necessary bandwidth of the digital signal(s) is 50 percent or more of the aggregate bandwidth of the system, comprising the digital necessary bandwidth(s), the analog necessary bandwidth(s), and any bandwidth(s) between the digital and analog necessary bandwidths. In this case, the aggregate bandwidth shall be used for the authorized bandwidth (B) in paragraph (a) of this section, and for purposes of compliance with the bandwidth limitations in § 74.502 of this subpart; and the sum of the powers of the analog and digital signals shall be used for mean transmitter power (P
(3) For demonstrating compliance with the attenuation requirements for frequency modulation and digital modulation in paragraph (a) of this section, the resolution bandwidth (B
(4) Stations licensed pursuant to an application filed before March 17, 2005, using equipment not conforming with the emission limitations specified above, may continue to operate indefinitely in accordance with the terms of their current authorizations, subject to periodic renewal. Existing equipment and equipment of product lines in production before April 16, 2003, authorized via certification or verification before March 17, 2005, for equipment not conforming to the emission limitations requirements specified above, may continue to be manufactured and/or marketed, but may not be authorized for use under a station license except at stations licensed pursuant to an application filed before March 17, 2005. Any non-conforming equipment authorized under a station license, and replaced on or after March 17, 2005, must be replaced by conforming equipment.
(b) A request for special temporary authority for the operation of an aural broadcast STL or an intercity relay station must be made in accordance with the procedures of § 1.931(b) of this chapter.
(c) All requests for special temporary authority of an aural broadcast auxiliary stations must include full particulars including: licensee's name and address, facility identification number of the associated broadcast station(s), call letters of the aural broadcast STL or intercity relay station, if assigned, type and manufacturer of equipment, effective isotropic radiated power, emission, frequency or frequencies proposed for use, commencement and termination date and location of the proposed operation, and purpose for which request is made including any particular justification.
35. Section 74.551 is amended by revising paragraph (a) introductory text, removing paragraphs (b) and (c), and redesignating paragraph (d) as paragraph (b) to read as follows:
(a) Modifications may be made to an existing authorization in accordance with §§ 1.929 and 1.947 of this chapter.
(a) The following frequencies are available for assignment to television pickup, television STL, television relay and television translator relay stations. The band segments 17,700-18,580 and 19,260-19,700 MHz are available for broadcast auxiliary stations as described in paragraph (g) of this section. The band segment 6425-6525 MHz is available for broadcast auxiliary stations as described in paragraph (i) of this section. Broadcast network-entities may also use the 1990-2110, 6425-6525 and 6875-7125 MHz bands for mobile television pickup only.
(d) Cable Television Relay Service stations may be assigned channels in Band D between 12,700 and 13,200 MHz subject to the condition that no harmful interference is caused to TV STL and TV relay stations authorized at the time of such grants. Similarly, new TV STL and TV relay stations must not cause harmful interference to cable television relay stations authorized at the time of such grants. The use of channels between 12,700 and 13,200 MHz by TV pickup stations is subject to the condition that no harmful interference is caused to Cable Television Relay Service stations, TV STL and TV relay stations, except as provided for in § 74.602(a) Note 2. Band D channels are also shared with certain Private Operational Fixed Stations, see § 74.638.
(f) TV auxiliary stations licensed to low power TV stations and translator relay stations will be assigned on a secondary basis,
(h) TV STL, TV relay stations, and TV translator relay stations may be authorized to operate fixed point-to-point service on the UHF TV channels 14-69 on a secondary basis and subject to the provisions of subpart G of this part:
(1) Applications for authorization in accordance with this paragraph must comply with the following technical limits or be accompanied by an engineering analysis demonstrating why these limits must be exceeded:
(i) Maximum EIRP is limited to 35 dBW;
(ii) Transmitting antenna beamwidth is limited to 25 degrees (measured at the 3 dB points); and
(iii) Vertical polarization is used.
(2) These stations must not interfere with and must accept interference from current and future full-power UHF-TV stations, LPTV stations, and translator stations. They will also be secondary to land mobile stations in areas where land mobile sharing is currently permitted.
(3) TV STL and TV relay stations licensed for operation on UHF TV channels 52-69 based on applications filed before April 16, 2003, may continue to operate under the terms of their current authorizations until the end of transition to digital television in their market (DTV Transition), as set forth in §§ 73.622 through 73.625 of this chapter. Applications for TV STL and TV relay stations operating on UHF TV channels 52-69 will not be accepted for filing on or after April 16, 2003.
(4) TV translator relay stations licensed for operation on UHF TV channels 52-59 based on applications filed before the end of DTV transition may continue to operate under the terms of their current authorizations indefinitely. TV translator relay stations licensed for operation on UHF TV channels 60-69 based on applications filed before the end of DTV transition may continue to operate under the terms of their current authorizations until the end of DTV Transition. Applications for TV translator relay stations operating on UHF TV channels 52-69 will not be accepted for filing on or after the end of DTV Transition.
(i)
(a) The licensee of a television pickup station authorizes the transmission of program material, orders concerning such program material, and related communications necessary to the accomplishment of such transmissions, from the scenes of events occurring in places other than a television studio, to its associated television broadcast station, to an associated television relay station, to such other stations as are broadcasting the same program material, or to the network or networks with which the television broadcast station is affiliated. * * *
(c) An application for a new TV pickup station shall designate the TV broadcast station with which it is to be operated and specify the area in which the proposed operation is intended. The maximum permissible area of operation will generally be that of a standard metropolitan area, unless a special showing is made that a larger area is necessary.
(e) A license for a TV translator relay station will be issued only to licensees of low power TV and TV translator stations.
(g) In case of permanent discontinuance of operations of a station licensed under this subpart, the licensee shall cancel the station license using FCC Form 601. For purposes of this section, a station which is not operated for a period of one year is considered to have been permanently discontinued.
(b) A request for special temporary authority for the operation of a television broadcast auxiliary station must be made in accordance with the procedures of § 1.931(b) of this chapter.
(c) All requests for special temporary authority of a television broadcast auxiliary station must include full particulars including: licensee's name and address, facility identification number of the associated broadcast station(s) (if any), call letters of the television broadcast STL or intercity relay station (if assigned), type and manufacturer of equipment, effective isotropic radiated power, emission, frequency or frequencies proposed for use, commencement and termination date and location of the proposed operation, and purpose for which request is made including any particular justification.
(a) On any authorized frequency, transmitter peak output power and the average power delivered to an antenna in this service must be the minimum amount of power necessary to carry out the communications desired and shall not exceed the values listed in the following table. Application of this principle includes, but is not to be limited to, requiring a licensee who replaces one or more of its antennas with larger antennas to reduce its antenna input power by an amount appropriate to compensate for the increased primary lobe gain of the replacement antenna(s). In no event shall the average equivalent isotropically radiated power (EIRP), as referenced to an isotropic radiator, exceed the values specified in the following table. In cases of harmful interference, the Commission may, after notice and opportunity for hearing, order a change in the effective radiated power of this station. The table follows:
(b) The EIRP of transmitters that use Automatic Transmitter Power Control (ATPC) shall not exceed the EIRP specified on the station authorization. The EIRP of non-ATPC transmitters shall be maintained as near as practicable to the EIRP specified on the station authorization.
(a) The mean power of emissions shall be attenuated below the mean transmitter power (P
(1) When using frequency modulation:
(i) On any frequency removed from the assigned (center) frequency by more than 50% up to and including 100% of the authorized bandwidth: At least 25 dB in any 100 kHz reference bandwidth (B
(ii) On any frequency removed from the assigned (center) frequency by more than 100% up to and including 250% of the authorized bandwidth: At least 35 dB in any 100 kHz reference bandwidth;
(iii) On any frequency removed from the assigned (center) frequency by more than 250% of the authorized bandwidth: At least 43+10 log
(2) When using transmissions employing digital modulation techniques:
(i) For operating frequencies below 15 GHz, in any 4 kHz reference bandwidth (B
(ii) For operating frequencies above 15 GHz, in any 1 MHz reference bandwidth (B
(iii) In any 4 kHz reference bandwidth (B
(3) Amplitude Modulation. For vestigial sideband AM video: On any frequency removed from the center frequency of the authorized band by more than 50%: at least 50 dB below peak power of the emission.
(b) For all emissions not covered in paragraph (a) of this section, the peak power of emissions shall be attenuated below the peak envelope transmitter power (P
(1) On any frequency 500 Hz inside the channel edge up to and including 2500 Hz outside the same edge, the following formula will apply:
(2) On any frequency removed from the channel edge by more than 2500 Hz: At least 43 + 10 Log
(c) For purposes of compliance with the emission limitation requirements of this section:
(1) If the transmitter modulates a single carrier, digital modulation techniques are considered as being employed when digital modulation occupies 50 percent or more of the total peak frequency deviation of a transmitted radio frequency carrier. The total peak frequency deviation will be determined by adding the deviation produced by the digital modulation signal and the deviation produced by any frequency division multiplex (FDM) modulation used. The deviation (D) produced by the FDM signal must be determined in accordance with § 2.202(f) of this chapter.
(2) If the transmitter modulates two or more carriers, with at least one using digital modulation and one using frequency or other analog modulation, digital modulation techniques are considered as being employed when the necessary bandwidth of the digital signal(s) is 50 percent or more of the aggregate bandwidth of the system, comprising the digital necessary bandwidth(s), the analog necessary bandwidth(s), and any bandwidth(s) between the digital and analog necessary bandwidths. In this case, the aggregate bandwidth shall be used for the authorized bandwidth (B) in paragraph (a) of this section, and for purposes of compliance with the bandwidth limitations in paragraph (g) of this section and in § 74.602 of this subpart; and the sum of the powers of the analog and digital signals shall be used for mean transmitter power (P
(3) For demonstrating compliance with the attenuation requirements for frequency modulation and digital modulation in paragraph (a) of this section, the resolution bandwidth (B
(4) Stations licensed pursuant to an application filed before March 17, 2005, using equipment not conforming with the emission limitations specified above, may continue to operate indefinitely in accordance with the terms of their current authorizations, subject to periodic renewal. Existing equipment and equipment of product lines in production before April 16, 2003, authorized via certification or verification before March 17, 2005, for equipment not conforming to the emission limitations requirements specified above, may continue to be manufactured and/or marketed, but may not be authorized for use under a station license except at stations licensed pursuant to an application filed before March 17, 2005. Any non-conforming equipment authorized under a station license, and replaced on or after March 17, 2005, must be replaced by conforming equipment.
(a) Coordination of all frequency assignments for fixed stations in all
(b) Frequency coordination for all fixed stations in all bands above 2110 MHz, and for all mobile (temporary fixed) stations in the bands 6425-6525 MHz and 17.7-19.7 GHz. For each frequency authorized under this part, the interference protection criteria in § 101.105(a), (b), and (c) of this chapter and the frequency usage coordination procedures in § 101.103(d) of this chapter will apply, except that only stations in the bands 6425-6525 MHz and 17.7-19.7 GHz are subject to the provision in § 101.103(d) requiring compliance with § 101.21(f) of this chapter in coordinating frequency usage with stations in the fixed satellite service.
(c) Frequency coordination for all fixed stations in the band 1990-2110 MHz. For each frequency authorized under this part, the following frequency usage coordination procedures will apply:
(1)
(2) To be acceptable for filing, all applications for regular authorization, or major amendment to a pending application, or major modification to a license, must include a certification attesting that all co-channel and adjacent-channel licensees and applicants potentially affected by the proposed fixed use of the frequency(ies) have been notified and are in agreement that the proposed facilities can be installed without causing harmful interference to those other licensees and applicants.
(d) Frequency coordination for all mobile (temporary fixed) stations in all bands above 1990 MHz, except the bands 6425-6525 MHz and 17.7-19.7 GHz. For each frequency authorized under this part, applicants are responsible for selecting the frequency assignments that are least likely to result in mutual interference with other licensees in the same area. Applicants may consult local frequency coordination committees, where they exist, for information on frequencies available in the area. In selecting frequencies, consideration should be given to the relative location of receive points, normal transmission paths, and the nature of the contemplated operation.
(a) For fixed stations operating above 2025 MHz, the following standards apply:
(5) Pickup stations are not subject to the performance standards herein stated.
(b) All fixed stations are to use antenna systems in conformance with the standards of this section. TV auxiliary broadcast stations are considered to be located in an area subject to frequency congestion and must employ a Category A antenna when:
Applicants and licensees must comply with § 101.145 of this chapter to minimize the potential of interference to geostationary-satellites.
(a) * * *
(b) For paths shorter than those specified in the Table, the EIRP shall not exceed the value derived from the following equation.
For transmitters using Automatic Transmitter Power Control, EIRP corresponds to the maximum transmitter power available, not the coordinated transmit power or the nominal transmit power.
Stations licensed based on an application filed before April 16, 2003, in the 2450-2483.5 MHz band, for EIRP values exceeding those specified above, may continue to operate indefinitely in accordance with the terms of their current authorizations, subject to periodic renewal.
(a) Modifications may be made to an existing authorization in accordance with §§ 1.929 and 1.947 of this chapter.
(b) Multiplexing equipment may be installed on any licensed TV broadcast STL, TV relay or translator relay station without authority from the Commission.
(b) * * *
(3) 470.000-608.000 MHz and 614.000-806.000 MHz.
(e) An application for low power auxiliary stations or for a change in an existing authorization shall specify the broadcast station, or the network with which the low power broadcast auxiliary facilities are to be principally used as given in paragraph (h) of this section; or it shall specify the motion picture or television production company or the cable television operator with which the low power broadcast auxiliary facilities are to be solely used. A single application, filed on FCC Form 601 may be used in applying for the authority to operate one or more low power auxiliary units. The application must specify the frequency bands which will be used. Motion picture producers, television program producers, and cable television operators are required to attach a single sheet to their application form explaining in detail the manner in which the eligibility requirements given in paragraph (a) of this section are met.
(g) Low power auxiliary licensees shall specify the maximum number of units that will be operated.
(i) In case of permanent discontinuance of operations of a station licensed under this subpart, the licensee shall cancel the station license using FCC Form 601. For purposes of this section, a station which is not operated for a period of one year is considered to have been permanently discontinued.
(b) A request for special temporary authority for the operation of a remote pickup broadcast station must be made in accordance with the procedures of § 1.931(b) of this chapter.
(c) All requests for special temporary authority of a low power auxiliary station must include full particulars including: licensees name and address, statement of eligibility, facility identification number of the associated broadcast station (if any), type and manufacturer of equipment, power output, emission, frequency or frequencies proposed to be used, commencement and termination date, location of proposed operation, and purpose for which request is made including any particular justification.
Television broadcast auxiliary licensees and motion picture and television producers, as defined in § 74.801 may operate wireless video assist devices on a non-interference basis on VHF and UHF television channels to assist with production activities.
(a) The use of wireless video assist devices must comply with all provisions of this subpart, except as indicated in paragraphs (b) through (i) of this section.
(b) Wireless video assist devices may only be used for scheduled productions. They may not be used to produce live events and may not be used for electronic news gathering purposes.
(c) Wireless video assist devices may operate with a bandwidth not to exceed 6 MHz on frequencies in the bands 180-210 MHz (TV channels 8-12) and 470-698 MHz (TV channels 14-51) subject to the following restrictions:
(1) The bandwidth may only occupy a single TV channel.
(2) Operation is prohibited within the 608-614 MHz (TV channel 37) band.
(3) Operation is prohibited within 129 km of a television broadcasting station, including Class A television stations, low power television stations and translator stations.
(4) For the area and frequency combinations listed in the table below, operation is prohibited within the distances indicated from the listed geographic coordinates.
All coordinates are referenced to the North American Datum of 1983.
(d) Wireless video assist devices are limited to a maximum of 250 milliwatts ERP and must limit power to that necessary to reliably receive a signal at a distance of 300 meters. Wireless video assist devices must comply with the emission limitations of § 74.637.
(e) The antenna of a wireless video assist device must be attached to the transmitter either permanently, or by means of a unique connector designed to allow replacement of authorized antennas but prevent the use of unauthorized antennas. When transmitting, the antenna must not be more that 10 meters above ground level.
(f)(1) A license for a wireless video assist device will authorize the license holder to use all frequencies available for wireless video assist devices, subject to the limitations specified in this section.
(2) Licensees may operate as many wireless video assist devices as necessary, subject to the notification procedures of this section.
(g)
(1) Notification must be made at least 10 working days prior to the date of intended transmission.
(2) Notifications must include:
(i) Frequency or frequencies.
(ii) Location.
(iii) Antenna height.
(iv) Emission type(s).
(v) Effective radiated power.
(vi) Intended dates of operation.
(vii) Licensee contact information.
(3)(i) Failure of a local coordinator to respond to a notification request prior to
(ii) If there is no local coordinator in the intended area of operation, failure of any adjacent channel TV station to respond to a notification request prior to the intended dates of operation indicated on the request will be considered as having the approval of the TV station.
(4) Licensees must operate in a manner consistent with the response of the local coordinator, or, if there is no local coordinator in the intended area of operation, the responses of the adjacent channel TV stations. Disagreements may be appealed to the Commission. However, in those instances, the licensee will bear the burden of proof and proceeding to overturn the recommendation of the local coordinator or the co-channel or adjacent channel TV station.
(h) Licenses for wireless video assist devices may not be transferred or assigned.
(i) The product literature that manufacturers include with a wireless assist video device must contain information regarding the requirement for users to obtain an FCC license, the requirement that stations must locate at least 129 kilometers away from a co-channel TV station, the limited class of users that may operate these devices, the authorized uses, the need for users to obtain a license, and the requirement that a local coordinator (or adjacent channel TV stations, if there is no local coordinator) must be notified prior to operation.
(a) For transmitters used for voice transmissions and having a transmitter output power exceeding 50 mW, an announcement shall be made at the beginning and end of each period of operation at a single location, over the transmitting unit being operated, identifying the transmitting unit's call sign or designator, its location, and the call sign of the broadcasting station or name of the licensee with which it is being used. A period of operation may consist of a continuous transmission or intermittent transmissions pertaining to a single event.
(b) Each wireless video assist device, when transmitting, must transmit station identification at the beginning and end of each period of operation. Identification may be made by transmitting the station call sign by visual or aural means or by automatic transmission in international Morse telegraphy.
(1) A period of operation is defined as a single uninterrupted transmission or a series of intermittent transmissions from a single location.
(2) Station identification shall be performed in a manner conducive to prompt association of the signal source with the responsible licensee. In exercising the discretion provide by this rule, licensees are expected too act in a responsible manner to assure that result.
Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.
(l) The band 13.15-13.20 GHz is reserved for the assignment of CARS Pickup and Television Pickup stations on a primary co-equal basis within 50 kilometers of the television markets defined in § 76.53 of this chapter. The band 13.20-13.2125 GHz is reserved exclusively for the assignment of Television Pickup stations on a primary basis. Fixed stations licensed prior to April 16, 2003, may continue operation under their current status on channels in the 13.15-13.2125 GHz band, subject to periodic license renewals.
(a) Coordination of all frequency assignments for fixed stations in all bands above 2110 MHz, and for mobile (temporary fixed) stations in the bands 6425-6525 MHz and 17.7-19.7 GHz, will be in accordance with the procedure established in paragraph (b) of this section, except that the prior coordination process for mobile (temporary fixed) assignments may be completed orally and the period allowed for response to a coordination notification may be less than 30 days if the parties agree. Coordination of all frequency assignments for all mobile (temporary fixed) stations in all bands above 2110 MHz, except the bands 6425-6525 MHz and 17.7-19.7 GHz, will be conducted in accordance with the procedure established in paragraph (b) of this section or with the procedure in paragraph (d) of this section. Coordination of all frequency assignments for all fixed stations in the band 1990-2110 MHz will be in accordance with the procedure established in paragraph (c) of this section. Coordination of all frequency assignments for all mobile (temporary fixed) stations in the band 1990-2110 MHz will be conducted in accordance with the procedure in paragraph (d) of this section.
(b) Frequency coordination for all fixed stations in all bands above 2110 MHz, and for all mobile (temporary fixed) stations in the bands 6425-6525 MHz and 17.7-19.7 GHz. For each frequency authorized under this part, the interference protection criteria in § 101.105(a), (b), and (c) of this chapter and the following frequency usage coordination procedures will apply:
(1)
(2) Coordination procedure guidelines are as follows:
(i) Coordination involves two separate elements: Notification and response. Both or either may be oral or in written form. To be acceptable for filing, all applications and major technical amendments must certify that coordination, including response, has been completed. The names of the licensees, permittees and applicants with which coordination was accomplished must be specified. If such notice and/or response is oral, the party providing such notice or response must supply written documentation of the communication upon request;
(ii) Notification must include relevant technical details of the proposal. At minimum, this should include, as applicable, the following:
(A) Applicant's name and address,
(B) Transmitting station name,
(C) Transmitting station coordinates,
(D) Frequencies and polarizations to be added, changed or deleted,
(E) Transmitting equipment type, its stability, actual output power, emission designator, and type of modulation (loading),
(F) Transmitting antenna type(s), model, gain and, if required, a radiation pattern provided or certified by the manufacturer,
(G) Transmitting antenna center line height(s) above ground level and ground elevation above mean sea level,
(H) Receiving station name,
(I) Receiving station coordinates,
(J) Receiving antenna type(s), model, gain, and, if required, a radiation pattern provided or certified by the manufacturer,
(K) Receiving antenna center line height(s) above ground level and ground elevation above mean sea level,
(L) Path azimuth and distance,
(M) Estimated transmitter transmission line loss expressed in dB,
(N) Estimated receiver transmission line loss expressed in dB,
(O) For a system utilizing ATPC, maximum transmit power, coordinated transmit power, and nominal transmit power.
The position location of antenna sites shall be determined to an accuracy of no less than ±1 second in the horizontal dimensions (latitude and longitude) and ±1 meter in the vertical dimension (ground elevation) with respect to the National Spacial Reference System.
(iii) For transmitters employing digital modulation techniques, the notification should clearly identify the type of modulation. Upon request, additional details of the operating characteristics of the equipment must also be furnished;
(iv) Response to notification should be made as quickly as possible, even if no technical problems are anticipated. Any response to notification indicating potential interference must specify the technical details and must be provided to the applicant, in writing, within the 30-day notification period. Every reasonable effort should be made by all applicants, permittees and licensees to eliminate all problems and conflicts. If no response to notification is received within 30 days, the applicant will be deemed to have made reasonable efforts to coordinate and may file its application without a response;
(v) The 30-day notification period is calculated from the date of receipt by the applicant, permittee, or licensee being notified. If notification is by mail, this date may be ascertained by:
(A) The return receipt on certified mail;
(B) The enclosure of a card to be dated and returned by the recipient; or
(C) A conservative estimate of the time required for the mail to reach its destination. In the last case, the estimated date when the 30-day period would expire should be stated in the notification.
(vi) An expedited prior coordination period (less than 30 days) may be requested when deemed necessary by a notifying party. The coordination notice should be identified as “expedited” and the requested response date should be clearly indicated. However, circumstances preventing a timely response from the receiving party should be accommodated accordingly. It is the responsibility of the notifying party to receive written concurrence (or verbal, with written to follow) from affected parties or their coordination representatives.
(vii) All technical problems that come to light during coordination must be resolved unless a statement is included with the application to the effect that the applicant is unable or unwilling to resolve the conflict and briefly the reason therefore;
(viii) Where a number of technical changes become necessary for a system during the course of coordination, an attempt should be made to minimize the number of separate notifications for these changes. Where the changes are incorporated into a completely revised notice, the items that were changed from the previous notice should be identified. When changes are not numerous or complex, the party receiving the changed notification should make an effort to respond in less than 30 days. When the notifying party believes a shorter response time is reasonable and appropriate, it may be helpful for that party to so indicate in the notice and perhaps suggest a response date;
(ix) If, after coordination is successfully completed, it is determined that a subsequent change could have no impact on some parties receiving the original notification, these parties must be notified of the change and of the coordinator's opinion that no response is required;
(x) Applicants, permittees and licensees should supply to all other applicants, permittees and licensees within their areas of operations, the name, address and telephone number of their coordination representatives. Upon request from coordinating applicants, permittees and licensees, data and information concerning existing or proposed facilities and future growth plans in the area of interest should be furnished unless such request is unreasonable or would impose a significant burden in compilation;
(xi) Parties should keep other parties with whom they are coordinating advised of changes in plans for facilities previously coordinated. If applications have not been filed 6 months after coordination was initiated, parties may assume that such frequency use is no longer desired unless a second notification has been received within 10 days of the end of the 6 month period. Renewal notifications are to be sent to all originally notified parties, even if coordination has not been successfully completed with those parties; and
(xii) Any frequency reserved by a licensee for future use in the bands subject to this part must be released for use by another licensee, permittee, or applicant upon a showing by the latter that it requires an additional frequency and cannot coordinate one that is not reserved for future use.
(c) Frequency coordination for all fixed stations in the band 1990-2110 MHz. For each frequency authorized under this part, the following frequency usage coordination procedures will apply:
(1)
(2) To be acceptable for filing, all applications for regular authorization, or major amendment to a pending application, or major modification to a license, must include a certification attesting that all co-channel and adjacent-channel licensees and applicants potentially affected by the proposed fixed use of the frequency(ies) have been notified and are in agreement that the proposed facilities can be installed without causing harmful interference to those other licensees and applicants.
(d) Frequency coordination for all mobile (temporary fixed) stations in all bands above 1990 MHz, except the bands 6425-6525 MHz and 17.7-19.7 GHz. For each frequency authorized under this part, applicants are responsible for selecting the frequency assignments that are least likely to result in mutual interference with other licensees in the same area. Applicants may consult local frequency coordination committees, where they exist, for information on frequencies available in the area. In selecting frequencies, consideration should be given to the relative location of receive points, normal transmission paths, and the nature of the contemplated operation.
(a) * * *
(c) The EIRP of transmitters that use Automatic Transmitter Power Control (ATPC) shall not exceed the EIRP specified on the station authorization. The EIRP of non-ATPC transmitters shall be maintained as near as practicable to the EIRP specified on the station authorization.
(a) For fixed stations operating in the 12.7-13.2 GHz and 17.7-19.7 GHz bands, the following standards apply:
Applicants and licensees must comply with § 101.145 of this chapter to minimize the potential of interference to geostationary-satellites.
(b) For paths shorter than those specified in the Table, the EIRP shall not exceed the value derived from the following equation.
For transmitters using Automatic Transmitter Power Control, EIRP corresponds to the maximum transmitter power available, not the coordinated transmit power or the nominal transmit power.
47 U.S.C. 154, 303.
(a) * * *
These limitations are necessary to minimize the probability of harmful interference to reception in the bands 2655-2690 MHz, 5925-7075 MHz, and 12.7-13.25 GHz on board geostationary-space stations in the fixed-satellite service.
(b)
(c)
(b) Communications common carriers in the Local Television Transmission Service may be assigned frequencies listed in §§ 74.602(a), 78.18(a)(6), and 78.18(a)(7) of this chapter to provide service to television broadcast stations, television broadcast network-entities, cable system operators, and cable network-entities. * * *
Stations in this service will not be authorized to use transmitters having a rated power output in excess of the limits set forth in § 101.113(b) and a standby transmitter having a rated power output in excess of that of the main transmitter with which it is associated will not be authorized. As an exception, operations on frequencies listed in §§ 74.602(a), 78.18(a)(6), and 78.18(a)(7) of this chapter are subject to the power limitations of §§ 74.636 and 78.101(a).
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission is adopting an amendment to its broker-dealer customer protection rule. Currently, broker-dealers are required to provide cash, U.S. Treasury bills or notes, or irrevocable bank letters of credit as collateral when borrowing securities from customers. The amendment allows the Securities and Exchange Commission to expand the categories of permissible collateral by order. In addition, the Securities and Exchange Commission is adopting a rule amendment delegating authority to the Director of the Division of Market Regulation to issue such orders.
April 16, 2003.
Michael A. Macchiaroli, Associate Director, 202/942-0131; Thomas K. McGowan, Assistant Director, 202/942-4886; or Randall W. Roy, Special Counsel, 202/942-0798, Division of Market Regulation, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-1001.
The Securities and Exchange Commission is adopting amendments to rule 15c3-3
On June 10, 2002, the Securities and Exchange Commission (“Commission”) proposed amending its broker-dealer customer protection rule, rule 15c3-3, and one of its authority delegation rules, rule 30-3.
The amendment to rule 15c3-3 provides that broker-dealers may pledge such collateral as the Commission designates by order after giving consideration to the collateral's liquidity, volatility, market depth, and location, and the issuer's creditworthiness. This will give the Commission greater flexibility to impose conditions on the pledging of certain collateral to account for differences among collateral types. This flexibility will permit the establishment of safeguards designed to ensure that the rule's objective—the receipt of full collateral by customers—is not compromised. The amendment also will allow for a wider range of broker-dealer assets to be deemed permissible collateral, thereby adding liquidity to the securities lending markets and lowering borrowing costs for broker-dealers. The amendment to rule 30-3 will allow the Commission to react sooner to changes in the securities lending markets.
The Commission adopted rule 15c3-3 in 1972 in response to a congressional directive to create rules regarding, among other things, the acceptance, custody, and use of customer securities.
Paragraph (b)(3) of rule 15c3-3 sets forth conditions under which broker-dealers may borrow fully paid or excess margin securities from customers for their own use without violating the rule's possession or control requirement. These conditions include the requirement that broker-dealers and their lending customers enter into written agreements that (1) set forth the basis of compensation for the loans as well as the rights and liabilities of the parties in the borrowed securities, (2) require the broker-dealers to provide the lenders with schedules of the securities actually borrowed, (3) require the broker-dealers to provide the lenders with, at least, 100% collateral consisting exclusively of cash, United States Treasury bills and notes, or an irrevocable letter of credit issued by a bank, and (4) contain a prominent notice that the provisions of the Securities Investor Protection Act of 1970
In addition to the collateral types currently permitted, the amendment to rule 15c3-3 would allow broker-dealers to pledge such other collateral as the Commission designates by order after giving consideration to the collateral's liquidity, volatility, market depth and location, and the issuer's creditworthiness. The relative weight given these factors will vary on a case-by-case basis. The Commission's orders may impose limitations and conditions on the use of a particular type of collateral depending on its characteristics. This will further the rule's goal of providing customers with full collateral while their loans remain outstanding.
The Commission received three comment letters in response to the proposing release—one from a broker-dealer that engages in borrowings of customer securities,
In the proposing release, the Commission requested comment on whether authority to issue orders should be delegated to the Division. Two commenters provided comments on this proposal. Both expressed support for such a delegation of authority.
The Commission identified in the proposing release categories of collateral being considered for an order should the amendment to rule 15c3-3 become effective.
The Commission also sought comment on whether institutional lenders of securities should be allowed to negotiate collateral agreements other than those required by rule 15c3-3. Two of the commenters responded that the Commission should consider whether the minimum requirements are necessary for certain narrowly defined institutional customers. However, they also urged the Commission to act quickly on the amendment as proposed and not let such consideration delay its adoption.
The Commission is adopting a final rule amendment substantially in the form proposed in the proposing release.
The Commission stated in the proposing release that the amendment will not require a new collection of information. The amendment does not alter the range of collateral that a broker-dealer can pledge when borrowing customer securities, but instead amends the rule to establish criteria that the Commission will consider when issuing an order allowing additional collateral. The comment letters did not disagree with this assessment. In connection with rule 15c3-3, the Commission previously submitted to the Office of Management and Budget, pursuant to the Paperwork Reduction Act, a request for approval and received an OMB control number for the rule, OMB control number 3235-0078.
In the proposing release, the Commission requested comment on the costs and benefits of the amendment to rule 15c3-3. The Commission estimated that the primary benefits of the amendment would be lowered borrowing costs and increased liquidity in the securities lending markets. All three commenters concurred with this estimate.
The Commission estimated that there would not be any direct costs associated with the amendment because of its deregulatory nature. The Commission did not receive any comments on this estimate.
The primary benefits of the amendment should be lowered borrowing costs and increased liquidity in the securities lending markets, and greater opportunity for U.S. firms to compete abroad. The current collateral requirements in rule 15c3-3 make it more economical for broker-dealers to borrow securities from other broker-dealers (which are not customers) since customers must be provided with a limited range of collateral. In such a case, the broker-dealer would be limited to borrowing the securities from broker-dealers agreeable to accepting another type of collateral. Expanding the categories of collateral will increase the supply of eligible lenders, which should decrease costs as a consequence of greater competition.
On the other side, customers will have the opportunity to enter into more lending transactions with broker-dealers. This will allow them to earn the fees associated with such transactions and thereby realize greater returns on their securities portfolios. The increased opportunities to borrow and lend securities should add liquidity to the securities lending markets.
There should not be any direct costs associated with the amendment. It will have no impact on broker-dealers that do not borrow customer securities or customers that do not lend securities. For those who participate in such transactions, the amendment is not imposing any changes as to how they must be structured. As described above, it will provide greater opportunities; however, it also maintains the status quo, and therefore, broker-dealers and customers do not have to avail themselves of these new opportunities. Broker-dealers can continue to pledge the types of collateral currently allowed under the rule and, while new categories of collateral may have risk characteristics that differ from those applicable to currently permitted collateral, customers could choose not to accept new categories of collateral.
Section 3(f) of the Exchange Act requires the Commission, when engaged in rulemaking where it is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider whether the action would promote efficiency, competition, and capital formation. Section 23(a)(2) of the Exchange Act requires the Commission to consider the impact on competition of any rule proposed under that Act. In addition, the law requires that the Commission not adopt any rule that would impose a burden on competition not necessary or appropriate in the furtherance of the purposes of the Exchange Act.
The Commission stated in the proposing release, and continues to believe, that the proposed amendment should improve efficiency, competition, and capital formation by adding liquidity to the securities lending markets, lowering the costs of borrowing securities, and providing investors with the opportunity to realize greater returns on their securities portfolios. All commenters agreed that the amendment would increase liquidity and lower borrowing costs.
Section 3(a) of the Regulatory Flexibility Act
The Commission has adopted an amendment to rule 30-3 of its rules of Organization and Program Management governing delegations of authority to the Director of the Division of Market Regulation (“Director”).
Section 36(a) provides, in pertinent part, that the Commission may by rule, regulation or order exempt any classes of persons, securities or transactions from any rule or regulation under the Exchange Act, provided the exemption is necessary or appropriate in the public interest and is consistent with the protection of investors. The Commission is delegating to the Director its exemptive authority pursuant to section 36(a) for the limited purpose of exempting collateral types from certain requirements set forth in paragraph (b)(3) of rule 15c3-3.
The delegation of authority to the Director is intended to conserve Commission resources by permitting the staff to review and act on exemptive applications under section 36(a) when appropriate. Nevertheless, the staff may submit matters to the Commission for consideration as it deems appropriate. In addition, under section 4A(b) of the Exchange Act, the Commission retains discretionary authority to review, upon its own initiative or upon application by a party adversely affected, any exemption granted or denied by the Division pursuant to delegated authority. Information concerning the filing of exemptive relief applications can be found in Release No. 34-39624; rule 240.0-12, 17 CFR 240.0-12.
The Commission finds, in accordance with the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A), that this amendment to rule 30-3 relates solely to agency organization, procedure, or practice. Accordingly, notice and opportunity for public comment, as well as publication 30 days before its effective date are unnecessary. Because notice and comment are not required for this final rule, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act.
The amendment to rule 30-3 does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995 as amended. In addition, it will not impose any costs on the public.
The amendments are made pursuant to authority conferred on the Commission by the Exchange Act, including sections 15(c)(3), 23(a) and 36.
Administrative practice and procedure, Authority delegations (government agencies), Organization and functions (government agencies).
Broker-dealers, Reporting and recordkeeping requirements, Securities.
15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78
(a) * * *
(10) (i) Pursuant to Rule 15c3-3 (§ 240.15c3-3 of this chapter) to find and designate as control locations for purposes of Rule 15c3-3(c)(7) (§ 240.15c3-3(c)(7) of this chapter) certain broker-dealer accounts which are adequate for the protection of customer securities.
(ii) Pursuant to section 36(a) of the Act (15 U.S.C. 78mm(a)) to review and, either unconditionally or on specified terms and conditions, grant or deny exemptions from the collateral requirements of paragraph (b)(3) of Rule 15c3-3 of the Act (§ 240.15c3-3 of this chapter) for a type of collateral after concluding that the characteristics of such collateral are substantially comparable to the characteristics of a type of collateral previously exempted by the Commission.
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
(b)
(3) * * *
(iii) Specifies that the broker or dealer:
(A) Must provide to the lender, upon the execution of the agreement or by the close of the business day of the loan if the loan occurs subsequent to the execution of the agreement, collateral, which fully secures the loan of securities, consisting exclusively of cash or United States Treasury bills and Treasury notes or an irrevocable letter of credit issued by a bank as defined in section 3(a)(6)(A)-(C) of the Act (15 U.S.C. 78c(a)(6)(A)-(C)) or such other collateral as the Commission designates as permissible by order as necessary or appropriate in the public interest and consistent with the protection of investors after giving consideration to the collateral's liquidity, volatility, market depth and location, and the issuer's creditworthiness; and
(B) Must mark the loan to the market not less than daily and, in the event that the market value of all the outstanding securities loaned at the close of trading at the end of the business day exceeds 100 percent of the collateral then held by the lender, the borrowing broker or dealer must provide additional collateral of the type described in paragraph (b)(3)(iii)(A) of this section to the lender by the close of the next business day as necessary to equal, together with the collateral then held by the lender, not less than 100 percent of the market value of the securities loaned; and
By the Commission.
Office of the Secretary, HUD.
Final rule.
This final rule revises HUD's civil money penalty regulations to make inflation adjustments to the civil money penalties imposed by HUD as required by statute. The applicable statute mandates the adjustments and the formula used to calculate them.
Effective Date: April 16, 2003.
Dane Narode, Deputy Chief Counsel for Administrative Proceedings, Departmental Enforcement Center, Department of Housing and Urban Development, 1250 Maryland Avenue, SW., Suite 200, Washington, DC 20024. Telephone (202) 708-2350 (this is not a toll-free number). Hearing-or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
The changes made by this rule will increase the amount of civil money penalties, consistent with statutory authority.
The Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461) (FCPIA Act), as amended by the Debt Collection Improvement Act of 1996 (31 U.S.C. 3701), requires each federal agency to make inflation adjustments to their maximum civil money penalties. This rule raises the maximum penalties that HUD may impose upon violators with respect to several HUD regulations found in 24 CFR parts 25, 28, 30, 81, 3282, and 3500. For several HUD regulations that address civil money penalties (
In § 28.10, the maximum penalty for making a false claim or written statement, as described in the regulation, is increased from $5,500 to $6,500.
In § 30.35(c), the maximum penalties that the Mortgagee Review Board may impose for a series of violations identified in the regulations are increased from $5,500 to $6,500 per violation, and from $1,100,000 to $1,250,000 for all violations committed during any one-year period.
In § 30.40, the maximum penalty that HUD may impose upon a mortgagee or a holder of a guarantee certificate who violates the statutory provisions concerning loan guarantees for Indian housing is increased from $5,000 to $6,000 per violation, and from $1,100,000 to a maximum of $1,250,000 for all violations committed during any one-year period.
In § 30.45(g), the maximum penalty that may be imposed upon a mortgagor of a multifamily property or on any person in a relationship with the mortgagor as described in the regulations at paragraph (c) of § 30.45 is increased to $32,500 per violation.
In § 30.50(c), the maximum penalty that may be imposed against a Government National Mortgage Association (GNMA) issuer or custodian for a violation of any provision of 12 U.S.C. 1723i(b) or other authorities cited in the regulations is increased from $5,500 to $6,500 per violation, and from $1,100,000 to $1,250,000 for all violations committed during any one-year period.
In § 30.55(c), the maximum penalty for each violation of any provision of the Interstate Land Sales Full Disclosure Act remains unchanged at $1,100, but the one-year maximum per person increases from $1,100,000 to $1,250,000.
In § 30.60(c), the maximum penalty that may be imposed upon any dealer or loan correspondent for, among other things, falsifying statements or making false representations in violation of section 2(b)(7) of the National Housing Act (12 U.S.C. 1703(b)(7)) is increased from $5,500 to $6,500 for each violation, and from $1,100,000 to a maximum of $1,250,000 during any one-year period.
In § 81.83(b)(1), the maximum penalty that the Secretary may impose upon a Government Sponsored Enterprise (GSE) is increased from $25,000 to $30,000 for each day an identified failure occurs.
In §§ 180.670(b)(3)(A)(2) and (3), the maximum penalty that the Administrative Law Judge (ALJ) may impose upon a respondent who is found to have engaged in a discriminatory housing practice is increased from $27,500 to $32,500, and from $55,000 to $60,000.
In §§ 180.671(a)(2) and (3), the maximum penalty that the ALJ may impose upon a respondent who is found to have engaged in a discriminatory housing practice is increased from $27,500 to $32,500, and from $55,000 to $60,000.
In § 3282.10, the maximum penalty for each violation of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5401
In § 3500.17(m)(1), the penalty for a servicer's failure to submit to a borrower an initial or annual escrow account statement is increased from $55 to $65 for each such violation. The total of assessed penalties may not exceed $120,000 (from the existing total of $110,000) for violations that occur during any consecutive 12-month period.
In addition to revising HUD's civil money penalties to make inflation adjustments as required by statute, this rule makes a technical correction to 24 CFR 25.12. Section 25.12 provides that the Mortgagee Review Board is authorized to impose civil money penalties and refers the reader to 24 CFR 30.320 for a list of violations for which a civil money penalty may be imposed. HUD published a final rule on September 24, 1996 (61 FR 50208), that removed § 30.320 from 24 CFR part 30. In part 30, subpart B now contains a separate section identifying each category of user that is subject to civil money penalties (
In general, HUD publishes a rule for public comment before issuing a rule for effect, in accordance with HUD's
HUD finds that good cause exists to publish this rule for effect without soliciting public comment in that prior public procedure is “unnecessary.” This final rule merely follows the statutory directive in the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461) to make periodic increases in HUD's civil money penalties by applying the adjustment formula established in the statute. Accordingly, because calculation of the increases is formula-driven, HUD has no discretion in updating the regulations to reflect the maximum allowable penalties derived from application of the formula. HUD emphasizes that this rule only addresses the matter of the calculation of the maximum civil money penalties for the respective violations described in the regulations. This rule does not address the issue of the Secretary's discretion to impose or not to impose a penalty, nor the procedures that HUD must follow in initiating a civil money penalty action.
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule before publication and by approving it certifies that this rule does not have a significant economic impact on a substantial number of small entities. The reason for HUD's determination is that all entities, small or large, will be subject to the same penalties as established by statute and implemented by this rule. There are not any unusual procedures that would need to be complied with by small entities.
This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c), this rule is categorically excluded from the requirements of the National Environmental Policy Act (42 U.S.C. 4321
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments nor preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This final rule does not impose any federal mandates on any state, local, or tribal governments or the private sector within the meaning of the Unfunded Mandates Reform Act of 1995.
Administrative practice and procedure, Loan programs “ housing and community development, Organization and functions (Government agencies), Reporting and recordkeeping requirements.
Administrative practice and procedure, Claims, Fraud, Penalties.
Administrative practice and procedure, Grant programs—housing and community development, Loan programs—housing and community development, Mortgages, Penalties.
Accounting, mortgages, Reporting and recordkeeping requirements, Securities.
Administrative practice and procedure, Aged, Civil Rights, Fair housing, Individuals with disabilities, Investigations, Mortgages, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Consumer protection, Intergovernmental relations, Investigations, Manufactured homes, Mortgages, Reporting and recordkeeping requirements.
Consumer protection, Housing, Mortgages, Reporting and recordkeeping requirements.
12 U.S.C. 1708(c), 1708(d), 1709(s), 1715b and 1735(f)-14; 42 U.S.C 3535(d).
The Board is authorized pursuant to section 536 of the National Housing Act (12 U.S.C.1735(f)-14) to impose civil money penalties upon lenders and mortgagees, as set forth in 24 CFR part 30. The violations for which a civil money penalty may be imposed are listed in subpart B (Violations) of part 30. Hearings to challenge the imposition of civil money penalties shall be conducted according to the applicable rules of 24 CFR part 30.
28 U.S.C. 2461 note; 31 U.S.C. 3801; 42 U.S.C. 3535(d).
(a)
(b)
12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, 1735f-15; 15 U.S.C. 1717a; 28 U.S.C. 2461 note; 42 U.S.C. 1437z-1 and 3535(d).
(c)
(c)
(g)
(c)
(c)
(c)
12 U.S.C. 1451
(b) * * *
(1) For any failure described in paragraph (a)(1) of this section, $30,000 for each day that the failure occurs; and
29 U.S.C.794; 42 U.S.C. 2000d-1, 3535(d), 3601-3619, 5301-5320, and 6103.
(b) * * *
(3) * * *
(iii) * * *
(A) * * *
(
(
(a) * * *
(1) * * *
(2) $32,500, if the respondent has been adjudged in any administrative hearing or civil action permitted under the Fair Housing Act, or under any state or local fair housing law, or in any licensing or regulatory proceeding conducted by a federal, state, or local government agency, to have committed one other discriminatory housing practice and the adjudication was made during the five-year period preceding the date of filing of the charge.
(3) $60,000, if the respondent has been adjudged in any administrative hearings or civil actions permitted under the Fair Housing Act, or under any state or local fair housing law, or in any licensing or regulatory proceeding conducted by a federal, state, or local government agency, to have committed two or more discriminatory housing practices and the adjudications were made during the seven-year period preceding the date of filing of the charge.
28 U.S.C. 2461 note; 42 U.S.C. 5424; and 42 U.S.C. 3535(d).
Failure to comply with these regulations may subject the party in question to the civil and criminal penalties provided for in section 611 of the Act, 42 U.S.C. 5410. The maximum amount of penalties imposed under section 611 of the Act shall be $1,100 for each violation, up to a maximum of $1,250,000 for any related series of violations occurring within one year from the date of the first violation.
12 U.S.C. 2601
(m)
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Final rule.
This final rule adopts, without change, the prior interim rule published in the
Effective Date: April 16, 2003.
Michael McCullough, Director, Office of Multifamily Development, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410, at (202) 708-1142 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service toll-free at (800) 877-8339.
On July 2, 2001, HUD issued an interim rule revising the regulatory system for establishing mortgage insurance premiums. (See 66 FR 35072.) Rather than fixing a specific premium, expressed as a percentage of the outstanding principal balance on the mortgage loan, the interim rule authorizes HUD to set a premium anywhere within the range permitted by statute, that is, between .25 percent and 1 percent of the outstanding principal balance. Specific premium rates would be set by subsequent notice, which would provide a 30-day period for public comment. More detailed background information can be found in the preamble to the interim rule at 66 FR 35070-35072. The notice that followed the July 2, 2001, interim rule, and published on August 30, 2002 (67 FR 55859), set the actual premiums for FY 2002 and FY 2003.
This final rule adopts the interim rule without change.
HUD received five public comments on the interim rule and the accompanying notice. Four comments were from housing and mortgage industry trade groups, and one was from a law firm. The commenters addressed both rulemaking concerns and substantive concerns regarding the new mortgage insurance premium rates and the method of establishing rates by notice.
This commenter also stated that this rule does not fall into any rulemaking exception in the Administrative Procedure Act (APA) or HUD's rulemaking regulations at 24 CFR part 10. The commenter stated that program shutdown does not constitute “good cause” to dispense with regular public rulemaking procedures because decreasing credit subsidy is not a new crisis. The commenter stated that this has happened in the past and is something with which program participants are familiar. The commenter stated that, in the past, similar situations have always been resolved by appropriate legislative action in Congress. In addition, the new fiscal year is only weeks away and new credit subsidy will be available.
Furthermore, use of “ad hoc” appropriations will not solve the long-term credit subsidy problem. For example, Congress need not approve HUD's requests for such appropriations (as in the case of HUD's request for a non-emergency supplemental appropriation in FY 2001). Rather, the credit subsidy problem can best be solved by the approach of adjusting mortgage insurance premiums (MIP) through regulation so as to decrease the need for credit subsidy.
Furthermore, for reasons stated in HUD's response to an earlier comment on HUD's use of a good cause exception to proposed rulemaking (above), HUD does not believe use of the $40 million emergency appropriation was an appropriate alternative.
Any decrease in premium rates will be made as soon as possible consistent with regulatory and budgetary requirements. If increases and decreases in premiums are combined in one notice, HUD reserves the right to treat the increases and decreases under identical time frames.
As to the second and third points, HUD supports affordable homeownership and cooperative housing. Cooperative housing under Section 213 of the National Housing Act does not require credit subsidy because of the excellent performance of the Cooperative Management Housing Insurance Fund. Because the mortgage insurance premium was not raised for Section 213, but remains at 50 basis points, cooperatives are encouraged to use that program rather than applying under Section 221(d)(3), which is also open to cooperatives but, because of past performance, has consistently required credit subsidy. Therefore, HUD, through Section 213, in fact recognizes the performance of cooperatives in its MIP calculation. No change to this rule is required as a result of this comment.
The Office of Management and Budget (OMB) reviewed this rule under Executive Order 12866,
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed and approved this final rule, and in so doing certifies that this rule will not have a significant economic impact on a substantial number of small entities. While this rule and the related notice for FY 2002 raised mortgage insurance premiums in certain programs, the amount of increase remains in the limits of HUD's statutory authorization. Indeed, under some circumstances, this rule would allow MIP rates to decrease, as the MIP rate for the Section 221(d)(4) program will do in FY 2003. Furthermore, without the authorization for necessary changes in the MIP rate, it is likely that the effect on business entities will be much greater, as a number of HUD's mortgage insurance programs would have to cease operations completely, causing hardship and uncertainty to those who depend upon these programs to secure mortgages. Therefore, this rule acts to minimize adverse impacts on the business community.
In accordance with 24 CFR 50.19(c)(6) of HUD's regulations, this rule involves establishment of rate or cost determinations and related external administrative requirements and procedures which do not constitute a development decision that affects the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; approved March 22, 1995) (UMRA), establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
The Catalog of Federal Domestic Assistance number applicable to the program affected by this rule is 14.134.
Manufactured homes, Mortgage insurance, Reporting and recordkeeping requirements, Solar energy.
Accordingly, the amendment to 24 CFR part 207, published in the
Agricultural Marketing Service
Animal and Plant Health Inspection Service
Farm Service Agency
Food Safety and Inspection Service
Forest Service
Committee for Purchase From People Who Are Blind or Severely Disabled
Inspector General Office, Health and Human Services Department
International Trade Administration
National Oceanic and Atmospheric Administration
Energy Efficiency and Renewable Energy Office
National Nuclear Security Administration
Management and Budget Office
Presidential Documents
Fiscal Service
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Children and Families Administration
Food and Drug Administration
Inspector General Office, Health and Human Services Department
Coast Guard
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Fiscal Service
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Fiscal Service
Internal Revenue Service
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